Canada-China Relations Committee on May 10th, 2021

[The Chair, Liberal, Geoff Regan]

I call this meeting to order. Welcome to meeting number 26 of the Special Committee on Canada-China Relations.

Pursuant to the order of reference of Wednesday, September 23, 2020, the committee is meeting on its study of Canada-China relations.

This meeting is in hybrid format, pursuant to the motion adopted by the House on January 25, 2021.

Pursuant to the motion adopted by this committee on Monday, April 26, 2021, the purpose of today's meeting is for the Public Health Agency of Canada to explain why the requested documents were not provided in accordance with the committee's motion for the production of documents adopted on Wednesday, March 31, 2021.

As a reminder, this motion called for unredacted documents related to the transfer of viruses that occurred in March 2019, and the revocation of security clearances and the termination of employment of two employees of the National Microbiology Laboratory.

These documents were supposed to be submitted to the law clerk and parliamentary counsel by April 20, 2021.

I want to start by thanking the Public Health Agency of Canada for producing the missing documents ahead of time. All the documents, in both official languages, were made available at around noon today to the committee members, who can access them through the digital binders.

Before we welcome the witnesses, I want to clarify for the committee members how we'll proceed this evening with the rounds of questions. Since the clerk has received different opinions from the vice-chairs, I would like to propose a compromise.

I propose that the witnesses be given up to 10 minutes for their opening remarks and that we do a first round of questions followed by a second round and a subsequent round. We'll then take a health break—this should be around 8 p.m.—and then repeat for another first round followed by a second round and a subsequent round.

Are there any objections to this plan?

[Some hon. members]

No.

[The Chair, Liberal, Geoff Regan]

I'd also like to remind everyone that while witnesses must answer all questions that the committee puts to them, members have been urged to display “'appropriate courtesy and fairness' when questioning witnesses”, as of course House of Commons Procedure and Practice provides at page 1079.

I would now like to welcome our witnesses.

We're joined by Philippe Dufresne, law clerk and parliamentary counsel at the House of Commons; and Michel Bédard, deputy law clerk and parliamentary counsel at the House of Commons.

From the Public Health Agency of Canada, we have Iain Stewart, president, as well as Dr. Guillaume Poliquin, acting vice-president, National Microbiology Laboratory.

Finally, from the Department of Justice Canada, we have Christian Roy, executive director and general counsel, health legal services.

Welcome, everyone, and thank you for being here. I will now turn to Mr. Stewart for his opening remarks.

Please proceed.

[Iain Stewart, President, Public Health Agency of Canada]

Thank you, Mr. Chair.

As mentioned, I'm here with my colleague, Dr. Guillaume Poliquin, and also Christian Roy from the Department of Justice.

Members, I want to begin with the steps we've taken to respond to your motion of March 31.

We've reviewed the relevant documents and worked very hard in a short period of time to prepare the package of documents that will assist you in your study. As I indicated in my letter to your law clerk, Monsieur Dufresne, we've redacted documents where the information pertained to personal information, investigations or security matters. The reason we've done so is that as public servants we're bound by law to keep confidential information confidential. It's not that we're wishing to be unco-operative or unresponsive; we are disclosing as much as we can within the limits of the law.

The Government of Canada's guiding document, entitled “Open and Accountable Government”, has been used for many years to explain the obligations of witnesses before a parliamentary committee. I note in particular the passage in Annex E:

Public servants also have a duty to hold in confidence some of the information that comes into their possession in the course of their duties. There is a tension between that obligation and the request of parliamentarians for disclosure of that same information. When appearing before parliamentary committees, public servants should refrain from disclosing that kind of confidential information, for instance because the information is confidential for reasons of national security or privacy.

That's Annex E of “Open and Accountable Government”.

Consistent with this guidance, in good faith, we've considered how to find ways to respond to the requests for information from the members of the committee within the limitations that we're bound to uphold. These include my obligation under the Privacy Act, which is legislation enacted by Parliament in the House of Commons to protect against the disclosure of personal information and the infringement of the privacy and rights of individuals.

In compliance with that advice, we have applied redactions to protect certain sensitive information. Accordingly, I'll do my best to assist the committee in this study while refraining from divulging information that ought to remain confidential on various grounds. I have no authority to disclose any additional information to you. As you'll see, the limitations on what we can disclose are consistently well documented throughout the package of materials that we've provided to you, which include public communications and documents previously disclosed under the access to information process. The limitations that guided those documents remain in place.

Here's what we can say about the two matters we discussed last time.

