Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 16 - Evidence - November 25, 2010
OTTAWA, Thursday, November 25, 2010
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-36, An Act respecting the safety of consumer products, met this day at 10:31 a.m. to give consideration to the bill.
Senator Kelvin Kenneth Ogilvie (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I call the meeting to order.
[Translation]
Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
Before we welcome our guests and introduce ourselves, I have a matter of business with regard to the agenda. The agenda circulated shows two witness groups, the first one to end no later than 11:15 a.m., and the second to end no later than 12:30 p.m., at which time clause-by-clause consideration will begin. If either panel ends earlier than that, we will move to the next item on the agenda. Is that agreed?
Hon. Senators: Agreed.
The Deputy Chair: Thank you.
I am Kelvin Ogilvie, from Nova Scotia, deputy chair of the committee; and I will chair the meeting today. I ask senators to introduce themselves, starting on my right.
Senator Martin: Good morning and welcome. I am Yonah Martin from British Columbia.
Senator Eaton: I am Nicky Eaton, from Toronto Ontario.
Senator Stewart Olsen: I am Carolyn Stewart Olsen from New Brunswick.
Senator Seidman: Good morning. I am Judith Seidman from Montreal, Quebec.
[Translation]
Senator Champagne: Good morning. I am also from Quebec.
[English]
Senator Brazeau: I am Patrick Brazeau from Quebec.
Senator Dawson: I am Dennis Dawson from Quebec.
The Deputy Chair: I welcome Ms. Stoddart and her colleagues from the Office of the Privacy Commissioner of Canada. With her are Ms. Kosseim and Ms. Millar-Chapman. I understand, Ms. Stoddart, that you will make a presentation and invite your colleagues to be involved as you see fit with regard to answering questions. Please proceed.
Jennifer Stoddart, Privacy Commissioner, Office of the Privacy Commissioner of Canada: My colleague, Assistant Privacy Commissioner Chantal Bernier, appeared before you on the predecessor to this bill, Bill C-6, just over one year ago. We are pleased to be here to discuss the privacy implications of Bill C-36. I appreciate and applaud your committee's concern for privacy, which is a cornerstone of our democracy and a fundamental value for Canadians.
Bill C-36 is an important initiative that aims to strengthen protections for consumers, who use a range of products. Clearly, any legislative proposal that will make Canadian families safer is one that we endorse without reservation. We are generally satisfied with the privacy safeguards built into the bill, although we see further areas for improvement. I will focus on those specific enhancements in my remarks today.
One of the provisions in Bill C-36 that has received the most attention since we last appeared before the committee deals with the disclosure of personal information by the Minister of Health to other governments and individuals. This clause, clause 15, allows personal information to be disclosed without the consent of the individual concerned, provided that the disclosure is necessary to identify or address a serious danger to human health or safety. Obviously, whenever there is any disclosure of personal information, particularly if the information is sensitive, our office wants to make sure that the necessary privacy precautions are in place.
[Translation]
I will now talk about the Health Canada undertakings. In that context, it is important to note that Health Canada has made a series of promises — in parliamentary testimony as well as in undertakings to our office — to address such concerns.
For example, the department has pledged that the proposed law would lead only to a minimal collection of personal information, and that this information would only rarely need to be disclosed.
The department also stated that disclosures of personal information would be under the supervision of its access to information and privacy coordinator, who exercises the minister's powers under the Privacy Act.
Like Assistant Privacy Commissioner Chantal Bernier, I am confident that these undertakings will be respected as promised.
However, we also advised Health Canada that, following the passage of this bill, we would want all outstanding implementation issues to be addressed through the privacy impact assessment process.
At the same time, we welcome any other legislative proposals to further enhance the protection of privacy.
[English]
I will talk about possible further privacy enhancements. For example, I would support a requirement for the use of confidentiality agreements with respect to personal information. These agreements would set out the nature of the information that the government will share under the legislation and the circumstances under which it can be disclosed. In particular, I would endorse a limitation on the purposes for which personal information disclosed in this manner can be used by the receiving parties. This limitation is especially important in that the incident-reporting mechanisms envisaged under clause 14 are of a relatively open nature.
I would favour generally an amendment that requires the notification of individuals in advance of disclosure, or as soon as practicable thereafter. However, at the same time, I acknowledge the department's concerns that complying with such a requirement would necessitate the collection of additional contact information that otherwise would not be collected. This objection on the part of the department is indeed legitimate. If such an amendment were to be proposed again, I suggest it be restricted to cases where contact information is already available and where contact is reasonably practicable.
The current proposed amendment to create clause 15(2) states that "nothing in this section affects the provisions of the Privacy Act.'' This express reference serves as a useful reminder that the Privacy Act as quasi-constitutional legislation will apply to this regime.
Finally, I urge you to build into Bill C-36 the authority for the Governor-in-Council to make regulations respecting the collection, use and disclosure of personal information by the minister. Such regulations should be included among those that would have to be brought before both houses for approval. These regulations would strengthen accountability with respect to the protection of personal information under the new Canada consumer product safety act.
In conclusion, honourable senators, the Office of the Privacy Commissioner of Canada appreciates this committee's attention to privacy protection in Bill C-36. We look forward to Health Canada's continued cooperation on the adoption and implementation of this important proposed legislation.
My staff and I will attempt to answer any questions you may have.
The Deputy Chair: We are pleased to have you here today. I will open questioning with Senator Dawson.
[Translation]
Senator Dawson: I would like to congratulate you on being reappointed at a time when we are used to terms being cut short without warning. Your reappointment does you credit. I feel that the work you have been doing for the past few years and your reappointment show that Canada's parliamentarians and the government have great respect for your work.
Having said that, clause 15(2) sort of came about because of comments made on the previous bill. The current bill is a real improvement compared to the previous bill. The government did not take the amendments to the previous bill seriously, but those same amendments have now been accepted.
It worries me when you talk about improvements to clause 14 and about disclosure, referring to foreign entities and provincial governments. The fact that information can be shared may affect your responsibility or make it difficult for you to control the use of this information, since it would be outside your jurisdiction. Perhaps you got something else from clause 15(2) of the bill that forces them to respect the philosophy behind the Privacy Act. But I am still a bit worried and wondering about what you would be able to do if we gave access to information to other people.
Ms. Stoddart: First, thank you for your congratulations.
I have not studied this question specifically, but I believe we are dealing with a trade context. Once personal information is outside the scope of the Privacy Act, it falls under provincial jurisdiction, so it falls either within federal legislation or one of the provincial acts; three provinces have this type of power. So I do not think there would be an actual breach in the personal information system.
Senator Dawson: You said that you would also like improvement measures to be taken once the bill was passed.
[English]
What do you think would be a reasonable timetable for the government to clarify some of those enhancements?
[Translation]
Ms. Stoddart: That would depend on when the act will come into force. But, since this piece of legislation affects many Canadian consumers, it should be done at the same time as the coming into force of the act.
[English]
Senator Martin: Thank you for being here. You commented in your presentation that you have been in communication with Health Canada officials and that you are satisfied and happy with their willingness to work with you on the important matters related to privacy. I want to go back to one of your comments and ask you to elaborate.
You said that the Privacy Act is built into this regime. In your communication, what did you hear that has given you assurance that the protections for consumers and Canadians are there and that led you to make that statement? Can you elaborate on the communication you have had and the willingness you have seen that you will be working with the officials going forward?
Ms. Stoddart: The Privacy Act indeed does cover, by its very nature, all federal government legislation. Federal government legislation is always read in relation to the Privacy Act. The officials in my office were positive about their interaction with Health Canada, and that is what was reflected in my remarks. I was not there personally, so I will ask Ms. Millar-Chapman to continue the answer to your question.
Melanie Millar-Chapman, Manager, Strategic Research, Office of the Privacy Commissioner of Canada: With respect to the amendment in clause 15(2), we did not discuss that aspect with the department. Our communication was on Bill C-6 prior to our appearance last year. Since that time and since the introduction of Bill C-36, we have not discussed that clause with them. It is only a question of the Privacy Act being relevant here, and whether it is indicated in the bill.
Senator Martin: The bill has been strengthened. Senator Dawson described the process undertaken, and the leadership and openness of the minister who appeared before us yesterday, and the officials, to consider some of the amendments that were added that strengthen the bill. You had a conversation on Bill C-6, and the previous Privacy Commissioner said she was satisfied with the bill as it was. I do not know if you wish to add anything further.
Ms. Stoddart: I could say that we have, and my colleague expressed this, every confidence in the ability of the Department of Health to respect privacy and privacy laws. The department gave us their consent to conduct a privacy impact assessment before putting this program into application. Generally, I think Health Canada, in the last few years, has greatly improved its information handling practices. In that sense, we were trying to convey to you that we did not have any serious misgivings about the application of this program in terms of privacy.
Senator Martin: Thank you for reinforcing the confidence that you have in the officials. We heard from them yesterday, and we too feel that all those considerations have been taken into account. Again, we welcome you today and look forward to working with you.
Senator Callbeck: Welcome, commissioner, and congratulations on your reappointment.
Ms. Stoddart: Thank you. It is not done yet.
Senator Callbeck: On page 3, you say, "we also advised Health Canada that, following the passage of this bill, we would want all outstanding implementation issues to be addressed.''
Can you give us a list of your outstanding implementation issues?
Ms. Stoddart: Once again, I will ask Ms. Millar-Chapman to answer. She has been in contact with Health Canada.
Ms. Millar-Chapman: The privacy impact assessment process will explain further the policies and procedures that will be in place to protect privacy. The process will document information flows. In our earlier correspondence with Health Canada, we had requested things like de-identifying information, if it is possible to do so, and using de- identified information rather than personal information with respect to running the program. We will be looking for those sorts of things in terms of implementation issues. The recommendation to including regulatory power with respect to protecting personal information is another way of accomplishing that goal as well.
Senator Callbeck: How does this privacy impact assessment process work?
Ms. Millar-Chapman: The departments develop a privacy impact assessment, and they submit that assessment to Treasury Board. We will have it for recommendation purposes. We can comment on it. We have a consultation process that we undertake with departments. We follow this process on the implementation of other bills to ensure that the program areas follow fair information principles in implementation, because often there is not much detail in the directions and legislation. The process is a longer, deliberative one with departments.
Senator Callbeck: Departments come up with the issues and submit them to Treasury Board. Can you come up with issues as well? Does the department initiate all the issues that are addressed?
Ms. Millar-Chapman: No: We have an opportunity to make recommendations, for example, on privacy impact assessments. Even outside of that process, we have discussions with departments to improve privacy practices.
Senator Cordy: Thank you, commissioner, for appearing before us. It is most helpful to us when we are deliberating on a bill.
I am also delighted to see that the amendment, clause 15(2), is now in this current bill, Bill C-36, so we know, in fact, that this bill in its entirety comes under the Privacy Act. I commend the government for inlcuding that amendment.
I am interested in the further privacy enhancements that you recommend in your discussion today regarding clause 16 of the bill: without notifying a person, without their consent, that their information is being given. In your presentation to the committee, you talked about the department's concern that, in some cases, notification and consent may not be possible. That reason is justifiable; if the department cannot contact the person, they cannot hold onto something forever. You state that if an amendment were to be proposed, then it would be restricted to cases where contact is not possible: You see the warehouse, and no one is in sight. That happens more frequently than one would like to think. How would you go about that situation? Proposing an amendment to the act to ensure that persons are notified unless it is impossible to notify them is one way to deal with it, is it not?
Ms. Stoddart: Yes, exactly: If you look at, for example, clause 14, there are several definitions and clarifications. You might want to add some of these suggestions I am making to the following parts of clause 15 to give further clarity about the use of personal information by the minister in the case of an incident that constitutes a serious danger.
Senator Cordy: If an amendment were proposed and voted down, what would be the next step? How do we ensure that a person would be notified, if possible? Can that be done through regulations? It would be clearer if it were in the legislation.
Ms. Stoddart: Yes, it can be done in regulations, if there is a possibility for regulations. It also can be incorporated into the department's voluntary code of how to handle personal information in conjunction with this part of the act, and that incorporation can be explored further in the privacy impact assessment that the department can also develop.
Senator Day: Chair, it is good to see you back in the chair today, unexpectedly. I was surprised when I arrived and saw you back in the chair, but we will carry on.
The Deputy Chair: I liked it so much.
Senator Day: That is right.
Ms. Stoddart, thank you for being here. I want to clarify that your area of responsibility is in relation to clause 15, which deals with personal information, as opposed to clauses 16 and 17, which deal with confidential business information. Am I correct?
Ms. Stoddart: Yes.
Senator Day: We should focus on clause 15, then, and anything that impacts on clause 15. I appreciate the comments you have given us.
Clause 15 refers to disclosure of personal information to a person or a government. I am sure you have had the opportunity to look at the definition of "government'' that appears in clause 2. Government is almost everything we can imagine, but the area that poses concern and question is in relation to subparagraphs (e), "a government of a foreign state or of a subdivision of a foreign state or (f) an international organization of states.''
