Highlighted in green is a reference to Shawn Buckley and Senator Day’s motion.
Hon. Yonah Martin moved third reading of Bill C-36, An Act respecting the safety of consumer products.
She said: Honourable senators, I am pleased to rise in support of Bill C-36, the proposed Canada consumer product safety act. This is an important piece of health and safety legislation that is long overdue.
Honourable senators, this is not the first time we have studied and debated this bill in the chamber. We have heard from many stakeholders, both in committee and through email. We have spent a fair amount of time studying this legislation between this iteration, Bill C-36, and its previous incarnation, the former Bill C-6.
When we last studied this bill, we looked at the scope of inspectors’ powers and the concern that there were insufficient constraints on what inspectors might be authorized to do. At committee, the Minister of Health and Health Canada officials spoke to us about how they carefully considered the suggestions made and subsequently made a series of amendments to address these concerns.
Bill C-36 was changed so that the minister, not an inspector, is now authorized to order product recalls and the taking of other corrective measures. This makes the minister expressly accountable for such actions.
Bill C-36 was also amended to add a specific time frame for a review officer to complete a review of orders for recall and other corrective measures.
Bill C-36 now defines “storing” to clarify that consumer products stored by an individual for their personal use are excluded from the act.
The provision regarding an inspector’s ability to enter onto or cross over private property during an inspection has also been modified.
Bill C-36 was also amended to clarify that the act does not affect the provisions of the Privacy Act.
The provisions for laying foundational regulations before both houses of Parliament were updated.
Clause 60 was amended to address concerns about the role of the minister in reviewing notices of violation.
Finally, the amendment of clause 60 necessitated a technical amendment in the French version of subclause 56(1) to maintain consistency in the language used.
Honourable senators, I believe the changes we have seen between Bill C-6 and Bill C-36 acknowledge the hard work and efforts of the members of this chamber.
In that vein, I would like to take a moment to thank the critic of this bill, Senator Day, and all the members of the Standing Senate Committee on Social Affairs, Science and Technology for their thoughtful study of this bill.
Honourable senators, you may recall that Bill C-36 evolved from the government’s Food and Consumer Safety Action Plan, which was announced by the Prime Minister in December 2007.
The intent of this action plan was to modernize and strengthen Canada’s safety system for food, consumer and health products. The action plan implemented a three-pronged approach emphasizing active prevention, targeted oversight and rapid response. This means that we can avoid many problems before they occur. It means that the government can keep a closer watch on products that pose a higher risk to the health and safety of Canadians, and it means that we can take action more quickly and effectively to address problems when they do occur.
The proposed Canada consumer product safety act reflects this three-pronged approach to improve Canada’s product safety system. The influx of new products from around the world has been without precedent, and this influx has proven that our consumer protection legislation, while effective in the past, needed to be updated to keep pace with today’s new marketplace.
In the past, when unsafe consumer products were found in the marketplace, the government had to negotiate with industry to have them voluntarily recalled. With Bill C-36, the government will continue to work in partnership with industry. However, when voluntary measures are not successful, Bill C-36 will give the government the power to order a mandatory recall.
Bill C-36 also introduces a general prohibition against the manufacture, importation, advertisement and sale of consumer products that pose an unreasonable danger to human health or safety. This prohibition, combined with increased fines of up to $5 million for non-compliance in certain circumstances, or more where non-compliance is done knowingly or recklessly, will be an effective prevention tool.
Bill C-36 also requires industry to report, on a mandatory basis, serious health and safety incidents with their consumer products. It also gives the minister the authority to request that industry provide test results in order to verify compliance with the act. These provisions will allow a focus on products that pose higher risks and which thereby demand greater attention.
Finally, Bill C-36 will strengthen the government’s ability to respond rapidly when required. In keeping with measures used by our international partners, Bill C-36 includes new authorities to permit the government to take action when product safety concerns are identified. New requirements for industry to retain documents on their products will facilitate tracing one step up and one step down in the supply chain.
Bill C-36 will also enable the government to take action to address an unsafe consumer product if a business fails to comply with a recall or other corrective measure. Non-compliance could result in monetary penalty or criminal charges.
Honourable senators, these are the main elements of Bill C-36. The improvements it offers means that Canadians will be better protected and the protection provided will be more in keeping with legislative improvements already implemented in other countries.
Bill C-36 will bring about the change we need to modernize and strengthen our safety system and better protect Canadians. This is why I am confident that all honourable senators will appreciate the benefits of the proposed legislation and will support its passage.
Hon. Jane Cordy: Will the honourable senator take a question?
The Hon. the Speaker pro tempore: Honourable Senator Martin, will you take a question?
Senator Martin: Yes.
Senator Cordy: Honourable senators, I agree with Senator Martin that the Standing Senate Committee on Social Affairs, Science and Technology, both the current committee and the committee that dealt with Bill C-6 have done a tremendous amount of work in trying to make this bill a better bill. Of course, honourable senators, we all want all Canadians to feel sure that the products they buy are safe.
