Health Committee on July 20th, 2020

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

I have Mr. Van Bynen next. However, before we go to Mr. Van Bynen, I'm going to ask Mr. Fisher.... I have a note from the clerk to confirm what the amendment is.

The amendment is to add, after the words “N95/KN95 masks”, the following:

, provided that the government does its assessment and vetting in gathering and releasing the documents as it would be done through the access to information process.

Mr. Fisher, could you please verify that is the motion?

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

That is the wording. That is the addition to Mr. Jeneroux's motion.

[The Chair, Liberal, Ron McKinnon]

Great. Thank you, Mr. Fisher.

We go now to Mr. Van Bynen.

[Tony Van Bynen, Liberal, Newmarket—Aurora, ON]

Thank you, Mr. Chair.

The point I want to make is that there is a legal obligation that is placed upon the public service, as a non-partisan party, to protect privacy. That is why this government adopted the ATIP guidelines and rules. Those rules should be sufficient to provide the information the government is seeking, and those rules should be sufficient or should be relied upon for a fair, equitable, unbiased, non-partisan review of the information that should be excluded for the very reasons that were raised earlier: to protect privacy, cabinet interests, national security, and all of the specifics that are identified in the ATIP legislation.

I don't understand why we feel we need to go beyond that. If so, then why don't we review the ATIP procedures, the ATIP legislation, and make that more encompassing? It was satisfactory when it was adopted. It was adopted by a majority of government. Why should we change that? Those guidelines are legitimate and specific, and they protect the interests of the government and of all the people we necessarily need to deal with, such as other municipalities and other provinces and territories. I think we have an obligation to protect their rights, and I believe that can be done by an independent group of non-partisan public service officers.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Van Bynen.

I'll go back to Mr. Davies, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

I think it would be helpful if I would ask that the clerk specify all of the grounds for redaction under access to information so that this committee knows what those grounds would be. Committee members will see that there are many more grounds for redaction than just the privacy, cabinet confidence and the national security criteria. We would say that is the alternate way of proceeding.

In response to my colleague Mr. Van Bynen, I would just point out one thing: There is a difference between the ATIP process and the powers of a committee to compel production. We're not the same body. We're not a member of the public seeking information from the government, nor are we an individual member of Parliament seeking information through the ATIP process.

I'm going to remind you that these are the words of the law clerk of the House of Commons.

...we reminded the government officials that the House's and its committees' powers to order the production of records is absolute and unfettered as it constitutes a constitutional parliamentary privilege that supersedes statutory obligations.

ATIP is a statute that governs the regular process of seeking information from government. That's not who we are in this, and that's not the power and the privilege that we are exercising in this case. To accede to that argument is to relegate this committee to the same status as a regular citizen. That's not what the citizens of this country expect us to do. They have accorded constitutional authority to these committees to get information beyond that. That's what they expect us to do.

I'd like to hear an argument for why the members of the committee who are in favour of this amendment want to clip our wings and circumscribe our ability to get the documents that we need to get in order to truly hold the civil service accountable.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

I note that you have asked the clerk to weigh in on the particulars of the access to information process. I'm not sure that the clerk has that information, but I will invite her to do so if she feels that it's appropriate.

[The Clerk]

I'm not an expert on the Access to Information Act. If the committee wishes to have more information on what would be, I guess, the differences between asking for documents under the privilege of the committee versus asking for information under the Access to Information Act, that question would have to be asked of the Office of the Law Clerk and Parliamentary Counsel, and we'd be happy to send the question over to them if the committee wishes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

If I might, that would be helpful, I think, for future guidance for the committee members, but I will offer this, because in a sense we already have that in the letter from the Parliamentary Counsel to Mr. Jacques, the clerk of this committee, on March 20. What is said in this letter is that after we had requested that redactions be limited to matters of cabinet confidence and to matters of national security and privacy, the law clerk pointed out that the deputy minister of Health Canada went beyond that and in the letter said this:

A letter accompanying the documents stated that redactions had been made to protect personal information in accordance with the Privacy Act and that redactions had also been made “to avoid injury to international relations as well as relations with the provinces and territories; to protect information considered advice to a Minister; for the protection of government assets; and, to protect solicitor-client privilege.” These latter grounds for exemption from disclosure are contained in the Access to Information Act.

I'm not sure that that is a complete description, but it gives committee members here a glimpse into what the law clerk is telling us are the additional grounds contained in access to information, and some of them, as you can see, you can drive a truck through.

If we're going to let the department redact information that, in their opinion, is considered advice to a minister, or if they think it might damage relations with the provinces and territories, these are so amorphous, they are so subjective, they are so broad that you end up getting exactly what we got in March, which is page after page after page that was blacked out.

If that's what this committee wants, then that's what will happen if we adopt this amendment to allow redactions according to the Access to Information Act. We will have those criteria that I just read out.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

Dr. Powlowski, please go ahead.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

As always, Mr. Davies makes very good points. He's a real lawyer, unlike me. I would agree with him, based on House of Commons Procedure and Practice , third edition, that the Standing Orders do not limit the power to order the production of papers and records. The result is a broad, absolute power that, on the surface, appears to be without restriction. Having said that, I think—and even Mr. Davies would agree—there are certain things that you certainly don't want to make public. If we procure documents and they go to the committee and are not made public, I'm not sure what we're going to get out of it, but there are certainly things that I think are not in our country's best interest to reveal or in an individual's best interest to reveal. There are things like, for example, personal information. I'm sure Mr. Davies agrees with that.

