THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, October 3, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:32 a.m. [ET] to study Bill C-64, An Act respecting pharmacare; and in camera to discuss observations appended to the report.
Senator Ratna Omidvar (Chair) in the chair.
[Translation]
The Chair: My name is Ratna Omidvar, and I am a senator from Ontario.
[English]
I am the chair of the Standing Senate Committee on Social Affairs, Science and Technology. Welcome to all.
Before we begin, I would like to go around the table and have senators introduce themselves to the public, starting with our deputy chair, Senator Jane Cordy.
Senator Cordy: My name is Jane Cordy, and I am a senator from Nova Scotia.
Senator Senior: Hi. Paulette Senior, from Ontario.
Senator Muggli: Tracy Muggli, a senator for Saskatchewan.
Senator Osler: Flordeliz Gigi Osler, Treaty 1 territory.
Senator Moodie: Rosemary Moodie, a senator from Ontario.
Senator Tannas: Scott Tannas, from Alberta.
Senator Burey: Sharon Burey, from Ontario.
Senator Bernard: Wanda Thomas Bernard, from Mi’kmaw territory, Nova Scotia
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
Senator Brazeau: Patrick Brazeau from Quebec.
[English]
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Seidman: Judith Seidman, Montreal, Quebec.
Senator Quinn: Jim Quinn, New Brunswick.
Senator Dasko: Donna Dasko, a senator from Ontario.
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
The Chair: Today, we are proceeding to a clause-by-clause consideration of Bill C-64, An Act respecting pharmacare.
I’d like to welcome back officials from Health Canada who are with us in the room today and are available to answer any questions members of the committee may have. They are as follows: Michelle Boudreau, Associate Assistant Deputy Minister, Health Policy Branch; and Daniel MacDonald, Director General, Office of Pharmaceutical Management Strategies, Health Policy Branch. Welcome.
Before we begin, I would like to remind senators of a number of points.
If at any point a senator is not clear where we are in the process, please ask for clarification. We want to ensure that at all times we are all on the same page with regard to where we are in the process.
In terms of the mechanics of the process, when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause.
If a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
Some amendments that are moved may have consequential effects on other parts of the bill. It is therefore useful to this process if a senator moving an amendment identifies to the committee other clauses in this bill where this amendment would have an effect. Otherwise, it becomes very difficult for members of the committee to remain consistent in their decision making.
Since no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory. It is at that point, colleagues, that I may choose to suspend so that we can discuss language and so forth with the clerk.
If committee members have any questions about the process or the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion on a matter or point of order and make a ruling. The committee is the ultimate master of its business within the bounds established by the Senate, and any ruling made by me can be appealed to the full committee by asking whether the ruling should be sustained.
I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results.
Finally, senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above? If not, we can now proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-64, An Act respecting pharmacare?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Senator Quinn: I have a question on clause 2, definitions, specifically focusing on pharmacare. I’m looking for clarity, and I was hoping that I could ask the officials some questions for clarity.
The Chair: Which clause are you talking about and which line?
Senator Quinn: The definition of pharmacare, specifically line 30. Pharmacare is three lines long.
The Chair: Okay.
Senator Quinn: I have three or four questions.
The Chair: Perhaps the witnesses would like to come up for the questions, because we won’t be able to obtain a translated version of the answer, nor will we be able to hear you from that far away.
Senator Quinn: The few questions I have, at the end of the day, are centred around spending authorities, but I’ll come back to the first question and work my way through.
My first question is this: Are emergency contraceptives nonprescription drugs, as they’re not on the prescription drug list? Yes or no? They’re not on the prescription drug list, so are they nonprescription drugs?
Michelle Boudreau, Associate Assistant Deputy Minister, Health Policy Branch, Health Canada: Normally the way this would work is that provinces and territories themselves would decide whether they want to make them nonprescription, i.e. available over the counter, if you want to put it that way. They are nonetheless typically kept in the dispensary, so the pharmacist would be giving those out. Again, that would be a provincial-territorial responsibility.
