Bill C-51 Info    Bill C-52 Info

Originally planned for April 28, 2008, deliberations for Bill C-51 are continuing as we write, so HANS is encouraging everyone to keep those letters and e-mails coming.

The high level of consumer concern over Bill C-51 is definitely reaching the House of Commons, where we have insider reports of your letters being read and reread by Members of Parliament, most of whom are just now learning firsthand of how important this issue is to Canadians.

To reiterate, HANS is concerned that Bill C-51 - a bill that proposes changes to the Food and Drugs Act - may detrimentally impact consumer freedom to purchase from amongst a variety of safe, affordable natural health products.

For starters, changing the definition of both drugs and natural health products to "therapeutic products", as Bill proposes, does not acknowledge fundamental differences between the two. HANS feels that maintaining this distinction will be vital if Canada is to have an appropriately regulated natural health products industry.

In 1999, the 53 recommendations put forward by then federal Minister of Health Allan Rock and the Standing Committee on Health were intended to ensure natural health products did not get regulated using a pharmaceutical-type framework, which is exactly what has happened.

Bill C-51 progresses this type of thinking, both in its definitions and its bestowing of greater powers on Health Canada and federal inspectors to enforce regulations and demand industry compliance - a move that could result in reduced product availability. On the matter of monetary penalties for non-compliance, the Bill also doesn't make distinctions for the size of an operation; a small family retail business or a multinational manufacturing giant could be fined the same maximum amount of $5,000,000.

Shawn Buckley, LLB, is president of the Natural Health Products Protection Association (NHPPA) and keynote speaker at a public event on June 2, 2008, in Vancouver, cosponsored by HANS and Common Ground Magazine. Buckley, in a recent statement, summarizes the situation:

Since 2004, when the Natural Health Product Regulations were introduced, natural health products have been increasingly threatened. The new Regulations were Health Canada's response to consumer demands for the government to protect their access to natural health products. The Regulations have had the opposite effect.

To "legally" sell a health product, the new Regulations impose a licensing requirement. The problem is that 60 percent of license applications have failed. These have been the "easy" applications. Expectations are that 70 to 75 percent of applications will fail. For the natural health products community, this means that 75 percent of natural health products that we rely upon for our health will become illegal.

This creates the following scenario:
-        75 percent of natural health products will become illegal.
-        Illegal products must be voluntarily removed or be subject to Health Canada enforcement.
-        Health Canada has publicly announced it is hiring more enforcement officers and is holding recruitment meetings at universities.
-        Bill C-51 gives Health Canada unprecedented enforcement tools to force natural health products off the market.


HANS - Health Action Network Society - is a non-government funded, natural health consumer network representing our membership and the general public's interests in Canada since 1984. Related to Bill C-51, HANS echoes the concerns of the NHPPA, concerns also expressed by the trade-based Canadian Health Food Association, as well as other groups naturally and internationally. 

How to Get Involved

1) Contact your Member of Parliament ASAP.
Inform him/her that:
- you are opposed to Bill C-51;
- you want him/her to vote against Bill C-51;
- you want your access to natural health products protected.

To find out who your MP is, search by postal code at:
http://www2.parl.gc.ca/Parlinfo/Compilations/HouseOf......

2) Send a copy of your e-mail to nhp@hans.org.

3) Support HANS by joining as a member for $35 a year. Memberships and donations by natural health consumers are the primary source of funding that enables us to do this work. Sign up online at www.hans.org. Or, make a tax-deductible donation to HANS; every bit of support helps.

4) Forward this e-mail to everybody you know and request that they do the same.

5) Sign up for the HANS e-News, a free service via www.hans.org, in which we will be including Bill C-51 updates.

6) Phone your MP and the Prime Minister's Office to voice your concerns.
Dial toll-free 1-866-599-4999 and ask to be transferred to any MPs office. The hours of this service are:
Monday - Thursday, 8:30 - 6:00 pm Eastern standard time
Friday only, 8:30 - 5:00 pm Eastern Standard time

Stephen Harper's phone numbers are (613) 992-4211 and (403) 253-7990.
Tony Clement's phone numbers are (613) 944-7740 and (705) 746-9053.

7) Introduce this issue to your local media.

