Health Committee on Nov. 27th, 2020

[The Chair, Liberal, Ron McKinnon]

I call this meeting to order.

Welcome, everyone, to meeting number nine of the House of Commons Standing Committee on Health. The committee is meeting today to study the emergency situation facing Canadians in light of the second wave of the COVID-19 pandemic, for the first hour, and the Patented Medicine Prices Review Board's guidelines for the second hour.

I want to thank the witnesses for appearing today. For the first hour, from the House of Commons, we have Philippe Dufresne, Law Clerk and Parliamentary Counsel; and Michel Bédard, deputy law clerk and parliamentary counsel.

For the second hour, from the Patented Medicine Prices Review Board, we will have Dr. Mitchell Levine, chairperson; and Douglas Clark, executive director.

I would like to start the meeting by providing you with some information following the motion that was adopted in the House on Wednesday, September 23, 2020.

The committee is now sitting in a hybrid format, meaning that members can participate either in person or by video conference. All members, regardless of their method of participation, will be counted for the purpose of quorum. The committee's power to sit is, however, limited by the priority use of House resources, which is determined by the whips.

All questions must be decided by recorded vote, unless the committee disposes of them with unanimous consent or on division. Finally, the committee may deliberate in camera, provided that it takes into account the potential risks to confidentiality inherent to such deliberations with remote participants.

The proceedings will be made available via the House of Commons website. So you are aware, the webcast will always show the person speaking rather than the entirety of the committee.

To ensure an orderly meeting, I would like to outline a few rules to follow.

For those participating virtually, members and witnesses may speak in the official language of their choice. Interpretation services are available for this meeting. You have the choice, at the bottom of your screen, of floor, English or French. Before speaking, click on your microphone icon to activate your own mike. When you are done speaking, please put your mike on mute to minimize any interference.

As a reminder, all comments by members and witnesses should be addressed through the chair. Should members need to request the floor outside of their designated time for questions, they should activate their mike and state that they have a point of order. If a member wishes to engage in debate, they should use the “raise hand” function. This will signal to the chair their interest to speak and create a speakers list. In order to do so, they should click on “participants” at the bottom of the screen. I should note that people who want to respond to points of order or raise their own points of order consequent to a given point of order should not use the “raise hand” function. Just use a hand gesture or speak up with a point of order statement.

When speaking, please speak slowly and clearly. Unless there are exceptional circumstances, the use of headsets with a boom microphone is mandatory for everyone participating remotely. Should any technical challenges arise, please advise the chair. Please note that we may need to suspend for a few minutes as we need to ensure that all members are able to participate fully.

For those participating in person, proceed as you usually would when the whole committee is meeting in person in a committee room. Keep in mind the directives from the Board of Internal Economy regarding masking and health protocols. Should you wish to get my attention, signal me with a hand gesture or, at an appropriate time, call my name. Should you wish to raise a point of order, wait for an appropriate time and indicate to me clearly that you wish to raise a point of order.

With regard to a speakers list, the clerk and I will do the best we can to maintain a consolidated order of speaking for all members, whether they are participating virtually or in person.

With that, we'll invite the law clerk, Mr. Dufresne, to make a statement.

You have 10 minutes, please.

[Philippe Dufresne, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair and members of the committee, for your invitation to appear today to discuss the motion that was adopted by the House of Commons on October 26, which provides that this committee “undertake a study on the emergency situation facing Canadians in light of the second wave of the COVID-19 pandemic”.

As the Law Clerk and Parliamentary Counsel for the House of Commons, I'm pleased to be here today to address any questions that the committee may have with respect to the House's motion and the role it prescribes for my office. I hope that my answers—

[Luc Thériault, Bloc, Montcalm, QC]

Sorry, Mr. Chair.

The pace is much too fast. There is indeed interpretation, but the brain can't grasp the content. It isn't just words. The meaning must be interpreted as well.

If you could slow the pace down, I'd be very grateful.

[The Chair, Liberal, Ron McKinnon]

Thank you, Monsieur Thériault.

Monsieur Dufresne, please continue. I will allow extra time for your statement if you need it.

[Philippe Dufresne]

Thank you, Mr. Chair.

As the Law Clerk and Parliamentary Counsel for the House of Commons, I am pleased to be here today to address any questions that the committee may have with respect to the House's motion and the role it prescribes for my office. I hope that my answers will assist the committee.

As you know, the House's motion includes an order for certain documents from the Government of Canada to be provided to my office no later than November 30. This includes documents from the Office of the Prime Minister; the Privy Council Office; the Office of the Minister of Public Services and Procurement; the Office of the Minister of Health, Health Canada and the Public Health Agency of Canada. This also includes all documents relating to the COVID-19 vaccine task force and its subcommittees; the Government of Canada's COVID-19 vaccine distribution and monitoring strategy; and the government's communications with the World Health Organization concerning the Global Public Health Intelligence Network.