A number of the amendments brought forward last year by Liberal senators are now part of the new Bill C-36. A number of Liberal amendments are part of the bill despite the fact that some senators on the other side said that it would gut the bill. I am glad to see that the minister had second thoughts about the amendments and that she actually implemented, not all but some of them into Bill C-36.
My question concerns a question that I asked during committee hearings, for which I was not able to get an answer. It concerns clause 14(1)(d)(i). Does the honourable senator have the bill in front of her?
Senator Martin: I do.
Senator Cordy: For those senators who do not have the bill in front of them, clause 14 is entitled, Duties in the Event of an Incident, and sets out who can initiate an incident. Clause 14(1)(d)(i) reads:
(d) a recall or measure that is initiated for human health or safety reasons by
(i) a foreign entity,
We had four panels of witnesses, and I asked the only non-government panel to define a “foreign entity.” what a foreign entity is. Perhaps the honourable senator could clarify that phrase because it makes me a bit nervous.
Senator Martin: I thank the honourable senator for that question. Yes, I do recall the senator asking that question.
With regard to the amendments that were made to strengthen Bill C-36, I acknowledge the good work of our critic, the senators in the committee and, of course, the minister. I want to credit the minister with openness and careful consideration, in that what she adopted and included in strengthening the bill did not dilute and weaken the intent. That was something I was able to confirm with her. We had a good conversation about that as well last week on her way to Vancouver.
With regard to “foreign entity,” I wonder if, for instance, other jurisdictions have counterparts to Health Canada and there are commissions or regulatory bodies that may work in partnership with Canada, such as the U.S. Consumer Product Safety Commission. We have a global market and the products on the shelves in stores come from various jurisdictions, whether it is the EU, the United States or other places. These counterparts, regulatory bodies and organizations work with Health Canada to ensure the safety of products coming into Canada.
Senator Cordy: I have no problem with federal governments. The honourable senator mentioned the U.S. Consumer Product Safety Commission; I have no problem with that. She also mentioned federal regulatory bodies. It is great that they talk to the Canadian government and can say, “Red-flag this; be aware of this.” My concern is that it seems to be pretty open. Definitions are actually given in the bill for many of these terms that are used, but there is no definition of “foreign entity.” The concern that was raised by the people who appeared before the committee was whether this means private business. Does this mean that a company in China, for example, for whatever reason could initiate a recall of a product that is made in Canada?
Senator Martin: I can say in response, honourable senators, that Health Canada officials, on a daily basis, are working closely with all stakeholders as well as their counterparts in jurisdictions where Canadian products are exported and products are imported.
In terms of the process that is followed, as honourable senators know, there is great scrutiny at all levels. We heard from many different consumer organizations and organizations that represent Canadian families, businesses and stakeholders who all say that they have seen Health Canada working clearly and transparently over the course of many years of developing this bill to strengthen our system, and that there has been consultation. The processes are outlined and much of the information is available on websites for the public. In terms of the regulatory process, policy and guidance, these steps will be taken carefully. We will be able to ask these questions along the way.
Senator Cordy: I want the question to be answered before we have a vote on the bill. I have no problem with Health Canada, as I said earlier, working with government agencies in other countries. That is positive action.
The honourable senator talked about consultation. I have received thousands of emails asking that Mr. Shawn Buckley appear before the Senate committee. However, when I brought that motion forward at committee, it was voted down unanimously by the Conservative members of the committee. To say that there was consultation is an exaggeration.
My question is not related to other government organizations, with which I have do not have a problem. The difficulty I have was expressed at the committee: The recall can be initiated by a foreign entity.
The honourable senator has not given me a good definition of “foreign entity.” When I asked her specifically if a foreign entity includes private businesses in another country, the honourable senator did not address that question in her answer. Perhaps she can tell the house whether a private business in another country is considered a foreign entity under the bill.
Senator Martin: A “foreign entity” is one that is not in Canada, which will include governments and regulatory counterparts.
This bill governs what happens in Canada when there is a recall. Any information is shared only with persons or governments that carry out functions related to the protection of human health, safety or the environment in relation to these consumer products.
Senator Cordy: My question is: Does it include private companies?
Senator Martin: I do not know about private companies. That is something I cannot answer at this time. In terms of the process and the act that is governed in Canada, it includes the regulatory counterparts and government departments in other jurisdictions.
Hon. George Baker: Honourable senators, I have one observation. Perhaps the honourable senator wishes to comment if she has any knowledge of it, or any other senator with knowledge of it may wish to comment.
First, I congratulate the senator for her excellent work on government bills since she has come to this place. Let us hope that it continues, although at times I imagine it is difficult to justify proposed legislation that some of us feel is not suitable.