8) On June 2, 2008, attend the "Endangered Natural Health Products" public event in Vancouver, co-hosted by HANS and Common Ground Magazine
Speaker: Shawn Buckley, LLB and president of the Natural Health Products Protection Association
When: Monday June 2, 2008 7-9 pm
Where: St Andrew's - Wesley Church, 1022 Nelson Street, Vancouver
Tickets: available at www.hans.org or by calling 604-435-0512, or at the door

9) Also write a handwritten letter to:
- your local MP;
- Prime Minister Stephen Harper;
- Tony Clement, Minister of Health.

You can send your letters without postage to:
(Name of person)
House of Commons
Ottawa, ON
K1A 0A6

10) Get more information
Read the transcript of April 30th's House of Commons debate on C-51 here (note that the debate has not finished yet):
http://www2.parl.gc.ca/HousePublications/Publication...

Read a copy of Bill C-51: http://www2.parl.gc.ca/HousePublications/Publication......&

Read a Draft Discussion Paper on Bill C-51 by Shawn Buckley, president of the Natural Health Products Protection Association: http://www.nhppa.org/

Watch this video:
http://www.jameslunneymp.ca/video.htm
 

Bill C-52 Info:

Draft Discussion Paper on Bill C-52 the
Canada Consumer Product Safety Act

Prepared by Shawn Buckley, president of the Natural Health
Products Protection Association on May 14, 2008.

Purpose of the Paper

On April 8, 2008, Prime Minister Stephan Harper introduced Bill C-52 in the
House of Commons. A copy of the Bill can be found at

http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3397415&Language
=e&Mode=1&File=29. The stated purpose of the Bill is to protect consumers. The
Federal Government has been aggressively advertising to convince Canadians that
the new law will protect them.

The Government advertising is targeted at the strong emotion we share to protect
children. The first half-page ad that I saw in my local paper began “Your Family’s
Safety – Our Government’s Priority”. The ad featured pictures of vulnerable
children, which was successful in evoking an emotional reaction for me to support
the Bill to protect my children.

The NHPPA has asked me to prepare this Discussion Paper on Bill C-52 out of a
concern that the Bill may represent an unprecedented encroachment on freedoms
currently enjoyed by Canadians. The NHPPA is focussed on protecting
Canadians’ access to Natural Health Products. Although Bill C-52 does not
specifically target Natural Health Products, the NHPPA is concerned that Bill C52
sets a precedent where Canadians will accept the removal of their rights in the
name of safety. Also, if Bill C-51 is defeated but Bill C-52 passes, Bill C-52
could be made applicable to Natural Health Products by way of a regulatory
amendment to Schedule I of Bill C-52.

Summary of Points Discussed In This Paper

• Bill C-52 is being advertised as necessary to protect our families.
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•
Under the existing law the State can already:
o
ban or restrict any consumer product under threat of million dollar
fines and two year jail sentences under the Hazardous Products Act;
o make immediate orders banning or restricting any consumer product
if there is a significant risk to health or safety. In addition to fines
and imprisonment for non-compliance, the State can apply to the
Court for an injunction which brings police enforcement of the
order, and
o prosecute for criminal negligence or homicide under the Criminal
Code. In some cases this can result in penalties of life
imprisonment.
•
The real change brought about by Bill C-52 is not that it protects
consumers, as the current law already grants the State significant powers to
protect safety. Rather the real change is the abolition of procedural
safeguards citizens currently enjoy.
•
Bill C-52 abolishes the law of trespass thus allowing the State access onto
private property without any legal recourse.
•
Bill C-52 allows the State to seize property without a Court order, without
reporting the seizure to a Court, and for an indefinite period.
•
Bill C-52 allows the State to assume control over the movement of private
property without a Court order and without a safety concern.
•
The search and seizure powers in Bill C-52 are probably unconstitutional
for violating the right found in section 8 of the Canadian Charter of Rights
and Freedoms to be free from unreasonable search and seizure.
•
Persons can be fined and have property forfeited to the State for
administrative violations. Persons so charged have no right to have a Court
determine their guilt or innocence. Guilt is determined by the Minister.
There is no defence of due diligence or of honest but mistaken belief.
There does not have to be a safety risk to be charged with an administrative
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offence. The Minister who determines your guilt or innocence can keep
seized property if he/she finds you guilty.

Discussion Paper Only

This is a discussion paper only and does not reflect the position of the NHPPA or
of the NHPPA Advisory Board. The thoughts and comments are those of the
author, Mr. Shawn Buckley and are intended to encourage Canadians to read Bill
C-52 and to foster discussion.

