Health Committee on March 24th, 2009

[Nicolas Dufour, Bloc, Repentigny, QC]

Thank you very much. I would like to thank our witnesses for being here today.

Ms. Allain, I have some concerns about respect for federal and provincial jurisdictions in this bill. Scientists and provincial government representatives have noticed this. I have here a letter from Mr. Vivek Goel, who is the President and Executive Director of the Ontario Agency for Health Protection and Promotion. I apologize for my English, but I would like to read you part of it.

As operators of public health laboratories across Ontario, the OAHPP is already governed under the Occupational Health and Safety Act and subject to inspection for a wide range of health and safety measures pertinent to our staff, up to and including biosafety measures.

I would also point out the similarities with the court challenge on the Assisted Human Reproduction Act. In the case of Bill C-11 we see that there will be a court challenge from certain scientists and from the provinces. The same thing happened with the Assisted Human Reproduction Act. The framework of that legislation was similar, and there was a challenge from the provinces. Quebec had warned that it would challenge the legislation, and it did so. This entails legal costs, all the procedural considerations, and time.

Do you not think that the same thing is going to happen once again, particularly since Quebec is not the only province voicing objections? Ontario is, and British Columbia as well. Do you not think you are going a little bit too far? Would you be surprised if the bill were challenged by the provinces?

[Jane Allain]

We have had no indication that the provinces were intending to challenge the act or the bill, whereas with the Assisted Human Reproduction Act, we did have the impression that Quebec would challenge it. All I can do is repeat what I have already said. We believe that we are legislating in an area of federal jurisdiction and that the model used here is similar to the one used in other existing federal legislation, such as the Food and Drug Act and the Quarantine Act. Since we are proceeding legislatively, we can never predict whether or not there will be a court challenge. Of course the government wants a bill that complies with the Charter and the Constitution. That is always our intention when we draft a bill of this type with our clients, the agencies involved. We think we will certainly be able to defend this bill.

[Nicolas Dufour, Bloc, Repentigny, QC]

Have you discussed this with the provinces?

[Jane Allain]

Yes, there have been consultations with the clients.

[Nicolas Dufour, Bloc, Repentigny, QC]

Dr. Butler-Jones.

[Dr. David Butler-Jones]

Yes, thank you. I will speak English for greater clarity.

Very quickly, yes, there have been many discussions with the provinces and others. They're making sure, in putting it in writing, that they declare very clearly the issues they want us to address, as we develop the regulations and move forward with this bill, to ensure that we don't have duplicate regimes. We minimize any paper burden on others. We minimize the impact.

The regulation across the country is very variable, and where it is in place, it is by and large related to the occupational health and safety of workers in the workplace and to quality control. It is not about public safety. So this is complementary legislation in situations where provincial legislation exists, and it fills the gap where legislation in no way addresses this.

It is in fact for gaps and is complementary, and we will find ways to ensure that the issues are addressed as we move forward.

[Nicolas Dufour, Bloc, Repentigny, QC]

Mr. Tellier was saying earlier that the were many duplications possible regarding licences and inspectors, as Mr. Goel pointed out in his letter, as regards enforcement of the bill at the federal and provincial levels.

[Dr. David Butler-Jones]

Depending on the province in which they already have an inspection regime, we'll be working with them. Perhaps their inspectors can carry out the pieces of it that their normal legislation doesn't cover. But we won't have specifics until we actually have those specific conversations based on the act we have. We do want to, obviously, minimize paperwork. Because of risk levels 2, 3, 4, which we regulate for imports, we think about half the labs are already under a regulation regime, and for them this would mean minimal change, if any.

[The Chair, Conservative, Joy Smith]

Mr. Tellier, did you want to respond to this as well?

[Dr. Raymond Tellier]

Just to add a few things.

Mr. Dufour, I certainly expressed some reservations regarding the constitutionality of the legislation, but it should also be mentioned that regulations are required with respect to the use of the various micro-organisms. There could be some serious public health implications, and implications for the health of the people who work in these laboratories. Infections picked up in labs are a real problem. There are examples of this, and Dr. Tam reminded us earlier about what happened with the H2N2 flu virus, which was unfortunately distributed to a number of laboratories throughout the world in a quality control kit. If this virus had gotten beyond the confines of a laboratory, it could have caused a pandemic. The H2N2 virus, which disappeared in 1968, caused a pandemic in the past and could do so again, because everyone born after 1968 has no immunity to it.

I am definitely sensitive to any legislation that could do more harm than good, but there is this need for proper regulations. I would not want us to lose sight of that either.

[The Chair, Conservative, Joy Smith]

Thank you, Mr. Tellier.

We'll now go to Ms. McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

I would like to thank the witnesses. I really appreciate what Dr. Tellier was just talking about in terms of the fact that there is some urgency. We have been lucky for many years, and I believe there is some urgency and imperative to move forward in this way. I am gaining more comfort as we go in terms of the answers from our department. I think I'm gaining more comfort and confidence that the very real concerns will be addressed through regulations, or perhaps in minor amendments. I will certainly be looking forward to that.

