Highlighted in green are references to our requests to have Shawn Buckley appear on behalf of Canadians who want the flaws in Bill C-36: The Canada Consumer Products Protection Act exposed through due process.
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.
Hon. Joseph A. Day: Honourable senators, this is third reading debate on Bill C-36. I would like to thank and congratulate Senator Martin on the fine job that she has done in sponsoring this bill on behalf of the government and in taking it through this chamber, as well as the committee. I would also like to thank and congratulate all the other members of the committee for the work that they have done in dealing with this particular bill.
Honourable senators, there is no dispute that Bill C-36 is an important piece of legislation. I do not believe there is anyone either in this chamber or outside of the chamber who would argue that he or she does not want to keep children safe. I do not believe there is anyone who can deny that there must be measures and guidelines in place to ensure that products we acquire and use are safe. This is, therefore, by no means a partisan issue. Members of both sides are in complete agreement with the fundamental principle of this bill.
We are told that the measures and guidelines that are currently in place are out of date and in need of repair. This is a common theme that we have heard from the minister and from the department for some time with respect to the proposed consumer product safety legislation and the need for that legislation to replace Part I of the Hazardous Products Act. There is, however, as I indicated at second reading, no indication of an immediate need for this particular legislation. As has been clearly demonstrated by the minister when the previous Bill C-6 died because of prorogation and the minister did not reintroduce legislation for some six months later and then did not move on that for another three and a half months.
Honourable senators will have heard in the media recently about two actions taken under the Hazardous Products Act. The first one is a new regulation to limit lead in children’s toys. This was announced November 29, just last week. Honourable senators will note that the health minister has presented new tough regulations to limit the presence of lead in children’s products.
The minister pointed out that the new regulations will also give Health Canada the authority to prevent the importing or selling of a long list of products if they have lead levels in excess of the new limits. Health Canada will also be able to take any of those products off the market if they are found to violate this regulation. That was passed under the Hazardous Products Act. That is the kind of rights and the kind of power that the minister, in her presentation to us and in her various press releases, has said she is looking for in the new legislation. We know this kind of activity can take place under the existing legislation.
Honourable senators, a second announcement came out recently, on December 1, 2010, regarding new rules for cribs, cradles and basinets. Federal Minister of Health Aglukkaq said at a news conference last Wednesday that Canada’s requirement for cribs and cradles are already among the toughest in the world and that these changes will make those regulations even tougher.
Later in that same announcement, honourable senators, it was stated that the rules will also require manufacturers and importers to keep records about the sale, advertising and testing of these unsupervised sleeping products for at least three years. That, again, is a power that the minister was looking for and about which she said that she needed the new legislation in order to acquire that particular power.
Honourable senators, there is and there was ample opportunity for us to review this legislation without any emergency and to do the job that we normally would be expected to do here.
This bill, honourable senators, proposes a new scheme of a bureaucratic or an administrative type of governance. The basis for this legislation is criminal law legislation. However, rather than go through the time-honoured process of an offence under the criminal law jurisdiction and the checks that have been built into that to protect the individual, with which we are very familiar and comfortable here in Canada, this legislation proposes a new type of administrative process. Instead of offences, it refers to “violations.” That, honourable senators, is the reason this bill deserves considerable study and why it must be scrutinized at the highest degree to ensure that, under this new scheme, individual rights and fundamental freedoms are not unnecessarily interfered with.
Honourable senators, I will turn briefly to the bill to help you understand what is in this legislation and what we are being asked to consider, because that is how we assess whether there is overreach here; if the minister has gone too far, farther than is necessary to achieve the objectives.
I will start with section 2. There are two areas I will bring to your attention. One is the definition of “confidential business information” and the other is the definition of “government.” These definitions become important as these terms are used later on.
“Confidential business information” — in respect of a person to whose business or affairs the information relates — means information that is not publicly available, that has been protected by that individual and kept confidential, and that has an actual or potential value to that individual or that business.
That definition is a classic definition of intellectual property and trade secrets, honourable senators. That is what confidential information is.
In addition to that definition, there is a definition of “government.” Just as confidential information is all encompassing, likewise the definition of “government” is all encompassing. It includes the federal government, all corporations under Schedule III of the Financial Administration Act, and all provincial governments and provincial bodies. “Aboriginal government” is defined.
The area that causes me concern, and I want to understand why this area is critically important, is that the definition of “government” includes “a government of a foreign state or of a subdivision of a foreign state.”
