Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 10 - Evidence - November 26, 2009
OTTAWA, Thursday, November 26, 2009
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-6, An Act respecting the safety of consumer products, met this day at 10:45 a.m. to give consideration to the bill.
Senator Art Eggleton (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology. Today we are continuing with the processing of Bill C-6, An Act respecting the safety of consumer products.
With us today are familiar faces. They were here at the beginning of the process, and they are now here at the end. We have Mr. Paul Glover, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch of Health Canada; Charles Ethier, Director General, Consumer Product Safety Directorate; and Diane Labelle, General Counsel, Legal Services Unit, Health Canada.
Senator Cordy: Before we start, after yesterday's meeting and at a previous meeting, I asked whether or not the minister would appear because this is a complicated bill. Some would say it is overreaching. Our colleagues on the other side said that they would get in touch with the minister to see whether or not she would attend today. I am wondering whether or not they did and whether or not the minister is in fact appearing after our witnesses from the department today.
The Chair: Senator Martin, you were intending to pursue that.
Senator Martin: The minister is not available today. When I asked if the minister could attend today I was told there was too little notice for her to change her schedule.
I understand what you are saying Senator Cordy, but we do have our Health Canada officials here today. I did speak with the minister last week. I did not see her this week in our caucus, but she is not available for today's session.
Senator Cordy: Is she available for another session? Yesterday was not the first time that we asked. We asked a while ago.
Senator Martin: Right, and her schedule did not permit for her to be here today. I did not ask about any future dates, and that is something we did not discuss yesterday. I am sorry to say that she is not available today.
The Chair: We did put the invitation out some time ago as well. It was not as if we just contacted her yesterday. Whether the committee wants to pursue that or not, relevant to the bill that we have before us, the officials can respond to our questions.
I am open to hearing from committee members after we have heard from the officials, had dialogue from them and questioned them as to whether they want to proceed to the next step, which is clause-by-clause consideration, or whether they still want to try and get the minister here at some point.
Senator Day: Have we heard from the minister or through the sponsor of the bill whether this is one of those bills the department would like to see before leaving for our usual Christmas break.
The Chair: I have not heard anything directly as the chair, and I do not know whether the sponsor of the bill has heard anything. Senator Martin?
Senator Martin: I can say that we have been talking about this over the course of the study of this bill. The department does not have the ability to address some of the concerns before the committee. With new products coming onto the market for Christmas, there is a greater urgency to pass this bill for the safety of our children. That is my position as sponsor of the bill.
I urge all senators at this table to take their time today to ask additional questions of Health Canada officials and discuss afterward what we will do with clause-by-clause consideration.
Senator Day: Given the urgency to pass the bill, I would expect the minister to treat it with priority and appear before the committee.
The Chair: Let us discuss that at the end of the meeting. Yesterday, we discussed the process for completing our examination of Bill C-6. It was determined by the committee that we would hear from Health Canada officials today, and possibly the minister, and that we would proceed to clause-by-clause consideration next week. In the Senate this afternoon, I will move that the committee have leave to sit at three o'clock on Wednesday next instead of our usual hour so that we might proceed to clause-by-clause consideration. If we complete our clause-by-clause consideration by that day, the bill, in whatever form it takes following that, could be returned to the Senate on Thursday.
Obviously, the committee should have an opportunity to discuss that as we approach the end of this meeting should members want to pursue that further.
[Translation]
Paul Glover, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch, Health Canada: Mr. Chairman, I am pleased to be with you here today to discuss Bill C-6. I am Assistant Deputy Minister of the Healthy Environments and Consumer Safety Branch at Health Canada. With me today are Charles Ethier, Director General of the Consumer Products Safety Directorate and Ms. Diane Labelle, General Counsel from Justice Canada who is the Head of the Legal Services Team that serves my branch.
[English]
We at Health Canada have been following the committee proceedings closely. We are encouraged by the support that has been demonstrated for the policy intent of Bill C-6. Whether it has been by members of the committee, industry representatives or representatives from the NGO community, we feel it is safe to say there has been unanimous support for the policy intent. We believe that this bill is a very good piece of legislation and, if passed, will considerably improve consumer product safety in Canada.
Bill C-6 proposes a comprehensive suite of measures that respond to the need for a modern, efficient and proactive product safety regime. In short, it would go a long way toward giving Health Canada the authorities it needs to better protect the health and safety of Canadians in a modern global marketplace.
The important features being sought in this bill are not novel. Our major trading partners, the United States and the European Union, have already modernized their product safety regimes and have many of the authorities that we seek. We have been learning about Canadian consumer product safety issues not from companies receiving those reports from Canadian consumers but from our trading partners. Some companies are not reporting incidents to Health Canada that are happening in our own backyard. Instead, they are reporting to our trading partners because those countries have mandatory incident reporting, which we do not have. Bringing Canadian legislation up to the level of our trading partners will result in the citizens of Canada being afforded a comparable level of protection to that of citizens in these countries, instead of lagging behind.
A number of other federal statutes currently have the authorities that we seek. The protection of human health needs to have the same legislative tools that have been proven effective in protecting our natural environment, fish and animals. While the policy intent of the bill seems not to be in question, some concerns have been expressed about how the bill would achieve these policy goals. I would like to take a moment to clarify issues that have emerged during the course of the committee's deliberations.
Some confusion has arisen about the definition of "private property'' and the homes of Canadians. I reiterate for the record that Health Canada inspectors would be interested in a private dwelling only when it is being used as a place of business. Health Canada inspectors could enter a person's home only with the consent of the occupant or after receiving a warrant from the court. Again, that would be only when the home or the dwelling is used as a place of business. The only reason Health Canada could seek a warrant to enter a person's home would be when there is evidence that the home is also being used as a business for carrying out activities under this proposed legislation. Obtaining a court-authorized warrant would require Health Canada to have cause to enter the home in question and to satisfy all of the criteria set out in the bill before the court would issue such a warrant.
Unfortunately, not everyone who conducts business in Canada does so responsibly, although we acknowledge that the vast majority do. I can provide the committee with real-life examples. Health Canada had repeated compliance issues with a retailer in Western Canada. A non-compliant product was stored in a home, making it difficult for inspectors to access the inventory while it continued to be sold in Canada. This case clearly demonstrates the need for Health Canada to be able to go to the court, seek a warrant and enter a home in which business activity that is covered by product safety legislation is taking place. Without the ability to inspect where business is conducted, wherever that might be, we simply cannot do our job of protecting the health and safety of Canadians.
Concerns have been expressed with regard to administrative monetary penalty schemes. I want to be clear about this. An administrative monetary penalty is issued only when an individual or company fails to respond to an inspector's orders. I will provide an example of how this would work under Bill C-6. Through our inspections, we might find that safety information being provided with a product is available on an English only label. Our compliance and enforcement policy mandates that we work collaboratively with the company in question to ensure that the labels are changed to provide the information in both official languages. This happens quite frequently. A business can apply a sticker over the original sticker so that the label is in both official languages and is compliant. Health Canada inspectors explain verbally to company officials what action is required to bring the product into compliance with the existing legislation. This information would be confirmed in writing. If, after trying to resolve the issue through collaborative efforts with the company, the company refuses to take the required action, Bill C-6 would permit Health Canada to order the change.
The order would specify the corrective action required and the date for compliance with the order. If after that date we find through follow-up inspections that the company is continuing to provide safety information in English only, this would contravene the inspector's orders, and the company would be subject to a penalty. In essence, the company knew exactly what it was supposed to do and had opportunity to interact with us, but it did not do so, which led to the imposition of a fine.
I also point out that fines and the finding of a violation, like all actions taken by the minister or inspectors in carrying out their duties under the act, are ultimately reviewable by the courts. As Senator Keon indicated yesterday, no one is above the law, and that certainly includes Health Canada and its inspectors.
I should also note that Justice Canada has responded in writing to the question put by the committee at our first appearance for assurance that this bill has been reviewed in accordance with the Department of Justice Act for consistency with the Charter of Rights and Freedoms and the Constitution Act, 1867.
Another area that has generated discussion is the confidential business information, or CBI. The main points of concern are that industry representatives would like prior notification and the opportunity to comment on the information prior to its release and on the security of the CBI once it is shared with another entity.
It is important to put some context around the circumstances under which this information would be shared. Clause 16 of the bill would permit the release of CBI to another person or government only to assist with carrying out functions related to the protection of human health safety or the environment. These provisions would allow us to share important information with our counterparts, such as in the United States, to work quickly to resolve critical safety issues. It would permit us to work with provincial standards bodies in dealing with issues of electrical safety.
I stress that in these circumstances, CBI would be shared only with entities that have entered into a written confidentiality agreement with the Government of Canada to protect that information. As well, these entities would be limited to using that information for the purpose of carrying out functions related to the protection of human health or safety.
On the topic of sharing information with other jurisdictions, it is important to note that the CBI provisions in this bill will improve Health Canada's ability to share and receive important information at critical times, allowing us and our partners to respond more quickly to potential health and safety dangers. Our ability to share this information will improve communication and information exchange with our trading partners and facilitate cooperation when potentially dangerous incidents arise with a consumer product. Under clause 17, the bill further limits the sharing of CBI to situations where a consumer product is a serious and imminent danger to human health and safety and where the disclosure of the information is essential to address the danger.
