Agriculture Committee on Nov. 6th, 2012

[Randy Hoback, Conservative, Prince Albert, SK]

Thank you, Chair.

Through the chair to Mr. Allen, the speech by Mr. Allen is actually a very good speech. There's no question we understand what he's trying to do. He's attempting to make sure we have a good piece of legislation and he wants to give it as much strength as possible. I don't question that at all. I just sometimes think that in his enthusiasm to do that, he may actually create more problems and more unintended consequences than what he understands.

An employee right now has a lot of options if he sees a situation on the plant floor that he can't deal with. He can go to his shop steward. He can go to his union boss and complain. He can go anonymously to the CFIA and complain that way. I assume that would be investigated.

I look at the fact that whistle-blowing is embedded in the Criminal Code, so it's there. There is also a thing called a union, which is there. That's why unions were created, to protect a fellow employee. If there's a situation where the union felt the employee was being treated wrongly, it has lots of options too.

I think we're trying to put something in here that maybe is part of the function of the union or of the Criminal Code. If the Criminal Code needs to be strengthened or changed, then let's deal with that in the Criminal Code legislation. I don't think this is the appropriate legislation to deal with that.

Chair, I guess I'd just leave it at that. I see no reason to add this to the act at this point in time.

(Amendment negatived [See Minutes of Proceedings])

(Clauses 20 to 23 inclusive agreed to)

(On clause 24—Authority to enter a place)

[The Chair, Conservative, Merv Tweed]

It's NDP-6.

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair.

Again, this is simply for clarification, where we are suggesting that in clause 24 we add the words:

this Act, without prior notice, enter a place, including a conveyance,

The rationale, obviously, is that it doesn't actually say that—at least, in our view, it doesn't say that. Inspectors will understand that they still have that piece, although they will get it by directive, I'm sure. We just simply want it to say that so that folks who actually read the act, who are on the other side of the threshold, can look at an inspector who has a directive and understand his or her responsibilities. They enter and someone says, “Well, I read the act and it doesn't say you can enter without giving me notice.” It's really not about the inspector understanding what their powers are per se; it's about the other side who may be accepting it.

As a further clarification, Chair, just so the government can find the duplicity in the two acts, check out the Environmental Protection Act. It has whistle-blower protection as well.

So there are two acts where you've done it twice. You should probably not worry so much about the Criminal Code, but maybe look to those acts where you have that. When we find another one, we'll help you with that one, too.

That's really the extent of this piece, Chair.

[The Chair, Conservative, Merv Tweed]

Are there any comments?

Seeing none, I'll call the question.

(Amendment negatived)

(Clause 24 agreed to)

(Clauses 25 to 27 inclusive agreed to)

This brings us to NDP-7, creating a new clause 27.1.

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair.

My understanding of the old act is that the inspectors had certain powers. What we're looking for in this particular case, under new clause, 27.1, is that:

27.1 A peace officer must provide such assistance as an inspector may request to enable the inspector to exercise their powers or perform their duties or functions under this Act.

It's actually now presently found under subsection 23(3) of the Plant Protection Act. What we're looking for is to include it in this piece so that if indeed an inspector feels they can't get something done and would need the assistance of a peace officer, the act explicitly says it and they can then request the assistance of a peace officer. The peace officer would then know, under their jurisdiction, that indeed under this act that peace officer can act accordingly and would come forward.

It's just that simple check.

[The Chair, Conservative, Merv Tweed]

Mr. Valeriote.

[Frank Valeriote, Liberal, Guelph, ON]

Could I ask the witnesses if the issue addressed in new clause 27.1, permitting a peace officer to provide assistance that an inspector may request and exercise powers that are required, is already provided for elsewhere in this legislation or in other legislation?

[The Chair, Conservative, Merv Tweed]

Ms. Barnes.

[Colleen Barnes]

Mr. Chair, the legislation does enable the inspectors to reach out to peace officers when they need to. There's nothing here that precludes that.

The proposed amendment just says they “must provide”. So the proposed wording of the amendment doesn't get you the outcome because it's not likely that a peace officer, if having competing priorities, would necessarily go with the food inspector when asked.

[Frank Valeriote, Liberal, Guelph, ON]

Could you tell me where in the legislation that is provided for?

[Julie Adair]

In subclause 24.(4), it states, “The inspector may be accompanied”.

[Frank Valeriote, Liberal, Guelph, ON]

It's on page 10. Okay.

[The Chair, Conservative, Merv Tweed]

Is there any further comment?

(Amendment negatived)

(Clauses 28 to 39 inclusive agreed to)

This moves us to a new clause. NDP-8 is creating a new clause 39.1.

Mr. Allen.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair.

Our new clause 39.1 would say that:

Any person who contravenes a provision of this act, of the Food and Drugs Act as it relates to food, or [a provision] of the regulations made under either of those Acts, and who, in doing so, knowingly or recklessly causes a risk of injury to human health, is liable, in addition to any fine

—which is already in the legislation—

to treble damages, punitive damages and, in the discretion of the court, damages in excess of any profit.

It relates primarily to this idea of risky behaviours; it's if someone or a company were to engage in risky behaviours where they took the view of doing something of such a nature that they would end up at this stage, go through the courts, be fined, and hit the $5 million level of this thing. It's a very egregious act, not a minor hiccup where something went amiss or went wrong. This idea would move along in a way such that...the outside litigation, if you will, would be allowed such that this would actually happen.

It's typical legal stuff, right? I mean, ordinary folks don't see what this is about, in the sense of saying, “Well, how does this protect food safety?” Really, we're talking about the court system; earlier, we were talking about the court system in a different way. This is about allowing those penalties to be greater if indeed an act were such that you could see that someone actually went about behaviours knowingly, behaviours that not only were contravening the act, but really were, in a very unsafe way, premeditated. I hate to use that word, because maybe it wasn't that egregious, but certainly it was such that they should have knowingly not behaved in that way and should have modified their behaviour.