This is an initial discussion paper only. The author expects that as feedback is
received and further study of the Bill is undertaken, that the opinion of the author
will broaden.

The NHPPA is inviting comments on this discussion paper. Feedback and
comments can be forwarded to the attention of Shawn Buckley or Peter Helgason
at info@nhppa.org.

For media enquiries only, contact Peter Helgason at (250) 318-5005.

The Property and Privacy Rights Affected by
the Bill are Broad in Scope

The Bill has a very wide application. Section 2 of the Act contains the following
definitions:

“consumer product” means a product, including its components, parts or
accessories, that can reasonably be expected to be obtained by an individual
to be used for non-commercial purposes, including for domestic,
recreational and sports purposes, and includes its packaging.

“article to which this Act or the regulations apply” means

(a) a consumer product;
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(b)
anything used in the manufacturing, importation, packaging, storing,
advertising, selling, labelling, testing or transportation of a consumer
product; and
(c)
a document that is related to any of those activities or a consumer
product.
“Consumer product” covers anything from start to finish that makes its way into
the hands of consumers, even if it is just a part of a consumer product. A product
remains a “consumer product” after it is purchased by the consumer. The
definition is not limited to apply only to consumer products prior to sale to
consumers.

“Article to which this Act or regulations apply” covers all consumer products and
all property including equipment, buildings, vehicles, media outlets, and labs that
are used in the manufacturing, importation, packaging, storing, advertising,
selling, labelling, testing or transportation of a consumer product.

In discussing the broad powers the new law gives the State to seize and
destroy property without any compensation, it is important for Canadians to
realize that the new law applies to:

•
most items purchased by consumers regardless of cost to the consumer,
and
•
a very wide range of commercial property including buildings, media
outlets and vehicles that are not themselves “consumer products” and
which pose no risk to the consumer.
Consumers are not being told that as the new law is currently written, products
they purchased may be subject to seizure without compensation.

Business owners are not being told that the new law gives the State sweeping
powers to control and seize their property without a warrant and without having to
report to a Court.

Context for the New Law – is it necessary to
take away freedoms to protect us?


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New laws are supposed to serve a public purpose. In this case the State is
advertising that the new law is necessary to protect our families from dangerous
consumer products.

This raises the question: are we so unsafe without the new law that we
legitimately need the new law to protect us?

For citizens to form a realistic opinion on this, it is necessary to understand the
powers the State currently has to protect consumers from dangerous products. As
outlined below the State currently can:

•
ban or restrict any consumer product under threat of million dollar fines and
two year jail sentences under the Hazardous Products Act;
•
make immediate orders banning or restricting any consumer product if
there is a significant risk to health or safety. In addition to fines and
imprisonment for non-compliance, the State can apply to the Court for an
injunction which brings police enforcement of the order, and
•
prosecute for criminal negligence or homicide under the Criminal Code. In
some cases this can result in penalties of life imprisonment.
With these tools already in place, the question arises as to what “other”
powers are necessary to protect us?

Bill C-52 adds new powers. However, the real significance is that it allows the
State to control and destroy private property without the review and
supervision of the Courts or of other independent review boards. This raises
another question: considering the sweeping powers the State already has to
“protect” us, is it necessary to take away the independent supervision of the
Courts that citizens have traditionally relied upon to “protect” citizens from
the State?

Put another way: if the State already has all the powers necessary to ensure
that consumer products are safe, how are we protected by allowing the State
to control, seize and destroy private property without the independent
supervision of the Courts that citizens currently enjoy?


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These are questions of fundamental importance that need to be addressed as
people read and consider the need for the sweeping State powers found in Bill C


52. We look forward to input on these questions as we try to formulate answers.
The Hazardous Products Act.

This Act can be found at http://laws.justice.gc.ca/en/ShowFullDoc/cs/H3//
20080514/en?command=HOME&caller=SI&search_type=all&shorttitle=%22hazardo
us%20products%20act%22&day=14&month=5&year=2008&search_domain=cs&showa
ll=L&statuteyear=all&lengthannual=50&length=50.