This act provides authority to the minister to give the personal information of Canadian citizens to a foreign organization of states or to a subdivision of a foreign government. We know that many international businesses are subdivisions of government in certain jurisdictions of the world.
How do we satisfy ourselves that Canadians' personal information will not go where it should not go? I do not suggest there is a desire on the part of Health Canada to send that information, but when it gets out there, because the definition is so broad, without limits on it, this information could be everywhere. We are talking about people's private personal information. Maybe someone has had a mental problem in the past and that information is reflected. We have seen that situation with Veterans Affairs Canada, and how that information can be used by government officials and business people in treating that individual. They have learned something that may or may not be relevant any longer but it is on the personal record of that person. How do we protect against that situation?
Ms. Stoddart: That is a good question. If a thing were to happen, for example, such as was publicized in our investigation this summer in one case of Veterans Affairs Canada, what we saw there were violations of the Privacy Act, and that is why our complaint was well founded.
This particular piece of legislation would be read in conjunction with the Privacy Act, and the Privacy Act would apply to it. The minister, in disclosing information abroad, would be limited to disclosing it for the same purpose, or what we call a consistent purpose — that is, a similar kind of purpose — and the minister, under the principles of the Privacy Act, should limit disclosure strictly to what is needed to fulfill that function, which may be threats to the food chain or things that take place across borders. If the department applies the Privacy Act correctly, then there should be limited disclosure only of the information that was gathered originally and only for the purpose for which it was originally gathered, or something consistent. Those are the rules of the Privacy Act.
Senator Day: I could take you to the Privacy Act, but I would rather you take me to the Privacy Act and tell me which section of the Privacy Act will provide the type of protection you described.
Ms. Stoddart: Can I refer this question to my general counsel, who has the Privacy Act with her?
Senator Day: That would be great: Thank you.
Patricia Kosseim, General Counsel, Policy and Parliamentary Affairs Branch, Office of the Privacy Commissioner of Canada: Thank you for the question. The provisions governing disclosure by government departments and institutions are under section 8 of the Privacy Act. There are several permitted disclosures without consent. One is "for the purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure.'' That authorization would come clearly from the proposed consumer product safety act, and the disclosure would need to be for the purpose of administering that act and hopefully for those limited purposes and nothing more.
There are other relevant provisions in the Privacy Act as well. The one that is important is paragraph 8(2)(m), which would allow disclosure in the public interest, which may govern situations of imminent danger. That paragraph is available to the minister at his or her discretion as well. There are provisions in the Privacy Act that are consistent with the proposed consumer product safety act and, when read together, we would hope that the disclosure would be limited for those purposes of administering the act, and consistent and only to the extent necessary to do so.
The Deputy Chair: Senator Day, does that complete your part on that question? I have two people who want to ask a supplementary question.
Senator Day: I would be pleased to have the supplementary questions first, because it may help me.
Senator Seidman: To clarify Senator Day's question, when a bill such as the one before us includes a provision for sharing personal information, how important is it to read that provision within the purpose of the clause of the proposed legislation?
Does the purpose of the bill contribute to the limitations around when, and for what purpose, a disclosure can take place?
Ms. Stoddart: Once again, my general counsel can give you a more accurate answer to those questions.
Ms. Kosseim: Clearly the acts would have to be read coherently together. Enhancements of which we speak would be the type of information-sharing confidentiality agreements. Information disclosed to other persons or government institutions for the purpose of administering this bill, in situations of serious danger, can be further enhanced from a privacy perspective with confidentiality undertakings on the part of the person or the government institution to whom the minister discloses the information for the purpose of managing the threat or the danger. In practice, those kinds of agreements in place can go a long way to ensuring that third party governments or persons do not use the information disclosed for any purpose other than what is agreed upon and is consistent with the objective of the bill.
Although those agreements can be broken, in practice, they enhance accountability and would be a practical way of ensuring that confidentiality is maintained.
Senator Seidman: Does the purpose of the bill contribute to the limitations around when and for what purpose the disclosure can take place?
Ms. Kosseim: Section 8(2)(b) of the Privacy Act allows disclosure without consent "for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure.'' That paragraph would have to be read in conjunction with the objectives and the purpose of the bill. To the extent that the bill allows it, they would have to read why it allows it, and they would have to limit the disclosure accordingly.
Senator Seidman: Thank you; that is the point.
Senator Eaton: I lack Senator Day's imagination. You raised a specific reference to the poor veteran whose personal information was used.
This bill deals with hazardous products and safety. Do you foresee a time when personal information could be that invasive when we deal with safety and hazardous products? Apart from name, address, place of business and what they manufacture, do you imagine a time when sensitive issues like their medical information might be imparted to a foreign government?
Ms. Stoddart: I will begin a response and then ask general counsel to continue; she is a specialist in health law.
Clearly, what strikes me about this bill is that most of the information deals with products and manufacturers. Much of the personal information might be the name of the manufacturer, the distributor and so on. It seems at first blush to be less sensitive than something that deals with drug prescriptions, for example.
Given the collection of personal information by databases of retailers, for example, there is a possibility that the ministry, in certain circumstances, could find itself in possession of a great deal of personal information. It is difficult to see the depth of that information in terms of buying a product. For example, if a consumer tried a product that caused an adverse reaction of some kind or caused harm, some of their personal information included in their description of their complaint to the retailer might be passed on about some of the consequences caused.
Senator Eaton: Surely if I phoned the manufacturer of Aspirin and said I have been feeling nauseous or I have been sick after taking the product, I can understand that information being passed on because of the effect of the Aspirin on me. I do not see that situation leading to a description of my gynecological or mental histories. If it leads to that disclosure of information, it relates to the complaint in the first place.
Ms. Stoddart: Exactly: In this case, we come across what might seem, perhaps in some circumstances, to be an overly cautious approach to protecting personal information. When we look at how information is often handled, and I am not speaking about the Ministry of Health, it somehow is passed along the chain by people who, in all good faith, put one thing with another. We end up unwittingly with a portrait of more information of a person than we want to have. That scenario colours our approach to things such as this bill to ensure that we place a tight fence around it, because these things unfortunately have a way of happening.
I am trying to say that you grasp the scenarios correctly. Unfortunately, we see daily in our office, in our press clippings and so on, incidents in which all the personal information, first, is put together and second, finds itself somehow made public.
Senator Eaton: Do you find the fence around this bill to be tight?
Ms. Stoddart: The fence around the bill, except for clause 15, is the Privacy Act. The Privacy Act has challenges, which we have made public; but it covers this bill completely. As I mentioned to one honourable senator, I believe that parts of the functioning of this bill writ large will fall into either the private sector Privacy Act or the provincial private sector privacy acts. I do not know whether general counsel wants to add anything.
Ms. Kosseim: No.
The Chair: I will return to Senator Day.
Senator Day: I heard your comment about confidential agreements being one way of protecting the individual. In the case of information gathered by a Canadian entity being divulged to a foreign entity or a subset of a foreign government, which could be a sovereign corporation participating in the manufacture of the same product that this person is manufacturing, an agreement with that entity is one way of trying to build fences around the personal information. Did I understand your comment correctly in that regard?
Ms. Stoddart: Yes, absolutely: As one of my colleagues explained, an agreement in the form of a memorandum of understanding is one way to make explicit the obligations in terms of protection of personal information on both parts and to facilitate accountability. For example, if something happens, whose responsibility is it and what should they have done? It is helpful to have these things stated clearly.
Senator Day: I find such a provision in clause 16, which states:
. . . without notifying that person if the person to whom or government to which the information may be disclosed agrees in writing to maintain the confidentiality of the information . . .
That is the kind of confidentiality protection that we are talking about.
Ms. Stoddart: It is. As you know doubt know, senator, this provision seems to relate to confidential business information rather than to personal information. It is beyond my bailiwick.
Senator Day: Did I understand your comments correctly when you said that such a provision in clause 15 on personal information would be desirable?
Ms. Stoddart: From a privacy point of view, it would be welcome.
Senator Day: That is what I thought.
Going back to clause 15(2), you indicated that the reference to the Privacy Act is a useful reminder. Is that provision anything more than that? The bill was already subject to the Privacy Act. Is clause 15(2) anything more than a useful reminder? Does that provision create a barrier? Does it create some limits on clause 15(1)?
Ms. Stoddart: May I refer that question to my general counsel for the precise interplay of that clause?
Ms. Kosseim: Thank you for the question. Clause 15(2) is a sound, express recognition that the proposed legislation will be subject to the provisions of the Privacy Act. However, the Privacy Act, being quasi-constitutional legislation, will apply in any event and must be read in conjunction with federal legislation. Clause 15(2) is a good, express recognition of the importance of the Privacy Act.
The Privacy Act, unless expressly excluded from application, will continue to apply to this regime.
Senator Day: Is that whether or not clause 15(2) is in this bill?
Ms. Kosseim: I believe so, yes.
Senator Day: I think you are right. We agree that this amendment, clause 15(2), does nothing more than remind us of something that already is in legislation.
Ms. Kosseim: As an express provision, it relates to the earlier question and strengthens the argument that the bill must be read in conjunction with the Privacy Act, and that the objective of the bill must be read in conjunction with the Privacy Act. To that extent, it is a good reflection of the bill's intent. In response to your question, the Privacy Act will apply regardless.
Senator Day: Following this scheme through, clause 15 allows a minister, the minister of health in this instance, to disclose personal information provided the disclosure is to someone who carries out the functions relating to the protection of human health, et cetera, if that information is necessary to prevent, or is likely to cause, serious danger to human health. This clause gives the minister some limitation while allowing the minister to disclose personal information. Previously, I had proposed protection to the individual by including a confidentiality agreement and disclosure after the fact to assure individuals the information disclosed is for health purposes. Providing this protection after the fact ensures that impact on the emergency will not be delayed. My two suggested additions are confidentiality agreements and notification after the fact.
You have commented on both those additions but neither one appears in the bill. We are advised by the department that the addition of the Privacy Act covers those suggestions. However, where in the Privacy Act do I find reference to notification after the fact, and that confidentiality agreements must be in place before information is divulged?
The Deputy Chair: Before answering, we have roughly one and a half minutes left. If you can focus your answer, that will end this session.
Senator Day: Chair, I am just getting started.
The Deputy Chair: We had an agreement at the beginning of the meeting.
Senator Day: Do you mean that the meeting began before I arrived?
The Deputy Chair: You were late.
Senator Day: I was late. Before we continue, can I know what agreement was reached before I arrived?
The Deputy Chair: Certainly: We agreed that the first session on the agenda would end at 11:15 a.m. and the second session would end at 12:30 p.m., at which point clause-by-clause deliberation would begin.
Senator Day: Chair, this meeting has no authority to proceed beyond 12:30 p.m.
The Deputy Chair: It was announced initially by the steering committee that clause-by-clause consideration would begin then.
Senator Day: Chair, you cannot go beyond your designated time without having the approval of the whips. There is no approval to proceed beyond 12:30 p.m. to start with. With respect to this particular witness, this is important information that we are gathering, and I object to being cut off based on an agreement that you say was made by a steering committee.
The Deputy Chair: No, sir.
Senator Dawson: Since I was here, I was not led to believe that this was being done with that intention. I was led to believe that there was cooperation. I would never have agreed, chair, to what I thought was cooperation because the witness was sitting at the table. I hoped that we would give the witness an opportunity to be heard as quickly as possible because she will appear before the Senate this afternoon. We have a meeting to prepare ourselves for this afternoon's plenary session. I thought I was being nice. If my being nice was being naive because you had intentions, I feel a little —
I have to leave, so I will be guilty of being absent. Senator Day was guilty of being late but I will be guilty of leaving early. I agree with Senator Day, that was not the intention of my cooperation. I totally agree with him. I am Chair of the Transport Committee and I know well that I have time limits on committees. I know that, as the chair, I do not have the right, even with the cooperation of my committee, to overrule the fact that there might be a committee meeting after our committee. In our case, we have a caucus meeting on the access to information meeting we are having this afternoon.
The Deputy Chair: If I may enter the debate, I explicitly looked into this matter and requested written information from the clerk's office as to the ending of a committee. I was given the background that Senate committee meetings can go beyond their time as the meeting is proceeding and that the agreement on the agenda that we had this morning is totally in order. It was agreed to by the committee. I put it to the committee as to the sequence and, therefore, I am declaring this session at an end. We will take a hard suspension and we will move to the next committee.
Senator Cordy: On a point of order, yesterday at our meeting, Conservatives requested that we finish our meeting at 6:15 p.m. We went along with that request unanimously because that request is legitimate. At the time, if you recall, I requested that for today's meeting —
The Deputy Chair: Yes, the witnesses may leave.
Hon. Senators: Thank you very much.
Senator Cordy: At the time, I requested that today's meeting finish at 12:30 p.m. because I have a meeting that I arranged, based on this meeting finishing at 12:30. I cannot change my meeting because it is with someone from my province of Nova Scotia. At the time, you said, rightfully so, that you would not be chairing today's meeting and that the decision would have to be made at today's meeting.
