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Submissions on Bill C-217 the Blood Samples Act, to the Standing Committee on Justice and Human Rights

PART I: Introduction

Bill C-217 is a private member’s Bill that would authorize involuntary court-ordered testing of a person suspected of carrying the Hepatitis B Virus (“Hep B”), the Hepatitis C virus (“Hep C”), or the Human Immunodeficiency Virus (“HIV”), in circumstances where a health-care worker, firefighter, volunteer, peace officer, security officer, or “good Samaritan” believes on reasonable grounds that she or he may have been exposed to a risk of infection.

The BCCLA believes that the involuntary blood testing scheme proposed by Bill C-217 is incompatible with fundamental Canadian values. Firstly, Bill C-217 violates the bodily integrity of test subjects. Secondly, Bill C-217 violates the privacy of test subjects. Thirdly, Bill C-217 implicitly discriminates against certain groups such as intravenous drug users and sexual minorities. Fourthly, Bill C-217 is not within the Federal government’s power to enact criminal law. And finally, Bill C-217 constitutes an unjustifiable infringement of the rights guaranteed by the Charter of Rights and Freedoms to all individuals.

The BCCLA recommends to the Standing Committee on Justice and Human Rights that it should report to Parliament that Bill C-217 is incompatible with fundamental Canadian values and should not be passed into law.

PART II: Bill C-217 Violates Bodily Integrity

Bill C-217 proposes to violate the bodily integrity of persons subject to involuntary testing. Bodily integrity is one of the most cherished values in Canada: it is protected by Criminal law prohibitions and by rules of professional ethics. Violations of bodily integrity are compensible under Canadian civil law.

The protection of bodily integrity is also guaranteed by the Charter of Rights and Freedoms. In R. v. Stillman, the Supreme Court of Canada stated that bodily integrity is protected by the guarantee to security of the person, found in section 7 of the Charter. In suppressing evidence obtained by the police through involuntary buccal swabs as well as dental moulds taken from within the oral cavity of a suspect, Justice Cory stated that:

It has often been clearly and forcefully expressed that state interference with a person’s bodily integrity is a breach of that person’s privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohertsky, [1987] 1 S.C.R. 945 at p. 949, Lamer J., as he then was, noted that “a violation of the sanctity of a person’s body is much more serious than that of his office or even of his home”.

Bill C-217 would have the effect of violating the test subject’s bodily integrity. Bill C-217 plainly contemplates the involuntary insertion of a needle into a person’s blood vessels and the involuntary extraction of blood from his or her body. To enable the execution of an order for involuntary testing, Bill C-217 would inevitably authorize the forcible restraint of a test subject during the administration of a needle, as well as his or her involuntary detention pending the taking of a blood sample.

Involuntary bodily intrusion and confinement are among the most serious violations of bodily integrity. Under the present law of Canada, the involuntary taking of a blood sample contemplated by Bill C-217 would constitute assault under the Criminal Code, battery in civil law, and a breach of professional ethics for failure to obtain informed consent. It is plain that, if passed, Bill C-217 would quickly become the subject of a Charter challenge in which an infringement of security of the person would easily be proven. Whether the Bill would consequently be struck down is addressed in Part VI of these submissions.

PART III: Bill C-217 Violates Privacy

Privacy lies at the heart of liberty in the modern state. Privacy interests are protected by confidentiality rules of medical associations, by Federal and Provincial privacy statutes, by civil remedies for violations of privacy, and are guaranteed by sections 7 and 8 of the Charter of Rights and Freedoms. Bill C-217 proposes to eliminate those protections for selected citizens.

Bill C-217 violates privacy rights that protect an individual’s control over information about herself or himself. As part of the procedure contemplated by the Bill, the test subject’s blood would be analyzed and the information resulting from the analysis would be distributed to the test subject, the applicant, and the police officer who executed the order (or another police officer in his or her stead). If the results of the blood tests were thus distributed, the test subject would experience a significant loss of control over personal information relating to his or her medical status. As stated in R. v. Duarte, the very definition of privacy is “the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself”. Bill C-217 exacerbates the test subject’s loss of control over information by unnecessarily distributing his or her test results. The Bill requires the distribution of information about the test subject=s blood to the peace officer who executed the order for involuntary testing—or another peace officer in his or her stead. This provision puts potentially compromising information into the hands of police officers who already enjoy significant discretionary power and authority in their communities. This violation of privacy is nothing short of an invitation for abuse, and in particular for the abuse of already vulnerable members of our society, such as prisoners, prostitutes, drug users, and men who have sex with men.

