Mr. Speaker, I am happy to have this opportunity to speak to Bill C-244, an act to provide for the taking of samples of blood for the benefit of persons administering and enforcing the law and good Samaritans and to amend the criminal code, introduced by the hon. member for Fraser Valley.
The government and all of us in this place are fully aware that some persons in the execution of their duties, which include helping people and even saving human lives, are at risk of being contaminated by the exchange of infected bodily fluids. This is a very sensitive issue.
We appreciate the personal difficulties which these persons who devote their lives to help others may experience. We owe it to these fine Canadians to provide them with a means to regain peace of mind as soon as possible after they have been involved in circumstances that may raise the spectre of contamination. However well meaning, and it is very well meaning, Bill C-244 does not represent the solution to this problem.
The bill is offering to us the creation of legislation that establishes a mechanism for obtaining and executing a search warrant on the human body. Part I of the bill provides that a firefighter, a medical practitioner or a person whose profession is to care for sick people may ask a justice of the peace to issue a warrant authorizing a peace officer to require a qualified medical practitioner or a qualified technician to take samples of blood. These samples would be taken from a person who was assisted by the firefighter or the medical practitioner where there has been contact of body fluid and where the person is suspected of being infected with some disease.
The bill would also cover the situation of an arrest without a warrant by a person other than a peace officer or when a person lawfully assists a police officer. I note in passing that the bill is not clear as to whether health practitioners can be forced to take the sample and, for that matter, whether and how much force can be used to compel the person to submit to the taking of bodily fluids.
The examination of these substances would determine according to the proposed scheme whether the person carried the virus of hepatitis B or hepatitis C or a human autoimmune deficiency virus. In order to issue such a warrant the justice of the peace would have to be satisfied by the person requesting the warrant that four essential elements are present.
First, the justice has to be satisfied that there are reasonable grounds to believe that the applicant came into contact with a bodily substance from another person while engaged in the performance of his or her functions in relation to that person, or while assisting that person believing that his or her life was in danger or that the person had suffered or was about to suffer physical injury.
Second, the justice may issue a warrant if by reason of the circumstances in which the applicant came into contact with the bodily substance he or she is satisfied that there are reasonable grounds to believe the applicant may have been infected by a virus.
Third, the justice could issue a warrant if he or she believes that by reason of a lengthy incubation period for diseases caused by these viruses and the methods available for ascertaining their presence in the human body an analysis of the applicant's blood would not accurately determine in a timely manner whether the applicant had been infected by such a virus that might have been present in the bodily substances with which the applicant came into contact.
Finally a warrant could be issued if a qualified medical practitioner is of the opinion that the taking of samples of blood from the person mentioned in the warrant would not endanger the life and health of the person.
As we can see the scope of the bill which relates to persons involved in situations where there is an exchange of bodily fluids is remarkably wide. On its face the bill does not apply 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.
The bill assumes that no offence has been committed for the power to seek a search warrant. Thus a warrant to obtain a body sample is sought without any offence being committed. Therefore there is no nexus with criminal law.
What criminal law purpose is served by these amendments? Why then are we seeking to amend the criminal code? The search warrants in our law are for the purposes of advancing an investigation of offences. This search warrant is, on the contrary, for the sole purpose of obtaining some information about someone who has not committed any offence. This is an invasion of the privacy of someone, an invasion that is remarkably intrusive, for no reason that would have anything to do with criminal law.
The bill raises important concerns relating to privacy, searches, seizures and human rights guaranteed by the Canadian Charter of Rights and Freedoms. The taking of bodily substances always raises significant constitutional issues. The taking of bodily substances without any charges being laid or before conviction raises issues under section 7 on life, liberty and security of the person as well as under section 8 on reasonable search and seizure of our charter of rights and freedoms.
Beyond the legal impediments in pursuing the legislation there are also clear limitations as to what can be accomplished from a scientific standpoint even if a warrant could be obtained. Thus another reason for not supporting the bill is that even if it were possible to adopt this kind legislation its value as an instrument to comfort those who fear they have been affected is certainly less than adequate.
The issue of blood samples was studied in depth in relation to criminal law and in the context of sexual assault. The medical experts are of the opinion that the only way a sexual assault victim can be sure that he or she has not been contaminated is to undergo a test to detect the hepatitis B or C virus, or HIV, following the recommended procedures.
There is a variable period of time between the moment of infection and the capacity of routinely available antibody tests to detect the presence of the antibodies to the virus. Experts in the field refer to that as the window period. Accordingly, relying on the test results could provide false assurances to the victim. For example, a person who would be the object of a search warrant may be tested and the results negative. A peace officer or a firefighter who relies on this information might in fact later test positive if the person tested was in the window period when he or she tested negative.
The issue of blood testing clearly belongs to the domain of health. The Department of Justice is actively working with other departments, in particular Health Canada, to ensure that more is done to provide support and assistance to those who may be concerned about the risk of hepatitis B, hepatitis C or HIV infection. This is where our efforts should be concentrated. I encourage these departments to continue these efforts on an expedited basis.
I certainly appreciate that the sponsor of the bill means well. I acknowledge him for his initiative in this regard. The use of search warrants to invade privacy where nothing of a criminal natural is even suspected should be of grave concern to the House when, on top of that, the information that may be obtained with such a search warrant is at best of very limited value. One questions what can be usefully achieved by Bill C-244 notwithstanding its good intentions.