Agriculture Committee on Nov. 6th, 2012

[The Chair, Conservative, Merv Tweed]

Mr. Lemieux.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

I can comment, Chair.

I think we've had a lot of discussion over the past number of weeks about the ability for the agency to react quickly and in a fulsome manner to food safety incidences when they arise, and not to put in place things that will slow down their reaction time. The agency's reaction to a particular incident has to be prudent, and there are remedies if a company feels it wasn't prudent.

Here, I think, if you're asking for “the person to whom or government to which the information may be disclosed” to agree in writing to maintain the confidentiality of the information, there's an immediate discussion over what is confidential. You've just presented me with all this information. Let's stop, and let's come to a common agreement on what is confidential. What if there's disagreement on what is confidential?

Now you can see sort of the administrative burden that's placed, and the confidentiality burden that's placed, on the parties trying to get information out to the public, or out to other levels of government, regarding a food safety incident. Now there'll be a lot of time lost just agreeing to what is confidential in this information and what is not.

I think it's clear that this would impede the ability of the agency or of the minister to act quickly in order to divulge information related to food safety incidences as they arise. That would be my concern.

[The Chair, Conservative, Merv Tweed]

Mr. Valeriote.

[Frank Valeriote, Liberal, Guelph, ON]

I'm just going to bring your eyes to the section of the amendment that says that they'll just agree in writing to maintain the confidentiality of the information and to use it only for the purpose of carrying out the function related to the protection of human health or safety—which is really the intent of this legislation—and for no other purpose.

So with the deepest of respect, I hardly see how signing a confidentiality agreement is going to keep them from carrying out the functions when it says that they can proceed to carry out their functions.

[The Chair, Conservative, Merv Tweed]

Mr. Lemieux.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Chair, I think the whole question of, for example, what is considered to be commercial and in confidence is an issue, as is what is considered to be releasing technically advantageous information into the marketplace that pertains to the company in question with regard to a food safety incident. I mean, these are the types of things where there has to be....

He's asking for agreement in writing to maintain the confidentiality of the legislation. Well, then, just what...? In order to determine what can and can not be divulged, there has to be an understanding as to what is confidentially protected or not protected. This is where everything is going to bog down.

I think that's what we're trying to avoid with Bill S-11. We're trying to give the minister and the agency the tools they need to be able to respond quickly to situations when they arise.

[The Chair, Conservative, Merv Tweed]

Seeing no further comment, I'll call the question on Liberal amendment 2 on clause 47.

(Amendment negatived)

(Clause 47 agreed to)

(Clauses 48 to 51 inclusive agreed to)

(On clause 52—Incorporation by reference)

That brings us to NDP-9.

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair. I will draw the attention of the members to what it says in clause 52 now:

A regulation made under subsection 51(1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.

Since it says “any document” and “regardless” of where it came from, we are suggesting that we should add:

ment as it exists on a particular date, provided that the person or body that produced the document is not in a material conflict of interest.

That states the obvious: accepting any document from anybody, regardless of where you got it from, to do, now, changes “by reference” rather than by gazetting it.... If you're not telling folks, “Well, we're not taking this stuff from you because you actually have a material conflict of interest when it comes to this”.... Doing it “by reference” actually expedites the process, so you don't slow it down. According to what folks are saying, they don't want to have that happen. I think this is a protection for “by reference” rather than a hindrance. Our friends may tell us at the end that they don't intend to have a conflict of interest from folks when we get material. I would simply like to have it stated that way, that we won't put ourselves in a conflict of interest when it comes to doing the regulation “by reference” rather than the other way, where it was gazetted and folks had opportunities to make presentations.

I'm not saying they won't be consulted. The consultation process through the reference part may indeed happen because it was asked for, but this is a simple attempt not to find ourselves with the potential charge of, “You know what? You allowed this person to do this and clearly here's the reason they did it, because it was of benefit to them, and them alone, and you actually took it from them.” So it speaks specifically to material conflict.

[The Chair, Conservative, Merv Tweed]

Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Chair, those are interesting comments by Mr. Allen. I'm wondering if the officials could maybe comment on this for us. It would certainly help out.

[The Chair, Conservative, Merv Tweed]

Mr. Bouwer or Ms. Barnes?

