Health Committee on March 19th, 2018

[The Chair, Liberal, Bill Casey]

We will bring our meeting to order. This is meeting number 95 of the Standing Committee on Health. We are studying Bill S-5, an act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other acts.

I have previous notification of a point of order from Ms. Finley.

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Thank you, Mr. Chair.

Mr. Chair, the intention of my point of order is to put on the record my concern about rushing Bill S-5 through Parliament, and more specifically through this committee, without proper study and without the much-needed due diligence. It expands upon the concerns I raised at the February 28 meeting of this health committee.

I'm very much afraid of the consequences of plain packaging and how it may increase the use of contraband tobacco, both because of increased cost to the consumer as well as decreasing consumer knowledge of the brand of tobacco product. I doubt that plain packaging will have much of an impact on smoking rates, as we've seen recently in Australia. It may actually lead to an increase in the total consumption of cigarettes.

In Australia, as you may have noted in a recent March 12 article in The Australian, the University of New South Wales questions the effectiveness of measures to reduce smoking that have been put in place in that country, and that was without even considering the black market contraband purchases that are now widely available since plain packaging was introduced there.

Even a small increase in contraband means an increase in funding for organized crime and for terrorist organizations. We heard from Dr. Eyolfson that he considered me ridiculous for confirming the threats to Canada from the sale of contraband tobacco, but, Mr. Chair, these threats have been documented by such groups as the Library of Congress Federal Research Division; the congressional 9-11 Commission; the Cato Institute; the Macdonald-Laurier Institute; the United States Government Accountability Office; the International Consortium of Investigative Journalists; the Royal Canadian Mounted Police-led Combined Forces Special Enforcement Unit contraband tobacco initiative; the Ontario Provincial Police contraband tobacco enforcement plan; the federal Financial Transactions and Reports Analysis Centre, which you may more commonly known as FINTRAC; U.S. Immigration and Customs Enforcement, which specifically cited Canadian intelligence officials who helped prosecute international jihadi terrorists who were using contraband tobacco to fund their activities; Interpol; the OECD; the Center for International Maritime Security; the Organization for Security and Co-operation in Europe; and the Center for the Analysis of Terrorism. It's quite an impressive list.

None of these organizations that have either researched or directly dealt with contraband and its negative effects in Canada were called before this committee to discuss the potentially negative consequences of this bill. The groups that sell and profit from contraband tobacco are, or have links to, international terrorist organizations and organized crime organizations. This committee did not hear from law enforcement officials, who will have to deal with the mess that this bill could create if we do not do our due diligence.

Mr. Chair, we need to learn from our errors and from the errors of others. In the 1990s, both Conservative and Liberal governments learned about the risks of overtaxing tobacco products. An explosion in contraband occurred, so they lowered taxes on tobacco, and, not coincidentally, that reduced illegal contraband sales.

Unfortunately, recently both the Ontario Liberals and the federal Liberals have increased their taxes on tobacco in their latest budgets. I'm not against increasing luxury taxes on unhealthy products, but I am against it when it drives up sales of illegal contraband that fund all sorts of nasty activities.

Weeks after their forgettable budget, the Liberals seem to be set on giving another potential gift to contraband in the form of plain packaging. Bill S-5 very much feels like an omnibus bill, because it changes very different aspects of the tobacco industry, including plain packaging for tobacco products and regulating the vaping industry, among other measures.

Thankfully, Bill S-5 will not ban nicotine and vaping products as they have done in Australia. I say “thankfully” because many smokers want to quit or at least practise their addiction in a much safer way, but I do have concerns that Bill S-5 could be too strict on the vaping industry as well.

Mr. Chair, the last meeting was a great source of frustration. We had not heard from very many witnesses who could have educated the committee on many different aspects of this bill. Instead, we plowed ahead with clause-by-clause consideration on amendments that we got barely 24 hours before the meeting—some of those amendments being received the day of, in fact, after our arrival in the room for the meeting.

We did not have sufficient time to properly understand the amendments nor what their impacts could be, which is why I did not vote on any of those amendments. I didn't feel that I had been adequately informed about them or that I had an opportunity to see what the consequences, good and bad, could be. I want to be diligent.

Procedurally, when a bill such as Bill S-5 comes before Parliament, it's important that we as legislators not rush the process. It's imperative that we proceed responsibly.

