Industry Committee on Oct. 28th, 2010

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

You have just referred to all the definitions that have been deleted, particularly with respect to the General Council, the WTO, TRIPs, what an authorization is or the TRIPs Council. Having heard the comments you just made in answer to a question from Mr. Lake, I believe I understood that, in your opinion, these definitions should not be deleted, and that they should in fact be put back in. Did I get that right?

Just so that we all have a proper understanding of the scope of this bill, could you explain in more detail if the definitions that have been deleted are important?

[Colette Downie]

I'll ask my colleague from Justice to explain the role of the definitions in the CAMR legislation.

[Rob Sutherland-Brown, Senior Counsel, Legal Services, Justice Canada, Department of Industry]

It's all very complex and interrelated, but essentially, the original CAMR legislation, Bill C-9, made reference to things like the WTO waiver decision. To do that, a number of the definitions were technical; WTO is used, so there's a definition of WTO to tell you what the World Trade Organization is.

For “General Council” and which General Council, it tells you that. But it also, importantly, tells you about the “Decision”, which is referred to throughout the legislation as somebody importing or exporting in conformity with the authorization.

For “patented product”, again, it's a technical definition to tell you what it means. It's defined in terms of infringement. That's what this is about. It's about authorizing otherwise unauthorized users to infringe.

So these play both a definitional and a drafting role throughout the original legislation. Those references have been removed in Bill C-393, so they may or may not have much impact on Bill C-393 itself, but they do have an impact on the overall schema, in the sense that it loses the tie to the WTO agreements, both the main agreement and the TRIPS, the trade-related aspects of intellectual property agreement.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

So, the fact that these definitions do or do not appear in the bill has no effect on its scope. Is that what you were saying?

[Rob Sutherland-Brown]

Some of them are just there for drafting convenience, but others do have an impact. For instance, where in Bill C-9 you see references to “in accordance with the General Council Decision”, that has substance to it. The circumstance of a manufacture and exportation and importation meets the restraints or the limitations that were imposed by the TRIPS agreement when it was initially negotiated.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

In your opinion, therefore, clause 2, as amended, could contain some gaps in terms of important definitions. Is that correct?

[Rob Sutherland-Brown]

As I said, some of them are definitional and they make sense within Bill C-9 because the terms were used throughout the legislation. Those are just sort of drafting techniques, but there are others. “General Council Decision” is used throughout the legislation to describe specific criteria that are going to have to be met in an application for an authorization.

[Mona Frendo]

I will just add that the intent.... When CAMR was first developed, when this legislation was first put in place, we were one of the first countries to do such legislation. We were developing the legislation without much precedent, so what was paramount was the interest in making sure we were closely aligned with the WTO General Council decision and the requirements stated in that decision.

That is why those definitions are in the text. That is why the references are carried through the legislation. It is to ensure there is a link between our Canadian implementation and the international requirements that were set out by the General Council decision.

[The Chair, Conservative, David Sweet]

Thank you.

Mr. Malo, if you have another question, I'll just ask you to wait. Mr. Garneau has been waiting.

Mr. Garneau, do you have a question?

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I don't know whether there is simply an error in the amendment, because the intent was simply to… In the previous amendment, we established a new list of products that is now part and parcel of Bill C-393. The intent was simply to include a definition that would be consistent with the criteria used to draft such a list, which is now the new list # 1 in the document. It was simply to have a definition of “pharmaceutical product” that would be consistent with the criteria used for the new list that is now in the bill.

[The Chair, Conservative, David Sweet]

Do you want to comment before I go to Mr. Malo?

[Mona Frendo]

I was only going to add that I think it is because clause 2 of Bill C-393 states, “Section 21.02 of the Act is replaced by the following”, and there are two definitions after that. One is for “authorization” and one is for “pharmaceutical product”. So the understanding was that when the Liberal amendment was put forward it was to deal with those two definitions and not--

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

For those lines, I guess maybe the numbering was, as I understand it, really just to address.... I guess that's really more like lines 20 to 24. That was the intent.

[The Chair, Conservative, David Sweet]

Lines 20 to 24? My wording here says “lines 18 to 22”.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

So does mine. I agree.

[The Chair, Conservative, David Sweet]

Do you have some input, Mr. Lake?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

It's a point of order, I guess. Maybe we can take five minutes for the Liberals to get together and figure out what their amendment means, sir.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I believe there's an error in the way the amendment is written and that it is really meant to say “lines 20 to 24” instead of “lines 18 to 22”, I guess. It's only touching on the definition, that was the only thing. Because we now have a new schedule 1 that contains a list, and the list is based on the new definition, the one that I'm proposing here for “pharmaceutical product”, which was really what used to be there in the Patent Act anyway.

[The Chair, Conservative, David Sweet]

We're going to have the legal clerk comment on it, please.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

All right.

[Mike MacPherson]

It appears that Bill C-393 is defining “pharmaceutical product” according to section 2 of the Food and Drugs Act, and the amendment is replacing that definition with a reference to schedule 1 of Bill C-393, which is actually the old schedule 1 of the Patent Act.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

With the new one....

[Mike MacPherson]

It's meant to be the new schedule 1.

So if you removed the first two lines of that definition, lines 18 and 19, it just grammatically wouldn't make any sense.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

It wouldn't make any sense? Well then, I'll admit that I'm not an expert on that and I'll defer to.... But the intention was just to harmonize.

[The Chair, Conservative, David Sweet]

Monsieur Malo.