[Colleen Barnes]

Thanks, Mr. Chair.

For this proposed amendment, we wouldn't be able to bring in a document where there is a direct conflict of interest. When we do the regulation that incorporates the document in the first instance, it will go through the full Treasury Board approval process, so there will be ample opportunity for all to comment on whether that is a good document to reference in. Then once it is in, and as changes happen, as standards change, it allows us to be a bit more nimble in terms of making those innovations available more broadly. That is why it is written the way it is, with the reference to “from any source” and “as may be amended from time to time”.

[Malcolm Allen, NDP, Welland, ON]

Forgive me, Ms. Barnes, but I am going directly to you, and you can help me. I mean no offence when I say this. What I heard—I hope I am right when I say this—is that through the Treasury Board process to the regulatory process, if I send in a document in a clear conflict of interest, you will then vet it at that point to a degree. Vetting is my term, not yours.

Just let me finish.

That's why you said to folks to go ahead and submit, because you don't care if they have a conflict of interest. What you are telling folks is that it's okay to submit it with a conflict of interest; you'll just kick it out here. Why don't you just tell them they can't submit it so that they don't think they actually can get it submitted, not realizing they are going to get kicked out down there? Why not just say it up front?

I interpreted what you said. I look for clarification from you if I have misspoken and paraphrased what I think you said.

[Colleen Barnes]

When we use “incorporation by reference”, we use it when we have, for example, an international standard or practice or code that everyone agrees is how it should be done. Then the regulation will say that everyone has to follow that standard.

Let's take, for example, a Codex standard around a food processing approach. The obligation in the regulations—that would go through Treasury Board and would be approved and consulted on with stakeholders quite heavily as we are preparing that regulation—would say that everyone has to comply with that code and standard. That way, as that code evolves and innovation happens, that's immediately available to regulated parties in Canada. That's why we have it drafted as we do currently in the statute to say a “document from any source and as may be amended from time to time”.

To your point about the conflict of interest provision, if when we do our regulation we reference a source that people don't believe has merit in being referenced in, then the Treasury Board and the agency will take comments from stakeholders at that time.

[Malcolm Allen, NDP, Welland, ON]

I appreciate your response. I don't agree. I think it should be explicit, not implicit. I think what you just described is an implicit process, not an explicit process. We don't always all agree with certain standards that might be accepted by the government. You referenced Codex, and perhaps we all will, and perhaps some don't, so it isn't an all-in or all-out process. It's a democratic process whereby the government's will is such that it accepts certain standards that may not be accepted as standards by future governments.

My reason for referencing this piece in this particular way is to say, let's be explicit; let's not be implicit in this piece. But I appreciate the clarification, and I thank you for that. I do understand what you're saying. We just differ in our view of how we should communicate that to folks.

(Amendment negatived)

(Clause 52 agreed to)

(Clauses 53 to 66 inclusive agreed to)

(On clause 67—Regulations)

[The Chair, Conservative, Merv Tweed]

We have amendment NDP-10.

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair.

This speaks to a public interest intervenor mechanism looking at the Board of Arbitration. In our view, it's a balance of how one advocates on behalf of certain groups that perhaps don't have the resources to advocate on their own behalf. So we'd add subparagraph (viii). It would be amended to say the “criteria to fix public interest intervener costs and to tax final costs” by the Board of Arbitration and Review Tribunal “in connection with proceedings under this Act”.

There are folks out there who would want to be intervenors and can't afford to because they'd be taking on a very large corporation that has very deep pockets. Again, this is a litigation issue, so the issue is always money when it comes to litigation of some form or another. It's always about resources and how to find stuff.

Clearly, this is about trying to balance the playing field, so to speak. Yes, there's a cost involved, and I recognize that. The government doesn't like costs per se. I'm sure one of the reasons they'll vote against it is because of the cost. Other than that, it is about trying to level the playing field between the competing forces of one group defending its way and another group advocating on behalf of others.

I'll leave it at that, Chair.

[The Chair, Conservative, Merv Tweed]

Thank you.

(Amendment negatived)

(Clause 67 agreed to)

(On clause 68—Review)

[The Chair, Conservative, Merv Tweed]

There are two amendments to this clause. I'll advise that if Liberal amendment 3 is adopted, then NDP amendment 11 fails. If Liberal-3 is not adopted, then we will move to the question on NDP amendment 11.