Our responsibilities as members of Parliament are described on pages 404-405 of the fourth edition of Bourinot's Parliamentary Procedure and Practice in the Dominion of Canada, published in 1916, and I quote:

All the checks and guards which the wisdom of English parliamentarians has imposed in the course of centuries upon public expenditures now exist in their full force in the parliament of the dominion. ...when burthens are to be imposed on the people, every opportunity must be given for free and frequent discussion, so that parliament may not, by sudden and hasty votes, incur any expenses, or be induced to approve of measures, which may entail heavy and lasting burthens upon the country.

In a ruling from Speaker Fraser on April 14, 1987, regarding the government's use of majority to limit debate on important bills, Speaker Fraser had this to say:

It is essential to our democratic system that controversial issues should be debated at reasonable length so that every reasonable opportunity shall be available to hear the arguments pro and con and that reasonable delaying tactics should be permissible to enable opponents of a measure to enlist public support for their point of view. Sooner or later every issue must be decided and the decision will be taken by a majority.

I believe that we've just scratched the surface on the first part of Speaker Fraser's comments with regard to Bill S-5, and we are nowhere near the “sooner or later” part of this.

Occasionally the House and its committees take the necessary time to consider complex legislation. The Naval Aid bill of 1913 was such a case with regard to granting a $35 million donation to Great Britain for its navy. At the committee of the whole they kept the House going, virtually in continuous session, for as long as two weeks. That was the first time that closure had been used in our chamber. We had the famous and lengthy pipeline debate in 1956, the Energy Security Act of 1982, and we had a very lengthy debate on GST. Mr. Chair, quite frankly, the ability to have such debates is one of the last great tools of a democracy.

Beauchesne's sixth edition Parliamentary Rules and Forms, chapter 3, outlines some elements of the Constitution Act and our system of government that I believe are very relevant to this point:

More tentative are such traditional features as respect for the rights of the minority, which precludes a Government from using to excess the extensive powers that it has to limit debate or to proceed in what the public and the Opposition might interpret as unorthodox ways.

Beauchesne further describes the fundamental principles of our democracy as, and I quote:

To protect a minority and restrain the improvidence or tyranny of the majority; to secure the transaction of public business in an orderly manner; to enable every Member to express opinions within limits necessary to preserve decorum and prevent an unnecessary waste of time; to give abundant opportunity for the consideration of every measure, and to prevent any legislative action being taken upon sudden impulse.

Mr. Chair, I'm citing these points not to have endless debate but rather to gather as much information pertinent to Bill S-5 as is possible and to hear from a wider range of witnesses to provide us with this information. This committee has set everything aside to try to rush this legislation through here and through Parliament without what I believe is the necessary due diligence.

I urge this committee, before it's too late, to listen to more witnesses and seriously consider the consequences of enacting Bill S-5 without due diligence. I ask that the chair reopen the calendar to hear a wider range of witnesses and that the committee commit to getting this Bill S-5 study done right by reopening the study and delaying a committee stage referral to the House of Commons.

[The Chair, Liberal, Bill Casey]

Is that a motion? Do you have a...?

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

I just ask the chair.

[The Chair, Liberal, Bill Casey]

You asked the chair; all right.

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

It's a point of order. I believe that's the correct procedure.

[The Chair, Liberal, Bill Casey]

I was expecting a motion in the end.

I have to declare that we're going to continue on with our process. It was agreed by the committee to have a certain number of meetings and a certain number of witnesses, and we're continuing on with that plan.

Mr. Lobb, you have a point.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Thank you, Mr. Chair. If the committee will just indulge me for a minute, I would like to read a motion into the record today. Thank you very much.

I submitted the motion on Wednesday, March 14, so it is in order. I move:

That, pursuant to Standing Order 108(2), the Committee undertake a study of Health Canada's recent decision to make Cystagon unavailable and of the impact of this policy change on the approximately 75 children and young adults in Canada suffering from the life-threatening effects of cystinosis; that the Minister of Health, government officials, and Canadians affected by cystinosis be invited to appear no later than Wednesday, March 28, 2018; that the Committee report its findings to the House; and that, pursuant to Standing Order 109, the Committee request that the Government table a comprehensive response to the report.

Committee members will all have access to the motion if they want to deal with it at this time. What I would like to say, Mr. Chair, if I can have another moment, is that a resident in the riding I represent is here today. Erin Little, from just outside of Port Elgin, Ontario, is in Ottawa this week for a conference dealing with rare disorders and rare illnesses. She was able to get her flight changed today to be able to sit at the committee and to hear this motion read into the record. I appreciate the committee's leniency to allow me to do that. I know it means a lot to her family and those who are supporting her.

Hopefully the committee will consider this motion, because in my experience there are a few things that are urgent in some ways, or in some cases even life-threatening, and certainly this motion would be considered both because of the urgency behind the medications that are available.