You've received many records from the Public Health Agency related to the transfer of Ebola and Henipaviruses from the National Microbiology Laboratory to the Wuhan Institute of Virology in March 2019. The basic chronology of the transfer can be found at page 111 of the package provided to your law clerk. These records demonstrate that when sharing these samples, the NML followed normal internal guidelines and all applicable requirements under the Human Pathogens and Toxins Act, or HPTA, and regulations, as well as the Transportation of Dangerous Goods Act, TDGA, and regulations related to it and the Canadian Biosafety Standard.

Here's how a transfer normally works. The NML routinely receives and shares samples with other public health laboratories to contribute to the advancement of science. Transfers follow strict protocols, including the requirements I just mentioned, as well as NML standard operating procedures. The NML has detailed procedures outlining the steps required for transferring risk group 4 pathogens in accordance with the transportation of dangerous goods regulations. These include detailed procedures outlining step-by-step roles and responsibilities for all involved in the shipment, what documentation is required by the NML and from the receiving laboratory, when to initiate an emergency response assistance plan—an ERAP—notification, as well as how to package the samples. Approvals are required at various steps throughout the process, from the initial transfer authorization to the specific shipping details.

The shipping process for risk group 4 pathogens is outlined under the mandatory ERAP. The plan assists local emergency responders and describes what to do in the unlikely event of a release of materials while they're in transit.

Regarding the March 2019 transfer, documentation of the necessary approvals is evidenced in pages 265 to 271 of the English package, including the NML transfer authorization. A number of the emails relate to the ERAP that was put in place for the shipment, such as at page 132.

However, full redactions were done to the laboratory certification and the letter from the director of the laboratory, as this was third party information.

You will note reference to material transfer agreements, MTAs. It's important to understand that an MTA was not in fact required for virus transfers at the time. An MTA is not a safety requirement but a document that provides a mechanism for transferring controlled materials from one party to another, primarily to safeguard intellectual property rights. As such, IP experts are consulted to determine whether an MTA is required.

While this is the only time we have shared virus samples with this particular lab, collaborations with labs outside Canada are critical to advance public health research into infectious diseases. PHAC's National Microbiology Laboratory is internationally renowned for its scientific excellence and its contributions to global health.

This maximum containment laboratory has a long-standing international reputation for sharing materials for the purpose of advancing scientific knowledge. Given our standing as a WHO collaborating partner for viral fever viruses, as well as our knowledge of regulations and standards for these types of transfers, the laboratory in Winnipeg is often asked to provide materials to new or existing programs, including laboratories in the United States. The NML is open to providing materials to other labs in a safe, responsible and transparent fashion to foster global collaboration rather than enable research on any given disease to be monopolized by specific teams. This is a component of advancing public health research and science aimed at improving public health on a global scale.

You will notice that one of the individuals named in the motion was involved in this transfer. Regarding the situation of the two individuals named in the motion, we have already confirmed that they no longer work for the NML. We have also mentioned that there had been an administrative investigation. We cannot discuss the nature of the administrative investigation, its scope, or its findings. That said, to avoid undue inferences, I want to state again, as is evidenced throughout the documentation that you received, that the fact that the transfer of the viruses took place—which, again, was done in compliance with internal policies and proper approvals—is not connected to the departure of the two employees.

As you know, there is also an RCMP investigation. I cannot comment on that matter, and questions should be directed to the RCMP.

I am happy to take your questions about these documents and answer them as best I can.

Thank you very much.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Stewart.

Am I right in saying that you don't have any opening remarks, Mr. Roy?

[Christian Roy, Executive Director and Senior General Counsel, Health Legal Services, Department of Justice]

Good evening, Mr. Chair.

Good evening, committee members.

I don't have any opening remarks, but I'll gladly answer questions.

[The Chair, Liberal, Geoff Regan]

Thank you.

Mr. Dufresne, do you have any opening remarks?

[Philippe Dufresne, Law Clerk and Parliamentary Counsel, House of Commons]

No, Mr. Chair.

However, I'll be available to answer questions from committee members as needed.

[The Chair, Liberal, Geoff Regan]

Thank you.

In that case, we'll go to our first round of questions.

I believe it's Mr. Chong for six minutes.

[Michael Chong, Conservative, Wellington—Halton Hills, ON]

Thank you, Mr. Chair.

We still don't know the origin of the coronavirus. That's because the Government of China has blocked the investigation into the origins of the COVID-19 pandemic.

Not only did the Government of China delay the start of this investigation; they also did not allow WHO investigators unfettered access to pursue the scientific evidence. As a result, the world still does not know where the virus came from. Determining the exact origin of the virus is essential if the world community is to prevent the next pandemic. The Government of China has been opaque and anything but transparent when it comes to investigating the origin of the coronavirus.