I am opening the floor to Mr. Valeriote.

[Frank Valeriote, Liberal, Guelph, ON]

Thank you, Mr. Chair.

You're doing a great job.

Let me speak briefly and quote Sheila Weatherill. We recall Ms. Weatherill prepared the report following the listeriosis outbreak. It became very apparent during their investigation that there was information not available to them that would have helped them in their investigation. She said this:

Due to the lack of detailed information and differing views heard, the Investigation was not able to determine the current level of resources as well as the resources needed to conduct the CVS activities effectively. For the same reason, we were also unable to come to a conclusion concerning the adequacy of the program design, implementation plan, training and supervision of inspectors, as well as oversight and performance monitoring.

Accordingly, she recommended, and I believe it was recommendation 7, that:

To accurately determine the demand on its inspection resources and the number of required inspectors, the Canadian Food Inspection Agency should retain third-party experts to conduct a resources audit. The experts should also recommend required changes and implementation strategies. The audit should include analysis as to how many plants an inspector should be responsible for and the appropriateness of rotation of inspectors.

Since that time a survey was undertaken. Questions were asked of Carole Swan, former president of the CFIA. It was determined that there was a question about the equivalency of 260 full-time inspectors and where they were placed. But during the questioning of her, she told reporters that a firm was hired by Agriculture Canada. It was PricewaterhouseCoopers. She indicated that they conducted a survey and not the audit that had been requested, urged, suggested by the Weatherill report.

I am quoting her. She said, “They didn't conduct it as an audit. An audit is a very specific process. It was a detailed review.”

The specificity of an audit is something that the Weatherill committee clearly, I would suggest, given the seriousness of the circumstances they were investigating, gave some very careful consideration to. One does not, just for the fun of it, recommend a third-party audit. So there are some very real reasons for it.

Since then we've had the E. coli outbreak at the Brooks plant. I know there is an independent panel looking at it. I'm not going to comment on anything with respect to their investigation until it's completed and we've had an opportunity to look at it. But what has become clear to me and those on this committee who have a memory of any time the CFIA has come before this committee in the last four years that I've been on the ag committee is that it's really difficult to get a clear visual of what's going on.

That is not to suggest that CFIA isn't conducting its business properly, but it's very difficult to get a handle on what's going on—whether the resources they have are adequate to fulfill the intent of the legislation, or whether the systems they have working are functioning effectively and creating the desired outcomes, or whether it be CVS or any other strategies that they deploy, of which there are many.

In my former business life, on at least two specific occasions I can think of, where, because of the size of the firm, the number of employees, the technical work that was going on, all the computers and everything, I thought, “Who am I to just walk around here and decide that this works? They're all working as efficiently as they might. There are no other systems that I can introduce. They have all the resources they need, human, financial, and otherwise, to effectively carry out the duties they are supposed to.”

I dare say that probably every one of us around this table involved in business knows the value of an audit, a third party who comes in and gives an objective perspective and takes a picture of what's happening and what might be useful to make it happen better, and what resources are needed to make it happen better.

Several of the witnesses who were asked about a third-party audit saw the merit of that. The idea of a review, at the very least, was brought up at the Senate. There was discussion at the Senate about the merit of an audit as well. This is with the understanding that everyone embraces this legislation as nothing but the best of intentions when we're talking about making certain amendments to this legislation. This is not gamesmanship. This is not trying to make anyone look like something has been missed, but we have all, including the government, found the merit of the Auditor General's audits of different ministries, different functions that are undertaken by the government from time to time.

Regardless of whether it brought any form of embarrassment, I have never—well, maybe once or twice—heard the government dismiss unequivocally the comments made by the Auditor General. We know how serious those are. We're talking about people's safety. In this instance, we're not talking about how much we might be spending on planes. We can argue that back and forth, but with other audits the Auditor General has done we're not talking about matters of safety. In this case, we are talking about people's safety.

I already spoke of the conflict, that constant dynamic between the minister’s having to make sure that trade continues...and that's an important function I don't want to diminish. You can't shut down a plant unless there is real cause. Obviously, there was cause in this instance at XL Foods, but you also have to consider safety.