Ms. Tellier, you've worked in many countries. Can you perhaps compare and contrast a little bit in terms of where we're going here versus some of the other countries where you've worked?

[Dr. Raymond Tellier]

I am sorry, I have not worked in many countries. I have worked in the United States and Canada. In a very broad way, the approaches are similar in most western countries, and that is you have a stratification of the micro-organism in terms of the danger and the confinement level that needs to be approached. Over the years the definition of the laboratory confinement levels 2, 3, and 4 have been pretty much similar.

The classification of the organisms has been by and large similar, although there are differences between countries for some organisms. I could give you an example of some things that are level 2 in Canada and a level 3 in the United States, and vice versa, and arguably these things are properly called two and a half, I guess. But by and large, in terms of the general approach in the stratification of the organisms and the levels of confinement, there are a lot of similarities and I would say an evolution towards a consensus.

What we have seen in the United States in some examples is that sudden, very drastic regulations have appeared that have been very forcibly, and perhaps unreasonably, enforced. I'm proud to say this is not usually the Canadian way.

I think what's also very much clouding the issue is bioterrorism. There's been a concern. You have the issue of containing an outbreak of infectious disease. You have the issue that, for diagnostic laboratories and research laboratories, the handling of these cultures must be done in such a way that they do not pose a risk to the scientific staff and to the population at large. There are also a certain number of organisms that are felt--sometimes for good reason and sometimes for reasons that appear less convincing--to pose a threat of being used for bioterrorism. That's an additional level of concern that has been heightened over the past several years.

[The Chair, Conservative, Joy Smith]

Do you have any other questions, Ms. McLeod?

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

No, thank you, Madam Chair.

[The Chair, Conservative, Joy Smith]

Ms. Murray.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Thank you.

I apologize for missing some of the testimony, but I've been part of this debate for a while. We all know the concerns the provinces have about the absence of...or a thin consultation. For the first time I was going through this and I noticed there was a session where the province of B.C. had someone sitting in for the health minister four years ago. That was obviously an early consultation. There was one other meeting with the medical health officer two years ago. Other than that it was the day before the bill was tabled that the province had a chance to see what was happening at an information session. I think there's clear concern by the provinces.

I'm just wondering, Ms. Gibson, what the probability is of a court challenge to this bill based on jurisdictional issues.

[Elaine Gibson]

That's a tough question. I think that involves crystal ball gazing. Quebec in particular has shown an indication of willingness to challenge constitutionally when the federal government has moved into new areas, and this is a relatively new area, at least in certain aspects. It's a brand-new area for the federal government.

I don't know the likelihood of a constitutional challenge. I was actually just raising some concerns should such a challenge happen.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

The substance that would be required to justify a constitutional challenge is clearly in front of us, according to your presentation.

[Elaine Gibson]

Yes, I would submit that. I would also remind you that at the start of my presentation I referred to the biosecurity and biosafety aspects. The more the act concentrates on biosecurity, the more secure it is on a division-of-powers ground. That applies as well, by the way, to importation of human pathogens and toxins into the country. That's a trade and commerce power.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Dr. Butler-Jones, if there were to be a court challenge, how long would the implementation of these measures be held up? Can you give us an estimate?

[Dr. David Butler-Jones]

I'll look to the lawyer. The discussions with the provinces and territories and others would suggest that there's no court challenge issue. They just want to make sure their issues are addressed, either in the legislation or the regulations.

Beyond what's there in terms of consultation, there were actually people from B.C., from BCCDC and the ministry, who were part of the commentary as the legislation was developed. There were other contacts with B.C. beyond that.

In terms of a court challenge, I'll leave it to Jane.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

I just want to respond to that, though. You may not have heard the beginning of my remarks. From this consultation documentation, we can see that there was one person sitting in for the medical health officer four years ago and one person was in a consultation two years ago. Other than that, British Columbia was at an information session the day before this was tabled, so....

[Dr. David Butler-Jones]

What you have is a series of consultations. In trying to pull all this information together, in addition, we had people from BCCDC who, as the legislation was being developed, were part of the laboratory reference group in the public health network. They were seeing this at different stages and engaging in discussions. There were also chief medical officers and others.

That's not the purpose of this--

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Let's not belabour the point.

What I'm trying to get at is the probability, the chance, that the part of this important work that is widely agreed on will actually be implemented. Is the chance less if you more or less push it through, leaving things to regulation and leaving the provinces with an experience of not having been consulted? In that case, perhaps there would be a greater likelihood that it will not be implemented in the labs. How long might it take to do some redrafting to bring this clarity into the law that many of us and many of the witnesses have been calling for? Would it be two months, one month?