Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 16 - Evidence - November 24, 2010
OTTAWA, Wednesday, November 24, 2010
The Standing Senate Committee on Social Affairs, Science and Technology met today at 4:15 p.m. to examine Bill C-36, An Act respecting the safety of consumer products.
Senator Kelvin Kenneth Ogilvie (Vice-Chair) in the chair.
[Translation]
The Deputy Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
Before I introduce our senators and welcome our guests officially, I have a couple of pieces of information. First, the minister is delayed in the House of Commons for a vote. We expect Minister Aglukkaq to arrive within 15 minutes or so. She will join the meeting and then will stay while she can; I understand she might be called back to the house within half an hour to three quarters of an hour from the time she arrives.
Second, I have been informed that a number of members have important meetings following this one. While our committee meetings nearly always end on time or before, I would like your will with regard to the meeting not going beyond its normal end time of 6:15 p.m. Is that agreed?
Senator Cordy: Is that also the case tomorrow, because I have a meeting with someone from Halifax scheduled at 12:30 p.m.
The Deputy Chair: The chair will deal with your request tomorrow, but I would assume it would be the same in that you would raise it tomorrow. I cannot comment on tomorrow.
Senator Cordy: I arranged it thinking that it was the only free time that I have on Thursdays.
The Deputy Chair: I understand your question, but I am afraid I cannot answer for the meeting tomorrow.
Senator Day: Chair, I wonder if you could tell us about the program. I believe I know. Last week, I saw a program that had been prepared for hearings on Bill C-36 that dealt with today and tomorrow only. I wrote a letter to the chair in whose seat you occupy today in his absence. Luckily, I copied you and Senator Martin, the two other members of the steering committee, expressing my concerns that of the two days that we have set aside for hearings on this matter, only one half of one day deals with people who will be affected by this bill.
I am of the view that we should have two days of hearings with individuals, companies and organizations that will be affected by this legislation. Could we have agreement to have another day of hearings next Wednesday? That would give us today with the minister and the officials, tomorrow the Privacy Commissioner and then the first panel. Then on Wednesday next week, we could finish up with another two panels of people, companies and organizations that are impacted by this legislation.
The Deputy Chair: Senator Day, as you know, the steering committee considered your request. Therefore, I assume your option would be to make a motion to that effect and the committee would decide on its merit.
Senator Day: Thank you. I think I feel strongly enough about this matter and therefore, with your permission, I move that:
The committee hold two more meetings on Bill C-36, so that it may hear from panels of individuals, companies and groups that might be impacted by this legislation.
The Deputy Chair: The motion is in order. Is there discussion on the motion?
Senator Martin: One important consideration in going forward with the proposed plan is that we can look at multiple witnesses in selecting two of whatever other requests there may be. We agreed that we would accept written submissions from those witnesses who are not on the schedule today and tomorrow and that such would be a fair process to hear from everyone. We have gone through another process prior to this with Bill C-6.
As a steering committee, we agreed to the proposed original plan of the two-day session. That is something that I would like to add to today's discussion for everyone's consideration.
Senator Day: This committee is its own master and the steering committee has just delegated certain authority.
Senator Martin: I am just adding that as an additional reason as to why we decided to go with the original plan.
Senator Day: Thank you.
Senator Eaton: I would like to support what Senator Martin said. We have spent days and hours listening to witnesses who will be impacted by this legislation. I think that this bill has amendments that go a very long way to satisfying many of those people. Therefore, I do not really see the purpose of hearing them and going over the same territory again.
The Deputy Chair: Are there any other interventions?
Senator Cordy: I think we are hearing from the government officials for a second time, maybe even their third time. They appeared twice during the last hearings on Bill C-6. In a democratic process, it is important. I understand that we cannot hear all the people who wish to appear before the committee, but the Senate is the chamber of sober second thought. It is extremely important that we have government witnesses before us to tell us about the changes that have been made between Bill C-6 and Bill C-36, since Parliament was prorogued and Bill C-6 died.
However, I think it is important to allow before us others who may be coming to tell us that they appreciate all the changes we have made but who may also have concerns. I believe that as the chamber of sober second thought we have the responsibility to allow, as I said, not all but certainly a selection of people who may have concerns about the bill.
Senator Callbeck: We are getting many emails — I am sure every member of the committee is — from people who want to participate. I am not sure that they know whether they can all send in a written submission, which I would like to have an answer to.
Many Canadians are particularly asking to hear from Mr. Shawn Buckley again. Mr. Buckley appeared before us on Bill C-6, but many are requesting that we hear him again on Bill C-36. I would like the committee to do that.
The Deputy Chair: The answer to your question is that all those who requested an opportunity to appear have been afforded the opportunity to submit a written submission.
Senator Day: Have any written submissions been received and have they all been distributed?
Jessica Richardson, Clerk of the Committee: Yes.
Senator Day: Could you give me a list? I am sorry; I am new on this committee. This was just referred to the committee last Thursday. Therefore, you could not invite anyone to this committee before last Thursday when this committee had this bill referred to it.
The Deputy Chair: The clerk will follow up with you after the meeting with regard to your specific request, if that is satisfactory to you Senator Day.
Senator Day: It is, except I will need to have this material to determine what questions I might ask of government officials.
The Deputy Chair: The clerk says she will attempt to get it during the course of the meeting.
Senator Day: Thank you.
Senator Martin: There is one additional and very relevant point. This process is absolutely important. I understand the role we play and the importance of the chamber of sober second thought. However, I am also mindful of the process that has been followed to this point. It has been a very long process and, if I recall, the minister and the officials look at consultations that take place. Since we last saw the bill, there have been consultations and those are reflected in the amendments that were made to strengthen this bill. I am highlighting the importance of the process that has been undertaken.
Our steering committee discussed this. As I said, the witnesses who had requested to appear were invited to submit written submissions, and I recall having received quite a few already. In any case, I think the chair has already answered that question.
Senator Cordy: I am also looking at the process. The bill would have been passed if Parliament were not prorogued last December. At this point in time, we would not even be looking at Bill C-36. To say that there is a great rush will not work with me because I think it could already have been passed.
I look at the process and I have received hundreds of emails asking Shawn Buckley to appear before the committee. He appeared the last time.
I am not saying we have to agree with Mr. Buckley. However, if we are looking at the democratic process and sober second thought, I think we should respect the wishes of the people who have taken the time to send these hundreds of emails phone calls and faxes.
Senator Day: I have just one other point that may help. The reason I am suggesting that we need to do the work that is normally done by the Senate is highlighted by this briefing note of Wednesday, November 24, 2010. Sonya Norris and Melissa Tiedemann provided it to us.
I was just reading this and thought this is why we as a committee in the Senate have to do our job. On page 2, it says that the proposed amendments came out of the committee and were accepted by the committee. This is the government proposing amendments during clause-by-clause consideration. The amended bill was reported back to the house. "On 28 October 2010, on motion of the Honourable John Baird, Bill C-36 was deemed concurred in at report stage. The next day, the bill was deemed read and a third time and passed.'' That is how they function: This "deemed debated,'' "deemed read'' and "deemed concurred in.'' We have to deal with what is in the bill. That is what I have been trying to do throughout.
In the end, I might agree with everything in this bill as it is and thank the minister. However, until I have had the opportunity to do so, I think it is irresponsible of me to ask any of my colleagues to do that or for me to do that.
The Deputy Chair: Thank you, senator.
Senator Seidman: I would like to call the vote on Senator Day's motion, if I might. I am not sure if that is correct procedure.
Senator Day: You are calling the question.
The Deputy Chair: You are calling the question. Honourable senators, are you ready for the question?
Senator Day, would you mind repeating your motion for the benefit of the committee?
Senator Day: I move:
That the committee hold two more meetings on Bill C-36, so that it may hear from panels of individuals, companies and groups that might be impacted by this legislation.
They would be outside entities, in other words.
The Deputy Chair: Do all senators assembled understand the motion?
Those in favour will please so signify. Those contrary minded please signify. I declare the motion defeated.
Senator Day: Could we have a recorded vote, please?
The Deputy Chair: Yes, certainly.
Ms. Richardson: The Honourable Senator Ogilvie.
The Deputy Chair: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: For.
Ms. Richardson: The Honourable Senator Champagne, P.C.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cordy.
Senator Cordy: Yea.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Marshall.
Senator Marshall: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Thank you. I thought maybe you did not have me on your list. I vote in favour of that motion.
The Deputy Chair: I declare the motion defeated 6 to 3.
Senator Cordy: I would like to make another motion that:
We ask Mr. Shawn Buckley to appear as a witness before our committee.
The Deputy Chair: The motion has been moved by Senator Cordy that Mr. Shawn Buckley be invited to appear before the committee.
Senator Cordy: Shall I explain my motion?
The Deputy Chair: If you wish.
Senator Cordy: I have received hundreds of emails from people requesting that Shawn Buckley appear before our committee. I have received phone calls and I have spoken with people who have phoned the office who have only asked that he appear before the committee.
