Industry Committee on Oct. 28th, 2010

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

Perhaps our legislative clerk could tell us how we could keep all the definitions that appear in the current legislation, while at the same time amending the definition of “pharmaceutical product”, as proposed by Mr. Garneau in order to ensure consistency with the other amendments made to the bill.

[Mike MacPherson]

Bill C-393 appears to be including a definition for the term “pharmaceutical product”. It states that it is the same definition as “section 2 of the Food and Drugs Act. If we go to section 2 of the Food and Drugs Act, we have “drug”, which is what this would be referring to, and there is a complete definition there of what a “drug” is. Mr. Garneau's amendment would replace that with a straight reference to section 1 of the Patent Act, which would now be the first section of Bill C-393.

[The Chair, Conservative, David Sweet]

Mr. Garneau, the legal clerk is here to assist us, but you have to work through your intentions and make sure that you craft the amendment the way you would like it. We'll certainly check it in that regard, but it's incumbent upon you to edit it in the fashion.... The way it's working right now.it...well, it's not workable.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

I'm confused, but I take your point.

[The Chair, Conservative, David Sweet]

I don't mind if you'd like to suspend for a few minutes. You can talk with the legal clerk and then we can move from there.

Is that agreed?

[Some hon. members]

Agreed.

[The Chair, Conservative, David Sweet]

We'll suspend for five minutes.

[The Chair, Conservative, David Sweet]

Ladies and gentlemen, we're back in session.

We've had consultations with the legal clerk, and I'll have Mr. Garneau explain, please, so we have some understanding of where we're going.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

Just to repeat, whether I missed something or not, under clause 2 there is a definition of “pharmaceutical product”. The intention is to replace that definition by the one that is written in amendment 1, no more, no less. What's significant about this definition is that it refers to the new schedule 1 that we dealt with in our first amendment. Secondly, it talks about the recommendation of the Minister of Health, which essentially says that this drug list has Health Canada approval.

[The Chair, Conservative, David Sweet]

Okay.

Monsieur Malo.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

I want this to be perfectly clear. By replacing this definition, clause 2 removes all the other definitions that are currently in the legislation. Proposed amendment LIB-4 refers to a certain number of definitions—for example, of the WTO, the TRIPs Agreement or that sort of thing, which would not longer appear in the list of definitions.

What I'm seeking to do, obviously, is to find a way to amend the definition of “pharmaceutical product” in order to ensure, as Mr. Garneau has said, that it is consistent with the schedules, motions and clauses passed previously, while at the same time maintaining those definitions that we will need in order to interpret proposed Liberal amendment LIB-4, for example.

[The Chair, Conservative, David Sweet]

Because my desire for clarity is as great as yours, I'm going to have the legislative clerk answer you directly, Monsieur Malo.

[Mike MacPherson]

What I'm going to suggest—and it's up to the committee—is that the vote on Liberal-5 be applied to Liberal-4, specifically because of the references to schedule 1 or 2. That was creating the confusion. That vote was a strictly consequential relationship. It appears that this has created a lot of confusion and there are a lot of elements in clause 12 that Liberal-4 impacts upon that members would appear to want to debate further.

My suggestion to the chair to suggest to the committee is that we no longer apply the vote on Liberal-5 to Liberal-4 and that we'll deal with that when we get to clause 12.

[The Chair, Conservative, David Sweet]

Monsieur Malo.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

Mr. Chairman, if we reconsider our decision to pass clause 12 as amended by LIB-4 and we pass this amendment to the definitions in clause 2 of the bill, it will no longer be possible to add any definitions if there is a need to do so.

Earlier, I asked the officials who are here with us what definitions are needed in order to understand the Patent Act. Bill C-393 is obviously going to amend that Act, and we will be removing all the definitions that currently appear there if we pass clause 2 as amended, or even if we pass it as it appears in the bill.

So, I'd like to reformulate my question and ask it again. We are currently debating clause 2. What definitions are needed in order to understand the Act, whether or not it is amended by Bill C-393?

[Mona Frendo]

I'll answer that question by listing the definitions that are currently in CAMR. There are definitions for: “authorization”, “General Council”, “General Council Decision”, “patented product”, “pharmaceutical product”, “TRIPS Agreement”, “TRIPS Council”, and “WTO”. Bill C-393 would delete all of those definitions except for the definition of “authorization” and “pharmaceutical product”. And, as I heard Mr. Garneau say, he would choose to revise the definition for “pharmaceutical product” put forward in Bill C-393.

On the issue of the other definitions, “patented product”, for example, is referred to in the definition of “pharmaceutical product”. If you delete the definition of “patented product”, you are creating potential uncertainty in the definition of “pharmaceutical product” that Mr. Garneau has proposed.

In terms of deleting the definition of “WTO”, I just did a quick search of the provisions, and that term is referred to in subparagraph 21.13(d)(ii) and paragraphs 21.14(g) and 21.14(f), so there would be implications in other sections of the act. That word is referenced in other parts.

“General Council Decision” is referred to in at least one other place that I could find quickly, and that is subsection 21.17(2).

There would be implications if you delete a number of these definitions and only leave “authorization” and “pharmaceutical product”. You're going to have carry-through implications for other provisions in the bill.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

Merci.

[The Chair, Conservative, David Sweet]

Thank you.

Mr. Malo, do you have a rebuttal question? Can I go to Mr. Garneau first?

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

Oui.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

This is one of the disadvantages of being an engineer instead of a lawyer. My intent was not to get rid of other definitions. I only see two definitions in Bill C-393. I wasn't aware of the existence.... I have to admit that I didn't pick up on all these other definitions. I have no problems with those other definitions being brought into here, if it will help the situation. My intent was to define “pharmaceutical product”.

[The Chair, Conservative, David Sweet]

Monsieur Malo.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

So now, our job is to keep the definitions currently in the legislation while at the same time amending the definition of “pharmaceutical product”, so that it jibes with the amendments and clauses we have already passed. So we have to do both of those things. That is the reason why we need clarification from our legislative clerk, in my opinion. He might be able to suggest an amendment which would enable us to do both simultaneously.

If he needs a little more time, perhaps we could suspend the meeting for a few minutes, Mr. Chairman. This is important.

[The Chair, Conservative, David Sweet]

In all fairness, Mr. Malo.... I mean, I'm going to talk to the clerk, but to ask the clerk to devise an amendment that is germane to the intent of the original one I think is asking a lot.

I will let him think about that for a second, I'll go to Mr. Lake, and then we'll deal with that.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Mr. Garneau referred to the other definitions that are in section 21.02 of the act that is being amended here. To be clear, the other definitions in the Patent Act that are struck out by clause 2 of Bill C-393 are references to “General Council”, “General Council Decision”, “TRIPS Agreement”, “TRIPS Council”, and “WTO”.

Now Mr. Garneau, I'm not sure if it's the Liberal position to wipe out all references in the Patent Act to “General Council”, “General Council Decision” “TRIPS Council”, and “WTO”, but that's the effect of clause 2 of Bill C-393.

Mr. Garneau's amendment changes the definition of “pharmaceutical product”, but it doesn't address the wiping out of all of the references to WTO, TRIPS Council, TRIPS agreement, and all of those things. Is that correct?

[Colette Downie]

That's correct. It also allows the definition of “authorization” to stand. That definition deletes the possibility of a renewal, so it also creates uncertainty about how long an authorization then stands for.