Bill C-36 (Historical)

Canada Consumer Product Safety Act

An Act respecting the safety of consumer products

This enactment modernizes the regulatory regime for consumer products in Canada. It creates prohibitions with respect to the manufacturing, importing, selling, advertising, packaging and labelling of consumer products, including those that are a danger to human health or safety. In addition, it establishes certain measures that will make it easier to identify whether a consumer product is a danger to human health or safety and, if so, to more effectively prevent or address the danger. It also creates application and enforcement mechanisms. This enactment also makes consequential amendments to the Hazardous Products Act.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

Thank you very much for coming before the committee today. I'm going to ask a question probably addressing some of the concerns that my colleagues Mr. Dosanjh and Dr. Carrie have addressed in regard to the amendments and the whole issue surrounding privacy.

In consultation and discussion with some of the stakeholders—and there's a long history with the bill from Bill C-6 to Bill C-36—you guys have incorporated all of the amendments that the House had suggested. The amendments that were put forward by the Senate committee, which were defeated, have also been incorporated. The amendments by both of the senators that were passed by them at their particular standing committee have not been incorporated.

Can you give light to the committee, from what you know, on why those particular amendments by both Senator Furey and Senator Banks were not incorporated?

Then in a response to Mr. Dosanjh, Diane mentioned that they could be considered. Perhaps you could shed light for the committee and come at it from a different perspective.

[Diane Labelle]

I will address the first part of your question with respect to the Privacy Act and why, in our view, it's not necessary to repeat the provisions in Bill C-36.

The Privacy Act is a quasi-constitutional document. In other words, it prevails over any other statute unless there are express provisions in the legislation provided for by Parliament that set aside the Privacy Act. This is not what clause 15 does. Clause 15 in actuality is there to respect some of the requirements under the Privacy Act. It provides, under section 8 of the Privacy Act, that if there is going to be disclosure, it has to be under lawful authority, and that's what clause 15 does. It's also in a very constrained manner. It's only with respect to information that needs to be shared with others exercising a health and safety regulatory function, such as that of Health Canada.

[Glenn Thibeault, NDP, Sudbury, ON]

Thank you, Madam Chair.

In its study of Bill C-36 in May 2009, this committee heard from Options consommateurs that there is a need for a national recall register, maybe something like the inclusion of a public complaints or a reporting database that can be updated. I think a good example of that is the Canadian Food Inspection Agency, which has its food recall list up on the Internet. Is that something you would be willing to consider? Have you looked at it? Is there anything like that in this bill?

[Robert Ianiro]

There are a couple of threads to that question, first and foremost with regard to the complementarity between health and safety in Bill C-36 and environmental legislation. We're dealing with health and safety relating to consumer products. CEPA really is the statute in place to deal with environmental concerns. They do have the ability to deal with both environmental and health issues if a substance is deemed to be toxic under paragraph 64(c) of CEPA. The reason we are making reference in the preamble and in other places in the bill, such as clause 16, is for the simple fact that through our work and through the work of other departments, you will often come across information or situations that should or could lead to actions under other statutes.

For example, Ms. Mentzelopoulos described the bisphenol A prohibition that was put under the Hazardous Products Act and will be carried over to Bill C-36. One of the issues that came up through our analysis was whether there were any concerns to the environment and potential release of bisphenol A into groundwater or through the effluent out of manufacturing. Just this past weekend, Environment Canada announced some action in that area. So that's a concrete example of why we're making reference to the environment and giving ourselves a certain degree of flexibility, so that there could be sharing of that type of information to not only better protect the health and safety of Canadians but the environment, upon which, of course, our very life depends.

[Nicolas Dufour, Bloc, Repentigny, QC]

Once again, according to Bill C-36, it will of course be up to the minister to respond in the event of such a recall.

[Nicolas Dufour, Bloc, Repentigny, QC]

Thank you very much, Madam Chair.

I would like to thank the witnesses for appearing today. I also thank Ms. Davidson for her question. The Bloc Québécois has the same concerns regarding the number of inspectors. Since she is a member of the government party, I would encourage her to put some pressure on her government to ensure that we have a sufficient number of inspectors to properly implement Bill C-36.

I would have a few brief questions. First, the preamble of the bill contains what appears to be a definition of the precautionary principle. It read as follows:

[...] whereas the Parliament of Canada recognizes that a lack of full scientific certainty is not to be used as a reason for postponing measures that prevent adverse effects on human health if those effects could be serious or irreversible;

In your view, what was the government's intention behind that statement?

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Madam Chair.

Thank you very much for being here with us this morning.

I know this is a bill that everybody around the table is anxious to see move forward.

In your opening remarks you commented that there are new powers in Bill C-36 requiring manufacturers and importers, upon request by the minister, to provide safety test and study results for their products.

