Public Accounts Committee on Feb. 13th, 2023

[Anthony Housefather, Liberal, Mount Royal, QC]

Yes, I have copies for everybody. Would you rather I circulate it before I read it?

[Kelly McCauley, Conservative, Edmonton West, AB]

Do you mind?

[The Chair, Conservative, John Williamson]

The clerk will come and collect them and hand them out.

[Anthony Housefather, Liberal, Mount Royal, QC]

No problem.

[The Chair, Conservative, John Williamson]

Go ahead.

[Anthony Housefather, Liberal, Mount Royal, QC]

I move that all the words after “(Auditor General's Report 9 and 10);” be deleted and replaced with the following:

That the committee clerk write to each of the suppliers signalling the willingness of committee members to sign non-disclosure agreements in order to review unredacted copies of the contracts, and, should the suppliers decline, the suppliers would be required to provide a written explanation to the committee as to nature of the information being withheld and the reasons for withholding it from members of Parliament; and if, after 30 days, the committee has not received a response, or the committee is not satisfied with the responses, members sign non-disclosure agreements in order to review unredacted copies of the contracts. In either case, these contracts would be provided by PSPC in a predetermined Government of Canada secure location and PSPC officials be made available to respond to committee members' questions regarding the documents. Documents would be provided to members of Parliament only and on the condition that the documents not leave the location and all of the rules of the secure location are followed.

Furthermore, the committee requests that PSPC officials be available for future in camera meetings to discuss the topic.

The French version follows, and I believe you also have a copy.

Basically, this tries to set a stage where we have an obligation to let the suppliers know. If they have objections, the committee can still sign the NDA in any case. Hopefully, they won't have objections and it will happen faster than 30 days. If they have objections, the committee can say, after 30 days, “We're going ahead, signing the NDAs and looking at the documents.”

We want to make sure we don't draw liability to the Government of Canada for any unnecessary reason, even though I understand that parliamentarians have a right to see them without signing NDAs. Given that the intention is to keep these documents confidential, I don't think signing NDAs should be problematic. It avoids the government's being in breach and having potential liability in this case.

I would point my colleagues to the committee related to Afghanistan, where a confidentiality undertaking was signed by members of that committee before accessing documents.

I hope members see this as a reasonable approach. We're saying, “You should definitely see the unredacted documents.” It's my very strong belief that you should, but do it in a way that doesn't create unnecessary liability, and do it in a secure location.

I will stop at that, Mr. Chair. I don't need to belabour it. I'm happy to answer questions afterwards, if I come back on the speakers list.

[The Chair, Conservative, John Williamson]

Thank you very much, Mr. Housefather.

Ms. Sinclair-Desgagné, you have the floor.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

Thank you, Mr. Chair.

I thank my colleague the member for Mount Royal for being with us. I note, however, that he is a proud representative of pharmaceutical companies rather than his fellow citizens of Mount Royal. This disappoints me deeply, knowing that I grew up right next door.

I find this amendment inappropriate. In light of parliamentary privilege, we have no business signing non-disclosure agreements with pharmaceutical companies. This is completely out of order. This exercise is purely an exercise in transparency. There are no lives at stake, as there are in cases of espionage or in cases of national defence. These are commercial contracts with pharmaceutical companies.

It is in the interest of the Canadians and Quebeckers we represent to know what was in these agreements, as has been done elsewhere. It has been done in the United States, in Europe and in Colombia. Yes, there are developing countries that are perhaps more intelligent than some government members. I'll even tell you what has been done in Colombia.

Based on national and international laws, the country's administrative court rejected the government's argument that contracts with pharmaceutical companies could not be released because these agreements were confidential. That's the same argument we're hearing here. In a landmark decision, the court found that the access to information right trumped confidentiality agreements. I repeat: the right of access to information has precedence over confidentiality agreements.

I would also like to remind the committee that all confidentiality provisions have been respected. Everything in the motion was drafted according to the rules of adoption that have been established in other committees. First, it was established that parliamentarians could consult the documents in the presence of the clerk and only in camera; second, that the meeting with the people from Public Services and Procurement Canada would also be in camera. Constraints have already been included in the motion, in good faith, so that the motion can be adopted as is.

