Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 9 - Evidence - November 4, 2009
OTTAWA, Wednesday, November 4, 2009
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-6, An Act respecting the safety of consumer products, met this day at 4:02 p.m. to give consideration to the bill.
Senator Art Eggleton (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology. We continue this meeting with Bill C-6, an act respecting the safety of consumer products. Our witness this evening is Carol Osmond, Vice-President, Policy, from the Canadian Association of Importers and Exporters. She is a lawyer with 19 years experience in customs and international trade law.
After we finish hearing her and going through the dialogue and questions, I want to outline for the committee how I see us proceeding to complete our examination of Bill C-6.
The floor is yours.
Carol Osmond, Vice-President, Policy, Canadian Association of Importers and Exporters: Thank you, Mr. Chair, as well as the other members of this committee for this opportunity to appear before you today with respect to Bill C-6, the proposed Canada consumer product safety act.
I.E. Canada, or the Canadian Association of Importers and Exporters, has been a leading voice of the trade community since 1932. We serve small, medium and large enterprises across Canada. Our membership comprises manufacturers, importers, exporters, wholesalers, distributers and retailers from a broad range of sectors, including food and consumer products.
Our association is also a member of the Canadian Consumer Product Safety Coalition, a coalition of 12 national business associations that represent companies engaged in the manufacture, importation and sale of consumer products. Mr. Warrington Ellacott, the vice-chair of the Canadian Appliance Manufacturers Association, Electro- Federation Canada, testified on behalf of the coalition before this committee last week.
As pointed out in the submission that I.E. Canada made to the House of Commons Standing Committee on Health — a copy of which has been provided to you as members of this committee — the majority of consumer products sold in the Canadian marketplace today are imported. According to statistics obtained from Industry Canada, imports represent 55 per cent of the total Canadian market for consumer products, excluding products such as food, beverages and tobacco. In some product categories, the percentage is much higher. For example, in the case of clothing, the percentage of the market supplied by imports is 72 per cent; footwear, 87 per cent; household appliances, 83 per cent; jewellery and silverware, 72 per cent; and dolls, toys and games, 96 per cent.
As manufacturer, importers, wholesalers and retailers of consumer products, the proposed legislation will have a direct impact on the members of our association. We have been following the legislation closely and have been actively engaged in consultations with Health Canada.
At the outset, I would like to emphasize that I.E. Canada and its members support the underlying objectives of Bill C-6, to protect the health and safety of Canadian consumers from the dangers that may be posed by consumer products. As an association, we promote good importing practices on the part of our members. For example, we have worked with the Canadian Food Inspection Agency and other national trade associations on initiatives to promote good importing practices for food.
We are also actively engaged in consultations with and are generally supportive of initiatives of the Canada Border Services Agency, CBSA, such as the Advance Commercial Information, ACI, program and the OGD — other government departments — Single Window Interface initiative. These programs would require the submission of electronic information to CBSA and other government departments, such as Health Canada, in advance of the importation of goods so that the information can be risk-assessed and threats identified before the goods enter Canada.
I.E. Canada is also a founding member of the Canadian Anti-Counterfeiting Network, CACN. CACN is a coalition of companies, firms and associations that have joined together in the fight against product counterfeiting and copyright piracy in Canada. CACN has been advocating for intellectual-property crime legislation that would, among other things, give customs and law enforcement officers increased powers to deal with counterfeit and pirated products, which frequently pose a risk to consumer health and safety.
While our association is generally supportive of the proposed legislation, we do have some specific concerns with Bill C-6. I would like to highlight some of our key concerns and would be pleased to elaborate on any of these, if you wish, during the question and answer period.
The first concern relates to mandatory incident reporting under clause 14. I know you have already heard a great deal about this issue here before this committee. In our view, the time frames in clause 14 are unrealistic, given the manner in which such incidents are investigated and evaluated by companies. As defined in the proposed act, an "incident" would include any complaint made by a consumer about a product that raises a health or safety concern. If all such complaints had to be reported to the minister, the burden on Health Canada, in our view, would be overwhelming.
The concerns raised with respect to the reporting of incidents can be addressed either by amending the definition of "incident" or by amending clauses 14(2) and 14(3) so that it is clear that the reporting time frame is only triggered once an investigation and risk assessment have been completed and it has been determined that the health or safety concern is valid. For those companies that may not have the capacity to carry out the investigation and risk assessment of consumer complaints, criteria should be developed through the regulatory process to require such companies to report incidents within the specified time frames.
Second, clause 30 gives inspectors broad authority to issue mandatory recall orders. In our view, only the minister should have the authority to issue mandatory recall orders. This would be consistent with clause 12 of the bill, which grants the authority to the minister to order tests, studies and to compile information, and with section 19 of the Canadian Food Inspection Agency Act, which gives the authority to the Minister of Agriculture to order mandatory recalls. Moreover, a company should be given the opportunity to voluntarily recall a product and be notified and given an opportunity to respond before a mandatory recall order is issued.
The disclosure of confidential business information is addressed in clauses 16 and 17 of the bill, and clause 17(1) was added before the bill was passed by the House of Commons to make it clear that the minister may disclose information about a danger to human health or safety that a consumer product poses. We appreciate the need for Health Canada to share information quickly with other governments or consumers in the event of an imminent threat to consumer health or safety.
However, a company should be notified and given the opportunity to review the information to be disclosed to ensure, first, that it is accurate and complete so as not to confuse or mislead consumers, and is provided in such a way as to limit the potential disruption or adverse impact on the company's broader commercial interests. Further, the information provided should only be that information that is necessary to protect the health and safety of consumers.
The proposed legislation also contains several sections that give broad powers to the minister or inspectors to issue orders with limited procedural safeguards. Clause 12 authorizes the minister to order manufacturers and importers to conduct tests or studies on consumer products and to compile information that the minister considers necessary to verify compliance or prevent non-compliance with the act or regulations.
Clauses 20 and 31 give powers to inspectors to order a company to stop the manufacture, importation or sale of a product. Given the broad scope of these powers and the potential for serious disruption to a company's business, procedural safeguards are required. These would include giving companies advance notification and an opportunity to respond before such orders are issued.
Finally, I would like to mention import requirements. Pursuant to clause13(4) of the bill, an importer who imports a consumer product for commercial purposes may be required to provide documents before or at the time the goods are imported. Since the nature of the documents is not specified and is left to be prescribed by regulation, concerns arise with respect to the broad scope of the provision. It also raises the concern whether imported goods might be treated differently than goods manufactured in Canada and whether requirements imposed on imported goods, to which domestically produced goods are not subject, could potentially violate Canada's obligations under international trade agreements.
Depending on the nature of the product and the purpose for which documents are being required, Health Canada may also not need to obtain this information prior to importation. If Health Canada does require documentation on or prior to importation, such a requirement should be implemented in a manner that does not delay or disrupt the importation process and that allows for the electronic transmission of such documents consistent with the OGD Single Window Interface that I mentioned earlier.
In this age of globalization, the design, production, marketing, distribution and support to the final consumer of products can be spread amongst countries within a geographic region or across geographic regions. While this economic reality makes it more challenging to monitor and regulate consumer product safety, it is important to bear in mind that it has also permitted consumers to benefit from a more diverse array of quality products at lower prices. Moreover, reputable businesses, such as those represented by our association and the Canadian Consumer Product Safety Coalition, have a vested interest in ensuring that the products they manufacture, import and sell are safe for consumers in order to protect their reputation, profitability and long-term viability.