I had a meeting earlier today. I came from that meeting, went to my office to gather my materials for today's meeting, and discovered at 11:20 a.m. that, unlike yesterday when we agreed in a collegial manner, because you had meetings, to stop the meeting at 6:15 p.m. I discovered today that this collegiality is not reciprocated.
The Deputy Chair: Senator Cordy, when I discussed this matter of procedure with the clerk's offices, I was clearly informed, and by the precedents of the Senate, that the only way to bring a committee meeting to an end at a given time is to obtain agreement of the committee at the beginning. In other words, there is not a process to end a committee automatically at its pre-determined time.
Senator Cordy: In the spirit of collegiality, we agreed unanimously yesterday that the committee could stop at 6:15 p.m. It was unanimous. We did not hesitate because you suggested that your side had to attend a meeting.
Senator Dawson: I am sorry, but I will raise a question of privilege in the Senate this afternoon because I was led to believe this morning that I was trying to cooperate. Now I am told that you strategically decided that since I am the new kid on the block and did not know what happened yesterday, you received my cooperation. I have a lot of respect for the clerk and for the clerk's advice. That being said, as a parliamentarian and a senator, I was misled by the chair this morning in wanting to cooperate on continuing the committee.
The Deputy Chair: I am sorry. Two pieces of information have been passed —
Senator Dawson: I agreed. I tried to be nice. I was trying to cooperate.
The Deputy Chair: Order. Order.
Senator Dawson: I am telling you —
The Deputy Chair: You have an absolute right to do that. I want to comment on two points. Yesterday, when I put the issue before the committee, Senator Cordy, I did not refer to our side. I said that indications had come to me that there were individuals on the committee who had important meetings to attend. I did not say which side they were from. I understood they were from both sides.
On the second issue, Senator Dawson, I investigated this issue for my own interest a few weeks ago. I received written statements from the clerk's office that I have summarized for you. You are perfectly free to raise a question of privilege. I put it to the assembly, which was more than a quorum of senators. We waited a minute past the start time. I asked you, "Can we proceed?'' We proceeded. I put the issue to the committee. It was agreed without dissent.
Senator Dawson: Trust me, chair, if that is the type of philosophy you want to exercise as a chair of a committee, I will tell you that in the traditions of the Senate, the rules and respect of the rules has always been something that we have tried —
Senator Eaton: Can we proceed? We are wasting time.
Senator Day: No, we cannot proceed. I want the last witnesses back.
Senator Martin: Chair —
Senator Day: Let us talk about this issue. What are you trying hide? What are you hiding? Why can we not debate this bill?
Senator Martin: Senator —
Senator Day: Give me one reason.
Senator Dawson: We brought in amendments last year that you are now accepting.
The Deputy Chair: Senator Dawson, I wonder if we can proceed in some order.
Senator Callbeck: I have a question. In order to extend the time of a committee, the committee must have agreement of the whips. Is that not right?
The Deputy Chair: Senator Callbeck, when I raised the question with the clerk's office a few weeks ago for my own interest, I assumed exactly what you have assumed. I was told that, as per Senator Dawson's comment about the liberty of the Senate to operate, and its committee, a long precedent and a number of examples were given, that a chair does not have the right to bring a meeting to an end simply on the basis of the normal hour of meeting of the committee. Usually, committees agree to end at that time because there are other meetings in the room or something of that nature. However, I was informed clearly in writing by the clerk's office that there was not the authority to bring a meeting to an end unless there was explicit agreement by the committee at the beginning of the meeting, or agreement through a motion. I can tell you only what I received in writing from the clerk's office including a number of examples and the support of the examples by Senate decision over a period of years.
Senator Day: I serve on the Standing Senate Committee on National Security and Defence, and the Conservatives on that committee made it clear that, without whips' approval, the tradition of the Senate is that the time limit that is specified must be followed. The committee as a whole can agree, but it has to be unanimous. It cannot be the majority saying, members must stay here. That has been followed clearly on many occasions.
Senator Martin: I want to add information in defence of the chair in that there is no ill intent. Also, to go back to what you said, Senator Cordy, yesterday, when we met, I recall you mentioning the meeting at 12:30, but at that time, Senator Eggleton was to chair the committee, and Senator Ogilvie said, "We will have to make that decision tomorrow. I cannot in my role as chair today'' — which was yesterday — "make that decision.''
Today, when we began the meeting, both Senator Day and Senator Cordy were not here. Senator Ogilvie posed the question of the timeline for today, and we agreed unanimously. It was not only a majority agreeing, but we agreed today.
Senator Cordy, yesterday's question that you posed to Senator Ogilvie was, what was to happen today, but Senator Eggleton was called away so Senator Ogilvie is now in the chair. Today, we began with the question, and we did not begin earlier because you were not here. We began on time, actually one minute late, and both of you were absent.
Senator Dawson, when we all agreed, we were agreeing to today's schedule. I want to clarify what happened and that there was no ill intent on the part of Senator Ogilvie.
Senator Dawson: I want to put on the record that, had there been a vote, I would have lost anyway, so I accept the fact that you would have decided to accept the agenda as you adopted. However, I would have talked long enough so that my colleagues would have been here so that we would have had the debate. I would have been informed on what really happened. Obviously, I was led to believe that we were cooperating with the witness that had an agenda and had to go to the Senate this afternoon. We are talking here about the Privacy Commissioner, and we will debate her renewal this afternoon.
On that philosophy of cooperating, I said, let us start the committee. I did not know about the previous debate, obviously. Had I known about the previous debate, I would not have agreed to cooperate with you. You might have had the obligation at least to vote down the fact that this procedure is an irregular one, again in the philosophy of trying to obstruct the right of people to be heard. Remember that last year at this time, this bill was sent back with amendments because it was flawed. We want to be sure it is not flawed again.
The Deputy Chair: Colleagues, I remind you that the discussion is eating into the time of the next witnesses. We have provided the information as I have it, Senator Dawson. You have an absolute right as an individual to protest in subsequent manner, as you have indicated that you will. I have simply made a ruling in the committee today based on the information provided in writing from the clerk's office. I am operating on that understanding, and I would like us to proceed to the next witness group as soon as possible.
Senator Cordy: While I made my request yesterday and not today, all committee members were aware that I made it yesterday and that you were unable to rule because you did not believe you would be in the chair today. However, members of the committee were aware of my request yesterday. I am disappointed that cooperation and collegiality seem to exist only on one side.
The Deputy Chair: Noted. Can we please have the next witnesses?
Senator Callbeck: I want to go on the record. Senator Martin referred to Senator Day and Senator Cordy as not being here at the beginning of the meeting.
Senator Martin: When we —
Senator Callbeck: I want to go on the record as saying I was not either. I was two or three minutes late. Had I been here, I would not have agreed with this.
Senator Cordy: I think it is against the rules that a senator state that a senator is not present. It is the rule in the chamber. I assume that rule holds true for committees as well.
The Deputy Chair: That is as an observation. Yes, it is not appropriate. It is generally understood we do not refer to that.
Senator Martin: I apologize if I used the wrong wording. I only meant that when we began the meeting, Senator Ogilvie discussed it.
The Deputy Chair: We know what is intended, but nevertheless, we understand and learn from these examples. No ill intent was intended.
Senator Day: Knowing that Senator Cordy made that statement yesterday, and knowing that she was planning to be here because she said she had to leave at 12:30, and starting this meeting one minute after — my watch happens to be two minutes —
The Deputy Chair: Please.
Senator Day: Why would you proceed and make a decision that impacted on someone who had raised this issue yesterday? What was the intention of trying to —
Senator Stewart Olsen: I want to put on the record that I would like to proceed. We have witnesses before us. I do not want to insult these witnesses now.
Senator Dawson: Rather, insult your colleagues.
Senator Stewart Olsen: Please: Let us not go on like this. Perhaps we can settle this matter after, but for now, please let us proceed.
The Deputy Chair: Thank you, Senator Stewart Olsen.
Senator Day: It is an uncomfortable and unseemly situation.
Senator Dawson: This is becoming a strong tendency.
Senator Day: Why can we not do this in a manner of collegiality like we always have in the past?
The Deputy Chair: I call the meeting back to order and welcome our next set of witnesses. I understand that our witnesses today include representatives from Safe Kids Canada, Ms. Fuselli, and from Option Consommateurs, we have Ms. Bose.
We also have Mr. Janigan, who is legal counsel for Option Consommateurs. For the Canadian Association of Importers and Exporters, we have Ms. Osmond. As an individual, we have Ms. Todgham Cherniak as counsel for Lang Michener. Perhaps we can begin in the order I have witnesses listed. Ms. Fuselli, can you make a presentation in approximately five minutes?
Pamela Fuselli, Executive Director, Safe Kids Canada: Thank you for the opportunity to speak to you today and share the views of Safe Kids Canada on the importance of passing Bill C-36, the consumer product safety act.
Safe Kids Canada is a national leader in preventable injuries, which are the leading cause of death to Canadian children and youth. By building partnerships and using a comprehensive approach, we work to advance the safety and reduce the burden of injuries. We welcome the opportunity to share with this committee our opinion that a revised, modernized system for consumer product safety is urgently needed to safeguard the health and safety of all Canadians.
According to a Harris/Decima survey on home product safety conducted in 2009, the majority of Canadians who live with children ages 17 and under assume products they buy or receive as gifts for their children will be safe. Injuries to children from the use of consumer products are common, frequently serious and sometimes fatal. According to the Canadian Hospitals Injury Reporting and Prevention Program, CHIRPP, which collects information from emergency departments of 15 hospitals across Canada, since 1997 approximately 46 per cent of emergency room visits for Canadians 19 years old and younger have been consumer-product-related injuries. Furthermore, every year in Canada, pediatric emergency room visits totalling over 14,000 are a result of children under the age of 10 years who have been injured by consumer products found in and around their home.
For a child, each day is a new adventure. From exploring their surroundings, building forts, playing with friends, the hours of fun can be endless. Take the home, for example. Dressers are seen as a climbing gym by children. A bunk bed is more than a place to sleep; it is a castle waiting to be conquered. We need to ensure the products they use are safe.
Some argue that consumer products have a low risk profile. The potential health consequences from a dangerous product, though, can be dire. There are several products that can pose injuries to children but are not viewed as threats by parents. For example, 39 per cent of parents do not believe that magnets cause injuries to children, but magnets pose a danger for small children who put them in their mouths or up their noses. If multiple magnets are swallowed, the magnetic strength can pull the two pieces together, tearing through internal organs and causing significant, life- threatening damage. Even if the overall number of injuries may seem small or insignificant, an injury is important when it happens to you.
While parental concern, supervision and vigilance are needed to supervise children, Canadian parents deserve to be aided as much as possible in this supervision by their government and the institution of a robust, consumer products safety system. The majority of Canadian parents cite news reports as the most common way to find out about product recalls. In reality, news reports are unable to cover the sheer volume of product recalls each year. A resounding 93 per cent agree that government should create laws to ensure all products are safe before they are available on store shelves.
The proposed new Canadian consumer product safety act is a set of measures to help make Canadians safer by strengthening and modernizing the legislative framework that regulates consumer products. Producers, distributors, retailers and standard developers should have an onus to be proactive and build safety into the design of products before they reach the market. The producers, distributors and retailers, as well as the government, need to take immediate corrective action when risks are identified in items already for sale.
The measures contained within Bill C-36 are designed to provide the government with a proactive and efficient means for responding to dangers posed by consumer products. Such measures are urgently needed to safeguard the health and safety of Canadians, including some of its most vulnerable members, our children.
The injuries inflicted due to unsafe products are preventable. Furthermore, they constitute a direct and significant drain on the resources of our overburdened health care system and an indirect burden as a result of time lost in school and work.
Canada's current consumer product safety legislation is over 40 years old. The proposed act will introduce new safety legislation that suppliers will have to meet, and new tools for Health Canada to better protect the health and safety of Canadians.
Safe Kids Canada acknowledges that the consumer products safety landscape is complex and global. More and more products are now available on the market, and these products may be difficult to classify and monitor. Controlling dangerous imports is one part of the solution. To aid in this control, Bill C-36 will also close significant gaps in the current legislation to put Canada more in line with our international partners.
Bill C-36 is a positive step towards a proactive consumer products safety system in Canada because of its three main pillars: active prevention, targeted oversight and rapid response. These pillars comprise the crux of Bill C-36. The bill significantly increases the chances of achieving the goal of safeguarding the health and safety of Canadians by better reflecting the globalized marketplace and being more consistent with societal and consumer expectations, providing appropriate mechanisms for enforcement and putting Canada in line with our international partners.
We recognize the importance of industry in the Canadian economy. We understand that there are concerns in terms of inspector-recall powers and that there will be further consultation as the details of the legislation are finalized. Our main goal is to keep children in Canada safe and to support action that will contribute to the reduction of injuries and deaths.