However, the definition I think you’re looking at, just to be clear, uses the term “related products” as well, so the definition as a whole is intended to capture both what we might all think of as a prescription drug, but also certain things that are available without a prescription for various reasons. For example, insulin is often technically available without a prescription. That’s the reason for that phrase in the definition.
Senator Quinn: To clarify, for diabetics, there are related products like strips and pumps and things like that. Is insulin a related product?
Ms. Boudreau: I think it’s important to look at the phrase together: “prescription drugs and related products.” It could certainly fall within that second part, which would not require a prescription. That’s why the term was chosen, because in various pieces of legislation, sometimes it will be described as a scheduled drug, a prescription drug or a drug that requires a prescription. We chose that term quite intentionally to cover those types of products.
Senator Quinn: I appreciate that. That’s very helpful, noting that this is federal legislation.
Are injectable insulins nonprescription drugs? I ask because they are not on the prescription drug list.
Ms. Boudreau: That’s the same thing. They would fall within that category of “related products.”
Senator Quinn: There was report published, the Hoskins report. Can you confirm that the background material to the Final Report of the Advisory Council on the Implementation of National Pharmacare, on page 19, defines the term “related products” as “devices and supplies”? I just want to be clear that the definition does not include nonprescription drugs. Is that correct?
Ms. Boudreau: Would you mind repeating the last phrase of your question?
Senator Quinn: Sure. The Hoskins report, on page 19, defines the technical term “related products” with the phrase “such as devices and supplies,” and I just want to be clear that this definition does not include nonprescription drugs. Is that correct?
Ms. Boudreau: The definition does not include nonprescription drugs?
Senator Quinn: It does not include nonprescription drugs.
Ms. Boudreau: No, the definition could include nonprescription drugs, and it’s intentionally —
Senator Quinn: So they don’t have to be explicit in that expression?
Ms. Boudreau: That’s right.
Senator Quinn: Also, the Canadian Drug Agency, in their 2022 report Building Toward a Potential Pan-Canadian Formulary, defines the technical term “related product” similarly, as devices that directly support the delivery, administration and optimal use of drugs to assist in the safe use of drugs or are dose management tools to improve patient care. Again, am I correct in saying that this does not include nonprescription drugs?
Ms. Boudreau: No, again, it would include things that could be nonprescription. For example, an IUD that is a copper IUD does not contain a drug, and it typically would be available without a prescription. There is no drug in a copper IUD. Similarly to the phrase you’re referring to, an aerochamber, which is usually attached to the puffers to help get the drug into the lungs, would be similar. It’s a device, and it does not require a prescription.
The Chair: Senator Quinn, I will allow your line of questioning, although we are in a clause-by-clause consideration.
Senator Quinn: I know. I am just trying to get clarity on the definition. That is very helpful, chair.
The Chair: We’ve had the department officials as witnesses. We’ve been through all this. I’m going to allow a little bit more, but we want to get to a clause by clause consideration.
Senator Quinn: One final question?
The Chair: Yes, absolutely.
Senator Quinn: Thank you, chair.
This has been helpful to settle my thinking that there was a gap, and there may still be a gap. Is there a legislative gap with respect to federal spending authority for nonprescription drugs under Bill C-64?
Ms. Boudreau: I’ll take you to two definitions, if you’ll permit me. The term “pharmaceutical product” is defined in the clause that you’re now considering, which is the section on definitions. The term “pharmaceutical product” means as follows:
a prescription drug or related product that is funded, in whole or in part, through a pharmacare agreement to which the Government of Canada is a party.
In fact, that term will take its full meaning in the context of those agreements.
Senator Quinn: Great. Thank you, and thank you, chair.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
Senator Osler: Colleagues, I have an amendment to propose. It was submitted earlier.
That Bill C-64 be amended in clause 6, on page 4, by replacing line 5 with the following:
“vide universal, single-payer, publicly administered, first-dollar coverage — for”.
Essentially, what I am asking for is to add the words “publicly administered” in that sentence, because Bill C-64 in its current form is ambiguous about how pharmacare will be implemented.
