Evidence of meeting #84 for Government Operations and Estimates in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A recording is available from Parliament.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Do you think it's problematic that companies can do so, but not all Canadians? I'm trying to get a better understanding of this.
Professor, Civil Law Section, University of Ottawa, As an Individual
That isn't what I said.
I said that the fact that the government wants to prevent companies from exercising this legitimate right before the competent courts is problematic because it is a right generally recognized in our legal system. When personal rights are adversely affected, it is possible to go to court to pursue the breach. It's very important. It is the rule of law and is one of the things that makes what we live in a democracy.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
I fully agree with you.
I simply want to understand better. So companies can address the trade dispute tribunal.
Professor, Civil Law Section, University of Ottawa, As an Individual
The Canadian International Trade Tribunal, yes.
Conservative
Professor, Civil Law Section, University of Ottawa, As an Individual
Meaning, there are two things.
First of all, the tribunal has a statutory jurisdiction, including contracts under the Agreement on Internal Trade, NAFTA and other agreements. It is quite complex. My colleague here would be in a better position to describe it. That's one thing. The tribunal must be competent at the outset, according to the legislation.
There is a problem when the government goes beyond that and says that the tribunal isn't competent because the government itself has invoked the national security exception.
Conservative
Professor, Civil Law Section, University of Ottawa, As an Individual
Any time, apparently.
Conservative
Professor, Civil Law Section, University of Ottawa, As an Individual
Even before there is a dispute.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Can it determine which companies it thinks will not have the right to contest?
Professor, Civil Law Section, University of Ottawa, As an Individual
I understand that an exception has been invoked generally for bid categories. Therefore, any call for tenders that falls within this category, according to the government, would not be subject to review by the tribunal.
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
The other two witnesses and you mentioned that, still, in some cases the exception is used legitimately and in good faith.
Professor, Civil Law Section, University of Ottawa, As an Individual
Certainly, there will be cases where—
Conservative
Alupa Clarke Conservative Beauport—Limoilou, QC
Do you think that it would be appropriate in these cases to establish an internal mechanism, perhaps a parliamentary mechanism? Perhaps this committee, which is in charge of government operations, could be given confidential information on the use of the exception, and then decide collegially whether it is appropriate.
What do you think of the idea of parliamentary mechanisms?
Professor, Civil Law Section, University of Ottawa, As an Individual
In terms of a solution or way of dealing with this issue, I think the Canadian International Trade Tribunal Act does not at all cover the national security exception.
If a mechanism is needed to address the issue, the act may need to be amended and set out that the government may, under certain conditions, invoke a national security exception by providing certain information on the scope of the exception invoked and its justifications. Then, the tribunal would decide whether or not the exception was justified. When you get right down to it, the process isn't very different.
Conservative
Conservative
Liberal
The Vice-Chair Liberal Yasmin Ratansi
Mr. Weir, you have seven minutes, please.
My clock doesn't go fast.
Erin Weir NDP Regina—Lewvan, SK
Thank you.
One aspect of the national security exception is that there's no definition of the term “national security.” I wonder if that's a problem and if other countries have a definition of national security that we might look to.
Professor, Civil Law Section, University of Ottawa, As an Individual
If I may, there is no definition. It is a concept that we find in other trade agreements, and my understanding is that there have been some arbitral decisions internationally about this concept. For example, in Argentina, in the early 2000s, there was a very severe economic crisis and some tribunals accepted that this could be a national security concern. So, it's not military; it's not terrorism or anything like that. It could be economic. We don't really know. In fact, it could help if we had a definition in legislation of what it means, what exactly we have in mind when we speak about national security.
Fellow, Centre for Security, Intelligence and Defence Studies, Norman Paterson School of International Affairs, As an Individual
I would argue against having a definition in print. There is a lot of literature around in Canada now on the general idea of security. There is a policy in place but it's about to change. It is interpreted in a broad way. It talks of hurricanes and floods at one end, all the way to a military attack on the country at the other end. Agreed, there is a lot of space in there for interpretation. It depends on the issue of the day, I think, but in terms of interpreting it, it's squarely in the hands of the government.