I have also received letters requesting that Mr. Buckley appear. I believe we have a responsibility in tune with the democratic process to at least allow him to appear before the committee.
Senator Eaton: Given his appearance last time, I believe Mr. Shawn Buckley went through this bill very carefully. He is not concerned with Bill C-36 or then Bill C-6 but rather possibly another bill coming from Health Canada in the future. This is what he is fighting to set jurisprudence on, and I think it is a complete waste of time to hear from him again.
Senator Day: It would not surprise you, honourable senators, to know that I disagree with my honourable colleague. Mr. Buckley is qualified as a lawyer, I believe from British Columbia. I do not have his resumé in front of me, but from out west somewhere.
Senator Eaton: Alberta.
Senator Day: Thank you. He is probably the most knowledgeable person in Canada regarding this legislation, certainly from a lawyer's point of view. He was very helpful and reasonable in his last appearance. I thought he made some recommendations that were actually adopted by the government and the department. It would be interesting to hear his comments with relation to those that had been adopted as well as those that have not.
Senator Callbeck: I agree. I said the first time I spoke, that we should hear from Mr. Shawn Buckley. We have had hundreds of emails on this bill, and the public are demanding that we hear from him. I think that we have a responsibility to do so.
Senator Seidman: First, I am sure that Mr. Buckley has been offered the opportunity to send us a written brief. Second, as far as the hundreds of emails are concerned, I too have received them. However, I must say that it is very clear to me that they are computer generated because they are all absolutely identical with just a changed name on the bottom. Therefore, quite frankly, I do not know what the "hundreds of emails'' refers to. It seems to refer to one person changing the name and sending the same email out over hundreds of times.
I would like to call the question, or ask the chair to call the question.
The Deputy Chair: Thank you. Honourable colleagues, are you ready for the question on this motion? The question before you is understood by the committee.
Those in favour of the motion please so signify. Those contrary minded please so signify. I declare the motion defeated.
Senator Cordy: I would like a recorded vote, please.
Ms. Richardson: The Honourable Senator Ogilvie.
The Deputy Chair: Nay.
Ms. Richardson: The Honourable Senator Callbeck.
Senator Callbeck: Yes.
Ms. Richardson: The Honourable Senator Champagne, P.C.
Senator Champagne: Nay.
Ms. Richardson: The Honourable Senator Cordy.
Senator Cordy: Yes.
Ms. Richardson: The Honourable Senator Day.
Senator Day: Yes.
Ms. Richardson: The Honourable Senator Eaton.
Senator Eaton: Nay.
Ms. Richardson: The Honourable Senator Martin.
Senator Martin: Nay.
Ms. Richardson: The Honourable Senator Merchant.
Senator Merchant: Yes.
Ms. Richardson: The Honourable Senator Marshall.
Senator Marshall: Nay.
Ms. Richardson: The Honourable Senator Seidman.
Senator Seidman: Nay.
The Deputy Chair: I declare the motion defeated 6 to 4.
Honourable senators, I understand that the minister has arrived. We will take a short break to allow the minister to be seated and will recommence immediately after she has joined us.
I would now like to move into the formal part of the meeting involving our witnesses. I am delighted to see the minister here, and I will come back to her in just a moment. I would like to introduce the committee. I am Senator Kelvin Kenneth Ogilvie from Nova Scotia. I am the deputy chair of this committee, and I will be chairing today's meeting.
I would like to ask senators to introduce themselves, beginning on my left.
Senator Merchant: I am Senator Pana Merchant from Saskatchewan.
Senator Cordy: I am Senator Jane Cordy. I am from Nova Scotia and, minister; I understand you have a Nova Scotia connection. I am from Cape Breton. I discovered from some of my colleagues that you were also from there.
Senator Day: I am Senator Joseph Day from New Brunswick, and I visited Nova Scotia once, but I have not visited Nunavut yet.
Senator Callbeck: I am Senator Catherine Callbeck, Prince Edward Island.
Senator Marshall: Senator Beth Marshall, Newfoundland and Labrador.
Senator Champagne: Senator Andrée Champagne, from the Province of Quebec. I bet you like this hour better than 8 a.m., minister, which was when we saw you last.
Hon. Leona Aglukkaq, P.C., M.P., Minister of Health: This is perfect. When you have a two-year-old, it is much better.
Senator Seidman: Senator Judith Seidman from Montreal, Quebec.
Senator Eaton: Senator Nicole Eaton from Ontario.
Senator Martin: Senator Yonah Martin from Vancouver, British Columbia.
The Deputy Chair: Thank you, colleagues.
Today, our committee begins its study of Bill C-36, An Act respecting the safety of consumer products. As I noted a moment ago, we are delighted to have Minister Aglukkaq with us. We will also be hearing from Paul Glover, Assistant Deputy Minister of Healthy Environments and Consumer Safety Branch. I understand that Mr. Glover will be providing additional comments with respect to the minister's presentation to us.
Mr. Glover would you please introduce the colleagues you have with you this afternoon.
Paul Glover, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch, Health Canada: I would be happy to. On my right is Athana Mentzelopoulos, director general of the program area responsible for this piece of legislation and its subsequent implementation. To my left is Diane Labelle from Justice Canada. She is legal counsel to Health Canada and has been very helpful to us in putting this bill together. Further to the left is Robert Ianiro, a director in the Consumer Product Safety Bureau, who is also responsible for the implementation of this program.
The Deputy Chair: Thank you very much. Minister, I have informed the committee that we know you may be called back and may only have about 30 minutes with us. We are delighted to have you with us. I would now turn the floor over to you.
Ms. Aglukkaq: It is nice to be back. I actually never had a chance to go through this before and I have been looking to the day to appear before a Senate committee to deal with this legislation. I would like to thank you for the invitation to appear before you today.
I would also like to thank Senator Martin for sponsoring the bill. I want to thank you for the work that this committee has done on the Canada consumer product safety legislation in the past. The bill is stronger, clearer and better as a result.
I believe the time has come for this bill to pass into law and for the government to change the way we regulate consumer products in this country. I am happy to make that case before you today.
Over the past few years, as Minister of Health, I have travelled across the country meeting with parents, stakeholders and consumers. They are often surprised to find out we do not have the power of mandatory recall; they are sometimes even surprised to find out that Canada has a post-market system for regulations of consumer products.
I think a post-market approach makes sense for consumer products, given the range of products, known product liability expectations and the need for a free flow of goods. However, we have a very outdated law currently in place. It is over 40 years old. The Hazardous Products Act passed into law in 1969, when there were more domestic manufacturing, less of an international marketplace, a better understanding in general of manufacturing conditions and a lot fewer products in this country.
The globalization of our markets means that we have rapid product diversification and innovation, greater and quicker access to international markets, and consumers who seek the latest in consumer goods. These are all things that are generally good for the economy. We can make them safer for the individual consumers by improving the safety net in place for products. We have woven such a safety net with the three pillars of active prevention, targeted oversight and rapid response.
Although there is a widespread support for this bill from members of Parliament to the large majority of our stakeholders, I know there are still some who have questions on a couple of provisions of the bill, and I would like to address those issues.
The provisions in the proposed Canada Consumer Product Safety Act are targeted at efficiency, intelligence and the appropriate accountabilities for industry, government and the consumer. In order to support this approach, we have introduced a new suite of provisions for compliance and enforcement. These include the Administrative Monetary Penalty System, AMPS. The option of pursuing criminal prosecutions still exists under this proposed bill, and in that context, the defence of due diligence remains and is found at subclause 41(2) of the bill.
The AMPS provides a timelier and more efficient process whose goal will be to promote and achieve compliance. Clauses 31 and 32 of the proposed legislation would permit ordering recalls and other measures. Orders must be in writing and must set out reason, time and manner of compliance.
Under the AMPS, regulated industry would only be subjected to a notice of violation after a failure to comply with a prior, written order. In other words, those subject to a notice of violation must already have been advised in writing of the corrective action required and been provided with an opportunity to address regulatory non-compliance.
A penalty would be levied as a result of failure to comply with the written order. In those circumstances, it would be very difficult for industry to argue that due diligence had not been exercised. That is the reason for the provision of clause 59 regarding the defence of due diligence.
Another provision of the bill that has been cause for question is the ability to share information. As part of the overall provisions for active prevention, this legislation allows for information sharing under certain prescribed conditions. These provisions are found in clauses 15, 16 and 17. I would like to underline that the provisions in these three clauses deal with different kinds of information under different circumstances and with different pre-existing legal requirements. For each circumstance, this legislation sets a test the government must meet in order to allow for certain information to be shared.
The provisions in clauses 15, 16 and 17 do not create the ability to share information. In the case of personal information, that ability exists by virtue of the Privacy Act and, in the case of confidential business information, by virtue of common law. The provisions in clauses 15, 16 and 17 constrain the scope of possible information sharing by setting tests related to the mandate of the bill.