A subdivision of a foreign state, in many jurisdictions around the world, includes sovereign corporations. Business activities, businesses run by the government — and we had a lot of them — we used to call Crown corporations. Honourable senators, that portion of the definition causes me concern when I take honourable senators to the area where that word is used.
Section 14 of the act was covered recently by Senator Cordy in her statement, and I will not refer further to that section. Those of us who were here heard Senator Cordy’s concerns. She is one of the members of the committee.
Sections 15, 16 and 17 deal with privacy and the disclosure of confidential business information. Honourable senators, I believe this area needs to be tightened up so that we can feel comfortable about the government determining on its own to divulge private or corporate information that is confidential.
Section 15 states that “The Minister may disclose personal information to a person or a government. . . .”
We looked at the definition of “government”: a foreign entity, an entity of a foreign government. We can think of the situation that has happened recently in Veterans Affairs Canada with the disclosure of personal information of Colonel Stogran, as he then was, ombudsman for Veterans Affairs Canada. He brought forward information about how the various departments used the personal information of an individual who was making a request to that particular department, without that individual knowing.
It is the knowledge. If someone knows their information is to be disclosed and they have a chance to say, “That is not entirely correct, and let me tell you why it is not correct,” or, in the extreme situation, if the person is informed afterwards that their personal information was made available to all these government departments or foreign entities, that knowledge would probably provide the balance. However, that amendment was not accepted, honourable senators.
There are three different disclosure schemes in sections 15, 16 and 17: in section 15, no notice at all; in section 16, a confidentiality agreement with the company or the entity before the information is made available; and in section 17, a requirement for disclosure afterwards.
What we were looking for in an amendment was a provision that created the same kind of balance in each of the three sections. However, honourable senators, that balance is not what is in this particular bill. The amendment was not accepted.
I refer honourable senators quickly to section 21, which deals with verifying compliance. This provision means that inspectors can go into a property — they do not have to suspect that there is an infringement, a breach, or a violation of the act — and verify compliance. However, when they go in to verify compliance, they also can seize any product or vehicle for the purpose of verifying compliance. Furthermore, they can require the person whose product was seized to move that product somewhere else at that person’s own expense.
Why is it necessary for this legislation to go that far? Why would inspectors not have the right to seize certain samples to verify; and then, if there is a breach or violation, they take the necessary steps?
There is no requirement for a warrant to enter into and over private property. The requirement for a warrant appears only with respect to dwelling houses, and then it is a weak warrant provision of ex parte, meaning that the warrant can be obtained without anyone knowing about it, without the knowledge of the person whose property will be violated, and without any representation there.
This area is another one where we had asked for a warrant in the cases where it is reasonable to have a warrant before entry. In the extreme situation, we have always recognized that the minister may have to act quickly. However, in the normal course, there is no reason why there cannot be the same kind of warrant provision that we are familiar with on other bases, where there must be reasonable grounds that there is something going on; that there is a violation of some provision of the act or the regulations.
Honourable senators, sections 41 and 59 highlight the difference between the administrative approach and the court judicial approach. Section 41 clearly states that in the case of an offence, due diligence is a defence. Section 41(2) states that due diligence in a prosecution for an offence is a defence. If someone has done everything they can do, if they tried to prevent this from happening and they had all the checks in their programs, but something happened, that is due diligence, and that is a defence.
Under the administrative scheme set up here to replace the judicial scheme, the opposite is the case because section 59 states that it is not a defence if the process is by way of a violation by the administrative route. If the defence is good enough, over many centuries, to have been developed in a criminal law process, then why is it good enough in this administrative law process? That is another question we asked. We tried to amend the bill to provide for that defence, but it was not accepted.
Honourable senators, there are many other items I could bring to your attention such as redundancy, unnecessary words that appear that should not be there.
The reason we are trying to clean this up is to prevent some wise lawyer two, three, 10 years down the line from pointing out an inconsistency causing the legislation, as it will be presumably at that time, to be unable to stand and therefore be struck down. Part of our job here is to try to prevent that, to be that check on the rough-hewn product that comes from the House of Commons through that confrontational partisan body to this body where we can fine-tune it, provide that sober second thought, and determine how it might impact areas that have not been considered previously. Honourable senators, I do not think this has been done. We have failed to do our job in this chamber as a chamber of sober second thought.
