Canada-China Relations Committee on May 10th, 2021

[The Chair, Liberal, Geoff Regan]

Yes, please.

[The Clerk]

I'll read the amendment:

That the motion be amended by adding the words “within 7 days” after the words “Parliamentary Counsel” and the words “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 next earliest opportunity, once vetted, and referred to your Committee” after the words “ascertain the fairness of them”.

[The Chair, Liberal, Geoff Regan]

Thank you, Madam Clerk.

As I see it, Ms. Zann proposed her original motion. Her wording would be on the record of the committee. She's now giving us the wording to ensure it's correct. However, what's before us is a motion to amend. Once that motion to amend is dealt with, we're back to the original motion, which itself can of course be further amended. If some of this wording is not acceptable, that would be one way of dealing with the matter.

I still have Ms. Zann's hand up. I have Mr. Oliphant and Mr. Harris. I don't know if any are on the point of order.

Go ahead, Mr. Oliphant, on the point of order.

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

No, it's on the amendment.

[The Chair, Liberal, Geoff Regan]

Okay.

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

Mr. Chair, I have a brief point of order.

I understand what you've ruled in respect to Ms. Zann's point. I just wonder if the additional text that had been missed could be reread so we all can make note of it, and then we can proceed.

[The Chair, Liberal, Geoff Regan]

Go ahead, Madam Clerk.

[The Clerk]

The additional text would be “to review and ascertain the fairness of them”, speaking of the redactions that were made.

[The Chair, Liberal, Geoff Regan]

It's “to review and ascertain”. Thank you very much.

Ms. Zann, your hand is still up. Do you wish to speak on debate?

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

Yes. I just want to reassure the committee that if you play back the tape, you will hear me say these words at the very beginning, when I first suggested this motion.

Thank you.

[The Chair, Liberal, Geoff Regan]

Thank you.

I have Mr. Oliphant and then Mr. Harris.

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

Okay, I'm getting somewhere here. I think it was helpful for Mr. Genuis to explain his amendment a bit more fully. He may be surprised, but I don't hate it. I think there's something helpful in it. However, I still think it's premature.

Because we have Mr. Stewart here today, I'd like to engage him a bit on this. We have heard from his lawyer at the Department of Justice, but we haven't been able to engage with the Public Health Agency to see if we can come to some agreement with it about what we could promise to do or undertake to get the information we want.

I am going to be very clear, and this is going to be one of those awful Rob Oliphant moments.

Even though we have many lawyers in the room, lawyers are not always right. Department of Justice lawyers are particularly, in my mind, not always right. They were beaten at the Supreme Court of Canada on the genetic discrimination law, which they fought all the way through, so I have learned to now question our Department of Justice lawyers. This has happened more than once. Department of Justice lawyers advised CSIS with respect to retention of data and information. When I chaired the public safety committee, I was horrified that for 10 years the Department of Justice had advised CSIS with respect to retaining information.

I say that to caution the Public Health Agency of Canada to get a second opinion. It's full of doctors. You need a second opinion, because I think the justice department is not giving you the best advice. I know that is very difficult, and I am on the government side, but I am concerned.

This follows up on what Mr. Bergeron said. We value the public service of the Public Health Agency of Canada. We want to work with you in a way that gets us the information we want and assures you that we will maintain the integrity of that information. Maybe we could do it the way Ms. Zann has suggested with respect to having our lawyer review it first. There may be another option you can come up with that gets us out of this situation without it being as big a deal as it's becoming.

If it gets there, I will support Mr. Genuis in taking it to the House and affirming that. I will absolutely do that. However, I think there has to be some give-and-take in this discussion.

You're here and you have counsel. However, your counsel has drawn a line in the sand that I disagree with. I don't think it stands up to our understanding of not only our constitutional right but also of our responsibility as parliamentarians. We have a responsibility, because ultimately there's a supremacy of Parliament over the other branches of government. Ultimately, that's it.

