This transcript includes the entire third reading session where Bill C-36 was voted into Canadian law.
On the Order:
Resuming debate on the motion of the Honourable Senator Martin, seconded by the Honourable Senator Kochhar, for the third reading of Bill C-36, An Act respecting the safety of consumer products;
And on the motion in amendment of the Honourable Senator Banks, seconded by the Honourable Senator Moore, that Bill C-36 be amended in clause 15, on page 9,
(a) by replacing line 13 with the following:
“information in relation to a consumer product to a person or a government that”; and
(b) by replacing lines 17 to 20 with the following:
“relates only if
(a) 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; and
(b) the disclosure is necessary to identify or address a serious danger to human health or safety.
(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.
(4) For greater certainty, nothing in this”.
Hon. Elaine McCoy: Honourable senators, before I begin speaking on the clock, your honour, may I ask for clarification on a point of procedure? I spoke with the Leader of the Government in the Senate and with the Leader of the Opposition in the Senate, and I believe the table officers are aware and had spoken to His Honour about it, but it has been a long-standing practice of the Senate to stack amendments. In the course of my comments, I propose to move amendments that are not sub-amendments to Senator Banks’ amendment. With leave of the Senate, I will proceed; otherwise, I will wait until later.
The Hon. the Speaker pro tempore: The tradition in this house has been that in circumstances such as these, we do, in fact, stack amendments, and honourable senators are free to debate any of the amendments before the house.
Is it agreed, honourable senators, that the amendments be stacked?
Hon. Senators: Agreed.
Senator McCoy: Thank you very much. I appreciate honourable senators’ agreement on that point.
I will invite all honourable senators to go on a little journey with me, and imagine for a moment how they would feel if suddenly a government official appears at their door, maybe flashes a tiny identification card, which, if honourable senators are like me, they would have to peer at to read, and without a by-your-leave, enters their premises, sits down at their computer, starts to search, stands up, wanders around their premises, and even begins to seize files and other products that they might sell or produce. The government official not only does that without a by-your-leave, they also do it without any prior notice or warning. They can hold on to those goods for long enough to disrupt a business and maybe even send the owner into financial difficulty.
There are no means to prevent this activity. Imagine how honourable senators would feel. There is no judicial review, there is no recourse for action, and there is no due process.
The business owners ask themselves and probably this official, “What is happening; have I committed a heinous crime of some kind?”
Of course, the answer is no because if it were a serious crime, it would be a police officer at their door, and the police officer would have a warrant from a justice of the peace or a judge before entering, let alone seizing any files or goods.
Perhaps they have been found guilty already of some crime. Again, the answer is no. All we have here is a bureaucratic desire to peek, pick, poke and God knows what else at products and files — a fishing expedition, as Senator Banks and others have said.
It is simple curiosity, based on nothing solid like judicial review or scientific review, and not even an honest belief that the act or regulations have been contravened — nothing.
The worst part is that there is nothing they can do about it and no one they can talk to until well after the fact.
With respect to that little movie, you might be thinking, “Oh, my goodness, no, no, no; that is a Cold War scenario; That is only in Eastern Bloc countries; that is one of the terrible situations that used to exist on the other side of the Great Wall.”
However, it is not true. That can happen to anyone in Canada in the 21 century, not because they are a drug smuggler, as Senator Wallace and others were discussing, a human trafficker or a porn producer. They are someone whose occupation it is to make or sell consumer products in Canada — ordinary consumer goods — and they may be completely innocent of any wrongdoing. Think of it, honourable senators: they may be completely innocent.
The folks at their door who are demanding entry are not even trained police officers. They are Health Canada inspectors, for heaven’s sakes, and the only thing someone can do after the fact is complain to other Health Canada inspectors, who probably have their office or desk next to each other and who are about as likely to overturn a colleague’s commandments as one might expect.
So we are clear, I will say again what we have all been saying. At its heart, the bill has honourable goals, much as Senator Banks said about Bill S-10, and much as Senator Day, Senator Banks, Senator Cordy and others have said about Bill C-36. The goal of keeping safe products on our shelves, in our homes and in our business is a good one.
We also endorse the idea that they should be withdrawn from circulation, and there should be some teeth in that, if they are considered to be dangerous or likely to have a serious problem.
However, embedded in the minutia of the legislation are disturbing new powers given to bureaucrats that, in their present wording, would go against the tradition which started about 800 years ago — in 1215 in the Magna Carta, to be precise. It is going against the tradition of common law in Canada, for example, the right to due process. It is those powers that I am concerned about, and I would expect honourable senators would be concerned about as well.
