Industry committee  It's important to note that there are two aspects to this. As you note, there's the process that follows from the decision, but the process is based on the information. Therefore, the movement from section 25.1 to 25.2 to 25.3 is an escalating view of the national security evidence.

Industry committee  I am following. Right now, the movement from one level or one stage of the national security review to the next is premised on the analysis of the information. By essentially assuming a section 25.2 review, one is presuming that the information necessitates it, whereas the analysis in the current format is this: Here is the information; an assessment is made as to whether or not we believe that it could be injurious; further analysis and assessment are then done to move it to the next level, where it's believed that it would be injurious.

Industry committee  This amendment would reduce the minister's discretion because it would require the minister to go to the second phase of the national security review, that is provided for under section 25.2. Consequently, that wouldn't give the minister more powers because it would reduce his or her discretion.

Industry committee  Yes, because the minister wouldn't have the authority to consider the national security implications step by step. Normally, the national security review is triggered, then the decision is made whether to go on to the second phase, the one provided for under section 25.2. Then the decision is made on whether to go to the phase provided for under section 25.3, and, lastly, an order may be made under section 25.4.

Industry committee  Thank you, Mr. Chair. I would concur with the assessment that was provided, in that the ICA has jurisdiction over assets but this definition would essentially ensure that it's understood to include assets to which we believe the act already applies and what's best in light of those.

Industry committee  Mr. Chair, I'm not in a position to answer the question that was put by the member. Section 25.3 is fact-based and use case-specific. A case is determined in consultation with the national security community as to whether or not a given investment meets the test of “could be injurious to national security”.

Industry committee  Intentionally including additional categories into a law is often rationalized. Jurisprudence routinely returns to the question of what the government meant by specifically adding in some clauses and not others. That's actually been a subject of considerable jurisprudence over the years—whether or not the government meant to actually exclude other things, because obviously that was intentional, while giving itself the right to do something it could already do.

Industry committee  Right now the language is exclusive in that there is no such clause at the end of the factors, so by specifying them, you would potentially risk that.

Industry committee  I would raise a potential other concern, which is, notwithstanding the overtly broad and purposeful nature of the factors, to balance that with the desire for some degree of certainty. If this is non-exhaustive and suddenly you can throw in whatever else you want to consider, you're actually bringing uncertainty to potential investors, because now you've actually....

Industry committee  We believe them to be within the current scope, which is why it's problematic to potentially add them in. We believe we already have the power to do this, and we have.

Industry committee  My comment was less that it prevents this work—because we already do this work. It's the fact that by identifying this work—notably, privacy and intellectual property—we actually potentially don't think about other aspects that are also legislatively required. We have many other factors that we believe are actually factors we consider and also that have obligations under statute.

Industry committee  With respect, Mr. Chair, I would disagree. Privacy rights, particularly as they're spelled out here, actually speak to legislative and statutory obligations that exist under the Personal Information Protection and Electronics Documents Act. Where it speaks to intellectual property rights, those are actually spelled out in the Patent Act, in the Trademarks Act and in the Industrial Design Act.

Industry committee  I can't share that because it's from a case.

Industry committee  The factors that are currently listed in section 20 are intentionally broad: (a) the effect of the investment on the level and nature of economic activity in Canada, including, without limiting the generality of the foregoing, the effect on employment, on resource processing, on the utilization of parts, components and services I won't read them all, but, needless to say, section 20 right now has intentionally broad parameters for the purposes of trying to ensure that we can contemplate a number of factors.

Industry committee  Thank you, Mr. Chair, for the question. We already consider these factors with respect to the nature of the law. One of the challenges of legislation is positive versus negative lists. There are existing obligations with respect to our capacity to include and understand privacy and IP protections as it relates to the ICA.