[Translation]
Anu Bose, Ottawa Office Head, Option Consommateurs: Mr. Chair, Honourable Senators, good morning. I am Anu Bose, the Ottawa Office Head for Option Consommateurs.
Founded in 1983, Option Consommateurs is a not-for-profit association whose mission is to promote and defend the basic rights of consumers and ensure that they are recognized and respected. Having no legal training, I am accompanied by our legal counsel, Michael Janigan, who will be able to answer any legal questions you might have.
This is the third time we have had the opportunity to appear before you to speak in support of a bill on the safety of consumer products. The current Hazardous Products Act goes back to 1969 and does not have the appropriate tools to protect consumers in 2010.
By adapting the legislative framework on consumer product safety to the realities of the 21st century, Canada will be in line with the United States and Europe, its major trading partners.
[English]
This bill is long overdue. This bill, we believe, will protect adults and children, especially those from the most vulnerable consumer groups: seniors, newcomers to Canada and people of modest means.
Option Consommateurs supports Bill C-36 because there is a general prohibition clause in the preamble and in section 3 against the manufacture, importation, advertisement or sale of consumer products that pose an unreasonable danger to human health and safety.
There is provision for greater cooperation for intra- and intergovernmental cooperation in clause 7 to protect the public from the dangers of consumer products that may pose a threat to the public.
There are provisions in clauses 9 and 10 that prohibit misleading product information. Option Consommateurs has been campaigning for many years for truth in labeling.
There is traceability of products in clause 13 as companies are required to prepare and maintain documents throughout the supply chain, showing that they are in compliance with safety standards. This traceability is extremely important for a product-importing country like ours, where companies with an eye on the bottom line may design goods here but outsource them for manufacture to India, China and other low-wage countries.
There is mandatory reporting of serious injuries or deaths resulting from products in clause 14. The obligation of manufacturers, importers and retailers to report is an important element for the management of risk. Since 2001, the European Union has had this provision, and this legislation has allowed them to take swift action.
Last but not least, under clause 31, the minister has been given the power to issue mandatory recalls, something for which Option Consommateurs has long been campaigning. Canadian consumers are faced with so many recalls that they are at risk of developing recall fatigue. According to the Canpost news service, there were 305 recalls in 2009 — a one-year jump of 25 per cent over 2008. Between January 2010 and October 2010, Health Canada had 270 recalls and the gift-giving season is still not in overdrive.
We know of what they speak as we have had firsthand experience with voluntary recalls. In the autumn of 2007, we were involved in the voluntary recall of 21 million toys off the shelves of shops across the world of Mattel.
[Translation]
We are now going into a second holiday season during which Canadian consumers are not going to have the protection they need.
[English]
Carol Osmond, Vice President, Policy, Canadian Association of Importers and Exporters: My name is Carol Osmond and I am with the Canadian Association of Importers and Exporters, I.E. Canada. I had the privilege of appearing before this committee in November 2009 to testify with respect to Bill C-6, an earlier version of the proposed legislation currently before this committee. I am pleased to have this opportunity to appear before you once again to discuss Bill C-36, the Canada consumer product safety act.
Our association is also a member of the Canadian Consumer Product Safety Coalition, which is comprised of 12 major business associations representing total annual sales in Canada of an estimated $600 billion. Coalition member companies include domestic manufacturers, importers, distributers, wholesalers and retailers of all sizes from across Canada.
The coalition submitted a statement to the committee yesterday. As noted in that statement, consumer safety and consumer product safety are extremely high priorities for the coalition and its member companies. As industry leaders, we know that our collective success depends on retaining consumer confidence and meeting our duty as responsible corporate citizens.
I.E. Canada and the coalition support the modernization of Canada's product safety legislation, and we welcome Bill C-36. Since the legislation was first tabled, the coalition has been consistent in recommending improvements to strengthen the bill. With each iteration, from Bill C-52 to Bill C-6 to the current form, Bill C-36, we have seen improvements.
In my remarks before this committee last year, for example, I raised the concern that under Bill C-6, Health Canada inspectors would have the authority to order mandatory recalls. In our view, this power should rest with the Minister of Health and be consistent with other provisions of the proposed legislation and legislation applying to food products. We are pleased to see that under Bill C-36, it is the minister, not inspectors, who will have authority to issue mandatory recalls.
I also want to acknowledge and extend our appreciation for the work of the members of this committee to ensure the improvement of the legislation. We know how seriously you take it.
Going forward, it will be important for Health Canada to build upon certain provisions in the legislation and to outline how they will be administered. We understand that Health Canada will administer this legislation through regulations, policy and guidance documents, some of which are currently the subject of consultations.
Following the passage of this important bill, we are committed to working with Health Canada and other government agencies to ensure that Canada's product safety regime delivers the intended health and safety benefits to consumers. At the same time, we want to ensure that the new regime can be administered effectively by Health Canada and that companies in the business of delivering safe consumer products to Canadians can comply with the legislation.
In summary, I.E. Canada and the coalition support the principles in Bill C-36, and we look forward to working with Health Canada as they proceed with implementation. On behalf of I.E. Canada and the Canadian consumer product safety coalition and its member companies, I thank you for the opportunity to be here today on a matter that is vitally important to all Canadians. I will be pleased to respond to any questions.
The Deputy Chair: I will turn to our final witness, Ms. Todgham Cherniak.
Cyndee Todgham Cherniak, Counsel, Lang Michener LLP, as an individual: Thank you for inviting me to provide comments on Bill C-36. I am counsel at Lang Michener LLP. I am a trade lawyer and I have looked at Bill C-36 from a trade perspective. I am also an adjunct law professor at Case Western Reserve University School of Law, and I teach a course on the North American Free Trade Agreement, NAFTA, and free trade agreements.
I am not advocating on behalf of any client today. I testified before this committee when we were talking about Bill C-6. I will not repeat those comments today. At the outset, I will say that I agree with everything my fellow panellists have said. I acknowledge that Canadian consumer protection legislation needs modernization. The protection of consumers in a global market place is a wise and good policy objective.
However, there are still improvements and that is what I will talk about. Even though some of my comments are of a negative nature, they should not at all undermine all the positives in this bill. When you go through your clause-by- clause consideration, I want you to consider this trade perspective that I bring.
I am here to say that there needs to be a balance between interest of innocent consumers and good businesses. I am not talking about the rogue businesses or about protecting businesses that wilfully and deliberately try to make a buck without regard for consumer safety. If the concern is Chinese toys and Chinese drywall — I am picking on the Chinese — we should not over-regulate domestic manufacturers who comply with all Canadian laws.
We should not over regulate because of fear that some bad foreign products might be imported into Canada and cause harm. I respectfully suggest that the Senate committee should consider, and ask, during the clause-by-clause review whether Canadian manufacturing may be reduced, and in some cases manufacturing operations may cease, by the owner's regulatory regime created by the proposed incident-reporting mechanism.
I am here to suggest that Bill C-36 needs to be adjusted to become more balanced, not to be rejected in its entirety. Bill C-36 is likely to have a disincentive on foreign manufacturers to set up factories in Canada. It may discourage foreign direct investment because of the regulatory compliance cost to make it prohibitively more expensive to conduct business here; and the penalty costs for mistakes are great. If a client came into my office and asked for advice, I would have to detail the compliance obligations and the invasive investigatory power. They might weigh the risks and costs, and decide not to come here.
I anticipate that Bill C-36 will prevent new jobs from coming to Canada for that reason. In addition, Canada may lose existing jobs. For example, a U.S. manufacturer may decide to close its Canadian subsidiary because the new Canadian reporting regime in Bill C-36 results in regulatory divergence from the U.S. regulatory regime. Rather than invest in new infrastructure to meet Canada's new reporting requirements resulting from Bill C-36, some subsidiary factories may move their manufacturing jobs to the United States. We have heard of reports of U.S. localities subsidizing manufacturers to increase their footprints in the United States.
I am making a comment about the regulatory divergence caused by the proposed incident reporting regime. The reporting regime in clause 14 of Bill C-36 is incident-based. This is what I understand to be different from the U.S. system. The approach of the Consumer Products Safety Commission in the United States is evaluation-based.
Most North American companies familiar with this evaluation-based approach have been complying with it for years, and have established well developed assessment and reporting systems. Why should Canada implement something so different when we need to create jobs and to increase exports to our closest trading partner and to trading partners around the world? We need to remain competitive in the global marketplace by keeping regulatory costs down. This new regime will increase cost right after great compliance costs with the implementation of the harmonized sales tax.
Please ask yourselves if this incident-based reporting approach is the right approach for the current economic climate. Is there a better approach for struggling Canadian manufacturers? The drafters of the bill picked up a theoretical approach, but is there a more practical approach?
In this economy, we need to get it right. It is too costly to ask manufacturers to implement compliance programs and then change the approach. Why is our approach different than that of the United States? Canada is negotiating the Canada-European Union comprehensive economic and trade agreement. The EU has an evaluation-based approach. Is it possible that Canada might have to adapt to the EU model in a negotiated trade deal and will ask our manufacturers to change once again?
I have a concern and question about clause 14(1)(d)(i). Is it really necessary to require Canadian manufacturers to report every recall or measure within another country? There are no international treaties requiring this reporting. Clause 14(1)(d)(i) exposes Canadian manufacturers to mischief of non-tariff barriers in other countries and dirty tricks. For example — I will pick on the Chinese again — a Chinese manufacturer does not want Canadian widgets to enter its market and take market share, so it makes a claim to the Chinese authorities and they start an investigation. Should Canadian manufacturers be required to explain to both the Chinese and Canadian authorities simultaneously? Would it not be better for the Canadian manufacturer to evaluate their problem and report a valid concern only?
I also have an issue as to whether subclause 13(3) of Bill C-36 creates local presence requirements. It reminds me of U.S. Representative Betty Sutton's foreign manufacturers legal accountability act, which is also a consumer protection bill that has been making its way through the U.S. congress, and I understand it has now died.
In September of this year, Canada's ambassador to the United States, Gary Doer, issued a stern warning to the most powerful congressional leaders on Capitol Hill and said the foreign manufacturers legal accountability act violates the United States' World Trade Organization and NAFTA obligations.
If Bill C-36 is passed, Canada may be doing exactly what it says the U.S. should not do, and may do it with great negative ramifications to Canadian manufacturers. Please reconsider subclause 13(3), which when read in conjunction with subclause 13(1), provides that "any person who manufactures, imports, advertises, sells or tests a consumer product for commercial purposes'' shall "keep the documents at their place of business in Canada or at any prescribed place.''
It is at their place in Canada and by "prescribed place,'' it means there can be regulations and these regulations do not have to go to the House of Commons or the Senate for approval.
Third, I will go back to Ambassador Doer's written comments in a letter to Nancy Pelosi and Harry Reid about the U.S. bill. He wrote:
In our view, it will adversely interfere with the flow of trade across the border by adding yet another logistical and administrative requirement. This would be especially unfortunate in light of our ongoing joint efforts to restore our economies.
This is what he said about the U.S. bill. Can the same language, same sentences be said against Bill C-36?
We have talked this morning about the confidential information and I want to go back to confidential business information, clause 16 and 17, where the minister has the right to disclose confidential business information. If there was a requirement for consent to release such information, that would be a check and balance in the system. We do not have that check and balance right now. Consent would be more business-friendly. The situation would be rare, I think, that a government would have to act so quickly that they cannot obtain consent from a manufacturer, importer, advertiser or retailer.
The mere authority of Health Canada to release business records may discourage foreign businesses to establish in Canada for fear they will lose their intellectual property. This authority may limit innovation in Canada. It may be more difficult for Canada to be at the front end of emerging trends, such as in green tech or in research and development because I would have to provide advice saying yes, any information you give us may be disclosed to some foreign government so it may be — and I will pick on the Chinese again — they will come and look to Canada for that information, as opposed to going to the U.S. where the manufacturer is based.
I am also concerned that in the inspection requirement in the bill, legal opinions may need to be handed over to inspectors, and solicitor-client privilege is not maintained.
I spoke about due diligence when I was here last time, and I believe the two provisions in this bill are inconsistent with one another. I ask you to look at subsection 41(2), which establishes a due diligence defence and then clause 59, which seems to say there is no due diligence defence in certain circumstances.
Parts of Bill C-36 remind me of the new Transportation Safety Administration screening procedures. I flew here today. Manufacturers, importers and retailers have to accept the changes in the name of security, and security is important. Security at our airports is important and security for children and consumers is important.
However, the increased levels of security and invasive rules do little to prevent bad things from happening. In the case of Bill C-36, there are onerous reporting requirements on an incident-by-incident basis. Will Health Canada be able to process this information in a timely manner, and pick out and respond to the real threats, or will the information go into a black hole and we will not receive the protection we need?
In closing, I am sympathetic to the goals of the bill but I am concerned about the unintended consequences on Canadian manufacturing in our trading relationships.
I will be happy to answer any questions.