In addition to eliminating the test subject’s control over information, Bill C-217 violates privacy rights that protect dignity. By authorizing the forcible conscription of a test subject’s body into providing information about that person, Bill C-217 reduces one citizen to an object of scientific study for the supposed benefit of another citizen. In so doing, forced blood testing denies the test subjects a type of privacy that is essential to human dignity. In R. v. Dyment, the Supreme Court of Canada confirmed that dignity forms part of the right to privacy, and confirmed that involuntary blood testing constitutes a denial of an individual’s dignity.

Bill C-217 also violates an individual’s dignity by impliedly authorizing an involuntary medical examination of a test subject. Before a judge may issue an order under Bill C-217, the judge must be satisfied that there are reasonable grounds to believe that a qualified medical practitioner is of the opinion that the taking of blood samples from the test subject would not endanger the life or health of the person. If a test subject will not voluntarily submit to a blood sample, then that test subject is unlikely to submit to a medical examination. To be effective, Bill C-217 must therefore contemplate an application to a judge for an order directing the source person to submit to an involuntary medical examination. This would further interfere with the test subject’s dignity.

Finally, Bill C-217 violates a test subject’s privacy by making their personal life and habits into an object of judicial inquiry. The Bill neither makes provision for an in camera hearing in which the public would be excluded, nor authorizes a judge to impose a publication ban on the identity of the test subject. All testimony and argument would necessarily be in full view of the public. In the course of the applications proposed by the Bill, the risk factors associated with a test subject’s life would be aired for public consumption. The public would have ready access to private information about the test subject=s exposure to risk factors such as intravenous drug use, prostitution, and certain sexual practices.

The BCCLA believes that Bill C-217’s proposal to distribute information about test subjects’ medical status, to conscript test subjects’ bodies for the provision of information, to force test subjects to submit to medical examinations, and to engage in public judicial investigations into the private lives of test subjects, constitutes a palpable threat to privacy interests. This threat should weigh heavily in the Committee=s report to Parliament.

PART IV: Bill C-217 Will Result in Wrongful Discrimination

If passed into law, Bill C-217 will wrongfully discriminate against identifiable groups who are at risk of being infected with Hep B, Hep C, and HIV. On its face, the Bill does not specify which Canadian citizens are to be selected for involuntary blood testing. The Bill merely designates three viruses and identifies certain groups of individuals who may apply to a judge for an order. However, it can easily be inferred that Bill C-217 targets certain groups for involuntary testing.

The fact that Bill C-217 targets certain groups can be inferred from the way in which the provisions triggering involuntary testing interact with the known infection risks for HIV, Hep B, and Hep C. Under the Bill, the threshold for obtaining an order for involuntary testing requires an applicant to show that the applicant believes on reasonable grounds that:

by reason of the circumstances in which the applicant came into contact with the bodily substance, the applicant may have been infected by a designated virus.

In addition, the Bill requires that the applicant believes on reasonable grounds that they applicant has come into contact with “a bodily substance”.

Contact with a “bodily substance” will not on its own constitute a reasonable ground for belief in the possibility of infection—something more is required. It can be inferred that Bill C-217 implicitly requires an applicant to demonstrate that the bodily substances with which he or she has come into contact represent a risk of infection with a designated virus. And the risk associated with a test subject’s bodily substances inevitably refers to the risk associated with activities in which the test subject has engaged.

Health Canada states that a person will be at risk of infection with Hep B, Hep C, and HIV when:

  •  they have previously contracted sexually transmitted diseases;
  •  they have had sexual or blood contact with a person known to have been infected with Hep B, Hep C, and HIV;
  •  they have engaged in injection drug use or tattoo/body piercing; or
  •  they have engaged in high risk sexual behaviour (ie. men who have sex with men, sexual partner who is an injection drug user, multiple sexual partners);
  •  In the case of Hep C, risk factors also include:
  •  receipt of blood or blood products before 1990;
  •  receipt of blood-derived coagulation products before 1985;
  •  origination from a developing country; and
  •  dialysis.

