Hon. Art Eggleton:

Honourable senators, I rise, as the chair of the committee that prepared this report, to talk about our observations and our recommendations that flow from those observations.

We held four meetings on this subject. We heard witnesses at three of them and then had a short meeting for clause-by-clause consideration of the bill and to agree to report it back to the Senate.

In that time, we heard from a number of people who were generally supportive of the objects of the bill but had specific concerns, thinking maybe it overreached in some areas or would add an excessive administrative burden. Some were concerned about what they thought was an overuse of the criminal law.

We concluded that the Public Health Agency of Canada and the Minister of Health had made a strong case for legislation that would provide for the scrutiny of all these human pathogens and toxins to ensure the safety of the public. Although amendments were suggested, we decided that it would not be wise to pass amendments at this point but instead to deal with some of the concerns expressed by witnesses, through the development of regulations.

I will go through quickly six of the concerns that were raised. Consultation was one. Some said that although there was consultation technically, they considered it briefing and not an opportunity to have input. They felt that the briefing they received was not sufficient. However, the Public Health Agency made it clear that their intention going forward is to ensure that those who are concerned have every opportunity to participate in discussions.

For added insurance, we have made two recommendations in that regard. We have said that the Public Health Agency of Canada should insure that the provinces, territories and stakeholders are given the opportunity to participate in the development of Bill C-11 regulations in a meaningful way, and consultations should be carried out as expeditiously as possible but not at the expense of a thorough and open discussion.

The recommendations are a bit of a balancing act. We wanted to ensure that there are meaningful consultations but, on the other hand, we heard from the Public Health Agency officials that it will take five years to develop these regulations. Five years for something as important as this legislation is too long. We suggest that the consultations be carried out meaningfully but expeditiously. Balance is required.

Our second recommendation is that the role of the advisory committee, which is referred to in clauses 9(4) and 10(3), be expanded to include advising the minister with respect to the general implementation of the bill.

There is an advisory committee suggested in the bill, but its role is restricted to advising on what should be on the five schedules of human pathogens. We think that an advisory committee, which may well need to be expanded in scope and membership, should be in place to help monitor the development of regulations for the general implementation of the bill.

A number of organizations of people involved in research in the hospital and academic communities thought putting Risk Group 2 into the schedules of the bill was a little overreaching. They pointed out that since 9/11, the United States has been conscious of biosecurity, yet they do not have Risk Group 2 levels in their legislation.

The Public Health Agency said the lists are not all identical, that some of the Risk Group 2 substances could be on U.S. or U.K. lists. They said there was need for flexibility to ensure public safety and security.

At the end of the day, we accepted that and we accepted that those who are involved only in Risk Group 2, the lowest level, would not find themselves overburdened with administrative detail. They will continue on much the same basis as they operate already, so we agreed then to not put any amendment forward in that regard.

The third issue was the use of the criminal law power. When it comes to biosecurity or bioterrorism, there is no doubt the criminal law power needs to be used but we are concerned that when it came to biosafety, it was a bit of an overreach. If an accident occurred, some poor researcher must be concerned that they may be prosecuted under criminal law and end up going to jail. We are told this power would be used only as a last resort. Of course, that is not in the bill but that would be in the regulations and that would be in the intent. We are told it would be only a last resort and for those in the safety category of concern, this is nothing for them to be concerned about.

We agreed again with the minister and the Public Health Agency of Canada that we expected that was the direction the legislation was going in and, again, the regulations will bear that out. We will have a chance to look at the regulations at the end of the day.

The fourth issue was the potential administrative burden. I have commented on that issue. I add only that many laboratories that perform diagnostic testing, blood testing and that kind of thing follow laboratory biosafety guidelines, and Canada's Chief Public Health Officer, Dr. David Butler-Jones, indicated the laboratories will be minimally affected by the bill. It would not be of any concern to anyone's safety as a patient waiting for a blood test to come their way.

The fifth issue is powers of inspectors. There was some concern that provisions of the bill were overly broad with respect to powers of inspectors. Again, we have been assured that the Charter scrutiny would apply here, and that the provisions they looked at were found to be Charter compliant.

We also raised the flag about qualifications and training of inspectors. We have a recommendation in that regard, which says that the Public Health Agency of Canada expand the role of the advisory committee referred to previously, to include providing the minister with advice in relation to the qualifications and training of inspectors to help ensure that we have people who are not going over the top in how they carry out their enforcement function.

Finally, the sixth issue was the disclosure of personal information and confidential business information. Of course, when dealing with these kinds of substances there is a risk that information of a private nature, confidential to business, can go out into the public domain and into competitors' hands. There are provisions for a confidentiality agreement to be entered into by the Public Health Agency of Canada. The only concern was in emergency cases where there would not be enough time to enter into that agreement. In that regard, we have recommendation four, that the Public Health Agency of Canada can ensure the need to enter into a written confidentiality agreement after information has been disclosed under clause 39(1)(b), as addressed in the regulations.

Honourable senators, those four recommendations and various observations under six issue categories go with this report and have been adopted.

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