Public Accounts Committee on March 23rd, 2023

[Najah Sampson]

I understand the direction that this committee would like to take. I am not refuting any of the authorities that have been placed with this committee, but it is still Pfizer's position that we not provide an unredacted contract.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Again, that's not really an answer. Big pharma is not supposed to be above the law, and we need these contracts.

Ms. Gauthier, what's your position on the Speaker's ruling?

[Patricia Gauthier]

We will comply. We comply with the laws in every country where we operate. We will always continue—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Okay. That includes an order of a parliamentary committee...?

[Patricia Gauthier]

We will comply with the law in every country where we operate.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you.

The gentleman from Medicago.... I'm sorry. You already said that you'd provide the unredacted documents.

I hope the government doesn't continue to try to cover for the desire of some in industry to hide these contracts.

I want to also just ask who asked for the confidentiality of contracts. Was it a demand from industry in these negotiations, or was it a request from the government?

[The Chair, Conservative, John Williamson]

Mr. Genuis, we'll have to come back to that. You're out of time, but there will be a subsequent round.

We'll turn now to Mr. Housefather.

You have the floor for five minutes. It's good to see you back, sir.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Mr. Chair.

Thank you, colleagues, and thank you to all of you for being here today.

I want to start by clarifying a few things. Number one, notably, this motion from Madam Sinclair-Desgagné doesn't ask the pharmaceutical companies to provide anything. It asks the government to provide something to the committee. Right away, the questions about whether you've provided or not provided are not the relevant questions. The question is whether or not in any other country a government has provided to a parliamentary committee these contracts.

Just give a yes or no, Madam Gauthier. Has in any other country a government provided to a parliamentary committee a Moderna contract?

[Patricia Gauthier]

Thank you very much for your question.

To my knowledge, no.

[Anthony Housefather, Liberal, Mount Royal, QC]

Ms. Sampson.

[Najah Sampson]

To my knowledge, no.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Baylet.

[Jean-Pierre Baylet]

Not to my knowledge.

[Anthony Housefather, Liberal, Mount Royal, QC]

Okay.

The second question I wanted to get at is this. There's an allegation that there's been a breach of the contract. I would come back to what Mr. McCauley said, that there are civil servants who have gotten these contracts and have read the contracts unredacted. The Government of Canada has said that we will waive the redactions that we requested in previous parliamentary committees, so there will be no redactions at the request of the government.

The question is this: Would the government be in breach of our contract with Moderna, Pfizer, Sanofi and others in the event that we provided the contracts in an unredacted way and the company said that certain provisions of the contract needed to be redacted for trade secrets or other reasons?

I haven't seen this contract, but I've seen the released Pfizer contracts that have been leaked from other countries. In all of those countries, there's a pretty standard provision in the confidentiality provisions that says that an exception to the confidentiality provisions is when, as a matter of law, the contract needs to be disclosed. In Canada there's the Parliament of Canada Act, which is a law that allows a parliamentary committee to compel the release of the document.

Can I understand, if this is the case...? I assume it is. I was a general counsel, and like Madam Gauthier I had the legal experience. In the past, whenever I had a confidentiality clause in an agreement—which is the standard, Mr. Genuis; it's in all agreements and both sides want it—I did an exception for providing it if a law requires it. Then the normal thing is that the disclosure has to give the opportunity to the recipient, the other party, to seek a protective order and co-operate. These are the standard clauses.

If this is the standard clause, how would the government then be in breach, provided we gave you notice and helped you seek a protective order or agreed to co-operate to help you seek a protective order?

I think Madam Gauthier would probably be best placed to answer that question.

[Patricia Gauthier]

I have not practised law for many years, so I will not comment on the legal aspects of this, if I may.

It's a really good question. I think what we want at the end of the day is that the terms and conditions that are contained in these agreements remain confidential. That's what we want, ultimately. It's important, because again, put yourself back in the context of two and a half years ago. Those were crazy times. We had to move fast. We had to create together. We created these agreements. I think what's important for companies....

I come from big pharma, and I'm in a tiny biotech that is growing fast, that is investing in Laval, that will be hiring more Canadians and that will be developing Canada into a centre of excellence in mRNA. That's massive, and that's because we believe Canada offers a predictable, secure and stable environment in which we can do business.

[Anthony Housefather, Liberal, Mount Royal, QC]

Absolutely, you deserve predictability.

The question is this. Every company that enters into an agreement with the Government of Canada knows that it's possible that parliamentarians may ask for a copy of the contract. It's happening right now with McKinsey before the OGGO committee. It's not unheard of and there's a confidentiality process for the committee.

Mr. Chair, how much time do I have left?

[The Chair, Conservative, John Williamson]

You have about a minute.

[Anthony Housefather, Liberal, Mount Royal, QC]

In this and whatever subsequent time I have in another round, I want to understand precisely, explicitly—not just saying that there's secret stuff in the contract—what clauses in the contract you would consider confidential.