Let me share an example of why the inclusion of the CBI provisions in this legislation is important. If Health Canada becomes aware of a problem with a product, our first course of action is to do further research to validate the concern. It would seem reasonable that our officials would need to contact their counterparts in other jurisdictions to gather additional information and inquire whether there have been similar concerns in that jurisdiction.
If we were to describe a product, provide a model number and information on retailers selling this product, this could constitute CBI. It is hard to dispute that we should be able to have these conversations to further our knowledge about the potential dangers of this consumer product. In a global marketplace, our ability to talk to our partners and exchange information to ascertain the risk of a product is important now and will be as we move forward.
The final area that I want to touch on in my remarks is duties in the event of an incident, or mandatory reporting. Concerns have been raised about the administrative burden that this might cause for industry and whether it might generate so much information that it would diminish the utility of that information. This debate has turned on a perceived lack of clarity about what type of incident this provision would require to be reported and the type of incident industry feels it should be reporting.
I want to assure you that it is not our intention to create an unnecessary administrative burden on industry. We have worked hard and will continue to work hard with industry to make sure that this is not the case. We do not want to impose a burden. At the same time, our ability to protect the health and safety of Canadians is in large part dependant on the quality of the information that we have available to us to make decisions.
In thinking about this issue, I have reflected on an observation that Senator Ogilvie made during his questioning of an industry witness about the concern over the requirement to report a single incident. He noted, ". . . a single incident, once observed, may be a tremendously important piece of information'' and that, ". . . it is the ignoring of single incidents that has often led to problems with consumer products in a larger area.''
Since our last opportunity to meet with you, we have become aware of a very serious situation with a consumer product in the United States. You know from testimony and we have heard that the United States has mandatory reporting requirements. You also know that there is some capacity for industry to establish a causal link before making a mandatory report. This is a concept that Canadian representatives have raised. The incident I refer to saw 12 children have the tips of their fingers amputated by a consumer product before a report was filed with the U.S. Consumer Product Safety Commission. Twelve amputations of children's fingers prior to a report being filed. This reminds us why the passage of this bill is so important. Our current product safety legislation has no requirement for incident reporting. If we had these provisions, we could have responded sooner and acted to address these preventable incidents.
As I said at the beginning of my remarks, other countries have mandatory reporting. This has resulted in us learning about consumer product safety issues affecting Canadians from our trading partners in the best-case scenario. In other cases, we have learned about incidents and injuries that have occurred when the incidents have become public.
In implementing mandatory reporting, we are committed to working collaboratively with industry to develop and implement an approach through policy and guidance documents that gives Health Canada the type of information it needs, aligns with our partners and makes sense to industry. This collaboration will ensure that we do not have any unintended consequences and that we benefit from our experience as regulators and benefit from the knowledge of industry. I am convinced that the policy and guidance approach is the best way to address this issue, as the detail that will be required to clarify this issue would not be appropriate for legislation.
[Translation]
That concludes my presentation. My colleagues and I would welcome the opportunity to answer any questions you have.
[English]
The Chair: Thank you, Mr. Glover. In your last set of remarks, you talked about policy and guidance documents. You also talked extensively about intent. You have given examples of how you would implement this. However, I think the committee has look at the strict wording of the law because people can misuse, abuse or be overzealous. It is possible that happens, and the reading of the law at the end of the day is what is most significant.
You have talked about policy and guidance documents. There are also regulations. How do these fit together? Will policy and guidance documents come to this table? Will they come to the houses of Parliament to determine whether they are a reasonable implementation of the legislation? When will you have the regulations ready so that we can look at them?
Mr. Glover: I completely agree with your comment that the legislation itself lays out the larger framework. The legislation is then supported by regulations that allow us to implement that legislation. The inspectors use the policy and guidance documents in their day-to-day activities. All of those pieces must fit together.
For example, the general prohibition is set out in the legislation that puts the onus on industry to make sure they know the products they are selling are safe and work. It lays out the requirements that allow us to move forward with mandatory reporting so we have the information we need to ensure there is oversight. It lays out that framework.
There are some regulations that are critical as we move forward and we propose they come forward immediately. This will ensure that inspectors are able to operate under this act.
Charles Ethier, Director General, Consumer Product Safety Directorate, Health Canada: To complement what Mr. Glover has said, it has always been our practice, and certainly even more so in current times, to continue to work with industry to develop the appropriate guidance and policies that would be required to give meaning to this legislation. Consultations with industry continue as we speak and will continue until we have the proper policy and guidance available to inform, educate and sensitize industry on how we intend to administer the legislation. They are a crucial part of the entire process.
Regulations that are necessary are in the process of being done. There is a commitment from the department to table those regulations before both houses of Parliament, at least those that are foundational in the legislation, and we will be bringing some of those regulations forward as soon as they are prepared to be shared with both houses. In the meantime, we continue to work closely with industry to bring about the necessary policy and guidance that will create an environment in which both the department and industry itself can continue to thrive.
The Chair: That is all very nice, but I asked you when you would be doing this. You say as soon as they are available. Does that mean you will not implement this act until the regulations have been prepared and tabled? When will you do that? When is "as soon as possible?''
Mr. Glover: Clause 36.1 lays out when the regulations and which ones will come before both houses. That is clearly articulated in the legislation.
As to when those regulations would come forward, it would be inappropriate for me to speculate, as the bill has not passed nor has it been referred with respect to a coming into force date. Once the government has declared when it would like the bill to come into force, the department will proceed according with the legislation, be ready to table the regulations and comply with the legislation.
The Chair: What about the policy and guidance documents? I am trying to understand the significance of those documents vis-à-vis the regulations. Will we see the policy and guidance documents?
Mr. Glover: We have been working and continue to work with industry to develop those guidance documents. If the committee is interested, we would be happy to report on our progress.
I acknowledge that the legislation does not contain a requirement for all of the department's internal policy and guidance documents to be tabled continuously. These are documents we maintain based on current practice, evolution and experiences.
The Chair: My concern is having sufficient parliamentary oversight. This bill provides for some fairly sweeping powers. If those powers are to be granted by Parliament, I think Parliament will want to have some oversight on how they are used. We may not be interested in seeing the day-to-day items, but likely would be interested in anything that is involved in the implementation and any major or substantive point of this legislation; in that I mean the regulations, and maybe even the policy and guidance documents.
Let me ask you one minor question. You mentioned clause 36.1. Clause 36.1(6) states:
(6) A proposed regulation that has been laid before Parliament need not again be so laid prior to the making of the regulation, whether it has been altered or not.
That causes some concern. Minor amendments may not cause a concern, but would you have any problem if that particular clause were amended by putting in a limitation for non-substantial amendments? In other words, substantial amendments would have to come, but non-substantial amendments would not.
Mr. Glover: If I may, Mr. Chair, responding to your previous question, which I do not feel you allowed me an opportunity to respond to, the fundamental regulations are articulated in the legislation and are tabled before both houses. We believe that that is clearly articulated in the legislation in 36(1) (a), (b) and (c). If the committee feels additional regulations are fundamental, we would be pleased to hear from the committee and be afforded an opportunity to respond. To clarify, in the department's view, those are the fundamental regulations, and they are tabled before both houses.
With respect to the tabling of the regulations if there are amendments, we would like to take that under advisement. I could see the issue of what is significant and the interpretation of that at some points in time could present a challenge to us to interpret.
The Chair: Or substantive.
Mr. Glover: As the official responsible for administering this act, the criticism most often levied at me, my officials and the department is we should act on those problems and take action to protect our health and safety if we are aware of problems. We operate at a fast pace and consumers want us to deal with problems quickly.
We are looking for a process that respects the role of Parliament, with room for oversight, but also allows the department to respond quickly when there are clear and obvious health and safety concerns for Canadians.
The Chair: I think you are right in saying we want you to be able to act quickly to protect consumers, but we also want to protect their civil rights.
Senator Ogilvie: I sit on the Standing Joint Committee for the Scrutiny of Regulations. It is my understanding that the principal regulations would come back to this committee after the bill goes through. It is a joint committee of the House of Commons and the Senate. Any issues that need to be scrutinized further definitely go to that joint committee for scrutiny. That is an observation with regard to the issue.
Senator Callbeck: Just to follow up and to be clear, will the principal regulations be tabled before this legislation becomes law?
Mr. Ethier: Thank you, senator. My understanding is that the regulations that are necessary to implement the legislation will be ready at the time we receive Royal Assent and that the act is prepared to be implemented. I do not think the regulations will be tabled before; I think it will be done concurrently.
Senator Callbeck: In other words, the act will become law, and then the principal regulations will go to the joint committee.
Mr. Ethier: That is my understanding.
Mr. Glover: If I may, senator, to respond, the foundational regulations are necessary. They roll over certain provisions from the HPA to be under Bill C-6. They have to be tabled before we can enforce the legislation. Inspectors could not inspect under the new act if they are not rolled over and have the authority to inspect under this new legislation. There will be a coming into force date and the tabling of regulations. The tabling of regulations will have to be passed, and then we have the appropriate authorities to move forward with the legislation. Those foundational regulations must be in place.
Senator Callbeck: Are the foundational regulations and the principal regulations the same thing?
Mr. Glover: Yes.
Senator Callbeck: They have to be in place before you can go forward with this legislation?
Mr. Glover: Yes.
Senator Callbeck: Has the joint committee has looked at the regulations?
Mr. Glover: No. I will ask my colleague from Department of Justice to explain the process.