Finally, I understand some questions have been posed about product safety inspectors. Clause 19 gives the minister the authority to designate inspectors but does not outline their required qualifications. This is not uncommon. There are similar provisions in the Fisheries Act, the Canada Water Act, the Food and Drugs Act and many others.
All Health Canada product safety inspectors are required to have a university degree in either science or engineering. All of these inspectors are also required to go through rigorous training, including knowledge and understanding of the act and all its powers, and all regulations enacted under the act. We also have policies, guidance documents and standard operating procedures in place to support inspectors and ensure consistency and uniformity in their work.
As for the number of inspectors, I believe at least one senator has commented that perhaps we have too few. The government agreed. Since 2008 we have been on track to double the number of product safety inspectors in this country.
We have made a number of changes to this bill, which Mr. Glover will be discussing with you later. Many of them were designed specifically to address senators' concerns. The bill's core provisions remain in place.
Our major trading partners have already updated their legislations. For industry players in Canada who have international operations, the provisions are well known.
Up until now, we have been fortunate to have such close collaboration with our major trading partners, particularly from the United States. I thank them for the assistance they have continued to provide us and for working with my departmental officials on joint recalls.
It is time for us to have our own domestic intelligence on product safety failures. Sometimes those failures result in injuries or near misses, and sadly they sometimes result in fatalities. We must have the tools to find out quickly when such incidents happen. We can use this information to determine consumer product trends and to inform our scheduled sampling and testing activities through information based priority setting.
To respond to what we learned from this intelligence and to ensure rapid response, we need the power of mandatory recall. To ensure we have all the information required to make good decisions, we need the authority to request test results. We need access to documents that allow efficient tracking through the supply chain.
Honourable senators, the proposed legislation now before you contains changes that I hope will satisfy your concerns and garner your support. Although the changes made have provided some clarification, the strength of the bill remains the same.
Thank you. I would be happy to answer any of your questions.
The Deputy Chair: I understand that Mr. Glover may make some additional comments now, and then we will open it up for questioning.
Mr. Glover do you have some remarks to make at this point?
Senator Day: Chair, since the minister's time is very limited —
The Deputy Chair: Mr. Glover, would you be prepared to hold your remarks or does the minister feel they are important to hear initially?
Ms. Aglukkaq: I will refer technical questions to the staff.
The Deputy Chair: In that case, we are please to proceed with questions for the minister, Senator Day.
Senator Day: Madam Minister, thank you for being here today. Did you consider the U.S. approach of an independent agency rather than doing all of this in house?
Ms. Aglukkaq: As part of the review process, I believe we had that comparison. However, at this point we did not feel we needed a separate agency to do the recalls within the existing Health Canada Act. We have the provisions within this legislation to do the mandatory recalls. However, the way in which it is designed, the industry, the consumers and Health Canada will partner to investigate any unsafe products in our country and on our store shelves. The provisions are in place as a result of mandatory reporting, incident reporting, tracking of testing, as well as distribution of products.
Senator Day: The question was a simple one. Did you consider the U.S. approach of having a separate agency versus the way it is proposed to be done here?
Ms. Aglukkaq: We are proposing to do it through Health Canada.
Senator Day: Did you consider —
Ms. Aglukkaq: Yes.
Senator Day: You did and you decided not to follow that; is that right?
Ms. Aglukkaq: Yes.
Senator Day: All I wanted to know is that you are aware of the U.S. approach.
Ms. Aglukkaq: Yes, I am aware. We get unsafe product information on a regular basis from the U.S. Consumer Product Safety Commission.
Senator Day: You talk about a number of qualifications for inspectors. In the U.S., what we call inspectors here would be within that commission. You have not generated any regulations under this legislation yet, have you?
Ms. Aglukkaq: It is not in place yet.
Senator Day: Therefore, why are you telling us what the qualifications are? Are you telling us this is what you will be generating as regulations in due course?
Ms. Aglukkaq: There are current inspectors within Health Canada, and most have science or engineering backgrounds. Also, within governments, there are a number of different types of inspectors in place to roll out in a number of areas.
In terms of different types of inspectors' qualifications, we can provide you with copies of job descriptions if you like to be aware of those qualifications.
Senator Day: Clause 19 provides that, once the legislation is passed, you will appoint inspectors. Are you telling us in your presentation today that the inspectors that you will appoint will have the same qualifications as the existing inspectors under the current legislation?
Ms. Aglukkaq: As far as I know, that is correct. We would have more of them, though.
Senator Day: Yes, we were told by the sponsor of the bill in the Senate that would you have more.
Ms. Aglukkaq: Yes.
Mr. Glover: In addition to the minister's answer, inspectors under the new provision, should it pass and they be appointed by the minister, would be subject to extensive training with respect to the new bill and the new provisions in the bill. To characterize this, they would have the same level of knowledge and skill as previous inspectors under the Hazardous Products Act.
Generally, in terms of their professional qualifications, a university degree would be needed, but there would be very extensive, specific training to ensure that they are properly versed on all of the powers, tools and the way we want to work with industry. In that way, they would be able to properly enforce all aspects of the bill.
There is additional training beyond professional qualifications that all inspectors must undergo.
Senator Day: Are those qualifications and requirements in draft form now?
Mr. Glover: Those are done as a matter of policy, not regulation, within Health Canada. That has and continues to be the practice as we move forward.
Senator Day: They are not regulations, then, and therefore not reviewable until they are generated by parliamentarians; is that not correct?
Ms. Aglukkaq: I would like to clarify something. The whole human resource process for recruitment and retention is different from this. Job descriptions are developed through the job classification systems. They are evaluated, advertised and they determine the pay; it is part of the union and part of all of that.
Therefore, you do not regulate job descriptions but the task of enforcing this. Whether you want to regulate job descriptions is a conversation to have with a union.
There is a process in place already within the public service, in any jurisdiction, that any job is evaluated for its credentials based on the scope of work and legislation — written, evaluated, advertised and so on. That is supported through collective agreements and labour standards acts. Job descriptions are not normally regulated.
Senator Day: You talked about qualifications in your presentation. I was merely asking for clarification as to where we might find what those qualifications will be. I think you have told us now. I have a number of other points and a lot of other senators want to ask questions.
On page 7, you write, "The provisions of clauses 15, 16 and 17 do not create the ability to share information.'' Is that not a mistake? The way I read clauses 15, 16 and 17, they create the ability to share information.
Diane Labelle, General Counsel, Legal Services, Health Canada: If I may, clauses 15, 16 and 17 do provide for the parameters under which personal information or confidential business information may be disclosed. If you wish, I could go into some detail as to the differences between clauses 15, 16 and 17.
Senator Day: Not at this time.
Ms. Labelle: I can hold that for later.
Senator Day: Could you read the first line of the penultimate paragraph on page 7 of the presentation of the minister? "The provisions of clauses 15, 16 and 17 do not create the ability to share information.''
Ms. Labelle: Yes.
Senator Day: That is what I would like you to explain.
Ms. Labelle: I understand the tone of the paragraph. These clauses are not unique to this legislation. We can find authority to disclose information elsewhere.
In terms of sharing personal information, there is authority in the Privacy Act. In terms of sharing confidential business information, we find that authority in the case law that is developed through the court system.
Those authorities lie elsewhere. This bill adds parameters, as I was stating, and the conditions under which the information can be shared.
Senator Day: You stick by the statement that ". . . clauses 15, 16, and 17 do not create the ability to share information.'' It does not say "the exclusive ability'' or "only ability,'' but it says "do not create the ability to share information.''
Ms. Labelle: That ability exists independent of the legislation and that is what I will confirm.
Senator Day: Okay. Let us go back to page 6 in the minister's presentation.
It says, "That is the reason for the provision of clause 59, regarding the defence of due diligence.''
We have a number of colleagues who are concerned about this. As you know, we were last time, also. If you go the criminal route of an offence, due diligence is a defence. If you go by way of the administrative process, it is not.
The way this reads, that is the reason for the provision of clause 59, regarding the defence of due diligence. Clause 59 says there is not a defence of due diligence, does it not?
Ms. Labelle: I would be happy to respond to this question. It is also another detailed and technical response, which I can detail later during the session.
Simply put, under the criminal regime set out in this legislation, due diligence defence is available if the prosecution is undertaken. That is done because we are involved in the criminal law process where the individual is subject to criminal sanctions; there are penal consequences, and liberty is at stake.
Under the administrative regime, I would like to stress that it does not begin with the administrative monetary penalty regime. That is the end of the process. The process begins at step one: An inspector or official conducting an inspection in an establishment, which I will call a "supplier'' just for ease of reference, observes that there is a defect with a certain product. At that point, the official/inspector will identify that defect and advise the supplier accordingly. There is an opportunity right there to remedy that defect.
In the case where that does not happen, as you know, the legislation provides for a regime of orders. These orders are set out in writing, detailing what will be required to meet compliance either through the legislation or regulatory requirements. Each of these orders is reviewable through different processes, either through the review of an officer or through the review by the Federal Court under judicial review.
