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Proceedings of the Standing Senate Committee on
Agriculture and Forestry

Issue 22 - Evidence - Meeting of October 2, 2012


OTTAWA, Tuesday, October 2, 2012

The Standing Senate Committee on Agriculture and Forestry met this day at 5 p.m. to study Bill S-11, An Act respecting food commodities, including their inspection, their safety, their labelling and advertising, their import, export and interprovincial trade, the establishment of standards for them, the registration or licensing of persons who perform certain activities related to them, the establishment of standards governing establishments where those activities are performed and the registration of establishments where those activities are performed.

Senator Percy Mockler (Chair) in the chair.

[Translation]

The Chair: I welcome you all to this meeting of the Standing Senate Committee on Agriculture and Forestry.

[English]

My name is Percy Mockler, a senator from New Brunswick and chair of the committee. Before I ask senators to introduce themselves, I want to say thank you to the witnesses for accepting our invitation.

On this, I will ask senators to introduce themselves, please.

Senator Mercer: I am Senator Terry Mercer from Nova Scotia.

Senator Merchant: I am Pana Merchant from Regina, Saskatchewan.

[Translation]

Senator Robichaud: Good afternoon, I am Senator Robichaud from Saint-Louis-de-Kent, New Brunswick.

[English]

Senator Peterson: Bob Peterson from Saskatchewan.

Senator Plett: Senator Don Plett from Manitoba.

Senator Buth: JoAnne Buth from Manitoba.

[Translation]

Senator Demers: Good afternoon, I am Senator Jacques Demers from Quebec.

[English]

Senator Eaton: Nicky Eaton, Toronto, Ontario.

[Translation]

Senator Rivard: Good afternoon, I am Senator Michel Rivard, from the Laurentides, in Quebec.

The Chair: Thank you, senators.

[English]

We continue to study Bill S-11, the safe food for Canadians act. As we are aware, the Government of Canada introduced the safe food for Canadians act in Parliament to make our food safety system stronger, as well as reducing overlap for Canadian food producers.

[Translation]

The act provides the industry with clear, consistent and straightforward inspection and enforcement rules so they can best meet their responsibility to put safe food on shelves for consumers.

[English]

Honourable senators, we have the pleasure of having with us today two witnesses for the first part of the meeting. One is Mr. Bob Kingston, National President of the Agriculture Union, Public Service Alliance of Canada.

Thank you, Mr. Kingston, for being with us today and sharing your comments, your opinions and your vision.

[Translation]

We also have Paul Caron, a retired inspector with the Canadian Food Inspection Agency and currently an industry consultant.

[English]

I have been informed, honourable senators, that the first presenter will be Mr. Caron, to be followed by Mr. Kingston.

Mr. Caron and Mr. Kingston, following your presentations the senators will ask questions.

[Translation]

You have the floor, Mr. Caron.

[English]

Paul Caron, as an individual: Mr. Chair, honourable senators, my name is Paul Caron. As a Canadian Food Inspection Agency inspector with 35 years of experience, I worked at meat slaughter plants, processing plants in the animal health program. I spent the majority of my career as a CFIA import inspector and was inspector in charge of two CFIA-approved import meat inspection establishments.

During the last 20 years of my career I worked as an inspector at the Windsor-Detroit crossing, the busiest commercial land border in Canada. In 2005 I retired, and in that same year CFIA removed all its inspectors from ports of entry and placed the responsibility of inspection of its regulated commodities on Canada Border Services Agency officers and created CFIA Central Import Service Centres. I think I was the last CFIA inspector at a port of entry.

I will speak to you mainly about the importation of food and the effect the safe food for Canadians act will have. I do not feel the new food act addresses the problems existing with the inspection of imported foods. Currently only 2 per cent of food products entering Canada are inspected by CFIA or Canada Border Services Agency officers. The only CFIA inspection at ports of entry is veterinary inspection of live animals and the occasional import blitz. An import blitz is conducted by CFIA where they pull in all shipments that they regulate over a period of time for inspection.

The CFIA import blitz is not effective at land borders. I know this because I organized and worked many of them. CBSA officers have been given the responsibility at the port of entry to prevent unsafe food from entering Canada. The CBSA administers more than 90 acts, regulations and international agreements on behalf of other federal departments and agencies, the provinces and the territories.