I get concerned when somebody says “I'll self-examine”. There are certain things that we can do when we self-examine. We can examine our conscience from time to time, but it's generally better when you run these things by other people and get an objective opinion. We can do physical examinations of ourselves, but even at that, it's always better to get an opinion from the doctor or the dentist or the psychotherapist, whoever it may be who would render an objective third-party opinion, because we lose objectivity when it's our reputation on the line. We lose objectivity when there may be something we are trying to protect. We lose objectivity perhaps when we fear that we might even lose the messaging opportunities over which we might want to maintain certain control.

Of all the amendments...it is so important that at the beginning of this legislation being brought into force an audit be undertaken, so that we actually know the resources that exist, so that we actually know that the human resources that exist are adequate, more than adequate, to undertake all of the responsibilities of the CFIA. We don't even have a baseline right now, so that five years from now we know what should have existed and what should have transpired over the five years. As the legislation reads now, even the review that is undertaken doesn't happen for five years—five years from when the section comes into effect. I think in itself it is a tragedy that we can't examine this now.

I really, unemotionally, ask that the government consider accepting this amendment, so that it is not a self-examination, so that it is not the minister hiring somebody that he thinks will do a good job. I'm not questioning the integrity of the minister. I'm not questioning the integrity of any of the people who might be on a panel or who may be brought together to undertake this review; I am questioning the fact that it is a review that's going to be managed, monitored, by the agency and the minister, and not somebody from outside who has nothing to gain or lose from looking at the agency and saying, “This is where things are and this is where they can be improved. These are adequate. These are less than adequate.”

Those are my remarks, Mr. Chair.

[The Chair, Conservative, Merv Tweed]

Mr. Lemieux.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Chair, I will make a comment.

What I want to say is that the Auditor General reports to Parliament, and it is simply irregular for Parliament to tell the Auditor General where to conduct audits.

Mr. Valeriote is asking that through this act we tell the Auditor General that he or she absolutely must conduct this audit every five years. There's no choice in the matter, not for the Auditor General, and that's inappropriate, Chair. The Auditor General decides where to expend his or her resources in conducting audits, based on decisions the Auditor General makes as to where audits need to be conducted within government, and the Auditor General reports that back to Parliament.

To obligate the Auditor General to do something I think is inappropriate, Chair. I don't think this is the proper approach, and that's why I would not be in favour of this amendment.

[The Chair, Conservative, Merv Tweed]

Seeing no further comment, I will call LIB-3 to clause 68.

(Amendment negatived)

I'll move to NDP-11 on the same clause.

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Mr. Chair.

Just for the sake of our friends at the end, and those who are watching, this is actually our last amendment as the opposition.

I say that because there are, I believe, 110 clauses in the bill, to which we have made eleven amendments. I believe Mr. Valeriote made a few as well. In some cases, they were in the same place but worded slightly differently.

I think, Chair, I'd like to have it in the record that all of them were put in with respect to trying to be creative and helpful and positive. Throughout this entire legislation, we did not try to strike out things just because we thought they should go away.

With respect to the last comment by my friend the parliamentary secretary about the Auditor General, that's why we didn't write it as such, as the Auditor General, when we ostensibly wrote a similar amendment to what Mr. Valeriote has just put forward.

This is an ongoing debate about Sheila Weatherill's recommendation 7, about whether indeed it has been complied with by the government or not. The opposition says no. To be fair, Carole Swan, the past president of CFIA, has also said that she didn't believe it was an audit as defined as such.

The reason for doing this is twofold. One is that I don't believe...and I sat on the subcommittee for listeriosis. When Sheila Weatherill was on a parallel path doing the review, we had a subcommittee of the agriculture committee doing a study, which came out with ostensibly the same recommendations as Ms. Weatherill, minus one or two here or there.

So I have a lot of knowledge and history going back around this issue about what is required under section 7 of Sheila Weatherill's report. The government has continued to say, yes, we did it, even though their president has said, well, no, we really didn't; we kind of did a bit of it, but we really didn't do it.

Folks don't have to take my word around it, because I'm the opposition, of course, and perhaps I'm simply in conflict with the government over this issue. But I would take the word of Carole Swan, who was indeed the president of the CFIA and who said, well, we did a review; we didn't actually do an audit.

