Finance Committee on June 4th, 2015

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you, Chair.

The use of special advocates is currently limited to proceedings under the Immigration and Refugee Protection Act, such as judicial proceedings related to security certificates. The rights and freedoms affected by immigration proceedings require greater protections than those affected by passport decisions. Judges always retain the discretion to appoint an amicus curiae to assist in proceedings, including those involving sensitive information, in order to protect the interests of the person. Therefore, this amendment should not be supported.

[Murray Rankin, NDP, Victoria, BC]

I'd like to thank Mr. Hyer for this proposal. I think it's a good one.

As Mr. Saxton said, special advocates are currently only available under IRPA, the Immigration and Refugee Protection Act. I served in that capacity, appointed by the current government.

I think the second point made by Mr. Saxton was that this could be done at the discretion of a judge—we could have an amicus curiae appointed—which is also very true. But I think having the certainty of a special advocate in attendance, as required by law, as we do under the immigration law, would be a very wise thing to do in this circumstance.

I again commend Mr. Hyer for raising this.

[The Chair, Conservative, James Rajotte]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

We'll go to PV-10, which is identical to PV-9.

Mr. Hyer, please.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

Again, this amendment deletes the clauses within the bill that allow for secret evidence and for decisions to be made based on evidence that neither the opponent nor the counsel has even seen.

It also requires the opponent to be actually informed of the minister's case, and not just “reasonably informed”.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Hyer.

Mr. Saxton.

[Andrew Saxton, Conservative, North Vancouver, BC]

Thank you, Mr. Chair.

Protecting sensitive information from disclosure is critical in national security cases, for the same reasons I've already stated.

[The Chair, Conservative, James Rajotte]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

I understand that PV-11 and PV-12 are identical as well.

Mr. Hyer, on PV-11.

[Bruce Hyer, Green, Thunder Bay—Superior North, ON]

This amendment appoints a special advocate to be present whenever an appellant and their counsel cannot be present due to issues of national security. If we have enough information to revoke somebody's passport, we should have enough to look into charges of laying a recognizance without conditions. A special advocate would at least make sure that the person accused who can't defend themselves has someone looking out for them.

[The Chair, Conservative, James Rajotte]

Thank you, Mr. Hyer.

On this, Mr. Saxton....

[Andrew Saxton, Conservative, North Vancouver, BC]

I'll reiterate what I said previously with regard to this issue.

[The Chair, Conservative, James Rajotte]

Thank you.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

And I'll reiterate what I said. It's a very wise amendment.

It seems to me the government is accepting these principles in their IRPA. Why they wouldn't accept them here is beyond me.

[The Chair, Conservative, James Rajotte]

Thank you.

(Amendment negatived [See Minutes of Proceedings])

(Clause 42 agreed to)

(Clause 43 agreed to)

Thank you to our officials from Public Safety. We'll now move to—

[Andrew Saxton, Conservative, North Vancouver, BC]

Mr. Chair, can we take a break?

[The Chair, Conservative, James Rajotte]

You want to take a break? Okay.

We'll suspend for 10 minutes and we'll take a food break. Thank you.

[The Chair, Conservative, James Rajotte]

I call this meeting back to order.

Colleagues, we left off at part 3, division 3, dealing with intellectual property. We want to welcome our officials from Industry Canada for this division.

(On clauses 44 to 53)

I do not have any amendments for clauses 44 to 53. Can I group those clauses together?

[Raymond Côté, NDP, Beauport—Limoilou, QC]

That's no problem.

[The Chair, Conservative, James Rajotte]

Does someone want to speak to clauses 44 to 53?

Monsieur Côté.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Thank you, Mr. Chair.

What I'm about to say probably won't come as much of a surprise since I've complained about this in relation to previous omnibus budget bills. Unfortunately, these kinds of legislative changes are buried in a massive bill, the study of which falls on the shoulders of the Standing Committee on Finance. I am even more outraged by the fact that when I sat on the Standing Committee of Industry, Science and Technology throughout all of 2014, we had to engage in a bogus study of parts of an omnibus budget bill that made amendments to the same pieces of legislation. We heard from witnesses with major concerns, including the Law Society of Upper Canada.