An application before a justice under Bill C-217 may well place into issue whether the source person has engaged in certain sexual behaviour or has used intravenous drugs, or is implicated by the risk factors for Hep C.

Bill C-217 has the effect of denying the rights of groups who are subject to risks of infection. The Bill would provoke applications against persons who are known to have, or are suspected of having, engaged in the risk factors outlined by Health Canada. If Bill C-217 is passed, Canadian criminal and civil laws and professional ethical rules that protect bodily integrity and privacy would simply be eliminated for this class of people.

The discriminatory effects of Bill C-217 can most readily be illustrated by its failure to promote reciprocity between citizens. The Bill has been tabled on the basis a genuine concern for persons performing designated functions, who are exposed with greater frequency of the bodily fluids of those who may be infected with Hep B, Hep C, and HIV. If true, this would suggest that persons performing the designated functions are themselves likely to be infected with the viruses. But neither persons receiving medical care nor persons having contact with law enforcement workers are entitled under Bill C-217 to apply for the involuntary testing of a person engaged in a designated function. In failing to promote reciprocity, Bill C-217 grants different entitlements to citizens who are in similar situations, and thereby discriminates between groups of people on irrelevant grounds.

The discriminatory effects of Bill C-217 are also illustrated by the narrow selection of HIV, Hep B, and Hep C from among the pathogens that involve a risk of infection through bodily fluids. Aside from these three viruses, there are many blood-borne pathogens currently known to medical authorities that present a risk of infection after contact with bodily fluids, including Syphillis and Human T-Cell Lymphotropic virus HTLV-I and II. The BCCLA does not know of any principled account of the omission of these pathogens from the Bill’s definition of “designated virus”. The narrow selection of HIV, Hep B, and Hep C, Bill C-217 therefore appears more to target certain risk behaviours—drug use, prostitution, and men having sex with men—than it appears to target the risk of infection.

The BCCLA is forced to conclude that, if passed into law, Bill C-217 would have a discriminatory effect. The Bill fails to treat equal citizens equally. The Bill implicitly targets individuals such as intravenous drug users and men who have sex with men for involuntary blood testing, thereby violating their bodily integrity and their right to privacy. As a consequence, Bill C-217 should not be passed into law.

PART V: Bill C-217 Is Not Within the Power of the Federal Government

Bill C-217 is not a bona fide exercise of the criminal law power granted to the Federal government by section 91(27) of the Constitution Act. For a statute to fall within the criminal law power, that statute must have a valid criminal law purpose backed by a prohibition and a penalty. Bill C-217 does not meet this criterion.

Bill C-217 lacks a valid criminal law purpose. The Bill is intended to gather and distribute information related to the test subject’s serological status, with the purported objective of easing another person’s anxiety and facilitating decisions regarding medical treatment. This objective is clearly related to individual health issues and is not related to criminal law.

Bill C-217’s use of the word “warrant” to describe an order of a justice does not bring it within the criminal law power. This is because an order under Bill C-217 cannot properly be described as a warrant. The word warrant is legal jargon for an order authorizing a search or an arrest in the course of a criminal investigation. Since no such criminal investigation would occur under Bill C-217, the use of the word warrant by Bill C-217 is at best a misleading description of its legal processes, and at worst, an blatant attempt to dress the Bill in the rhetorical guise of criminal law.

In addition, Bill C-217 falls outside the Federal criminal law power because it does not contain a prohibition or a penalty of the required type. Like the use of the word warrant, the prohibitions and penalties that are established by the bill are a transparent form of “window dressing”. Under the sub-heading “Prohibitions”, the bill establishes an offence punishable on summary conviction for a person who analyses or uses a sample of blood for any purpose other than the purpose specified in the judge’s order. However, this offence is peripheral to the “pith and substance” of the bill, as it relates only to the regulation of the blood sample after it is obtained, and not to the involuntary testing at the core of the Bill. Again, the use of the heading Prohibition is a misleading attempt to give the bill the appearance of being criminal law.