Implementing measures that do not take into consideration business realities could have the unintended consequence of limiting the availability of consumer products to Canadian consumers because foreign suppliers will simply elect not to sell their products into the Canadian market. In such cases, producing the product within Canada will not, in all likelihood, be an option.
Finally, legislation and regulations adopted in Canada must be placed in North American and global contexts. To the extent possible, we should be aligning our requirements with those of other countries, including the notification and reporting of incidents, recalls and other corrective actions. We must also be wary of protectionist measures in the guise of consumer product safety requirements being implemented in this country and by our trading partners, as this would impact not only Canadian manufacturers and importers selling into the Canadian market but also the ability of Canadian manufacturers and exporters to sell into foreign markets.
I am available for your questions.
The Chair: Thank you for your presentation. Although we do have the presentation, we do not have it in front of us. Once it is translated into both official languages, it will be distributed, and that will include the recommendations Ms. Osmond has outlined.
I should note, in addition to our regular committee members, Senator Day is here once again diligently following all of this proceeding. He is the official critic, and Senator Martin is the official sponsor. We have them both at the table. Also Senator Banks joins us again. Today, he is more officially in the capacity of replacing Senator Munson. Welcome to all of you.
In the latter part of your comments, you talked about, in generalities, the need to be consistent with what is happening internationally. When Health Canada came in, they said that these changes are very consistent with is happening in at least the United States and the European Union, two of our major trading partners. Can you comment on that, as to whether you feel it is or is not?
Ms. Osmond: With respect to the provisions dealing with mandatory incident reporting and the authority to issue mandatory recalls, I do believe that is consistent. Where there is inconsistency is in what triggers an incident report. In testimony that was made last week, there was reference to the U.S. requirement that states that you are required to report an incident within 24 hours. The difference in the United States, however, is that that requirement to report is not triggered until the company has had the opportunity to do an investigation and determine the cause of the incident and that it did relate to a serious problem with a product or some type of defect with a product. That is one of our key concerns with the proposed legislation, as to what triggers that incident report.
Actually, I am not sure as to who can issue a mandatory recall in the U.S. That is one of the concerns that we have.
In addition, the coalition had recommended including a general provision in the proposed legislation that would be more prospective, that in administering the legislation and implementing future regulations, we be mindful of requirements internationally and, to the extent possible, harmonize our requirements with foreign jurisdictions as well as with the provinces within Canada.
The Chair: I thought I heard you say that most of the products that would be governed by Bill C-6 are imported. I wonder how this will apply to imported products versus domestic products; will the safety standards be the same? Is there a disadvantage that we are giving to domestic products over imported products or vice versa?
Ms. Osmond: To the extent that certain mandatory standards apply to products, then obviously imported products, in order to be sold in Canada, would have to comply with those standards. Certain product standards can be voluntary; they are not necessarily required. All products, whether imported or manufactured locally, would be subject to the same types of prohibitions and requirements under the proposed act. There is no discrimination of one versus the other.
We do have a concern, as I alluded to in my remarks, that the bill contains provisions that talk about imported products being subject to a requirement to provide documentation prior to importation. Health Canada officials have assured us that they are not intending anything terribly onerous in that regard. However, to this point, we do not know what could be required because it just refers to "prescribed documents." Of course, we will have to wait for the regulations or guidelines from Health Canada before we know specifically what they are looking for.
The Chair: With respect to what you just said about the intent of Health Canada, we have had much discussion around here about that intent. Some people are concerned with how they might administer this; other people say that they have not traditionally done that and there is no ill intent here. For example, they have said that no new onerous requirements for industry will be introduced. That is their intent. Nevertheless, you have outlined clause 14 as an example of where you think the mandatory reporting could be overwhelming.
Is it good enough, while looking at this law, to consider what the intent of Health Canada is versus the letter of the law? You are a lawyer; what do you say about that?
Ms. Osmond: I worked in Mexico for five years. It was not uncommon for a Canadian businessperson to come down to Mexico where they have met a new Mexican business partner. It was not unlike a marriage. In some cases, they feel as though they do not want to worry too much about the contract because he or she trusts this person and does not want to offend them by the language that might be include in the contract.
In my view, your contract is your insurance policy. You go into a business relationship anticipating the best, which is why you are entering into an agreement. You enter into a contract because you want to anticipate that things can go wrong, and you want to set out up front that if things go wrong, this is how they will be resolved.
To some extent, the same principle applies to legislation. We have no doubt of the good intentions of the officials in Health Canada who have been involved in drafting the legislation and have been consulting with industry. We have the utmost respect for them. They are not necessarily the ones who will be involved in the actual application of the law. For example, you have an inspector who will have the power to issue a mandatory recall order. That leaves a great deal of power in the hands of an inspector, who is one of the furthest down on the totem pole in the organization.
Also, we have had the Hazardous Products Act for 40 years. We could have this proposed legislation for decades. We do have to be careful. There is a place for policy, administrative documents and regulations, but we have to be careful that the proposed legislation is not overly broad and that we do not leave too much to the discretion of officials.
Senator Keon: I do not think your testimony has raised anything that we have not heard before.
Ms. Osmond: I am sure I have not. I have read the testimony.
Senator Keon: You have made it more interesting. I will bring you back to the mandatory reporting. You have suggested amendments to clauses 14(2) and 14(3). Specifically, how would you amend those?
Ms. Osmond: When Warrington Ellacott was here last week, he presented a proposed amendment to clause 14(2). We are trying to get at that that reporting requirement would not be triggered until the company has had an opportunity to investigate to ensure that this is a serious incident that we are dealing with and that there is a product hazard or defect that threatens the health or safety of a consumer. Mr. Geralde gave a great example in his testimony of a toaster. That is not the type of incident that you want reported to Health Canada, but it takes some time to do that investigation. Our concern is that the way the proposed legislation is currently drafted, a company would have to report that incident with the toaster.
Senator Keon: Of course, again you refer to the fact that the order must come from the minister himself or herself, which is currently not in the bill.
Ms. Osmond: We think that authority to issue a mandatory recall order should rest with the minister. I am not an expert in this area, but when I talk to people who have been involved in dealing with recalls, including with food products, a recall of a product is usually the corrective action of last resort. It is not a decision that is taken lightly. It is a very serious remedy. Generally, it is not one person who makes the decision as to whether or not a recall is necessary. It is a collaborative effort of people who have informed minds, who have looked at the evidence and the facts and have determined that this is the best action to be taken. It is what we require for food, so I do not know why we would basically take a diametrically opposed position when it comes to consumer product safety.
Senator Keon: I wanted to talk about the Canadian trade agreements, but I will leave that for later because other people want to ask you questions.
What about the regulations? Could we not cover your concerns in the regulations without amending the bill?
Ms. Osmond: Sorry, to which specific concern do you refer?
Senator Keon: When the regulations come, you have concerns about mandatory reporting, the time frames. Of course, if only the minister can do it, I guess it must go into the bill. With respect to the other concerns, can that not be covered under the regulations?
Ms. Osmond: That comes down to the point that was made earlier. Certainly some issues and details are better left to the regulations, and in some cases not even the regulations; they would be in policy documents. When you are dealing with fundamental issues, it is better to address those issues in the legislation itself. As you point out, if the authority is given to an inspector under the law, I do not think that can be changed in a regulation. This very fundamental issue of what triggers an incident report is something that is more appropriately addressed in the proposed legislation in the bill.
Senator Keon: Thank you very much. I will get back to you on the other question later.
Senator Banks: Ms. Osmond, you are a lawyer and I am not, so I will bore you and ask an opinion.
Ms. Osmond: Are you asking for my personal opinion or my legal opinion?
