Bill C-604

2nd Session, 41st Parliament,

62-63 Elizabeth II, 2013-2014

house of commons of canada

BILL C-604

An Act to establish the position of Health Commissioner of Canada and to amend certain Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Health Commissioner of Canada Act.

HEALTH COMMISSIONER OF CANADA

2. There is established the position of Health Commissioner of Canada, the holder of which has the rank and status of a deputy head of a department.

3. (1) The Governor in Council, by commission under the Great Seal, appoints the Health Commissioner of Canada after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.

(2) The Health Commissioner holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons.

(3) The Health Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be reappointed for a further term not exceeding seven years.

(4) In the event of the absence or incapacity of the Health Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person, while holding office, is to be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.

4. The Health Commissioner is to be paid the salary set by the Governor in Council, and is entitled to be paid reasonable travel and living expenses while absent from his or her ordinary place of residence in the course of the exercise or performance of his or her powers, duties and functions under this Act or any other Act of Parliament.

STAFF

5. The officers and employees that are necessary to enable the Health Commissioner to exercise or perform the powers, duties and functions of the Commissioner under this Act or any other Act of Parliament are to be appointed in accordance with the Public Service Employment Act.

6. The Health Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Commissioner to advise and assist the Commissioner in the exercise or performance of the powers, duties and functions of the Commissioner under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of such persons.

POWERS, DUTIES AND FUNCTIONS OF COMMISSIONER

7. The Health Commissioner exercises the powers and performs the duties and functions that are assigned to the Commissioner by this Act or any other Act of Parliament, and may carry out or engage in other related assignments or activities that may be authorized by the Governor in Council.

COMPLAINTS AND INVESTIGATIONS

8. (1) Anyone may file a complaint with the Health Commissioner regarding the exercise or performance of any powers, duties or functions conferred under any Act of Parliament on

(a) the Department of Health;

(b) the Public Health Agency of Canada;

(c) the Canadian Institutes of Health Research; or

(d) the Minister of Health as the minister responsible for

(i) the Hazardous Materials Information Review Act,

(ii) the Canada Health Act, and

(iii) the Food and Drugs Act.

(2) The Health Commissioner must investigate any complaint he or she receives if he or she has reasonable grounds to believe that the person or body against which the complaint was made has failed to exercise or perform his, her or its powers, duties or functions in a fair and reasonable manner or in a timely fashion.

(3) The Health Commissioner may also initiate an investigation if he or she has reasonable grounds to believe that any person or body referred to in subsection (1) has failed to exercise or perform his, her or its powers, duties or functions in a fair and reasonable manner or in a timely fashion.

9. (1) Subject to this Act, the Health Commissioner may determine the procedure to be followed in carrying out any investigation under this Act.

(2) The Health Commissioner may direct that information relating to any investigation under this Act be received or obtained by any staff member of the office of the Commissioner and that staff member, subject to any restrictions or limitations that the Commissioner may specify, has all the powers, duties and functions of the Commissioner under this Act in relation to the receiving or obtaining of that information.

10. (1) The Health Commissioner has, in relation to the carrying out of any investigation under this Act, power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce any documents and things that the Commissioner deems requisite to the full investigation and consideration of any matter within his or her authority under this Act, in the same manner and to the same extent as a superior court of record;

(b) to administer oaths;

(c) to receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that in his or her discretion the Commissioner sees fit, whether or not the evidence or information is or would be admissible in a court of law; and

(d) subject to any limitation that may in the interests of defence or security be prescribed by regulation of the Governor in Council, to enter any premises occupied by any federal institution and carry out in those premises any inquiries within his or her authority under this Act that the Commissioner sees fit.

(2) If the Health Commissioner believes on reasonable grounds that

(a) an individual has been threatened, intimidated or made the object of discrimination because that individual has made a complaint under this Act or has given evidence or assisted in any way in respect of an investigation under this Act, or proposes to do so, or

(b) the Commissioner, or any person acting on behalf or under the direction of the Commissioner, has been obstructed in the exercise or performance of the Commissioner’s powers, duties, or functions under this Act,

the Commissioner must report that belief and the reasons for it to the deputy head or other administrative head of any body concerned or to the person concerned.

11. (1) If, after carrying out an investigation under this Act, the Health Commissioner is of the opinion that

(a) the act or omission that was the subject of the investigation should be referred to any person or body concerned for consideration and action if necessary,

(b) any practice that leads or is likely to lead to a contravention of this Act should be altered or discontinued, or

(c) any other action should be taken,

the Commissioner must report that opinion and the reasons for it to the deputy head or other administrative head of any body concerned or to the person concerned.

(2) In making a report under subsection (1) that relates to any person or body, the Health Commissioner must have regard to any policies that apply to that person or body that are set out in any Act of Parliament or regulation made under them.