Similarly, it might be argued that the criminal aspect of Bill C-217 is found in the authority of a justice to “impose a term of imprisonment not exceeding six months on any person who fails or refuses to undergo a blood test pursuant to a warrant” issued under the bill. However, the argument that this provision transforms the Bill into criminal law leads to logical absurdity. Canadian judges currently have discretionary powers under statutory and common law, in both their criminal and their civil jurisdiction, to incarcerate any person who disobeys any order of the court. If the penalty for disobeying an order under Bill C-217 renders the statute criminal, then every refusal of a judge’s order could be considered criminal conduct, and every enactment that authorizes a judge’s order could be considered part of the criminal law. The penalty under C-217 for refusing or failing to undergo a blood test does not transform Bill C-217 into criminal law.

The private member who sponsored the bill has suggested that Bill C-217 is akin to the existing provisions of the Criminal Code that permit blood testing in the course of investigations of the Criminal Code offences of sexual assault and impaired driving. This analogy would suggest that a blood sample taken under Bill C-217 is taken in the course of an investigation of a criminal offence.

For this argument to be accepted, it would mean that when a person’s bodily fluids deliberately or accidentally come into contact with another person, a criminal act is committed. To illustrate the fault of this analysis, we can do no better than to quote the words of Mr. John Maloney, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada:

On its face the bill does not apply solely in cases where an offence is alleged to have been committed, but rather in any case where there has been an exchange of bodily fluids. Thus a warrant to obtain a bodily sample is sought without any office being committed. There is therefore no nexus with the criminal law power.

Moreover, the implicit suggestion that the exchange of bodily fluids constitutes a criminal act is insulting and offensive to persons falling in the risk categories. By purporting to be criminal law, Bill C-217 would make criminals of those who are infected with HIV, Hep C, and Hep B.

Bill C-217 does not fall within the Federal government’s power over criminal law as granted by section 91(27) of the Constitution Act. Bill C-217 does not have a valid criminal law purpose backed by a prohibition and a penalty. The Bill is consequently outside the legislative authority of the Federal government, and, if passed, is likely to be struck down by the courts.

PART VI: Bill C-217 Unjustifiably Infringes Charter Rights

If passed into law, Bill C-217 would constitute an unjustifiable infringement of the Charter of Rights and Freedoms. The submissions above in Parts II, III, and IV, expose how Bill C-217 infringes Charter guarantees protecting security of the person and privacy, and Charter guarantees of freedom from unreasonable search and seizure and wrongful discrimination. These infringements cannot be justified in a free and democratic society, and are, in the final analysis, incompatible with fundamental Canadian values.

Where legislation infringes rights guaranteed by the Charter, the onus falls on supporters of the legislation to prove that the infringement of those rights can be justified in a free and democratic society. The Supreme Court of Canada has set out the requirements for justifying legislation that infringes Charter rights:

  •  The objective to be served by the legislation must be sufficiently important to warrant overriding a constitutionally protected right or freedom, in that the objective must be “pressing and substantial”.
  •  The measures employed by the legislation must be carefully designed to achieve the objective in question, and must be rationally connected to that objective.
  •  The measures should impair the Charter right as little as possible.
  •  There must be proportionality between the beneficial and deleterious effects of the legislation.

Of these requirements, the BCCLA wishes to focus on the failure of Bill C-217 to satisfy the need for a rational connection between the means and the objective, and the failure of the Bill to impair the Charter rights of source persons as little as possible.

Medical Background: Testing for HIV, Hep-B and Hep-C

Ordinarily, a person who suspects that he or she may have been infected with HIV, Hep-B, or Hep C can be tested for the presence of the viruses in their blood. However, current testing technology is unable to detect the presence of the viruses for a certain period following exposure. This period is known as a “window period”. Using the best available DNA and RNA testing technology, the window period for each virus is as follows:

  •  HIV infection can be detected 11 days after exposure;
  •  Hep B infection can be detected 33 days after exposure; and
  •  Hep C infection can be detected 12 days after exposure.

However, it is not possible to rule out infection until antibodies can be detected, which for most people will be six months in the case of HIV and Hep C.

Bill C-217 has purportedly been tabled in response to the medical consequences of the window periods, during which people who believe that they may have been infected are unable to determine with certainty whether infection has occurred. Involuntary testing is said to have the objective of providing possibly infected persons with information necessary to their psychological well-being and necessary to the selection of the most appropriate medical treatment.