Senator Banks: I would like your opinion with respect to the organization that you represent. You said earlier that you represent big organizations and small ones as well. I think you have said, as others have, that some of these issues can be handled very nicely by big organizations that have the means of doing that, but the particular hardships might be worked on small organizations and companies.
Looking at the present bill, starting at clause 47, where it says that the penalties will come later, where the minister will develop regulations later, my colleagues will tell you that I am a broken record when it comes to that. I agree with your contention that some details ought to be addressed in legislation rather than later on by regulation. We can get to that later.
I want to follow through a sequence. Beginning in clause 48, the minister can name a person who is empowered and authorized to issue a notice of violation. In clause 49, that person issues a notice of violation. In clause 50, whatever happens, you are deemed to have committed the violation. In clause 52, you can request a review by the minister. We will come back to that in a minute. In clause 53, if you follow that process, whatever happens, you are deemed to have committed the violation. In clause 51, you are deemed to have committed the violation, once the notice has been issued. In clause 52, you are deemed to have committed the violation. In clause 53, if the minister reviews it, the minister's man or woman has issued the notice of violation, and then the minister will determine whether the person to whom the notice was issued has committed the violation. Clauses 54 and 55 talk about collecting the debt that will result from your having committed that violation. Clause 56 says that the person named in a notice of violation does not have a defence by reason of due diligence and does not have a defence by reason of having reasonably believed something which, if it were true, would have resulted in not being guilty in terms of intent.
Clause 57 says that in every case of a review, the minister must establish, on the balance of probabilities, whether the person committed the violation.
You understand, and I want to be sure I understand, that if a company were to do this, then all of its directors, officers, agents and mandatories would be liable for these penalties. If an employee of a company were to do it, then the company would be liable for these penalties. Am I right?
Ms. Osmond: I believe so. There are many provisions.
Senator Banks: This is not a criminal matter, but there is a concept in law, colour of right, that has to do with intent primarily to criminal law. However, are we being asked in this bill to put that aside and say that, never mind that, those long-running defences in criminal law described as colour of right are not applicable in these cases? Have I missed a place in the bill between clause 49 and the imposition of the penalties in which the person who has been named in the notice of violation has some opportunity to escape being found to have committed the violation? If it is in the bill, I cannot find it.
Ms. Osmond: In our submission to the House of Commons Standing Committee on Health, a copy of which was provided in advance to this committee, we raised concerns about this provision. When we raised it with Health Canada, their response was: "You will only be subject to this type of civil administrative monetary penalty if we have ordered you to do something and you failed to do it."
Senator Banks: This bill does not say that.
Ms. Osmond: I would have to go back and look, but I think it does say that. It refers to violations under particular provisions of the proposed legislation. However, we still have a concern with that because if it is that black and white, that they said that you should do something and you failed to do it, then I do not see where there could be a due diligence defence.
However, we cannot anticipate all circumstances. There might be a mandatory recall order. For example, you might do your best to recall products, but some of those products are still on the shelves because you cannot reach out everywhere. Some inspector might find it and say that you did not recall the product. Our position is that you should have a due diligence defence, so we have concerns with that provision.
Senator Banks: Thank you. I will preface my question by saying that no one on this committee disagrees with the stated intent of this bill to protect consumers.
Ms. Osmond: We all agree on that.
Senator Banks: However, are we going about it in an appropriate way? Is it appropriate for Parliament to authorize this government or any future government to do this? Is it appropriate to the nature of what we are talking about? At times, Parliament authorizes the minister to make regulations and basically says, "We will see you later." The Standing Joint Committee for the Scrutiny of Regulations of the two houses of Parliament has the duty to ensure that all regulations and changes to regulations published in the Canada Gazette are consistent with and authorized by the legislation and do not go off in some whacko direction.
At clause 36.1, it says that if a regulation has been presented as a regulation and gone through the process and is altered later, it does not have to go back to be scrutinized again. Is that acceptable?
Ms. Osmond: The provision to which you refer, clause 36.1, applies only to certain regulations. It is a process that is contemplated differently from the one to which you refer. This would relate only to regulations made under clauses 36(1)(a), (b) or (c), which deal with exemptions and amendments to the schedules of the act that deal with prohibited goods and goods that are not subject to the act because they are regulated by other legislation.
What is contemplated here is that you would not be able to provide for those types of exemptions through regulation without first laying those regulations before Parliament.
Senator Banks: I have quoted the wrong clause; I apologize. I meant clause 36.1(6), at page 21. It says:
A proposed regulation that has been laid before Parliament need not again be so laid prior to the making of the regulation, whether it has been altered or not.
I am a little worried about that. Am I seeing a bogeyman under the bed?
Ms. Osmond: It applies only to those specific regulations that are required to be laid before Parliament.
Senator Banks: That is right, clauses 36(1)(a), (b) or (c). It applies to those only. If the regulation is laid before Parliament and subsequently altered, it does not have to go before Parliament again. Are you comfortable with that? I presume it would be altered by the minister.
Ms. Osmond: Right. I guess the idea is that Parliament has been given the opportunity to comment on the regulations and those comments have been taken into consideration.
Senator Banks: If it said, "altered according to the recommendations of Parliament," that would be one thing, but it does not say that. Am I correct? Am I wrong? This may be a nicety, but we are passing a law here. I would like your association's opinion.
Ms. Osmond: It is not something on which we focused. We have other much bigger concerns with the bill. It is an extraordinary situation that regulations would have to be laid before Parliament because generally that is not done. In this case, regulations have to go before Parliament, and Parliament then has an opportunity to comment on them. That advice is taken into consideration and a decision is made.
Senator Callbeck: I want to ask you about the reporting mechanism. When you spoke to your concerns about the bill, this was the first mentioned. I want to understand fully. If a retailer receives a complaint from a customer that a toy they bought is faulty, then that retailer notifies the importer, who notifies the Minister of Health.
Ms. Osmond: I believe that the initial reporting requirement is to both the importer and the Minister of Health. Beyond 10 days, the importer, or manufacturer if it is a domestically made product, would have to report to the minister.
Senator Callbeck: Do you have a problem with the two-day reporting requirement?
Ms. Osmond: It presents a number of challenges and depends on the size of the organization. We would like to think that all of this information travels very quickly, but my understanding is that it takes time for this information to reach the appropriate person within the company. As well, it has to be determined whether the complaint is valid. Someone gave the example of shoes returned because "they are killing me." The issues involve getting the complaint to the right person within the organization and whether they will be given an opportunity to evaluate that information and determine whether a serious risk is posed or the product is defective before being required to report.
The concern is that if you are not given an opportunity to do that evaluation, then you run the risk of a flood of reports. If you are overwhelmed by information, it is as bad as not receiving the information to begin with. How do you sift through all that information and determine whether it is a valid complaint or not?
Then there is the process of the 10 days that is given to the manufacturer or importer. Ten days can also be a challenge. Once again, these investigations take time. If you are dealing with a product that was produced in a foreign country, you may not be dealing directly with the manufacturer but an intermediary, and language barriers may be an issue. One of the requirements is that you may even have to report incidents that take place in a foreign jurisdiction. It may be a challenge to get that information.
You have to strike a balance between giving companies the opportunity to evaluate whether or not this represents a serious risk before they are required to report or have everything reported without going through this evaluation initially.
Senator Callbeck: Those 10 days could be a pretty critical 10 days if there is a toy on the market that is a real safety issue for children. Are you saying that you do not want any time frame there? You said that reporting should not be triggered unless it is known whether, in the example you used with a toaster, it is dangerous or not. I am trying to understand exactly what you are saying.