Diane Labelle, General Counsel, Legal Services Unit, Health Canada: I will take a concrete example. The exemption regulations that need to be made under clause 36.1 would need to be in place before the act can be implemented. These regulations would need to be tabled before both houses of Parliament and considered by the appropriate committees before the Governor-in-Council could make the regulation.
Senator Callbeck: Thank you. Mr. Glover, when you were here the last time, you said that it is important to note these powers follow precedents set in other federal health and safety regulation. You went on to mention a number of acts. We have heard other witnesses who have said that the powers for inspectors under Bill C-6 go beyond some other legislation.
Mr. Glover: Thank you, senator, for the question. I reiterate my original answer that a number of the powers that are proposed in Bill C-6 do exist in other pieces of legislation and are not novel. I further expand my answer to indicate that a number of the powers that we are proposing in Bill C-6 are already in place in other jurisdictions in the United States and in the EU. Those countries have already adopted and provided those powers to their authorities to protect consumers from inappropriate and dangerous products.
Senator Callbeck: That is in other countries. You said that powers follow precedents set out in other federal health and safety legislation. Are there powers of inspectors under Bill C-6 that are not in the other pieces of legislation?
Mr. Glover: Similar acts have similar powers. To modernize this piece of legislation, we looked at what tools in other federal statutes. We learned from and incorporated tools from the effective statutes.
The objective was not to go cherry picking but to build, as the chair has pointed out, a framework of legislation that is designed to protect the health and safety of Canadians. Each of these powers provides that framework that provides the department the tools to protect Canadians. It is not because they exist in other statutes that we ask for them; it is because we believe they are necessary to protect the health and safety of Canadians.
There were concerns that they are novel. I am trying to indicate they are not novel, they do exist elsewhere, and they are necessary in this legislation.
Senator Callbeck: Other witnesses say that Bill C-6 has gone beyond the powers in other legislation.
Ms. Labelle: I would like to reference Ms. Weiser's letter to the committee dated October 30, 2009. You will understand that I am not in a position to provide legal advice, but I certainly can provide explanations.
The Supreme Court of Canada has looked at these very similar powers, warrantless searches, in other legislation.
The court concluded that these inspection powers, including the ability to enter premises and the ability to look at documents —
— whether these are in an office or another type of business premise —
— were valid and necessary elements of effective regulatory regimes.
The court has recognized the efficiency and effectiveness factors of regulatory regimes.
If I may add, the court said:
In a modern, industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest and the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state. The restaurateur's compliance with public health regulations, the employer's compliance with employment standards and safety legislation, and the developer's or homeowner's compliance with building codes or zoning regulations, can only be tested by inspection, and perhaps unannounced inspection, of their premises.
Ms. Weiser continues:
The inspection authorities in Bill C-6 are not novel and reproduce, or are based upon, inspection authorities established in other federal and provincial legislation. Additional safeguards are in place when regulated activities take place in a private dwelling given the greater expectation of privacy a person has in their home. In these circumstances, an inspector is required to have consent or a warrant before entering a person's residence.
Senator Segal: I have two questions: One on real capacity and one on the notion of Health Canada as a "reasonable person'' under the law.
Can I assume that the opinion you have received with respect to the Charter of Rights and Freedoms will be tabled and part of our record?
Ms. Labelle: My understanding is that Ms. Weiser's letter was sent October 30, 2009.
Senator Segal: I understand that. Mr. Glover said earlier, however, that you have been assured by the Department of Justice that this legislation is fully compliant with the Canadian Charter of Rights and Freedoms. Is that assurance, in your judgment, what the Weiser letter does? There is no other subsequent assurance you have received from any other source?
Ms. Labelle: Correct.
The Chair: It has been tabled.
Senator Segal: I am aware of that. In a study done some years ago on the relationship between the Charter and the legislative process, Janet Hiebert at Queen's University pointed out that the attorneys general in the provinces and at the federal level, give assurances on these matters but the basis for that assurance is rarely shared with legislators before the decision is made. I wanted to ensure there was nothing out there we had not shared; it had been, and I appreciate that.
Earlier in our discussions I think it was Mr. Glover who was good enough to say that the department would ensure that the more coercive parts of this legislation would not be applied to second-hand shops, church basements, thrift stores or the Salvation Army, so that is on the record.
Would you be troubled if I were to ask that a letter to that effect also be part of the record, appended thereto? I know that for many of the people who have been watching the proceedings and who are concerned — and I have had communications as recently as 48 hours ago — the more substantive that assurance, the more comfortable they will feel. I understand there are problems with that and you may wish to consider that as a department, but I want to leave the proposition with you that a written assurance would go a long way to be helpful to some.
The question I want to ask is about incident reporting and your capacity to deal with it. I had a call this week from a manufacturer who, interestingly enough, did not complain about too much power or too many inspectors, but actually complained about the opposite.
He said that if there is a car seat problem in an automobile accident in the province of Ontario, the Department of Transport has a SWAT team on the site to determine what the reason was for the failure. Was it a structural problem in the automobile? Was it an inebriated driver? Was there a flaw in the car seat? They can then report that information to federal authorities, DOT and others, who are in some licensing mode on car seats.
His concern was that, whatever the act says, you are actually creating and imbalance, although unwittingly, I am sure. They have to report everything. He says any manufacturer of appliances or kids' toys or products with any distribution at all is getting 600 to 700 emails a week from parents. The emails concern how to something; they are not sure how it works; have they assembled it properly. The emails do not necessarily complain about something that is broken. They all have customer relations departments that work diligently to provide the information for consumers.
It is not clear from reading the act whether they have to report all of the complaints. In my judgment, the act is not clear. Maybe the regulations will be clearer in that respect and that would be helpful.
His subsequent concern — and I think this was borne out perhaps by newspaper reporting in last 48 hours, which is unfair — is the famous crib issue. This issue has occupied everyone's head space in the last while, where it may very well have been that both between your own operations and our American friends, there was a fair bit of data coming in about this crib but it had not all come together in a way that allowed people to act responsibly.
The question then becomes, if you create higher reporting requirements in the protection of public safety, if you may have — because every government department wants a bigger budget than Treasury Board is prepared to give you, it is in the nature of the business — problems meeting your capacity requirements now, are we not setting this thing up for failure?
Are we not setting up a circumstance where we will create a huge reporting obligation from well-intentioned and responsible manufacturers, retailers and wholesalers? You said that is the vast majority of the people out there. Your ability to deal with the present pressures is probably strained and stressed because of the constraints that all government departments share. That is my first question.
I put to Shawn Buckley yesterday, during his appearance before us, our assumption — at least mine and I am sure it is shared, without partisanship, by everyone around the table — that the public servants you work with and other colleagues are reasonable people trying to do a good job in defence of public safety.
He responded in a way that I found quite troubling. He said until that moment — my question, if you can imagine — he had never heard Health Canada ever referenced as a reasonable place with reasonable people.
People are allowed to have their point of view, and I am not asking you to characterize his. He is entitled to his point of view. I am troubled, as a citizen, that someone would conclude that my Health Canada — the Health Canada I believe in as a citizen of this country — would have people make that kind of statement on the record that heretofore he had never heard the place described as "reasonable.'' As far as I know, he is a distinguished practitioner of the law, a member of the bar. Can you help me with both those questions?
Mr. Glover: I appreciate the senator's three questions, if you will. The first, in relation to written confirmation with regard to charities, I have stated that on the record and therefore have no problem confirming that in writing to the committee if it so pleases you. It will have to be qualified with, "I will only take those actions if the bill passes.'' I cannot commit the government to do something that would be inappropriate if it does not happen. There will be qualifications around that.
Absolutely, if this bill passes and those obligations come into force, we will work to ensure that there is a way, either through policy or exempting regulation, that we do not burden the not-for-profits and charities as we move forward.
I will reiterate that there are instances where we would see this apply to large donations, end-of-runs and the dumping of material. We have been in discussions with the charities and the not-for-profits and we have agreed, for the record. We will follow up in writing as it pleases the committee.
With respect to reporting requirements, we have heard a lot and I will link the two with respect to how reasonable and the burden those create.
First, the reporting requirements we propose with respect to this bill are less than those that exist in the United States, so the burden that this would have on industry. There is a requirement within 24 hours in the U.S. to report, and they figured out how to do that and industry is still functioning and is alive and well there. We propose 48 hours in Canada.
With respect to how reasonable and how burdensome that is, I will allow you to draw your own conclusions.
To respond to your question concerning our capacity, under the Food and Consumer Safety Action Plan, which was previously announced by the government, the number of inspectors is doubling. These numbers will double to deal not just with this legislation but also with the range of problems that we have been seeing and have been forced to deal with in the global marketplace. We are well on the way to achieving that doubling of inspectors, which will significantly increase our capacity.
The second piece that we are doing is investing in information technology to allow us to receive these reports as they come in and to put them into intelligent databases so we can link, find trends and move forward. We fully anticipate using data not just in the first year but over a period of years. The crib recall goes back 16 years. This presents a tremendous amount of data to sort through. We believe that using information management and information technologies will help us deal with it, and we are investing in those technologies as we speak, building the systems to be able to cope, to prioritize and to triage.
In addition, I will be frank with the committee and say that not every incident is treated equally. We have developed policies and procedures that prioritize the incidents. For example, if there is an incident whereby someone claims that an infant has passed away versus someone got a bump or bruise, we prioritize them differently with respect to inspection. We have performance standards about how quickly we will follow-up on those incidents. The greater the severity for risk, the shorter our time frame to launch an investigation. The investigations can be quite complicated and complex to complete, but the time frames to initiate are very clearly laid out.