Honourable senators, we have an obligation to ensure that legislation referred to us is carefully considered. Unfortunately, honourable senators, I do not feel we have considered this bill to the extent that it deserves or requires. The Standing Senate Committee on Social Affairs, Science and Technology held two meetings, and three quarters of the witnesses at those two meetings were government officials who were there to tell about all of the positive points in this legislation. Honourable senators, our job is to ensure that legislation that has potential impact on the public does not adversely affect the people to whom it will apply. We have to hear from those Canadians, honourable senators, and we did not do that to the extent that I respectfully suggest we should have.
Honourable senators, immediately following that second meeting, when we had one panel of four or five outside people telling about this bill, we proceeded to clause-by-clause consideration. That was in spite of objections from some honourable senators, and the reason for that, honourable senators, is that those of us who objected felt that we deserved the opportunity to consider the information we had just heard.
In order to proceed with the clause-by-clause consideration, it was necessary to extend the sitting time, and that sitting time was extended without the permission of either whip in this chamber and to the objection of certain senators who had to leave because they had other commitments. That, honourable senators, helps paint a picture of what happened in this particular area.
Honourable senators, my office has received almost 1,000 emails requesting that the Standing Senate Committee on Social Affairs, Science and Technology take the time to hear from witnesses who are familiar with the proposed legislation and to consider carefully the powers being sought by the government and ensuring that they are necessary and desirable.
Mr. Shawn Buckley was recommended as a possible witness, but the senators on the government side have refused to hear from him, and I asked myself why. Mr. Buckley is a very reputable constitutional lawyer and is highly qualified, probably one of the most qualified on this proposed legislation of anyone in Canada. We heard from Mr. Buckley in the previous version of this bill when it was Bill C-6, and he was very informative and insightful. Naturally, when the bill was reintroduced, he was the person we immediately suggested should be brought in to discuss the changes, those changes that were not made, as well as to enlighten us on the strengths and weaknesses of this new legislation being proposed. Unfortunately, the Conservative senators unanimously voted down Senator Cordy’s motion to allow Mr. Buckley to appear before the committee.
Senator Mercer: Shame.
Senator Tardif: Shame.
Senator Day: Honourable senators, I made a second motion to extend the hearing times for one more session to allow additional outside witnesses to be heard. Sadly, this too was defeated unanimously by the Conservative majority on the committee.
Honourable senators, I received 10 written submissions regarding Bill C-36 from organizations whose submissions could have been very helpful to us. They were from the Asper School of Business at the University of Manitoba, Canadian Consumer Specialty Products Association, Canadian Consumer Product Safety Coalition, Canadian Toy Association, Canadian Environmental Law Association, Health Action Network Society, Natural Health Products Protection Association, David Suzuki Foundation, Consumer Interest Alliance Inc. and Johnson & Johnson Inc.
Honourable senators, allow me just quote from the Health Action Network Society:
Our organization has been told that we are unable to make a presentation to your Committee on Bill C-36, and have been asked to write to you instead. There is something missing when you cannot meet face to face, unfortunately, but here are our points: . . . .
Honourable senators, that letter is typical of the letters we received concerning this proposed legislation. These people were cut off for some reason from coming, and many of them would have told us that this legislation was improved over the previous legislation but there were certain other portions that should have been made.
Honourable senators, this should illustrate to us that we have not done our job on this bill. It should also indicate that we have offended a large segment of society by rushing this process for no reason. There was absolutely no reason to rush this process because we all agreed —
Senator Mitchell: However, they might prorogue again.
Senator Day: — with the fundamental principle. The principle of the bill was universally agreed upon. It is difficult to understand why partisan politics should interfere with ensuring that the bill gets the attention it deserves, honourable senators.
Some Hon. Senators: Hear, hear!
Senator Day: Instead of considering the amendments and motions put forward, we were accused of “ragging the puck,” as if it were not our job or duty to be sure and certain that all the provisions of the bill were carefully thought out and that we have a final product that is the best we could have and in the best interests of Canadians.
Bills, honourable senators, and proposed legislation are the first order of business of this chamber I put to you, not policy reports. Something is out of balance when a committee can spend countless meetings on policy studies and drafting a report thereafter but can only hold two meetings on a bill that will affect Canada for many, many years to come.
This bill has come a long way, honourable senators. Since it was introduced as Bill C-52 and later Bill C-6, many of the amendments put forward by us were made, and we thank the government for doing so. However, I must reiterate that I do not feel that we, as senators, have done the best we can do with this particular bill.
