Bill C-217 (Blood Samples Act)
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Appearance before the House of Commons Standing Committee on Justice and Human Rights
February 21, 2002
Privacy Commissioner of Canada
(Check Against Delivery)
Let me begin by saying that I recognize the good intentions behind this bill.
But compulsory blood testing, and compulsory disclosure of the results of blood testing, is a massive violation of privacy and the personal autonomy that flows from privacy.
And it's a profound affront to the principle - shared by all of you, I'm sure - that your personal medical information is the most intimate and private information about you.
Our right to privacy is based above all on the notion of consent.
All privacy legislation, policies and codes of practice hinge on this: if I want to know something about you, if I want to use or disclose information about you, I have to ask you first.
Privacy means our right to control access to ourselves and to information about ourselves.
This bill would violate privacy in the most profound way possible - because it would take away that right to control access not only to the most sensitive private information about ourselves, but even to our physical selves as well, to our own bodies.
I would never suggest that privacy is an absolute right.
But I believe that any proposed measure to limit or infringe privacy must meet four tests: it must be demonstrably necessary to meet a specific need; it must be likely to be effective in meeting that need; it must be proportional to the magnitude and importance of the problem; and there must be no less privacy-invasive alternative.
I stand to be corrected, but at this point I am not aware that this bill meets any of these tests.
First, necessity. I haven't seen any statistical evidence as to the magnitude of the problem this bill is intended to address. There's been only anecdotal evidence - and even that doesn't indicate a problem so massive that it would justify such a draconian violation of privacy.
For instance, there have only been two probable cases of occupational transmission of HIV in Canada, and one confirmed case. The one confirmed case was a health-care worker - but the two probable cases were research lab workers, who aren't even covered by this bill.
Second, effectiveness. I'm not persuaded that the actual benefits of this bill would be quick enough, or conclusive enough, to meet the intended purpose.
It would take time to get a warrant, to get the blood sample, to carry out the testing and obtain the results - probably more time than is available before prophylactic treatment should start.
And the results wouldn't be conclusive anyway.
A negative test result doesn't necessarily mean the source person is uninfected - he or she could be in the window or incubation period before the virus can be detected.
And if an object such as a needle or a knife is involved, the individual being tested isn't necessarily the only source of contagion. Who knows who else might have been in contact with it previously?
Third, proportionality. We're talking here about a massive, unprecedented invasion of privacy.
The Criminal Code only allows bodily samples to be taken without consent in two situations: testing for alcohol when there are reasonable grounds to suspect impaired driving, and taking DNA samples related to prosecution for some very serious offences. In both instances, there must be reasonable grounds to suspect criminal wrong-doing.
Compulsory blood testing of ordinary law-abiding citizens is a privacy violation so enormous that I find it out of all proportion to a problem whose size hasn't even been demonstrated, and to its very questionable effectiveness as a solution in any event.
And, finally, are there less invasive alternatives? I believe the answer is yes.
There is continued reliance on voluntary consent. I understand that studies indicate most source persons agree to be tested and to have the relevant information shared with the exposed worker, when they are approached in a sensitive manner and the seriousness of the problem is explained - and particularly when privacy, security and confidentiality are respected.
And, second, there is improved prevention and management of occupational exposure to bloodborne pathogens - including better policies, practices and training, as well as more widespread vaccination against Hepatitis B.
To sum up, this bill is a proposal to take away a fundamental right.
Unless someone can present a much stronger argument than we've seen to date - and argument that fully meets all four of the tests I have suggested to you - I recommend that you reject any proposal for compulsory blood testing.
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