Canada-China Relations Committee on May 10th, 2021

[The Chair, Liberal, Geoff Regan]

Okay. I have Mr. Chong on debate. Then I have Mr. Genuis and Mr. Oliphant.

Go ahead, Mr. Chong.

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

Thank you, Mr. Chair.

I support the motion and I will be voting for it.

Thank you.

[The Chair, Liberal, Geoff Regan]

Thank you very much.

Mr. Genuis is next.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Chair.

I'd like to propose an amendment to the motion. The amended motion would read as follows:

That the unredacted documents from the Public Health Agency be provided to the Law Clerk and Parliamentary Counsel within 7 days, and should the documents not be provided, that the committee report the following to the House:

Your committee recommends that an Order of the House do issue for all information and documents, in the care, custody or control of the Public Health Agency of Canada and subsidiary organizations, respecting the transfer of Ebola and Henipah viruses to the Wuhan Institute of Virology in March 2019 and the subsequent revocation of security clearances for, and termination of the employment of, Dr. Xiangguo Qiu and Keding Cheng, provided that:

(a) these documents be deposited, in both official languages, with the Law Clerk and Parliamentary Counsel no later than two weeks following the House's concurrence in this recommendation;

(b) the Law Clerk and Parliamentary Counsel remove information which could reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation; and

(c) these documents be laid upon the Table by the Speaker, at the earliest opportunity, once vetted, and referred to your Committee

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Genuis.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Can I now speak to that?

[The Chair, Liberal, Geoff Regan]

The clerk—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Maybe we want to get text language clarified. Then I'd like to make some comments about it.

[The Chair, Liberal, Geoff Regan]

That was a lot for the clerk to write down.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Okay.

[The Chair, Liberal, Geoff Regan]

She may wish to confirm some of that wording.

[The Clerk]

Could you please repeat it, or perhaps send me a copy by email? That would be great as well.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I would be happy to do both.

Mr. Chair, I'm in your hands.

[The Chair, Liberal, Geoff Regan]

If you send it by email, then I'll let you carry on with debate.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Sure.

The purpose of my motion, Mr. Speaker and colleagues—

[The Chair, Liberal, Geoff Regan]

I'm the chair.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Pardon me, Mr. Chair.

I greatly respect and appreciate the effort put forward by Ms. Zann. I do note that adopting a motion without a timeline or a consequence would seem to me to be not as strong as the action the committee has already taken. I would suggest that we add a clear timeline underlining our expectation to receive the documents. If we don't receive the documents, we could have Mr. Stewart back here again, but that would seem to me at a certain point to be banging our heads against the wall. I think we need to report this matter to the House.

Although I completely disagree with Mr. Roy's interpretation of the law here, I got the impression from his comments that he might be more likely to advise compliance if the House ordered the production of the documents. My amendment says that if the documents are not provided, this matter will be referred to the House. Then it is up to the House to request the production of those documents, if they wish. That might carry more weight. I think many of the same issues apply, but that might carry more weight in the eyes of Mr. Roy and Mr. Stewart.

Rather than just repeating ourselves, we should position ourselves to respond if a repeat of the motion is not complied with, and hence, I think, the importance of the amendment.

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Genuis.

Go ahead, Mr. Oliphant.

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

Thank you.

I had intended to speak to the motion, but I am happy to speak to the amendment.

I support the idea that the motion isn't complete, but I think the amendment is presupposing something that we don't necessarily need to presuppose at this time. I don't think that's about consequences; I think that's about tying the committee's hands too early. We want to take time to do this well.

I won't be supporting the amendment as is, even though I'm not totally against it. What I think I would do if we were to defeat the amendment is amend the motion differently to very explicitly ask for the law clerk to review the documents, which I think was in Mr. Harris' mind, with an eye as to the appropriateness or validity of the redactions and to advise the committee on that.

The law clerk could have two sets of documents, one redacted and one unredacted. He's our lawyer, our legal adviser. He could look at them, review them and give a report to us, and we could then bring him back. At that point, if he advises us that he thinks the documents are inappropriately or overly redacted, we could move a motion similar to what Mr. Genuis would move. I think it's a motion I've heard before. It could make sense, but it presupposes an outcome from an event that hasn't taken place yet.

I don't know whether seven days is appropriate, but I don't see anything wrong with that. I can't really give notice for an amendment, but I'll signal to my colleagues on the committee that I think we should defeat the amendment, as it is premature. It changes the nature of this quite a bit and does something that I think the committee might want to do or might not want to do. Let's take our time and do this one step at a time.

