Evidence of meeting #9 for Health in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was documents.
A recording is available from Parliament.
1:45 p.m.
Liberal
Tony Van Bynen Liberal Newmarket—Aurora, ON
If I could just come back to the redaction process, imagine some boxes full of documents arrive at your office, or documents arrive electronically, what are the steps that you would be going through to determine what should or shouldn't be redacted, and are these items then referred to the government, or has the government highlighted areas that they feel should be redacted and you make the decision?
How is that going to work? I'd like to get a better understanding of that.
1:45 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
One of the unknowns is that we have not received the documents yet, so one of the things we do not know is whether the government will have proposed redactions or not. If they have, then we would look to those and we would expect to be able to see behind those redactions to what is being proposed to be redacted, what's the information behind it, and then compare that to the grounds that the House has allowed. Is this something that is personal privacy information? Is this something related to national security? Would the disclosure of this information be reasonably expected to interfere with contractual negotiations?
These are really the guiding principles and we would look at that. If there are no proposed redactions, we would nonetheless look at the documents ourselves to see whether there's information there that is problematic. But in terms of the national security and the interference with contracts involving the Government of Canada, we would expect that the government would be raising concerns on those and we would look at those.
1:45 p.m.
Liberal
Tony Van Bynen Liberal Newmarket—Aurora, ON
Given the prioritization, I haven't seen the details on what was proposed or adopted just today. Would the focus on the vaccines, etc. be one of the areas where there might be a high risk of interfering with contractual negotiations?
November 27th, 2020 / 1:45 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
In its motion, the House really linked the vaccine development and the contractual negotiations. It said that this ground of “information the disclosure of which could reasonably be expected to interfere” would apply with respect to paragraph (y). Paragraph (y) is the paragraph on the vaccine task force.
I think the House accepted and understood that when you're dealing with this vaccine development issue, there is a risk that there is contractual information that needs to be kept confidential so that it doesn't harm that relationship between the government and the vaccine developers. The House has agreed that this is a valid reason to keep information confidential.
If the prioritization results in those types of documents being looked at first, I would expect to see that ground come up. I would expect that this is where you would see this issue being raised as information that should be kept confidential.
1:50 p.m.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Mr. Van Bynen.
We go now to Monsieur Thériault.
You have the floor for six minutes.
1:50 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Mr. Chair.
Mr. Dufresne, thank you for giving a clear presentation and clear answers.
I don't have many questions. I found Mr. Van Bynen's questions very useful. However, I'm not sure whether you addressed all my concerns.
First, when I read the letter from the Clerk of the Privy Council, I was a little stunned to see that there could be millions of pages. According to the calculation that you provided today, it would take at least 20 days of diligent and ongoing work to produce the documents for the House and the committee. This is on top of the fact that, in his letter, he says that the documents would be sent as they are. In other words, we don't know how much of the documents are in English or French, so we can't estimate how long it may take to translate them. The documents must be provided in both official languages. This unknown variable seems quite important. It may also apply, but in a much more limited way, to the motion undertaken today with respect to the sequential processing of information.
I'm also wondering about the Clerk of the Privy Council's decision to exclude confidential business information. Perhaps you can shed some light on this. I thought that he was sending you all the relevant documents.
The motion that we passed states that information may be redacted in cases where full disclosure could reasonably be expected to interfere with contractual or other negotiations between the government and a third party. This relates to your judgment and the analyses of your legal proceedings, not to the Clerk of the Privy Council.
Didn't the House order basically instruct the Clerk of the Privy Council to send us all the documents?
1:50 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
Your interpretation of the motion does indeed reflect what I noted in my remarks. The motion stated that the grounds related to the confidentiality of the information or possible prejudice to contract negotiations were justifiable. However, the redaction must be approved by me or my office.
The House established that these grounds were justifiable. However, ultimately, the House must be satisfied with the application of these grounds. As I said, I would have expected the government to identify the information that must be protected based on these grounds, since it certainly has the information on hand. However, the House established that, at the very least, my office would approve the information. To do so, I must be able to see the information and the proposed redactions.
In his letter today, the Clerk of the Privy Council said that he'll exclude certain information based on these grounds. We haven't received the disclosure yet, so I'm not sure what this will mean exactly. Will it mean that we can obtain the documents and feel satisfied that the redaction was done properly? I don't know. In any event, I also noted this reference in the letter.
1:50 p.m.
Bloc
Luc Thériault Bloc Montcalm, QC
Okay, thank you. This clears things up. I have full confidence in your work. I know that you'll be able to tell us whether excluding certain documents, as the Clerk of the Privy Council intends to do, is justified.
I don't have any more questions.
1:55 p.m.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Mr. Thériault.
We will now go to Mr. Davies.
Mr. Davies, you have six minutes.
1:55 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Thank you, Mr. Chair, and thank you to the clerk for being here.
It seems as though we've really focused on this, but I want to be absolutely clear. Mr. Clerk, is it your view that the documents must come to your office in unredacted form?
