Hon. Judith G. Seidman: Honourable senators, I rise today to speak to Bill C-10, An Act respecting certain measures related to COVID-19, at third reading.

Just to remind us once again, the passage of Bill C-10 would give authority to the Minister of Health to make payments of up to $2.5 billion out of the Consolidated Revenue Fund in relation to COVID-19 tests. It would also allow the Minister of Health to transfer the COVID-19 tests to the provinces, territories and other establishments.

During my speech at second reading in this chamber, I raised a number of concerns with regard to Bill C-10. First and foremost, the lack of a provision for parliamentary oversight in this bill. You might remember the conversation that I had with Senator Lankin when she specifically asked me about my concerns and said that if there was one or two particular issues that I was concerned about, which ones would I recommend in amending this bill. You are going to hear that right now.

Honourable colleagues, as some of you may know, during the debate on Bill C-10 in the other place, the Minister of Health made a verbal commitment to report to both houses of Parliament every six months on the procurement, distribution and use of rapid antigen tests. At the Social Affairs, Science and Technology Committee meeting on Wednesday of this week, the minister reaffirmed and modified his commitment to present a report to Parliament every three months as opposed to every six months.

When asked by my colleague Senator Poirier what accounts for this change, the minister said:

That came from a reasonable request from the opposition party in the House of Commons. They said that six months is good but three months is better. We considered that request and felt that, in collaboration with provinces and territories, it would be even better to do it in that relatively shorter time period.

Honourable colleagues, parliamentary oversight is an integral component of our democracy. It allows for greater transparency when discussing the federal government’s policy objectives, especially when it concerns matters of public spending.

As the minister himself acknowledged Wednesday in committee, “. . . transparency is key in not only informing senators and members of Parliament but also informing Canadians.”

Including a provision in Bill C-10 for parliamentary oversight, as opposed to something that is just said in words, would ensure that the federal government is held accountable for its spending. It would allow us to monitor critical data that pertains to the cost, use and number of rapid antigen tests delivered to their final point-of-care settings. This is not only the purpose of good governance but also in our duty to be a chamber of sober second thought.

Honourable senators, that is why I am proposing an amendment to Bill C-10 to address this issue of accountability.

The amendment would ensure that the Minister of Health reports to Parliament every three months. It would also require the minister to report on federal spending incurred from the period of January 1, 2022, up until the date that Bill C-10 receives Royal Assent.

As written in clause 1 of Bill C-10, the Minister of Health may spend money out of the Consolidated Revenue Fund to account for any expenses incurred on or after January 1, 2022, in relation to COVID-19 tests. This is why parliamentary oversight is of utmost importance. This amendment would ensure that critical data does not go unreported to Parliament for indeterminate periods.

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Seidman, not only for your speech but for your thoughtful and helpful intervention in this chamber over the course of the pandemic, especially with regard to the issue of tests and the things that Canadians need in order to protect themselves and their families, whether it was vaccines in an earlier phase or rapid tests, which has been a subject that you have brought to our attention and educated us on happily and thankfully over a long period of time. But here we are.

It is the position of the government that this amendment is not only not necessary but actually would cause harm. I want to take a few moments, respectfully and sincerely, to explain why.

As our colleague Senator Seidman pointed out, and as those of us who were at the committee on Wednesday would know, the minister made a clear public commitment. He stated in the House on February 14, and again before our committee on Wednesday, that the government is committed to reporting to Parliament every three months with information on how the funding in Bill C-10 will be spent, including the number of tests purchased and where they will have been distributed.

As I said in my speech, it is also the position of the government that the provisions that were included as part of Bill C-8 — to which Senator Seidman referred in her remarks — dealing with reporting requirements will also apply to funds paid for rapid tests under Bill C-10 because these are statutory expenditures. Therefore, respectfully I submit that an amendment of this kind is simply not necessary.

Furthermore, might I submit, colleagues, that the amendment as drafted would be problematic. The Crown cannot divulge payments made to specific suppliers, as the number of tests is already made public and competitors would then be able to determine the price of tests, which is commercially confidential information.