I think that is in the spirit of where we were on the first motion. We now have a fuller set of documents and we brought back the agency. I'm a little nervous that they haven't had full time to explain things, because I think very important questions could be asked by members, but that's okay; we are where we are. Still, let's take our time.

I would advise again—and I'm sorry that I'm repeating myself a third time—that it would be important to defeat the amendment. However, let's very clearly ask the law clerk to do a task for us and advise us. Then we can entertain the kind of motion that Mr. Genuis has in mind.

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Oliphant.

Go ahead, Mr. Bergeron.

[Stéphane Bergeron, Bloc, Montarville, QC]

Mr. Chair, I have the unpleasant feeling that I've been robbed of my time. Nevertheless, I'll speak about the amendment moved by Mr. Genuis.

First, here's what I would have wanted to say, if I had been able to speak in the second round. For their own reasons, the people at the Public Health Agency of Canada chose not to publicly disclose the information requested. The committee gave them the option of disclosing this information to the law clerk and parliamentary counsel for the House of Commons, so that he could advise us on how to handle the information.

As I said earlier, parliamentarians aren't irresponsible. They won't seek to publicly disclose any personal information, or information that could affect national security, or information related to criminal investigations.

As a result, I believe that the initial plan was to ask the Public Health Agency of Canada to provide the unredacted documents through the law clerk and parliamentary counsel, who would advise us on how to proceed. That's how I would interpret the motion that the clerk referred to a few moments ago.

Surprisingly, the Public Health Agency of Canada didn't reach out to the committee members to share information that may not have been released to the public. It ultimately treated the parliamentary committee like any other individual subject to the law who requested information from the agency.

Mr. Chair, I'm afraid that we're clearly headed towards an escalation, and the Public Health Agency of Canada won't come out on top. That's what I wanted to say earlier. I thought that the agency must understand that it has a vested interest in working with the committee, with parliamentarians.

As I said, we're reasonable people. I don't believe that any of us want to misuse or inappropriately use the documents or information provided in a way that violates the provisions of the Privacy Act, jeopardizes national security or undermines criminal investigations. As a result, we would handle the information with the care that the circumstances require.

I can see that the Public Health Agency of Canada, on the advice of Mr. Roy, keeps on saying that the committee doesn't have the jurisdiction to obtain this information, these documents.

This goes against the advice provided again this evening by the law clerk and parliamentary counsel, who obviously referred to the constitutional provisions in this area and to the ruling of both the Supreme Court and Speaker Milliken. Nevertheless, Mr. Roy keeps on saying that the committee doesn't have this jurisdiction.

My concerns are becoming a reality. We're heading towards an escalation. I don't think that the Public Health Agency of Canada would benefit from this escalation.

That said, I agree with Mr. Genius that Ms. Zann's motion, which I think was very well intentioned, didn't go far enough. It was much less far-reaching than the earlier motion that we passed. Not only was there no timeline, but there were no consequences.

To pick up on Mr. Oliphant's points, I believe that Mr. Oliphant's proposal was already included in the motion that we passed, namely, that if the agency were to refuse to provide the documents, Mr. Stewart and his officials would be called by this committee. This is now taking place.

There's no point in repeating this for the umpteenth time. We've clearly reached a dead end. The Public Health Agency of Canada, on the advice of Mr. Roy, is deliberately refusing to provide the information requested by the committee, either through the law clerk and parliamentary counsel or through other means.

This pains me. I really wish that we could have found an acceptable compromise with the officials from the Public Health Agency of Canada and with Mr. Roy. As I've said repeatedly, we're reasonable people. There's no reason why parliamentarians would want to overstep their bounds and publicly release information in a way that violates the provisions of the Privacy Act, jeopardizes national security or undermines police investigations.

However, the Public Health Agency of Canada and Mr. Roy don't have the authority to determine whether they must produce these documents. This obligation is legal—it exists—and, in light of this deliberate and repeated refusal, I have no choice but to announce that I'll vote in favour of the amendment moved by Mr. Genuis.

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Bergeron.

Mr. Harris, you are next, please.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

I'm happy to join in this debate on the motion by Ms. Zann and the amendment by Mr. Genuis.

First of all, I suppose I'm a little disappointed that we didn't get to ask more questions about the nature of the documents and what other documents there were that were already made public—or whether these were made public already—so we would know a little bit more about the nature of what else is there, but I guess we're already into this particular debate now.