While the BCCLA accepts that persons who believe, but who are unable to verify, that they have been infected with HIV, Hep-B, Hep-C (or other blood-borne pathogens not designated by Bill C-217), may labour under psychological strain or may suffer the side effects of “drug cocktails” that are believed to minimize the risk of HIV seroconversion. However, the remedy proposed by Bill C-217 cannot eliminate the adverse effects associated with potential infection. The most that the Bill can offer is a marginal reduction of those adverse effects.

The Impact of Involuntary Testing on Medical Treatment

The objectives of involuntary testing are different for each of HIV, Hep B, and Hep C. For Hep C, there is no post-exposure treatment. The responses to Hep C exposure are limited to counselling and the provision of advice on the risks of transmission to another person, which are available whether or not the source person is tested. Involuntarily drawing and testing the blood of a source person will therefore have no effect on the medical treatment provided to persons who believe that they have been exposed to Hep C.

Post-exposure treatment for Hep B consists of treatment with hepatitis B immune globulin and hepatitis B vaccine, depending on the exposed worker’s susceptibility or immunity to Hep B infection. However, the BCCLA is not aware of any serious adverse side effects associated with vaccination or innoculation for Hep B. If there are no such adverse effects, then the testing of source persons will not provide any medical benefits to a person who believes that he or she has been exposed to Hep B.

For HIV, the post-exposure treatment consists of two or three anti-retroviral drugs, depending on the assessment of risk incurred in the exposure. The BCCLA acknowledges that this post-exposure treatment can result in side effects, some of which are significant, but most of which resolve after treatment is stopped. One study indicates that the most frequently reported side effects include:

  •  malaise or fatigue (reported in 38 percent of treatment cases)
  •  headache (18 percent)
  •  vomiting (16 percent)
  •  diarrhea (14 percent) and
  •  myalgias or arthralgias (6 percent)

Another study found that the HIV post-exposure treatment had more severe side effects in less than 0.5 percent of cases, and that none these side effects were permanent.

However, involuntary blood testing is extremely unlikely to have any influence on a decision to commence post-exposure treatment for HIV. According to the current standard of care, prophylaxis should begin as soon as possible after exposure, and preferably within one or two hours of exposure. An involuntary blood sample cannot be obtained within that time by means of the legal mechanism proposed by Bill C-217. As a result of the delay associated with an application under Bill C-217, the applicant would be forced to decide whether to commence post-exposure prophylaxis in the absence of information about the source person=s serological status.

Because a source person may be inside the “window period” during which HIV infection cannot with certainty be detected, the involuntary testing of source person for HIV immediately following exposure cannot determine with certainty that the source person is not infected with HIV. The most that can be determined is that the source person was not infected with HIV prior to the duration of the window period. Even if a source person tests negative, uncertainty will remain about whether the source person was infected in the six months prior to exposure. The best information that can be obtained is information indicating a marginal decrease in the risk of infection. This information may or may not be sufficient to justify a cessation of post exposure prophylaxis.

Ultimately, the only medically useful information that may be derived from involuntary testing of a source person will be an indication of a marginal decrease in the risk of infection. Knowledge of a marginal decrease in risk of infection may or may not lead to an early cessation of HIV prophylaxis. Early cessation of HIV prophylaxis may or may not result in a material medical benefit, depending on whether a particular applicant experienced adverse side effects from HIV prophylaxis. For any given case involving risk of HIV infection, the potential benefits of involuntary testing will be speculative. No medical useful information would result from involuntary testing for Hep B. And no medically useful information would result from involuntary testing for Hep C.

The Impact of Involuntary Testing on Anxiety

Supporters of Bill C-217 have argued that involuntary testing of source persons will lead to a decrease in the anxiety suffered by applicants and their families. This anxiety is said to result from the applicant’s uncertainty about whether he or she has been infected, and from the supposed preclusion of intimacy between family members for fear of infection. Unlike the reduction of side effects from post exposure treatment, which are only related to HIV, the applicant’s anxiety may reasonably relate to HIV, Hep B, and Hep C. However, the extent of anxiety and its reduction through involuntary testing have been overstated.

