Agriculture Committee on Nov. 4th, 2014

[The Chair, Conservative, Bev Shipley]

Ladies and gentlemen, I want to call our meeting to order.

Pursuant to a reference of Tuesday, June 17, we are considering Bill C-18, An Act to amend certain Acts relating to agriculture and agri-food.

Colleagues, today, as you know, we will be going through Bill C-18 clause by clause and considering amendments put forward to us. As you know, there are 154 clauses. There have been 30 amendments put forward.

With that, I also want to welcome Ms. May, because she has some amendments for consideration also.

We have what we have agreed. You also have the motion in front of you. I will not read it, but I will be trying to work closely with that. I want to make sure that you have time to talk to your amendments, but we've all been around here long enough to know that being precise really works well in getting your point across so that there will be debate and questions on it.

I want to welcome, with us today from the CFIA, Tony Ritchie and Nicolas McCandie Glustien; from the Department of Agriculture and Agri-Food, Rosser Lloyd and Martin Crevier; and from the Department of Justice, Louise Sénéchal and Sara Guild.

Colleagues, these folks are here today if you have questions or if you need clarification. Don't be concerned about referring to them for that. That's why they're here, to help us as a committee move forward by making sure that we have clarification on the amendments before us.

With that, we're going to start.

Clause 1 is the short title. That will be postponed.

(On clause 2)

We have NDP-1 to clause 2. Ms. Brosseau, could you speak to that, please.

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Thank you, Chair.

I'd like to thank everybody for their presence here today, and also for your helping us out when we have questions.

I move this amendment to Bill C-18, that clause 2 be amended by replacing line 22 on page 2 with the following:

rights, means the intentional doing, without authority under

We are just seeking to make sure that we are protecting producers from being sued for patent infringement due to accidental reasons, like wind blowing seeds on their land...claim intent, plus the burden of proof to be on the companies.... I think it's a really important common-sense clarification measure.

That's why we are moving to have this amendment brought into Bill C-18.

[The Chair, Conservative, Bev Shipley]

All right. Comments?

Mr. Lemieux.

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

Thank you, Chair.

After looking looked at this amendment, I think the introduction of intent is problematic. When you look at UPOV 78, which has been in force for 23 years in Canada, it does not include the concept of intent with respect to infringement of rights.

This type of clause also places an undue burden upon the plant breeder to show whether there was intent or not intent, which is an extremely high bar to set. This was not under UPOV 78. I'm not sure why it's being introduced now when it really has not been a problem under UPOV 78.

I also worry that it could put us offside with other countries. We are not the only country that is signing on to UPOV 91. There has to be a common understanding of what UPOV 91 means. This will actually come up in further discussion too. If you start altering what UPOV 91 means, then it's not UPOV 91, it's something else. I think we have to be very cognizant of that as we work our way through the bill, especially through the plant breeders' rights part.

[The Chair, Conservative, Bev Shipley]

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair.

As much as I listen to my learned colleague, we're not actually worried about UPOV 78. We're actually worried about UPOV 91. So what 78 said or didn't say really isn't relevant anymore, since the government intends to go to 91.

I would bring to the parliamentary secretary's attention the fact that UPOV 91 has been amended in many countries and deemed fit based on the country. Some accepted UPOV 91 as is. This government seems intent on assuming this role, but clearly you can amend it to meet the needs of your individual citizens and farmers if you so choose. We've seen that elsewhere.

The intent here is to ensure that the biotech companies, when they have something, don't use the scare tactic of simply picking someone out who may have inadvertently done something and go after them in the court system. Farmers have somewhat deep pockets, but not nearly as deep as the firms that would come after them. That's been the case in the past. It is about a chill factor that would go through the farming community when someone has done nothing willful, if it were simply the result of an inadvertent circumstance. That's the intent of this, and nothing more than that. It's to make sure that there is a somewhat level playing field for both a farmer and a biotech firm. They get protection under UPOV 91. Farmers feel somewhat protected in a sense that if something unwanted happened to them, they wouldn't deliberately go out and break the law and steal somebody's intellectual property, which we agree you can't do. This is making it reasonable that this won't happen to them. That's all the intent is.

[The Chair, Conservative, Bev Shipley]

Mr. Hoback.

[Randy Hoback, Conservative, Prince Albert, SK]

I think we should ask the officials for their definition on how they would do this amendment. I'll turn it over to them.

[The Chair, Conservative, Bev Shipley]

Mr. Ritchie, you're on.

[Tony Ritchie, Executive Director, Strategic Policy and International Affairs, Canadian Food Inspection Agency]

Thank you, Mr. Chair.

As was indicated, intent has not been referenced in previous UPOV conventions, so adding that intention places a significant impact on the rights holder because it's going to require them to prove intent for instances where their rights have been infringed.