We continue to monitor the incidents on a quarterly basis to ensure we can meet our own internal performance standards, the triaging is working, and we are dealing with all complaints in an appropriate manner. It is not unlike an emergency ward in a hospital. It is not first in, first out; there is prioritization. Some people sit for a long time but they can afford to versus those things that jump to the top of the queue.
To conclude, we intend to deal with capacity by doubling the inspectors, and by using information technology and policies and procedures to help us prioritize and triage as we move forward. We fully intend to do quarterly reporting of all the incident trends, the number of inspections we have initiated, how those have concluded and adjust as we have the volume of data that we fully anticipate will be coming forward.
With respect to the question of "reasonable,'' people are allowed their views about us and the actions we take. I would note that, as has been said, we are not above the law. The courts are there as an oversight and there are mechanisms in place. In addition to those mechanisms, we have review processes in place in the department. If someone feels an inspector's actions are inappropriate, unjust, unreasonable, he or she can ask for review and appeal, and that appeal will go to someone outside the chain of command. That appeal can accelerate and move to the level of the minister and finally, to the courts.
I am not asking for the committee's trust or for this committee or Canadians to believe we are reasonable. We are asking for the tools we need to protect Canadians, tools other jurisdictions have, and we believe that there are appropriate review mechanisms in place to afford the protections that people, businesses and Canadians need in the event that someone feels our actions are inappropriate.
[Translation]
Senator Pépin: Senator Segal mentioned children's beds. Millions of cribs manufactured by the StorkCraft company were the subject of an unprecedented voluntary recall in North America. In this specific case, how might Bill C-6, if it were in effect, have changed Health Canada's ability to act? How would it have allowed you to act earlier?
Mr. Glover: First of all, the concept of mandatory reporting is very important. It is the duty to provide information regarding incidents, without which we do not have the necessary information to identify a problem. That is primarily what would help us to identify problems earlier.
Secondly, we must have the ability to act even without the agreement of the company. In the case you have raised, that tool was not necessary because the company cooperated with Health Canada.
[English]
It is the ability to impose actions if the company does not agree to work with us that will be the most significant difference. Mandatory reporting would have allowed us to pick up the incidents earlier, as the first and foremost. I will underscore, without any criticism to the company, the U.S. had information on incidents that happened in Canada because the company had a legal obligation to report to the U.S. We did not know of those incidents. Those were shared with us by our American counterparts. That kind of information will allow us to move forward.
Building on Senator Segal's question, oftentimes it is not one incident that causes us to say we have a huge problem; it is a series of incidents. When you have a product that has been on the market as long as this product has, it tends to be an accumulation. Someone did not follow the instructions right once, okay, but if a vast majority of Canadians are struggling with the instructions, cannot follow them, then perhaps there is a trend there and we move that way. It is the ability to identify those trends over time as well. The mandatory reporting will significantly improve that.
Right now, under the Hazardous Product Act, we work in cooperation. We work with the company to encourage them to voluntarily take the actions we recommend. With Bill C-6, if that was to break down, we would have the ability to impose orders on them, administrative actions, corrective orders from the inspectors, and we could move from there escalating it up the chain of actions that are outlined in the framework. We would work with them on a voluntary basis and if they did not comply, we could follow up in writing with inspectors' orders and move forward from there.
[Translation]
Mr. Ethier: I would like to add something to Mr. Glover's answer. In the case of the crib recall, we enjoyed a high degree of cooperation on the part of the company involved, which made the task easier for us. The recall was made voluntarily and everything proceeded very efficiently.
The defective parts were an integral part of the bed. It was a hidden defect that had not been identified as posing a danger to the consumer. These cribs had even been inspected and it turned out that they met the current standards. In this case, the general prohibition as set out in Bill C-6 would have allowed us to take corrective measures to deal with the issue.
Mr. Glover also mentioned incident reports. In the case of children's cribs, the reports that were tabled with us over the years did not lead us to believe that any intervention was required on our part. In fact, it was only when we added our information to that of our American colleagues that we were able to see that there was a problem requiring us to take corrective measures.
Another interesting point is that through our discussions with the American authorities, we learned that several reports of incidents that occurred in Canada had been sent to them but not to us. This was information that we lacked and that had been submitted to American authorities, because in the United States, manufacturers are obliged to provide the reports.
Senator Pépin: The Americans decided to recall the cribs at the same time as you, but they said that all parents should stop using the cribs until they had received the repair kit. Whereas here, Health Canada said that not all the cribs were dangerous. Therefore, when a common recall is issued, it should perhaps be done in the same way and for the same reasons, particularly when there is a danger. Why was such a distinction made? Was it because you did not receive the same information or because you did not receive any at all?
Mr. Ethier: During negotiations with the Americans, we looked at the issue of what advice we should be giving to parents. The position of Health Canada was that it was more responsible to tell parents to fully inspect the cribs to see whether there was any wear and tear or breaks.
Senator Pépin: They are not all dangerous.
Mr. Ethier: No. The cribs meet the regulations. We are telling parents to continue to use the cribs if they show no signs of wear and tear, however, at the same time, to obtain the new repair kits in order to fix the problem.
There have been too many incidents. We can say, based on figures that we could provide to the committee, that there are children's sleep practices that are unadvisable. The best place to sleep, particularly for a young child, is in his or her crib and not anywhere else, as the Americans have been advising. We thought that we would take a more responsible position by giving the best advice to parents.
Mr. Glover: I would like to add my comments to the last point my colleague just made.
[English]
The reason we said, continue to use the crib, as my colleague said, we were concerned about citing unsafe sleeping practices. If the child was not using the crib after inspecting it, we had clear evidence that unsafe sleeping practice presents a greater risk than continuing to inspect the crib and waiting for the retrofit kit. The number of incidents that happen in not all of Canada but certain jurisdictions with respect to co-sleeping, where parents bring the child into bed with them, was far more than what we had in terms of incidents with continued use of the crib.
In addition, with respect to sudden infant death syndrome, the risk is exponentially higher when introducing unsafe sleeping practices. When we looked at coroners' reports related to unsafe sleeping practices, the number of children who have died while being unintentionally smothered in blankets, or put on couches to sleep when people think it is safe and the children roll off, far outweighed the number of incidents we had seen and the risk of continuing to inspect and use the crib while waiting for the retrofit kit.
Senator Eaton: Mr. Glover and Ms. Labelle, yesterday, one witness seemed to have difficulty defining "private property.'' He referred repeatedly to clause 20(4). He seemed to be bothered by that provision, and it would be helpful if you could go through the various steps or forms of "private property.''
Mr. Glover: We have touched already on the home, so this issue is the issue of what "private property'' is legally. Let us take a number of specific examples and how they will work.
With respect to a shopping mall, if we want to go in and inspect a particular retail outlet in that shopping mall, that shopping mail is, in fact, private property. A company owns that shopping mail and leases the land out. An implied invitation exists in common law that will allow us to go into that mall and conduct an inspection. However, all it takes is someone to remove that implied invitation, and we can no longer cross that private property to reach the store that we want to inspect. That removal can be nothing more than a tenant saying, "I am getting harassed by Health Canada inspectors.'' Maybe the tenant is or maybe the tenant is not, but all the tenant has to do is make that claim to the landlord, and that landlord must put up a sign or have the security guards say, "Health Canada inspectors are no longer welcome.'' We then no longer have that implied invitation and we are not able to enter that retail mall to reach the store to conduct an inspection. That example is where we need to cross private property.
Another example is an industrial park where there is the common public road, and we turn off that road to a number of warehouses where a landlord leases industrial sites for people to conduct manufacturing. That road is private, and while again there is that implied invitation for us to turn down that road, all the landlord needs to do is put up is a sign that says "Employees Only'' and we do not have the ability to go down that private road, that private property, to reach that place of business.
That is what we are talking about with respect to our need to cross private property to conduct an inspection.
Ms. Labelle: Bill C-6 does not grant immunity to government officials. The Crown Liability and Proceedings Act continues to apply, and provides that suits against the Crown in right of Canada be brought before the Federal Court of Canada or in the superior court of the province in which the claim arose.
Therefore, section 20(4) merely authorizes the inspector to cross over that private property. It does not provide immunity, or excuse any damages or negligent actions.
Senator Eaton: One of our Senate colleagues here yesterday suggested that inspectors have warrants for conducting all inspections. Am I misquoting you, Senator Day? Was it you who asked the question — someone did.
Senator Day: No, I would not say something like that.
The Chair: It has come up at the table.
Senator Eaton: Yes, it has come up. Should all inspectors have a warrant before crossing private property?
Mr. Glover: My short answer in response to the question is no. I will refer to a couple of points. I refer back to Senator Segal's question with respect to capacity. We will not have the capacity at that point in time to deal with applying for a warrant. With the number of routine regular inspections we will need to conduct, I cannot begin to fathom the number of additional resources we will need to go literally to the courts constantly to apply for a warrant to simply verify that a system is working; that this industry is working appropriately and correctly, and there is no problem.
Inspection from time to time is something that industries like so they can say, we have been inspected, our ISO standards are working, and the system is great; Health Canada has been in and has not found problems.
We will not have the resources if we need to have a warrant every single time simply to ensure the system is working; not even close to the resources.