There is a multiplicity of opportunities for the supplier to clarify any mistake, to set out their facts, and to set out their circumstances for which there would be a remedy available.
An administrative monetary penalty can only be imposed once there has been a violation of an order. As I have pointed out, there are multiple locations on which these orders can be challenged. Even at that point, there is still the opportunity for further review by the minister.
In effect, that review is a re-determination. There is a first determination through the official that the compliance order was not complied with. There is the issuance of a violation, and then the supplier has three different routes to go: They could enter into a compliance agreement, they could challenge this before the Federal Court, or they could request a review by the minister. The minister in that situation is in a position to do a re-determination, in effect.
The short answer is that a due diligence defence is not considered a viable defence in the scheme of this legislation.
Senator Day: Could I say that the short answer to my question is on page 6. The sentence that reads, "That is the reason for the provision at clause 59, regarding the defence of due diligence'' should state "clause 59, regarding the lack of a defence of due diligence.''
Is this written so you do not want to tell people that due diligence is not a defence for the administrative process?
Ms. Labelle: The written speech is trying to make the point that, given the many opportunities a supplier has to remedy non-compliance, the due diligence defence is not viable.
Senator Day: My final question is with respect to the amendment we had proposed previously. We had a scheme for a voluntary recall; you working with the industry. Let me say, first of all, that I believe the most fundamental change that you have made from Bill C-6 to this bill is that the minister is making the mandatory recall order now and not an inspector. We were very, very pleased with that amendment and we want to thank you for that change.
However, you did not go so far as to create the scheme of a voluntary process, and we see most recalls are voluntary, in the United States as well as Canada. Therefore, we cannot say it is a lack of legislative authority in the United States.
Is there a reason why you did not outline the process for at least initially trying for a voluntary recall?
Ms. Aglukkaq: Thank you for that question. That is always the option; that is where you start. We would learn of an unsafe product in the market through the reporting systems that would be incorporated in this legislation. Then our inspectors would then go to the industry and start to investigate where this may have been distributed and whether there have been other incidents across the country. We have no mechanism in that process now.
In working with industry to investigate an unsafe product, the first course would be to remove the unsafe product from the market based on evidence and incident reporting, first and foremost. If the industry does not comply, then we have the provisions for the monetary penalties. If they do not comply with that, there is a criminal process that we follow.
However, the voluntary process is the first step in this implementation of this legislation, which we currently do not have. Currently, we find out from the United States when there is an unsafe product in Canada. That is not protecting or putting the health and safety of Canadians first and foremost. Industry has also told us it is in their interest to ensure their product is safe and they want to work with us in the process.
One industry not complying is one industry too many when you are dealing with a child that died in a crib or a child that had amputated fingers because of a stroller. These are real incidents happening in Canada that we need to address, and this legislation would address them. Industry is cooperating, and many of them are here today to listen to this hearing, in support of working through this legislation to prevent injury from occurring.
With the old legislation we have now, death or injury have to occur first before we can respond.
Senator Day: Madam Minister, you told us that same process last time, or your officials did, and we thanked them for that. As a result of that, we proposed an amendment that was passed by this committee, according to my recollection, but was defeated at report stage. It provided for that voluntary process you just described.
Ms. Aglukkaq: That is in place now.
Senator Day: It is not in this legislation.
Ms. Aglukkaq: An inspector does not go from the office to the industry and issue a fine. There are a number of steps before the inspector gets there.
Senator Day: Precisely.
Ms. Aglukkaq: The incident has to be reported and an investigation has to occur. Then there is a determination whether the product will be recalled, and that goes through the minister and advisor and whatnot, voluntary or not.
Senator Day: You are asking for the power for mandatory. I am asking why would you not put the softer voluntary provisions in the legislation at the same time. That is my question. Why did you decide not to put into the legislation that which you describe you do anyway?
Ms. Aglukkaq: The soft approach I have just described to you is the start of the investigation process.
Senator Martin: Thank you, minister, for being before us once again at this committee and for all the work you and the officials here have done on this bill. As you say, we owe it to Canadian consumers to ensure that what they are getting on the shelves is, indeed, a safe product. As a consumer, mother and parent, I absolutely support the provisions in this bill, the way it has been strengthened and, as you say, the concerns were addressed. I am hopeful. I am sure there will be support around this table.
My question goes back to something raised earlier regarding the process of hearing from stakeholders.
What has that process been; in what ways have you consulted with stakeholders and what have you heard? Before you answer, I want to acknowledge the work that Senator Day has done as critic of this bill, now and in the past, and to acknowledge the due diligence he is doing in the kinds of tough questions he has asked you today. I want to thank him for his work on that.
Ms. Aglukkaq: First of all, thank you for the question. I have been involved in the legislation since 2008. Previous ministers have introduced similar legislation in the past. Therefore, this process has been going on for about four years.
I have listened to many of the consultations that have taken place across the country. The success of this legislation is dependent on the information we get from concerned citizens, consumers, stakeholders, Safe Kids Canada, organizations on injury prevention, et cetera.
Having gone across the country speaking to stakeholders, my view is that most people are shocked that we do not have the mechanisms to recall products. I was shocked; I assumed that the toys I bought for my child were safe. Then I found out that they are not.
I found it appalling that a government would not support legislation that would put the health and safety of Canadians first, especially our vulnerable children. You see many unhealthy marketing campaigns aimed at our kids: tobacco, unhealthy foods and unsafe toys.
This is what we are up against in introducing legislation in this country that allows the officials to quickly respond and investigate. We have heard from many stakeholders who are here today as well that there is a time that we need to move on this. There is a time that we need to address injury prevention. We have organizations out there that focus on prevention, whether it is bicycles, seat belts or helmets. They need legislation of this nature to support their initiatives and so on.
The input and feedback from many of the stakeholders has strengthened this legislation and balanced the interests of consumers, stakeholders, and the retailers and industry as well.
It has not been easy. There are a lot of myths we have had to tackle along the way. However, at the end of the day, this legislation is about protecting the consumers, and that is not what is talked about on a regular basis with this legislation. Therefore, I try and bring it back to perspective that this is about the consumers. As elected officials and appointed members, we are here to protect.
The legislation is 40 years old, and I am told people were still riding horses in those days down here and dog teams up North when this legislation was introduced, so a lot has changed with trade and marketing.
In my view, it is much better legislation that I think is long overdue in this country.
Senator Martin: In going forward with implementation once this bill is passed, you also mentioned the partnership with industry. Will it be an ongoing process in terms of consultation and engaging the industry in a successful implementation as well?
Ms. Aglukkaq: That is absolutely correct. Our goal will also be to educate our own organization and our inspectors on the new legislation. There is training associated with that, and that goes again to the industry. The industry will have to be a part of that as well.
That will not only happen within Canada; we also have to share the information with our international trading partners. We are now a part of an advisory committee in the international community that involves China, the United States, the EU and Canada on how to track unsafe products. However, our legislation is so outdated that we are not at par with those countries in mandatory reporting and recall.
Once this legislation is passed, we will be able to share within the international community that we are now a part of, after our trip to China a month ago. It will help us to be on the same playing field as our trading partners.
Canada needs to catch up with the other countries. There will be training and information going out to industry. Industry has been a part of this process for some time now and they are very well aware of the provisions in this legislation. We have had to clarify a few areas, but they are well aware of it. In my view, it is in their interest to ensure their products are safe in this country.
Senator Callbeck: Thank you minister and officials, for coming today. This is important legislation. We support it and we want to protect consumers. We are asking questions because we want to ensure we get this legislation right.
You mentioned the qualifications of inspectors. You said in your remarks you intend to double the number of inspectors in this country. How many do we have now and when do you expect to double the number?
Athana Mentzelopoulos, Director General, Consumer Product Safety Directorate, Health Canada: We started with 46 inspectors. That was prior to 2008-09 when the commitment was made to double the inspectors. We are midway through a five-year funding plan and we have hired approximately 26 more inspectors. We are where we should be in terms of a 50 per cent increase, and we are on track to be at 90 inspectors.
Senator Callbeck: You have doubled to 90 inspectors in five years.
Ms. Mentzelopoulos: Yes, senator.
Senator Callbeck: There is a bit of a difference in the wording in clauses 15 and 17. Clause 15 talks about sharing personal information in cases of serious danger, and clause 17 deals with confidential business information. It says "serious and intimate danger.'' Why is there a difference?
Ms. Labelle: Under clause 15, the personal information is shared with other authorities and agencies that carry out functions relating to the protection of human health or safety. Clause 17 deals with confidential business information and that is under circumstances where the minister would be facing a situation where there is a serious and imminent danger to human health or safety. Therefore, the disclosure is to the public, generally, or at least the potential is there. That explains the difference in wording and the difference in the threshold. One is with limited, restricted sharing and the other one has to do with the broader public.