I will also read the opinion of the law clerk and acting parliamentary counsel, Mr. Bédard. He is an employee of the House of Commons. So he is neutral. Here it is:

The motion proposes measures to protect the confidentiality of required documents, including that the documents be available for viewing only in the clerk's office, for one day only. While such measures are not mandatory, they are a legitimate exercise of the committee's power [...]

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

Excuse me, Mr. Chair.

[The Chair, Conservative, John Williamson]

Go ahead, Mr. Desjarlais.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

It's just that translation services would like Madame Sinclair-Desgagné to slow down a bit.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

Good timing, I'm reading what is already translated in the law clerk's document.

[The Chair, Conservative, John Williamson]

I don't know if the interpreters have a copy.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

That's too bad.

[The Chair, Conservative, John Williamson]

I'm told they have one, but I must still ask you to speak more slowly.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

Yes.

The motion proposes measures to protect the confidentiality of required documents, including that the documents be available for viewing only in the clerk's office, for one day only. While such measures are not mandatory, they are a legitimate exercise of the committee's power and they can help to address confidentiality concerns.

So everything has already been established. The motion is clear, and action has been taken. I am not the one saying this, this is a law clerk in the House of Commons.

I would now like to direct your attention to some figures.

The prices of the vaccines were set through a confidential agreement with several countries, and they were set to avoid competition between the different players. They were chosen according to the price that countries were willing to pay. For the same vaccines, pharmaceutical companies charged different prices to different countries. For example, Europeans paid $14.50 per dose while Americans paid $19.50. It is therefore to the advantage of these companies that the deals remain confidential.

Will the members opposite, members of the government, put the interests of the drug companies ahead of those of Canadians and Quebeckers, who have a right to access information? They have a right to know whether or not these deals were done fairly.

It's really important for everyone to think about their role as MPs. Why were we elected? You represent 120,000 people, and they have a right to know. I don't know if MPs have talked to a few citizens in their constituencies about this, but I'm sure citizens agree that parliamentarians should have the right to see these kinds of business deals.

If the government has nothing to hide, it will agree to disclose the information contained in these agreements, in line with good transparency and accountability practices.

Thank you, Mr. Chair.

[The Chair, Conservative, John Williamson]

Thank you very much, Ms. Sinclair-Desgagné.

Mr. McCauley, you have the floor.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks, Chair, and Mr. Housefather. It's good to see you again. Long time, no see.

I appreciate the probable intent, but I'm going to be blunt. I find whoever wrote this motion.... I find it's insulting that a member of Parliament would have to agree to a non-disclosure for something that we as parliamentarians are entitled to—I hate to use that word—that we have a right to see. I've been here only seven years, but I have followed politics before this, as well as the Afghan committee....

There have been other issues going back, such as access to documents for the F-35, and I've never once heard of MPs going out and making anything public. It was stated by one of your colleagues last time that this somehow would find its way to question period. I find it frankly offensive, again, that MPs, whether Liberal, Bloc, NDP or Conservative, would be accused of that or would actually have to sign an NDA. I would prefer we stick with the original motion.

There are a couple of things I just want to go over, to that point. I just want to read a bit from The Washington Post, which we all know is not exactly a standard-bearer for right-of-centre politics. They say of Pfizer, “The Manhattan-based pharmaceutical giant has maintained tight levels of secrecy”—where have we heard that before?—“about negotiations with governments over contracts that can determine the fate of populations. The 'contracts consistently place Pfizer’s interests before public health imperatives.'”

I'm not casting aspersions against Pfizer. I thank God for them, that they created that vaccine, but that being said, it is an issue.

The Washington Post further says they had access to unredacted draft agreements between Pfizer and Albania—and if you look around the room, who would say Albania is more open than Canada, but apparently it is—Brazil, Colombia, the DR, Peru and the European Commission. For the European Commission, I was looking at their study. The only condition placed on their contracts is not about secrecy or hiding it from the public. Their only condition was around liability agreements. For the whole of the EU, then, they published theirs, not like our government, which enforced strict secrecy. The EU's only condition was around liability.

India has provided the information. The provinces have asked confidentially for this information, not to make it public, but confidential, like we are asking, and there's just one other little thing. Novavax, which was of course one of our vaccine contracts, actually had details of its contracts publicized in the U.S. as part of its security, its regulatory filings.