Now that the minister has discretionary powers and can ask for safety testing and so on, what would trigger that request, to begin with, and then how would the process work after it has been triggered? What will the minister make her decision on to determine whether or not there is a danger?

[Diane Labelle]

The procedural safeguards that are implied in that question are dealt with in the legislation and in the legal system.

Officials, including the Minister of Health, who exercise powers granted to them in a statute enacted by Parliament--and in this case it would be Bill C-36--are compelled by law to act reasonably. That is to say, they must make decisions with impartiality and fairness. Fairness requires them to act reasonably and to afford procedural protection to the person who is affected by their decision. Officials, including the minister, cannot act in an arbitrary manner. And as I've mentioned, under Bill C-36 this protection is afforded to a person requesting a review of an order.

I would like to add that the legal requirements--the principles of administrative law--do not require that every appeal or review mechanism be structured like courts or quasi-judicial tribunals in order to ensure procedural fairness. And while the minister designates the review officer, once the officer is designated he or she makes the decision and cannot be dictated to, although they can take into account guidelines and departmental policies in making a decision.

[Robert Ianiro]

In regard to the one item relating to tobacco and tobacco products that is covered in the statute, and this is in subclause 4(2), which discusses the ignition propensity, I just wanted you to perhaps clarify that.

The Tobacco Act covers items relating to health, and it was in fact the Standing Joint Committee for the Scrutiny of Regulations that has requested that the department look at and deal with the safety aspects relating to tobacco and tobacco products. So when I referred to safety, it would include things like ignition propensity, which are often referred to as fire-safe cigarettes. This is deemed to be a safety issue and not a health issue and therefore outside the scope of the act.

The standing joint committee has requested that those regulations currently enacted under the Tobacco Act be moved under the Hazardous Products Act. In fact we are just carrying over that request to Bill C-36 so that we will have the ability to deal with the one aspect in response to the standing joint committee and to continue to have legally binding requirements for fire-safe cigarettes in Canada.

[Robert Ianiro]

The only other point I'd like to add is that the orders that could be issued for corrective action could also include specific instructions on the types of documentation and information that needs to be provided to Health Canada to do exactly what you're suggesting, which is the effectiveness of the recall. So under Bill C-36 we would have the ability to do that and we would be leveraging information that Mrs. Mentzelopoulos discussed under the document retention provision.

[Athana Mentzelopoulos]

A lot of how we improve the recovery rate will come from effective procedures. But a really important provision in Bill C-36 is through document retention. So should the bill pass, industry is required to retain one level up and one level down the supply chain of documents. That is specifically designed to facilitate the recovery of recalled items, to know where they have been distributed, where they have come from, and to be able to track them down. That's in addition to the procedural approach of recall effectiveness to follow up in the marketplace to ensure that materials and products have been removed.

Is there something you want to add, Robert?

[Glenn Thibeault, NDP, Sudbury, ON]

So will Bill C-36 then improve the recovery rate? I know we're talking about only 10% to 15% of recalled products making it in right now. Especially if we want to get all of this cadmium off the market, will this look at ways of improving the recovery rate?

[Diane Labelle]

Thank you, Madam Chair.

Thank you, Mr. Thibeault, for the question.

The issue that arose particularly in the Senate centred around the use of inspectors' powers. At the time the explanation and the letter that was tabled with the chair of the committee of the Senate that was hearing the bill confirmed that the Minister of Justice scrutinizes every bill for consistency with the charter, and no such inconsistencies were reported.

The concern appears to be the fact that inspectors, having reasonable grounds to believe that a regulated activity is taking place in a building or a conveyance, may enter to verify compliance or prevent non-compliance solely for the purpose of administering the act, and it seems that the concern that was expressed was why weren't inspectors required to have reasonable grounds to believe that an offence was created and that a judicial warrant was necessary. And in fact the Supreme Court of Canada has recognized the necessity for administrative regimes to verify compliance. That is the type of regime that is set up in Bill C-36, and it goes only to the predominant purpose of ensuring compliance with the statutes and the regulations.

The inspector powers in no way engage an individual's penal responsibility. If it were a matter for a criminal investigation, then yes, either an inspector or a law officer would require a judicial warrant from the court under the criminal court, but that is not what we're talking about in Bill C-36.

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

But the version we have before us, i.e., Bill C-36, in no way affects natural health products. Is that correct?

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

Very well, I thank you for those points of clarification.

I am sure you know that when the government tabled Bill C-52, which is the previous version of Bill C-36, a number of consumers were concerned that the law could apply to natural health products. An addition, clarification or change was brought. In subsection 4(3), which deals with the application, the following is clearly stated:

4.(3) For greater certainty, this act does not apply to natural health products as defined in subsection 1(1) of the Natural Health Products Regulations made under the Food and Drugs Act.

Can you tell me why, in this case, people today are still concerned by the fact that Bill C-36, the latest version of the act respecting the safety of consumer products, might affect natural health products?