Here in Canada, we have another investigation going on that concerns viruses, an investigation that concerns the shipment of Ebola and Henipavirus from the National Microbiology Lab in Winnipeg to the Wuhan Institute of Virology on March 31, 2019, just eight months before a global pandemic ostensibly began in the same city.

An investigation that concerned two Chinese scientists employed by this lab in Winnipeg resulted in their termination. Dr. Qiu and Dr. Cheng were terminated on January 20 of this year for—quote, unquote—policy breaches. Here, like in China, the Government of Canada is blocking our investigation into the transfers of these viruses to the Wuhan Institute of Virology and blocking our investigation into why Dr. Qiu and Dr. Cheng were terminated.

The parallel between these two situations is appalling. We live in a parliamentary democracy and we are facing the same impediments to our investigations as investigators are facing as they attempt to discover the origins of the COVID-19 pandemic in China.

Dr. Qiu and Dr. Cheng were escorted out of the lab by the RCMP, along with Chinese students, two years ago on July 5. In the months before they were escorted out, the Government of Canada replaced Dr. Qiu's computer at the lab and denied her permission for trips to China she applied for, but we still don't know why she was terminated.

Dr. Qiu made five trips to China in 2017 and 2018. She was invited to the Wuhan National Biosafety Laboratory of the Chinese Academy of Sciences twice a year for two years, for two weeks at a time. One of those trips was to train scientists and technicians at China's new level 4 virology lab in Wuhan, but we still don't know why these two scientists were terminated from the Government of Canada's lab in Winnipeg, because the Government of Canada is blocking us from getting this information, information that we ordered through a motion that we adopted on March 31 of this year.

Mr. Stewart, you say that you are bound by law. “Open and Accountable Government” is not the law; it is a document produced by the PMO and PCO at the start of this government. It is not the law. Paragraph 8(2)(c) of the Privacy Act is the law, and it says:

for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information;

That's the section of the act that says where personal information may be disclosed.

We, as this committee, are a “body with jurisdiction to compel the production of information”. The motion we adopted on March 31 is an order to you to produce unredacted documents about “the transfer of Ebola and Henipah viruses to the Wuhan Institute of Virology” in China and to produce documents with respect to the termination of Dr. Qui and Dr. Cheng.

You are not in compliance with the law as adopted by the Parliament of Canada, entitled the Privacy Act, under paragraph 8(2)(c), which expressly gives us the authority to compel the production of this personal information.

Mr. Stewart, what do you say to the fact that you're not complying with that section of the act?

[Iain Stewart]

Mr. Chair, my understanding is that I am complying with the Privacy Act and its requirements. I am not an expert in this area. I have taken expert advice in that regard. For this reason, we have legal counsel with us here today.

What I would say is that I believe I am upholding my obligations under this act of Parliament. In that spirit, I'm trying to provide as much information as I am able to do while protecting the privacy of the individuals involved in the matter at hand.

Thank you for the question, sir.

[The Chair, Liberal, Geoff Regan]

Mr. Chong, that concludes your time.

We'll go on to Mr. Oliphant for six minutes.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you very much, Mr. Stewart. Thank you also for raising the issue of annex E of the “Open and Accountable Government” document, which I understand—

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

Mr. Chair—

[The Chair, Liberal, Geoff Regan]

Mr. Oliphant, your microphone is not down.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

That's it.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm sorry. I was eating my dinner.

Thank you for your public service and thank you for working with this committee to find a solution to protect the privacy of individuals, which we want to do as parliamentarians—this is an act that we passed—but also for providing us with information so that we can better understand the situation at hand. We recognize that this is a balancing act.

Thank you for raising the operating document, “Open and Accountable Government”. As Mr. Chong said, it may not have the force of law; however, it is an operating document that has been quite a rerouting from the previous Harper government, which actually did not want to do open and accountable government and sought various ways to thwart that. I speak of that very knowledgeably, as someone who was an opposition MP during those times. I understand that moment in history.

We are attempting to have an open and accountable government. At the same time, we have questions that we want answered.

You have raised the issue of being in compliance with the Privacy Act as public servants, which you are compelled to do. As you know, this committee is a committee of Parliament, and parliamentarians have certain rights and responsibilities as well. We're trying to square that off. I would like to know a little bit about the legal advice you got with respect to the redactions you put into the documents, which are quite real. We recognize that, and I find them frustrating myself, even as a member of Parliament from the government benches.