I'm wondering how we can get ourselves out of this kind of a motion about this and that and find a way to say, “What would it take?” If we can't, I get it. If there's nothing we can do to assuage your concerns about privacy and your integrity as the public service, given the laws that you fall under, I get it. Then we'll go with Mr. Genuis' route and go to the House to see where that leads us.

I'm just trying to find a more constructive way to get us into this and get us out of it so that we have the information we need to fulfill our responsibility and you have the assurance that you aren't breaking laws and that your integrity is intact. We don't want to do otherwise. You're an important agency under a huge stress at this time.

Also, let's be very clear: As parliamentarians, we know that [Technical difficulty—Editor], and I've worked with the Public Health Agency in the past. You don't know this, but I got grants from them. That was in my previous life at the Asthma Society of Canada.

We know you're busy all the time, and you now have a pandemic. You are hugely busy. We don't want to cause more problems. We want to find a solution and do our work. Sometimes with parliamentary procedure, following the rules takes us far down into these motions when we could just stop and try to work this out.

To repeat, if there's nothing we can do to assuage your worry, we'll have to go down the route of reporting to the House, and I will support Mr. Genuis' amendment to the motion.

I don't know how we do this in a procedural way, Mr. Chair, but can we find some way for a non-committee member to talk during a debate on a motion that was moved when we were still questioning the witnesses? That's the awkward part. I think that with unanimous consent we could have Mr. Stewart respond, even though he's not a member of the committee, but that's up to you.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Oliphant.

I have Mr. Harris next, and then I can ask if members wish to hear Mr. Stewart's response, unless Mr. Harris wishes me to do that first.

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

No. I appreciate Mr. Oliphant's comments and I understand that there are various ways to go.

We're obviously looking to find out the truth of the matter so that we can determine whether we can do our duty and fulfill our obligation, as Mr. Oliphant pointed out, to make a determination of whether there's a matter of sufficient public interest for this committee to go further.

We're talking about the amendment. With regard to what Mr. Stewart may think of this turn of events, he may think nothing of it and just rely on the legal advice he's been given. I agree with Ms. Zann, by the way, as to what her original motion was, but the amendment that Mr. Genuis has made suggests a somewhat different procedure than what our committee originally decided on in terms of how to handle this matter. As far as giving the documents to the law clerk goes, I think it's the same.

Then there's this significant difference between what Mr. Genuis' amendment proposes and what's in part (b) of our motion.

In our original motion, it says that the law clerk will get the unredacted documents. Then the law clerk and parliamentary council should:

discuss with the committee, in an in camera meeting, information contained therein, which in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other the existence of an investigation, so that the committee may determine which information is placed before committee

In other words, acting on the advice of the parliamentary law clerk, with the knowledge of what's in the documents and what kind of investigation it is, etc., the decision of what's to be made public and what's not is in the hands of the committee.

In the case of Mr. Genuis' amendment, the documents would be deposited with the law clerk no later than two weeks, etc. The law clerk and the parliamentary council shall remove information that could “reasonably be expected to compromise national security, or reveal details of an ongoing criminal investigation other than the existence of...”, etc. Then these documents are to be laid on the table of the House by the Speaker at the next opportunity after they're vetted, I guess, and referred to the committee.

That puts the law clerk in the position of being a judge of what is.... It's his opinion. He decides and take the documents away. That takes away the decision of the committee as to what is relevant or what is being done and puts it in the hands of the clerk.

That may be more acceptable to the committee, and it's up to the committee to accept this approach. I prefer, in fact, the original wording of our committee as a way to go, which is that we have someone who receives the documents initially. They are kept in secret and in private. We receive advice on how to handle them and we govern ourselves accordingly. That's fine with me. That's the proper way to go.

The other procedure is a little bit more bureaucratic in one sense: It turns the law clerk into a judge, which he may not wish to be, in fact. That's a different matter.

I think that's worth knowing. It's the reason that I would ask Mr. Genuis to explain why he chose that method instead of asking the House of Commons to determine that our procedure in fact be followed. That's a point that I wanted to make.