Also, I think in terms of our relationship, Mr. Davies is right. ATIP is very broad and includes withholding information relating to our relationship with the provinces. I have the actual provision if you want to read it at some point. That is included in ATIP; however, I think there's a good reason for that, because we do have to work with provinces. Our being able to come to agreements with the provinces and to have good relationships with them is certainly fundamental in our management of the pandemic. If we were to reveal everything, I think that could potentially impact our relationships with the provinces. Similarly, there are provisions relating to our relationships with other countries and not revealing information that may be detrimental to other countries. I think there is good reason to exclude some material.

I would agree with Mr. Davies. If you take a really liberal interpretation of ATIP provisions, all the things that can be excluded under ATIP—I do have a list of them here—as he has indicated, make up a very long list. I think the department has to be very conservative in applying that and not just give a bunch of bureaucrats markers and say, “Go crazy.” If they do, and if these documents come back heavily redacted without any information or with large parts of it excluded, then I think that's a problem, but I don't think they will. The department, as opposed to a ministry, is supposed to be non-partisan, and I do have some faith that they will apply the redactions in an appropriate way.

[The Chair, Liberal, Ron McKinnon]

Thank you, Dr. Powlowski.

Is there any further discussion on this amendment?

Seeing none, I will ask the clerk to conduct the roll call vote. The vote is on the amendment as moved by Mr. Fisher.

(Amendment agreed to: yeas 6; nays 5 [See Minutes of Proceedings])

Thank you, Madam Clerk. The vote carries.

The discussion now carries on with Mr. Jeneroux's motion as amended. Is there any further discussion on this motion?

I'll ask one more time: Is there any further discussion on the main motion as amended? Seeing none, I will ask the clerk to conduct a vote. The vote is on Mr. Jeneroux's motion as amended.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Mr. Chair, I have a point of order. Are we going again the way we have traditionally gone in voting, or are we going to shake it up a bit?

[The Chair, Liberal, Ron McKinnon]

I think we should stick with our past practice. If we want to change our practice, we should discuss it at another time.

Please go ahead with the vote, Madam Clerk.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

I have a point of order.

Could somebody read the amended motion we're voting on?

[The Chair, Liberal, Ron McKinnon]

Sure. Go ahead, Madam Clerk, if you wouldn't mind, and read the motion as amended.

[The Clerk]

The amended motion reads as follows:

“Pursuant to Standing Order 108(1)(a), the committee send for the following documents to be provided by the government by Monday, August 31, 2020 and that the documents be published publicly on the committee’s website by Monday, September 7, 2020:

“All documents, briefing notes and memorandums to/from/between Health Canada, the Public Health Agency of Canada, and the Privy Council Office related to the issuance of Medical Device Establishment Licenses (MDELs) between March 1, 2020 and May 11, 2020; including all documents, briefing notes and memorandums to/from/between Health Canada, the Public Health Agency of Canada, and the Privy Council Office related to the recall of N95/KN95 masks, provided that the government does its assessment and vetting in gathering and releasing the documents as it would be done through the access to information process.”

[The Chair, Liberal, Ron McKinnon]

Thank you, Madam Clerk.

Is everyone clear now on the—

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Mr. Chair, on a point of order, I think it's that the “department” does its assessment, not that the “government” does its assessment.

[The Chair, Liberal, Ron McKinnon]

Okay.

Madam Clerk, could you make that change? I think that is what we confirmed earlier.

[The Clerk]

That's perfect.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Are we clear now on the motion before us, as amended?

Seeing no hands, we'll carry on with the vote. Madam Clerk, please go ahead.

(Motion as amended agreed to: yeas 6; nays 5 [See Minutes of Proceedings])

[The Chair, Liberal, Ron McKinnon]

Thank you, Madam Clerk.

Mr. Jeneroux, if you wish to carry on with your other motions, please move your next motion.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Let's see if we can get two done in a day, Mr. Chair. Wouldn't that be something?

Let's move on to the motion with regard to interim order. I'll read it out for you and, Mr. Chair, just so you're clear, I've already amended the dates as we had agreed to with the other motion, so I'll read it with the amended dates.

It reads, “Pursuant to Standing Order 108(1)(a), the committee send for the following documents to be provided by the government by Monday, August 31, 2020, and that the documents be published publicly on the committee's website by Monday, September 7, 2020.

“All documents, briefing notes, memorandums and emails to/from/between Health Canada, the Public Health Agency of Canada, and the Privy Council Office related to the March 18, 2020, interim order by the Minister of Health entitled “Interim Order Respecting the Importation and Sale of Medical Devices For Use in Relation to COVID-19” and the March 30, 2020, interim order by the Minister of Health entitled “Interim Order Respecting Drugs, Medical Devices and Foods for a Special Dietary Purpose in Relation to COVID-19”.”

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Jeneroux.

Is there any discussion on this motion?

Mr. Fisher, please go ahead.