Second, I do not want to predict how the courts will react, but we will need a lot of applications to the courts for what is routine and regular business, given the number of inspections we need to conduct in a country of this size with the number of commercial institutions. I suspect applications will clog the courts as they move forward.
The other point is that the Auditor General has clearly indicated — maybe not the Auditor General; I had better be careful — a number of recognized institutions have recognized the need for random inspection to move forward and ensure that the system is working. A warrant is like saying, the speed trap tomorrow will be between this street and that street, and announcing that inspection publicly. We do not do that. There is an element of surprise that ensures our level of confidence that the system is working. If they know we are coming, they can clean up the place and make everything perfect.
Our ability to show up unannounced and have them welcome us in, show us the procedure manuals and how their system works are critically important to our overall confidence in the system as it moves forwards. That ability has been recognized. The unannounced inspection is an important tenet not only for product safety but also for issues under the Food and Drugs Act as well as others. It is critical to overall assurance that the system works.
Senator Eaton: Is this legislation different to the legislation in the European Union or in the United States?
Mr. Glover: No.
The Chair: I want to clarify your answer to Senator Eaton's question on clause 20(4), which states:
(4) An inspector who is carrying out their functions or any person accompanying them may enter on or pass through or over private property, and they are not liable for doing so.
Yesterday, Shawn Buckley, constitutional lawyer, said that the provision, in effect, abolishes the law of trespass. Yet, you say that no, it does not do that because a recourse to the courts is available. Can you explain further?
Mr. Glover: I will explain in lay terms and then ask my colleague from the Department of Justice to respond. The clause allows inspectors to cross the private property to access the place where they need to conduct the inspection. If, along the way down that industrial laneway or other area, an inspector scratches a car or otherwise causes damage, then the inspector is liable. The inspectors are not above the existing common law. The clause acknowledges the need for inspectors to cross property at times to conduct an inspection; no more, no less.
Ms. Labelle: Clause 20(4) is limited to the act of crossing over the private property, which is the trespass. Where it says, "and they are not liable for doing so,'' applies only to the act of crossing over; it does not extend beyond that act.
Senator Ogilvie: I have an observation. One of my colleagues has given great credibility to a comment with regard to the reputation of Health Canada. I am aware of a number of areas where Health Canada is recognized internationally for the leadership it took in protecting its citizens and carrying out its actions.
My question specifically relates to something that is apparently known as the Hazardous Products Act. We have heard, and it was mentioned explicitly yesterday, the idea that this act might well provide you with all the powers you need to deal with the issues covered explicitly under Bill C-6. Can you comment on that idea, please?
Mr. Glover: Absolutely, senator; thank you for the question. My short answer is: the Hazardous Products Act is the act we work with today. It is the act I will continue to work with if Parliament so chooses. That act is 40 years old. When it was first brought into force, it was an excellent law. It was the thoroughbred we wanted to ride. That horse is 40 years old. While it has served us well, it has served a long time.
Senator Segal: Forty is not, in and of itself, an old age; so we are clear. Forty does not constitute the trash heap of capacity.
Senator Day: A 40-year-old thoroughbred does.
Mr. Glover: While that regime is one we continue to work with, we feel it is no longer appropriate in a modern global economy. The act does not afford the tools necessary to allow us to act in a timely, effective way. As a result, all of our actions are voluntary. Under the Hazardous Products Act, we have to schedule something in order to prohibit it, which means putting it on a list of scheduled substances via the Canada Gazette and all of the processes and public consultation that act entails. Many years ago when we were worried about things, it worked. In today's modern economy with global supply chains, taking 18 months to put something on a schedule to prohibit it means that the company has probably already changed that supply chain, depleted its inventory, and moved on to something else. We will be forever behind the eight ball, which is why we work with industry on a voluntary basis. You may ask: Does a voluntary basis work? As we have seen, we can make a voluntary basis work. However, it can be time-consuming, and instances occur when voluntary does not work and companies do not want to comply. Not so long ago, we had problems with baby walkers. Canada was one of the first countries in the world to say baby walkers presented a problem. We had a voluntary agreement with the industry on baby walkers but we found that some small actors said that the agreement applied only to the larger industry, and not to them. The actors continued to sell baby walkers and we had to take that extra step of making the agreement mandatory.
A voluntary system works as long as the industry wants to work with us. If things change, they can say to us that because no regulation or legislation exists to prohibit the product, they will not comply. This legislation will allow us to move in a way that is clear and builds an appropriate record over time. Another problem that we face involves the repeat bad actors because each incident is deemed an isolated incident. Bill C-6 will allow us to consider the repeat factor when we deal with the company.
Frankly, the existing legislation has served us well and we have enjoyed riding that horse, but more appropriate tools are necessary to complement those of our trading partners. Without those tools, we will continue to lag behind. On the stroller recall, the U.S. was ahead of Canada by one week because we did not have the information. We will be constantly behind our major trading partner if Bill C-6 is not passed. In a worst-case scenario, my concern for my community of regulators is that countries will say that Canada has an old regime and, therefore, it will become the dumping ground for products that some businesses might choose to deal with if we do not keep pace with our trading partners.
Senator Keon: I will go back to clause 20 for clarification for the record because of the tremendous amount of attention it has received in emails and the comments of Mr. Buckley yesterday before the committee.
The perception conveyed in the large number of emails is that section 20 is a slippery slope such that under Bill C-6, inspectors will have powers that we have never seen before in Canada. There will be an infringement on human rights that we have never seen before in Canada. I do not believe that perception but we need more assurance on the record for those who have expressed concerns about this clause. Perhaps we need a legal opinion.
Ms. Labelle: The committee understands that I am not in a position to provide legal advice by reason of solicitor- client privilege for the government. However, I can explain the law. I can think of no one better than Peter Hogg, a constitutional lawyer, who is cited often by the Supreme Court of Canada. I will borrow from his wording. The words "Constitution'' and "constitutionalism'' are used at times to convey the idea of a government that is limited by law. Often the phrase, "rule of law'' is used to convey that same idea. These terms describe a society in which government officials must act in accordance with the law. For this rule of law to be a reality, remedies must be available to citizens when officials act outside the law. Actions by government departments, public agencies and officials in the police must also stay within the limits laid down by the Constitution and by the law contained in statutes and embedded in Canada's two legal regimes — civil code and common law. Illegal actions by public officials may be challenged in the courts by citizens and will be remedied by the courts.
I stress the fact that Bill C-6 does not contain a prohibitive clause purporting to exclude judicial review by the courts of actions by government officials and inspectors, and does not deprive citizens from seeking a remedy. An inspector's actions, if found unreasonable, will be reviewed by a court. The individual who feels aggrieved by an inspector's actions may invoke the court's supervisory jurisdiction — they always have supervision over government officials — through an application for judicial review. At the federal level, applications for judicial review are usually filed with the Federal Court.
That is my response. Inspectors are circumscribed by the rule of law. Inspectors' actions and orders are reviewed by the minister and are reviewable by the courts as well.
Mr. Glover: Chair, in continuing to respond in simple lay terms, inspections are critically important. In your first question to me, you talked about the legislation laying out a framework. The objective of the legislation is to prevent problems in the first place — the general prohibition is that companies do not sell products that are unsafe; that they know their products and prevent problems. The mandatory reporting and inspections will allow us to know that the system is working. To ensure that system is working, we need to be able to inspect places of business; the importer who brings in products, the manufacturer who makes products and the retailers who resell products. The notion that the system is working is incredibly important. Without that assurance, all we will do is wait until the strollers chop off fingers, and correct problems after the fact. Inspection is important to ensure compliance that the system is working. Not every inspection we conduct is about a problem fix. It is about making sure there are not problems and preventing them in the first place.
We feel, based on experience, that we need to be able to inspect wherever business is transacted. Many people with small- and medium-sized enterprises choose to transact business out of their home. That is fine, and we understand that, but to say that any business in a home is exempt from any inspection creates this huge loophole that we feel is inappropriate. We will not kick doors down. We will ask to come in. If they refuse, then we will turn to the courts. Inspection, as a general process, when we consider the overall framework, is critically important to how all the pieces work.
To suggest that a warrant is necessary or that there must be evidence of wrongdoing creates an environment where the problems must be evident, and we will never prevent them. We will respond to them. Canadian society expects more as a regulator, from their investments in us with their tax dollars, to catch those problems before they occur. That is what inspection will allow us to do as we move forward.
Mr. Ethier: The inspections are at the basis of all the work we do to administer, whether it is the Hazardous Products Act or hopefully, in the future, the Canada consumer product safety act. Inspections serve two fundamental purposes. They are necessary to allow us to investigate incidents that we are informed about to determine whether there is a product safety issue that needs to be addressed, and to determine what corrective measures are required. Once those corrective measures are identified, inspections are also required to ensure that they are carried out in an appropriate manner and that compliance with the corrective order is carried out by the retailer or the distributor. There are two dimensions to that inspection. Without the ability to enter a place of business to carry out those inspections, our inspectors or the program will be completely at a disadvantage to carry out its basic functions.
The Chair: We now go to Senator Martin from British Columbia, who is the sponsor of Bill C-6 in the Senate.
Senator Martin: Thank you to all honourable senators for all their work they, and especially to Senator Day, who is the critic for this bill. We have given this bill a lot of attention.