I proposed several amendments at committee, all of which were voted down without debate, without discussion and, regretfully I must say, with very little understanding. We then hurried through the clause-by-clause consideration, honourable senators. The reputation of the chamber is dependent on us fulfilling our duty as senators, and in failing to do so we have not given this bill the consideration it requires to be a sound piece of legislation.
Honourable senators, we have heard discussions in this place — Senator Comeau just yesterday — talking about practice and how practice is important. Practice is not the written rules but rather the traditions, the customs of this place in terms of extending time, in terms of showing courtesy to other fellow senators who might have other things to do. That is what makes this chamber work, honourable senators, not the rules but all of the other practices and traditions and courtesies that we show to one another.
I know we are in this chamber now adjusting, we on this side adjusting to the important role of opposition and you on that side adjusting to the equally important role of how to handle majority power. I understand that, however, I very much look forward to the time when we get through this transition period and get back to showing the courtesy for one another that is important and to doing the job that is important in this place.
Hon. Jane Cordy: Would the honourable senator take a question?
Senator Day: I would be pleased to.
Senator Cordy: I was very pleased that Senator Day clearly told the chamber what it was like being on the committee when it was very challenging. We are supposed to be the chamber of sober second thought and, indeed, that was not the case during the committee hearings. It was very frustrating that three of the four panels we heard, as the honourable senator said, were made up of government officials, who were, of course, talking in favour of the bill because that is their job. On one panel, which made up 25 per cent of the panellists whom we heard from, the witnesses were from outside of government. That does not seem like a good fit to me.
When Senator Martin spoke the other day, I spoke about the term “foreign entities.” I am sorry that I do not have a copy of the bill before me, so I cannot cite the exact clause it is in. However, I am concerned about the term “foreign entity” and that a foreign entity could initiate a complaint. There is no definition of “foreign entity” in the bill. There are many definitions in the bill, but that one does not appear.
With respect to how a complaint can be initiated, if I say a foreign entity is a foreign government, I can accept that because governments should be working together to ensure that the products are safe. However, on the one panel of non-government witnesses we did have, two of the witnesses expressed concern that foreign entities may mean private businesses in another country who may be making mischief and, in fact, just saying that perhaps a product made in Canada was not safe just so that their own products would have a better market within Canada.
Does the honourable senator have a better definition or feel for what the term “foreign entity” means within Bill C-36?
Senator Day: I thank Senator Cordy for that question. I was here when she asked that question of Senator Martin, as well, and I referred to it earlier on. It is in clause 14 of the bill. Clause 14(1)(d) states that the minister can initiate a recall based on a recall or a measure that is initiated for human health or safety reasons by a foreign entity. That is one of the places where the term is used.
Senator Cordy has expressed a concern about an entity doing this for mischief reasons, for example, having a small recall in a particular area to get a competitive product off the market. That is a concern, and the real concern is that the term is not defined and thereby leaves it wide open for inspectors and government people to take actions and say that it was based on a foreign entity activity.
If one looks at the definition of “government,” it is so terribly broad that it includes so many subsections of government operating in foreign areas. “Foreign entity,” I would say, would be interpreted as something broader than that, and that is just virtually every group, organization, company or business anywhere in the world, quite frankly. It is troublesome.
Hon. Tommy Banks: I ask all senators, if they can, to place before them, please, a copy of Bill C-36, because I am about to make an amendment. I want honourable senators to see exactly what I am talking about.
Before I get there, I want to reiterate some of the things that Senator Day has said. The government is going down what could be a very slippery slope here, as Senator Day has explained to us, by moving things that were previously considered offences in criminal law into a new regime called “violations.” Those would be violations under regulations, the guilt of which is determined by a process, which, if one reads this bill carefully, allows for no possibility that a person, having been issued a notice of violation, can ever be found not to have committed the violation, regardless of what representations at any level the person so charged makes.
In addition, there is the matter that Senator Day referred to that is very important in that connection. The things that are now called “violations” and not “offences” are, in this act, made not susceptible of a defence in common law. In common law, we have always been able to defend against a charge of an offence by reason of having done demonstrable due diligence or by demonstrating that we reasonably believed in facts, which, if they were true, would be exculpatory. We have always been able to do that.