CBSA officers have little time to ensure all food products and other CFIA regulated commodities entering Canada are safe and free of disease. As with other government departments, they are understaffed. They, as with other government employees, have set priorities to get the job done. Their priorities are keeping drugs, guns and child porn out, screening all travellers entering our country, and collecting duties and taxes. They do not always have the time to ensure all food products entering this country are safe. They receive little training and support from CFIA. I know a lot of these front-line officers, and I know what they are going through and what they experience and have heard this from them.

During my career I inspected thousands of food shipments in truck trailers and containers from the United States and other countries. I have seen food products loaded with toxic chemicals, rat poison, refrigerated food product off condition, dirty trucks with chemical odours, et cetera. I discovered food shipments that did not reflect what was described on the CBSA customs manifest by opening the transport container and physically inspecting it.

Under the authority of the Meat Inspection Act and regulations, I refused entry of meat shipments that had product off condition, pathological defects, fecal contamination and product misrepresented by labels. Many food safety experts claim organoleptic inspection has little value. Organoleptic inspection is post-mortem examination of various cuts, like beef livers, things along that line, where you use sight, smell and touch. Many food safety experts claim that this is of little value, but I can tell you that if you see fecal contamination, you know there is a possible presence of E. coli in that cut of beef.

CFIA's website makes the claim that Canada has a robust, risk-based, import control system that is based on internationally recognized standards. They state:

Our approach is comparable to the import inspection systems of other developed countries, such as the United States.

This is not the case. All food shipments entering the U.S. are cleared at the port of entry, while in Canada, for example, meat shipments are released to be possibly inspected inland.

Shipments going to the U.S. have to be screened by the USDA for animal health reasons, plant health reasons, then by the U.S. Food and Drug Administration, then Homeland Security, then customs and border services, which directs the load to a meat inspection establishment located in close proximity of the border.

Only when it completes all this inspection is it released by Customs and Border Protection in the U.S. Failure to present the shipment for inspection can result in ``delistment'' of the Canadian exporter and fines up to three times the value of the shipment.

If, in a situation similar to XL Foods, the U.S. authorities discovered E. coli in the meat going from Canada to the U.S., I doubt very much that would be caught by CFIA coming this way, given the way their system is established.

Like many Canadian exporters of food products to the U.S. would claim, this is an artificial trade barrier due to the time and cost associated with the release of the shipment. Meat shipments, for example, entering Canada are just screened. The documents are just screened at the port of entry by CBSA and the shipment is released, and it is up to the importer on their honour to deliver it for inspection.

Over the past years, hundreds of import meat shipments destined for CFIA inspection never arrived at the CFIA inspection establishment, as required by the Canada Meat Inspection Act section 9(2). To this date, only one importer who violated this section of the Meat Inspection Act has been prosecuted.

If the CFIA wants to mirror other countries, they should concentrate all their inspections of imports, verifications and document clearance at major ports of entry prior to CBSA clearance, as in the United States, instead of tracking down shipments inland.

Another claim the CFIA makes regarding the new food safety act is that all food sold in Canada, whether domestic or imported, must comply with the Food and Drugs Act and regulations and the Consumer Packaging and Labelling Act and regulations. I found numerous shipments of food products from various countries not meeting CFIA label requirements, and properly trained CFIA inspectors at port of entry would discover these shipments, decreasing the number of recalls.

Many of the violations under these acts are found on store shelves and retail outlets, especially in ethnic food stores. Store shelves or retailers are not inspected by CFIA as they were in the past.

Another concern honourable senators should consider is the lack of training being provided to CFIA inspectors today. In 1970, when I started my career, I was required to undertake a two-year training program before I would even be considered a fully qualified inspector. Today, an inspector is put on the front lines with very little training. They are supervised by people who often have limited training and background in the area of inspection they are responsible for.

Another issue is that the safe food for Canadians act puts all food under one act. Food such as meat is much more complex in inspection requirements. It is a very high-risk product and should not have the same requirements as carrots, for example.