The Deputy Chair: We are now open to questions from the committee, and I will ask Senator Callbeck to begin, followed by Senator Seidman.
Senator Callbeck: Ms. Bose, when we were studying Bill C-6, your organization — and maybe you were the witness — called for a national recall registry that would establish or have all the mandatory and voluntary recalls.
Ms. Bose: Yes.
Senator Callbeck: I do not see this register in this piece of legislation. I think it was yesterday that we had the health officials here, and I asked Paul Glover about this register, and I want to paraphrase what he said.
He noted that Health Canada already maintains a database of recalls, but it contains only voluntary recalls that have been provided by the company. He noted once this legislation is in place, Health Canada will use mandatory incident reporting to add missing information about recalls.
Does that approach satisfy your concerns about this national recall register that you wanted in the legislation?
Ms. Bose: Yes and no: We asked in the House of Commons for a stronger version. We did not get it, but we will continue to campaign. We want this bill and we want it desperately. We are willing to go halfway. That is about all I can say.
Senator Callbeck: In other words, you are not happy about what is in this bill with the national recall register, but you want the bill and I can understand that. We want to protect people.
Ms. Bose: Senator Callbeck, as a consumer advocate, we are never happy with a government bill. We want the moon and we will not get it, so we might as well settle for half a loaf.
Senator Callbeck: What Mr. Glover said was that the voluntary recalls are there now. He said once this legislation is in place, Health Canada will use mandatory incident reporting to add the missing information. That is what you want, but you want it in legislation; is that right?
Ms. Bose: We would take it if it were within the regulations. Our work does not stop once the bill receives Royal Assent. You may be sure, Senator Callbeck, we will be breaking down the doors of Health Canada officials, ere long, for more incremental benefits.
Senator Callbeck: Ms. Osmond, this legislation brings in requirements for importers to have a trail of paper. It also provides the minister with the authority to request studies and tests. The last time around, when health officials were here, when they were asked about these requirements they told us that the requirements set for this bill were not new ones for the industry. The officials stated that most businesses already fulfill these requirements. Do you agree?
Ms. Osmond: My reading of the legislation is that what Health Canada wants is for companies to know who they purchased from and, for the most part, who they sold to, with the exception of retailers who would not be expected to know every customer necessarily that they sold to, although some companies have that information in place. I think most companies would have those types of records. Depending on the size and nature of the company, it will require companies to look at their record-keeping practices and ensure they are complying with the provisions of the bill.
Companies regularly conduct certain tests and studies with respect to their products. They are testing for purposes of ensuring that the product is safe and that it meets the performance requirements that are set. In some cases, products are subject to voluntary or mandatory standards. They have to be tested to ensure they meet those standards. If there is an incident involving a product, once again, tests and studies would be conducted to determine the cause of the failure of the product, and so on.
Senator Callbeck: When this legislation comes into effect, it will not change much of what businesses are doing already, will it?
Ms. Osmond: One area where there will be changes, of course, relates to the mandatory incident reporting. There are companies, particularly larger companies — retailers and manufacturers, in particular — where they have processes in place. If there is a consumer complaint with respect to a product, the companies track that information and investigate the cause of the complaint, if there was a problem with the product and so on.
Those types of processes are currently in place. However, the processes to report to Health Canada are not currently in place. Those processes will be new requirements. For that part of the bill, absolutely, companies will have to make significant changes.
Senator Seidman: My question is for Ms. Fuselli and it is brief. You are here to represent Safe Kids Canada, an organization dedicated to promoting effective strategies to prevent unintentional injuries to Canada's children and youth.
Do you think the government should be able to share personal information quickly if it means preventing a death or injury?
Ms. Fuselli: Our first priority is to do whatever needs to be done in terms of keeping children safe and preventing injuries. We know there are a number of mechanisms to do that. Not being a retailer or manufacturer, and not coming from that area of expertise, it is difficult to say what amount of information needs to be provided. However, from our perspective, information-sharing needs to happen on a quick basis so we can remove unsafe products from the marketplace as quickly as possible.
Senator Martin: My first question is also for Safe Kids Canada. I have a list, available through Health Canada, of 29 pages of some of the voluntary recall items. I am mindful of the real urgency that we have as consumers and Canadians to protect children and youth, especially.
My first question is regarding this urgency and what you hear from your clients — parents. Can you speak to that issue?
Ms. Fuselli: In our interactions with consumers, parents, caregivers, aunts and uncles, we hear that they expect the products they buy are safe and have been tested for safety. If products are not safe, they want to know that those products are pulled off the shelves as quickly as possible.
They find the vast array of products available on the market to be confusing in terms of what to do when they have had a product for a while and it has been recalled. How do they obtain that information? It goes back to the national registry.
One mechanism is the Health Canada website. Consumers can obtain that information from there in terms of recalls. However, we need to do a better job going forward in using all the tools now available to us to place that information in the hands of parents who may have these products in their homes so they know what to do with them, whether that be removing them from the homes, returning them or discovering if there is a fix or stop-gap.
We hear that they want clear information and they want to know that what they are buying or being given is safe for most part. If it is not, they want to know about it and they want it to be removed as quickly as possible.
Senator Martin: I think the mention of the word "tools'' is important. As you say, parents need the tools to ensure the safety of their children. However, there are strengthened tools in the bill that will help Health Canada perform their job better, so that everyone performs their job better.
For anyone who wishes to respond, I want you to speak to the process that you have been involved in. We understand it has been about four years in terms of attempting to strengthen and modernize the act. Please speak to some of the consultative approaches taken and what part you have had in those approaches, as well as the relationship you have had with the officials.
Ms. Fuselli: Safe Kids Canada has been involved from the beginning. Before Bill C-52, I think it was, was introduced, we have been interested in looking at a proactive change to legislation in terms of product safety. We were pleased to be involved with the consultations and to provide the experiences and information we hear from parents, as well as the scope of the issue for children and youth in Canada.
Ms. Bose: Perhaps you are not aware, Senator Martin, but Option Consommateurs has a toy testing program, which they then publish with Protégez-VousO, in which children and parents together rate toys. I will be glad to send you a copy. Participants have a form that they fill out. They have three months in which to use the toy and then they report back and all this information is published. Unfortunately, the report is only in French. That is our focus group, you might say.
In the less than two years I have been with Option Consommateurs, we have had contact with various levels at Health Canada, exempt staff, senators, members of Parliament and their staff to advocate for our case. We have been well aware from the beginning that change, when it comes, is incremental and not a sea change, especially not in government. We are prepared to continue to work on that change.
We have also consulted with our counsel, because I am not a lawyer. If you think that is something worth hearing about that I have just told you, that is about all we can say that we have done, and we have done it in conjunction with our head office in Montreal. I hope that answers your question.
Senator Martin: Yes.
Senator Cordy: Thank you very much for being here with us this afternoon. I think everyone around the table wants safe products on the shelves, and not only for children. We mentioned children but we want safe products on the shelves for everyone.
We are pleased the government accepted many of the amendments we put forward as a committee this time last year when it was Bill C-6. We believe these amendments have made Bill C-36 a better bill. Someone mentioned the urgency of passing this bill earlier, and it is unfortunate that it is the third time around for the bill. Bill C-6, particularly, died on the Order Paper because Parliament was prorogued last December. Let us hope that it does not happen again this time when we are again this close to passing a product safety bill.
I thank you very much for the work you do, because you are all advocates for safe products.
I am interested in the discussion about mandatory incident reporting versus evaluation-based reporting. This bill contains incident-based reporting, whereas the United States and the European Union have evaluation-based reporting. Can you tell me what the difference is between the two? I think I understand, but can you explain?
Ms. Osmond: In an incident-based reporting system, once an incident occurs and involves a product, the incident is required to be reported without having the opportunity to conduct an investigation into whether there is a defect with respect to the product, whether this product caused this incident to occur or whether there is some substantial risk associated with the product.
To give a basic example, an incident that has been reported, and this one was cited to me a number of times, is that my light bulb exploded. If that is the incident, then that incident can be reported potentially as, the light bulb exploded. On further investigation, it is determined the light bulb did not explode. There was a pop and this pop is normally the way a light bulb dies, so there was no safety concern with respect to the product. It performed as the product was designed to perform.
Under an evaluative approach, they have that opportunity to investigate the incident to determine whether there is a substantive risk associated with the product.
Ms. Todgham Cherniak: That is a good description so I do not have anything to add to what was said.
Senator Cordy: What you stated, I believe, was that the European Union and the United States have evaluation- based approaches. If we go further with the incident-based approach, will this approach cause problems if we currently are negotiating an EU-Canada free trade agreement. We have a U.S.-Canada free trade agreement. Will this approach be a challenge for us in having a different way of evaluating unsafe products?
Ms. Todgham Cherniak: That was my comment, and I think there is an issue whenever we have regulatory regimes that diverge from each other so they are not the same, as opposed to convergence, when we try to harmonize regulatory regimes. With the United States, we are diverging when we have an integrated market and that can be a problem for Canadian businesses or any business operation that has manufacturing or importing in Canada because businesses will have to comply with two regimes. In one regime, they do not have to report yet because they have the opportunity to evaluate, and the other one is based on anything that comes in that may or may not be an incident, out of an abundance of caution. If businesses are within that list they do not want to be penalized.
With the EU, since we are negotiating, it may well be that the EU will ask, as part of those negotiations, that we amend our regime so that it is an evaluation regime. The EU may ask the question of why we do not have an evaluation regime because the U.S. does, so why do we not all have the same regime, which is a reasonable request. My concern is that Canadian manufacturers then have to go to the expense of changing their system again after implementing a regime to meet the Canadian requirements.
Senator Cordy: There is nothing in this bill for prioritizing, and you gave examples of the light bulb earlier. One example we heard this time last year when we were studying Bill C-6 was the person who tried to cook pork chops in their toaster and then made a complaint because the toaster caught fire. If we have an incident reporting on that incident and we have a prioritizing system, then that incident would go to the bottom of the list because the toaster was not used in the proper way. If we had an incident where the product was used in the way in which it was intended, for example, a ball breaks off a toy for a child, then we know that is not supposed to happen and the toy is unsafe for the child.
Because there is no prioritizing in the bill, will this approach mean that the priorities will not be dealt with as quickly as they should be?
Ms. Osmond: No doubt senators are aware that Health Canada is consulting with respect to various aspects of the bill. Mandatory incident reporting is one area where consultations are ongoing. I think from both an industry perspective and a Health Canada perspective, we do not want to inundate the government with information, and the government does not want to be inundated with information. From everyone's perspective, we want to ensure that the incidents being reported are serious incidents that present a true health and safety risk and that those products are being properly dealt with.
While we are not entirely comfortable with the wording of the legislation, as part of the consultations with Health Canada we are hopeful that we can come up with a system where we report the types of incidents that are of benefit to Health Canada to know about and that will not inundate the department with information: that we are identifying those products that present a true health and safety risk.
Ms. Todgham Cherniak: I agree with everything Ms. Osmond said but one additional concern is that the legislation is drafted a certain way right now and in the drafting, they can be held to that requirement as opposed to an administrative regime that runs parallel to the wording in the legislation.
Senator Cordy: Ms. Todgham Cherniak, you talked about clause 14(1)(d)(i), recalling that is initiated by "a foreign entity.'' You are a lawyer, so what would an entity be? Is it government or business? How broad is the definition of "entity''? I do not believe the term "entity'' is defined in the act, or I could not find it. It may be, but I could not find it.
Ms. Todgham Cherniak: That is a good point that it is not defined in the act so it is whatever Health Canada says it is at the time they make the statement. When I look at "entity'' as a lawyer, it is so broad, a foreign entity may be a state-owned enterprise — and again I will pick on China — it can be the Government of China, it can be an entity that is involved in consumer protection or a watchdog in a foreign jurisdiction. Also, a foreign entity can be a foreign non- governmental organization, or an association is also a foreign entity.
It can be broad or it can be restrictive. My concern is that the broader it is, the more mischief that can befall Canadian manufacturers where they end up having to ask, should I report or should I not report, and putting a burden on their systems to gather that information and send it to Health Canada within two days.
Senator Cordy: This is the challenge. If a business is trying to decide, should I or should I not, I think good businesses will err on the side of reporting the incident. As someone said early — Ms. Osmond I believe — that we do not want the government overburdened with paperwork, and the government does not want to be overburdened with paperwork either.
In all of this legislation we must remember something Ms. Todgham Cherniak talked about, and that is the balance between good businesses and consumers. The vast majority of our businesses are good businesses, good manufacturers, but there are times when things happen and that is unfortunate. We have to try to keep that balance and keep in mind that the majority of businesses are good business people.
Senator Day: Let me thank each and all of you for being here. It is extremely important for us to hear from associations, consumer advocates outside of government personnel because for the last day and a half we have been listening only to government telling us what they hope to achieve and telling us this is the way they will do it, but when we look at the legislation, it is not there. As the Privacy Commissioner said, a lot of promises are being made by the government.