The Hazardous Products Act (the “HPA”) currently gives the State significant
powers to protect consumers. Under this Act the State can:

•
prohibit the advertising, sale or importation of any consumer product;
•
put restrictions on the advertising, sale or importation of any consumer
product;
•
if there is a significant risk to health or safety, make an order prohibiting
or restricting the advertising, sale or importation of any consumer
product, and
•
demand any information from a manufacturer to determine the safety of a
product.
Although the State has broad powers to make immediate orders to stop the sale of
any hazardous product, the HPA also protects the property owner by having
procedural safeguards that comply with the rule of law. These include provisions
that:

•
orders made for safety reasons expire after 14 days unless they are
approved by the Governor in Council (i.e. the Federal Cabinet). This gives
the State 14 days to determine if there really is a health risk in the situation
where an order was made as a precaution;

•
the order must be tabled in Parliament for review, and
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•
if the order is confirmed the property owner can apply to an independent
Review Board to contest the order. In this way the rule of law is respected.
The State cannot affect property rights without an independent review.
It is an offence under the HPA to ignore an interim order. Penalties include fines
of up to a million dollars and/or imprisonment of up to two years for each
violation.

Although there are significant penalties under the HPA to ensure compliance with
orders made to protect consumer safety, it needs to also be kept in mind that the
State can apply to the Federal Court for an injunction if an order is ignored. This
can be done quickly. It enables police intervention to enforce the Court’s order.
The property owner is protected as the Court will consider all of the evidence
concerning safety and can compensate the property owner if it is eventually
determined that there was not a safety risk.

For the purposes of this Discussion Paper I should add that I am not certain that
the Board of Review provisions would apply to an interim order under the HPA.
There is some ambiguity in the wording of that Act. I have only done cursory
research and have not found a case to resolve that ambiguity. It is my current
opinion based on the wording of the HPA that the Board of Review provisions
apply to interim orders. I look forward to feedback on this issue.

The Criminal Code Criminal Negligence Provisions

Under section 219 of the Criminal Code, a person or company commits criminal
negligence if they do anything or fail to do anything it is their duty to do which
“shows wanton or reckless disregard for the lives or safety of other persons.” This
means that if a person or company sold a consumer product which they knew was
not safe or which they should have known was unsafe, they are committing a
criminal offence and are subject to the penalties for criminal negligence found in
the Criminal Code.

The penalties for criminal negligence vary depending upon the harm caused. If
bodily harm is caused the maximum penalty is imprisonment for 10 years. If
death is caused the maximum penalty is imprisonment for life. Persons who cause
death by criminal negligence can also be charged with homicide under section
222(5)(b) of the Criminal Code. The penalties for homicide vary depending upon
whether the homicide is characterized as murder, manslaughter or infanticide. If


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the criminal negligence is characterized as murder, the minimum penalty is life
imprisonment.

The Criminal Code penalty of life imprisonment for criminal negligence and
murder is the most severe penalty permitted in our Justice System.

Civil Penalties

Anyone harmed by a consumer product can sue for damages. Arguably it is the
threat of bankruptcy posed by law suits that have historically ensured that
consumer products are safe. Any person or company that sells a dangerous
product faces bankruptcy regardless of whether they knew the product was unsafe.

The Abolition of the Law of Trespass

As a British Colony we inherited the British Common Law on trespass. Indeed, it
has been one of the foundations of our right to own and enjoy property that no
one, including the police, can come onto our property or interfere with our
property. We consider this to be such a fundamental freedom that when suing for
trespass upon our land, we do not even have to prove we suffered any damage or
loss. The law has traditionally held the right to private enjoyment of our land to
be so significant, that the mere trespass upon it is enough to get a civil judgment.

Our right to enjoy property free of trespass is not limited to land. We have the
right to enjoy our personal property without interference. Anyone who interferes
with our personal property commits trespass.

We hold the right to the private enjoyment of property as so important, that we
have placed specific provisions in the Criminal Code to protect it. These include:

•
section 177 which makes it a criminal offence to trespass near a private
home at night;
•
section 38 which makes it an offence to take away our personal property. It
also allows us to prevent a trespasser from taking our personal property
without worrying about being charged with assault;
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•
section 39 which protects us from criminal prosecution for defending our
personal property;
•
section 40 which enables us to use as much force as is necessary to prevent
trespassers from entering our homes, and
•
section 41 which deem trespassers to commit assault if they resist attempts
to remove them from a house or land. This section also allows persons to
use force to remove persons from their homes or land.
Bill C-52 abolishes the law of trespass. Subsection 21(3) provides:

An inspector who is carrying out their functions may enter on or pass
through or over private property without being liable for doing so and
without the owner of the property having the right to object to that use
of the property.