As a former inspector and now a consumer, I have serious concerns about the safety of food for my family and other Canadians. Why should CFIA imported food inspection be conducted in a manner that the CFIA would not tolerate for domestic or export inspection of meat?

The Chair: Thank you, Mr. Caron.

Bob Kingston, National President, Agriculture Union — PSAC: Mr. Chair, honourable senators, it is a pleasure to be here this evening to discuss Bill S-11. By way of introduction, the Agriculture Union represents all federal employees or the majority working in the federal agriculture portfolio. I am a full-time officer on leave from the CFIA where I have 25 years of experience as an inspector, including 15 years as an inspection supervisor.

What I have to say is that without a commitment on the part of the government to ensure adequate resources are available, Canadians cannot expect improvements in food safety outcomes from this bill alone. Too often, budget has been the main determining factor in the design and/or delivery of the CFIA's inspection and food safety program, exposing Canadians to a higher risk than should be the case.

If we are not careful, the successful enactment of Bill S-11, as well as the CFIA's new inspection modernization initiative, could fall victim to these pressures, as did the compliance verification system, or CVS, before them.

If you cast your memories back to the summer of 2008, just months before the Maple Leaf Foods outbreak, you will remember that the CFIA had just launched CVS. Without a serious pilot phase and before any lessons learned in development could be implemented, the agency had no idea how many inspectors were needed to do the job under CVS or what skills and training they might require. At the same time, more direct inspection oversight was retired deliberately or because inspectors, overwhelmed by the paperwork demands of the new system, could not keep up with their more traditional duties.

Then the perfect storm of the Maple Leaf Foods outbreak occurred, and we all know what happened. It is worth revisiting some of the observations that Sheila Weatherill included in her report. She found that the compliance verification system was flawed and in need of ``critical improvements related to its design, planning and implementation.'' She also found that the CVS was ``implemented without a detailed assessment of the resources available to take on these new tasks.''

In the aftermath, it was discovered that Maple Leaf was under no obligation to report to the CFIA test results showing contamination in the plant. In a system that increasingly relies on companies to police themselves, this shortcoming was addressed. Now all companies have a mandatory duty to test and report positive results to the CFIA.

Fast-forward to today. XL Foods, one of the biggest meat processors in the country, has just thumbed their nose at this requirement, and the CFIA did not have resources in place to fully understand what was going on in that plant at the time.

How could this be, you might wonder? After all, the minister has assured everyone that there are more inspectors working at that plant than ever. You will be interested to know that in the XL plant, only a small portion of the inspectors are actually trained in CVS. That is right; for more than four years after CVS was introduced, most inspectors there have not been trained in how to use it. Why, you might ask? The answer is actually simple. The CFIA cannot afford to deliver training any faster and does not have enough inspectors to relieve those away while being trained. As well, resources are often diverted to address crises, which further derails training.

Because of the pace of production and other factors, those with the CVS know-how at the XL plant did not always share the results of the CFIA-conducted CVS tasks and tests, so the other inspectors would have no idea if there was a problem that required heightened vigilance.

This situation is not limited to XL. As a matter of fact, we were just at a conference this weekend and we found the exact same scenario throughout Quebec. This is yet another example of industry self-policing gone wrong because the CFIA is not adequately resourced to verify compliance.

Returning to the matter before this committee, many say that Bill S-11 will make imported food safer because importers will be required to obtain a licence from the CFIA. This could be more illusory than real with cuts at the agency this year. Who will oversee the 10,000 new licensees that the CFIA estimates will be covered by this new requirement to ensure that they are in compliance with safety requirements? As a result of the downsizing in the federal public service, approximately 170 administrative staff positions at the CFIA have been eliminated. These are the people who would initiate, evaluate, approve and monitor the performance of these new licensees. With 100 fewer inspectors on the job — again, as a result of downsizing in the public service — you can see that the new licensing regime could potentially be little more than a paper exercise.

Going back to Sheila Weatherill for a moment, she recommended an independent resources audit to ``accurately determine the demand on its inspection resources and the numbers of required inspectors.''

While the CFIA did not conduct such an audit, it did review the situation in the processed meat program. The result was that the agency almost doubled its complement of processed meat inspectors. I hazard a guess that if the CFIA did a similar review of its other inspection programs, like fish and meat hygiene and slaughter, they would find that a similar upward adjustment is required to adequately deliver those programs.