We are not overly suspicious necessarily of the government, but we feel that there should be limitations placed on some of these powers that are being given. Senator Martin and I, who have major carriage with respect to this bill, Senator Martin as the sponsor and I as the critic, and all our colleagues support the principle. Not one of us here is against the principle of consumer product safety. Every one of us wants to do our best to protect our children, so you have to understand that point. However, we are looking for balance because there is a major intrusion — possibly, potential intrusion into the lives of individuals and into business operations, and the business operations in intellectual property — in the reporting on the lives of people. It is their personal information that can be made available. We ask whether that information is critical to achieving the basic principle and purpose of this bill.
If we start working away at it, you know that we were successful last time in making several important amendments from Bill C-6 to Bill C-36. Because we were successful does not mean that the job is done. There were many amendments that we asked to be made that were not made. We have to explore why they were not made. Were we are wrong? Suggesting an amendment is only one way of trying to deal with a perceived problem. There may well be other ways.
We want to know whether you agree that there are perceived problems. Are there ways we can improve this legislation further? Then, what is the best way to make those improvements? That is the exercise we are about.
Ms. Bose, let me start with you, because in your comments you tried to suggest amendments at the House of Commons that were not included so basically you have given up. The Senate is the other half of Parliament. This is where all the amendments that were made in Bill C-6 started. This is where the amendments came from to make Bill C- 36 better than Bill C-6.
Tell us what you believe should be changed in this legislation to make it better. We may not have all of them included but we will not include any of them if you do not tell us. Do not give up only because you did not have a chance to speak at the other place or you did not receive the results you were looking for.
Ms. Bose: Far be it from me, senators, to tell you what amendment you should produce. I am not a lawyer. Perhaps Mr. Janigan wants to answer this question, but I believe it is not the duty of an ordinary citizen to instruct the Senate on how it should act; I am sorry.
Senator Day: Even if the Senate asks you to tell us what the flaws are, do you feel you cannot do that?
Ms. Bose: Yes, because you are, as you have said on many occasions, the chamber of sober second thought and I should leave you to it. Besides, anything I ask for might not be balanced and you might not like it.
Senator Day: That is fine. You are holding back because you think I will not like it. Do not hold back, because we need extreme views from both sides so we can find the middle, but if we do not hear your view we will not find the middle.
Ms. Bose: Here is the middle.
Michael Janigan, Legal Counsel, Option Consommateurs: I do not know if I can claim that title, but I think we are attempting to say that all legislation in some respects is imperfect. You have to make a judgment both with respect to the wording of the legislation, the timing and what is likely to be achieved. Taking all those factors into consideration, we think that this is a good bill and should go forward. Is it perfect? No, it is not, and there are segments that probably we would like to see adjusted and maybe when the reform process goes forward it may do so.
We are particularly concerned that, given that this legislation affects public health and safety, the government is invested with all the authority it needs to deal with these important issues to stop hazardous products from entering the market, impounding the ones that are there, recalling the ones out in the market and preventing the occurrence of this offence.
Unfortunately, when dealing with issues like this one, we have to make sure that the legislation is designed to capture the worst mischief out there; not to deal with necessarily the good operations that are trying to do what they can. We have to put the power in the hands to deal with those fly-by-night operators whose goods are in storage depots at airports that are flying from jurisdiction to jurisdiction where we have to keep hold of them, and where we have to communicate with governments and agencies on an emergency basis to try to stop these products from entering the market.
All those situations are potential occurrences and you have to design legislation to give that power to the government, and hopefully to ensure that government exercises the power in an appropriate and wise fashion.
We are satisfied, looking at the legislation, that it contains enough authority for Health Canada to do the job. Now, when we come to evaluate the performance under the next few years under this legislation, we may say this is what should have been done — X, Y and Z — but from the standpoint of legislation going forward, I think it is enough and we support it.
Senator Day: We appreciate that. It is nice to have specifics if we can, and I want to tell you that what we see as our role, or part of our role, is to look at the legislation, ask whether it achieves the purposes, and are there unintended consequences because Health Canada and Health Canada personnel are drafting this legislation but they may not understand the impacts on confidential business information and intellectual property. Can we help them with respect to those unintended consequences?
What we do not want, and this is what we are all trying to fight against here, and contribute to, is that we do not want this legislation to be struck down in five years because it is unconstitutional or because some excessive force or right is given unnecessarily. We want to have a piece of legislation that will work for the next 30 or 40 years. That is our role. Do you feel at all comfortable in talking about clause 16 and clause 17, and the intellectual property concerns that Ms. Todgham Cherniak raised?
Mr. Janigan: I do not know if I can put much more of a gloss on it than the Privacy Commissioner has done for you today in relation to these particular matters. Once again, the question is whether the government will be given sufficient powers to deal with important product safety issues that may arise and that may involve the solicitation of cooperation from various jurisdictions. In the context of the powers that have been given, they seem to be sufficient to enable government to receive that information.
Now, the question arises as to whether there may be unintended consequences in terms of problems associated with circumstances where confidential business information is imparted that has nothing to do with the problem at hand or is either collateral or mistaken. That situation can arise, but we have to weigh it against the important public safety aspects of the legislation that are involved, and the necessity from time to time to obtain that information. In coming to that conclusion, we think there are sufficient protections in the legislation associated with privacy-related matters.
Senator Day: You heard the Privacy Commissioner. She is concerned about personal private information. Intellectual property in large part is dealt with in clauses 15 and 16, which is corporate confidential information, and the limitations that we proposed in the previous amendments that were proposed — that were not accepted — were to create boundaries on that area. One is to obtain the confidential agreement from the person to whom they are divulging the information so that is something, and then to give notice after the fact to the company whose private corporate intellectual property information has been divulged so that company can protect itself.
Mr. Janigan: We need to be careful, and so I go back to one of my original points: In many cases the individuals and businesses they may be dealing with are not necessarily ones that are responsive to the idea of a confidential agreement or to whom notice may be the most appropriate thing to be given.
I am thinking particularly about elements involved in crime or organized crime, elements involved in a particularly unscrupulous business activity, which may well be circumstances where the enforcement itself will not be jeopardized or it may be circumstances where enforcement is impossible. You cannot necessarily put the protections at a level which will, in effect, shield some of the very misconduct that you want to stop.
That is why I am less enthusiastic about putting mandatory requirements in at this stage, although I understand the principles of privacy. We have advocated strongly for privacy for consumers in the past and agree it is preferential to have a confidential agreement and to provide situations where notice is given, or at least potentially notice given to the Privacy Commissioner.
Senator Day: I would love to go on and talk to Ms. Todgham Cherniak, Ms. Fuselli and Ms. Osmond but unfortunately our allocated time is up unless I can convince my colleagues to bring you back another time so we can continue with this discussion. What you have to offer us is extremely important and I want to thank you very much for your comments.
Chair, may I continue, or am I reading the clock correctly?
The Deputy Chair: You are reading the clock correctly. I want to thank the witnesses on behalf of the committee.
Senator Day: Chair, I have a preliminary comment. With respect to the written submissions, I have made a list of six that I believe are all of the written submissions. I know, honourable senators, we want to review all the written submissions before ever going to clause-by-clause consideration. I want to ensure we all have all the submissions. I have Asper School of Business, University of Manitoba; Canadian Consumer Specialty Products Association; the Canadian Consumer Products Safety Coalition; the Canadian Toy Association; the Canadian Environmental Law Association; and the Health Action Network.
Are those all the written submissions that have been sent in?
Jessica Richardson, Clerk of the Committee: Yes.
Senator Day: It is clear from reading those written submissions that probably all of them wanted to be here but we told them they could not come because there was some urgency to completing this study. That is the impression they have here, so they said they would send the documentation along to us. It is important to put their names on the record and thank them very much for doing so. It is helpful to have their point of view.
Some of the points of view, as you will see, are supportive of the legislation. That is fine. That is good. We understand their positions. Others have suggested changes, but many of them make the point that was made here: They want to be able to continue in a consultation process. They do not know where this legislation is going in its bare form, and they hope they can continue the consultation process.
Having said that, chair, those are my comments with respect to the six written submissions. If any more of those documents come, obviously you will make those documents available to all of us.
I believe it is unseemly for us to have had that valuable information from outside groups, and this material, some of which I received only this morning — the letters to which I have referred — and to proceed with clause-by-clause consideration and say we have considered all that information and, therefore, we are ready to proceed with clause-by- clause consideration at this time.
It is unusual for us to do so, and I ask my colleagues to give me the time to consider this documentation, to consider that evidence and then proceed with clause-by-clause consideration at an appropriate time — at the next meeting or whenever you determine — but give me an opportunity as the critic to consider that information.
The Deputy Chair: Thank you for your comment.
Senator Seidman: Senator Day, while we all appreciate what you are saying, clearly the legislation cannot be all things to all people. I think this legislation has been worked on and reworked for more than a year now, so it is not as if we are seeing all of this information for the first time. We have scheduled clause-by-clause consideration for this period and I think we should proceed. I want to ask the chair for whatever the appropriate process is now. If I have to make a motion to proceed with clause-by-clause consideration, I am willing to make that motion right now.
The Deputy Chair: I have Senator Eaton next, Senator Hubley, Senator Cowan and Senator Callbeck.
Senator Eaton: I support what my colleague says. Let us get on with it.
Senator Hubley: On a point of order, I was asked to sit in on the meeting until the 12:30 deadline and I see now that we have passed that time. I wonder if you have the whip's permission to carry on your meeting at this time.
The Deputy Chair: I have the authority of the committee.
Senator Hubley: The question was: Do you have the whip's permission, which is required?
The Deputy Chair: No, it is not required.
Senator Cowan: Chair, I happened to catch your proceedings last evening on the televised version and I noted at the beginning —
The Deputy Chair: We are going viral.
Senator Cowan: Exactly: You look very good. You look better in person but look good on television.
I noticed you said at the beginning that you would meet for the appointed time and then the meeting would terminate. That has been the practice as long as I have been here: The committee meets for certain appointed periods of time because senators have other activities so if you simply allow committees to continue on forever, it will interrupt other things. I have something else I am supposed to attend at 12:45, and I understood this meeting would be finished at 12:30. I noticed you said that last night.
I also noted that with respect to Bill S-216, the Nortel employees' bill, that at the conclusion of the last panel of their meeting last week, your colleague, Senator Greene, suggested much along the same lines as Senator Day has, that interesting evidence had been received from a panel, he wanted the opportunity to reflect on their evidence before the committee proceeded to clause-by-clause consideration.
My experience has not been all that long, but I cannot think of an occasion when, without the unanimous consent of the committee or consent of the committee, the committee moved to clause-by-clause consideration immediately at the conclusion of a panel without giving the members of the committee the opportunity to reflect on the evidence that they had heard, and consider that evidence in conjunction with the evidence from other witnesses at other hearings.
If I understand Senator Day correctly, some of these submissions were received this morning and he has not had an opportunity to see them. I suspect we have followed that practice. Whether it is in the rules, I do not know. I think it is a good practice. I also repeat the point that Senator Hubley made because when I was whip, before I took on my current position, I received, as did my then-colleague Senator Stratton, requests from committees to sit beyond times and we had to balance those requests. There was always the question of whether other committees were meeting. Do senators have other obligations that they have to meet? What is the effect upon the staff who may have to be somewhere else in three quarters of an hour, and might have to grab something to eat before they go there? All these things seem to me to be logical reasons why —
Senator Eaton: Stop ragging the puck.
Senator Cowan: Senator Eaton, I deliberately did not want to get into it, but if you want to talk about ragging the puck, let us remember that this bill came last year. We made a number of amendments to this bill last year in committee. The Senate adopted the bill and sent it to the House of Commons. We were accused by the minister of gutting the bill. The House of Commons shut down, then the Prime Minister shut down Parliament, and this bill was not introduced again until June of this year. No one is ragging the puck.
Senator Eaton: Yes, you are.
Senator Cowan: I am not ragging the puck at all. I will address the chair.
The Deputy Chair: Senator Eaton, you are out of order.
Senator Cowan: Thank you, chair. I did not want to debate that point because I do not think that is relevant to the place we are today.
The Deputy Chair: Can we go back to the issue you raise? We will move on with that issue.
Senator Callbeck, I have you next. Would you like me to respond to Senator Cowan first or wait until we hear from you?
Senator Callbeck: Go ahead.
The Deputy Chair: Senator Cowan, I appreciate what you have summarized. You indicated you have not been here forever, but you have a great deal of experience here. I have not been here long. As deputy chair, I sought to inform myself — not with regard to this meeting but previously — with regard to the rules and procedures of Senate and the matters of the operation of committees.
This question was one that I specifically asked of the clerk: Does the chair have the authority to gavel a meeting to an end at its normal end time? The answer was unequivocally "no,'' unless the chair has received the vote of the committee at the outset with regard to that issue. I questioned that answer, the same as you did, and raised variations on that question and was given a fair amount of the precedent and rulings with regard to that issue.