These infringements, Mr. Chair, can occur not just by farmers. They may occur by others in the value chain who do not respect the rights of the breeder and perform acts that are not authorized. They could occur by others commercializing and selling propagating material, or by those who could, with this proposed amendment, offer as a defence in a civil action that they did not mean to infringe.

This may place limitations on exercising the clause 5, section 5.1, which is the mandatory UPOV 91 provision. In addition, it may have a further negative effect on the investment of crop breeding in Canada. The bar may be raised so high for the breeder that they may choose not to invest in Canada, thereby limiting access to farmers of new varieties.

Introduction of the concept of intent into infringement may also invalidate the legislation to conform to UPOV 91 where intention has not been identified as a factor for infringement.

Other examples of intellectual property rights legislation such as the Patent Act do not have an element of knowingly infringing....

[The Chair, Conservative, Bev Shipley]

Hearing all, shall the amendment carry?

(Amendment negatived)

(Clause 2 agreed to)

(On clause 3)

NDP-2 please, Madame Brosseau.

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Thank you, Chair.

The second amendment that we've proposed for Bill C-18 is to amend clause 3 by replacing line 3 on page 4 with the following:

demonstrates unique features that are clearly distinguishable from the initial variety and has not been sold by or with the concurrence of

We are moving this amendment to make sure that new crop varieties are as good as, or initially better than, existing ones to ensure there is better competition in the research and development sector, and to protect existing varieties from minor modifications intended solely to make money and which provide no real benefit. It's a housekeeping, common sense amendment.

[The Chair, Conservative, Bev Shipley]

Thank you.

Mr. Lemieux.

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

Thank you, Chair.

To review this particular amendment, the legislation says, if you turn to page 3, at proposed subsection 4(2), that “Plant breeder’s rights may be granted in respect of a plant variety if it”, and then it defines four critical, essential characteristics. It has to be a new variety. It has to be distinguishable, which would be distinct. It has to be stable. It has to be homogenous. This wording is very much in line with UPOV 91.

The NDP amendment is changing the definition of “new”. Although distinctness is already part of this definition, the amendment is going back up to “new” and changing the definition of “new” to be “new and distinct”, so it's not necessary in that sense. The distinguishability or the distinctness of a variety is already covered under proposed paragraph 4(2)(b). Inserting it into proposed paragraph 4(2)(a) is clearly not required.

I also go back to the comment I made on the previous amendment, which is that the wording in the legislation right now aligns with UPOV 91. We can't agree to UPOV 91 if we're going to change UPOV 91, because then what we are agreeing to is different from UPOV 91. Unfortunately, this amendment falls into that category, whereby these four characteristics are accepted by other countries that also have signed on to UPOV 91, and it would be very problematic to change it.

Also, as I mentioned before, it's already been covered under proposed paragraph 4(2)(b).

[The Chair, Conservative, Bev Shipley]

Mr. Eyking.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

Just for clarification, Chair, when we go to line 2 on page 5 and the NDP wants to change it, it says right there “the holder of the...”. The paragraph that says “Without prejudice to...”, is that the paragraph we're talking about?

[The Chair, Conservative, Bev Shipley]

No. We're on NDP-2. You're on NDP-3.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

It says “replacing line 2 on page 5...”. So it's right there?

[The Chair, Conservative, Bev Shipley]

Yes, you need to go to NDP-2. You're one ahead, Mark.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

I'm one ahead? Sorry.

[The Chair, Conservative, Bev Shipley]

Just save the thought.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

I'll wait for the next round.

[The Chair, Conservative, Bev Shipley]

Is that okay?

Shall clause 3 carry.... I'm sorry, I haven't heard.... We were in the debate. Hearing none.... Shall the amendment carry? Those in favour? Opposed?

(Amendment negatived)

(Clause 3 agreed to)

Now we go to clause 4. There were no amendments that came forward. Is there any debate? Hearing none, all in favour?

(Clause 4 agreed to)

(On clause 5)

Now we move to NDP-3.

Madame Brosseau, please.

[Ruth Ellen Brosseau, NDP, Berthier—Maskinongé, QC]

Thank you, Chair.

This is the one that you were interested in, Mr. Eyking.

Again, this one modifies Bill C-18 in clause 5, with it to be amended by (a) replacing line 2 on page 5 with the following:

Act, the holder of the plant

It is also amended by (b) replacing line 5 on page 6 with the following:

Act, the holder of the plant

This is just to make sure that farmers' privilege cannot be taken away by the minister through regulation. We believe that it is just common sense to have a balanced approach when it comes to a plant breeder's rights, because it's not clear enough. Once again, it's just clarifying. We've heard from many witnesses and stakeholders that this is a right and not a privilege, so it's just reinforcing that exponentially in this text.

[The Chair, Conservative, Bev Shipley]

You've heard the amendment.

Monsieur Lemieux.