The motion states that the Clerk of the Privy Council Office may request an extension of up to seven additional days by writing a letter to the committee.

The House's motion expressly excludes from its order the minutes of meetings of the cabinet and its committees. It also requires that all documents provided in response to the order be vetted by my office for matters of personal privacy information and national security, and that the category of documents relating to the COVID-19 vaccine task force and its subcommittees also be vetted for information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations between the government and a third party.

The motion provides that my office is to complete this work within seven days of receipt of the documents from the government, and to provide them to the Speaker for tabling in the House of Commons at the next earliest opportunity. Upon being tabled, the documents are to be permanently referred to this committee. I confirm that my office has not yet received documents in response to the order.

The order allows the government to exclude any minutes of meetings of cabinet and its committees.

For all the other categories of redactions—personal privacy, national security and information that, if disclosed, could reasonably be expected to interfere with contractual or other negotiations between the Government of Canada and a third party—the order is clear that my office must vet those redactions.

In our view, the House's order does not preclude the government from proposing what it feels the redactions on those grounds should be, but my office needs to see the documents and make the final determination about what is provided to the House and to this committee in accordance with the order.

It is up to this committee, and ultimately the House, to determine whether it is satisfied with documents provided in response to the order, with the government's approach and with any redactions made. This is consistent with the House's role as the grand inquest of the nation.

In terms of the process and resources, my office has 15 counsel, along with two paralegals and other employees, including jurilinguists, the publications team, translators, administrative assistants and an articling student, for a total of 35 employees.

My office provides comprehensive legal and legislative services to Parliament, the Board of Internal Economy, the House and its committees, members of Parliament and the House Administration. It's also responsible for drafting private member’s bills and motions to amend government bills, and for the printing the bills as they progress through the legislative process. In some sense, it provides similar types of legal and legislative services to the House that the Department of Justice provides to the government.

In response to the House's order, we've taken steps to acquire additional resources in anticipation of receiving a very large volume of documents for review and redaction.

My office has reviewed the House's order and made the necessary preparations so that we can respond and begin our work as soon as we receive the documents. We have established a project team to prepare for the receipt of documents, led by the deputy law clerk and parliamentary counsel, legal services, Monsieur Michel Bédard, who is with me today.

The project team has carefully reviewed the text of the House's order and developed an internal process for uploading, organizing, reviewing and redacting documents. As mentioned, we've taken steps to acquire additional resources in anticipation of receiving what we expect will be a very large volume of documents for review and redaction. This includes hiring two additional legal counsels to assist with this work as required.

We have taken steps to mobilize and leverage our existing resources in anticipation of this work.

The House's order states that we are to complete our work within seven days of receipt of the documents. We understand this to mean calendar days. We are then to provide the redacted documents to the Speaker, who will table them, and they will then be referred to the committee.

At this stage, while I do not know how many documents we will receive from the government in response to the House's order, I understand it is expected to be a very large number of documents.

Indeed, in his testimony before the finance committee on Tuesday this week, the Clerk of the Privy Council, Mr. Ian Shugart, suggested that it could be millions of pages. Given the unprecedented volume of documents, we are expecting that this will represent a significant amount of work and full-time, dedicated resources.

I'm prepared to devote close to 100% of my office’s resources to the review and redaction of documents for the seven-day period set out in the motion.

This means that all our other activities—including the provision of legal advice and drafting of private member's bills—will be severely curtailed or delayed, except those services that are essential.

Since the House is sitting, those essential services include the preparation of government bills; the publication of bills tabled in the House; the reprint of bills at the request of a committee; the printing of parchment copies; the drafting of amendments to legislation at all stages; and responses to requests for urgent legal advice.

Now let's see how many pages we could process in seven days.

Basically, if all counsel each review between 300 and 500 pages a day, we estimate that we could process up to 50,000 pages in the first seven days following the receipt of the documents.

This estimate is based on the 6,000 pages that the government recently sent us in response to a production order by the Standing Committee on Finance.

In this case, the volume of documents could be exponentially more than that, and the scope of redactions my office has to vet is also larger. Of course, these estimates may change depending on the volume and type of documents we receive in response to the House's order. The approach the government takes may also impact our estimated timelines.

Should the volume of the documents provided go beyond what my office can complete in seven days, I will immediately inform and seek guidance from the committee with respect to the way forward.

With that, my colleague and I would be pleased to answer any questions.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Dufresne.

