Public Accounts Committee on March 23rd, 2023

[Najah Sampson]

I can't comment on any clause in our contracts that—

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

Can you just tell us if there are indemnification clauses in these contracts that you signed with the government related to COVID-19 vaccines?

[Najah Sampson]

I cannot comment on anything in the confidential contracts, but I can say that there are pathways that are available—

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

You can't tell us if there are indemnification clauses.

[The Chair, Conservative, John Williamson]

Thank you very much.

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

Unbelievable.

[The Chair, Conservative, John Williamson]

That is the time.

Next is Ms. Shanahan.

[Anthony Housefather, Liberal, Mount Royal, QC]

I'm actually going to take that time, Mr. Chair.

[The Chair, Conservative, John Williamson]

Okay. That is good, because I was worried there for a minute.

Mr. Housefather, you have the floor for five minutes.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

In response to Mr. Genuis's question, indemnification clauses exist in all agreements. They are a standard thing, but I would think that, based on what I have seen from the leaked documents, the indemnification clauses in COVID-19 agreements are vastly different from the indemnification clauses in normal pharmaceutical contracts, given the development of the product. Governments took greater responsibility in all of the documents that I've seen.

Let me come back to this again. This committee, as you now all understand—maybe it wasn't so clear before—has the power to compel the government to deliver unredacted versions of the contracts. The members have that power. This committee has that power. In order for the committee to not exercise that power, you need to be able to convince the committee that actual harms would be suffered by the people of Canada, by the government, by you or by somebody if unredacted versions were delivered.

I again come back to this. As I would read a normal confidentiality clause, the fact that the law of Canada, the Parliament of Canada Act, obliges the government to deliver that would mean that they were likely not in breach of the agreement provided they followed the other stuff in terms of giving you the right to seek protective orders, etc. I want you to have that opportunity now to clearly convince the committee as to why the committee should say that, even though we're entitled to unredacted, this should be redacted.

I understand it for trade secrets. I understand it for trade secret information. I may understand it for pricing and delivery schedules. I'm less hesitant on delivery schedules, but pricing I understand. What other clauses in the agreements specifically could potentially harm you in terms of having a stable relationship with Canada? You have a right to work in a stable environment. I agree with that too. You invest in a country because you believe in stable relationships, even though there's a parliamentary committee that's not likely to divulge what they see.

I asked Ms. Sampson the last time, so maybe I'll ask you this time, Madam Gauthier. I'm wondering if you could give me specific clauses where Moderna would say, “Wow. These are really sensitive. We would need to have this redacted before it goes to the committee.”

[Patricia Gauthier]

These agreements are very long and complex. They have been amended a few times, because situations have evolved. We've had to adjust to the situations. I have not—full disclosure—reviewed the agreements in detail before coming here.

Again, you talked about indemnity, you talked about pricing and you talked about trade secrets. There could be some IP. IP is not just a full-on five-pager of a recipe for a vaccine. IP could be woven into some areas. There could be some IP in the agreement in areas. Anything that has to do with the supply chain is really sensitive and confidential as well.

[Anthony Housefather, Liberal, Mount Royal, QC]

Again, if you've disclosed who your suppliers are and the terms you have with your suppliers.... There's third party information in there. I get that. I don't see that in many contracts, but I would get that. I don't know where IP is normally woven into a contract. I've worked in IP and technology my whole life, and it's very rare that you would be mentioning IP.

Again, with an indemnity clause, I don't know why the indemnity clause in particular would be harmful to you guys, particularly in this context, given what I would imagine is in that indemnity clause.

I appreciate it, but again, you have to understand the situation here. You clearly have a majority on this committee who would believe that they want unredacted documents to be delivered. Unless you can make specific compelling arguments, it's likely that the committee will adopt that kind of motion.

Again, I want to give you the chance to offer me those compelling arguments as to what you believe will happen. I get trade secrets. I get price. Other areas that you need.... What would happen if this just went to the committee and was never disclosed to anybody else?

[Patricia Gauthier]

We entered into these agreements within the rules of engagement, and I don't think these conversations we're having right now were part of the consideration of the rules of engagement at the time.

The context in which these agreements were entered into is very specific. The context in which these contracts were entered into in other countries, with the European Commission and in the U.S., where there was broader support in Moderna's case, are very different.

[Anthony Housefather, Liberal, Mount Royal, QC]

Let me ask you a question.