The British Columbia Centre for Excellence in HIV/AIDS estimates that the probability of HIV seroconversion after a single percuaneous needle exposure is 0.3 percent if the source person is known to be HIV-positive; 0.12 percent if the source person is an injection drug user; and 0.06 percent if the source person is a man who has sex with men. Anxiety relating to the risk of infection should reasonably be tempered by the low risk of infection. If the anxiety is greater than it should be, the appropriate antidote is counselling.

Similarly, the irrational fear of infecting family members can be eliminated through counselling provided to the entire family. Persons who suspect that they may have been infected with a disease communicable through the exchange of bodily fluids can take precautions, such engaging in the use of condoms, that should facilitate intimacy between family members. Any residual anxiety over the infection of an applicant=s family members would be the result of ignorance, the cure for which is education.

Moreover, as stated above, a negative test of the source person’s blood will not reveal whether she or he has been infected within her or his window period. The information resulting from involuntary testing relates to a marginal decrease in the risk of infection. As such, the greatest benefit that could be obtained is a marginal decrease in the applicant’s level of anxiety. Anxiety can only be effectively eliminated by a test of the applicant’s blood once the applicant has passed through the window period.

The Objectives of Bill C-217

The objectives of Bill C-217 must be viewed in light of the potential benefits of involuntary blood testing. In light of these potential benefits, Bill C-217 must have the objective of obtaining knowledge of a marginal decrease in the risk of infection, which may or may not result in the early cessation of adverse side effects of post exposure treatment for HIV (which only occur in some cases), and which may or may not result in a marginal decrease in the level of anxiety experienced by an applicant.

The Means Chosen by Bill C-217 are not Rationally Connected to the Objective

The means chosen by Bill C-217 are not rationally connected to its objective. It is plain that, in order to be useful to the applicant, the information derived from involuntary testing must be obtained quickly. The legal mechanism proposed by Bill C-217 would be unable to obtain any information with the speed necessary to justify involuntary testing. The magnitude of the impracticability of the Bill can be illustrated by setting out in detail the steps involved in an application:

  • the applicant must obtain medical advice regarding the significance of the exposure
  • the applicant must obtain a legal opinion on the merits of a possible application, and must instruct their legal counsel
  • the applicant’s legal counsel must draft motion materials according to the prescribed form or forms
  • the applicant’s legal counsel must obtain legally admissible evidence proving that
  • it is reasonable to believe that the applicant may have been infected (s.5(b))
  • it is reasonable to believe that an analysis of the applicant’s blood would not accurately determine, in a timely manner, whether the applicant has been infected (s.5(c))
  • the applicant’s legal counsel must file the motion materials
  • the justice must cause the source person and the applicant to appear, which may involve the issuance and execution of a summons
  • the applicant must apply for an order directing the source person to undergo an involuntary medical examination to determine whether the taking of blood samples from the source person would endanger his or her life or health
  • the applicant’s legal counsel must obtain legally admissible evidence proving that the taking of blood samples from the source person would endanger the life or health of the source person
  • the application must be set down for a hearing before a justice
  • the justice must render a decision and issue an order
  • the order must be enforced, and blood sample or samples must be taken from the source person
  • the blood sample or samples must be tested, and the results analysed
  • the results must be delivered by the analyst to the police officer (or other officer in his or her stead)
  • the results must be delivered by the police officer to the applicant
  • the applicant must obtain further medical advice
  • In addition, the source person would likely be entitled to take the following steps:
  • retain and receive an opinion from legal counsel
  • retain a medical expert
  • instruct their counsel to engage in cross-examination of the applicant and his or her experts

Even if an application under Bill C-217 were successful, procedural delay would tend to eliminate the benefits derived from the involuntary testing. To the extent that the objective of the Bill is—as stated in section 5(c)—to “accurately determine, in a timely manner, whether the applicant has been infected by a designated virus”, the measures proposed by the Bill will be unable to achieve its objective. To the extent of the procedural delay in bringing an application under Bill C-217, there is no rational connection between the objective of the Bill and the means chosen to achieve that objective.

Bill C-217 is not Minimally Impairing

Bill C-217 does not respect the constitutional principle that, in a free and democratic society, legislation should impair Charter rights as little as possible. The Bill fails to respect this principle in three distinct ways: the Bill uses coercive force where alternative measures would suffice; it contains anomolous provisions that do not advance—and possibly undermine—the purported objectives of the Bill; and it omits provisions that would protect Charter rights.