While normally I obviously would defer to someone with your long experience here, on this particular issue I will go with the written decisions forwarded to me with regard to this specific item.
Senator Cowan: Can you table those decisions?
The Deputy Chair: I will seek out the clerk and if the clerk has no difficulty with them being widely circulated, I will agree to it.
Senator Cowan: Can we have an opportunity to look at them before we decide what we are doing?
The Deputy Chair: You are challenging.
Senator Cowan: I am not challenging at all.
The Deputy Chair: I am taking that as a challenge to the chair.
Senator Cowan: It is not a challenge to the chair.
The Deputy Chair: I will indeed provide them in due course.
Senator Callbeck: I want to say again that I support this bill and I think everyone around this table does; we all want safety of consumer products. However, we also want to be sure that this legislation is brought in in the right way. For example, this morning the Constitution was talked about. I think it is important that we hear from a constitutional expert. We have hundreds of emails from the public requesting that we hear from Shawn Buckley, who is a distinguished constitutional lawyer.
I brought up this suggestion yesterday; obviously, the committee is against that, so I personally want to have an opportunity to try to contact him and talk to him before we go ahead with this bill, to ask for his views on whether there are any constitutional problems.
We are the chamber of sober second thought. It is important that we have the time to review submissions and to talk to people. There are many people who have an interest in this bill and want to appear. Obviously, we will not hear from them. I think we need time to study this evidence and digest it.
The Deputy Chair: I have had your input. Obviously, as chair, I operate on the basis of the decisions of the committee. Right now, I am operating on the basis of a decision of the committee to move to clause-by-clause consideration. That is the authority I am operating under and I want to move now to clause-by-clause consideration.
Senator Day: I obviously respect your ruling, chair. I am disappointed. This is an apology to you; I am not prepared to deal with these amendments that I have in front of me in the way I normally would. I would normally have consulted with the clerk. I would normally have copies for everyone and in both official languages, but I do not. I can tell you I have 15 amendments in front of me, many of which, if I had the opportunity to consider the evidence that was given and the materials that are here, might not be necessary, but I have no choice. You will understand that; I have no choice. I will propose these amendments and we will have to go through this process slowly on a clause-by-clause basis so that I can say yes or no, if I have or have not an amendment.
The Deputy Chair: We will proceed in that manner. We will proceed now to clause-by-clause consideration. I will begin at the beginning. Shall the title stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Agreed. Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Deputy Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 3 carry?
Some Hon. Senators: Agreed.
The Deputy Chair: Carried.
Senator Day: Just a second. I am sorry. On division.
The Deputy Chair: Carried, on division. Shall clause 4 carry?
Hon. Senators: Agreed.
Senator Day: I am okay with that.
The Deputy Chair: Carried. Shall clause 5 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Clause 5 is carried, on division. Shall clause 6 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Clause 6 is carried, on division. Shall clause 7 carry?
Some Hon. Senators: Agreed.
The Deputy Chair: I hear carried.
Senator Day: No, on division.
The Deputy Chair: Carried, on division. Shall clause 8 carry?
Hon. Senators: Agreed.
The Deputy Chair: I hear it carried. Carried.
Shall clause 9 carry?
Some Hon. Senators: Agreed.
Senator Day: No, I move that Bill C-36 be amended in clause 9, on page 6, by replacing line 17 with the following:
impression that it is not a.
The Deputy Chair: We have a motion before us.
Senator Day: I want to explain what this amendment is, if you are interested. This amendment is to take out "regarding the fact that.'' The words are redundant; the amendment is what we sometimes refer to as a technical amendment. It is in clause 9(a) at line 17. That is all that amendment is intended to do.
The Deputy Chair: Thank you, Senator Day. The motion is before us on the table to do exactly as Senator Day has indicated. Are you ready for the question?
Hon. Senators: Yes.
The Deputy Chair: The question is being called. Those in favour of the amendment?
Some Hon. Senators: Yes.
The Deputy Chair: Those opposed?
Some Hon. Senators: No.
The Deputy Chair: I declare the amendment defeated.
Senator Day: Can we have a formal count, please?
The Deputy Chair: Yes, we can.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yes.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment defeated 7 to 4, and, therefore, back to clause 9, shall clause 9 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 10 carry?
Some Hon. Senators: Agreed.
Senator Day: No, on division.
The Deputy Chair: Carried, on division. Shall clause 11 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 12 carry?
Some Hon. Senators: Agreed.
The Deputy Chair: Carried?
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 13 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 14 carry?
Some Hon. Senators: Agreed.
Senator Day: No, I have an amendment to clause 14. The amendment is that Bill C-36 be amended in clause 14 on page 8, by replacing line 10 with the following:
"including a serious injury, and that occurred under circumstances that indicate that the product may pose a danger to human health or safety;''.
What that is trying to achieve is to give some evaluation to the person reporting the incident, much like two of our last witnesses have indicated should be there. This amendment is my attempt at providing that. It may not be the best, but it is an attempt.
The Deputy Chair: Thank you, Senator Day. To be clear for the committee, what you are doing is inserting the clarification?
Senator Day: Yes, correct.
The Deputy Chair: There is no change in the wording except the insertion of the additional phrase you have read to us.
Senator Day: Do you want me to read it again?
The Deputy Chair: No, I only want to be sure the committee understood.
Senator Cowan: It is adding words after the line, "including a serious injury''?
Senator Day: Yes, "and that occurred under circumstances that indicate that the product may pose a danger to human health or safety;''.
The Deputy Chair: Does the committee understand the motion on amendment?
Hon. Senators: Yes.
The Deputy Chair: Are honourable senators ready for the question?
Hon. Senators: Yes.
The Deputy Chair: The question is called. Those in favour of the amendment signify by saying "yea.''
Some Hon. Senators: Yea.
The Deputy Chair: Contrary?
Some Hon. Senators: Nay.
The Deputy Chair: I declare it defeated. The amendment is defeated. Shall clause 14 carry?
Some Hon. Senators: Agreed.
Senator Day: No. Can we have a show of hands on the last vote, please?
The Deputy Chair: Those in favour of the amendment please show your hands.
Some Hon. Senators: Yes.
The Deputy Chair: I count four. Those opposed to the amendment?
Some Hon. Senators: No.
The Deputy Chair: I count six. I declare the amendment defeated.
Senator Cowan: Recorded?
The Deputy Chair: You would like a recorded vote.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment defeated 7 to 4. Shall the clause carry?
Senator Day: On division.
The Deputy Chair: On division. Shall clause 15 carry?
Some Hon. Senators: Agreed.
Senator Day: No, I have an amendment to clause 15, that Bill C-36 be amended in clause 15, on page 9,
(a) by replacing lines 12 and 13 with the following:
I will read how it should read:
"15. (1) The Minister may disclose personal information related to a consumer product to a person or government that'', and
(b) by replacing lines 17 to 19 with the following:
"relates if
(a) the disclosure is necessary to identify or address a serious danger to human health or safety; and
(b) the person to whom or government to which the information may be disclosed agrees in writing to maintain the confidentiality of the information and to use it only for the purpose of carrying out those functions.
I will comment on it later, but (2):
The Minister shall provide prior notice of the intended disclosure to the individual to whom the personal information relates unless doing so would endanger human health or safety.
(3) If the Minister discloses personal information under subsection (1) without providing prior notice, he or she shall, as soon as practicable but not later than six months after the disclosure, notify the individual to whom the personal information relates.''
That amendment basically creates a confidentiality agreement in disclosure of this personal information in section 15 much like it is in part picked up in clause 16 and clause 17 for corporate information.
The Deputy Chair: You are clarifying the conditions of this clause.
Senator Day: I am trying to put conditions on it, you are right.
The Deputy Chair: Are you ready for the question on the amendment?
Senator Stewart Olsen: Can you call a recorded vote initially?
The Deputy Chair: Yes, I will. I will call a recorded vote on the amendment.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4. Shall clause 15 carry?
Senator Day: When will we do a recorded vote?
Ms. Richardson: We just did.
Senator Day: Did I put my hand up?
The Deputy Chair: You are in automated mode. Shall clause 15 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 16 carry?
Some Hon. Senators: Agreed.
Senator Day: No, I have an amendment to clause 16, that Bill C-36 be amended in clause 16, on page 9,
(a) by replacing line 20 with the following —
I hope I have the right line numbers here —
Senator Cowan: Line 22.
Senator Day: That is what I was trying to do and I missed the last one.
(a) By replacing line 22 with the following:
"16. (1) The Minister may disclose confidential'';
(b) by replacing line 27 with the following:
"relates if the''; and
(c) by adding after line 32 the following:
"(2) The Minister may make a disclosure under subsection (1) only for the purpose of protecting human health or safety or the environment.''
Senator Cowan: Senator Day, may I ask you to go back to this amendment because you have inserted certain words and I could not follow where those words are inserted. If you add something, that is perhaps a little easier. Can you read section 16 with the insertion that you are proposing?
Senator Day: "The Minister may disclose confidential.'' That is the beginning of clause 16(1). That is not changing. I am putting in a new (b) by replacing line 27 with the following:
"relates if the'';
Do you see the words "information relates'' and then I am adding "if the'' and then I am creating a number of subsections.
(2) The Minister may make a disclosure under subsection (1) only for the purpose of protecting human health or safety or the environment.
As honourable senators will know, the environment is introduced here in clause 16.
Senator Stewart Olsen: You are confusing me when you add all the words. Can you read it from the beginning?
Senator Day: All I have is the amendment. If you had this before you and you had that, it would be clear.
Senator Stewart Olsen: I am happy to listen to you read it.
Senator Day: What I did hear today; the Canadian Tenors in the morning are called the Canadian Baritones.
That Bill C-36 be amended in clause 16, on page 9,
(a) by replacing line —
I had 20 here, but —
— 22 with the following:
"16. (1) The Minister may disclose confidential'';
(b) by replacing line 27 with the following:
"relates if the;'' and
(c) by adding after line 32 the following:
"(2) The Minister may make a disclosure under subsection (1) only for the purpose of protecting human health or safety or the environment.
(3) The Minister shall provide prior notice of the intended disclosure to the person to whose business or affairs the information relates unless doing so would endanger human health or safety or the environment.
(4) If the Minister discloses confidential business information under subsection (1) without providing prior notice, he or she shall, as soon as practicable but not later than six months after the disclosure, notify the person to whose business or affairs the information relates.''
You will see that amendment is trying to set up the same scheme as I did with respect to clause 15 in terms of notification before, but if there is any danger, notification afterwards, but we did not need the confidentiality aspect in this one because it is there already.
That is the difference between this amendment and the one that you just voted down.
The Deputy Chair: Thank you very much. I think we have that clarified.
Senator Seidman: I request a recorded vote.
The Deputy Chair: We will vote on this clause with a recorded vote.
I have often observed that I never thought I would live long enough to say that university senates would be a model of organization and efficiency.
Senator Cowan: I was going to make that comment. Both of us have had experiences with universities.
The Deputy Chair: My experience here has shown that they are models of efficiency relative to certain organizations.
Senator Stewart Olsen: Can we proceed with the vote?
The Deputy Chair: Thank you.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
The Clerk: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4.
Shall clause 16 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: It is carried, on division. Shall clause 17 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Clause 17 carried, on division.
Senator Day: I think I missed an amendment there.
The Deputy Chair: Shall clause 18 carry?
Some Hon. Senators: Agreed.
Senator Day: No, just a second. On division.
The Deputy Chair: Clause 18 carried, on division.
Shall clause 19 carry?
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 20 carry?
Senator Day: Just a second. This is clause 20. The number has increased; it is 21 now so it has gone up on me. It is inflation.
The Deputy Chair: Shall clause 20 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 21 carry?
Senator Day: I have an amendment here.
I will tell you where this amendment appears first so you can focus on it, but the line numbers are wrong, so I will have to address that. It is line 16, I think.
That Bill C-36 be amended in clause 21, on page 11, by replacing line 16 with the following:
"by means of or in relation to which the inspector believes on reasonable grounds any provision of this Act or the regulations has been contravened, or''.
What we are doing here is trying to create a reasonableness to the search and detention power that is given. I am trying to put some reasonableness around it. That is all I am doing there.
The Deputy Chair: Thank you very much. The amendment is before us. Are you ready?
Senator Hubley: Are you putting in a new section?
Senator Day: After "seize and detain for any time that may be necessary'' two lines are being added: "by means of or in relation to which. . .''
Senator Hubley: After which?
The Deputy Chair: After "necessary.''
Senator Hubley: You are adding to paragraph (d) then and not creating paragraph (e).
Senator Day: That is correct; in clause 21(2)(d), we are putting in a reasonable test at line 16.
Senator Seidman: Can we have a recorded vote, please.
The Deputy Clerk: We will call a recorded vote. Will the clerk please call the recorded vote.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
The Clerk: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4.
Shall clause 21 carry?
Senator Day: On division.
The Deputy Chair: Carried, on division. Shall clause 22 carry?