Thank you for being here again today. I want to build on what I heard yesterday from one of the witnesses who was a trade lawyer, as well as what Senator Pépin asked earlier regarding consistency in the approach in Canada versus the United States. You mentioned again today, Mr. Glover, that we are in a global economic system. There is this global supply chain, and we have trading partners that are right next door to us, across the ocean and all around. We understand that, in these modern times, strengthening our system is important, and the question is how we do that and whether this bill addresses that issue. My question touches on all these points.
Yesterday, the witness said that looking at things from a trading partner perspective, we as a trading partner, not having a modernized safety regime, are put at a disadvantage. Will this bill put us at par and restore or reinforce confidence from our trading partners, who are looking to Canada and hoping that products that come out of Canada are indeed well regulated and safe? Does this bill ensure that we, as a trading partner, are doing our part? You said we will always be behind the eight ball if we do not have Bill C-6 in place to modernize and strengthen what we already do. Can you speak to our role and responsibility as a trading partner and how this role affects what we do in the world? The economy is a global economy, and we know that from everything we have seen.
Mr. Glover: There are several elements to my response. The first is that I will take you through what our trading partners already have in place and how that situation compares with the situation in Canada so that you have a clear sense of where we are aligned and where we are different.
The ability to address an unregulated hazard, or the general safety requirement, does not currently exist in the current Hazardous Products Act in Canada. Both the U.S. and the European Union have that ability already today. Bill C-6 will bring us up to par with where our major trading partners already are on that notion. We are currently behind. This bill will bring us to the same level.
Mandatory reporting does not exist today under the Hazardous Products Act. It will exist under Bill C-6. Both the U.S. and the EU already have that requirement. Our trading partners again are ahead of us.
There is no requirement today for traceability requirements and records to exist today under the Hazardous Products Act. This requirement will exist under Bill C-6, and both the U.S. and the EU have document traceability requirements in their legislation. Again, we are currently behind our trading partners on issues like traceability. They will look to us and say, if the product originated in Canada, surely you can trace it.
We will say, sorry, we do not have that legal requirement and cannot impose that traceability on our industries. We are falling behind.
Mandatory corrective action, including recall, does not exist under the HPA. Our trading partners in the U.S. and EU currently have the ability to impose that corrective action when necessary. We do not. We will with Bill C-6. We are behind, and this bill will bring us to the same level as our trading partners.
In those rare instances when we need to impose fines and penalties, our current fine is a maximum of $1 million. The U.S. has a $15-million maximum, and in the EU that maximum is set by member states. You see where we propose to be with administrative monetary penalties, so these penalties will bring us more in line with our trading partners.
I can go on with this list. It is lengthy. The HPA, which has served us well, does not align with where our major trading partners are, which impacts how we work in the global marketplace; with manufacturers and the incident reporting and their willingness to work with us both as a regulator and industry in how it behaves with it. There are definite implications if we fail to keep pace with our major trading partners.
I recently had the occasion to meet with my counterpart from China. We talked about concerns with some of the manufacturing there. They acknowledged that there were problems, and that they would step up their inspections. They wanted to work with us about what products, what areas and how they could inspect. They also pointed out a number of the problems we face with products that originate from that country. The products are designed and manufactured exactly to the specifications supplied by the Canadian distributor. In the global marketplace, the problem is not always the other country; it is the contracts we set up in outsourcing.
Bill C-6 will allow us that ability to inspect in that global marketplace — we do not care where they make the product, because the general prohibition still applies. Because they choose to manufacture offshore, they are selling here, so still the product must be safe. That point is important for us and our trading partners as we move forward.
Senator Martin: Bringing it closer to home, I know that as a consumer, having a strengthened modernized system is indeed in the best interests of Canadian consumers as well. Did you want to add something, Mr. Ethier?
Mr. Ethier: I want to complement what Mr. Glover is saying. The issues we deal with in consumer product safety are not unique to Canada. More and more problems that we deal with are seen on an international level. A big part of the Food and Consumer Safety Action Plan that was announced by the Prime Minister in December 2007 focused on a need to increase our international collaboration.
Only last month, we hosted in Canada for the first time ever an International Consumer Product Health and Safety Organization conference where the focus of the discussion was on the proposed Bill C-6. There was a tremendous amount of interest from our international trading partners in what we are putting in place in Canada. We are being encouraged to move forward with the legislation with the expectation that if we play in the big leagues when it comes to product safety, we have to come to the table with tools, instruments and mechanisms that are commensurate with those of our partners. It is important that we be able to compete with them at that same level, and level that playing field.
Mr. Glover: One final point: This area is not my area of expertise, but I point out that the U.S. already has this type of legislation, so their consumers can have a high degree of confidence about the products they purchase. The vast majority of our country lives close to the U.S. If I had a choice about where to buy my children's toys — where I can be sure that the paint on them does not contain lead — I think some consumers, if we do not move to modernize our legislation, might look at this issue and wonder how far they have to drive to another jurisdiction with a safer regime.
Senator Martin: That was something I was thinking about; the confidence this bill will instill.
Bringing the issue closer to home, in regard to the disclosure of information, there is concern about what may be disclosed. If we look at the small businesses, medium-sized businesses and Canadian business people, how do we ensure that within this bill the disclosure of information is not information that would be the trade secrets or highly confidential private information that may end up being shared with other countries or some organization that would jeopardize these businesses? There was discussion around that question. Can you speak about the disclosure of information?
Mr. Glover: First and foremost, confidential business information will be exchanged only with another jurisdiction that has entered into a written agreement to protect that confidential business information. If we do not have the assurances in a signed written agreement, then the exchange will not occur. The other jurisdiction must have agreed to protect that information.
The Chair: Is it a general agreement or a specific agreement?
Mr. Glover: It is a specific agreement with respect to confidential business information, CBI.
Senator Day: Is it confidential information or general information?
Mr. Glover: It is a general agreement with respect to CBI, which says they must protect all CBI.
The Chair: You arrange these agreements in advance. Is that right?
Mr. Glover: Yes; it is not a one-off. We sign with another country that we will respect each other's CBI.
Second, those agreements indicate how that CBI can be used, which, in our instance, is specific for the purposes of the investigation, to protect health and safety. CBI may not be disclosed, it must be protected and it must be used only during the course of that investigation.
We talk about it in the abstract, so I will give you a specific example about an investigation and how that tool will work.
We receive a call from someone who is concerned about a product. It is referred, and we see the call is the third one; have we got a trend? One thing we will do is phone our counterparts in another jurisdiction and ask: Is your system pointing to problems in Company X, Brand Y, Model Number ABC; in Canada, it is sold through these retailers; and we think it might be sold through these retailers in this geographic area.
That exchange can be considered CBI.
If I cannot share that information with other jurisdictions, how can we conduct the appropriate investigations? Why is that CBI; because it is specific about the brand, the retailers, their distribution channels, the markets they are in and the volumes, which all has value.
We would not be able to exchange that basic information about the model number, where we think it is sold and what part of the country, which would mean we probably would not be able to conduct many cooperative investigations with other international agencies. Not having that ability would, frankly, in the global marketplace, handcuff us. That is the type of CBI we are talking about.
Senator McCoy: As I understand your testimony, you say that you have been for some time in discussions with industry regarding policy and guidance documents. Is that right?
Mr. Ethier: That is correct.
Senator McCoy: Am I free to assume, then, that you have draft policy and guidance documents?
Mr. Ethier: There are a number of different draft policies and guidance documents that we are consulting with on industry. These documents are in draft form. They are out there for discussion purposes to seek the perspectives and the views of industry so that we can develop guidance and policy documents that, first, will not constitute a burden on industry; second, will not compromise our ability to administer the legislation; and, third, will create a regime within which both the regulator and regulatee can continue to coexist.
Senator McCoy: Since the documents are circulating in public domain, then, am I also free to assume that you will have no difficulty sharing them with this committee before the committee gives final consideration to the bill?
Mr. Ethier: The policy documents that are out there now are still very much in draft form. They are being consulted by smaller groups, but when they are ready for a larger public consultation, they are made public and generally in many cases, published on the web for public consumption and comment.
Senator McCoy: My question is, though, this committee is a small consultation group, if you like, of parliamentarians. If you are free to circulate these documents with industry, are you saying you will not share them with the committee members?
Mr. Ethier: That is not exactly what I suggested.
Senator McCoy: Are you saying you will share them?
Mr. Ethier: We can share them with the committee, as part of the consultation process.
Senator McCoy: Before final consideration of the bill?
Mr. Glover: If I may —
Senator McCoy: Are you saying no, Mr. Glover?
Mr. Glover: These policy documents are evolving and will continue to evolve. Some of them are in the early stages and will not be ready.
There are many elements to this bill. As you have pointed out, it is a large bill that has frameworks to it. We will be happy to bring back those documents, if the committee so desires, when we feel those documents are ready, to have a discussion with this committee. To say that every single policy document that we develop must be tabled before the bill is approved, some of the policy documents may be years in the making and will constantly evolve. The suite of policies we will develop will fill several linear feet, as we move forward.
Are we willing to share those documents; absolutely. Are we willing to share them today? They are not all complete. Some of them have not even been started. Those that are ready, absolutely.
Senator McCoy: You will share those that are ready today? How many are ready?
Mr. Glover: I am not in a position to declare those that are ready today.
Senator McCoy: Are there any ready today?
Mr. Glover: I will go back and review where we are with each of the individual policy documents we are working on — where we are with respect to the consultations with industry as we move forward — and make that determination. These discussions are ongoing.