The crux of the matter is this: Do we need to rescind our long-standing, established rights and freedoms in the name of consumer safety? My answer is no. That is a false choice, a false dichotomy.
The Meat Inspection Act, for example, is a similar piece of legislation, but the Meat Inspection Act requires inspectors to believe that something is wrong before they enter, seize or inspect products. That is the normal practice in our country, and we have fought hundreds of years to establish and maintain those kinds of rights. Everyone wants a safe world for their families, but I do not think we have to give up our rights and freedoms to achieve that.
I am inviting all honourable senators to join us in voting against this bill, or at least voting for it with some amendments tonight. We should resist unchecked bureaucratic powers and resist the ability of the state to intervene at will in our private business. We should, in fact, stop criminalizing our world. Let us make our world safer, by all means, but let us not lose our rights and freedoms along the way.
Motion in Amendment
Hon. Elaine McCoy: Honourable senators, therefore, I move that Bill C-36 be not now read a third time, but that it be amended in the following particulars, and I will summarize those particulars first, and then read them into the record: first, that they reinstate the requirement that an inspector must believe that the act or regulations have been contravened before entering or seizing or searching; second, that a warrant be required before entering; and third, that the common-law defences of due diligence and belief in fact be restored.
Let me read the amendment:
That Bill C-36 be not now read a third time but that it be amended
(a) in clause 21(1), on page 10, by replacing lines 34, 35, 36 and 37 with the following:
“(1) Subject to subsection 22(1), if an inspector has reasonable grounds to believe there has been non-compliance with this Act or the regulations, he may, at any reasonable”;
(b) in clause 22, on page 12,
(i) by replacing lines 19, 20 and 21 with the following:
“(1) An inspector may not enter the place mentioned in subsection 21(1) without the consent of the occupant”;
(ii) by replacing lines 27 and 28 with the following:
“person who is named in it to enter the place if the justice of the peace is satisfied by”,
(iii) by replacing line 30 with the following:
“(a) the place is a place described in”,
(iv) by replacing line 32 with the following:
(b) entry to the place is necessary”,
(v) by replacing line 35 with the following:
“(c) entry to the place was refused”.
(c) by deleting clause 59, on page 31, lines 28 to 41.
I would invite all honourable senators to uphold our rights and freedoms and to accept these amendments this evening.
The Hon. the Speaker pro tempore: Honourable senators, it has been moved in amendment by Honourable Senator McCoy, seconded by Honourable Senator Poy, that Bill C-36 be not now read a third time but that it be amended, (a) —
Some Hon. Senators: Dispense.
The Hon. the Speaker pro tempore: Shall I dispense, honourable senators?
Some Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Are honourable senators ready for the question?
Some Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: All those in favour of the amendment moved by Senator McCoy and seconded by Senator Poy will signify by saying “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker pro tempore: All those opposed to the motion will signify by saying “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker pro tempore: In my opinion, the nays have it.
And two honourable senators having risen:
The Hon. the Speaker pro tempore: Call in the senators.
Have the whips made a decision as to the time?
Hon. Jim Munson: Yes.
Hon. Consiglio Di Nino: Yes, a one-hour bell.
The Hon. the Speaker pro tempore: The vote will be at a quarter to 10. The bells will ring for one hour.
The Hon. the Speaker: Honourable senators, just before I put the question, I will invite all honourable senators to require that I have an obligation, pursuant to rule 18, that during the taking of the vote honourable senators will remain in their place and will refrain from undue noise.
Some Hon. Senators: Hear, hear.
The Hon. the Speaker: Honourable senators, the question before the house is as follows: It was moved by the Honourable Senator McCoy, seconded by the Honourable Senator Poy, that Bill C-36 be not now read a third time but that it be amended:
(a) in clause 21(1) on page 10 by replacing lines 34, 35, 36 and 37 —
Shall I dispense?
Some Hon. Senators: Dispense.