I will say this. I believe that Mr. Waugh either misrepresented or misapprehends—and I say this with great respect—the ruling of Speaker Milliken. I say this from some experience, because I was on the Afghanistan committee that requested these documents under parliamentary procedure. The request was turned down and the matter went to the House. There was a lengthy debate in the House, which I participated in. The ruling was very clear that the House of Commons and the committees were entitled to these documents. Whatever documents were available, the committees were entitled to them, and if the committees couldn't get them, the House would be able to make an order.

The only distinction was one that we've provided for here: Speaker Milliken said that he would delay making an order until the parties in the House had an opportunity to determine the measures they might wish to take to protect the public interest with respect to the release of the documents, because these were matters of international relations that involved potential breaches of the Geneva Convention and very serious matters of breaches of international law.

What happened was that a committee was formed—I was a part of the committee—to determine what the nature of the mechanisms would be. The committee, in the majority—and I wasn't a part of the majority—decided on a particular route to go and presented it in a report to the Speaker. The Parliament in majority—it was a minority government—supported a particular method of dealing with the documents, and the Speaker said that he would then implement it.

In our wisdom, or lack thereof—depending on what ultimate ruling might be made—we have provided for that in our consideration of the request for the documents. We knew we were entitled to the documents. We had advice from Mr. Dufresne as to what the rules are. We went through the process and got proper legal advice from the parliamentary counsel. That advice was consistent with the ruling of Speaker Milliken, which was a very seminal ruling, and in fact is probably the leading case on that subject in the Westminister parliamentary democracies.

We provided for that in paragraph (b) of our ruling, saying that the law clerk shall “discuss with the committee, in an in camera meeting, information contained” in the documents and look at the ones that “in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing investigation”, etc., so that the committee then may determine how to maintain the public interest in keeping the matters private.

That was the step that happened after the Speaker said that Parliament was entitled to these documents. We have taken that step.

If Mr. Waugh decided that he wanted to engage in a discussion with the committee as to what measures we proposed and whether he was satisfied with them, that would have been a different matter. What Mr. Waugh was essentially saying was, “No, you don't have those powers. You're not entitled to these documents.” That's not what the ruling said.

We really don't have much choice at this point but to find out whether or not the ruling of Speaker Milliken is going to continue to be upheld. This ruling in fact laid the groundwork for allowing committees to do their work in Parliament and follow the convention that.... This convention wasn't invented by the House of the Parliament of Canada. It's been used in other legislatures and parliaments elsewhere in the world to ensure that Parliament has its rights to access these documents but that Parliament will undertake to find ways of ensuring the public interest is protected.

That's what's before us now, and I think Ms. Zann's motion was quite in order. I haven't seen the written amendment, so before we would even vote on it or choose the wording or decide whether to amend it, I think we should all have a copy of it so we can look at it ourselves.

I think it is incumbent upon us not to let this matter drop and say, “Thank you very much, Mr. Roy; we'll accept your argument”, because we don't agree with that argument. Unless Mr. Dufresne tells us that we're going down the wrong road here, I think we must proceed to obtain the opinion of the Speaker of the House for starters, and the House itself, to be able to determine what documents we are going to receive.

It is a fundamental constitutional principle that has been clearly stated by Mr. Dufresne, and if the government or the civil servants in this case—I don't know who's making the decision or whether they're making the decision themselves or on instructions from someone else—decide that this is going to be an impasse, then we have no other choice, no other course of action open to us, except to proceed. There may be further discussions about the best way of protecting the public interest, but that's a discussion that's taken on the basis that we are entitled, as members of Parliament, under the parliamentary privilege rules, to have access to these documents.

If we could have a copy of the documents and have a further opportunity to discuss whether this is the exact.... As Mr. Oliphant says, there may be another route to go, other than the specifics of this motion, but I think the general thrust of the amendment should be followed, and we should move further than we've gone so far.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Harris.

Before I go to Ms. Zann, Madam Clerk, you've indicated there may be an issue you wanted to mention in relation to the motion to amend.

[The Clerk]

Yes. Thank you, Chair.

I received the motion. Thank you very much. It's only in English, so I cannot share it with the members right away, but I did send a copy to the interpreters. I'm wondering if maybe Mr. Genuis can repeat, and we can have it in both official languages through interpretation.

I do have a question. Is the amendment to recommend that the House order the documents, essentially? Mr. Genuis, there is another option, and that would be raising a question of privilege and then reporting that to the House. A question of privilege follows a very specific procedure in committee, and I do have a draft report that is ready in both official languages if members wish to have a copy of it. I try to be ready for everything. It's really up to the members whether they want to recommend that the House adopt an order for the production of documents or whether they want to raise a question of privilege and report it to the House that way.