Let me now turn, if I may, to the consequences of not passing this bill today without amendment.

There is an urgent need, as I said in my speech, for this bill to pass so that there is a guarantee of supply for this month and into April and the spring. Not passing the bill before the two-week March break in our parliamentary calendar, as a result of an amendment, would significantly delay its implementation when funds are urgently needed to secure rapid tests in a highly competitive global market, including a competitive market from a procurement standpoint.

The consequence, colleagues, is that educational institutions, small- and medium-sized businesses, pharmacies and other suppliers will not get the rapid tests they need. If I may quote again from the comments of Mr. Stephen Lucas, Deputy Minister at Health Canada:

For Bill C-10, the urgency is our ability to be able to contract and secure through advance payment contracts heading out into the end of March, April and into May. Global competition remains stiff, and our ability to secure those supplies requires that lead time. Hence, the passage of Bill C-10 on an urgent basis will allow us to be able to secure those contracts in the coming weeks in advance of the passage of supplementary estimates so hence during March and enable the advance payment which suppliers are looking for to allow for the provision of those tests and to have those tests be delivered in the next fiscal year, into April and May, as I noted.

The minister has confirmed, including at committee, the commitment to report to Parliament, as I’ve said before, and to uphold this commitment. He acknowledged that, “. . . transparency is key in not only informing senators and members of Parliament but also informing Canadians.” If there is a delay in passing Bill C-10, the government may experience difficulty in meeting the increasing COVID-19 rapid testing needs of Canadians as well as those of the provinces and territories.

Health is a provincial jurisdiction. The federal government has a role to play — and has played throughout this pandemic — in providing the necessary funds to provinces and territories to meet needs that their budgets simply could not otherwise meet. They need the resources so that their residents and citizens have access to the rapid tests and so that individuals can take control over their own lives. These tests empower individuals to make decisions about their own health and those whom they care about.

It is an appropriate role for the Senate — which exists to represent regional and territorial interests and the interests of all Canadians, especially vulnerable Canadians — to at least be mindful of the impact of delay in that regard, and especially and importantly because, as I said, the measures introduced by this amendment are simply not necessary. They are redundant in terms of what is already in place in Bill C-8 and has already been committed to, solemnly and publicly, by the minister.

Let me add that in addition to the reporting requirement every three months, the government does, in fact, proactively disclose a number of information sources, reviewed on a continual basis, on COVID-19 medical devices as can be found on Health Canada’s website.

Colleagues, you in this chamber, through me, can hold the government to account to the reporting commitments. As I said in my speech, parliamentarians will be appropriately informed as to how these funds have been utilized.

For these reasons, and to ensure the government has the tools readily available to assist provinces and territories and Canadians to meet the rapid test demands this month and heading into the spring, I would respectfully and humbly urge colleagues to reject this amendment. Thank you very much.

Senator Gold: Senator, thank you for the question. As I said, the amendment you are proposing is redundant and not necessary and would impede the passage of Bill C-10. Bill C-10 is necessary, notwithstanding the funding also contemplated in Bill C-8 and the supplementary estimates, because of the actual situation in the global market, namely, the demand of suppliers facing tremendous competition for advance payments as well as the inability of the government — unless Bill C-10 is passed and until it gets the authority through Bill C-8 or supplementary estimates — to have the statutory authority to enter into these contracts.

Senator Seidman: So you said that, yes, it does cohere, in fact, with the amendment that was made to Bill C-8, if I understand you correctly.

Now that we are quoting testimony from the Standing Senate Committee on Social Affairs, Science and Technology, or SOCI, on Wednesday evening, I too was unable to be present because of a conflict of meetings. However, I did listen carefully to the recordings of the committee meeting.

Testimony at SOCI from the chief financial officer and the deputy minister was quite clear. They said that they procure the tests and what they call “cash manage” from other resources within the department. They are able to pay for the tests by cash managing within the department. I presume that means moving monies around until they receive the cash to pay.