However, here we are. We are not allowing elected members of Parliament to view these items in camera, but at the same time these are the ones that have been made available to the SEC in the States. The American security regulators have access to our vaccine contracts, but parliamentarians are blocked.

We've gone through this before. I think Ms. Shanahan was with us on the Canada Post study, where we had a lockdown of the secret study on postal banking. We had the MPs go into a room, supervised, to look at the confidential information that Canada Post had. Not one bit of it ever made its way out and I, as a sociopath does, follow Canada Post religiously in the news. Not once has it ever come out. I trust MPs from all sides.

Not during the Harper era, the Chrétien era, the Martin era or the current era have I once heard of anything leaked from in camera—anything fun, anything scandalous, anything boring. MPs from all sides stay true to what in camera means. I think we owe it to ourselves and to Canadians that we have access to these documents and we can decide ourselves about viewing them, without asking permission from Pfizer, without asking permission from Novavax that they share what they've shared with the SEC, and without asking permission from these other multinationals.

We're here for a reason. We're here to protect Canadians and not the rights of Pfizer or Moderna or the others. I fully support the motions brought forward by our colleague from the Bloc, and I continue to support them.

That's all, sir.

[The Chair, Conservative, John Williamson]

Mr. Desjarlais.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

Thank you very much, Mr. Chair.

I also want to mention three things from my perspective.

First, I believe we can get to a consensus on this—and hopefully the members opposite will agree—because this is truly in the interest of Canadians. Canadians deserve to know that MPs have access to incredibly sensitive and important documents on what the government dealing with, particularly in this public accounts committee. I recognize that this is in the interest of Canadians. I think my colleagues from the Bloc and the Conservative Party, and hopefully from the Liberal bench, will also see that this is an important piece of information.

My second principle is the rights of parliamentarians. Both previous speakers and Mr. Housefather mentioned the rights of parliamentarians. We have a letter from the law clerk in relation to those rights. It's not a matter of whether this is possible. It's certainly possible. There's a difference between the Government of Canada and Parliament. The Government of Canada, from my perspective, should not have come into an arrangement that would have the possibility of breaching its confidentiality with companies, knowing that this committee or Parliament had an ability to get those documents.

That's one very important fact of this. Maybe in the future or in other dealings with the government, this could be a consideration when entering into contracts and agreements.

Another part of that is that I also agree that we can disproportionately damage Canadians. I don't think that's what any of us wants to do here. I don't think that the procedure laid out in the motion from the member from the Bloc Québécois or the amendment of the government.... I believe both have the requirements that would ensure that those two first principles are met—that the rights of parliamentarians are protected and the interests of Canadians are met.

I think these are the real questions for us as a committee. What level of satisfaction do we require in order to exercise our rights? What process is the best function to do that? Where will we get most of that information?

We need to get to an agreement that we are going to actually see these contracts. I think we've done that point and we all agree—looking at this amendment, the government does in fact agree—that this is a matter of interest to Canadians that should be reviewed in this committee. I agree with that. That's good production so far.

As I said, the second piece is the rights of parliamentarians. To my colleague from Edmonton West's credit, I see his argument relating to the fact that the amendment is insulting in some ways in asking parliamentarians to give up an aspect of their duly granted rights in this place, which is an obligation that is part of this work in public accounts.

The third principle, however, is at what cost this committee exercises those rights. With this current amendment—which I'd like us to debate, because I'd like to get further answers on from the government bench—is it reasonable to ask this committee to sign an NDA for some of these things?

I can see in the instance of national defence, where we're talking about all kinds of matters of national security, maybe a NDA is responsible there, but as the member from the Bloc mentioned, this is a commercial contract. For other commercial contracts that would be entered into by a Liberal or a Conservative government—even a New Democratic government—I'd hope that someone would press on and see that these commercial contracts don't deserve the extraordinary protection of Parliament. They may get the extraordinary protection of the government, but not the extraordinary protection of Parliament.

Those are some of the questions I had in relation to the member from the Bloc's motion, the difference between that and the amendment from the government, and the three principles I just mentioned.

That's what I would offer, and I hope to hear some important information on that.

[The Chair, Conservative, John Williamson]

Thank you very much.

Ms. Sinclair-Desgagné, the floor is yours.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

I would like to add another source. It is the Journal of International Law and Politics, a prestigious publication.