Senator Callbeck: When we were dealing with Bill C-6, one witness talked about a national recall register that has mandatory and voluntary recalls. A person can check in and get a whole list without going to 15 different places. Was that considered?
Ms. Aglukkaq: My officials just advised me we have that now.
Senator Callbeck: You have that now? Is that at Health Canada and it has all the voluntary recalls on it?
Mr. Glover: Health Canada does have a database available to the public. It is searchable. You may sign up for regular feeds, so you get an email from us any time a product in a category you are interested in has been recalled. That is available. It includes recalls initiated by the department and recalls that industry has voluntarily initiated. It includes both the mandatory and voluntary recalls. Therefore, there are very few mandatory recalls because only those products are regulated. Therefore, almost everything on there today is what is done voluntarily through industry as that moves forward.
That does exist today in the department.
Senator Callbeck: Does a company or manufacturer that recalls something have to put that on your site?
Mr. Glover: Under the current framework, the answer to that question is no.
Ms. Aglukkaq: We do not have mandatory recalls.
Senator Callbeck: That is my question. Did you give that any consideration?
Mr. Glover: We built the infrastructure to allow for that. When we are aware and when they ask, we put those recalls on the database, but it is not a current requirement.
With the new legislation and mandatory incident reporting, we would know by default all that is occurring and we will be able to ensure that database is complete. Since we will be getting all of the incidents, we will have the information to populate that. We will no longer require an industry to tell us voluntarily as it moves forward. We will have both recalls and incidents reported to us on a mandatory basis, and we are committed to making those available to the public.
The Deputy Chair: Senator Callbeck, I have just been advised the minister will need to leave by 5:25 p.m. Are your questions directed to her, or would you like to give your colleagues each a crack at the minister?
Senator Callbeck: I will give my colleagues time.
The Deputy Chair: Thank you.
Senator Cordy: "Crack'' is probably not the right terminology to use. Thank you very much, minister, for being here today.
As Senator Callbeck said, we all support the principle of safe consumer products. We just want to ensure that this bill does the job that it is intended to do. I want to publicly thank Senator Day and Senator Martin, the critic and sponsor of the bill, respectively; I know they have done a lot of work. I want to thank you, minister, for incorporating the amendments that were made this time last year by the Liberals on the committee for what was then Bill C-6. Unfortunately, that bill died when Parliament was prorogued by the Prime Minister.
I know you were critical of the amendments at the time, but you accepted some of them for Bill C-36, which we have before us today. As you said earlier, this has made the bill clearer and better, and I think that is how the Senate should work: To provide sober second thought.
Senator Callbeck asked my questions about the national recall. My comment to that would be that I did not know there was a list, so perhaps it should be advertised better. Perhaps if this bill passes, it would be a good time to communicate it better to the public.
Minister, I would like to ask you a little bit about process as we work through this bill. We have certainly received a lot of phone calls, many emails and letters from Canadians who want their voices heard regarding this bill. Many wanted to have Mr. Shawn Buckley appear to speak to the committee. He is a constitutional lawyer and has written extensively about this bill and its predecessors. Would you have any objection to Mr. Buckley appearing before our committee as a witness?
Ms. Aglukkaq: You are the Senate committee. You decide; it is not my call.
Senator Cordy: So you would have no objection, then?
Ms. Aglukkaq: This is a Senate decision. I believe there is a process and there are rules around Senate committees. That is decided amongst yourselves. I do not have a say in that.
Senator Cordy: So you or nobody in your office —
Ms. Aglukkaq: I do not have an opinion on who you invite to appear before your committee. Again, there are rules by which you govern your Senate committees, and that is your prerogative.
Senator Cordy: So nobody in your office, including you, would be in touch with anybody on the committee to say who we should or should not have, or that we should have or should not have Mr. Buckley?
Ms. Aglukkaq: No.
Senator Cordy: Thank you very much.
Ms. Aglukkaq: I do not know the man; I have never met him.
The Deputy Chair: Senator Eaton, I understand your question can be handled by officials.
Senator Eaton: Yes.
The Deputy Chair: Senator Marshall?
Senator Marshall: The officials can answer my question.
Senator Cordy: I have one for officials, too.
The Deputy Chair: Minister, on behalf of the committee, I thank you very much for appearing before us today. I have been informed of your schedule and I know this was a sincere commitment on your part. We thank you for that and for your answers here today. We are delighted to have your officials, who will be with us for the rest of the meeting today.
Ms. Aglukkaq: Thank you very much and I thank all the senators for their questions. I know our officials will have another couple hours with you to answer any other technical questions you might have. Thank you very much and thank you for your support.
The Deputy Chair: We will now continue the meeting. I remind members that we agreed at the outset that the meeting will end at its normal time at 6:15.
I had a list. Senator Cordy kindly offered to allow the questioning to go to others.
Senator Cordy: Senator Eaton can start.
The Deputy Chair: Actually, Senator Callbeck passed off first. Would you like to go back to questioning?
Senator Callbeck: Will Mr. Glover go through his remarks or give his presentation?
The Deputy Chair: At this stage, Mr. Glover, do you believe that it would be important for us to hear officially from you with regard to your presentation? If that is the case, we would be delighted to have you present.
Mr. Glover: Thank you, Mr. Chair. I believe my remarks have been tabled with committee members, so if you have had a chance to read them, I would be happy to forego them and allow a chance for questions.
However, at the same time, I had planned on outlining a number of the significant changes to the bill so that the committee could have a clearer understanding of some of the amendments and changes that have been passed. I would be happy to abbreviate my comments and highlight those areas, if that is of interest to the committee.
The Deputy Chair: Mr. Glover, I have seen a clear indication from the committee that they would most welcome that, so would you please proceed.
Mr. Glover: As the minister said, this piece of legislation is based on three provisions or strategies. It is really about active prevention, targeted oversight and rapid response. If you will attempt to follow me, for sake of time, I will probably skip fairly quickly to what is on your page 2 fairly quickly.
As many of you know from the previous study of the proposed legislation, it is built on those three pillars: Active prevention, targeted oversight and rapid response. These pillars support the government activities, but it is not the government alone that is responsible for product safety.
[Translation]
We believe that consumers and industry also have responsibility for product safety.
[English]
We want to inform consumers who make good product choices, and we want industry that takes responsibility seriously and understands product liability.
In both our programming and in our legislation, we aim to support this balanced approach. To achieve this, Bill C- 36 contains five key provisions. First, the legislation would introduce a general prohibition against any products that pose an unreasonable danger to human health and safety. The bill would also provide the minister with the authority to order recalls or other corrective measures. Bill C-36 would introduce mandatory reporting, which we have discussed, which would require industry to quickly report health or safety incidents with consumer products.
[Translation]
With this legislation, the Minister of Health will be able to require manufacturers and importers to produce test results to show that their products are safe.
[English]
Fifth, the proposed Canada Consumer Product Safety Act would require industry to maintain certain documents in order to assist in tracing unsafe products when they are identified.
Since last before you, the proposed Canada Consumer Product Safety Act has changed in a number of important ways. First, before the legislation was reintroduced last June, the changes the Senate had made to the bill when it was here as Bill C-6 were, as we discussed, carefully studied. The government recognized that the senators' concerns and proposed changes largely focused on the perceived scope of inspectors' powers and the concern that there was insufficient constraint on what inspectors might be authorized to do.
Of the six changes made to Bill C-6 before it was re-tabled as Bill C-36, four addressed inspectors' powers. The proposed legislation was changed so that the minister is now authorized to order product recalls and take other measures. This makes the minister expressly accountable for such actions. A specific time frame for a review officer to complete a review of orders for a recall and other measures was also added to provide certainty to industry.
The bill now defines "storing'' to clarify that consumer products stored by an individual for their personal use are excluded from this act. The provision regarding an inspector's ability to enter or cross over private property during an inspection has been modified to address concerns.
There were two other changes made at that time. One clarified the scope of the advisory committee and the other amended the schedule of prohibited products so that the prohibition on polycarbonate baby bottles containing bisphenol A is now included.
When Bill C-36 was before the lower house, we became aware that senators supported these amendments, but there were also concerns that some input they had provided on Bill C-6 had been overlooked. The Standing Committee on Health, therefore, considered and passed five additional amendments to the bill.
Clause 15 was amended to clarify that Bill C-36 does not affect the provisions of the Privacy Act. Clause 38 was amended to address the unique nature of the Senate where committees are not automatically seized of anything, but rather act on direction of the Senate Chamber as a whole. Clause 38 was also amended to avoid the suggestion that the minister could be a member of both houses of Parliament simultaneously.
Clause 39 was amended to set a time frame of 30 sitting days for the minister to cause a statement to be tabled for the reasons for not laying a regulation before each house of Parliament when the criteria under paragraphs 39(1)(a) or (b) are met.
Clause 39 was also amended to avoid the suggestion that the minister could be a member of both houses of Parliament simultaneously.