I urge the committee to amend this bill to make such a review mandatory. I do note that an amendment has been put forward by the government, but it does not require a resource audit of the CFIA until five years after the bill becomes law. It is sort of like crossing your fingers and hoping nothing bad happens for five years. We already know that the CFIA has a problem; do not wait for another outbreak before addressing it.

The government's amendment does not require the results of the audit to be made public. The shortcomings should be fixed as well.

As one final point, I mentioned that the CFIA is currently revising its inspection program, which is likely to involve a reallocation of its existing resources. I am concerned that executives at the CFIA will see the meat hygiene and slaughter program as resource rich. In something akin to moving deck chairs on the Titanic, the CFIA may think they can rob the program that let us down at XL and reallocate resources to other areas that need to be shored up.

In closing, if Canada's food safety system is to be a true partnership between government and industry, then self- policing on the part of food companies must be reined in. To paraphrase the words of Ronald Reagan, which I do not often do, do not simply trust but verify. It is sort of like with a cop in the rear-view mirror, people obey traffic laws. The same holds true in the food industry.

The Chair: Thank you, Mr. Kingston.

Senator Plett: Thank you, gentlemen, for coming out. I am quite happy to have both of you answer whatever questions I ask. They will not be specific.

In your presentations, you indicated that we have reduced the number of inspectors that the CFIA has working for them. I would like you to at least address information I have that says since March of 2006, when this government came to power, field inspection staff has increased by 711 inspectors, from 2,823 to 3,534 by March of 2012, an increase of approximately 25 per cent. How do you equate that to when you say we have decreased inspectors?

I think, Mr. Kingston, you said that we had decreased inspectors by 100, and yet our figures are quite clear that they have, in fact, increased by 711.

Mr. Kingston: The decrease that I just described happened in April with the announcement of the cuts from the budget.

In terms of overall numbers, to be honest, ever since the government first started coming up with the big numbers that they say they have increased the inspectors by, I have been promised meetings where that would be explained. We have been saying from the beginning that we do not see these people, and I do know that they hired 200 people for invasive alien species, not food-related. I do know that as a result of the Weatherill-ordered audit, they did hire 170 in the processed meat program. There is a net increase there for sure. We are not arguing that.

The decrease that I talked about with the 100 was what happened in the spring of this year.

In terms of the 700 or so they say they have increased by, we cannot find them, and they are certainly not in the meat slaughter plants. I can guarantee you that. We have asked repeatedly for explanations. For years I have been promised meetings that would explain these numbers, and I am still waiting for that meeting to take place with CFIA executives so they can square those numbers with us, because we do not see these people.

The other thing you need to know is that the number they are referring to is not number of inspectors. The 700 that they are referring to is a category of employees at CFIA, and these are technical category employees. They could be working anywhere. They could be working in offices, labs or literally anywhere within the agency, but it is just a category of a classification of employment. It is not an inspector designation. I can absolutely guarantee you that there is no way that that number represents addition to food inspection.

Senator Plett: Well, in fact, our figures show that of the inspection staff decreased, it was reduced in areas of laboratories, operation headquarters and programs.

Would you not also agree, though, that the 100 people that you are saying the government has decreased were simply a matter of the government no longer subsidizing inspectors that were working in the provinces, and that, in fact, these inspectors are still being employed by the provinces? They have not gone away. They are being employed; they are just not paid for or subsidized by the federal government?

Mr. Kingston: Of the 100, 40 of those were delivering, at least in part of their job, provincial meat inspection programs. There were 60 originally to go. Twenty had already left before the 100 that were announced in April. Therefore, 40 were, at least in part, delivering provincial programs. I do not know of any of them who have been hired by the provinces who are supposed to take that on. In fact, we predicted that you are not going to see that because the provinces would largely have to at least quadruple their budgets to take that on. For example, in B.C., where they are looking at initiating their own program, one of the options they posted on their ministry of health website is the no- inspection option because they do not have the money. They are proposing putting cameras in a plant, and then if there is a problem, well, I guess they can review the tapes.