Ms. Osmond: It is difficult to prescribe a specific time frame. I think it will depend on the nature of the product, how and where the incident occurs and how long that investigation process can take. The expectations would depend also on the nature of the risk and the nature of the product. You are right; if it is a children's product, then you would expect the investigation to take place very quickly.
Yes, the onus should be on the company to conduct these investigations in a prudent and expeditious manner. However, it is difficult to prescribe that it must take place within a 10-day time frame.
Senator Callbeck: The minister receives the report, and there is nothing in the legislation about when the minister will look at the report or respond back to the importer or the retailer. Do you feel there should be a time frame there, or would you just leave the proposed legislation as is?
Ms. Osmond: I certainly think the expectation is that the minister or the department would address these reports quickly and that they would get back to whoever has filed the report, whether it was the importer or the manufacturer. This goes back to the concern that we raised about the department being inundated with information. Obviously, if everyone is reporting everything without even a minimum threshold, then you run the risk of whether the department can handle all of this information and whether they will have the capacity to respond quickly. If you are having the officials from Health Canada return to the committee, you may want to ask them how they anticipate they will handle that.
The Chair: I might add, Senator Callbeck, your concern about taking quick action if there is a significant danger is covered in clause 37, which is the intermodal provision that the minister has under his authority.
On the matter of all of the paperwork and that they could be inundated, you mentioned this a couple of times now, including in response to Senator Callbeck's question. Do you feel that one of the factors that could drive that is the level of penalties? Will there be a fear factor in not reporting the example of "my shoes are killing me," which has been used a couple of times?
Ms. Osmond: The risk that you run if what triggers a report is not clear — the way the legislation is currently drafted, any occurrence involving a product would require a report — is that you will certainly have companies that will err on the side of compliance. They will want to ensure that they are within the letter of the law, and the level of penalties may not make a difference to them. On the other hand, you might have companies who do not know exactly what is required of them, so they may ignore it all together. Then you have the whole spectrum in between.
Senator Eaton: This is very interesting. How do you feel about labelling? I notice, in one of your sheets, you talk about the labelling of toxic substances. How do you feel that is covered in the bill?
Ms. Osmond: This was actually an issue that was raised in the House of Commons committee. Discussion took place about possibly amending the legislation to include mandatory labelling of toxic substances. We pointed out in our submission to the committee that we feel that this is already adequately addressed in existing legislation, under the Canadian Environmental Protection Act and the Chemicals Management Plan. If the government decides that would be an appropriate approach, it does already have the authority to do that. We do not think it is necessary in this legislation.
Included in the bill is the provision to establish "a committee to provide him or her with public advice on matters in connection with the administration of this Act," and labelling of products is one of the issues that will be addressed by that committee.
Senator Eaton: Yes, because you use California as an example of over-labelling. Has any study been done to find out whether people are so used to seeing cigarette packages and over-labelling, for example, that they have no effect?
Ms. Osmond: Part of the concern raised is that if too much information is on a label, then people just do not read it. They stop paying attention to it. I think some studies have been done on that. I did not draft that particular submission. It was actually drafted by someone who does have quite a bit of experience in that area.
In my understanding, yes, some studies have been completed and questions have been raised about the effectiveness of this type of labelling.
Senator Cordy: Thank you for appearing before us and providing us your opinions, legal and professional.
I would agree with what you have said and with what Senator Banks said earlier; everyone around the table has a major concern that the products that Canadians receive in their hands are indeed very safe products.
My concern is that when a bill becomes law, it is in fact the law. Whether the department tells us to trust them in that a part of the law will not be used frequently, we must keep in mind that indeed it is the law, and it can be used as frequently as one wishes once it has been made into law.
I think your suggestion that the minister rather than an inspector should have the responsibility to order a recall is, in my mind, a very legitimate one.
I want to return to the whole issue of incident reporting. We heard about this from Mr. Ellacott. We heard it last week from Mr. Geralde, from the Canadian Standards Association. He said that, with the Canadian Standards Association, when they receive calls, they can prioritize them and say whether they will deal with an incident immediately or perhaps if it seems a bit frivolous, they will let it go. The bill provides no room for prioritizing if, in fact, there is an incident. Mr. Geralde gave the example of the person who complained because they used the toaster to cook pork chops, and when the fat built up and the toaster caught fire, they complained it was not a safe product. That would, in my mind, be frivolous reporting, and also a stupid thing to do. We also considered coffee. You expect that the coffee is hot if it spills on you. You have to use an element of common sense.
You mentioned earlier about clarifying the definition of an "incident." Would that be sufficient, in your mind, to ensure that the reporting that the company would have to forward to the government would indeed be legitimate?
Ms. Osmond: Yes, either a modification to the definition of "incident" or modify the provisions so that it is clear that the reporting requirement is only triggered from the date that you have made that determination that there is a substantial hazard that is presented or defect in the product. This is what is required under U.S. law. In the United States, they do not have that obligation to report any incident. It is only once you have made a determination that this is a serious hazard.
Senator Cordy: That is part of the United States law, and they have to determine that it is indeed a very serious incident.
Ms. Osmond: They are given the opportunity to do that, yes.
Senator Cordy: Do they have a time period to determine that, or it is just written into the law that they make the determination?
Ms. Osmond: I do not think they are given a specific time frame to make the determination. Once they make the determination, they have 24 hours to report it.
Senator Cordy: I would agree to something similar to that because I have concerns about the reporting becoming somewhat burdensome. Let us deal with the real issues. In fact, we want products to be safe. We want to ensure that whatever goes to the Minister of Health is, in fact, legitimate.
I am also concerned about clauses 15, 16 and 17 — you referenced them when you were speaking — about disclosure of information by the minister. We all understand that when we are looking for something that would pose a serious danger to the health or safety of a Canadian, we want action to be taken immediately, and we want those who have to be aware of it to have the information.
I am a bit concerned that it is done without the consent of the individual. Because if it is done without the consent of the individual, then obviously it is done without consultation with that individual, and they need to know what is happening. That goes against the whole premise within Canadian society of being innocent until proven guilty. I have some concerns about that. How would we change that? You made reference to it earlier in your notes.
Ms. Osmond: Our concerns are the same as yours. If it is confidential information, we certainly do not want that confidential business information falling into the wrong hands, for obvious reasons. A concern also is that the information that is provided is accurate and that it will not do unnecessary damage to the company. However, another concern is that you do not want to confuse the consumer or cause them any greater alarm than is absolutely necessary.
Clause 17.1 was added to the bill when it was passed by the House of Commons, and that has no requirement in it. This is release of information to the public. There is no requirement that the company be consulted in advance or that they have an opportunity to have input into the information that will be disclosed. Once again, the coalition has made some recommendations for proposed amendments. Unless the company is failing to cooperate or if there is an imminent threat and really no time to consult, unless there are exceptional circumstances, the company should be notified in advance and should have an opportunity to input into what information is actually to be disclosed.
Senator Cordy: My last question has to do with the Access to Information Act. Would this information that is provided to the Minister of Health and to the government, or governments, as set out in the definitions by this bill, be exempt automatically from the Access to Information Act, or would that have to be a proviso within this bill or amendment to the Access to Information Act legislation?
Ms. Osmond: We would like to see specific reference to the Access to Information Act within the bill. I believe that is consistent with other legislation. Even the Hazardous Products Act makes reference to the Access to Information Act, and the Pest Control Products Act, which was referenced in prior testimony, also makes specific reference. The advantage of doing that is that there is a definition of confidential business information. We are also concerned that information will be provided in these incident reports to Health Canada, and it may or may not fall squarely within that definition of confidential business information. Nevertheless, it is not necessarily information that you want disclosed without having an opportunity to have input into exactly what is being disclosed. We would like to see any information provided by the company treated as confidential business information for purposes of the Access to Information Act so that there is a presumption in favour of the company. The onus would then shift to anyone requesting access to that information to show that it was not confidential business information. We do believe there would be value to having specific reference to the Access to Information Act in this bill.