I would like to advise the committee that we have received a letter from the Clerk of the Privy Council requesting the seven-day extension as provided for in the motion. I would ask at this time if the committee is willing to make that letter public. I would ask if there is unanimous consent to do that. If there is anyone who wishes to dissent from that decision, please indicate that.

Seeing no dissent, I declare that on unanimous consent we have determined that we can release that letter to the public. Thank you all very much.

We go now to our rounds of questions for the six-minute rounds. We'll start with Ms. Rempel Garner.

Please go ahead for six minutes.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

To the law clerk, I want to thank you and your team for all the work you're doing. I also want to thank your team for all the work that you do for all of us parliamentarians on a day-to-day basis with private members' bills and legal advice. You're an integral part of Parliament, so thank you.

I have one quick question. Have you received any of these documents to date from the government?

[Philippe Dufresne]

No, we have not. Not as of today.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Have you given any thought to perhaps prioritizing certain sections of the documents for review upon receipt?

[Philippe Dufresne]

Our goal, once we receive documents, is to see whether we can do what we have received within the timelines. If we are not able to do so, then we would advise the committee and seek the committee's guidance as to what it wishes to do about any prioritization in terms of providing the documents.

If we are dealing with the magnitude that we understand we will be dealing with, it will be physically impossible to review all of those documents in the timeline, so the question of priority would come up at that stage, but in my view, this priority is up to this committee to determine.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you. Those were my thoughts exactly.

With that, Mr. Chair, I move:

That the Chair be instructed to present the following report to the House forthwith, provided that dissenting or supplementary opinions, pursuant to Standing Order 108(1)(b), shall be filed with the clerk of the committee within 24 hours of adoption of this motion:

The Standing Committee on Health has met pursuant to its Order of Reference of Monday, October 26, 2020, and recommends the following:

That the Law Clerk and Parliamentary Counsel, when vetting documents under subparagraph (aa)(ii) of the Order adopted by the House on Monday, October 26, 2020, be instructed to prioritize the vetting in the following order: (a) documents, produced by the Public Health Agency of Canada in response to paragraphs (y) and (z) of the Order, concerning vaccines; (b) all other documents, produced in response to paragraphs (y) and (z) of the Order, concerning vaccines; (c) documents, produced in response to paragraph (w) of the Order, concerning rapid testing; (d) other categories of documents which may be specified, from time to time, by the Standing Committee on Health; and (e) all other documents; that all documents be circulated to the committee in both official languages; and

That the Standing Committee on Health may, on the request of the Law Clerk and Parliamentary Counsel, grant one or more extensions of the deadline, prescribed by subparagraph (aa)(ii) of the Order adopted by the House on Monday, October 26, 2020, for his vetting of documents, provided that he shall provide the Committee with a weekly status report on the vetting process.

Chair, while the clerk is here, I think we've heard a lot of interest in the Canadian media, putting it mildly, on the vaccine production process and distribution, etc. The documents that are going to be relevant to the committee could be prioritized, as the clerk just said. What this would do is, per the clerk's suggestion, give him some directions on what to prioritize first and foremost, and produce first and foremost. It would also give him the ability to come back to our committee at future points.

What I'm thinking here is that we prioritize the topics that are first and foremost in the minds of Canadians and that I think have been in front of Parliament the most frequently over the last few months and are probably the most material to our response to COVID, so that we can look at those in an expeditious manner, and then allow the clerk to come back to committee and essentially tell us how it's going. I think this is an elegant solution to perhaps some challenges that have been outlined. It would allow us to move forward as parliamentarians and to be able to scrutinize the government's response—the adequacy of it—while providing some direction and clarity.

I will note this. I do find it odd that the clerk has not received any documents yet. For the PCO, in a letter today, which is now public—and I can speak to this—to say that there is a substantive quantity, to quantify that volume and not to have passed anything to the clerk to date, is odd.

Again, I would like to commend the clerk and his team for helping parliamentarians do their job. It is my hope that the committee will support this motion so that we can give him some direction on what to prioritize, and then what we can be scrutinizing in the first order.

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. Rempel Garner.

I'm not sure if we have the authority to give direction to the clerk on prioritization of documents or whether we can attempt to modify that order of the House, but my first inclination is that this is in order, so I would ask if members of the committee are fully aware of what the motion is here.

Ms. Rempel Garner, I wonder if you could send a copy of that—

[Luc Thériault, Bloc, Montcalm, QC]

Sorry, Mr. Chair, but I can't hear the interpretation. Maybe you aren't speaking loud enough. Obviously, there's an issue with the interpretation. Not only am I unable to keep up with you in real time, but there are very long pauses. Maybe there's a sound issue or your microphone isn't lowered. Either way, I'd like to understand what you're saying.

[The Chair, Liberal, Ron McKinnon]

Mr. Thériault, did you get translation of Ms. Rempel Garner's motion? Yes.