His Honour will know what I am about to mention. I have not examined this bill since the amendments were made. I thought that all the concerns on this side of the house had been addressed in the amendments. However, I asked for a copy of the bill only now. I notice that under the bill, search warrants of homes can be issued only by a justice of the peace. That strikes me as being a bit strange. Section 2 of the Criminal Code defines a “justice” as being either a justice of the peace or a provincial court judge. There is a separate distinction for a judge of a superior court. This bill specifically says, at clause 22(2) in respect of a search warrant for a dwelling house:
A justice of the peace may, on ex parte application . . .
Ex parte means a private application. Inter parte means that lawyers from each side are represented in the discussion.
The unusual part is that a justice of the peace may issue a warrant authorizing the search of a dwelling house. I do not know whether that point has come up, but I know of only one other piece of federal legislation — the Fisheries Act — in which it says that a justice or a justice of the peace may issue a warrant for entry to a dwelling house for the purpose of investigation.
Closer examination of clause 22 shows that the reason for entry is in search of something defined under the previous clause as being evidence of, or documents relating to evidence of. It says “reasonable grounds to believe,” which is in conformity. Inspectors would have to believe and not only suspect if they plan to enter a dwelling house. I notice that wording was changed, which is good.
However, the search warrant is in the hands of the justice of the peace. I realize that the Fisheries Act also has that wording in respect of investigating someone’s home. However, it is of concern to me that to enter someone’s home, inspectors do not require the normal constraints on the search warrant of going before a judge and having the police seek the warrant.
Senator Martin: Thank you, Senator Baker, for the question. When a dwelling house is also a place of business, it would be clearly established. In today’s globalized marketplace, many businesses are in homes or dwelling houses. When such is the case, and it is established and known, an inspector may enter as the inspector would enter a business in a mall or other location.
The inspection of a person’s home where a business is being conducted is regulated under the bill. The inspector performs the inspection in the same way the inspector performs an inspection in another business location. To level the playing field because there are businesses in dwelling houses and in traditional business locations, the inspector, at times, will need to enter and inspect.
In the case where there is not consent to enter the dwelling house, an inspector will require a warrant, which will be issued by an officer of the court or a justice of the peace. As the honourable senator noted, the Fisheries Act contains similar provisions, which can be found in other modern health, safety and environmental statutes.
In this modern age, many businesses are located in homes. Where a business is located in a home, it is important that inspectors have access to check for compliance and noncompliance, as they have in other business locations.
Senator Baker: I appreciate the answer; and that is correct. Although it does not say it here, clause 22(1) states:
If the place mentioned in subsection 21(1) is a dwelling house, an inspector may not enter it without the consent of the occupant except under the authority of a warrant issued under subsection (2).
It then says that a justice of the peace may issue a warrant.
The reason I brought this up is because in other statutes, such as the Income Tax Act, if someone has a business that is in their dwelling house, then one can get a warrant. However, the Income Tax Act states in section 222 that the warrant can only be issued by a judge. That is the concern that I have.
As the honourable senator pointed out, it is already in the Fisheries Act and she is absolutely correct. However, I think its proliferation into other legislation is to be frowned upon.
The Hon. the Speaker pro tempore: Further debate?
Hon. Joseph A. Day: Honourable senators, I have a question for the honourable senator as well, if she would accept it.
Senator Martin: Yes.
Senator Day: I was intrigued by her comment that the minister acknowledged that the amendments that were adopted from the earlier iteration of this particular bill were adopted because she was convinced that they did not dilute the intent of the bill. Some of those amendments were passed by this chamber, but the majority of them were rejected by this chamber about a year ago. The minister then had until June and came forward with another bill, which is this particular Bill C-36, and which has adopted some of those amendments.
Obviously, during that six-month period, the minister had an opportunity to look at those amendments and determine that they were not, in fact, diluting the bill but were, as we had said, improving the bill. Am I correct in that regard?
Senator Martin: Yes, honourable senators. I wanted to commend Senator Day and others in that some of the proposed amendments that the minister did consider were where we achieved more clarity or ensured that the French and the English were exact. So, for those kinds of amendments, and to remove certain language to ensure that there was that real strengthening and clarity achieved, I thank the honourable senator.
Senator Day: Thank you very much. I appreciate that comment.
In view of the fact that we presented several amendments last week and they were voted down, but that the minister has not yet had the six months to consider those amendments, if we delay passage of this bill for six months, I was wondering if perhaps the minister would have an opportunity to see that these particular amendments are appropriate.
Some Hon. Senators: Hear, hear.
Some Hon. Senators: Oh, oh.
Senator Martin: Judging from the response, I am sure that the honourable senator also agrees on the importance and urgency of this bill, the fact that it has been several years in the making, that the stakeholders are waiting, and that all honourable senators have already given their support in principle.
Senator Day: The difficulty with the response that I heard from the other side is that they are the same people who the last time voted against the amendments which the minister later saw the wisdom of accepting.
(On motion of Senator Day, debate adjourned.)