(1) Alternatives to Bill C-217

There are an abundance of measures that would, if implemented, advance the purported objectives without impairing Charter rights. These alternative measures would reduce the risk of significant exposure, would reduce the incidence of negative side effects due to post-exposure prophylaxis, and would reduce the level of anxiety for individuals who believe themselves to be at risk of infection.

Among these, the following measures would reduce the risk of significant exposure to bodily fluids without violating Charter rights:

  • implementing existing guidelines and protocols on preventing and responding to occupational exposures to infectious diseases;
  • educational campaign to distribute information about what constitutes significant exposure, directed at individuals who are at risk of occupational exposure and directed at persons infected with communicable viruses;
  • introducing engineering safeguards, such as needle-less systems, needles with safety features, high-quality latex gloves, and puncture-resistant gloves; and
  • reducing the number of source persons in the general population by means such including:
  • the expansion of existing needle exchange programs;
  • the establishment of safe injection sites; and
  • renewing public education campaigns to promote safer sexual practices.

The following measures would reduce the incidence of negative side effects of HIV prophylaxis following significant exposure, without resort to judicial coercion:

  • encouraging consent to voluntary blood testing by means of:
  • sensitive and compassionate liason with source persons;
  • developing and implementing policies, procedures, and penalties to protect the confidentiality of information derived from voluntary testing;
  • developing programs to reduce the unnecessary prescription of post-exposure prophylaxis to persons who are not at risk of infection; and
  • expanding the use of DNA and RNA tests, point of exposure testing, and rapid result testing, for applicants who believe themselves to be at risk.

The following measures would reduce the levels of anxiety for individuals who believe themselves to be at risk of infection, without violating guaranteed Charter rights:

  • implementing workplace programs to correct misconceptions and reduce stigma related to infectious diseases;
  • ensuring that individuals at risk of occupational exposure are targeted for education about what constitutes significant exposure and transmission risk;
  • providing or enhancing post-exposure counseling, support, and follow-up for exposed workers, their co-workers (if necessary), and their families.

All of the measures above are likely to promote the purported objectives of Bill C-217, and none of them would infringe Charter rights. When viewed through a Charter lens and as a matter of common sense, the alternatives above are vastly superior to the measures proposed by Bill C-217. The Federal government should not take the path of coercion with its citizens when it is free to take the path of prevention, the path of education, and the path of consent. With the abundance of measures available to meet its objectives, the passage of Bill C-217 can only be an unjustified coercive infringement of Charter rights.

(2) The Anomolous Provisions of Bill C-217

Bill C-217 contains numerous provisions that, upon analysis, infringe the constitutional right to privacy without advancing the purported objectives of the Bill. These provisions may in fact undermine those objectives. In addition, the provisions provide police officers with unnecessary temptations to abuse the confidentiality of source persons.

One set of anomolous provisions require the creation of three medical “certificates” that have no apparent purpose (the “Certificate Provisions”). Section 10 of the Bill requires the medical practitioner who administers the involuntary bloods sample to create a certificate stating that (a) the practitioner (or a technician under the practioner’s direction) took samples from the source person; and (b) the time and place where the blood samples were taken. Section 11 of the Bill requires the medical technician to create a second certificate stating that (a) the technician took samples of blood directly from the source person; and (b) the time and place where the blood samples were taken. And section 12 of the Bill requires the blood sample analyst to create a third certificate containing the results of his or her analysis.

The Certificate Provisions will allow for an unnecessary intrusion into the privacy rights of the source person. It is intrusive to ascertain information by means of coercion, but it is even more intrusive to create a permanent record of the information. The creation of certificates represents a permanent possibility of violations of confidentiality. The Certificate Provisions under Bill C-217 do not appear to advance the purported objectives of the Bill.

Once the certificates are created, Bill C-217 directs the medical practitioner, technician, and analyst to distribute each of the certificates to the peace officer responsible for executing the warrant, or to another peace officer in his stead, who is in turn directed to provide copies to the applicant and the source person (the “Distribution Provisions”). The Distribution Provisions are offensive to the privacy of the source person in three ways.