Motion in amendment of Senator McCoy negatived on the following division:
YEAS THE HONOURABLE SENATORS
Banks Joyal
Callbeck Mahovlich
Carstairs Massicotte
Chaput McCoy
Cordy Mercer
Cowan Mitchell
Dallaire Munson
Dawson Murray
Day Pépin
Downe Poulin
Dyck Poy
Eggleton Ringuette
Fairbairn Rompkey
Fox Smith
Fraser Tardif
Furey Watt
Jaffer Zimmer—34
NAYS THE HONOURABLE SENATORS
Andreychuk LeBreton
Angus MacDonald
Ataullahjan Manning
Boisvenu Marshall
Braley Martin
Brazeau Meighen
Brown Mockler
Carignan Nancy Ruth
Champagne Neufeld
Cochrane Ogilvie
Comeau Oliver
Demers Patterson
Di Nino Plett
Dickson Poirier
Duffy Raine
Eaton Rivard
Finley Runciman
Fortin-Duplessis Segal
Frum Seidman
Greene Stewart Olsen
Housakos Stratton
Johnson Tkachuk
Kinsella Wallace
Kochhar Wallin—49
Lang
ABSENTIONS THE HONOURABLE SENATORS
Nil
The Hon. the Speaker: Honourable senators, the question now is the motion in amendment of the Honourable Senator Banks, seconded by the Honourable Senator Moore, that Bill C-36 be amended in clause 15, on page 9.
(a) by replacing line 13 with the following: —
An Hon. Senator: Dispense!
The Hon. the Speaker: All those honourable senators in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker: All those honourable senators opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the “nays” have it.
And two honourable senators having risen:
The Hon. the Speaker: Call in the senators.
Do the whips have advice as to when the vote will take place?
An Hon. Senator: Now.
The Hon. the Speaker: Is it agreed, honourable senators, that a standing vote will be called now?
An Hon. Senator: Now.
The Hon. the Speaker: Based on the agreement and the house order, I will —
Senator Munson: I am sorry; I could not hear anything. Now I can hear. Thank you.
The Hon. the Speaker: Do I have a clear understanding from the house that this vote will be taken now?
Senator Di Nino: Your Honour, I confirm that from our side.
Senator Munson: Yes, sir.
Motion in amendment of Senator Banks negatived on the following division:
YEAS THE HONOURABLE SENATORS
Banks Mahovlich
Callbeck Massicotte
Carstairs McCoy
Chaput Mercer
Cordy Mitchell
Cowan Munson
Dallaire Murray
Dawson Pépin
Day Peterson
Downe Poulin
Dyck Poy
Eggleton Ringuette
Fairbairn Robichaud
Fox Rompkey
Fraser Smith
Furey Tardif
Jaffer Watt
Joyal Zimmer—37
Lovelace Nicholas
NAYS THE HONOURABLE SENATORS
Andreychuk LeBreton
Angus MacDonald
Ataullahjan Manning
Boisvenu Marshall
Braley Martin
Brazeau Meighen
Brown Mockler
Carignan Nancy Ruth
Champagne Neufeld
Cochrane Ogilvie
Comeau Oliver
Demers Patterson
Di Nino Plett
Dickson Poirier
Duffy Raine
Eaton Rivard
Finley Runciman
Fortin-Duplessis Segal
Frum Seidman
Greene Stewart Olsen
Housakos Stratton
Johnson Tkachuk
Kinsella Wallace
Kochhar Wallin—49
Lang
ABSTENTIONSTHE HONOURABLE SENATORS
Nil
The Hon. the Speaker: Honourable senators, we are now back to third reading.
Hon. James S. Cowan (Leader of the Opposition): Honourable senators, I wish to make a few comments at this stage in our proceedings, not so much on the substance of the bill but on the way in which we have handled it. I suggest there are some lessons which all of us, but particularly the government, can learn from the legislative process of this bill and its predecessor, Bill C-6.
We all agree that Canadians need a new consumer products safety law. Everyone agrees that the provisions set out in the Hazardous Products Act are outdated and fail to adequately protect Canadians. Legislation to modernize and update the regime has been in preparation for a number of years, beginning under a Liberal government.
This should not be a partisan issue, but rather a matter of parliamentarians of all political parties in both houses working constructively to produce the best legislative and regulatory regime. That is our Canadian parliamentary tradition at its best, and we in the Senate have our part to play.
The first bill that was introduced was Bill C-52, tabled in the other place on April 8, 2008. It had companion legislation, Bill C-51, which would have introduced amendments to the Food and Drugs Act. Those amendments were quite controversial. Indeed, a significant proportion of the strong opposition to the bill before us today seems to have arisen because of confusion amongst Canadians as to whether Bill C-36 contains provisions that were contained in Bill C-51, and specifically, whether it impacts on the sale of natural health products. It does not.