Senator Plett: However, in fact, these inspectors were provincial inspectors being subsidized by the federal government. They were not employees of the federal government. They were employees of the provincial governments.

Mr. Kingston: No, that is actually not true. They were federal government inspectors. They were employed by the Canadian Food Inspection Agency, appointed by the minister, and what was happening was they were delivering the program on behalf of the province in provincial plants, but usually only as part of their job. They were also working in federal establishments.

Senator Plett: Mr. Caron, you have suggested — maybe both of you did — that there have been all these decreases. We all need to try to live within our means. However, in fact, in the 2011 budget, the government provided CFIA with an additional $100 million over five years to modernize food safety inspection in Canada. That is an additional $100 million over five years. In Budget 2012, the government provided CFIA with another $51.2 million over two years to be shared with the Public Health Agency of Canada and Health Canada. Would you not agree that those are significant increases as opposed to decreases in budget?

Mr. Caron: I would say they are significant increases, but I think what I experience through my work and now in industry is what I see going on at the borders with no CFIA staff there whatsoever.

Senator Plett: However, the increase in budget is significant.

Mr. Caron: Yes, I would say it was significant.

Senator Plett: Thank you.

I have a last comment, chair, if I could, before I wait for the next round,

Mr. Kingston. I am assuming that you will provide this committee, through the clerk, with the deficiencies that you say there have been in the government implementing the Weatherill report. My information is quite clear that the government has, in fact, implemented all 57 of her recommendations, and you seem to indicate that that is not the case. If that is not the case, I would appreciate it if you would provide, through the clerk, the recommendations that have not been there, and if that is not the case, then I expect that will be corrected.

Mr. Kingston: Glad to.

Senator Plett: Thank you.

That is fine for now, chair.

The Chair: Senator Peterson to be followed by Senator Rivard.

Senator Peterson: Thank you, chair, and thank you, gentlemen, for your presentations this evening.

One of the overriding concerns that we have had is that there is not sufficient funds or front-line inspectors to deal adequately with the food safety as outlined in this bill, and you seem to have confirmed that. However, you have numbers, we have numbers, and they have numbers. We are all tossing numbers around. We are talking about the safety of Canadians and their lives. Would it not behoove us to have a third-party audit at the passing of this bill to determine exactly where we are and what the baseline is so that Canadians would know what we have or do not have as we move forward?

Mr. Kingston: I would strongly recommend that. As a matter of fact, I want to make one thing clear.

From the beginning of the entire debate concerning numbers, our focus has never been on cuts or reductions. All we have ever asked is that an assessment take place about what is needed, given how you design your programs, and then make sure you have it. That is all we have ever asked, and that is what we are still asking for. Whether that results in their staying the same and perhaps just a reallocation, we do not know.

As far as increased budgets go, I do not have any say in where that money goes, so I cannot say whether it is adequate or not. To me, the more important thing is do exactly as you described: a thorough and objective assessment of the programs, the resources needed to carry them out, and then figure out what you have got on hand. That is all we have ever asked for.

Senator Peterson: You are saying that, certainly, in view of the recent situation in Alberta, we have to get proactive here, not reactive. We are talking about safety. Therefore, it would appear more important now to have this initial third-party audit done right after the passage of the bill and then every five years.

Mr. Kingston: Absolutely. As an example, in the XL situation, the government has stated, quite rightly, that there is a large number of inspectors on site. I think there are misperceptions accompanying that because of the fact that such an assessment has not happened.

In fact, that plant is a huge factory covering several city blocks, and having 20 inspectors on a shift with the volume that goes through there and the speed of production, the inspection staff, as numerous as they were, were not able to keep up with their traditional inspection duties in that type of environment, to the point where the agency is forced to make a decision about what parts they can parcel off and have the plant look after themselves. In this case, a very significant thing happened. The plant is responsible for sanitation monitoring, not CFIA. CFIA has an oversight role to try to ensure that they do what they say what they will do, but, in fact, it is the plant that has that responsibility.

We all know where E. coli comes from. It is in fact that part of the program. It is the plant's own oversight that really let us down here. CFIA, for whatever reason, did not have the capacity to pick it up as early as it should have.