In fact, during the discussion on Wednesday night, Senator Patterson paraphrased what he had heard from the chief financial officer. Senator Patterson said:

. . . Bill C-10 allows you to retroactively collect for monies spent up to $2.5 billion after January 1, 2021. . . . Do I understand that right?

And Ms. Francis, the chief financial officer, said “Yes.”

Senator Gold: Thank you. I did attend the committee meeting, though I don’t have the transcript in front of me.

The officials were very clear that the tests that had been procured to date were funded out of existing statutory authorities that the law allows to be used and then be reimbursed. Those statutory authorities have run out. There is simply no legal capacity for the government to enter into contracts — today or tomorrow, if and when this is passed — with the suppliers demanding advance payments. Unless and until Bill C-10 is passed, or some future statutory authority is granted — supplementary estimates at the end of March perhaps; Bill C-8 whenever we might get it — the government is without capacity to find funds elsewhere to prepay or to move forward.

That’s the urgency. The government has no legal authority, for the moment, outside the authority that Bill C-10 would grant, to continue to seek those hundreds of millions of tests that Canadians are demanding, and that provinces and territories are demanding.

Hon. Percy E. Downe: Senator Gold, I have to tell you I don’t take particular comfort in your reassurance of transparency. We heard this morning another senator complaining about not getting answers. We have had questions on the Order Paper for weeks, months and, in some cases, a year, that have not been answered since you have been the government leader. I don’t know if the problem is in your office or the problem is that you can’t get answers from ministers, but this is very different than the situation when Senator Harder was the government leader in the Senate.

He made an effort to get these answers, and he made a public commitment similar to the rules of the House of Commons. The rules of the House of Commons are that members of Parliament can get an answer to written questions, as required by the rules, within 45 sitting days. Senator Harder attempted to and had some success in meeting that same standard in the Senate. That has now completely disappeared.

Where is the trust and the confidence when you say that you can advise us and give us answers when that has not been the case since you have been the government leader in the Senate?

Senator Gold: I am going to answer much of your question very briefly, Senator Downe, and with restraint. There is no problem in my office nor in my efforts to represent the Senate and to seek answers wherever appropriate. But that’s not what we are talking about. We are talking about, today, a bill to provide assistance to the provinces and the territories, including your own and the residents that you represent, so that the Government of Canada can fulfill its role in partnership with provinces and territories to assist individual Canadians, who have a constitutional right over their own bodies, to make intelligent and informed decisions.

The minister, not Marc Gold, in the other place and in committee, made an undertaking publicly to report in a transparent way, in addition to the reporting that has already taken place.

I ask this Senate to have confidence and trust in its institutions, in the federal institutions and in those who serve in it, to be honourable people and to honour their words.

Senator Gold: Thank you for your question, and at the risk of repeating myself — I seem to be in the habit of doing that over the last few weeks — the reason the government is urging senators to pass this bill without amendment is so that there will be no further delay in the ability of the federal government to procure those tests which provinces, territories, Canadians, the Red Cross and the chambers of commerce are asking them to procure.

It is only the ability of the federal government and its spending power that enables Canadians to have those tools, even though this is not an area of its jurisdiction. It is the practical real-life situation facing Canadians that we in the Senate are being asked to address, under circumstances where the reporting measures which this amendment seeks to incorporate in this act — with the corresponding impacts as I have described — are not necessary. This is not only because of the publicly stated commitments of the minister both in our committees and in the other place but because those reporting provisions that exist in a bill yet to be passed would apply to these as statutory expenditures.

Senator Gold: Thank you for your question. The government shares your concern as I think many Canadians do. I’m not sure if the image of the belt and suspenders is appropriate. There are belt, suspenders and one other girding instrument.

It is precisely because the demand for tests ramped up so dramatically. It is not that long ago when we worried that tests were being delivered to provinces and they were sitting on them. As the minister pointed out in his testimony, the exponential increase in demand is only expected to increase, for reasons that you outlined very well. That’s why the government introduced Bill C-10 but also wanted to cover its bases — because one can never tell when a bill will pass or if it will pass — with the supplementary estimates and Bill C-8.