At SOCI, in response to a direct question about whether pharmacare would be publicly administered, the minister of health replied, “I’m ambivalent.” Subsequently, in a letter dated September 27, 2024, he clarified his intentions about pharmacare and specified as follows:
The cost of these medications will be paid for and administered through the public plan rather than through a mix of private and public payers.
For your reference, in the Canada Health Act, the criteria of public administration requires that the provincial and territorial health care insurance plan be administered on a non-profit basis by a public authority responsible to the provincial government.
This week, we received a letter from four law professors who are members of the Health Justice Institute at the Schulich School of Law at Dalhousie University regarding Bill C-64, outlining why it is necessary to amend this legislation to explicitly state that national pharmacare must be publicly administered.
Colleagues, the intent of this amendment is not to delay but rather to codify into legislation the minister’s intent that national pharmacare will be publicly administered, which is important to keep the program sustainable and to keep costs down. Without this amendment, another clarifying letter down the road could change how this program is administered.
I would like to thank you all for your consideration, and I look forward to the debate.
Senator Pate: I have the greatest respect for the intention behind this amendment. But for the timing of this bill and where we’re at in this placement, I might very well be in favour.
I want to take the time to acknowledge that Member of Parliament Peter Julian, who is a primary reason we have this bill, is joining us today. The timing of this is vitally important because, as we know, there is no longer a supply and confidence agreement in place, and this was a fundamental tenet of that.
But more importantly, the government has been clear, as evidenced by the letter from the minister, that whatever ambiguity may have existed following his testimony, he has been crystal clear in the letter and in all public statements since then that this is to be a first-dollar, single-payer, publicly administered, publicly funded program, starting with the drugs listed.
As recently as within the last hour and a half, I spoke with Dr. Eric Hoskins, who is head of the council that came up with the recommendations from which Bill C-64 was developed. He said that he is very happy with this. He wants the bill to proceed as quickly as possible without amendments and feels very confident that the intent of the government is clear and was further clarified by the minister’s letter.
It would be my respectful view that we not accept this amendment but that we accept this clause as is and proceed with continuing our review of the bill.
Senator Seidman: Thank you very much, Senator Osler. I have enormous respect for your professional expertise and your understanding of this kind of legislation. I appreciate you putting this forward. We have certainly heard a lot of testimony. We have received letters. There is a lot of confusion.
I would suggest that we have heard and there is a deficit in definitions in this bill, and you’re adding one more that will not be defined, “publicly administered.” I have to tell you that I’m not sure what that means. In fact, I did, in my original briefing as the critic of this bill, have a meeting with the department officials, and we talked about what would happen when a Canadian walks into the pharmacy with a prescription and how it would be interpreted according to this legislation, exactly. There are a lot of pieces and a lot of payers. What they told me is that that’s back office stuff. So I’m not sure if “publicly administered” means back office stuff or if it means provincial administration — they also are public — or if it means federal or provincial administered. I don’t know what “publicly administered” means.
So all that to say that I don’t think it’s wise to add another word to this long line of “universal, single-payer, publicly administered, first-dollar coverage” because I don’t know what any of those words really mean in the context of this legislation.
The bottom line to that would be that I would suggest that it will be an agreement with the provinces in any case, so there will be consultation and discussion with the provinces in which the federal government will make arrangements for how this will be administered. I would leave that as a jurisdictional issue and let the provinces work out the administrative details directly with the federal government. Thank you.
Senator Pate: I would like to thank Senator Seidman, who flagged that we will see some of this definition come out in the agreements. I want to point to the memorandum of understanding already signed with B.C. It clearly demonstrates even further — in addition to “public” being in the preamble and other parts of the bill — the commitment to providing single-payer publicly administered pharmacare, because that’s the memorandum of understanding that’s been signed with British Columbia. When I think about any concern about the intent, sometimes you see it in terms of the practice, and in this case we see the practice. The final agreements won’t be signed until this bill becomes law, but certainly the memorandum of understanding is clear.