[Translation]
Senator Pépin: When Bill C-6 was debated in the House of Commons, the issue of counterfeit labelling on imported products was raised. Clause 9 of the bill was amended and, on page 6 of the bill, it says:
[English]
No person shall package or label a consumer product
(a) in a manner — including one that is false, misleading or deceptive — that may reasonably be expected to create an erroneous impression regarding the fact that it is not a danger to human health or safety; or
(b) in a manner that is false, misleading or deceptive regarding its certification related to its safety or its compliance with a safety standard or the regulations.
[Translation]
Can you give the Committee some examples of imported products that have been found to have counterfeit labels? In your opinion, does clause 9 adequately address the issue of counterfeit labels? Will it remove any problems we have with counterfeit labels?
[English]
Ms. Osmond: My understanding of this provision is that it is directed specifically at counterfeit certification labels, such as the CSA label, the Canadian Standards Association label, or Underwriters Laboratories Inc. There have been instances where products have been imported, lamps, for example, and I think you have run into the problem with Christmas holiday lights or power bars, these types of articles, where they will have a false label. We have even run into instances — this was a particular problem in Quebec — where circuit breakers were refurbished in Canada, and they were counterfeit. Certification labels were applied as well as counterfeit brands or counterfeit trademarks belonging to the company.
This addresses a very specific issue of counterfeit certification labels. I am not sure it would help in a situation where you have a product that has a counterfeit company trademark as opposed to a certification label. Wearing my Canadian Anti-Counterfeiting Network hat, we certainly appreciate that this provision has been included in the bill. We think it is a step in the right direction and it will help.
However, more can be done in Canada through legislation to address the issue of counterfeit products. That would be not only products imported but also products produced in this country. We see that as being separate legislation. For example, we would like to see additional powers given to border officers so that they can stop goods as they are coming into the country. We would like to see amendments to the Trade-marks Act that include criminal provisions and so on. We have prepared reports with recommendations of what we would like to see, and we would be glad to provide copies to the committee.
Again, this is a step in the right direction but does not address all of our concerns.
Senator Dyck: Thank you for your presentation, Ms. Osmond.
In the material you presented, you talked about the complaint investigation, risk assessment and risk management. Do you use certain models to assign risk levels, models that guide how you determine whether some levels of risk are acceptable, for example, with a toy? Presumably with children, all levels of risk are not acceptable.
What concrete guidelines guide you in industry, and are those guidelines set, for example, by Health Canada?
For instance, in Bill C-6 under clause 2, "Interpretation," the definition of "danger to human health or safety" is fairly broad. It means "any unreasonable hazard" caused by a product "as a result of its normal or foreseeable use" — a pork chop in a toaster probably would not be the normal use of a toaster — that would "have an adverse effect on that individual's health — including an injury."
What type of injury would be worth reporting; how do you determine that?
Ms. Osmond: It is interesting that you refer to the definition. As you point out, it talks about an adverse effect, including an injury. Under the incident-reporting requirement, in clause 14, it talks about "serious adverse effects" and "serious injury." The definition of a "danger to human health or safety" is inconsistent with how it is worded in clause 14.
I am not an expert on how the risk assessment is undertaken and how companies actually go about doing that analysis. I cannot comment on that.
Our tolerance for risk is lower depending upon at whom the product is directed. In the case of children, we would be less likely to take on a risk than if it were a product directed to an adult. I believe this was the approach that was taken, for example, with bisphenol A, where certain provisions were put in place for products directed at children.
Senator Dyck: If different levels of risk apply depending at whom the product is aimed — toy companies, for example — should the same legislation apply to a toy company as compared to someone who is manufacturing highly hazardous products? Can one bill cover all aspects?
For instance, not long ago, we were dealing with a bill concerning human pathogens and toxins. Some of those covered in the bill are extremely dangerous products.
Ms. Osmond: This proposed legislation attempts to address a gap that currently exists, where we only have legislation dealing specifically with hazardous products. I agree that we do need broader legislation that encompasses all consumer products. This provides an important framework. This is a place where the regulations come in, where you can have specific regulations dealing with specific types of products. We already have regulations that deal with specific types of products.
Senator Dyck: Should Health Canada have a guide for companies that defines more clearly what "risk" and "serious injury" mean? Does it mean one death in the whole country or, such as with the flu, one death in 100,000, or one death in 250,000? Should we be more precise in the definitions of "risk"?
Ms. Osmond: I believe that is part of the consultation process that Health Canada is undertaking with industry. They are looking to define, for example, the types of incidents that would require reporting and what constitutes a "serious injury." We know what a death is, but what is a "serious injury," and what is reportable and so on?
Senator Dyck: Do you see that as part of the regulations that come out of the bill?
Ms. Osmond: As well as the guidance, yes.
Senator Day: Thank you very much for your comments. I agree with all the points you make about the breadth of this.
You mentioned guidance at the end. We have heard from the department that the process of issuing guidance might be used for a time. They find the process for regulations takes 12 to 18 months and could be out of date by the time they complete that process.
I am a bit concerned about guidance, especially because there is such a breadth of discretion in the department here. We contacted the other departments to inform them that they might be concerned about some of the disclosure of personal information. They said that it will all be worked out in discussions after the fact. That is causing us some unease. I take from your comment that you also have some unease about some of these points.
Have you had a chance to look at the definition of "government" and the definition of "sell"? You might have noticed that I raised these issues before. Do those definitions cause you any concern? Have you had a chance to focus on them?
Many clauses say "no one shall sell." However, then you refer to "sell" and it means to sell and not sell; it means everything. "Sell" means to distribute to one or more persons for money or not for money. You distribute one thing to a person, not for consideration, and you are selling. That will catch many people. Do not give your neighbour anything that you might not have any need for anymore, such as your old lawn mower.
Have you not had a chance to focus on that one?
Ms. Osmond: I did see that you had raised it.
Senator Day: I am looking for someone to put me at ease here and tell me that I am off-base. Similar to everyone else here, I really like the policy. I am just concerned that whoever the minister spoke to and told to implement this policy in the form of legislation has gone a little overboard.
Ms. Osmond: As an individual, I might be concerned about passing something on to my neighbour. For the companies that we represent, I do not think there is any question about whether or not they are involved in the sale and distribution of products. It would not be an issue for the members that we represent.
Senator Day: I appreciate that.
Ms. Osmond: On the question of guidance versus legislation and regulations — and, I said this earlier — obviously, there is an appropriate place for administrative guidance and policy; and a place for regulation. In certain circumstances, there is a place where the proposed legislation should be more specific. Our key areas of concern would be the incident-reporting requirements.
Senator Day: Yes; clause 14. Did you look at government and see how broad that is in terms of private and corporate confidential information? Your members must be concerned about corporate confidential information.
Ms. Osmond: We are concerned. That is why we do want to see that they are consulted and notified in advance if any of their information will be provided. If there is sharing of information with another government, whether it be a government body within Canada or abroad, we would expect, at the minimum, that there be a confidentiality agreement in place and that the legislation of that other jurisdiction would not permit the release of that confidential business information.