Both bills, Bill C-51 and Bill C-52, died when the Prime Minister prorogued Parliament in September 2008. Bill C-52, the original precursor of Bill C-36, had been referred to committee in that place. Bill C-51, the bill dealing with amendments to the Food and Drugs Act, was still being debated at second reading.
To date, the government has not sought to reintroduce the provisions of Bill C-51. Liberal senators tried to learn the status of that legislation at committee without success. When officials testified before the Standing Senate Committee on Social Affairs, Science and Technology on Bill C-36, those officials would only say it is the government’s decision as to when it will introduce legislation — and, of course, it is.
I suspect many Canadians’ fears would have been allayed if the government had been more forthcoming about its plans. No doubt, the government’s known penchant for secrecy and history of burying controversial clauses in bills have not helped the progress of this legislation. Certainly, it is clear from the emails and letters from numbers of Canadians that all of us received that Canadians are deeply concerned that this bill will impact on their access to natural health remedies. As I said earlier, it does not.
Meanwhile, as I have also said, Bill C-52, the consumer products safety bill, died with the 2008 election, and it was some months before the government reintroduced it. No bill was reintroduced in the first session following the election. Honourable senators will recall that that session was cut short when the Prime Minister again prorogued Parliament, this time to avoid a non-confidence motion.
On January 29, 2009, the government reintroduced the bill, this time numbered Bill C-6. There were several months of further delay before the government brought the legislation forward for debate. Nevertheless, eventually it made its way through the legislative process in the House of Commons and reached the Senate on June 16, 2009.
After second reading, the bill was sent to the Standing Senate Committee on Social Affairs, Science and Technology. The committee, as is its role, closely examined the provisions of the bill, listened to the views of experts and other interested Canadians who came to testify about the bill, and considered various amendments to address the expressed concern and to improve the bill.
In the end, the committee reported the bill with several amendments. However, that report containing the amendments was defeated in the Senate amidst allegations that the proposed amendments would gut the bill. Several other amendments proposed by my colleagues at third reading were adopted and the bill, as amended, was returned to the House of Commons on December 15, 2009, almost a year ago today.
Unfortunately, the House of Commons had recessed by that point; and then, as we know, the Prime Minister prorogued Parliament again on December 30, killing the bill again. To date, then, for those who are keeping count, this bill has been delayed by three prorogations by the Prime Minister.
Parliament returned to session on March 3, 2010. However, it was not until June 9 that the minister reintroduced the proposed consumer product safety act, this time relabelled as Bill C-36, the bill we are dealing with today.
Once again, the government delayed bringing the bill forward for debate, this time waiting until October. Lo and behold, despite the minister’s previous protestations against the Senate’s amendments, many of those changes had been incorporated into the bill, albeit without credit or attribution. Evidently, upon examination, the government realized that those amendments did not gut the bill after all.
A number of other amendments suggested by the Senate in its committee report, the ones that were defeated when the bill was reported here, for some reason — and these were primarily technical amendments — were not reflected in Bill C-36. Honourable senators, I find it strange and rather disconcerting that the government had not caught and corrected these rather basic mistakes in their legislation, even after we had brought those mistakes to their attention.
Be that as it may, after we pointed out the mistakes again to government representatives, the government introduced the necessary amendments at committee stage in the other place. As a result, the bill which arrived here on November 2 was a significantly improved version of Bill C-6 — not perfect, but certainly better than before.
In the view of many observers, it was a significant advance over the provisions of the Hazardous Products Act that it was designed to replace. The minister herself acknowledged the positive and valuable role of the Senate in improving the bill. In her words, the bill was stronger, clearer and better as a result of the Senate’s work.
As is our practice and responsibility, after second reading, the bill was sent again to the Standing Senate Committee on Social Affairs, Science and Technology for study. Honourable senators, my expectation — and I think the expectation of most of those who are following the legislative process — was that while there would be some witnesses who were opposed to some or perhaps all of the provisions of the bill and some who would prefer further amendments, there was sufficient overall support for the bill to permit it to move through the committee report stage, to third reading and on to Royal Assent with a minimum amount of controversy.
Unfortunately, I was wrong. I underestimated the appetite of this government to politicize everything, even the basic protection of Canadians with a new consumer protection product safety law.
The first sign of trouble appeared when the government majority on the steering committee moved to restrict the witness list; in particular, it refused to allow several critics of the bill to appear. This stubborn refusal fuelled the fires of opposition and we all have been deluged with a virtual tsunami of emails protesting, not only what the Senate is doing, but how we were doing it. All of us, and those who follow our work on CPAC, are aware of the scenes of uncharacteristic testiness and partisanship that marked the committee hearings on this bill.
