Health Committee on Nov. 27th, 2020

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Fisher.

Mr. Davies.

[Don Davies, NDP, Vancouver Kingsway, BC]

Just quickly, I would like to respond to Mr. Fisher's comments. We do have the law clerk here, and after giving his statement, the nub of his testimony or statement so far is that he does not have the resources necessary to actually implement the motion that was passed by the House.

I think the motion by Ms. Rempel Garner is directly on point, because we're dealing with the substance of the matter before us.

The other thing that I must say is troubling, and is in the back of my mind, is that essentially what we're hearing from the government, from the Clerk of the Privy Council and now from the law clerk, is that the government cannot respect the order of the House. That's what we're hearing.

Mr. Fisher referred to respecting the motion of the House. Well, the motion of the House is clear. We've asked for all these documents. We've given a timeline, and the House passed it. What we're really hearing the government say is that they are not going to do it. The question is, can't they, or won't they?

I think it's a question of resources. The law clerk has clearly indicated that they've put in additional resources and hired additional staff to do it. Even with that, it's not sufficient. There is a reference to millions of documents. I have no idea where that comes from. I have no means of assessing whether that's accurate or not. I don't know if that's rhetorical spin or if that's based on data.

The other way to go is to say that the House of Commons passed a motion ordering the government to produce those documents, and it's up to the government to produce whatever resources are required in order to comply. I don't know that it lies in the mouth of the government to say that it can't do it or it won't do it.

[The Chair, Liberal, Ron McKinnon]

Mr. Davies, can you to speak more specifically to Ms. Rempel Garner's motion?

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you, Mr. Chair.

I'm speaking directly to the motion, because the motion is predicated on the witness's statement that, given the resources he has, he cannot provide all the documents that have been ordered by the House to come to this committee. Ms. Rempel Garner's motion is an attempt to respond to that in a very responsible way by saying, let's prioritize them.

I support the motion, because I think we should prioritize them. That's a rational, reasonable and sensible way to deal with the matter, but I'm also raising the underlying question, which is, why isn't the government able to send all the documents, even if it is a million documents? That's a question of resources. It's a tough job to do, but it's not an impossible job to do.

I raise that for my colleagues to consider, in lieu of simply expecting the government to comply with the order. I suppose we can take appropriate procedures after that, if they don't. I think this motion is very rational and reasonable.

I'll conclude by saying that I listened to Liberals in the House oppose the motion in the House to produce documents, and one of their prime arguments was that there were too many documents and it would be too difficult for the government to comply. Here we have a motion in front of us that seeks to prioritize them and focus on vaccines and testing. Let's at least get those documents going, and we can give the government more time for the rest of the documents. Now I hear the Liberals saying they don't agree with that, so that's pretty tough to understand.

I'll be supporting this motion, and I thank my colleague for bringing it forward.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Davies.

Seeing no further hands raised, we shall now proceed to vote on the motion.

(Motion agreed to: yeas 6; nays 5)

We can carry on with Ms. Rempel Garner.

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

Thank you, Chair.

Mr. Dufresne, after the House adopted this motion or right prior, a lot of concern was put forward by the government, particularly around section (aa) and section (y) of the motion, which says that the documents will be “additionally vetted for 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, by the Law Clerk and Parliamentary Counsel”.

I read your CV. It's very extensive, and anybody who has an understanding of the role of the law clerk.... I've interacted with your office many times in my career as a parliamentarian. There's a lot of expertise there.

Are you confident about your team's ability to essentially get that part of the motion done, in terms of what it demands around confidentiality, etc.?

[Philippe Dufresne]

Absolutely, Ms. Rempel Garner. We have a full legal team with knowledge and experience on a range of legal topics. As indicated in my opening statement, we are, in a sense, the department of justice for the House, providing legal, litigation, drafting services for the House, obviously with smaller resources.

In terms of specific information that we may not have, factual information we may not have that the government would have, the government could raise that with us and bring it to our attention, and we would expect that it would do so, if it has concerns about the disclosure of information.