Senator Day: That is a minimum that we could expect. If your members' confidential information was used by a foreign government entity in the world of competition, the world of commerce, would you expect that they would have some right with respect to that confidentiality agreement because they are not a party to it? Would the government have some responsibilities here if confidential information was leaked as a result of divulging that confidential information? Do you anticipate any of that? What happens if there is an agreement to which you are not a party? You cannot do anything about it; there is also no remedy for you.
Ms. Osmond: I would think the circumstances would likely be limited where we would have an agreement in place with a foreign jurisdiction to share that confidential information. My understanding is that Health Canada is in discussions with the United States, where we work closely with authorities in the U.S. I would hope that there would be limited circumstances where we would be sharing that confidential information with a foreign government. As I said, we would want to be comfortable that similar provisions would be in place in that foreign jurisdiction that would not allow for the sharing of that confidential business information.
Senator Day: I agree with you. We are saying that we trust, we hope and we expect, but this provides that it can happen. This proposed legislation actually gives authority to the government to do these things.
Ms. Osmond: On advising and notifying a foreign government, the company should also be given the opportunity, rather than the Government of Canada notifying this jurisdiction, to do their own notification to that foreign jurisdiction or provincial jurisdiction first.
The Chair: For the information of the members of the committee, "Disclosure of Information by the Minister," clauses 15, 16 and 17, should be read in this connection.
Senator Day: They are slightly different, depending on whose information it is.
Have you looked at the clause about private property and a government inspector being able to go in and upon private property and is not responsible for any damage caused?
Ms. Osmond: Can you remind me which provision it is?
Senator Day: I have forgotten the clause. It is the personal property and dwelling-house exception, clause 21.
Ms. Osmond: In clause 21, we are dealing with a dwelling-house.
Senator Day: Yes; for a dwelling-house, you need a warrant.
Clause 20(4) states that an inspector can "pass through or over private property, and they are not liable for doing so." Does that not cause you some concern?
Ms. Osmond: It does not say that they would not be liable if they did damage to the property.
Senator Day: It says, "they are not liable for doing so."
Ms. Osmond: They are not liable for entering or passing through.
Senator Day: You would like to go to court and argue that one, would you? Wow; okay.
I know everyone is on round two here, but could you look at clause 7 and clause 34(6) and help me on the interplay of those two clauses? I will do the same. I have made a note here to look at those. Clause 34(6) states:
An order continues to apply during a review unless the review officer decides otherwise.
First, I could not find authority for the review officer to do anything; then I could not find what the review officer might be doing, what he or she might decide.
I am looking for due process, which has been talked about a great deal, and people having the opportunity to know why the inspectors are in here, and why it is the inspector who sets the rules and then makes the determination; it is the same person who does that in here. It says that this is the rule, this is what you must do, and these are the consequences of you not following what I just told you to do. That is unusual.
Ms. Osmond: Again, in our submission, we did raise concerns about this. We would like to see a more robust review process. We recommended that people have the opportunity to make an oral presentation, not just a written submission; and that there be a panel rather than a single review officer. We would also like to see the ability to appeal to a tribunal if you are not satisfied with that decision. We are concerned that an order can remain in place while the officer is conducting the review, and it is up to the review officer to decide whether or not it will remain in place.
This goes back to the concern about a mandatory recall order. Again, it goes back to "based on past practice." Health Canada officials have said that their intention is that they would try to work with the company to do a voluntary recall and so on, but that is not what it says in the proposed legislation. We would be concerned that there is no requirement to notify a company in advance that you are intending to issue a recall order, to give the company an opportunity to do the recall voluntarily or to discuss whether a recall is the best remedy in this situation. We would rather have that discussion before the official notice of the recall is issued. Once the recall order is issued, the appeal process does not help much. If you have a recall order, retailers will start taking your product off the shelf. By the time you have had your appeal, it will be too late. You have missed your opportunity to sell the product, and they will not put the product back on the shelf. Therefore, this appeal mechanism does not help much.
Senator Day: As a lawyer, help me with this. I am asking as one of your members; let us say that I am an importer. Clause 7 states:
No manufacturer or importer shall manufacture, import, advertise or sell a consumer product that
. . .
(b) is the subject of a recall order . . .
— and we understand that —
. . . or such an order that is reviewed under section 34 . . . .
I do not understand "such an order that is reviewed under section 34." Does that mean it has been reviewed or is being reviewed? If it has been reviewed, what is the result of that? What does "is reviewed" mean?
If you look at clause 34(6), it says:
An order continues to apply during a review unless the review officer decides otherwise.
I cannot find any authority for the review officer to decide otherwise. Can you help me with that?
Ms. Osmond: You may have to ask the drafters of the legislation.
I agree with you that it is unclear: It has been reviewed.
Senator Day: It "is reviewed." Not "has been."
Ms. Osmond: Yes, "is reviewed," but it does not say that you have decided it will stay in place or not. It has only been reviewed. Maybe you have revoked it.
Senator Day: Maybe that is the case. Clause 6 says:
No person shall manufacture, import, advertise or sell a consumer product that does not meet the requirements set out in the regulations.
Let us suppose that your client would like to import a product, and there is nothing in the regulations about it. Does that mean that they cannot import the product because no requirement is set out in the regulation?
Ms. Osmond: My reading would be that if no regulation is governing it, then you could import the product.
Senator Day: However, it says that no person shall import a product that does not meet the requirements set out in the regulations.
The Chair: Okay. I need to move on. Thank you.
Senator Martin: Will there be a second round?
The Chair: Yes.
Senator Martin: I thought this was the tail end. I wanted to hear what my colleagues around the table wanted to ask and your responses before I weighed in as the sponsor of the bill. I will take a broader perspective by moving away from the wording of this bill and address some of the comments you have made.
At our last committee meeting, we discussed whether Health Canada currently has any recall authority. For the benefit of my colleagues, under no circumstance does Health Canada currently have that power. Recalls in Canada are strictly voluntary.
Ms. Osmond: Yes.
Senator Martin: I see that this important proposed act would give our government an important tool. We all agree that the intent of this bill is to protect the health and safety of Canadians. This important tool is the mandatory recall powers.
You said earlier that we should align ourselves to other countries. We know that the United States and other jurisdictions have these powers. We are in a global economy.
Ms. Osmond: We do not disagree with a mandatory recall power. We support that. We also support mandatory incident reporting.
The issue is not whether these provisions should exist. It is a question of the drafting of the provision. In the case of mandatory recall, who has that authority? We think this power should rest with the minister as it does under the Canadian Food Inspection Agency Act rather than an inspector.
Senator Martin: Thank you for that.
In terms of the recall process, you said that you would like to see a minimum reporting threshold. What triggers a recall? Any occurrence involving a product could trigger a report.
Clause 14 defines "incident." We have talked about cases such as one's shoes killing them or other trite examples. The description repeats phrases about what "incidents" would mean with respect to consumer products. It is when there is reasonable cause for alarm because it would lead to death, serious injury or serious adverse effects on health. It is very serious risk.
Senator Day was talking about a gift that may be given. I think those examples of a gift perhaps causing harm would not fall under this bill because the intent of the person giving the gift was not to give a product knowing it may cause injury or harm because when people purchase products in a store, they assume that the products on the shelf are safe. The example of the gift being caught under this bill is not relevant to this particular bill. The definition of "incident" in the bill looks at very serious incidents and cases.
In terms of recall, it is the best action to be taken. You mentioned that you are actively involved in the consultation process. What role have you played thus far? What do you anticipate to be your role with Health Canada officials once this bill passes?
Ms. Osmond: We met directly with Health Canada officials at least a couple of times during this process. A representative of our association appeared before the House of Commons committee on this bill. We also worked with other associations through the coalition that I have mentioned. Representatives of the coalition also met with Health Canada, as well as some of our individual members.