Note that under subsection 21(3), an inspector is not limited to investigating the
property owner. An inspector can trespass on your property if investigating
another person’s property and you have no recourse.

Currently consumer safety is protected under the Hazardous Products Act, the
Criminal Code and Civil Law while respecting the law of trespass. This raises
the question as to whether it is necessary to abolish fundamental property
rights under the justification of “consumer protection”. I look forward to
comments on this question.

The Right to Seize Property Without a Court
Order, Without Reporting the Seizure to a
Court, and for an Indefinite Period

Section 21 provides in part:

21(1) Subject to subsection 22(1), an inspector may, for the purpose of
verifying compliance or preventing non-compliance with this Act or
the regulations, at any reasonable time enter a place, including a
conveyance, in which the inspector believes on reasonable grounds that a


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consumer product is manufactured, imported, packaged, stored, advertised,
sold, labelled, tested or transported, or a document relating to the
administration of this Act or the regulations is located.

21(2) The inspector may

(a) examine or test anything – and take samples free of charge of an
article to which this Act or the regulations apply – that is found
in the place;
(d) seize and detain for any time that may be necessary
(i)
an article to which this Act or the regulations apply
that is found in that place, or
(ii)
a conveyance;
Please note that these sections do not allow an inspector to enter into your home.
To enter a private home an inspector has to apply for a warrant (see section 22).

These sections provide that, with the exception of a private home, inspectors can
enter on any property in which the inspector believes a consumer product is
manufactured, imported, packaged, stored, advertised, sold, labelled, tested or
transported. This would include:

•
all media outlets that accept advertising of consumer products;
•
private property (excluding homes) in which a consumer product is stored;
•
all commercial property which is in any way connected with consumer
products or parts of consumer products, and
•
conveyances such as trains and trucks.
Subparagraph 21(2)(a) permits the seizure of samples for testing. This means that
subparagraph 21(2)(d) is not referring to the taking of samples for testing.

Under subparagraph 21(2)(d) there is no limit to:

•
how much property can be seized, and
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•
how long the property can be seized.
There is also:

•
no requirement for a warrant prior to seizure;
•
no requirement to report the seizure to a Court;
•
no mechanism to have the seizure and on-going detention reviewed by
a Court or independent review board (as in the Hazardous Products
Act), and most importantly
•
THERE DOES NOT HAVE TO BE A HEALTH RISK BEFORE
THERE IS A SEIZURE AND DETENTION. All that is required is that
the seizure be for the purpose of verifying compliance or preventing noncompliance.
Considering that the stated purpose of the Act is to protect our safety, it is curious
that there does not have to be a health risk for there to be a seizure. If we are
being asked to surrender our property rights in the name of safety, we should
consider when analysing this Bill whether there should be a safety requirement for
there to be a seizure and unlimited detention.

The State can Assume Control over the
Movement of Private Property Without a
Court Order and Without a Safety Concern

Section 23 of the Bill reads:

23. An inspector may order the owner or person having possession, care or
control of an article to which this Act or the regulations apply to not move
it – or to restrict its movement – for as long as, in the opinion of the
inspector, is necessary for the purposes referred to in subsection 21(1).
Section 26 of the Act Reads:


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26 An inspector who seizes a thing under this Act shall release it if they are

satisfied that the provisions of this Act and the regulations with respect to it

have been complied with.

The purpose set out in subsection 21(1) is “the purpose of verifying compliance or
preventing non-compliance with this Act or the regulations”.

As outlined above an “article to which this Act or the regulations apply” includes
all consumer products and all property including equipment, buildings, vehicles,
media outlets, and labs that are used in the manufacturing, importation, packaging,
storing, advertising, selling, labelling, testing or transportation of a consumer
product.

This means that an inspector can tell property owners to not move private
property to check compliance or to prevent non-compliance regardless of how
trivial the compliance issue is and regardless of whether or not there is a
health risk. I would expect that property owners would be surprised that the
movement of their property can be restricted without the presence of even an
imagined health risk.