That is where this assessment process would be invaluable, because what seems like a large number might not be adequate or might be put in the wrong place; who knows? Until we have that assessment, we do not know.

Senator Peterson: On the matter of self-regulation by industry without CFIA oversight, could this have been a factor in what happened?

Mr. Kingston: It certainly could have. As I said, that part of the operation was the plant's to look after and it obviously was not looked after adequately, so self-regulation would be a problem in this particular case. To what extent a change in CFIA's processes would have picked it up faster, I am not sure, but it is the part of the operation the industry is self-regulating at this point.

Senator Peterson: Mr. Caron, for imports of foreign products and the numbers of new licences that we are talking about, which is a staggering number, is there the capability under the present system to come anywhere near handling that?

Mr. Caron: No way; it would be difficult. As Mr. Kingston said, possibly 10,000 people will be applying for this. For the staff to handle it, you have to establish a database and then various import systems would have to be updated with customs and various other government agencies as well. There is just no way they could handle that volume with the current staff they have.

Senator Peterson: Doing this would take front-line inspectors away from their inspection jobs to deal with these licences. Could that happen as well?

Mr. Caron: It depends what their functions are. It would be a large clerical and administrative undertaking. Inspectors will be probably involved in this if they do not have the clerical staff to do it because there will be that big a demand from the industry to be on that list and to be eligible to import into Canada. CFIA will have to pull resources from probably many different areas to do this.

Senator Peterson: We know their budgets are being reduced year after year after year, in the next three years, up to $56 million in 2014-15. It seems to me that this is an impossibility, trying to do this when your budget is going the other way.

Mr. Caron: Currently, I would agree with you.

[Translation]

Senator Rivard: Mr. Caron, since I did not have your text, I have to ask you if I understood correctly. You said that all Canadian food exported to the United States was fully inspected by the Americans, whereas barely two per cent of American products that we import are. Is that really what you said?

[English]

Mr. Caron: The current system now for all commercial food products going into the U.S. is that they have to give two hours advance notice and then the U.S. customs border service takes the information about this shipment, who the exporter is, what the commodity is, what food product it is — meat, vegetable or a processed food — into consideration. They even take in the trucker, the trucking company, the transport company or the logistics company. They will take in many different aspects — the exporter, the importer in the U.S. — feed that information into a database and then establish a risk assessment. On that basis they determine whether the load is to be presented for inspection.

The current figure I heard was about 70 per cent of loads are going for inspection. Meat products, though, are a little different. Each meat product load goes for inspection — every single load. Each shipment going into the U.S. first has to go through the customs people; then it goes through the Food and Drug Administration, which has a look at it; then it goes through the USDA, which is concerned with animal health diseases; and then from there it is directed to an inspection facility located within close proximity of the border. It has not yet been released by customs. It goes to that inspection facility and every load is opened up, every truck is opened up, every container is opened up and the Food Safety and Inspection Service inspectors will get a computerized program of inspection. They will possibly offload the truck and then examine samples from that truck and take samples from it, which is how they caught the XL shipment. They opened that truck and took samples. They have a program that is networked and it dictates to them what they have to do — the inspector.

Every truck of meat going into the U.S. is inspected. I would say 70 per cent of food products are inspected. They have to go through a rigorous screening right at the port of entry. All this activity is at the port of entry.

For shipments coming to Canada, it is all just ``wanded'' through at the port of entry, and then CFIA tries to track it down inland if they determine it needs an inspection.

[Translation]

Senator Rivard: I accept what you are telling me, but I am very surprised that more precautions are not being taken on the Canadian side with respect to American products. I in no way doubt anything you are saying, but this needs to be verified because I would be surprised if it turned out that you are right about American food imported to Canada and the fact that there is apparently so little inspection. You still say that barely two per cent is checked?

[English]

Mr. Caron: That is the figure I have been told. I have read that figure.

Meat shipments coming into Canada, as I said, are cleared at the border, and the onus is on the importer to present that load for inspection at an inland facility, which could be hundreds of miles inland. There they have to present the load for inspection and they have to go on to a CFIA website to see what the status of their shipment is, whether it is an inspection, what they call a skip lot; one in 10 lots coming into Canada has to go for a full inspection. If a full inspection is determined, they are obligated to present that load for inspection.