Firstly, the Distribution Provisions ensure that information related to the source person’s serological status is distributed to the peace officer responsible for executing the warrant. While there is no apparent benefit to providing police with this information, the potential for abuse of that knowledge is obvious. Bill C-217 places no limits on the police officer’s further distribution of the certificates or on the police officer’s use of the information. This failure is damning: police officers should not be led into temptation to abuse confidentiality.

Secondly, the Distribution Provisions require the police officer to “cause copies to be sent to the applicant and to the person from whom the samples of blood were taken”. By causing the police officer to send copies, rather than originals, Bill C-217 ensures that information placed into the hands of the police officer will stay in the hands of the police officer. Because it leaves a hard copy of the certificate in the possession of the police officer, this provision ensures that the temptation to abuse confidentiality will be permanent.

Thirdly, the Distribution Provisions provide that the certificates may be delivered to a police officer other than the police officer who executed the warrant. The BCCLA is concerned that this provision effectively authorizes the police to establish a centralized registry for serological status. Under this provision, the temptation is to institutionalize the abuses of confidentiality.

The Distribution Provisions will in no way prevent adverse side effects from post-exposure prophylaxis or post-exposure anxiety, but will serve as a temptation to abuse confidentiality. Moreover, because a police officer cannot properly advise an exposed person of the medical significance of the test results, the delivery of the information by the police officer could heighten the applicant’s anxiety. The Distribution Provisions are therefore superfluous to—and even threaten to undermine—the purpose of the Bill. For these reasons, both the Certificate Provisions and the Distribution Provisions fail to respect the constitutional principle of minimal impairment.

(3) The Absence of Protective Provisions in Bill C-217

Bill C-217 fails to include provisions that could protect the privacy of source persons and reduce the potential for abuse of serological information. Protective provisions that are absent from Bill C-217 include the following:

  • provisions for publication bans;
  • provisions for in camera hearings; and
  • provisions preventing any dissemination of the source person’s name (or any other information that would tend to identify the source person) by any person (including the applicant) other than the source person.

Provisions of this type are not novel to Canadian law, and are conspicuous in their absence from Bill C-217. These omissions ensure that Bill C-217 fails to respect the constitutional principle of minimal impairment.

Bill C-217 Does Not Minimize the Impairment of Rights

The means chosen by Bill C-217 do not mimimize the impairment of rights. Firstly, there exist alternative measures that are likely to achieve the objectives of the Bill without impairing Charter rights. Secondly, Bill C-217 contains anomolous provisions that do not advance—and possibly undermine—its objectives. And finally, the Bill fails to provide various safeguards that would tend to protect the Charter rights.

Bill C-217 Unjustifiably Violates Charter Rights: Overview

Bill C-217 proposes to violate the test subject’s Charter rights to bodily integrity, security of the person, and privacy. The Bill also violates test subject’s freedom from unreasonable search and seizure, and infringes the right to equality, both of which are also guaranteed by the Charter of Rights and Freedoms. These infringements are beyond constitutional justification for the following reasons:

  • The cumbersome procedures contemplated by the Bill are not rationally connected to the objective of providing timely information.
  • The means chosen by the bill do not minimize the impairment of rights, as
  • there exist alternative measures that are likely to achieve the objectives of the Bill but do not impair Charter rights;
  • the Bill contains “anomolous” provisions that do not advance—and possibly undermine—the objectives of the Bill; and
  • the Bill fails to provide various safeguards that would tend to protect the Charter rights.

As a consequence, Bill C-217 would likely be struck down by the Courts as offensive to the Canadian values enshrined in the Charter.

PART VII: Recommendations

Bill C-217 is a deeply flawed proposal. While the capacity of the Bill to infringe the rights of test subjects is clear and pronounced, the capacity of the Bill to achieve its objectives is limited and speculative. The Bill omits provisions that could protect Canadian values, and includes provisions that are of no value to its objectives and could cause harm to those the Bill seeks to benefit. The proposed legislation is outside the criminal law power of the Federal government and it is an unjustifiable infringement of the Charter. Revision of the Bill is not a practicable remedy for its fundamental shortcomings.

The BCCLA recommends to the Committee for Justice and Human Rights that it report to Parliament that Bill C-217 is incompatible with fundamental Canadian values and should not be passed into law.