The State can Assume Control of Private
Property, Including Land, Without a Court
Order and Without a Safety Concern

Bill C-52 enables the State to shut down businesses and to control public property
for non-health reasons such as over a testing disagreement with the State or if the
State believes there is a contravention of the Act or Regulations. The
“contravention” does not have to be one that creates a health risk.

For greater clarity, these new powers permit the State to take control of
business and of private property for trivial violations of the Act or
Regulations even if those violations do not in any way pose a safety problem.
Currently the State has to apply to a Court for a warrant to gain control of
private property for alleged offences. The property owner is currently
protected as the Court will only issue a warrant on evidence under oath that
meets a legal test. Property seized under a warrant has to be promptly
reported to the Court. The Court then supervises the holding of the property


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to ensure it is returned if proper to do so. Bill C-52 removes these
fundamental safeguards. In effect, Bill C-52 moves us away from the rule of
law. The sections to review are:

32. (1) If an inspector believes on reasonable grounds that a consumer
product is a danger to human health or safety, they may order a person who
manufactures, imports or sells the product for commercial purposes to
recall it.
(2) The order shall be provided in the form of a written notice and must
include
(a) a statement of the reasons for the recall; and
(b) the time and manner in which the recall is to be carried out.
33. (1) An inspector may order a person who manufactures, imports,
advertises or sells a consumer product to take any measure referred to in
subsection (2) if
(a) that person does not comply with an order made under section 12
[section 12 concerns orders by the Minister for testing and/or the
production of documents] with respect to the product;
(b) the inspector has made an order under section 32 with respect to
the product;
(c) the inspector believes on reasonable grounds that the product is
the subject of a measure or recall undertaken voluntarily by the
manufacturer or importer; or
(d) the inspector believes on reasonable grounds that there is a
contravention of this Act or the regulations in relation to the
product.
(2) The measures include
(b) stopping the manufacturing, importation, packaging, storing,
advertising, selling, labelling, testing or transportation of the
consumer product or causing any of those activities to be
stopped; and
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(c) any measure that the inspector considers necessary to remedy a
non-compliance with this Act or the regulations, including
any measure that relates to the product that the inspector
considers necessary in order for the product to meet the
requirements of the regulations or to address or prevent a
danger to human health or safety that the product poses.
(3) The order shall be provided in the form of a written notice and must
include
(a) a statement of the reasons for the measure; and
(b) the time and manner in which the measure is to be carried out.
34. If a person does not comply with an order made under section 32 or 33
in the time specified, the inspector may, on their own initiative and at that
person’s expense, carry out the recall or measure required.
The Move Away from the “Significant Risk”
Test

As outlined immediately above, sections 32 to 34 appear to permit the State to
take control over businesses and private property. This can be to address a
“danger to human health or safety” or “to prevent a danger to human health or
safety”.

At first this sounds reasonable as the entire purpose is to protect safety. One
concern may be, however, that “danger” is not qualified. Many consumer
products inherently pose a danger, firearms and some sporting equipment being
obvious examples. As written the State can take control of businesses and private
property for any danger, however trivial. This raises the question as to whether
or not the State should be able to override private property rights for trivial safety
concerns.

Under the Hazardous Products Act, the State cannot make orders unless there is a
“significant risk, direct or indirect, to health or safety”. By requiring the risk to be
“significant”, the Hazardous Products Act protects property owners by ensuring


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that the State can only override their property rights when there is a “significant”
danger. In analysing Bill C-52 the question needs to be addressed as to: whether
the State should be allowed to take control of private property without there being
a significant risk, as is currently the case.

In considering whether Inspectors should have the power to control private
property without a “significant” risk, it should be kept in mind that Bill C-52
permits the Minister to make the same interim orders that can be made under the
Hazardous Products Act if there is a “significant” risk.

The Abolition of the Independent Review
Board

Under the Hazardous Products Act, State actions and orders affecting private
property can be appealed to a Board of Review (see section 8 and 9).

An appeal to the Board of Review under the Hazardous Products Act is like an
appeal to a Court. The Board of Review has the power to:

• compel witnesses to attend before the Board of Review;
• compel persons to produce documents;
• compel witnesses to testify under oath;
• hire experts to assist it to make a fair determination, and
• employ clerks and court reporters as necessary to ensure a proper hearing.
It is clear that under the Hazardous Products Act property owners are protected by
having an independent Board of Review which acts like an independent Court to
adjudicate between the State and the property owner. In this way the current
system upholds the rule of law.