In the last 10 years, I think we are in the thousands of loads that never went for inspection that were supposed to. There was only one prosecution for that. This has been a contention I had when I was working with CFIA, and I still have it. I do not know why they do not do more to enforce that. The system is flawed in that regard.

The Chair: You said one in ten, Mr. Caron, for the record, is being inspected?

Mr. Caron: Yes.

The Chair: That is 10 per cent. Where is the 2 per cent coming from?

Mr. Caron: The 2 per cent I have read on various websites. Mr. Kingston could probably attest to that, but that is a figure I have read different places.

The Chair: You have read that?

Mr. Caron: Yes.

Mr. Kingston: Where the 2 per cent figure comes from is all agricultural commodities and, in fact, forestry commodities if you include wood trucks. Some commodities such as meat have a higher inspection rate and other commodities are simply never inspected. The 2 per cent is an overall average and it is a pretty accurate average. Many of the inspection programs, including the numbers, frequency of inspection that comes in, I was involved in designing at CFIA, so I know where that figure comes from. I know the compromises that came along to settle on that figure.

The Chair: Where do those sources come from?

Mr. Kingston: They come from the program design and CFIA itself.

The Chair: Can you please provide that to the clerk, Mr. Kingston?

Mr. Kingston: Yes.

Senator Merchant: In a study that the University of Regina, in Saskatchewan, did in 2010 on food security, they found that Canada ranked fourteenth in traceability. You have spoken about the problems with traceability. I am not sure what other 13 countries are ahead of us. Perhaps you could tell us. Have you some suggestions about things that should be added to this bill to improve our ability to trace?

Mr. Kingston: To trace back product? On a number of issues, including traceability, I think the bill is pretty good. As a matter of fact, I have stated publicly that, overall, I think the bill is good. My concern is more along the lines that there is no point in having good legislation if you are not intending to enforce it. That is where most of my criticisms come from.

A number of pieces of regulation about traceability are being gazetted as we speak, and they will go a long way to enhancing CFIA's ability to trace back food as well. I am not too sure what would need to be in this legislation to improve on that, especially short of seeing how those regulations end up, but I do know they have been gazetted for a number of different products that CFIA controls. I would have to take another look at that. I am not sure there is anything I would suggest to improve it.

Mr. Caron: In regard to the import side, there was a problem over the years when I was working at a border crossing and tracing foods inland. I would put products under detention, and then they would disappear. The importer could not be found and the address I was given to direct the load to would be missing, and things along that line. That was an issue back then for tracking down shipments that were even put under detention. Meat shipments currently that are consigned for inspection are being lost in the system. Many times CFIA cannot find out where those meat products went.

I think industry is doing a pretty good job on tracing food products. They have done their coding systems, in what I have seen. When you are developing your HACCP plans, you have to indicate to CFIA that you have a system in place that can track shipments. They can do it right to the hour of production now — the day and hour of production — and they assign lot numbers and things along that line. There are always other ways, and the experts might be able to discover better ways of doing it.

Senator Merchant: We were fourteenth, so I am thinking that there are areas where something is not working.

Mr. Caron: One thing that happens with a meat product is that as soon as you take it out of the box, you lose the tracking ability for that product. That box has all the information that can track that shipment, and once that product is removed from the box, it loses its identity to it.

Senator Merchant: On this latest problem with the plant in Alberta, what do you think about the response time? People are now asking questions about the response time. There were 12 days between the first positive tests and the recall. Do you feel that they responded in an appropriate length of time?

Mr. Caron: I do not think it is fair for me to answer that question. I do not know all the details of the plant and what steps CFIA took. I have no firsthand knowledge of that.

Mr. Kingston: It will depend on a few key pieces of information. At the beginning, given the positive finds obtained by both CFIA and USDA, it appeared to be a reasonable approach because they thought the product of concern was contained. Once they started looking at paperwork in the plant and doing an investigation, they realized that there were spikes in bacteria prior to that that had not been reported, so of course now you end up with ever-increasing recalls going on.