In my view, honourable senators, most or all of this rancour could have been avoided if the government had demonstrated a little flexibility in its approach to the witness list and a little more patience in its approach to the bill itself. There were Canadians who wanted to be heard and many more Canadians who wanted those voices heard. That is the democratic way. Listening to Canadians and reflecting on their views and concerns is what has allowed us to improve this legislation before and is what we should have been allowed to do this time. That is our job. By slamming the door on those witnesses, we have failed Canadians and we have failed to do the job that under the Constitution we were called upon to do.
Honourable senators, the government repeatedly delayed this legislation, waiting for months to bring it forward in the other place and then killing it over and over with its three prorogations. Yet the Conservative members of the committee were unwilling to allow even one more committee hearing to hear from critics on this bill.
Senator Mercer: Shame on them.
Senator Cowan: Once again, this is a government that demands “my way or the highway,” that refuses to listen to criticism and that only wants to silence dissent.
Had the government adopted a more reasonable and enlightened attitude, we would find the tone of this debate quite different. Instead of criticism from colleagues and abuse from observers, we could have pointed to Bill C-36 as an example of Parliament working as it should; of the Senate doing what it does best, — careful study of legislation and giving Canadians an opportunity to be heard before providing its advice to the elected House of Commons; and of the government listening to reasoned and evidence-based suggestions for improvements to its legislation with the result of better legislation for Canadians.
Honourable senators, this was an opportunity lost. I regret that fact and I hope that all of us, and particularly the government majority, will learn a lesson.
On a final note, I want to repeat what I have said many times since I became Leader of the Opposition in this chamber. We on this side take our role as an opposition very seriously. We are committed to fulfilling our constitutional responsibility. We will support legislative measures that we believe are in the best interests of Canada. We will oppose and we will seek where possible to improve measures that in our view are contrary to that interest. However, let there be no doubt in anyone’s mind: We will not be bullied by the government that now has the majority of members in this place.
Some Hon. Senators: Hear, hear!
The Hon. the Speaker: Are honourable senators ready for the question?
An Hon. Senator: Question!
The Hon. the Speaker: It was moved by the Honourable Senator Martin, seconded by the Honourable Senator Kochhar, that this bill be read a third time. Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Hon. the Speaker: Carried, on division.
Senator McCoy: Your Honour, three honourable senators rose when the question was called.
The Hon. the Speaker: I am afraid I did not see any honourable senator rise.
Senator McCoy: I think there might have been others who witnessed it, Your Honour.
The Hon. the Speaker: Honourable senators, I will put the question more formally. Those in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker: Those opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the nays have it.
And two honourable senators having risen:
The Hon. the Speaker: Call in the senators. Do the whips have advice as to the length of the bell?
Senator Di Nino: Your Honour, from our side, we would call the vote now.
Senator Munson: Now would be an appropriate time. We are all here.
The Hon. the Speaker: Honourable senators, I will put the question now. It was moved by Honourable Senator Martin, seconded by the Honourable Senator Kochhar, that Bill C-36 be read a third time.
Motion agreed to and bill read third time and passed on the following division:
YEAS THE HONOURABLE SENATORS
Andreychuk LeBreton
Angus MacDonald
Ataullahjan Manning
Boisvenu Marshall
Braley Martin
Brazeau Meighen
Brown Mockler
Carignan Murray
Champagne Nancy Ruth
Cochrane Neufeld
Comeau Ogilvie
Demers Oliver
Di Nino Patterson
Dickson Plett
Duffy Poirier
Eaton Raine
Finley Rivard
Fortin-Duplessis Runciman
Frum Segal
Greene Seidman
Housakos Stewart Olsen
Johnson Stratton
Kinsella Tkachuk
Kochhar Wallace
Lang Wallin—50
NAYS THE HONOURABLE SENATORS
Banks Lovelace Nicholas
Callbeck Mahovlich
Carstairs Massicotte
Chaput McCoy
Cordy Mercer
Cowan Mitchell
Dallaire Munson
Dawson Pépin
Day Peterson
Downe Poulin
Dyck Poy
Eggleton Ringuette
Fairbairn Robichaud
Fox Rompkey
Fraser Smith
Furey Tardif
Jaffer Watt
Joyal Zimmer—36
ABSTENTIONS THE HONOURABLE SENATORS