It's just me you can't hear. Okay, I apologize.

My initial concern is whether we have the power to give direction to the clerk and whether we can modify the House motion in this way.

I would ask the law clerk himself if he could advise me on this matter.

[Philippe Dufresne]

Certainly, Mr. Chair.

It seems to me that there is the House order that provides for timelines. I understand Ms. Rempel Garner's suggestion was that the committee would report to the House, so I wonder if the purpose is to have the House ultimately adopt that report as an order.

You quite rightly point out that the House order exists and it provides certain requirements, so if this committee wishes to suggest modifying that, it seems that would give rise to a necessary change to the House's order.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Dufresne.

Okay, my understanding now is that this will be a request to the House to change its order accordingly, to reflect the priorities that Ms. Rempel Garner has proposed.

Are we ready to debate this motion?

Mr. Kelloway.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

Thank you, Mr. Chair, colleagues and clerk. It's good to see you here.

I am very keen, as I know all of us are from all our respective parties, to get to work here. We have witnesses here today with important testimony. I would really like to actually focus on the agenda before us.

For that reason, I move that the debate be now adjourned.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Kelloway.

The question is, shall the debate be now adjourned on Ms. Rempel Garner's motion?

Mr. Clerk, I will ask that you take a vote.

(Motion negatived: nays 6; yeas 5)

The debate will carry on.

We'll go now to Ms. Rempel Garner.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you, Chair.

I just want to agree and clarify that the intent of my motion is what the clerk clarified, that this would be reported to the House and then the House would have to dispense with it. Procedurally, I agree with the assessment in terms of how it would move forward.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Mr. Davies, please.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

First of all, I think it's an excellent motion. From the beginning, one of the main concerns of the government side—in fact, I think of all of us—has been how we can efficiently get important information to us, given that there could be a large volume. I think this is an excellent way to prioritize, given the realities of the letter I just saw this morning from the Clerk of the Privy Council, Mr. Shugart. He is essentially saying that the government can't provide all the documents in time. I'm hearing from the law clerk that, given the Herculean efforts and extra resources of his office, he can't meet the requirements of the motion in the time period given.

As parliamentarians, the only responsible thing to do is see how we can shape our motion to respond to that reality. I can speak for the New Democrats in that I think we should be focusing on vaccines and rapid testing, which are two issues Canadians are probably most interested in hearing about. I think this is nothing more than an attempt to shape the motion into a more reasonable path forward, so that we can actually get started on getting the documents coming to the committee, as the House wanted.

In light of Ms. Rempel Garner's last comment, I was a little unclear about the way forward, too. I think she and the chair are right that this has to go back to the House. However, at the end of the clerk's speaking notes, after taking us through the practical difficulties of processing the information in time, he says:

Should the volume of the documents provided go beyond what my Office can complete in 7 days, I will immediately inform and seek guidance from the Committee with respect to the way forward.

If I may, it might help all committee members to put that question to the clerk and ask him to explain that. I read that to mean that, given that the motion has passed to refer these documents to the committee, perhaps this committee can work with the law clerk on getting an efficient path forward, so that we can get documents coming to the committee in an orderly fashion, given the practical and pragmatic realities of the volume of documents.

Can I ask the law clerk that? Can this committee simply work with you, or does this have to go back to the House?

[Philippe Dufresne]

Thank you for the question, Mr. Davies.

My remarks really dealt with the practical way of raising a concern if the amount of documents is so significant that we know we are not able to meet that timeline.

Ultimately, at the end of the day, in terms of a path forward, it seems that a change to the House's order would be required. The committee would not have the authority on its own to simply approve something that would go against what the House has ordered.

In terms of next steps to address a concern, the approach that's being put forward now would seem to address that, which is by having the committee propose something to the House so that ultimately the House can make the decision.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

Thank you, Mr. Dufresne, for your counsel.

We go now to Mr. Fisher, please.

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

Thank you very much, Mr. Chair.

Although I don't support this motion, we have the law clerk in front of us for an hour, as requested by the Conservatives—which we supported. We're happy to have you here today.

It's now 2:32 here in Nova Scotia, so it's 1:32 there. We're not going to get all the questions in that we'd hoped to get in, so this seems like just another one of those things thrown in the way—a monkey wrench in the middle of this.

I guess, with the 45 seconds or so since I've printed this motion and looked at, we won't support this motion. We also won't speak to it, because I think it's important—and out of respect for the law clerk—that we get rolling on this so that we can ask these questions. Probably a couple of members now will lose their opportunity to speak to this.

I will say that we debated this all day in the House of Commons and we passed it. I think we should respect the motion the House sent to us. However, like I said, I think the important thing right now is getting to Mr. Dufresne.