Law Times

LAw times • August 22, 2011 An online resource 1.800.263.3269 Focus On HEALTH/LIFE SCIENCES LAW Time to deliver on HIV drug pledge: advocates Canada faces numerous barriers in getting generics to other countries BY ROBERT TODD Law Times C anada needs to step up to the plate and deliver on a commit- ment to help provide aff ordable generic medicines to developing nations, advocates say. "Th is should really be understood as a non-partisan issue," says Richard El- liott, executive director of the Canadian HIV/AIDS Legal Network. "It's unfor- tunate that the government has so far refused to join that consensus and sup- port the bill." Elliott's comments follow the Sen- ate's failure to pass bill C-393, which would have created effi ciencies within Canada's access to medicines regime. Th e law aimed to help move cheaper generic medications to people in poorer countries. Developing nations and generic drug manufacturers have complained that the regime is unwieldy and say it's unlikely they'll use it until the govern- ment implements modifi cations. Only a single order of one AIDS drug has so far fl owed to a country based on the re- gime's provisions. Necessary changes appeared to be a foregone conclusion when, on March 9, Parliament resoundingly passed bill C-393. Th e legislation provided for changes to the regime that were expected to open the door to delivering a mean- ingful volume of medicines to develop- ing countries. Despite widespread support from community and non-profi t organizations and bipartisan backing in the House of Commons, the bill died on the order pa- per in the Senate when the federal elec- tion was called and Parliament dissolved on March 26. Elliott accuses the government of "playing out the clock" until time ran out on bill C-393. He also suggests then-industry minister Tony Clement's offi ce deliberately circulated misleading information in an attempt to weaken support for the legislation. For example, there was a scathing memo from Clem- ent's offi ce leaked to the press. "Th ere were all sorts of claims made in there that were simply not correct," says Elliott. Th ose erroneous claims included the suggestion that the bill would re- move safeguards blocking the export of drugs lacking Health Canada safety certifi cation. Th ere were also claims, despite confl icting evidence from ex- perts, that the bill would prompt a breach of Canada's World Trade Orga- nization obligations under the Agree- ment on Trade-Related Aspects of In- tellectual Property Rights. In addition, critics raised fears that the bill would lead to the distribution of prescription drugs on the black market. "Th ere were basically a number of straw-man arguments being set up to sow confusion about what the bill 'This should really be understood as a non-partisan issue,' says Richard Elliott. would or would not do in an attempt basically to convince senators that this is not something that they should get behind," says Elliott. Despite the apparent opposition from within the federal Conservative govern- ment, Elliott believes the bill will resur- face when Parliament reconvenes follow- ing its summer break. Still, he remains cautious about its likelihood of success. "I think the chances are decent," he says. "It did pass with a very solid majority in the House of Commons in the last Parliament [through] a 60-vote majority. Th ere was support by all par- ties then represented in the House of Commons, including 26 Conservative members of Parliament." Rachel Kiddell-Monroe, president of the Universities Allied for Essential Medi- cines, believes a reconstituted bill's passage is contingent on a change of approach by the Senate. She says organizations like hers and the Canadian HIV/AIDS Legal Net- work have secured support from several Chief Executive Offi cer Vision and Leadership The Law Society of Upper Canada, founded in 1797, is the oldest and largest of all Canadian law societies. As a self-governing regulator funded through lawyer and paralegal licensing fees, the Law Society has a duty to regulate the profession in the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario, and to act in a timely, open and transparent, and effi cient manner. Today, the Law Society of Upper Canada regulates, licenses and disciplines Ontario's 43,172 lawyers and 3,518 licensed paralegals. Stronger people, Stronger organization. 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Toronto Montreal Calgary Vancouver Halifax Moncton St. John's Untitled-2 1 www.lawtimesnews.com amropknightsbridge.ca 8/16/11 1:09:23 PM senators to move the issue forward. "Th e role of the Senate is just to re- ally make sure that the legislation has integrity," says Kiddell-Monroe. "But it's not to overturn the will of the Canadian people. So I think if the Senate is very careful and understands its role properly, it will do the right thing and make sure that this piece of legislation passes." From a procedural standpoint, she remains confi dent that the changes to the regime will eventually go through. Kiddell-Monroe also believes the leg- islation creates an opportunity for Can- ada to assert its leadership role within the international community. With Australia looking to create a law similar to Canada's, she says passing amend- ments to the protocol could help that country create a more suitable regime of its own. At the end of the day, Elliott says Canada has an obligation under interna- tional human rights treaties it has signed to take steps to help people in other na- tions realize the highest possible stan- dards of health. "Th at includes a duty of international assistance and co-operation under the International Covenant on Economic, Social, and Cultural Rights," says Elliott. Canada and other WTO members have also signed onto a 2001 declara- tion of the trade organization's general council in favour of interpreting and implementing the Agreement on Trade- Related Aspects of Intellectual Prop- erty Rights in a manner that supports countries in promoting public health. Canada's creation of the regime was pre- sented as an attempt to follow through on that commitment. "Th is is not a foreign concept," says El- liott. "Since the mid-1960s, Canada has, as a matter of law on the international stage, said, 'Yes, we have obligations to co- operate with other countries,' and this is one of the manifestations of that." PAGE 9

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