Clause 60 was amended to address concerns that the provision lacked clarity about the role of the minister in reviewing notices of violations, and the amendment of clause 60 necessitated a technical amendment in the French version of subclause 56(1) to maintain consistency in the language used.
These are the highlights of the bill and the amendments made since it was last before you. We believe this legislation will help ensure safer consumer products, better protection of consumer health and safety, and a more level playing field for responsible Canadian businesses and greater clarify of industry obligations. It will also bring us into line with our international trading partners. I will be happy to questions at this time.
Senator Callbeck: When this legislation was first introduced back in March 2008, there was a companion piece to amend the Food and Drugs Act. When do you expect that will be reintroduced?
Mr. Glover: I regret to inform the committee that that is not an area for which I am responsible. Furthermore, as an official, I serve the government, and it is the government's decision as to when it will introduce legislation. That is not something that I am privy to. When the government chooses to advance legislation, it informs officials, and we respond to their request.
Senator Callbeck: You mentioned in your remarks about the minister having the authority to order anyone who manufacturers or imports a consumer product to conduct tests and studies. Under what circumstances can the minister order that?
Mr. Glover: We do exist in a post-market regime, not a pre-market regime. Industry might have claims that a product is safe, and we would be interested in understanding how they arrived at that claim. If it had, for example, a particular chemical in it that we had some reason to be concerned about, and they said they have tested it and it is fine, rather than the government incurring the costs of running those tests, we could ask the industry to provide them and then validate those tests in our own labs. It allows us to be more efficient not to have to duplicate and second-guess industry, but to work in partnership with industry when they have information that is material to whether a product will be safe if used as intended. The purpose of that is to help us work with industry to make determinations about the safety of products and to allow them to bring information forward to us as the regulator for our consideration.
Robert Ianiro, Director, Consumer Product Safety Bureau, Health Canada: Provision 12 is quite specific in that the test results and test studies that we are able to request are from the highest levels of trade, that is, manufacturers and importers. This would not be an authority that we would be able to exercise at retail level, unless those retailers were also manufacturers and importers. That is the first point I would like to make.
Secondly, from clause 12, the actions are specific to verifying compliance or preventing non-compliance. It is very specific, and again it only applies to the higher levels of trade.
Some examples include past experiences of violations where we want to verify that a new product that has come in, for example, meets the regulated requirements. Mr. Glover suggested the area of concern where we would like to obtain information that may be in the hands of manufacturers or importers, again to verify that compliance or prevent non-compliance.
Senator Cordy: I wonder if you could just work me through these things. Currently, voluntary recall is in place, so it does not have to be in the new bill; correct? We currently have voluntary recalls, is what the minister said, I believe.
Mr. Glover: You suggested that I work you through a number of things.
Senator Cordy: First of all, let me know whether that is the case. Currently, we have voluntary recalls.
Mr. Glover: We currently have voluntary recalls. They are not laid out in legislation. It is the way we work with industry.
Senator Cordy: This bill will not have any effect on that. I do not see anything about voluntary recalls in the bill.
Mr. Glover: There are two ways to answer that question. The first is that it will have a significant impact on voluntary recalls. One of the problems that we face is that senators, politicians and the public, target criticisms at the bureaucracy that we are too slow, that it takes too long for us to negotiate a voluntary agreement, and that companies, because there is no concern that they might be faced with a mandatory recall, oftentimes drag these things out quite long. They know the only mechanism we have to move quickly is to actually create a regulation, put it on a schedule and prohibit it. That can take, if we go quickly, up to 18 months, and there are comments periods.
For those industries that are responsible, there will be no change. They will come to us with incident reports, deciding they want to take steps to protect their brand and reputation, and we will see no change. For those industries that have "played the game,'' and I use that term carefully, we now have a better ability to negotiate a voluntary recall with them. If they start to drag that out to the point that we feel they are compromising the health and safety of Canadians, we can say we are no longer prepared to continue to work with them on a voluntary basis and need to move more quickly.
As Senator Day said, in the U.S., they have found that the simple ability to say they have the authority to impose has meant more companies are more willing to negotiate more quickly. That will have a material impact on our ability to work more quickly and more successfully with industry on a voluntary basis to better protect Canadians and their families.
Senator Cordy: Having the stick will help with the volunteering more quickly, is what you are saying?
Mr. Glover: For certain industries, yes. For other industries, there will be no change, no impact.
Senator Cordy: Right, because most are, in fact, very good corporate citizens.
Mr. Glover: Correct.
Senator Cordy: In terms of the regulations, if the bill passes before Christmas, how long will it take before the bill is fully implemented and the regulations are put in place?
Mr. Glover: That also is a prerogative of the government. With the passage of every bill, there is a Royal Proclamation and the coming into force, and there tends to be transition periods to work with industry to allow them time to get up to speed on those things. I am not at liberty to comment on what will eventually be a decision of the government with respect to, should the bill pass, when it will come into force.
Senator Cordy: What about the regulations? I have heard in dealing with other bills that it can take up to five years before regulations are put in place.
Mr. Glover: As this committee is well aware, we have been at this bill a number of times and the transfer of regulations from the previous Hazardous Products Act to this act to ensure the prohibitions. We have been working on these, and we are ready to engage the government, should the bill pass, with a discussion about how quickly we can be ready to implement this important piece of legislation.
Ms. Mentzelopoulos: We have done a certain amount of pre-consultation. Over the summer, we took the opportunity to put up policy statements about mandatory reporting, about the administrative monetary penalty scheme, about exemption regulations, and finally an information piece about the transfer of regulations. We have tried to put forward the policy statements and position ourselves well to advance, given the opportunity.
Senator Cordy: Was this consultation with business and consumers?
Ms. Mentzelopoulos: Yes.
Senator Eaton: Ms. Labelle, I think many senators are concerned with the voluntary recall. Could you take us through the steps — the non-compliance, the letter, the warning letter, the visits? The inspectors will take certain steps. Could you enumerate them for the committee?
Ms. Labelle: I would be happy to take you through the various steps. I would like to draw your attention to the fact that the legislation is drafted in permissive terms. That is, the minister may issue an order; she does not have to issue an order. She can take into account particular circumstances at the time non-compliance is found.
I believe most of the steps are administrative and operational. My colleague Mr. Ianiro will likely fill in the details. From a legal regime, there first must be an observation that there is non-compliance with the act or the regulations and that that non-compliance is communicated to the supplier. It is at that point in time when voluntary action can take place. As Mr. Glover explained, through a long history of experience and with stronger mandatory recall powers, industry reacts more promptly when that is possible.
Senator Eaton: He can ask for a review first, though. There are quite a few steps you can take?
Ms. Labelle: That is correct. That is once we enter into a regime and that order has been issued. At that point time the supplier, or the person found in non-compliance, can then request a review by the review officer. The review officer basically has authority to start the process anew. It is a de novo process, meaning that he or she must be satisfied that there is non-compliance. There is an opportunity for the supplier to make his or her case known and to explain the circumstances surrounding the observation made by the initial official. If the supplier is still not satisfied with the outcome of the review by the review officer, then the supplier can access judicial review, typically at the federal court when we are dealing with federal legislation. If a court found that this decision was arbitrary, or unreasonable, or unfair, it would set the order aside.
Having said that, if we continue through with the process and there is non-compliance with the order, at that point the official can consider the issuance of a notice of violation. In other words, there is an observation that the compliance has not been achieved, the order has not been respected and the issuance of a violation can be considered. In cases where the circumstances warrant it, there could also be a discussion with public prosecutors — that is, if the circumstances require criminal proceedings.
Again, let us assume that we will go the administrative mandatory penalty route. At that point, once the notice of violation is issued, the supplier can request a review of the order of the notice of violation by the minister. Again, it is a redetermination. The official who issued the order will have determined there was non-compliance with the compliance order.
Sorry for the choice of words. I seem to be using the same words to describe different situations. I apologize for that.
That compliance order, along with the notice of violation, will be before the minister. The minister must then re- determine whether or not there has been non-compliance with the order and whether or not the notice of violation is justified. Again, if the supplier is not satisfied with the outcome of the review by the minister, judicial review is available. There are many opportunities along the way, as you point out, for someone to comply before they are compelled by law to do so.
Mr. Glover: In response the honourable senator's question, I would like to point out that oftentimes when our inspectors are working with industry we take what we call a step-wise approach. Our objective is to bring them into compliance. We talk about recalls like that is the only action we take. Oftentimes we see simple things, for example, a product that is not appropriately labelled. That is, it does not have the explosive symbol or the flammable symbol on it. We say, "You need to change the label so that people buying this are aware. This does not need to be recalled. You can fix this.'' Our objective is to work with them to have a compliant product. That is why we take the step-wise approach as we move through with them. We feel it is also beneficial because it is a way to educate the importers, the manufacturer and the retailers about their obligations. If we are ever back to do cyclical enforcement, then they are aware of their obligations and have learned through this process.