We tend to consult with industry through large workshops. We recently had one in Toronto where all of industry was invited. We tend not to table the individual document. We make presentations and have discussion groups that then inform the policy documents, which we then put out for public consultation on the web.
There is an implication that the department is attempting to withhold information, which is not the case. We have a process we work through with industry, non-governmental organizations and other stakeholders that is clearly laid out in parliamentary process, which we fully intend to respect and follow.
Senator McCoy: I will reserve any comment for our own session, but carry on. You have time limitations.
Senator Dyck: I want to ask a couple of questions with regard to clause 20, to follow up on the point Senator Keon raised.
Are the powers of inspection outlined in Bill C-6 similar to the sort of framework that exists in U.S. and in EU legislation?
Mr. Glover: Definitely, they are.
Senator Dyck: During the review of those bills in the U.S., do you know whether there was great resistance on the part of some segments of the U.S. population — probably those involved in the sale or manufacture — to the passage of those types of powers.
Mr. Glover: It is inappropriate for us to speak to the full U.S. or EU experience. If I was to generalize, I would anticipate that the reactions they received are similar to the Canadian experience. There were large, responsible industries that welcomed it; industries that felt it was important for their reputation and their concern about the health and safety of their consumers to support the legislation. There are also interest groups that were opposed. That is the nature of civil society.
Senator Dyck: Some of the people we have had before us were concerned about the loss of what they considered to be their inalienable rights.
I worked for probably a quarter of a century in a research lab working with hazardous compounds, radioactive compounds, et cetera, and we were used to inspectors coming in randomly to check us out. Someone who works in a commercial industry may not be used to having those types of activities occur that are beyond their control.
Maybe Mr. Buckley did not intend to say this, but he essentially asked yesterday if consumer products are creating such a risk that we need a bill such as Bill C-6 with such far-reaching inspection powers.
In a labour situation, I can see the need because there is a risk to the people who are working with hazardous chemicals or toxins, but for someone manufacturing something like baby cribs, which can cause severe injury or death, perhaps they do not relate to the risk. Is risk important or is it a red herring?
Mr. Ethier: That is a good question, senator, and a point that was raised several times yesterday during the testimony. There is a misperception out there that the risk associated with consumer products is small, or less so than perhaps other products. That misperception is unfortunate.
Statistics were shared with the committee by the Safe Kids organization when they were here that suggest that the number of injuries and deaths attributable to consumer products is significant. Even the recent cribs example where there were four deaths in the United States suggests that there are significant risks and costs associated with consumer products.
Where the powers become necessary, I think, has to do with the regime that exists for consumer products. We do not have a premarket approval process in Canada for consumer products. It is impractical and impracticable to have that kind of process. For that reason, we need the powers to be able to make the necessary decisions and corrective measures when we encounter problems with consumer products in the marketplace.
In a premarket approval process, the department, for example, if it is dealing with drugs or natural health products, has the opportunity to conduct upfront risk assessment and make appropriate decisions at a time before the product is ever in the hands of the consumer. We do not have that luxury in consumer products; therefore we perhaps need some additional powers and instruments that allow us to take corrective measures when necessary.
Mr. Glover: The implication that these businesses are not subject to inspection is, I think, with all respect to previous witnesses, not correct, frankly. We currently inspect these businesses. We are not the only people who inspect them. They are subject to occupational health and safety inspections, depending upon the business they are in, and they might be subject to permits at a provincial or local level that would be subject to inspection. There are those inspections. There can be inspections with respect to the Income Tax Act, sales tax and others.
To imply that we are the only inspectors entering these commercial premises is, I suggest, not accurate.
Mr. Ethier: To add a final comment about inspection, this element is perhaps one we tend to overlook for those who do not know. Whenever an inspection is carried out, the inspection is always an opportunity for the inspector to inform, educate and sensitize the manufacturer or retailer about the requirements they must observe with respect to the goods they are selling.
As far as we are concerned, that element is part of the principal responsibilities that inspectors have. The inspection is not about a heavy-handed approach, it is about educating and informing industry about their responsibilities to ensure the safety of the products they put on the market.
Senator Cordy: Thank you for coming back again to our committee. I think everyone around the table wants legislation that makes products safer for Canadians. It does not matter what political party we are with, that is what we want and that is what we want this bill to accomplish.
Our job as senators is to ensure that the bill does not violate the privacy of Canadians, and it does not make the assumption of guilt rather than the assumption of innocence, which is fortunately the backbone of our country. Even a bill like Bill C-6 where we all agree on the intent or the premise behind the bill, we have to ensure that there are not unintended consequences to the bill. We want the bill to make things better for all Canadians, but we also want to ensure that it does not have an overreach for government.
I wanted to ask two questions, one about incident reporting and one about seizure of goods by inspectors. However, our critic for the bill, Senator Day, always seems to be left with two or three minutes at the end, so I will give him my 10 minutes. Senator Day, you can have the remaining 10 minutes here today rather than rushing through your questions.
The Chair: It turns out Senator Day is next, the official critic of the bill.
Senator Day: Thank you for being here. In exchange for that my first question will go to seizure, which is the second question.
Mr. Glover, when you went through your comparisons of Canada to the U.S., you did not talk about seizure, and especially seizure without any necessity for reasonableness.
How does Bill C-6 compare to the existing legislation in the EU and United States in regard to seizure?
Mr. Glover: With respect to seizure and reasonableness, I again point out that, through the inspection, we go through a process where we indicate with the company what corrective action is required. We negotiate that action with them, and move through that process in writing, et cetera. There is a step-wise and escalation process. There are many opportunities for exchange with the company.
Outright seizure occurs when the product is clearly prohibited; on a schedule and was known as we move forward. With respect to that seizure and the notion of reasonableness, I will attempt to clarify that action.
With respect to the comparison with other jurisdictions, I will let my colleague respond.
Mr. Ethier: The provisions that we have under seizure are similar to those that exist in the EU and the United States. In crafting the requirements in this bill we took a close look at legislation that existed elsewhere to ensure that Bill C-6 aligns well with the kinds of authorities that exist in other countries. There are no authorities that exist in Bill C-6 that do not exist elsewhere.
Senator Day: Are you saying that in other jurisdictions there is no requirement for reasonableness before seizure takes place? The person who enters must have reasonable probable grounds that there is a potential for a breach of the statute. The person seizes the product to prevent it from being dispersed. There is no requirement for reasonableness. That is the question.
Mr. Glover: The U.S. has the authority in its legislation to destruct the product on import. Our proposal does not go that far.
Senator Day: Is there any test of reasonableness before a product is seized and destroyed in the U.S.?
Mr. Glover: In the U.S.?
Senator Day: I am asking for a comparison.
Mr. Glover: We will look at that question further and respond in writing to the clerk of the committee.
Senator Day: You have prepared a nice analysis. Do you have seizure without any test of reasonableness on your list?
Mr. Glover: No; I have destruction on import, which is beyond the measures we take in Canada.
Senator Day: Can you provide the clerk with a copy of their legislation so that we can compare it to Bill C-6.
Mr. Glover: Yes.
Senator Day: I take us back to clause 20. Ms. Labelle, can you live without the part that causes us concern at the final line of sub-clause (4): "and they are not liable for so doing''?
We are concerned that possibly it can be argued by some lawyer before a judge, long after we have passed the bill, that the provision is much broader than the original intent of the bill.
Is there other legislation where that clause has been argued and restricted by interpretation by a judge? It might provide us with some comfort.
Ms. Labelle: Senators, I am not aware of any case law on this type of clause, although I can review the case law as needed. The concern with removing the words "and they are not liable for doing so,'' is that someone will sue the inspector for having crossed their property. That is the sole purpose for those words. There is limited immunity for the inspector that needs to cross the property on legitimate business. This provision does not give the inspector carte blanche to stand on the property, to hang around the property or to go over just anyone's property. Crossing the property needs to be in the conduct of the inspector's functions and duties to access a place of business that falls under the terms of Bill C-6.
Senator Day: I understand the policy. I know what you want to achieve. I am telling you our concern and the concern of others. Have you seen an interpretation of such a clause whereby the courts have said that it should be restricted narrowly? You know and I know that lawyers will argue that this provision could be much broader than the original intent of the bill, and the Department of Health will be responsible for the doors that they knock down or the Ming vase that its inspectors might knock over. Such incidents will occur. Why do we not make that clearer now if you want to say only that inspectors will not be responsible in trespass and any minimal damage they might cause as a result?
Mr. Glover: Senator, I respectfully inform the committee that Ms. Labelle's role is to provide clarification, while this line of questioning is asking for advice. The advice is to the department, not to the committee. As such, I ask that she advise me on such matters first and foremost. We are entering into a negotiation and exchange of legal opinions about particular clauses. That is not why I asked Ms. Labelle to accompany me today as a representative from the Department of Justice. She is here to provide clarifications, not to provide advice.
The Chair: Please bear that in mind, Senator Day.
Senator Day: I have it in mind, and you heard my comment. Clause 57, Ms. Labelle, is a rule of law about violations:
In every case where the facts of a violation are reviewed by the Minister, he or she must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation. . . .
Is the minister acting as a prosecutor or as a judge? Is that question within Ms. Labelle's role today to answer?
Ms. Labelle: This clause is an administrative procedure. The minister is not required to act as a judge or prosecutor. The minister is reviewing notices of violation.
Senator Day: The minister establishes "on a balance of probabilities''? A prosecutor normally establishes, and someone who assesses the situation is satisfied that there is, "on a balance of probabilities,'' a violation.