Now here are these “violations,” not offences, in which this bill states the defence of common law, of due diligence, or of having believed in facts, which, if they were true, would be exculpatory, is no longer applicable. One cannot use the common law as a defence here. That is the beginning of a slippery slope, honourable senators. I hope we are not going down this staircase.
There is another matter in here. I am sorry to have said this so many times before, but we are used to constabulary authority being given to people who have some demonstrable capability, expertise, training or ability in that respect. In this act, inspectors are named who have all kinds of access to search and seizure and can obtain ex parte warrants. They are persons, not peace officers, constables, game wardens, fisheries officers, immigration officers, customs officers or anybody who has any demonstrable measure of capability and expertise to carry out the role of “inspector,” and could come into one’s place of business on occasion without a warrant.
Nobody would mind if someone goes into a store that is trading in something that it ought not to be trading in. This bill is not about only cribs and lead in toys. It is about consumer products. If someone is selling something that is unsafe, will make people sick or harm people, we ought to have someone who can go in and seize things right now. Nobody argues about that.
However, if one is an owner of a business that has 15 stores, and one has an administrative office on the 15th floor of a building where nothing is being sold, is it reasonable that an inspector should be able to come into that place of business without a warrant, take everything on one’s computer, use one’s printer to print it out, and seize all that material? I have some problems with that.
I will come now to my amendment, and it is something that Senator Day referred to as well, that I want honourable senators to read.
Please turn, if you will, to page 9 of the bill, in clause 15, which is headed: Disclosure of Information by the Minister. This is private information.
Please read with me section 15 and then section 16. First, we will read section 16, because it is okay.
The minister may disclose confidential business information —
— intellectual property —
— to a person or a government that carries out functions relating to the production of human health or safety or the environment — in relation to a consumer product —
That is fine. It is restricted to this.
— without the consent of the person to whose business or affairs the information relates and 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 and to use it only for the purpose of carrying out those functions.
Terrific; it circumscribes the kind of information it can be given — it has to have something to do with consumer affairs — and it requires that the minister obtain an undertaking that the foreign government of Liechtenstein will use that information only for the purposes that it was intended, and to keep it otherwise confidential.
Now look at section 15(1). We have seen in section 16 the protections that are given to businesses and corporations, and we have seen the circumscription in the kind of information that can be given. Now let us read section 15(1).
The minister may disclose personal information —
— which is described earlier as being everything about you —
— to a person or a government that carries out functions relating to the protection of human health or safety without the consent of the individual to whom the personal information relates if the disclosure is necessary to identify or address a serious danger to human health or safety.
There are no further undertakings. There is no requirement to keep that information confidential on the part of the recipient government. When the minister decides to give this to the Government of Guatemala, the Government of Guatemala can do whatever it likes with the information.
I urge honourable senators to consider that the protection in terms of the circumscription of the kind of undertaking we are talking about, and the undertakings that must be obtained by the minister from the foreign government or entity to whom the information is being disclosed, ought to be no less for an individual Canadian than it is for a Canadian corporation. Individual Canadians deserve the same kind of protection as that given to Canadian corporations.
The Privacy Commissioner has said it is all covered, and Senator Martin told us that when I asked this question earlier; she said it is covered in the Privacy Act. It is, but the coverage in the Privacy Act is tautological. Here is what it says:
The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution . . .
— section 8(1) of the Privacy Act states:
Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
Section 8(2) states:
Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(b) for the purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;
— so there is no protection —
(f) under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation;
(m) for any purpose where, in the opinion of the head of the institution,
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure,
I could go on, but honourable senators, I have read this from stem to gudgeon and it is tautological. It is covered and under this bill, it says you can give whatever you want to whomever you want. There is no protection under the Privacy Act here.
Motion in Amendment
Hon. Tommy Banks: Therefore, honourable senators, I take pleasure in moving:
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”.
The Hon. the Speaker: On debate on the amendment.
Hon. Yonah Martin: I, too, wish to move an amendment.
The Hon. the Speaker: Honourable senators, the question before the house is the motion in amendment and we are on debate on that.
Senator Martin: I wish to have some time to consider the amendment and would like to adjourn the debate in my name.
The Hon. the Speaker: Honourable senators, there is no debate on an adjournment motion. Senator Martin had the floor and has moved the motion to adjourn.
Is it your pleasure, honourable senators, to adopt this motion?
(On motion of Senator Martin, debate adjourned to the next sitting of the Senate.)