Would you have this problem if it were a different type of contract—not a vaccine contract under COVID-19 but a standard contract you entered into to sell a different drug? Would you have the same problem, or is this very specific to this unique set of circumstances and this unique contract?

[The Chair, Conservative, John Williamson]

Mr. Housefather, you're going to hold that question. You will have one last round.

Go ahead, Ms. Sinclair-Desgagné.

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

Can we have an answer from at least one person? I suggest Ms. Gauthier.

[The Chair, Conservative, John Williamson]

Okay, but it has to be brief. She can answer yes or no.

[Patricia Gauthier]

It won't be a short answer.

[The Chair, Conservative, John Williamson]

Okay. Thank you for your honesty.

I am going to do one more round. I'm going to give the witnesses the option of having a five-minute break. We can either get it done quickly like ripping off a band-aid, or I'm happy to suspend for five minutes if you'd like.

[Najah Sampson]

Let's just get it done.

[The Chair, Conservative, John Williamson]

Okay. I was just checking.

Mr. McCauley, you have the floor for five minutes.

This will take less than 30 minutes in total, just so you know.

Mr. McCauley, it's over to you.

[Kelly McCauley, Conservative, Edmonton West, AB]

Thanks, witnesses.

First of all, I have a great appreciation for big pharma. One of the large ones not represented here today has donated an amazing amount of life-saving drugs to children in Edmonton who are suffering from SMA.

This should not be described as a hostile event. We are just trying to understand why we have contracts that have been leaked around the world. We have all the details. I'm looking at a website, Investors.com, on which the president of Moderna is quoting the new price it is trying to get out of the U.S. I am kind of struggling with how we're arguing about a hidden price when it's public. He's going to war with Bernie Sanders in public tomorrow with the current price and the future price being public and how this is going to affect commercial sensitivities.

I am looking at the Pfizer contract leaked from the U.S., and it actually states in 11.9.3 that the receiving party, the government, can release confidential information if required under legal or administrative proceedings.

Pfizer has already agreed in the U.S. that it will release it if required, as Mr. Bédard said. None of this is up for argument. You were invited here to explain—and Mr. Housefather has explained much better—why you are opposed to our seeing some of these things. I'll admit to having great frustration when we keep asking simple questions, especially around these implied threats to Canada.

Mrs. Gauthier, you mentioned, for a great prop, that you were able to deliver by Christmas Eve. You were able to deliver by Christmas Eve because you knew these were confidential, as if it's implied that if it weren't confidential they would have withheld these vaccines from Canada. It's almost farcical when we consider that probably 95% of your combined business is in these leaked contracts that I have copies of when you've clearly stated that you have not divested from these countries and you've clearly not withdrawn any access to vaccines. It's almost as if you're continuing this charade that the only reason you're doing these things out of the goodness of your hearts is that these things are confidential.

I wanted to address that, but also Pfizer already clearly stated in its contract that got leaked, not from Canada, that it could hand it over.

We are going to sit under the guard of our very able clerk without any phones, without any cameras, without any copiers and without any pens and papers to copy anything.

What is the great concern with the 11 of us, who have zero ability...? Mr. Housefather—and I will give him points—has a much better memory than a lot of us do. He might be able to memorize a couple of these words, but what is the great concern with blocking 11 MPs from seeing this with the great oversight provided in the motion by my colleague from the Bloc?

Everything has already been leaked. The Government of Canada hasn't leaked anything, even though there are 100 or 200 public servants who have full access to this, whether it's on the procurement or the legal side. What is this great push-back, this great narrative that your paid allies are spinning about how it's going to be a great disservice to Canada and cost jobs and lives if 11 MPs sit in a guarded room for a day with zero ability to copy anything?

Why is there this push-back and spinning of this Hollywood-style narrative, I would say, about the dangers of Parliament looking at it?

[The Chair, Conservative, John Williamson]

You have one minute, Mr. McCauley.

[Kelly McCauley, Conservative, Edmonton West, AB]

Ms. Sampson, I'll start with you.

[Najah Sampson]

Respectfully, I don't think any of us—especially me, and I'll speak on behalf of Pfizer—is trying to downplay the great responsibility that this committee has. I just want to be very clear about that.

I think, in this particular case, it is the confidentiality that we expect from all of the contracts that we enter into. It's just—