I would also like to say that I know the minister's staff is here today and had an opportunity to speak with Ms. Little briefly, and I appreciate that as well. It was very nice of them to do that. Hopefully that will continue on with the dialogue. If the committee would like to deal with this motion now, that would be great. I have no intentions of delaying the work of the committee here today; I just appreciate the opportunity to read the motion.

Thank you.

[The Chair, Liberal, Bill Casey]

Do we have unanimous consent to discuss this motion now?

Go ahead, Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

I have a point of order. It's certainly Mr. Lobb's prerogative to do so, but I'm not sure if he's just reading the motion into the record. I think he's given us 48 hours' notice. I can't tell if he's reading it into the record and we'll discuss it at some other time, or if he's actually moving the motion right now to debate the motion and have a vote on it. It's not clear.

[The Chair, Liberal, Bill Casey]

I'm not clear either. I do appreciate the time and the way you've presented this very much. Many things we deal with at this committee are urgent and important, and even emergent. We often discuss whether something is urgent or an emergency or a health care issue or whatever, but we do understand and appreciate the way you presented the motion. I'm just not sure how to proceed. Does anybody have a comment?

[John Oliver, Liberal, Oakville, ON]

You need to answer Mr. Davies' question.

[Ben Lobb, Conservative, Huron—Bruce, ON]

I'm prepared to move the motion at this time if we're going to deal with it. I would say it is moved and we can discuss it right now. As I said, it's not my intention to delay the work that we are doing here today. If we could we take a few minutes, fine, and then we could move on to Bill S-5 and pharmacare and complete the work the committee has planned for today.

[The Chair, Liberal, Bill Casey]

We have a motion to discuss this. It's just very difficult, because we have Bill S-5 and pharmacare and other motions that are waiting to be discussed that are probably just as urgent and as emergent, although I acknowledge how important this issue is. Does anybody have a thought on where our direction is?

[John Oliver, Liberal, Oakville, ON]

I want to thank Mr. Lobb for bringing the motion forward and I think there is an important discussion here. Basically, besides Cystagon, there is a second drug, Procysbi, which has the same active ingredient for treating cystinosis. Neither of them was approved in Canada until just recently, and all patients had to go through Health Canada's special access program, SAP, to acquire the drugs.

Just recently the change was that the other drug has been approved, Procysbi, and for the most part, patients and doctors are now being directed to use that drug. There is an issue with it. That drug is significantly more expensive than Cystagon, and there is active work under way right now to renegotiate the pricing on that alternative drug.

What is still true today is that Health Canada will continue its practice of considering requests to access Cystagon through SAP, just as it's been done in the past. Patients were always accessing it through SAP. It's done on a case-by-case basis in accordance with established criteria. Practitioners who want to continue accessing Cystagon for their patients through the SAP can do so provided they identify the clinical reasons that treatment with Cystagon and not Procysbi is more optimal for their patients. Physicians, in discussion with their patients, are uniquely placed to determine the best treatment for their patients, taking all aspects of their health and well-being into account.

The fundamental statement in this motion, “Health Canada's...decision to make Cystagon unavailable”, is not correct. It's still available through the SAP on a case-by-case basis, just as it has been. There is an added requirement for the practitioner to identify why it's preferable clinically to Procysbi, but otherwise it's still available to patients. For that reason, I wouldn't support the motion. It is still available to patients through the SAP with a practitioner's request.

[The Chair, Liberal, Bill Casey]

Go ahead, Ms. Gladu.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Chair.

Thank you to my colleague for bringing the motion.

My understanding as well is that the new drug that it's been replaced with is not as effective as the previous drug, so there is some threat to the patients, the 75 children and young adults who have this condition.

I want to put on record as well that although the special access system is in place, many times even when the doctor authorizes the medication, the special access is being denied by the government. I had an issue with this just this week in my riding. A six-year-old girl who came back from Jamaica returned with hookworm. You may have seen some of this in the paper. There was another fellow. Both were denied. The fellow had to go to the States to get the medication, at huge expense. Fortunately I was able to escalate the issue to the chief health officer, who was able to reverse the decision, but I think there is an issue there in addition to the Cystagon.

[The Chair, Liberal, Bill Casey]

Go ahead, Mr. Lobb.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Further to Mr. Oliver's and Ms. Gladu's comments, I hear what Mr. Oliver is saying. The special access program obviously precedes this current government. There have been criticisms of it in this current government and in governments before.