Could you explain? You're very welcome to turn to legal counsel from the Department of Justice as well if you're not feeling comfortable. I'm very happy to hear either of you outline the criteria you used as public servants who are obligated to follow that law as well.

[Iain Stewart]

I think, as I've mentioned, the Privacy Act, but other considerations also pertain, such as national security considerations.

One of the interesting things about going through the materials that have been provided to the committee is the consistency. I don't think any of the redactions occurring in these materials provided to you vary from the history of the documents provided. In fact, there's a consistency in what's been able to be provided and not provided. In fact, some of the materials speak to that, as I think you will have seen from reviewing the documents, so I would say that we're following the normal limits that pertain in this area. It's protecting third party individuals' privacy. It's protecting national security considerations and, as much discussed in our deliberations with my time before this committee, of course the Privacy Act and the privacy of the two individuals. I think you see that reflected through all the materials that were provided, sir.

Thank you for the question.

[Rob Oliphant, Liberal, Don Valley West, ON]

You mentioned in your remarks that there's also an ongoing police investigation by the RCMP. In doing this, did that enter into your decisions with respect to redactions? I know you mentioned we should ask some of these questions to the RCMP, but these documents came from the Public Health Agency of Canada, and I'm wondering about the role of a police investigation and whether it played a part.

[Iain Stewart]

We endeavoured to make sure that nothing that we were relating was connected to the RCMP investigation. We're not part of that process and we don't really have a line of sight into it. That's why, on the last occasion when I appeared, sir, I suggested it might be appropriate to raise that particular matter with the RCMP as opposed to us at the Public Health Agency, given our non-involvement in that activity.

[Rob Oliphant, Liberal, Don Valley West, ON]

By aspersion, Mr. Chong raised issues with respect to COVID-19 and the pandemic that we are undergoing right now and this set of incidences. My great concern is obviously misinformation. People and the public are often prey to political motives and misinformation. I just want to know whether you have any sense of concern with respect to drawing together possibly totally unrelated activities as though there was a conspiracy at hand. I did note that Mr. Chong mentioned “Chinese” a number of times when he was referring to the two individuals. I'm just wondering if that conspiracy set of circumstances was of concern to you.

[Iain Stewart]

You will have noted in your review of the materials that none of them pertained to coronavirus or to research related to coronavirus. Here it's two other viruses, Henipavirus and Ebola.

I'm sorry; my time is over.

[Rob Oliphant, Liberal, Don Valley West, ON]

Very good.

Thank you very much for that. I want to be very clear that this has nothing to do with coronavirus.

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Oliphant. It's Mr. Oliphant's time that's over, actually.

Mr. Bergeron, you have the floor for six minutes.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

I want to thank the witnesses for being here this evening.

Mr. Stewart, I want to thank you for providing the documents, which may not be as complete as we would have liked. We'll have the chance to talk about the documents this evening. I also want to thank you for the explanations that you've provided so far this evening, even though we may find them unsatisfactory.

In any case, on a personal level, I mainly want to know why, if the transfer of these viruses to Wuhan was done properly, the two scientists in question were terminated anyway. This evening, you clearly established—I think that this resolves part of the issue— that the transfer of these viruses to Wuhan isn't related to the termination of the scientists.

That said, we're still waiting for the reasons for these terminations. You seem to consider parliamentarians as mere individuals subject to the law under the Privacy Act, who can't be given information regarding citizens. However, as Mr. Chong pointed out, this act allows certain authorities to request and obtain documents and information.

I suspect that you would never have dared to turn over redacted documents or to refuse to respond to a court. However, in its own way, Parliament is a court. The Privacy Act, like all legislation in Canada, must be constitutional. It must comply with the provisions of the Canadian Constitution, which includes a specific provision called parliamentary privilege that often takes precedence over certain legal provisions. Based on this parliamentary privilege and the provisions of this act, we believe that we have the right to request these unredacted documents and answers to our questions.

Of course, parliamentarians aren't irresponsible. Parliamentarians understand that some personal information shouldn't be publicly disclosed, and that information shouldn't be publicly disclosed if it involves national security issues or criminal investigation matters. As a result, we gave you the option of sharing this information with us in camera, so that we don't disclose the information to the public.

Despite this option provided by parliamentarians, you chose not to respond to any of their requests. Of course, you provided a number of clarifications. However, you failed to provide unredacted documents and to answer the fundamental questions that parliamentarians have been asking since the beginning.

My next question is for Christian Roy.

What's your legal basis for believing that the Public Health Agency of Canada can refuse to respond to a request from parliamentarians in violation of the sections of the Privacy Act referred to by Mr. Chong and in violation of parliamentary privilege?