My former law professor Laurence Tribe once said, if you live by the crystal ball, you had better be prepared to eat glass. I have a strong stomach, but I’m not going to take that risk. I don’t know. That’s the point. We don’t know what the delays will actually mean. Yesterday, today and tomorrow, there is worldwide competition for a finite supply — I hope it’s growing but, still, finite in any given moment — from a finite number of suppliers.

Unless and until the Government of Canada is legally able to start negotiating contracts, much less concluding contracts, much less paying in advance of delivery, we just don’t know. But when you do a risk-reward — and dare I say a utilitarian — calculation, which is part of our political obligations as members of a Parliament, the risk to Canadians’ health far outweighs the risks to transparency, given, as I have already said, the commitments and legal provisions in other bills that will come before us. I hope that answers your question.

Hon. Jane Cordy: I was going to ask — as a mother and grandmother — a similar question as Senator Ringuette, so I’ll just reiterate that and ask another question. I think it’s extremely important that tests be made available as quickly as possible with March and spring breaks coinciding with the reopening of many provinces and territories. We would all like assurances that we will have access to the testing.

My other question has to do with section 3(1)(a), the details of payments made under section 1, including the recipient of each payment. If I recall, way back when, almost two years ago, which is sort of scary, when Canada was trying to find COVID tests and people were asking about the cost and all those kinds of things, you mentioned “commercial confidentiality” in your speech — that those things can’t be given out publicly — whereas this amendment would actually require that.

Senator Kutcher: I will speak to the preamble as someone who has just had COVID-19. It was brought to the family courtesy of one of our grandchildren who was asymptomatic. He picked it up at school courtesy of another student, and it went through the whole family. I was as sick as a dog for about a week.

The rapid tests were absolutely essential. My son-in-law took a rapid test and was asymptomatic — he tested positive. He didn’t go to his workplace and infect all his employees. My daughter didn’t go to school, didn’t go to the classroom, didn’t go to her job site and didn’t infect everybody else. I happily stayed at home in bed.

As I understand this amendment, your argument is that the amendment will not significantly and substantially improve reporting commitments made in public by the minister and that it has the potential to delay the procurement of needed rapid tests which will then make it difficult for Canadians to manage their own COVID risk. Is that your argument?

Senator Gold: Senator, I very much hope that you can see your family in the U.K. No, that would be fear-mongering and that is not what I do in this place. I don’t know what the delay would mean. I suspect the delay will be felt less severely by those of us in this chamber. We have access to rapid tests by virtue of our privileged position.

Yes, because we are who we are. We don’t live in remote areas. We have access to pharmacies. Most of us have access including rapid test procedures made available to us here in the Senate. That’s all I was referring to. But not all Canadians are necessarily in the same position that we’re in, and not all Canadians will necessarily have the ability, without these tests, to take the measures to protect themselves.

I don’t know, and that’s the point. We don’t know the extent of the impact of delay. We know there will be an impact because demand from provinces is growing. The federal government is trying to play its responsible part in meeting the stated needs of the provinces and territories.

I remind senators that it is the provinces and territories that have responsibility over health. They are the ones that understand what the needs are. They understand the needs in remote areas, rural areas and Indigenous communities. The Canadian government is there to help them. That is what I am asking us to do today.

The Hon. the Speaker informed the Senate that the following communication had been received:

RIDEAU HALL

March 4, 2022

Mr. Speaker,

I have the honour to inform you that the Right Honourable Mary May Simon, Governor General of Canada, signified royal assent by written declaration to the bill listed in the Schedule to this letter on the 4^th day of March, 2022, at 12:20 p.m.

Yours sincerely,

Ian McCowan

Secretary to the Governor General and Herald Chancellor

The Honourable

The Speaker of the Senate

Ottawa

Bill Assented to Friday, March 4, 2022:

An Act respecting certain measures related to COVID-19 (Bill C-10, Chapter 2, 2022)

(At 12:47 p.m., pursuant to the order adopted by the Senate on November 25, 2021, the Senate adjourned until Tuesday, March 22, 2022, at 2 p.m.)