We are currently scheduling a meeting with Health Canada to discuss the guidance documents that they have begun to draft. We want to be very engaged in working on those policy documents and eventually the regulations.
Senator Martin: Other witnesses have commented on how collaborative and cooperative the process has been. Do you anticipate a continuation of that relationship in the regulatory process?
Ms. Osmond: Yes, we would anticipate that it would be collaborative. Health Canada has indicated their willingness to meet with us. Although they have not incorporated all our suggested recommendations for amendments to the bill, it has certainly been a constructive discussion between our association, the coalition and Health Canada officials.
Senator Martin: You also expressed concern about the disclosure of information. Clauses 15, 16 and 17 outline the specific situations in which disclosure of information would be "necessary" — that is the word they use — "to identify or address a serious danger to human health or safety." Only at that point will disclosure of information take place. It is only used for the purpose of carrying out functions to address that concern. All of these provisions are to determine the corrective action needed.
You described a review process. If we are talking about something that could cause death and serious injury, how long would that review process take?
We are talking about a matter of sometimes a day or hours. If we are looking at the safety of Canadians, Health Canada would need the power to be able to take that action in these urgent situations.
Ms. Osmond: Are you referring to the review of the information that will be disclosed?
Senator Martin: We were talking about disclosure of information by the minister, whether it is other jurisdictions or partners that have to review the information, and that it must be done very quickly, so that in these urgent situations, the minister would be exercising this power in order to protect Canadians.
Ms. Osmond: If there is a threat that is so imminent that there is no time to wait, we can distinguish those types of situations. However, in U.S. legislation, in the Ontario regulations governing the Electrical Safety Authority, for example, they specify that before information is issued to the public, the company will be notified and will be given an opportunity to have input into the information that is being disclosed. If the company fails to cooperate, that is a different situation. However, this is what is done in other jurisdictions. Currently — granted, we have a voluntary recall process — there is a consultation process.
It is important to also realize that this is not just to protect the company, it is also to ensure that the information that is being provided is accurate and correct information, and that consumers will not end up being misled or confused. We cannot always look at it as a situation where the threat is just so immediate that we have to get this information out there immediately without waiting. That would generally not be the case.
Senator Martin: I was referring to clauses 15, 16 and 17, that in each of these clauses the wording is that it would be necessary or that it would be essential. These are the extreme cases, but, in this case, the minister would need to exercise that sort of authority. As you say, the process is in place and whenever possible industry would still be given the opportunity to voluntarily recall. As well, consultation would be taking place, so by the time this notification or disclosure of information is done, it would be in such extreme cases.
Ms. Osmond: We would feel much more comfortable if that was specifically set out in the legislation.
In the case of a mandatory recall, the proposed legislation gives the power to the inspector to issue a recall order. There is nothing that requires the inspector to consult with the company in advance of issuing that recall order. Nothing requires that the process that is followed today be followed under this proposed new legislation.
The process we have in place today is because no mandatory recall power exists. It is voluntary, so if you do not consult with the company, the recall will not take place. Similarly, with respect to the disclosure of information, there is also clause 17.1, which was added, that makes it clear that the minister can disclose information. However, again, nothing in the bill requires that any consultation with the company takes place before that information is disclosed.
We see it as benefiting not just the company but also, as I say, the consumer that this information be reviewed in advance for accuracy.
Senator Day: Clause 16 was just referenced. I have read it six times now, and I cannot find where there has to be a danger to health in order for the disclosure of confidential information. Maybe my clause is reading a little different from yours. It says:
The Minister may disclose confidential business information to a person or a government that carries out functions relating to the protection of human health or safety or the environment . . . .
It is the health and safety function that is being carried out by the organization to which you are giving information. Nothing requires the minister to have any feeling of imminent danger here in Canada or any problem.
The Chair: It sounds as though we are getting into a debate as opposed to a question.
Senator Day: I think the witness was misled in that point and that is why I asked for the supplementary question.
The Chair: Ms. Osmond, do you have anything further to say on clause 16?
Ms. Osmond: This is a situation where the government or other person to whom the information is disclosed agrees to maintain the confidentiality of that information, and we did discuss that. If it is disclosure to another government, we would like the company to be given the opportunity to make that disclosure initially.
Also, while we see the benefit and the need at times to be sharing information with other governments, we do not see the harm in letting the company know in advance that information is to be shared and allowing them to comment on what is being shared.
Senator Keon: I will try to be brief. You made the statement that imported goods could violate Canada's trade agreement.
Committee members have received a very large number of emails, a couple of thousand. We have also had many phone calls to our offices. This statement gets made over and over. I would like you to tell us how Bill C-6 violates Canada's trade agreement; and if it does, which trumps which, Bill C-6 if it becomes legislation or Canada's trade agreement?
Ms. Osmond: The statement was not that the bill violates Canada's trade agreements. The concern is being raised because a provision in the bill states that if it is an imported product, the importer could be required to provide prescribed documents in advance of the importation of that product. Therefore, we do not know at this point, because the documents will be prescribed by regulations, what documents will be required. The concern that we were raising is that we have to be careful that we do not end up imposing requirements on imported goods that we do not impose on domestically produced goods.
We are signatories to international trade agreements, through the World Trade Organization, that contain national treatment provisions. Under those provisions, it basically says that we cannot impose requirements on imported products that we do not impose on domestically produced products.
It is just raising that as a concern. We do not know yet what requirements might be imposed under that provision. This does not just apply to imported products; this requirement to provide prescribed documents could apply to locally manufactured products. We do have a bit of concern that there is nothing there that says prescribed documents for purposes of demonstrating compliance with the act, for example. It is very broad in scope and, once again, gives broad discretion in what can be put into regulations.
Senator Banks: You made a reference a few minutes ago to some recommendations that were already made. I am not a regular member of this committee. Do we have those recommendations that were made by this organization?
The Chair: Yes, we do, and they will be distributed after translation. I said that at the beginning.
Senator Banks: Were you referring to the recommendations made by the coalition?
Ms. Osmond: Yes. We made a submission to the House of Commons committee that raises some of these issues. That was translated by that committee. However, also last week, there were separate specific recommendations on wording.
Senator Banks: I have a concern about the incorporation by reference of documents into regulations. This is a fairly common practice; it needs to be done; and I understand why it needs to be done. However, it also needs to be protected in terms of ensuring that people who are susceptible to the provisions of what this bill would be have access to knowing what those regulations are.
Fairly recently, we have succeeded in obtaining the agreement of a minister to remove the provision about ambulatory regulations, that is to say, regulations that are incorporated by reference in language that says "as amended from time to time."
When the regulations, such as a set of specifications on a crib or a jet airplane engine, are incorporated by reference into the regulations of an act, and when it says "as amended from time to time," meaning that those amendments are also incorporated by reference into the act, that means two things.
First, it means that someone other than the Government of Canada and the minister is making regulations that apply to Canadians. Second, it means that Canadians may not be aware of some aspects of those regulations, which they may contravene because they are part of the regulations.
This bill contains, on page 20, language in that respect that is novel to me. I am just calling it to the attention of members of committee and asking your opinion. It is just a weird English locution. In clause 36(6), it says:
Documents may be incorporated by reference as amended from time to time.
Reading English, "as amended from time to time" refers to the word "reference." Do you think that this means that a document — let us say, the South Korean rules on the importation of cherries from China — is incorporated by reference into the Canadian regulations?
Ms. Osmond: What is that section again?
Senator Banks: It is on page 20, clause 36(6).