(3) The Health Commissioner may

(a) in a report under subsection (1) make any recommendations that he or she thinks fit; and

(b) request the deputy head or other administrative head of the body concerned or the person concerned to notify the Commissioner within a specified time of the action, if any, that the institution proposes to take to give effect to those recommendations.

12. (1) On completion of an investigation pursuant to subsection 8(2), the Health Commissioner must provide the complainant and the person or body against which the complaint was made, in the manner and at the time that the Commissioner thinks proper, with a report presenting the results of the investigation and any recommendations the Commissioner deems necessary.

(2) On completion of an investigation pursuant to subsection 8(3), the Commissioner must provide the person or body investigated, in the manner and at the time that the Commissioner thinks proper, with a report presenting the results of the investigation and any recommendations the Commissioner deems necessary.

(3) Within ninety days of receiving a report under subsection (1) or (2), the person or body must advise the Health Commissioner of the action taken or proposed to be taken to implement the recommendations contained in the report or the reasons why no such action has been or is proposed to be taken.

13. (1) If the Health Commissioner is not satisfied with the action taken or proposed, or if, on investigation, the Commissioner finds that the proposed changes have not been made, the Commissioner, in his or her discretion and after considering any reply made by or on behalf of any person or body concerned, may transmit a copy of the report and recommendations to the Governor in Council.

(2) The Governor in Council may take any action that the Governor in Council considers appropriate in relation to any report transmitted under subsection (1) and the recommendations contained in it.

(3) If, within a reasonable time after a copy of a report is transmitted to the Governor in Council under subsection (1), adequate and appropriate action has not, in the opinion of the Health Commissioner, been taken in relation to that report, the Commissioner may make any report on the matter to Parliament that he or she considers appropriate.

(4) The Health Commissioner must attach to every report made under subsection (3) a copy of any reply made by or on behalf of any person or body concerned.

REPORTS TO PARLIAMENT

14. The Health Commissioner must, as soon as feasible after the termination of each year, prepare and submit to Parliament a report relating to the conduct of his or her office and the discharge of his or her duties under this Act during the preceding year including his or her recommendations, if any, for proposed changes to this Act that the Commissioner deems necessary or desirable in order that effect may be given to it according to its spirit and intent.

15. (1) The Health Commissioner may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner if, in the opinion of the Commissioner, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 14.

(2) The Health Commissioner must attach to every report made under this section a copy of any observation made by or on behalf of any person or body concerned.

16. The Health Commissioner may disclose in any report made under subsection 13(3) or section 14 or 15 any matters that in his or her opinion ought to be disclosed in order to establish the grounds for any conclusions and recommendations contained in that report, but in so doing must take every reasonable precaution to avoid disclosing any matter the disclosure of which would or might be prejudicial to the defence or security of Canada or any state allied or associated with Canada.

17. Every report to Parliament made by the Health Commissioner under subsection 13(3) or section 14 or 15 must be made by being transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling respectively in those Houses.

GENERAL

18. The Health Commissioner and every person acting on behalf or under the direction of the Commissioner who receives or obtains information relating to any investigation under this Act must, with respect to access to and the use of such information, satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of such information.

19. Subject to this Act, the Health Commissioner and every person acting on behalf or under the direction of the Commissioner must not disclose any information that comes to their knowledge in the exercise or performance of their powers, duties and functions under this Act.

20. (1) The Health Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose information

(a) that, in the opinion of the Commissioner, is necessary to

(i) carry out an investigation under this Act, or

(ii) establish the grounds for findings and recommendations contained in any report under this Act; or

(b) the disclosure of which is required during the course of a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act.

(2) The Health Commissioner may disclose to the Attorney General of Canada information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a person or body if, in the Commissioner’s opinion, there is evidence of such an offence.

21. The Health Commissioner, or any person acting on behalf or under the direction of the Commissioner, is not a competent or compellable witness — in respect of any matter coming to the knowledge of the Commissioner or that person during an examination or inquiry — in any proceedings other than a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act.

22. (1) No criminal or civil proceedings lie against the Health Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or per-formance of the powers, duties or functions of the Commission.

(2) For the purposes of any law relating to defamation,

(a) anything said, any information supplied or any document or thing produced in good faith by or on behalf of the Health Commissioner, in the course of the exercise or performance or purported exercise or per-formance of the powers, duties or functions of the Commissioner, is privileged; and

(b) any report made in good faith by the Health Commissioner in the course of the exercise or performance or purported exercise or performance of the powers, duties or functions of the Commissioner, and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast, is privileged.

CONSEQUENTIAL AMENDMENTS

23. Schedule IV to the Financial Administration Act is amended by adding the following in alphabetical order:

24. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

25. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

COMING INTO FORCE

26. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.