This is really about ensuring that there are penalties beyond when we move into things like awards, beyond this idea.... It really is about the upper end of behaviour. Some of the words to describe it are things like “fraudulent” and “reckless corporate behaviour”. This really is an extraordinary measure. It's not something that would be utilized...hopefully never, actually. But clearly there are times when behaviour is such that it needs to be penalized in a particular way.

This isn't food tampering per se. This isn't about putting pins in something or tampering with a bottle on a shelf and that sort of stuff. This is really more of a corporate piece, where a decision was taken at that type of level, and not an act by an individual, necessarily, where the legislation speaks to tampering, where you have that.

Let me leave it at that, Chair.

[The Chair, Conservative, Merv Tweed]

Mr. Lemieux.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

This is on NDP-8?

[The Chair, Conservative, Merv Tweed]

Yes, it is.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Okay.

I'd like to raise a point of order. I'd like to get a ruling from you, Chair, on whether this is admissible or not. I feel that this is outside the scope of Bill S-11. The House has passed Bill S-11 at second reading. It is stated that Bill S-11 consolidates four food-related statutes: the Canada Agricultural Products Act; the Fish Inspection Act; the Meat Inspection Act; and the food-related provisions in the Consumer Packaging and Labelling Act.

There's no mention of the Food and Drugs Act. That's why I feel that this particular amendment would fall outside of what we're accomplishing today.

[The Chair, Conservative, Merv Tweed]

I thank my colleague for the advice.

It's debatable on each side. I've asked for a confirmation. It is within the scope, because in the comments it does say that it relates to food, and the opening of the bill implies that as well. I'm going to rule that it is in order.

I will move to Mr. Valeriote.

[Frank Valeriote, Liberal, Guelph, ON]

Thank you, Mr. Chair.

I have a question for Mr. Allen, just for clarity. When he speaks in new clause 39.1 of “is liable, in addition to any fine, to treble damages, punitive damages and, in the discretion of the court, damages in excess of any profit”, are those sums payable to the crown or are they payable to a putative complainant who might come forward after the case?

[Malcolm Allen, NDP, Welland, ON]

It could apply to both cases. It would depend if someone brought forward a class action lawsuit or whether the crown took them on. It could happen in two cases.

I'm not a lawyer, so this is an attempt to make legislation and not to define the law. Clearly, there are opportunities to do certain things within the law outside the scope of the act. It's about ensuring that folks have those opportunities. Ultimately, that's what we want to see transpire. Private prosecutors would have the opportunity, as well as private parties, such as in a class action lawsuit. In my view, the attempt is to apply it to both.

[The Chair, Conservative, Merv Tweed]

Seeing no further comment I'll call the question.

(Amendment negatived)

(Clauses 40 to 46 inclusive agreed to)

(On clause 47—Disclosure—risk or recall)

It is Liberal amendment 2.

Mr. Valeriote.

[Frank Valeriote, Liberal, Guelph, ON]

Thank you, Mr. Chair.

If you look at the current clause 47, it says:

The Minister may disclose to a person or government, without the consent of the person to whom the information relates, any personal information or confidential business information if the Minister considers that the disclosure is necessary

And then it goes on to prescribe circumstances in which they think it may be necessary to apply this section.

It goes on to define what government means, but, interestingly, there's nothing in the legislation with respect to the confidentiality and the maintenance of that confidentiality following the disclosure.

We will all recall that Ms. Karen Proud was here on behalf of the Retail Council of Canada, representing I can't recall how many dozens of members. Other witnesses before the committee also expressed a vigorous concern about (a) the person or people to whom the information would be disclosed, and (b) the need to maintain a certain degree of confidence.

No one is suggesting that the minister or anyone from the CFIA or anyone investigating a violation should be limited in the vigour with which they might pursue their investigation. Who knows where evidence may be found in respect of a violation? To the common person, it appears to be on the floor or dripping from the ceilings, as in the case of XL, but either a failure to act or indeed some act that was undertaken by the prospective offender could be disclosed in written material.

When going through all this material, depending on who's going through it and what's disclosed, they might find information that's completely irrelevant to their investigation and yet could nevertheless be disclosed: confidential information, information about a particular business practice that might be a secret that they would want kept from their competitors. That was understood by all of us, and any one of us in business understands the merit of the concern.

The amendment I have proposed in subclause 47(1), and I'll only read the first part because I think it makes the point as to the intent of the balance of the amendment, is that:

The Minister may disclose any personal information or confidential business information to a person or government, without the consent of the person to whom the information relates and without notifying that person,

—provided, and this is where I think the operative words are—

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 functions related to the protection of human health or safety or the environment and if the Minister considers that

to be the case.

Mr. Chair, I'm not going to spend a lot of time. I think it's self-explanatory. We're merely trying to address the concerns of stakeholders who came before this committee, who didn't have the benefit, I don't think, of asking you questions at committee because you weren't here, but certainly compelled a number of us to be concerned and to bring forward this amendment so they would be protected should confidential information be disclosed.

[The Chair, Conservative, Merv Tweed]

Thank you.

Are there any comments?

Seeing none I'll call the question.

Mr. Valeriote.

[Frank Valeriote, Liberal, Guelph, ON]

Mr. Chair, it's freakish almost how we have a conversation about an issue that was raised that I think is very important, and, maybe I'm wrong, an issue that even members of the government asked questions about. I know some of you over there are in business.

Is this of so little concern to you that you don't even have a question about this, either of me or of the witnesses?