I want to go back to what Mr. Oliphant was saying. I'm not sure we're in a position to negotiate in public with Mr. Stewart as to what would be acceptable to him. It doesn't seem to me that we have all the tools at our disposal to be able to do that tonight at this meeting. I think it would be worth hearing whether or not there has been some decision made in the bowels of the Public Health Agency or the government that this matter is black and white as far as they are concerned. Are they going to go to the wall on this issue, or is there potential for further discussion with the Public Health Agency of Canada as to how to get to the bottom of this?

In essence, we don't know what's going on. We shouldn't be going on a fishing expedition, but we should have some better knowledge of what is in these other documents and what is going on that is being kept from us. With that, we can determine whether it's not a matter that we have any interest in or whether it's a serious matter that deserves further investigation, one that the committee has an obligation to look further into by going the distance and making sure that all of those documents are made available to us.

In the absence of any of that, we really don't have much choice but to proceed further.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Harris.

Mr. Genuis is next.

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

Thank you, Mr. Chair.

First, to respond to Mr. Oliphant's comments, I think it's important to underline that Mr. Stewart and the Public Health Agency retain many off-ramps after this motion with the amendment passes, if it passes.

This motion calls for the production of documents within seven days. Of course, the easiest off-ramp would be for the Public Health Agency to then provide the documents; then there's no report to the House.

If they wish to pursue a compromise proposal, they could certainly bring that to members, and through members to the House; and the House could decide not to proceed with a concurrence motion, because a request by the House for documents only takes effect if it is concurred in by the House, which is far from an automatic process.

There are other steps available in the next seven days and prior to a prospective concurrence. Seven days from now is a break week. Any concurrence couldn't possibly happen until the following week.

I would suggest that this motion puts in place a series of initial steps that can be taken, but it doesn't oblige the taking of those steps and it leaves the door open for compromise.

My suggestion would be very much, I think, in the spirit of Mr. Oliphant's comments: Let's adopt the amendment and the motion and let's encourage PHAC to take those off-ramps, but note that we have a path laid out if they choose not to.

Mr. Harris, rather than give you my motivations for wording it the way I did, let me just say I'm persuaded by your arguments and would support an amendment along the lines that you proposed.

[The Chair, Liberal, Geoff Regan]

Thank you, Mr. Genuis.

Ms. Zann is next.

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

Thank you, and thank you for that explanation.

I want to say that I agree with Mr. Harris. I definitely thought that he had a very thoughtful response.

[The Chair, Liberal, Geoff Regan]

Thank you, Ms. Zann.

Mr. Williamson is next

[John Williamson, Conservative, New Brunswick Southwest, NB]

Thank you, Mr. Chair.

I just emailed Jack suggesting that he propose a subamendment, so Jack, I'll yield my time to you, because I think you've convinced your colleagues here that your concern is valid and that we should make that change to the amendment to the motion that's on the floor.

[The Chair, Liberal, Geoff Regan]

Thank you very much, Mr. Williamson.

Go ahead, Mr. Harris.

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

I would wish to propose that subamendment, and perhaps I could do this with a little assistance from the clerk.

It would be that after the wording that says, “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”, that paragraph b) of Mr. Genuis's amendment be replaced with the paragraph b) that is in our original motion. That reads as follows:

b) the Law Clerk and Parliamentary Counsel discuss with

—and I think we should probably have the name of the committee, I guess, the Canada-China committee—

the committee, in an in camera meeting, information contained therein, which in his opinion, might reasonably be expected to compromise national security or reveal details of an ongoing criminal investigation, other than the existence of an investigation, so that the committee may determine which information is to be placed before the committee in public;

[The Chair, Liberal, Geoff Regan]

I think you mean the Special Committee on Canada-China Relations, of course.

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

Yes, it's the Special Committee on Canada-China Relations. I have asked the clerk to help us with the proper wording.

[The Chair, Liberal, Geoff Regan]

Madam Clerk, are you able to assist Mr. Harris?