If you have not had the time to look at that and think about what it means, I will be satisfied with simply calling it to the attention of the committee and dealing with it later.
My second question is that you have been talking about the sharing of confidential information, which also includes private confidential information, correct? Some of it, whether it is corporate or private, might be proprietary information. We have heard officials from the Department of Justice Canada saying that, in effect, they would not share that type of information, only this type of information.
Have you proposed a way — perhaps in the recommendations that I have not seen — that the type kind of information could be circumscribed? You have said that, further, the information provided should be only that information that is necessary to protect the health and safety of consumers. Maybe that is the answer; but has your organization or the coalition drafted an actual amendment that deals with that question?
Ms. Osmond: We have proposed amendments to clauses 16 and 17.
Senator Banks: Do they define the type of information that will be shared?
Ms. Osmond: It says that the person to whose business or affairs the information relates and who has provided such information is notified and has an opportunity to comment on the accuracy of the information and the fairness of disclosure. It at least gives them the opportunity to have some input.
However, you raise a good point. As we make mention in our submission, it should also be clear that it is only that information that is necessary for the protection of consumer health and safety. For example, you may disclose a geographic region where products are sold, but you do not necessarily disclose someone's customer list.
Senator Banks: I want to remind honourable senators to look carefully at the question of incorporation by reference to make sure that Canadians who might run afoul of those regulations have access to them because there are circumstances in which they would not.
Senator Martin: I wanted to follow up on the process of recall that is currently in place.
Would you agree that Health Canada has taken a step-wise approach to date, that the industries are given an opportunity to do voluntary recalls?
Ms. Osmond: Currently, that is the only remedy that we have. Consultation between industry and Health Canada has to take place to carry out that recall.
We would anticipate that they would generally maintain that same approach. They have told us that that is the approach that they will maintain after the bill is passed. However, once again, a very serious remedy is being given to an inspector to be able to issue a mandatory recall; and we think that it is appropriate to circumscribe that power in the legislation.
The current practice is the current practice of those officials that are currently in place. We could have this legislation for a very long time. New people come on who may have different views on how legislation should be interpreted. They may lose that institutional memory of what the intention was when the legislation was originally passed.
Senator Martin: At this time, it is publicly stated that the department is working with industry first to encourage voluntary recall. When you talk about the powers given to the inspectors, in the Hazardous Products Act currently, even though it states "minister," operationally, these powers are delegated to the inspectors. The inspectors are people with credentials — engineers, scientists and chemists — and that is how it would function as well in this proposed new act, Bill C-6.
Ms. Osmond: I do not think that is an argument to say that the power should then, under the legislation, be given to the inspector. My understanding is that when a decision is made on whether a recall should be issued, as I mentioned earlier, a recall is generally the last resort. You look at other means of trying to address the risk before you would resort to a recall.
It is not the type of decision that is taken by one individual. You may have some individuals who are very experienced, but we know that Health Canada will have to hire many new people in order to have the human resources available to be able to implement this proposed legislation. You will have some very new people who are in the position of inspectors.
The Chair: That completes my list. Therefore, I will say thank you very much to Carol Osmond. You have been in the hot seat for a long time. It gave my colleagues a chance to ask many questions.
We will recess for a moment, and then we will discuss the way ahead on finishing off Bill C-6.
Members of committee, in terms of Bill C-6, Ms. Osmond was the only one here tonight, but we had originally hoped to have the Privacy Commissioner, as well as Mr. Shawn Buckley. They were invited to appear tonight.
The Privacy Commissioner could not come on this occasion because of other commitments but will be here on November 18. That would be our first meeting after we come back. Mr. Buckley cannot be here until November 25. He is in court on a number of issues where he is presenting legal argument. However, the steering committee feels that Mr. Buckley, who is quite involved in this whole issue, should be given the opportunity to make representation. He would be here on November 25. The steering committee would recommend that.
In addition, I am trying to get a group of independent legal advisers here. We have heard some legal advice — the lady in front of us tonight was a lawyer. However, we should have independent advice; people who can talk about the legal provisions because that is where most of the discussion has been. There is no question about the policy intent. Most of the questioning has to do with defining the legal provisions, from a criminal, constitutional and trade standpoint.
We are going through a list of professors. Universities are probably the safest place to find the independent legal advisers. Therefore, we are looking at that and hoping to have them attend.
I would see us then having the minister or Health Canada. I do not know whether the minister will come, but we are inviting the minister — that is what this committee asked for — and certainly the officials from Health Canada on November 26.
I would see us then proceeding, perhaps at that meeting, depending on how long it goes on with the officials, to clause-by-clause consideration of Bill C-6. Of course, you will have to consider the issues of Bill C-6 as it is, Bill C-6 as amended, whatever amendments if you want to put them and also whether there is to be a report with observations.
I would see starting that on November 26, and maybe completing it on November 26 or shortly thereafter. I think we could get this done by the end of November.
Are there any comments?
Senator Eaton: Yes, Mr. Chair. I cannot speak for other senators. I have certainly been overwhelmed with phone calls from Shawn Buckley supporters advocating conspiracy theories that we are giving H1N1 vaccinations to children so they will be unable to reproduce. It is really almost scary conspiracy stuff. I wonder why we are hearing from this person and his followers. It almost discredits what we take very seriously in this committee to allow people such as that to have a forum.
I am sorry; I am just asking the steering committee. I find it rather outrageous in a way.
The Chair: We are not inviting the people who think that we are forcing inoculations. Mr. Buckley is not of that belief.
Senator Cordy: Sorry to interrupt, but the light is on that this is a public broadcast; is that correct?
The Chair: It is still a public meeting, but the television portion of it is off. In any event, if you want, I can go in camera to discuss this.
Mr. Buckley does not, to my knowledge, represent that particular view. He may have people who support him who have that view about forced vaccinations. We have not invited them. I have no intention of inviting them. However, Mr. Buckley does have a fair bit of legal expertise in this matter and I think is someone we should hear from; that is what the steering committee has decided to do. Those other people you mentioned have not been invited.
Senator Eaton: I think if they support him, he must represent them. I am one voice, but I am sorry.
The Chair: Well, that might be a bit of a stretch. I mean, if someone with some extreme views supported you on a particular issue, it does not mean that you support them.
Senator Eaton: If I was advocating inoculating children to render them infertile then I would say that —
The Chair: I have not heard Mr. Buckley advocating that.
Senator Eaton: Well, his supporters have certainly been doing that on the phone.
The Chair: They are not invited.
Senator Eaton: They will be here.
The Chair: Well, they might be here. Anyone is allowed to be here, or they might send us emails. Maybe they will send us fewer emails. We had invited Mr. Buckley already. It was not as if we are suddenly inviting Mr. Buckley. We had invited him for tonight.
Okay, is there anything else?
Senator Day: Is it possible to find some consumer association representation? I have no one to recommend, but we talked a great deal to — and I suppose those are the people most impacted by this — the importers and the manufacturers. It would be nice if we could talk to the people who this legislation is intended to protect.
The Chair: We have heard from a number of organizations that are concerned about protection of children and protection of the public in general. Remember what I said at the outset: We are trying to get a balance of the perspectives, to get all the perspectives on the table. I believe we are getting all the perspectives on the table.
Senator Day: Are you satisfied that we have had a representation from consumers?
The Chair: I am satisfied that we have heard all the different perspectives. If there is someone else who you think can contribute to this discussion in a way that is different from the people who have already appeared or are slated to appear, then we are happy to have a look at that.
Senator Day: Thank you.
The Chair: Then, with that, we are right up to six o'clock, and the meeting is adjourned.
(The committee adjourned.)