We do many things long before we get to a recall, if that is appropriate. If there is an imminent risk to health and safety, we work quickly and aggressively with the company. However, many incidents do not lead to a recall. It could be as simple as labelling. That is, a label is not in French and in English, so people may not be able to follow instructions, warning labels, and so on. There are a range of things that we do with industry to bring them into compliance, which they very much appreciate and often find is helpful and educational to them as they move forward.
Senator Marshall: I want to talk about the inspectors because they have a big role to play in administering this legislation. Could you give me some information on what they will be doing? I can break it down into categories. What kind of training will the inspectors receive? You spoke about 70-plus inspectors and there was some indication that they require a degree in science or in engineering. Regarding the training, I want to know where the 70-plus inspectors are located. Are they all located in Ottawa or are they spread across the country? Are they solely responsible for this legislation, or are they responsible for administering other legislation as well? I want a general idea what they do on a daily basis.
Mr. Glover: We have time constraints so I will attempt to be as brief as possible and I will turn to my colleagues to round out the answers.
There is no typical day for inspectors. Some of them are specialized in mechanics or chemicals. We have a range of inspectors with a range of expertise. They are distributed across the country. They could be following up on complaints from consumers; they could be building cyclical enforcement strategies, for example about who they inspect and how long it has been since they went back to inspect. They could be working with other jurisdictions saying how do we work with the trends and translate that into inspection and enforcement activity in this country. There are a wide range of things they do on a daily basis. In addition, they work with partners, particularly the Canada Border Services Agency. If we see products being imported into the country, we work with them to put watches in place so that they can stop things before they come into the country, if required. Coroners call upon them sometimes as part of an inquest. They perform a broad range of activities.
With respect to their training, it is comprehensive and it will depend on their area of expertise. We have a significant training manual on standard operating procedures that they must follow as they move through this.
Ms. Mentzelopoulos: Mr. Glover touched on the qualifications in general. They are established by the group and the level of the position. In the case of inspectors, they are all required to have a university degree. It must either be in science or in engineering. Anecdotally, having seen some recent hiring, there were two new inspectors who held PhDs. They are highly qualified. At the moment they are under the Hazardous Products Act. Should the CCPSA pass, they will be trained extensively under the auspices of the new legislation.
Senator Day: This bill replaces Part I of the Hazardous Products Act. Do they continue to have responsibilities under other parts of the Hazardous Products Act in addition to their function here?
Mr. Ianiro: Part II deals with the controlled product regulations and requirements for the Workplace Hazardous Materials Information System, which is a federal-provincial-territorial partnership. The inspectors nationally that are designated to enforce that part of the act are the provincial inspectors. The federal government does the national coordination through an office under the director general of the Consumer Product Safety Directorate. Part II of the Hazardous Products Act will continue to exist, as will Part III, which provides the inspector powers and their administrative authorities, so nothing would change for Part II. Only the inspector provisions for those designated to deal with the consumer product safety piece, which is currently Part I, would move over to Bill C-36.
Senator Day: Will they have two hats? Will all of the inspectors that do consumer product safety under the Hazardous Products Act move over to the other place?
Mr. Ianiro: Yes.
Senator Day: That is helpful.
Ms. Mentzelopoulos: They administer just the one legislation. Under the auspices of the Canada Consumer Product Safety Act, we are also responsible for cosmetics, so they have responsibilities as well for cosmetics regulations, which fall under the Food and Drugs Act, and that, will not change. They will continue to be responsible.
Senator Marshall: To go back to where they are physically located, did I understand correctly that inspectors are in every province, including Newfoundland and Labrador?
Mr. Ianiro: Yes, I can give you some specifics.
Senator Marshall: I would like some specifics.
Mr. Ianiro: We have inspectors located across six regions in six regional offices and 12 district offices that cover the country. We have offices in Vancouver, Calgary, Edmonton, Winnipeg, Saskatoon, Toronto, Hamilton, Quebec City, Montreal, St. John's, Saint John and Halifax. We distribute the northern territories amongst our western and Ontario regional offices. We have a scheduled cycle of remote inspections even in the northern territories. Therefore, we have a wide breadth and scope covering the entire country.
The National Capital Region, our directorate, supports the six regional offices and 12 district offices. We provide them with oversight, guidance and coordination. We prepare the policy, all the training.
Senator Marshall: That includes standard protocol and training.
Mr. Ianiro: Exactly, and that is to ensure national uniformity and consistency.
Senator Marshall: There are 70 plus inspectors now. What is the target number that you will be hiring?
Ms. Mentzelopoulos: By the end of the period of the Food and Consumer Safety Action Plan, which began in 2008- 09 and will be complete in 2012-13, we will be at 90 inspectors across the country.
Senator Marshall: Do you not envision that the federal public service restraint program will impact this program?
Mr. Glover: In response to the question about the number of inspectors, an envelope of money is provided to us that we will be continually assessing so we can allocate resources appropriately. If we find there is need for surge capacity to deal with a particular problem, we have certain flexibilities to increase our science capacity, if necessary, or inspectors. It is not incremental; it means moving resources around. That flexibility is provided and delegated to me. I can do that. I do not want to leave the committee with the impression that it will be 90 and always 90. If we feel there is an issue that needs 92, 95 or an extra 10 for a period of time, there is flexibility afforded to me to work with my colleagues to make that happen.
With respect to the government-wide restraint, there have been caps placed on all operating budgets. This program is not exempt from that, but we have worked that into our work plans and feel we will be able to move forward, and, if the bill is passed, implement all provisions.
Senator Champagne: Once your inspectors have found a problem and it comes back and the minister requests that tests with be done or studies conducted, how long do the suppliers or the manufacturers have before they are deemed non-compliant and get into the chain of events, for example, notice of violation, or whatever? How long do they have to answer the minister's request?
Mr. Glover: In response to the senator's question, the short answer is it depends. There is not a requirement. The simple reason for that is the nature in which we work with industry on a voluntary basis. They might have testing data available, and they can provide it to us right away. They might have what we would call "offshore,'' in their U.S. or European headquarters, and they might have to get agreements to provide that to us, so we would negotiate that.
If it were a fairly simple mechanical test, we would negotiate a much shorter time frame. However, if it is a complex animal test or modelling where they need to develop computer models and prove to us that a particular chemical is safe, that takes time and it needs to be peer reviewed. It depends on whether they have the data already or whether we are asking them to provide new tests. We would negotiate that with them. Then it would depend on the complexity of the testing data that we are asking them to provide to us.
Ms. Mentzelopoulos: I add that the provision at clause 12(c) says ". . . in the time and manner that the minister specifies.'' We can stipulate the time frame in which we expect such information.
Senator Champagne: You have convinced us that you will have very good inspectors. Let us hope you have very good negotiators as well.
Senator Day: It is good to see you all again. It is a shame we had to wait so long for this. Now we are here and we appreciate the attention you paid to some of the amendments we proposed the last time around.
I remember going through 16 different amendments that I had proposed through discussions with my colleagues. It was difficult for all of us, but we felt they should be made. Some of them were technical in nature and they were drafting, and that is when I brought in Ms. Labelle to try to see if we could come to some agreement.
I would like to talk about one more technical item at clause 35. This is under the heading Review of Orders for Recalls and Taking Measures. The minister will do the order for recall now. Previously, an inspector did it. I pointed out earlier when the minister here, that this is a most significant change to this bill. The minister who is accountable to Parliament will be making the orders, and I am very pleased with that.
If you look at clause 35(1) towards the end of that subsection, it says ". . . other than the individual who made the order.''
My recollection is that that wording was there when the inspector was making the order, and this is a review of the order. We had to put that wording in because we did not want an inspector who made the order reviewing the order.
Do we now need those words "other than the individual who made the order'' because we have inspectors reviewing? The minister appoints the inspectors, but the minister is the one who makes the orders under clauses 31 and 32.
Ms. Labelle: My view is that the wording of this provision is accurate. While the minister is expressly accountable under the statute for the issuance of orders, there is, under the Interpretation Act, the possibility of designating an official at an appropriate level to exercise that power. Given that you would not want to place the minister in a position where she is issuing an order and reviewing the order at the same time, then the wording is permissive in that respect.
Senator Day: Clause 34 states:
The Minister may designate any individual or class of individuals that are qualified as review officers for the purpose of reviewing orders under section 35.
Are you saying, therefore, that the minister could designate herself?
Ms. Labelle: That is not what I am implying. I am saying that you do not want to place the minister in a situation where she has issued an order and that a review officer is then reviewing the minister's decision.
Senator Day: That is what this provides.
Ms. Labelle: Correct. However, I think you need to read clauses 31 and 32, keeping in mind the Interpretation Act, which allows for designation of officials at an appropriate level to exercise this function.
Senator Day: It will not just be the minister, will it? Other people other than the minister who would issue a recall order.
Ms. Labelle: Yes, and Mr. Glover is in a better position to respond to this administrative matter.
Mr. Glover: The bill is very clear. The minister, and each minister is different, may choose to designate certain officials. The minister remains accountable for the decisions of whomever they designate, and that is why the language is structured as it is in clause 35.