Bill C-52 does not have the Board of Review procedural safeguard. There are
two types of orders under Bill C-52: inspector orders and Minister orders (see ss.
32, 33, and 39). The Ministerial orders are a repetition of the power to make


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orders found in the Hazardous Products Act. However, unlike the Hazardous
Products Act, there is no Board of Review.

Under Bill C-52 property owners can ask for a review of inspector’s orders.
However, that review is not conducted by an independent Board of Review with
Court powers to ensure a fair hearing. Rather, reviews are to be done by “review
officers”. Subsection 36(5) suggests that “review officers” will be inspectors other
than the inspector who made the original order. This is like asking one police
officer to review the order of another police officer in the same department.

The review officer does not have any of the powers the Board of Review has
under the Hazardous Products Act. They cannot compel witnesses to testify.
They cannot compel the production of documents. They cannot take evidence
under oath. They are not given the authority to hire experts.

There is also a very short time limitation in Bill C-52 which may prevent property
owners from fairly stating their case. Under the current Hazardous Products Act a
person has 60 days to ask for a review. They can ask for a review sooner.
However, if they need 60 days to get the necessary evidence together, they can
take that time. Under Bill C-52, property owners now only have a maximum of 7
days to put their case together or “any shorter period that may be specified in
the order” (see s. 36(2)). Seven days or less is a very short period of time for
which to gather and submit evidence for review of decisions that can destroy a
business and which can involve the seizure of private property.

In assessing the removal of the Board of Review safeguard that we currently
enjoy, the question needs to be asked as to: whether it is necessary to restrict
property owners to 7 days or less to present a case as to why their property should
not be seized or their businesses impacted?

Are the Powers to Take Control of Businesses
and to Seize Private Property for Alleged
Contraventions Legal?

Section 8 of the Canadian Charter of Rights and Freedoms gives us the right to be
free from unreasonable searches and seizures. These rights apply to both
individuals and to businesses.


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In determining whether State rights to seize property are “reasonable”, Courts
have drawn a distinction between administrative and criminal seizures.
Administrative seizures are seizures that are necessary for the State to check to see
if the rules are being followed. So for example, the taking of samples for testing is
generally considered to be a legitimate administrative seizure.

For administrative seizures the State is not taking control of business premises or
stock. Rather, small samples are taken to check for compliance. Courts generally
do not require search warrants for administrative seizures.

Criminal seizures are seizures made by the State when the State believes that an
offence has or is occurring. Criminal seizures usually involve the taking control of
private property for evidence and/or to prevent the continuation of an offence.
Criminal seizures are by nature intrusive.

Because criminal seizures encroach upon the property owner’s rights, Court have
found that to be “reasonable” criminal seizures can only occur if:

•
there is a search warrant or other prior authorization for the search and
seizure;
•
the warrant or other prior authorization must be given by an independent
person who is capable of acting judicially, and
•
the issuance of the warrant or other authorization is based on an objective
standard. Search warrants cannot be issued because an individual
subjectively feels one should be issued.
The leading case on this point is Hunter v. Southam, [1984] 2 S.C.R. 145.

Because Bill C-52 allows the State to take control of businesses and to seize
property when “the inspector believes on reasonable grounds that there is a
contravention of this Act or the regulations in relation to the product”, it probably
violates the Charter of Rights and Freedoms.

I suggest that Bill C-52 probably violates the Charter of Rights and Freedoms
because it authorizes a criminal seizure without a warrant issued by an
independent person based on an objective standard.


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It is important to note that an almost identical seizure power was declared
unconstitutional in the case of C.E. Jamieson & Co. (Dominion) v. Canada
(Attorney General), [1987] F.C.J. No. 826 (T.D.). This means that the
Government is currently trying to pass a law giving the State authority to seize
private property in a way that has been found to be unconstitutional. When
reviewing Bill C-52 the question should be asked as to: why we would support a
law which probably violates our right to be free from unreasonable search
and seizure?

An ancillary question would be: is it necessary to give up the current protection we
have whereby the State has to apply for a warrant prior to seizing our property. In
considering this question, it is important to note that it is not difficult for the State
to apply for warrants. Indeed, an inspector does not even have to go to Court.
They can fax or phone in under what is called the telewarrant process. This
process is designed to enable inspectors to act quickly, while at the same time
maintaining the rule of law.