There was an article published on the level of confidentiality required in contracts associated with COVID‑19; it is very interesting. It is in English. So I'll read an excerpt in the language of Shakespeare:

The level of redactions required by the NDAs on COVID vaccine procurement contracts is unprecedented. When comparing prior vaccine contracts with COVID-19 vaccine contracts between the same country and pharmaceutical company, the COVID-19 vaccine contracts have nearly fifty times as many redactions.

The NDAs allow pharmaceutical companies to hold an unfair advantage over the price of vaccines. For example, AstraZeneca sold vaccines to South Africa at 2.5 times the price per dose that European governments paid.

By conditioning desperately needed vaccines on the signing of NDA agreements, pharmaceutical companies force governments to violate both international standards of transparency and their own domestic law on transparency in public procurements, in order to protect the lives of their citizens.

I repeat, the government must represent the people, not the pharmaceutical companies.

If the drug companies abused their position during the pandemic, they should pay for it, and they should defend their uncompetitive and abusive practices.

All parties should work together and agree that these pharmaceutical companies and agreements need to be scrutinized.

[The Chair, Conservative, John Williamson]

Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

First of all, I want to say that we are here as Liberal MPs. Today, we are not part of the government; we are here as members of Parliament.

Secondly, we are not here to defend the pharmaceutical companies. I want to say to Ms. Sinclair-Desgagné that I have not heard from any of my constituents in the last few years about these contracts.

As I have said before, it is important for the committee to have access to the documents. I fully agree that this is a member of Parliament's right.

I agree with what Blake said before. Everything we decide to do is because we choose to allow that to happen. We have a right to see whatever it is that we want, so let's start from that premise. Unredacted documents should come to parliamentarians.

As premise number two, I think we all agree that we should look at the documents in a confidential location. The only difference between this amendment to the motion and the motion itself is the location: one is the clerk's office, and one is in a secure location where these types of documents are normally accessed. I don't think that's a big difference. We're just saying that parliamentarians can access it in a location that is close by. I don't think we should fight about that. I think it is a reasonable request, based on what the contract says, to just have it done there.

Then we get to the real issue, which is the issue of the NDAs. I am in agreement that normally members of Parliament should not be asked to sign non-disclosure agreements to access contracts, particularly commercial contracts. I'm in total agreement.

However, these are agreements that exist. They're not agreements that we're about to negotiate. They were already negotiated. These agreements require employees of the Government of Canada who access these documents to sign confidentiality agreements.

Why is that? Why are there many more redactions, as my colleague said, in these documents than in other documents? It's because these documents were signed at the beginning of the pandemic, when everybody was desperate for vaccines. Companies were being told to rush vaccine production and do testing in an unprecedented way, in a way that they don't normally do it.

These companies were exposed to a way higher liability in putting their products on the market than they normally would be, because they didn't do the type of testing that normally means these drugs take years to come to market. They did it all in less than year.

That's why these companies said that if they were going to deliver this product that they hadn't tested in their normal way, they wanted to have different conditions. Also, with countries around the world competing with each other to get these, the countries had less leverage than they normally do. For example, if we were entering into flu vaccine or monkeypox contracts, or other things that are normally available, this would be a different issue.

However, these are already signed. They were signed at a time when the government didn't have that leverage in negotiations. We just wanted to sign as many vaccine contracts with as many producers as possible, because Canadians were desperate for vaccines. In the end, it worked out. We got vaccines, and we were one of the countries that got to vaccinate everybody the fastest.

These are the terms of the contract, that people accessing the information are supposed to sign NDAs. What will happen if we don't? Well, then theoretically there would be a right of action by the pharmaceutical company against the Government of Canada.

Is that worth the potential liability to taxpayers, that parliamentarians see it without an NDA? That's up to everybody on the committee. I personally don't see such a difference. I would be happy to sign an NDA to see the document.

Again, I let everybody decide where their line is crossed, because as Blake said, it's a question of a line. What is the liability that we want to potentially put on Canadian taxpayers to follow the principle of seeing a document without an NDA?

That's why we proposed this amendment. We thought it was reasonable, but I'm happy to hear other views on it.

[The Chair, Conservative, John Williamson]

Thank you.

Go ahead, Mr. Fragiskatos.