That being the case, the reason for this is twofold. One is to comply with recommendation 7 from Sheila Weatherill. The government said they would do all of the recommendations, and that would actually finish it for them. If they did that audit, this would actually be the second-last piece to get done, because part of her recommendation is also to modernize the Safe Food for Canadians Act, which came into force because of one of her recommendations as well, which is an appropriate thing.

We agree with that, and that's why, as folks will notice, after this one we're all “yea” to the end. Then we'll actually get to the name of it, and that will be the last piece.

We notice that we've done these in large groupings in the sense of saying “yea” to, what, 90% of this? That's not a bad working-together environment here—albeit, my friends so far have their last opportunity to actually vote with us on this one. We'll see if we can't help them come to the conclusion that they should.

So there are two reasons here. The Weatherill report is the one that is outstanding. The second is that the government has agreed, through an amendment in the Senate, to do a review in five years and then in ten years, so every five years. The argument for it is that if you're going to do a review in five years, you're measuring it against what, exactly?

It's good to do a review. We agree with the review. The difficulty is that at the end of five years, do you have five because you started at zero? Do you have six because you started at one? Or are you at four because you started at minus one? If you don't have a baseline to draw from, how do you measure? At year five, you now have a baseline, and at year ten you can measure against the five years, and you've lost the first five.

Part of that is a resources thing. The government always assumes that when we're saying something, we're asking for more. As we heard from testimony the other day on this very issue, perhaps in some instances there are too many resources in a place, and they should be adjusted accordingly.

That may well be true. In fact, I would accept that it might be true. I would also accept that it probably is true, because if you actually haven't done the audit, especially around CVS.... This was one of the things that Ms. Weatherill was highly critical of, because actually, at the point she did the review, this was still a pilot program. She was highly critical of CVS, and not just on the part about resourcing it. She was highly critical of the fact that it had never been verified that it did the things they said it would do. That's why we have continued to talk about this since 2009. This is almost three-plus years later, actually. That's exactly what this should do.

Why is there a reluctance on the government's side, besides the cost? And it is agreed there is a cost factor to do this. Why one wouldn't want to determine where exactly we're starting from to go forward escapes me, Chair. It truly does. I would hope in this one instance the government would reconsider and commit to it through the amendment process.

We have missed opportunities in the other amendments, whether big or small, and granted, some were small. I heard the explanations. I accept their explanations, even though I think we could be more explicit in the way we say things.

I believe you are making the greatest attempts in saying, no, you've actually covered that off, but it's over here somewhere. For those who deal with the legislation, they will be able to find it. You're not hiding it; don't misconstrue what I'm saying. For some folks, it's easier to simply get the bill and say, there it is, and I can read through it and see it. In other cases, you go over here and look at the regulation. Those who deal with these processes know where to go and do that. I just like plain language, to make it easy for folks to find.

My friends across the way so far haven't agreed with us on the first amendments. I will reference these parts simply because this is their last opportunity, even though it references another amendment. Mr. Lemieux says they don't want to duplicate. The Canadian Environmental Protection Act has a whistle-blower component to it. The Canada Labour Code has a whistle-blower protection part in it. The Ontario Environmental Protection Act and Ontario's Environmental Bill of Rights have whistle-blower protection.

My friends across the way constantly tell us how we need to harmonize our food regulations and safety measures with the U.S. and our trading partners so that we have best practices and harmonization. Lo and behold, in the U.S., the FDA, under the Food Safety Modernization Act, has a whistle-blower protection component in the act.

I know we can't go back, Chair. I recognize that. But I reference those for my friends across the way, because this is your last opportunity on an amendment that we think is actually a positive piece to help the legislation.

I'd ask Ms. Barnes—I shouldn't direct it directly to Ms. Barnes because I'm not sure who will answer—if we can actually have whistle-blower protection through regulation, if at some point the government says, “You know what? Maybe we missed the boat on that. We can add it in.”

I'm not sure who will answer that, whether it's a yes or a no, or a perhaps, even. I will take any answer.

[Colleen Barnes]

Where we have come out is that the protection is there in the Criminal Code of Canada. It has implications for the agency if we bring it in under our own statute.