Some Hon. Senators: Agreed.
Senator Day: No, clause 22, I have pages 12 and 13. You are putting a lot of pressure on me. Seize and detain we have done. That one is done. It is the next one.
Senator Eaton: Page 12 in the middle.
Senator Day: Number 7.
The Deputy Chair: We are waiting the instruction as to the specific line.
Senator Day: My amendment is by replacing the office of dwelling house. This amendment is a dwelling house issue.
Senator Cowan: Take your time to find it.
The Deputy Chair: It is in (a)?
Senator Day: Yes.
The Deputy Chair: Clause 22(2)(a) has a dwelling-house. Is that the dwelling-house you are looking for?
Senator Day: That is probably the dwelling-house I am looking for. I am deleting a bunch of words and adding here. It is in clause 22,
(a) at page 12,
(i) by replacing line 20 with the following:
"21(1) is an office or dwelling-house, an inspector may not'',
It adds those words, and then
(ii) by replacing line 27 with the following:
"person who is named in it to enter an office or a dwelling-'',
It then carries on with the wording there. Then
(iii) by replacing line 30 with the following:
"(a) the office or dwelling-house is place described in'',
That is the wording I am adding, and then
(iv) by replacing line 32 with the following:
"(b) entry to the office or dwelling-house is necessary'',
(v) by replacing line 35 with the following:
"(c) entry to the office or dwelling-house was refused;''.
Then we move to page 13.
(b) on page 13, by adding after line 9 the following:
"(5) In this section, "office'' means a self-contained room or place that is used as a business office, but does not include a room or place in which a consumer product is manufactured, packaged, stored, advertised to the public, sold, labeled, tested or transported.''
I am adding a whole new subclause.
Senator Cowan: On page 13, after line 9.
Senator Eaton: Thank you.
Senator Day: There is a whole new subclause there. Then I add another subclause, subclause (6):
"(6) For the purposes of subsection (5), "sold'' means exposed for sale, lease, or distribution to one or more persons, or in possession for the purposes of sale, lease, or distribution to one or more persons.''
Senator Callbeck: What line is that?
Senator Day: These are all added at page 13, after line 9. Just add two new subclauses there.
Senator Cowan: Can you explain that?
Senator Day: We had concerns about dwelling-houses and the rights of these inspectors to go into a dwelling-house or an office. We were concerned about going in, because inspectors do not need to have a key, they can go through the doors on these things and they were not, until we changed that, responsible for any damage they might cause. We were trying to limit reasonably what dwelling- houses they go to and what —
Senator Eaton: Talk to him, not us.
Senator Cowan: Excuse me, Senator Eaton. I have asked for an explanation.
The Deputy Chair: Order.
Senator Cowan: I am entitled to ask for an explanation.
The Deputy Chair: Order.
Senator Cowan: Would you tell her I am entitled to an explanation?
The Deputy Chair: Senator Cowan has asked a question and is receiving the answer. It is entirely in order. Let us please maintain order.
Senator Cowan: Thank you.
Senator Day: It was a dwelling-house or office we were trying to clarify.
Senator Eaton: Talk to him. I have heard it.
The Deputy Chair: Senator Eaton —
Senator Cowan: Senator Eaton, if you do not want to stay, you are perfectly —
Senator Eaton: I do not want him talking to me. He is addressing himself to you.
Senator Cowan: Senator Eaton —
Senator Eaton: We have heard it —
The Deputy Chair: Senators, you are out of order.
Senator Eaton: — over and over again.
The Deputy Chair: You are out of order. Please return to order.
Senator Day, would you please continue your explanation.
Senator Day: Thank you. I am almost finished the explanation.
The other portion is we felt "sold'' should have limitations as well.
That is what subclause (6) is about, defining what "sold'' means. Sometimes we put the definitions at the front, but here we suggest we put it there. That is what that amendment number 7 relates to.
The Deputy Chair: Does that answer clarify it, Senator Cowan?
Senator Cowan: Thank you. The other point I understand has been clarified about "damage in the course of.'' That has been straightened away?
Senator Day: Yes, thank you. I know what you are going at. Yes, it has.
The Deputy Chair: All right. Thank you. We will have a recorded vote.
Will the clerk call the vote, please.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4.
Shall clause 22 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Deputy Chair: Carried, on division.
Shall clause 23 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division.
Shall clause 24 carry?
Some Hon. Senators: Agreed.
Senator Day: No, it is a different number. On division.
The Deputy Chair: Clause 24 carried, on division.
Shall clause 25 carry?
Some Hon. Senators: Agreed.
Senator Day: On division again.
The Deputy Chair: Carried, on division.
Shall clause 26 carry?
Some Hon. Senators: Agreed.
Senator Day: Still not there: On division.
The Deputy Chair: Carried, on division.
Shall clause 27 carry?
Some Hon. Senators: Agreed.
The Deputy Chair: Senator Day, I have not heard from you.
Senator Day: On division.
The Deputy Chair: Clause 27 carried, on division.
Senator Day: This is the one with "thing,'' but I have decided not to pursue it.
The Deputy Chair: You are a good thing.
Shall clause 28 carry?
Some Hon. Senators: Agreed.
Senator Day: It has "thing'' in 28 too, but I will not pursue it: On division.
The Deputy Chair: Carried, on division.
Shall clause 29 carry?
Some Hon. Senators: Agreed.
The Deputy Chair: Senator Day?
Senator Day: On division.
The Deputy Chair: Carried, on division.
Shall clause 30 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division.
Senator Day: It was noticed that they use the word "anything'' in this one. "Anything'' seized as opposed to the "thing'' seized.
The Deputy Chair: We are moving up the vocabulary here.
Senator Day: Yes.
The Deputy Chair: Shall clause 31 carry?
Some Hon. Senators: Agreed.
Senator Day: There is my next amendment. You knew it was there.
The Deputy Chair: I knew I would find you.
Senator Day: I have clause 31 on page 14 and 15 be amended by replacing the heading. The heading has been changed a bit here, I think. I suggest "Orders'' as opposed to "Orders for Recalls and Taking Measures.'' Previously, the heading was "Inspectors' Orders.'' This amendment is to replace the heading preceding clause 31 with the heading "Orders.''
The Deputy Chair: You are simply removing the words after "Orders''?
Senator Day: Yes, for recalls and taking all that other stuff. This is analysis, orders.
The Deputy Chair: Thank you.
Senator Day: I am not giving the French version of each amendment as well, but I presume that version will flow, right? I think that version automatically does.
Then further down page 14 in clause 31, this amendment replaces line 30 with the following
"31. (1) Subject to this section, if the Minister believes on reason-''.
All the rest is fine.
The next one is page 15, clause 32. Replace line 32 with the following: "danger to human health or safety, he or she may.'' We already have that one. We do not need that one anymore.
The Deputy Chair: We are not at clause 32 yet.
Senator Day: Sorry, in clause 30. I am adding at (3).
Senator Cowan: We have not gotten through clause 31 yet.
Senator Day: It is clause 31.
The Deputy Chair: He said clause 32, that is why I brought him back.
Senator Day: Clause 31, by adding, after line 2, a new subclause.
The Deputy Chair: We were told the chamber had gone into session, but of course it has not. It is being called to session.
Senator Day: If we hurry along, we may get through this.
The Deputy Chair: We must adjourn the committee at 1:30 p.m.
Senator Hubley: Might I make another point? There are two members of leadership sitting on this side.
The Deputy Chair: We are delighted to have them.
Senator Hubley: I think it is reasonable to ask if you can give us five minutes, perhaps, to get back there when the Senate begins this afternoon? It will take five minutes.
The Deputy Chair: I am open to the committee's — we must, according to the rule, terminate at 1:30. I think it is a reasonable request. I see general agreement from the committee: 1:25 p.m.
Senator Cowan: Thank you.
Senator Hubley: I appreciate it. Thank you very much.
Senator Day: How about 1:22?
Senator Stewart Olsen: In that spirit. . .
Senator Day: What I am doing here is, before clause 32, after line 2, I am adding what I had mentioned during the questioning: provisions for a voluntary recall prior to the mandatory recall. That is what this amendment does.
(3) Before making an order under subsection (1), the Minister shall issue a notice of opportunity for voluntary recall to the person
(a) stating the nature of the order that the Minister intends to make and a summary of the reason for so intending.
(b) requesting that the person undertake a voluntary recall of the consumer product, or voluntarily carry out other measures that, in the opinion of the Minister, would be equally effective in addressing the danger to human health or safety posed by the product, within the specified time; and
(c) specifying the time within which the voluntary recall or other measures must be carried out.
I then add subclauses 4, 5 and 6 as well, because I have to build up the scheme of the voluntary before the "mandatory.''
(4) The Minister may not make an order under subsection (1) unless the person refuses the request contained in the notice or fails to carry out the voluntary recall or other measures within the specified time.
(5) Subsection (3) or (4) does not apply if the Minister believes on reasonable grounds that its application in the circumstances would pose an imminent danger to human health or safety.
That is the safety so the minister can do what the minister feels he or she has to do. I am trying to be reasonable, right.
Senator Stewart Olsen: Thank you.
Senator Day: Good.
(6) The Minister need not comply with subsections (3) and (4) if a notice of opportunity for voluntary recall was previously issued to the person in respect of the same or a substantially similar matter.
The Deputy Chair: Thank you, senator.
Senator Day: It is a reasonable approach to trying to create this voluntary aspect. As honourable senators know, most of the recalls are voluntary, virtually all of them.
That is my proposed amendment number 8. Thank you.
The Deputy Chair: I have a request for a recorded vote.
Madam Clerk, will you call it please.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4.
Shall clause 31 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division.
Shall clause 32 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Clause 32 carried, on division.
Shall clause 33 carry?
Some Hon. Senators: Agreed.
Senator Day: Just a second now. "Should be independent.'' There is an amendment on that, but I will have to wait until third reading on that one. I do not have it ready.
The Deputy Chair: Carried, on division.
Senator Day: It will have to be on division, otherwise it will be inappropriate to propose it later.
The Deputy Chair: Understood.
Shall clause 34 carry?
Some Hon. Senators: Agreed.
Senator Day: On division. No, I am sorry. This is the one where the redundant words appear. Did you say clause 35 or clause 34?
The Deputy Chair: Clause 34.
Senator Day: On division.
The Deputy Chair: Clause 34 carried, on division.
Shall clause 35 carry?
Some Hon. Senators: Agreed.
Senator Day: There is the redundant one. What I propose here is that Bill C-36 not be read the third time now but be amended in clause 35 at line 17 by deleting the words "other than the individual who made the order.'' That is line 17 and 18; deleting those words so that subclause stops after "review officer.'' Below, deleting as well, in subclause 5, the review officer, it should read:
The review officer may review an order whether or not a request is made under subsection (1).
In effect, I am deleting the redundant words, "— other than the individual who made the order —'' because the person who makes the order is the minister. The minister will not be a review officer. That is what I have deleted.
The Deputy Chair: That is fairly clear.
Senator Cowan: You would take that out in two subclauses?
Senator Day: In two different places, yes. That is in clause 35.
The Deputy Chair: Those amendments are clear. I have a call for a recorded vote.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4.
Shall clause 35 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division.
Shall clause 36 carry?
Some Hon. Senators: Agreed.
Senator Day: I am checking that.
Senator Hubley: It might be the place to stop here.
Senator Day: On division.
The Deputy Chair: Clause 36 carried, on division.
One more, clause 37. Shall clause 37 carry?
Some Hon. Senators: Agreed.
Senator Day: No: I will not go through the preamble that the bill not now be read a third time, et cetera. On clause 37 I have an amendment on page 18 by replacing line 5 with the following:
"regulations for carrying out the purpose and''.
I am changing "purposes'' to "purpose.'' The "purpose,'' honourable senators, is way back at the front end. The "purpose'' is in clause 3, and it is singular. When we see the word "purposes'' it implies something else other than "purpose,'' so out of good legal drafting that should be changed
Senator Stewart Olsen: Thank you for that.
Senator Day: That is the proposed amendment to this particular section.
The Deputy Chair: With the call of the vote on this amendment we will end the session.
Recorded vote, please, Madam Clerk.
Ms. Richardson: The Honourable Senator Ogilvie.
Senator Ogilvie: Nay.
Ms. Richardson: The Honourable Senator Brazeau.
Senator Brazeau: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yea.
Ms. Richardson: The Honourable Senator Champagne.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cowan.
Senator Cowan: Yea.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Hubley.
Senator Hubley: Yea.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Stewart Olsen.
Senator Stewart Olsen: Nay.
The Deputy Chair: I declare the amendment lost, 7 to 4.
Shall clause 37 carry?
Some Hon. Senators: Agreed.
Senator Day: On division.
The Deputy Chair: Carried, on division.
Thank you all very much. To summarize, we have reached the end of clause 37 in clause-by-clause determination of Bill C-36 and that we will carry on the agenda at the next meeting. Is that understood?
(The committee adjourned.)