Ms. Labelle: For clarification, the balance of probabilities is not a burden of proof, which is used exclusively in the criminal law domain. This provision refers to a burden of proof as used in civil law and administrative law.
Senator Day: Ms. Labelle, in the bill, the minister is required to establish a violation on a balance of probabilities. That is my point. Does that provision not read better if it says: " the minister, he or she must be satisfied''?
Mr. Glover: With respect to the intent of those clauses, as we said earlier, within the framework of the bill, this portion ensures that the minister remains accountable for the conduct of the department, its inspectors and its actions. The intent is not that the minister attempt to be judge, prosecutor or jury but rather the to ensure that the minister is accountable for the actions of officials under the act. I reiterate that any actions taken by the department and its officials are further reviewable by a court. This administrative procedure ensures that the review mechanisms requested by the committee are in place.
Senator Day: I move on now to clause 16 and clause 17.
The Chair: This will have to be the last question Senator Day.
Senator Day: Yes; Mr. Glover, when you presented, you said that clause 17 further restricts how confidential information can be disclosed. I do not look upon clause 17 as cumulative with clause 16, which has some built-in protection. Because of the circumstances of clause 17, it does not have built-in protection. When you used the term, "further restricts,'' what did you intend? Did you intend all of the limitations on disclosure in clause 16 to apply to clause 17? You do not have to do that in clause 17. Do you agree with me?
Mr. Glover: Yes.
Senator Day: I agree with you. The second part of that question is the important point of clarification of the definition of "confidential business information.'' Mr. Glover outlined what we mean by "confidential business information,'' but what a judge will interpret as confidential business information is outlined in the definition section; not what you said or what you intend. We have difficulty with that situation. One of our witnesses said yesterday that "confidential business information'' includes intellectual property. The definition at clause 2(c) under "confidential business information'' says: "that has actual or potential economic value.'' We are giving confidential business information to people in other countries that has economic value to the recipient that can result in a material loss to the company in Canada whose information is divulged, while giving a material and financial gain to the competitor. That is the test we apply when looking at 15, 16 and 17.
Mr. Glover: As briefly as possible, chair, my remarks were meant to be illustrative. We were talking about this issue at a conceptual level, fully acknowledging the law and how it defines CBI. To elaborate further on my example, we found that two jurisdictions were having a problem and wanted to analyze that issue further. The problem could have been in the design of the product, in which case we work with the company and share schematics to determine if the flaw is in how the product is constructed, in order to conduct that inspection. It is a necessary exchange of information.
Senator Eaton: I want you to put something on the record, Mr. Glover. According to clause 20(4), inspectors "are not liable for doing so.'' I understood from what you said earlier that inspectors can cross a property line to do their job but if, on crossing the property line, an inspector breaks a Ming vase — to quote Senator Day — or kicks a couple of tires, the inspector is liable for damages in a court of law.
Mr. Glover: Correct.
Senator Eaton: Thank you.
The Chair: It is almost the point of adjournment, except I want to consult with senators further about the minister.
Mr. Glover, I thank you and your associates for coming here today and for providing further information. I appreciate that you have been straightforward; and you have used good examples to try and illustrate how this legislation will work. Whether we agree with everything and we can agree with the provisions of the bill is another thing, but I do not mind saying I think you are a reasonable person.
We will terminate our television coverage and have our discussion.
Honourable senators, Senator Cordy raised, at the beginning, the issue of the minister being here or not being here.
There are two aspects of this issue to consider. One is the principle. Should the minister always come to defend a bill that the minister is the ultimate sponsor of and responsible for? Senator Cordy pointed out that in the past an unnamed senator raised that issue on a number of occasions, apparently, so there is the principle issue. However, there is also the practical side. Would the minister, in coming here, provide information over and above all the information we already have? With all due respect to the minister, I think we have all the information we will probably obtain. The minister would probably give us much the same kind of information as the Health Canada officials, so from a practical standpoint, I doubt that the minister's appearance will provide a body of information. However there is the standpoint of principle; the other side of the coin.
If we stand on the principle point, it will delay this bill going forward because we have to find some time where the minister is able to come and join us. With those comments, is there anything further?
Senator Segal: I am persuaded by your second point about whether any practical data will be added to our deliberations by the minister's presence. While I absolutely embrace the principle that my colleague Senator Cordy has underlined, we are living through slightly difficult times on the health front because of H1N1, so we may expect that in this particular narrow circumstance, the minister's appearance may not be as logistically possible as has been the case in the past.
My second question relates to the data issue. I was surprised by Mr. Glover's, I think, acquiescence to the well-put question by Senator McCoy relative to making those working documents available to this committee. I asked the question myself some sessions ago and was told that it was not possible. I do not know whether Mr. Glover left the door open on purpose or whether he shut it and tried to clarify. I hope that whatever of those documents can be made available — without in any way retarding our work, and with the written assurances that Mr. Glover undertook — will be in the hands of the clerk of this committee prior to us moving to any clause-by-clause consideration. I do not recommend changing the schedule at all. I am pleased with the schedule the chair received consensus support on yesterday.
Senator McCoy: On this particular point, it will be useful to have those documents, but I do not know that I heard the testimony the same way as Senator Segal characterized it. Perhaps an early item of business, if the clerk does not mind, is to check the record and confirm with Mr. Glover so we have a precise answer.
Senator Segal: If I misheard, I am glad to stand down on this matter.
The Chair: We can go into what each of us heard, but if we can have information prior to clause-by-clause consideration, we will do that. The clerk can follow that issue up. I thought Mr. Glover said the documents are not available now, or he is not sure whether some are available now, but ultimately they will be made available. They ultimately become public documents, but if you want more certainty about that matter, the clerk will pursue it to see what is available.
Senator Martin: We need to understand the importance of the principle — what has been done in the past — but also keep practicality in mind and the timeline we have. We have talked about this principle of late rather than giving more time. With the minister having been so inundated and preoccupied with the H1N1 situation, we first gave her notice on the 28th and she was not available for today's session.
If I recall correctly — I could be wrong — she is not available next week with travel that may be in place. This availability needs to be clarified.
I want to say it is the last hour. I appreciate Senator McCoy's questions and comments today, but she is asking for last-minute procedures to be added when we have already discussed, as a committee, how we will proceed with this bill. I want to validate the concerns around this table, but this item seems to come up at the last minute.
In all fairness to the minister, the department and what we have been engaging in, I urge my colleagues on this committee to exercise discretion if we can, and stay on our timetable.
The Chair: Any time we deal with legislation, the minister is always invited in the first instance. It is not a last- minute request in that respect. The minister would have been invited to the first meeting we held on this matter; she chose instead to send Health Canada officials.
Inviting a minister is not a last-minute thing.
Senator Martin: I did not say we are requesting it at the last minute, but this discussion is about having her appear as a necessity for us to consider the bill clause by clause.
The Chair: You are talking about the immediate situation.
Senator Martin: Yes.
The Chair: Fine.
Senator Callbeck: I think the principle that Senator Cordy talked about is important, but I do not feel, in this situation, that the minister can give us any new information. As Senator Martin said, we have a timeline here. I agree with the principle, but I think in this situation, I will not agree to tie up the legislation because the minister has not appeared.
Senator Cordy: I am glad you clarified that point. I know Senator Martin gave the impression that this invitation was last-minute. This invitation was the second time we have made the request. We asked early on and then we asked again yesterday to clarify. I only raised it yesterday because I knew that the Department of Health officials were coming, and wondered if she was coming as well.
I am willing to agree with the whole committee today. I understand that the minister is tied up with H1N1, but she also did not appear for Bill C-32, which was the tobacco bill where I was the critic. This is the second time she has declined to come before the committee. I do not want this situation to become a precedent. In this case, she wants her legislation passed, but she is too busy to appear.
She came for one bill, Bill C-11 on pathogens. I understand that. She came for one out of three bills thus far.
When we were in government, I understood the frustrations when I sponsored a bill of making sure that a minister came before the committee. I understand that it is not easy because ministers are working full out. I understand that situation. However, I think that, as a committee dealing with government legislation, it is important that government ministers understand that they appear before committees dealing with their legislation.
Having said that, because of H1N1 and because we have a timeline for clause-by-clause consideration of the bill, I am willing to let the situation go. However, the next time we have legislation and the same thing happens, I will raise the issue again.
Senator Martin: I will take that message back.
The Chair: I think we have had a sufficient round. Senator Day, do you have something different to add?
Senator Day: Yes; I am not a member of this committee, and of course I will be pleased to hear what the committee decides, but I think this is a principle that shows respect for the Senate as a whole. If you do not raise it, chair, I hope that you will not be offended if I raise this issue when you ask for permission to sit out of the normal time slot to consider the bill clause by clause. I think the entire Senate should be aware of this situation.
The Chair: I have no problem in you making the Senate aware of the situation. That is your right.
The consensus of the committee is that while the principle is an important one, with the practicalities of the situation, we should not stand on insisting that the minister come at this particular point in time. That, I take it, is the consensus. Is that agreed?
Hon. Senators: Agreed.
The Chair: We will adjourn now. Our scheduled time to reconvene is four o'clock next Wednesday. I have a motion before the Senate that it be three o'clock, and if that motion is approved, we will meet then. Otherwise, we will meet at four. That next meeting will be clause-by-clause consideration of this bill.
(The committee adjourned.)