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

One of the things the procurement minister said was that if you had an inability to do the job, Canada wouldn't get a vaccine. I won't make you comment on the minister's comment, but are you confident that you can keep confidential the information that, let's say, Pfizer had concerns about?

[Philippe Dufresne]

We will be implementing what the House has ordered and the grounds the House has provided in its motion. It has provided, as one of the grounds, the protection of information the disclosure of which could interfere with the government's ability to contract or negotiate with third parties. From our standpoint, that's a broad ground that's meant to protect against prejudice to the contract ability of government with third parties.

The House has accepted that as a ground. We understand that ground. We understand the legal issues surrounding it and the implications, and we will apply those in our task.

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

Do you anticipate a delivery schedule for vaccines being something that you would redact?

[Philippe Dufresne]

We would have to see what is provided to us by the government and we would have to see the context and, again, what concerns may be raised with that. Is the information you're describing something the disclosure of which could interfere with the government's ability to contract or negotiate with third parties? We would expect the concern to be raised. We would consider that very carefully.

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

Quickly, has the PCO, Health Canada or any other government department reached out to you regarding the redaction processes surrounding vaccines, especially with respect to vaccine delivery schedules?

[Philippe Dufresne]

We were approached by senior government officials to exchange and discuss the practical implications of this motion and complying with the motion. And so, exchanges have been had in terms of what to expect. So yes, there have been exchanges.

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

Is there any information that you can provide on that exchange to the committee?

[Philippe Dufresne]

Discussions centred around what the motion required and how best the government could comply with it, and the implications for my office. It was really in the sense of a pragmatic consideration looking at how to meet this task that's set out by the House.

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

Thank you.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. Rempel Garner.

We go now to Mr. Van Bynen. Please go ahead for six minutes.

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

Thank you, Mr. Chair.

Thank you to our witnesses for joining the committee today and for their very informative statement. Certainly a lot has been mentioned, and it's insightful. I'm sure our committee will be asking you to elaborate on some of that.

First, in your statement you mentioned redactions, and it's clear that it's up to your office to vet them. I'm hoping you could elaborate on your office's redaction process.

[Philippe Dufresne]

As set out in my statement, we are setting up a team to review the documents, to look at the proposed redactions from the government, if there are any, and really to go page by page, line by line, making sure that given the grounds that the House has identified in terms of the appropriate areas for redactions, those are made, and that the information that needs to be kept confidential is kept confidential.

We would very much go about that in a very meticulous and very careful manner.

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

Thank you.

Are there standards for redactions enshrined in Canadian law? Can you expand on the obligations to redact under the Privacy Act?

[Philippe Dufresne]

In this context, the order and obligations to redact do not come from the Privacy Act. They come from the House's constitutional authority to seek documents and to determine the manner in which...and the public interest considerations that ought to be applied. We could look to those statutes, and if there are similar concepts that are found in those statutes, that can be a guide, but at the end of the day the ultimate ground is the one that the House has adopted.

This is what we would look to first and foremost, but certainly there is legislation, such as the Privacy Act and the Emergencies Act, that has related concepts, and we would look to see how those are consistent and helpful when applying the House's criteria.

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

Thank you.

I understand that in addition to the Privacy Act, there are obligations within the Access to Information Act as well. Are these different from those that are outlined in the Privacy Act?

[Philippe Dufresne]

These are obligations that fall on the government and the executive in terms of what documents can be requested by Canadians, the grounds for redactions and the process for complaints. There are obligations on Parliament and the House itself in terms of proactive disclosures, and there are rights for the protection of private information.

But these statutes are distinct from the House's authority under the Constitution to seek and receive information from witnesses, testimony and documents, and to determine the grounds therefore. Those statutes are not limits to what the committee can request. Obviously, they provide for very important public interest principles that should be considered, but ultimately the committee and the House have the last word.

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

Can you give us more information about the obligations required under the Access to Information Act?

[Philippe Dufresne]

Do you mean the obligations required on the government or on the House? As counsel to the House and as counsel to the committee, I would say that the obligations do not apply to the House and to the committee. So these would be questions really for the government, as to what it is required to do under those statutes, and the government would be best placed really to highlight its obligations in this respect.