Mr. Chair, it's quite shocking that, this morning, we are hearing from just a single witness who is directly affected by the amendment. We have, unfortunately, not heard any opposing points of view. The witness did, however, make a very interesting point, and I'm going to ask our public officials a question about it.

This morning, a cornerstone of solicitor-client privilege between patent or trademark agents and their clients was tied to what the witness referred to as a large number of decisions where that privilege would not apply. I was a bit taken aback. I assumed that the judges had made an informed decision. That was something I asked the witness about this morning. His view was that the evidence may not have been sufficient for solicitor-client privilege to apply to the communications between the agents and their clients.

I find it very disturbing that amendments are being made without the benefit of other opinions or an analysis of the consequences. It's akin to a vote of non-confidence in the bench. Judges are being contradicted for the wrong reasons. Basically, I'd like to know what led the government to believe that the judges were wrong or that solicitor-client privilege had not been granted for the right reasons. Could you please explain that to me?

[Denis Martel, Director, Patent Policy Directorate, Department of Industry]

Thank you for your question.

I don't think the judges were wrong. They interpreted the act as it was written and, in one of the significant cases, found that a patent agent who was also a lawyer and performed both functions did not enjoy solicitor-client privilege as a patent agent. The privilege applied to his law practice but not to his role as a patent agent. And, as a result, the confidential communications were disclosed in court. That was in one case.

In another case involving a patent agent in a foreign country, the U.K., it was the same situation. In the United Kingdom, patent agents enjoy solicitor-client privilege. The patent agent believed that he was covered by solicitor-client privilege, but the Canadian court determined that, although it was in another country, Canadian laws applied and therefore the evidence should be disclosed. These legal cases set precedents that put patent agents and Canadian companies at a competitive disadvantage as compared with other jurisdictions where solicitor-client privilege was available.

Given the increasing number of legal disputes internationally, Canada was becoming a weak link, so to speak, in terms of the disclosure of evidence and the holding of legal proceedings in other jurisdictions. It's important for Canada to be aligned with other countries by granting the privilege, as the U.K., New Zealand and Australia do. In the U.S., the privilege is granted if the country in question does the same. Canadian companies or clients aren't currently covered in the U.S.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Very well.

We aren't necessarily against the principle of extending the privilege, but the relevant committee should have had the opportunity to participate in a genuine debate on the matter.

My other concern has to do with the consultations that were conducted prior. The committee received a letter from an organization by the name of The Advocates' Society, according to whom, not all potential stakeholders were asked to participate in the consultation process, mainly law societies.

I'd like you to explain how those much talked-about consultations were handled by Industry Canada.

[Denis Martel]

We consulted with the people at CIPO, which represents intellectual property agents, the Canadian Bar Association and the Federation of Law Societies of Canada, which represents all the provincial law societies. So we sought their input, which was ultimately the same position they had advanced during the 2004 consultations.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

Are there plans to make any other amendments to the act or other related acts? In fact, the Standing Committee on Finance may have to study them if, heaven forbid, we end up with another majority Conservative government.

[Denis Martel]

The government has made numerous changes aimed at improving and strengthening Canada's intellectual property policy framework. Other amendments are possible. The Canadian Intellectual Property Office recently conducted consultations on a code of ethics for agents. The work will continue but may not necessarily give rise to any legislative changes. It's something that may be considered at some point down the road.

[Raymond Côté, NDP, Beauport—Limoilou, QC]

I would just like to end by saying that the amendments being made to these three significant pieces of legislation should really have been subject to a comprehensive decision-making process involving the Standing Committee on Industry, Science and Technology. I cannot stress that enough. This is a breakdown or, rather, a deliberate failure to follow the basic legislative process, as the Canadian Bar Association pointed out in describing omnibus bills.

That is why we are not going to support these provisions.