1:55 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
My view, Mr. Davies, is that the House has allowed the exclusion of cabinet minutes. The minutes of meetings of the cabinet and its committees are to be excluded from this order, so those would not be considered at all by my office. However, the motion otherwise requests that the documents be vetted by my office for the other three grounds, which are privacy and personal information, national security and interference, or what “could reasonably be expected to interfere with contractual or other negotiations”.
The motion uses the word “vetted”, and from my standpoint this would require that my office be able to see the information behind the redaction and agree or not to make redactions. Again, I suspect there's much information that we would give significant weight to, but the motion as it's written requests that it be vetted by my office.
1:55 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Thank you.
If the documents do come to your office redacted by those three criteria, in your view would that be in compliance with the motion as passed by the House?
1:55 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
If they come to my office redacted, I would be in a situation of reporting it to the committee, because it makes it difficult, if not impossible, for my office to vet and to determine whether the redactions are valid. Some of them may seem like valid redactions to us, and sometimes we're almost 100% certain, but for others, we would not be able to know. I would therefore not be in a position to report to you and the House that we've done the vetting as asked and give the documents. I would have to indicate that I'm not able to do it, or I'm able to do some vetting, but for what has already been redacted I could not, unless my office was shown the originals.
1:55 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
I understand now.
I'll tell you the basis for my concern. I've just had a chance to read the letter from Mr. Shugart, the Clerk of the Privy Council, that was sent this morning. It suggests to me that they are going to withhold documents on the criteria of confidential business information. This strikes me as foreshadowing that they intend to redact information, I would say, in violation of the motion.
To that point and the issue of his description of withholding information on the basis of confidential business information, is that, in your view, the same as the wording in the motion passed by the House? There is a redaction criterion for information “which could reasonably be expected to interfere with contractual or other negotiations between the Government of Canada and a third party”. Is that the same as confidential business information?
1:55 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
They're not the same words, obviously, and we would look at any proposed redaction in a given document. That said, the House's criterion says, “information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations between the Government of Canada and a third party.” If the Government of Canada has committed contractually to respecting confidentiality with respect to certain information, an argument could be made that making it public could reasonably interfere with the contractual or other negotiations.
That's what we would look at to find out what the information is and why it meets that test, but you're correct that confidential information is not the test. The test is whether the disclosure of that information could reasonably be expected to interfere with contractual or other negotiations.
1:55 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
Mr. Clerk, you've done this kind of job before. Is it possible for the government to send you documents in waves of information? In other words, would it be possible for the government to send you documents that it already has so that you could start to get the work under way to execute the motion, as opposed to waiting?
2 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
I don't want to indicate what's possible or not for the government to do. That would be for them to say. I can say that certainly my office can start looking at documents as soon as we receive them in terms of sequencing, but I really can't say what the government can or cannot do.
2 p.m.
NDP
Don Davies NDP Vancouver Kingsway, BC
This is my final question. In July, the Standing Committee on Finance adopted an order for the production of documents related to the WE Charity matter, and the committee directed the government to provide the documents in unredacted form to the Office of the Law Clerk and Parliamentary Counsel—that was you—for redaction according to the parameters set out in that production order.
However, in a letter to the clerk of the finance committee, you indicated that the government had once again redacted the documents prior to providing them to your office. In testimony before the Standing Committee on Finance, Mr. Shugart said the following:
I'm afraid that it is a fact that if the executive branch were to give all of the documents of cabinet confidence or commercial sensitivity or solicitor-client privilege or national security to the law clerk, it would be, in a sense, waiving that privilege, because the law clerk is a servant of the legislature, not of the executive.
So, if the government does this again with respect to the present directive—i.e., it redacts for reasons not stipulated in the motion or it does the redaction—what would your view be of whether that would be conforming to the motion of the House and the privileges of this committee and the House?
2 p.m.
Law Clerk and Parliamentary Counsel, House of Commons
In the instance that you refer to, with respect to the finance committee, we received documents; we looked at what they were, and we reported to the committee as to the concerns we had and the fact that we were not able to do what the House had asked us or what the committee had asked us to do in that instance.
That's exactly what we will be doing in this instance. Once we receive the documents, we will review them to see what has been provided and whether that is consistent with what the House has ordered. The House has ordered that certain things be excluded, namely minutes of cabinet and its committees, but that other redactions be made by my office.
We'll have to wait and see what we receive. We will advise the committee in terms of the implications of that, but I don't want to do that before I've received and seen what is in fact provided.
2 p.m.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Mr. Davies.
That brings us to the end of this section of our meeting.
I would like to thank you, Mr. Dufresne and Mr. Bédard, for your presence here today and for sharing your time and expertise.
With that, we will suspend and bring in the next panel. Thank you.
2:05 p.m.
Liberal
The Chair Liberal Ron McKinnon
We will now resume the meeting.
For this hour, we are continuing the study of the Patented Medicine Prices Review Board's guidelines.
Returning to us are Dr. Mitchell Levine, chairperson, and Mr. Douglas Clark, executive director.
I'm assuming, gentlemen, that you gave your statement last week. Do you have another statement this week?
2:05 p.m.
Dr. Mitchell Levine Chairperson, Patented Medicine Prices Review Board
I don't either, although Mr. Clark has some comments in response to some questions that were provided at the end of last session.