The Creation of Administrative Offences

Bill C-52 creates two types of offences: criminal and administrative.

The new administrative offences create some interesting ramifications for property
owners.

Section 59 sets out that for administrative offences you cannot defend yourself by
saying you exercised due diligence or were honestly and reasonably mistaken.

Due diligence is defined in Black’s Law Dictionary as:

“such a measure of prudence, activity, or assiduity, as is properly to be
expected from, and ordinarily exercised by, a reasonable and prudent man
under the particularly circumstances”.

All of this means that you can be convicted of an administrative offence even if:

•
you were doing everything that a responsible business person would be
expected to do, and
•
you honestly believed there was no violation of the Acts or Regulations.
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Further, to convict you the State does not have to prove guilt on the usual standard
of guilt beyond a reasonable doubt. Rather the standard is the lower civil standard
of the balance of probabilities (see s. 60).

Aside from being convicted and penalized:

• when acting responsibly;
• without knowledge of any wrongdoing, and
• on the lower civil standard of a balance of probabilities,

where the administrative penalties get interesting is that they allow the State to
keep private property upon an administrative conviction. This is found at section
64 which provides:

64. Anything seized under this Act in relation to a violation is, at the
election of Her Majesty in right of Canada, immediately forfeited to Her
Majesty in right of Canada and may be disposed of, at the expense of its
owner or the person entitled to possess it at the time of its seizure, if
(a) the person is deemed by this Act to have committed the
violation; or
(b) the Minister, on the basis of a review under this Act, has
determined that the person has committed a violation.
Finally, it is the Minister who determines if you are guilty of an
administrative offence. Once you are served with a notice of violation you have
to request a review by the Minister to contest the charges (see s. 52). You do not
get to go to Court to have an impartial Judge determine whether or not you
are guilty or innocent. Rather, the Minister makes the decision. Remember it is
the Minister who gets to keep your property if he/she finds you guilty.

Under the administrative provisions you can be fined and have your property
permanently taken by the State without a Court finding you guilty. Indeed,
you have no right to a Court hearing.


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This is in stark contrast to the current Hazardous Products Act under which Courts
determine guilt or innocence and property issues.

Administrative violations relate to any violation of the Act or Regulations. There
does not have to be a safety risk.

In assessing these administrative provisions there should be dialogue concerning
whether the State should be allowed to fine property owners and keep property
without determinations of guilt by a Court as is currently required.

We are Responsible for the Costs of Seizures
and Detentions Regardless of Whether the
Seizures and Detentions were Justified

There is a long-standing principle in Canadian law that the State cannot take a
citizen’s property without compensation. It is also unprecedented for the State
to invoice citizens for the State’s cost in seizing our property. Bill C-52 moves
away from this tradition with the following provisions:

•
s. 21(2)(a) allows the State to take samples for testing “free of charge”;
•
s. 25 makes the property owner responsible for the State’s cost in
seizing, removing and storing the property owner’s property.
Alternately, the State can direct the property owner to move and store
the owner’s property at a place directed by an inspector at the owner’s
expense;
•
s. 27 makes the property owner responsible for the cost of destroying
property that is forfeited to the State under that section;
•
s. 29 makes the property owner responsible for the cost of destroying
seized property under s. 29;
•
s. 34 makes the property owner responsible for the State’s cost in
forcing a recall or taking other measures such as taking control of
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business premises. This is the case even if it turns out that the State was
wrong in forcing a recall or taking other measures, and

•
s. 64 makes the property owner responsible for the cost of destroying
property that is forfeited to the State under that section.
When one considers that there is no limit to the amount or value of property
seized, or for the length of time the State can hold the property, it is clear that the
costs to the property owner could be significant. By placing the cost on the
property owner, there is no incentive for the State to move quickly concerning
stored property, as there is no expense to the State.

Aside from the significant financial damage that consumers or businesses face if
their property is seized and detained, these changes raise some interesting
philosophical issues. Under the Hazardous Products Act the State does not
currently have the power to charge citizens for the costs of seizing, storing and
destroying private property. Are we currently facing such serious safety issues
that it is necessary for us to give up the fundamental right we have to
compensation if the State takes our property? I look forward to comments on this
issue. I also look forward to comments on all of the other issues raised in this
Discussion Paper.


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