Senator Day: Thank you. I just thought there were too many words in clauses 35 and 36. You will see that same wording appears in a couple of places. I just put it out there for you; it is not a hill to die on. It seemed to me that because you had made a change earlier, these words became redundant, but I will not pursue that further. I am not convinced of what you say, but I will not pursue it further.
If you are happy, I am happy. We will go our separate ways.
I have tried to make a list of all the different people that the minister has to appoint in order for this new administrative scheme to function. I have clause 19, inspectors; clause 29, people to analyze information brought to them by the inspectors; clause 34, review officers, and that is what we were just talking about; clause 51, some people who are able to issue notices of violation; and finally I have clause 67, an advisory committee. Did I miss any?
Ms. Mentzelopoulos: I do not think so.
Mr. Glover: We believe that is complete.
Senator Day: Ms. Mentzelopoulos, you indicated you were doing some work during the summer months with respect to procedures and in consultation with industry. I think that is good, because we are hearing from industry quite a bit that this legislation looks good in its form but they want consultation and they want to know how it will be implemented. That is what you were doing, is that correct?
Ms. Mentzelopoulos: Yes.
Senator Day: Did you work on any of these other lists of people at the same time? Are you ready to make a recommendation to the minister on these various appointed bodies?
Ms. Mentzelopoulos: It will be subject to a decision about coming into force, and depending on the decision regarding coming into force; we will be ready.
Senator Day: Let us say the minister says, "I would like this to come into force December 31 of this year.'' Is that realistic?
Ms. Mentzelopoulos: It would be a stretch assignment, but if that is what the government wants . . .
Senator Day: You would be able to fill up all of this stuff and do that, would you?
Ms. Mentzelopoulos: Inspectors and analysts are individuals who are already employed by the Government of Canada; they are already employees of Health Canada. The issue would be the training of those individuals to ensure that their designation is appropriate based on their level of knowledge under the new legislation.
Senator Day: Realistically, when do you think this could be up and running?
Mr. Glover: If I may respond to the senator's question, I would turn around the question. It is not if we will be ready. When the government makes a decision to implement legislation, we are required to be ready and we will take every step necessary as the administrative arm, as the bureaucrats who serve the government, to exercise its will. That is our job.
We could have a very difficult time of it if we need to move very quickly to train everyone. That would be advice we would provide to the minister and to the government with respect to coming into force. However, ultimately, it is a government decision and it is our responsibility to then be ready to implement that. That is a charge we take seriously and we will be ready.
Senator Day: In the navy, we used to call that "ready, aye ready. You tell us how high to jump, sir.''
Let us go on to another clause here. "Article'' is defined in clause 2. I understand "article,'' and it includes a consumer product, inter alia, amongst other things. You have heard this before— and I see Ms. Labelle smiling — and you were not convinced last time. However, I still think I should bring it up again. There is a possibility for seizure at page 11, which would be clause 21(2)(d):
The inspector may, for the purpose referred to in subsection (1),
(d) seize and detain for any time that may be necessary.
(i) an article. . . .
(ii) the conveyance;
However, flip over to clause 26. Recall that clause 21 talked about seizing an "article.'' Now we have a seized "thing.'' I said, "Well, I will have to flip back and see if 'thing' is defined somewhere. Is 'thing' part of article?'' I could not find out what a "thing'' was, but you talk about "anything'' later on, and that is another word.
Were you not convinced that you should have used the word "article'' or "article in conveyance'' in here rather than "thing''?
Ms. Labelle: Senator Day, given the observations you made on the last round with Bill C-6, we did have the opportunity to verify the accuracy of this wording. We are satisfied that the expression "thing'' is the proper wording here to capture both the "article,'' which you know is a defined term, and "conveyance.'' When we speak of "seizure,'' there are only two possibilities. here. One would seize either an article or a conveyance or perhaps both, and "thing'' can only refer to those two things.
Senator Day: It would have been awfully nice if you had agreed with me and taken that word "thing'' out of there, but we will live with "thing.'' You looked at it; that is the important "thing.''
The other concern I had, you will recall, was at clause 14. There will be a new requirement for incident reporting. Under the heading of Duties in the Event of an Incident, paragraph 14(1)(a) was the one I had focused on. It was not just because I had read this and said, "Oh my goodness.'' We had an awful lot of witnesses who came before us and said they had concerns that this will be totally out of control because there is no reasonableness test as to what has taken place. It includes serious injury, so:
. . ."incident'' means, with respect to a consumer product,
(a) an occurrence in Canada or elsewhere. . . .
— anywhere in the world —
". . .that resulted in. . . .'' amongst other things ". . .serious injury.''
If a hockey stick were purchased and somebody got boinked on the head, would the manufacturer of the hockey stick have to report an incident? How will you handle all of those things without some reasonableness test? The manufacturer, the importer or the labeller of the product ought to be given some threshold of reasonableness to say "serious injury'' could have happened on this or maybe did happen, but that was a case of misuse. That bicycle, the helmet or whatever was misused and was not being used in the manner in which it should have been used. Therefore, I do not have to report that. Help me with that one.
Mr. Glover: I have a number of things in response to the senator's question. First, we have been working with industry on this issue. We have policy advice and guidance available on our website for consultation. That is available and we are working with industry to clarify and work with these exact points.
Second, this requirement does exist in other pieces of legislation, most notably in the United States. They are working that through. They understand these issues. Industry is able to figure it out there.
We work closely with the Consumer Product Safety Commission, and we are quite confident that if industry can figure it out there, they can figure it out here. We will work together with our counterparts in the U.S. to ensure that we have consistent frameworks that work for industries on both sides of the border as it moves forward.
If I may, the example that we heard a lot of is a little different than the hockey stick, but let us take the same game. Someone sitting in the stands gets hit by a hockey puck and they get a bruise and stitches. Does that have to be reported? Obviously not. However, if that hockey puck were to shatter, that would be an unusual occurrence. If the people in the audience received lacerations from the shattered puck, we would want to know about that unusual occurrence. There is judgment and there is room. This is why we have policy guidance.
There is also a difference. We want to know of the incidents. There is an opportunity for industry to investigate those incidents independently. Industry can determine if it was misuse, if people did not understand the instructions or did not follow the instructions. Industry can provide us that information so that we can factor it into our assessment of the incidents.
Senator Day: You will be generating some guidelines so that industry will have some comfort in this, that it will not be everything that could possibly cause injury.
Mr. Glover: Guidelines are available on our website for industry's comment.
Senator Day: They will apply to the new legislation, if and when it gets generated and passed and comes into force?
Mr. Glover: Correct.
Senator Day: I proposed some amendments to clause 16. My concern with that clause is with the phrase "confidential business information.'' Having worked in the area of confidential business information in the past, I know how important it is to industry and to business. Confidential business information is often the foundation of business.
It is defined. Confidential business information is something that is not publicly available, so it is trade secrets. It is information that a corporation has that gives it the edge in trading around the world.
You say that if you have an agreement with a foreign government — and a foreign government in some places could be foreign industry, in some areas, if you look at the definition of "government'' — you do not have to notify them beforehand. My amendment was that you would let them know afterwards so they could protect themselves. Their confidential information has been made available to Pakistan, to the government officials in Pakistan. Yes, you made it available for purposes of consumer safety and you have an agreement with them, but would it not give some comfort to industry if you could give them notice that you had revealed some of their confidential information after the fact?
Mr. Ianiro: I can provide a few remarks to begin. First, the critical test for clause 16 is that the confidential business information that we are talking about sharing is in jurisdictions that are carrying out functions relating to the protection of human health or safety. We would be talking about agencies such as the Consumer Product Safety Commission. That is the first couple of lines of clause 16:
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 . . .
The possibility of our sharing information with non-government organizations or agencies that are not carrying out those functions would not be possible given the limitations that are stipulated in the clause.
Senator Day: Look at the definition of "government.'' One of the definitions is "a government of a foreign state or of a subdivision of a foreign state.''
Mr. Ianiro: That is correct, that is engaging in activities that are in line with the protection of human health or safety, for example, the United States Consumer Product Safety Commission, the Australian consumer protection commission, the European director general of consumer safety in the EU. Those are the exact types of governments that would apply.
Senator Day: Keep going. Go to some of the nations where the knock-offs of products are likely to come from.
The Deputy Chair: I will limit you to one example, at most. We are out of time.
Senator Day: That is the problem.
Mr. Ianiro: It is still in relation to consumer product safety. Again, it is with agreements in place that will maintain that information as confidential. That is stipulated in clause 16 as well.
The Deputy Chair: Honourable senators, on your behalf I want to thank the officials for responding to the questions today to help clarify the important issues that my colleagues have raised with you. We value your input, and we will look forward to this process as it moves forward. Hopefully, your input today will have helped us with regard to some of these very important questions. Thank you very much. I declare the meeting adjourned.
(The committee adjourned.)