For example, in the event that the formula for any of the vaccines was included in an annex to an agreement, which would be highly unusual because I don't know why Canada would need to produce it because we wouldn't create it ourselves, I could fully understand why the committee would have absolutely no need to know the formula for the vaccines. In my next round, I'm going to ask you to think about specifically which clauses in the contract you think need to be withheld and why.

Thank you.

[The Chair, Conservative, John Williamson]

You still have about 30 seconds, if you want to at least get one answer.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Gauthier, can you, in 30 seconds, try to answer which clauses it was?

[Patricia Gauthier]

There are global dynamics at play here. When these agreements were negotiated, every country was trying to secure a supply of vaccines for their country, and there are dynamics in terms of price referencing from one country to another. Each country has different laws and circumstances, and each agreement is different. There are many clauses on things such as pricing and sensitive commercial information and competitive information. We are in a global market dynamic and in a very competitive market dynamic as well, so any clauses that pertain to that are highly confidential and put the business at risk. If the business is at risk, it's the patient's benefit ultimately that will be impacted.

[The Chair, Conservative, John Williamson]

Thank you very much.

Ms. Sinclair-Desgagné, you have the floor for two and a half minutes.

[Nathalie Sinclair-Desgagné, Bloc, Terrebonne, QC]

Thank you, Mr. Chair.

I think that my colleague Mr. Housefather's questions are highly appropriate. There does indeed seem to be a cassette that mixes everything up.

I'm surprised. I thought you had practised law. But there is confusion here between industrial and commercial confidentiality. Commercial competition is never an exception to the Access to Information Act, but we haven't even got there yet. We are not about to release any information. We want to do our work as parliamentarians and limit the confidential information to the committee members here today.

Several of my colleagues spoke earlier about the committee's compliance with confidentiality. It happens all the time. Canada's Parliament can compel the release of documents. This was done recently with McKinsey & Company, but it has frequently been done before.

My colleague asked whether commercial contracts should be treated more confidentially than secret and confidential information about Afghanistan held by the Department of National Defence. No one is above the law. No one is above Canada's Parliament. The Standing Committee on Public Accounts has the right to require documents like these.

Now we're taking it even farther, and raising questions about secrecy. Mr. Tada, you gave a short description of what can be found in the contracts. There is the price, the quantity, the location and availability. None of these has anything to do with intellectual property or trade secrecy.

As a reminder of what trade secrecy is, I'm going to quote from Justice Phelan's decision in Merck Frosst Canada Ltd. v. Canada (Health):

The type of information which could potentially fall into this class includes the chemical composition of a product and the manufacturing processes used.

I am not a lawyer, but from the world of business. And yet, I've never seen a commercial contract that included a product's chemical composition or manufacturing process.

There's a misunderstanding that really needs to be clarified. I would very much like to end this meeting with all of us on the same wavelength, and using the same definitions, which have, after all, been established in law for quite some time now.

[The Chair, Conservative, John Williamson]

Thank you, Ms. Sinclair-Desgagné.

Mr. Desjarlais, you have the floor for two and a half minutes.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

Thank you very much, Mr. Chair.

I'm quite disturbed by the level of testimony provided to Canadians and their representatives today. We've asked simple questions about the paramountcy of Parliament and the direction of the Parliament of Canada Act. It is clear that, when you enter into contracts with the government, the Parliament act is supreme. You know full well the risks of entering into a contract with any government, in particular, a democratic one with the potential to ensure that Canadians can shine a light on what's happening here. That's something that is going to happen not just here but across the globe, I would hope, in holding your corporations accountable.

Except for the scientific breakthrough, your corporate practices have been detrimental to the world. They've been hurtful in that you have been unable to waive the TRIPS waiver, which has potentially caused thousands of deaths across the globe. It is important that Canadians understand that, when we are dealing with a private company, this is the kind of hostage takeover situation governments end up in, where it's sitting in front of us accusing us of breaching our requirements to the public and even going so far as to say the government is in breach.

Mr. Housefather spoke eloquently about the risk to Canadians. I believe that risk is unfair. You have a conflict of interest. In your presentation today, you described how valuable it is to ensure that lives of humans, in particular, Canadians, are protected, and then you've counterbalanced that by saying that your IP is so important that it's going to detrimentally impact your ability to negotiate elsewhere.

Our perspective, my perspective is the fact that, across the globe, this disease is still occurring. It's hurting everyone across the globe, and you're trying to protect your IP in order to get better pricing for your companies. It's egregious what corporations—not just yours—are susceptible to because of the laws we make in our country. We share, the government shares, responsibility for the actions you've taken here, which is why we need to have far stronger protections for Canadians in the pharmaceutical industry and temper their appetite for Canadian profits, and also global profits, at the expense of people's lives.

Canada used to be a leader in this space. We used to have, as a matter of fact in Winnipeg, the Winnipeg labs. We had investments in these things, and we sold out Canadians to corporations that would otherwise hold us hostage here today and threaten that they would sue Canadians because of what they already agreed to under the contract—the supremacy of Parliament—which is outlined clearly and identified by Mr. Housefather.

I'm not happy with how this has gone, and I have no further questions. I hope you reflect on the importance of waiving the TRIPS waiver to save lives.