The reality is that when a physician says that the patient, because of the condition, should receive a certain drug, but it is rejected by Health Canada, that's one of the issues that we deal with. It's important because I think, with reference to what Mr. Oliver is saying, that's how we hope the program is to work: if the physician says, “Yes, the patient should receive drug X, Y, or Z” to give the patient the best chance for a good outcome, we believe that Health Canada would grant that and allow for that drug to be provided. In some cases, and in this case, not only do the patients receive the best outcome with it, but it's also a fraction of the cost.

I think it would be great to hear from witnesses, whether they be physicians, concerned family members, or Health Canada. It would be great to have them appear before the committee to give us some understanding as to why they do what they do—in this case, why they are rejecting what a physician has recommended when the patient has had some significant positive outcomes with the drug. I think that would be all we're asking. We're not asking to slam the government, the minister, or the department. I'm just trying to do the right thing in a non-partisan way, and hopefully we could have a unanimous recommendation to do something positive for not just the 75 families who are dealing with this, but probably hundreds if not thousands of other families who face this very stressful situation of receiving 30-day, 60-day, or whatever number of days' access to the drug mentioned.

I would ask that the committee consider that proposal. Hopefully Mr. Oliver and the Liberals, even if they want to amend it—I would be open to that—would allow a chance to have a hearing in front of this committee.

Thank you.

[The Chair, Liberal, Bill Casey]

Go ahead, Mr. Oliver.

[John Oliver, Liberal, Oakville, ON]

In response to Ms. Gladu's comment, my understanding is that unlike the hookworm example, it is the same active ingredient in both of the alternative medicines.

I do want to say that the Government of Canada is clearly committed to ensuring that Canadians have access to safe, effective, and affordable medicines. Again, this drug has always been accessed through the SAP, the special access program. If the committee wants to do a big review of the SAP, that's a different topic altogether, but it continues to be available through SAP.

A physician has to request it and make the case on behalf of their patient. There's really nothing different, except that the alternative drug is now available without going through the SAP. It's more expensive, but, as I said, there is active work under way to reduce the price of it.

I don't know what more there is to study here. The drug is still available to patients if their physicians make the case for it and represent for their patients through the SAP, just as they have always been doing. I really don't see the need for this particular motion, and I won't be supporting it.

[The Chair, Liberal, Bill Casey]

Are there no other comments?

Go ahead, Mr. Lobb.

[Ben Lobb, Conservative, Huron—Bruce, ON]

I have just one last comment, and then I'm happy to take a vote on it, if that's the way it is.

Next time Ms. Little's family is rejected by Health Canada, I just hope I can get hold of Mr. Oliver and that he is willing to go to bat for her. This is a case in which you have to fight tooth and nail every time you're rejected, and that's not the way it should be. You have a life to live and families have lives to live. It's not just Ms. Little's; it's all sorts of other families. When you're rejected, it must be a pretty tough thing to face. To think that you have to battle and battle to get it overturned so that you can get it must be quite a thing to deal with.

As I said, I'm glad that a member from the minister's staff was able to talk to Ms. Little today. That's great, but I think it would serve the committee well to hear and understand what families go through when they are rejected. I know what's supposed to happen sounds right, but that's not always the way it happens. I think it behooves committee members, to be quite honest, to understand what families go through when they do get rejected and face that uncertainty.

I'll say just one other thing. I am obviously not a pharmacist and I'm obviously not a doctor, but I will say this: the medications, the dosages, and the amount in each dosage are not the same in the two medications, and that does make a big difference. I'll give you one example.

Suppose the dosage is once every 12 hours. If your child vomits, obviously the medication comes up. If that is the case, you have no idea how much has been absorbed into the body. It could be very little. That's just a great example of the difference between two dosages per day and three dosages per day. There are differences. That's why it's so good to have this come to the committee so that we can hear about it.

I know I said I wasn't going to drag this out. I've heard both sides, and if we want to do a vote, then that will deal with it today.

Thank you.

[The Chair, Liberal, Bill Casey]

Just before we do the vote, I think it was Mr. Brown who brought up the thalidomide question. He had a constituent in the audience who was a victim. He didn't get what he wanted on the first day, but he was persistent. The committee ended up influencing the policy of the government, and it was addressed.

It wasn't addressed the first day. It wasn't even addressed the second day. It wasn't addressed maybe in the first week, but we definitely did have an influence on that issue, and it did result in a change, just through an action similar to what you've done.

You've put it on the table. It's public now. No matter what happens in the vote that we're going to have in a second, you've done a good job of getting it on the table, and we all respect what you've done.

I'm going to call a vote on the motion.

[Ben Lobb, Conservative, Huron—Bruce, ON]

Could I ask for recorded vote, please?