Senator Osler: Thank you to both Senator Pate and Senator Seidman, both of whom I have the utmost respect for.
Senator Seidman, to your point about adding two words that are not defined in the bill, the principles do ask the minister do consider the principles of the Canada Health Act, and there is a definition in the Canada Health Act as to public administration.
You and I are in agreement in terms of a paucity of definitions. If you were to ask another physician who was not well versed in pharmacare what “first-dollar” meant, which is not defined in here, many of my colleagues who are not well versed in pharmacare kind of scratch their heads. If you were to ask the Canadian public what that means, they would not know, so you and I are in agreement in terms of definitions.
Part of my intent to codify this into legislation is to protect the promise of national pharmacare, and the Hoskins report does recommend that national pharmacare both be publicly funded and administered. I understand where he’s coming from, and I am not naive to the political context we are working in right now. I spent a long night soul-searching about whether or not to bring this forward, but I feel strongly about it in terms of standing up for what I believe the promise of national pharmacare could be and the principles of our publicly administered health care system.
May I ask a quick question perhaps to either the GRO or Senator Pate? I have the utmost respect for Minister Holland and his intent, but, in the future, could another clarifying letter come from another minister or another minister in another government which could change the intent of how the program would be administered?
Senator Pate: I think we’ve heard very clearly from the current Leader of the Opposition that he does not support this legislation, so absolutely not just theoretically and it may be possible. It’s very important that all of this be clearly on the record, and I thank you again for bringing this forward to help ensure that there’s clarification and we have that from the minister.
Senator Osler: So in a potential future state with a different government, if “publicly administered” is not in the legislation, it could take simply another clarifying letter to change the administration, whereas if “publicly administered” were in the legislation, that would require another piece of legislation to amend it. Correct? So it’s the difference between another clarifying letter versus another piece of legislation to amend?
Senator Pate: Usually, if that went to court, it would go back to what the original legislative intent was, not what somebody has changed their mind about subsequently. So it would go back to the original intent, and the original intent we have on record is publicly administered, publicly funded, not some other variation that some future administration might dream up.
Senator Osler: That would require an individual or a group or a province to initiate legal action to get a different interpretation.
Senator Pate: Even if the amendment you suggested were in there, that would be the same result.
Senator LaBoucane-Benson: I wanted to ask the officials to weigh in around what the Canada Health Act already says about “universal” and what this act will say. It is the universality of this program protected in those two acts.
Ms. Boudreau: As the senator commented, there are a couple of references to the Canada Health Act within the legislation. There is reference within the preamble, and importantly, there is reference within the principles section, which is clause 4.
The principles around the Canada Health Act, such as universality that’s been mentioned as part of your question, is reflected in the legislation with the term used, “universal,” which means applying to everyone without exception. In this case, because it’s describing a drug coverage, it means everyone is covered, so no exception to that. It would apply to all residents. In that sense, the two terms sort of come together and take meeting within this legislation.
Senator LaBoucane-Benson: Thank you.
The Chair: Colleagues, it is moved by Senator Osler:
That Bill C-64 be amended in clause 6, on page 4, by replacing line 5 with the following:
“vide universal, single-payer, publicly administered, first-dollar coverage — for”.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: The motion is defeated. Thank you, Senator Osler, for your efforts on this.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall the clause 1, which continues the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division.
Does the committee wish to append observations to the report? Senator Brazeau?
Senator Brazeau: Thank you, Madam Chair. Rather than —
The Chair: Just a minute. We will go in camera to discuss the text of the observations, so just give us a minute.
Senators, we will now move in camera. I ask officials and any members of the public present to please leave the room.
(The committee continued in camera.)
(The committee resumed in public.)
Senator Seidman: Honourable senators, I move that the Honourable Senator Rosemary Moodie be chair of the Standing Senate Committee on Social Affairs, Science and Technology effective November 5, 2024.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion carries. Congratulations, Senator Moodie.
Hon. Senators: Hear, hear.
The Chair: There being no further business, this meeting is now adjourned.
(The committee adjourned.)