That begs the question about whether they should have erred more on the side of caution at the beginning and put everything that XL produces under detention until the investigation, or do you go with what you know at the time and limit your enforcement activity to that product? They chose the latter. Until the investigation is complete, it is hard to second guess that.

There is an issue there in terms of the documentation they got about the earlier problems and why that was not brought to the attention of CFIA, or why did CFIA not have the capacity to know that XL was not behaving well. Those are questions that I am sure will be better answered as the investigation comes along. It certainly is a good question at this point. For CFIA to say they did everything perfectly at this time I think is highly questionable and at least premature.

Senator Plett: I was going to ask this question later in the second round, but it is related so I will ask it as a supplementary.

We are all so sorry about what is happening with XL, and I certainly concur with what Senator Peterson said before. We are all concerned about safety. Would you not agree, Mr. Kingston, that this bill would speed up the recall process?

Mr. Kingston: Having read the bill, I am not quite sure how that would happen, because the recall process is determined by a very quick risk assessment based on the test results they had. They made the assumption that everything affected was either at the plant or had been shipped to the U.S. and therefore detained by the USDA, and it turned out that that assumption was wrong. I am not sure that more powers would have changed that decision-making process. It is not a lack of authority that led to the current decision making.

In fact, they went to a voluntary audit. CFIA very rarely uses the mandatory audit process. They want the plants and companies to do it themselves. They adopt that approach for a number of reasons philosophically, and some of them are problematic. There is a perception in senior executives at CFIA that when a company does a voluntary recall, it is truly voluntary and they want to do the recall. That is not the case. Most companies do a voluntary recall because, first, if they do not, they will have to do a mandatory one, and second, by agreeing to do a voluntary recall, not only do they benefit from the PR that goes along with it, they escape any regulatory consequence. When you agree to a voluntary recall, if you totally mess it up, all you get is a letter saying, ``You kind of messed up this recall. This is what went wrong. You need to fix this.'' If they are doing a mandatory recall and totally mess it up, there are legal consequences that go with that. The people in the field completely disagree with the belief that somehow voluntary recalls are always better.

However, those authorities are already there. I cannot quite see how this bill would change that. It is just the reactions and the awareness and the vigour with which some people are ready to carry out enforcement actions and others are not.

I am glad you asked that, because one of the issues here is not just about capacity in numbers but about capacity in terms of a culture shift at CFIA. Managers at CFIA are, by and large, very reluctant to come down hard on the industry. Of course, we all want the industry to succeed, and that is a given, but there are times when there are obviously bad actors, and CFIA is still extremely reluctant to take any kind of hard action against them. For this bill to really succeed, I am hoping there will be a bit of a culture shift there as well.

Senator Eaton: You talk about a culture shift in CFIA. Reading The Globe and Mail this morning, they had a long article on XL and problems on the line. No matter how well intentioned a bill and regulations, does it not boil down to the management culture, line worker culture and the whole culture of the place to make it work? Will not the much heavier penalties force people to have a culture shift, if they are imposed? Is that not an incentive?

I am thinking of Maple Leaf Foods, for instance, with which we are all familiar. I do not know if it was spin, but all the ads in which Mr. McCain appeared seemed to be leaning over backwards to make sure that it was contained and that their food was safe, when they had that incident last year.

How much emphasis do you think we should put on actual culture in our meat packing and inspection and our fines? Do you think a heavier fine will have an effect?

Mr. Kingston: First, I agree completely with your first point. As far as the second point, I agree completely there, too, and I think that that change in culture is essential to this bill making a difference.

In relation to the increase in fines, I am optimistic that the passing of a bill like this will send a message just by passing it. I am hoping that message is related to the regulatory body as well because to date no one has ever been fined the maximum. This bill increases the fine 20-fold, yet the maximum in the old legislation has never been used.

As I said, they are very reluctant to carry out enforcement actions. It is to the point of great frustration with field staff: inspectors, veterinarians and agriculture officers. In the field where they have amassed evidence in cases, basically a case is signed, sealed and delivered, ready to go to prosecution, and someone somewhere decides they will drop the case.

The message that sends to staff is not to waste their time. The message it sends to the good actors in industry is, ``Why follow the law?'' When we have spent a lot of time and resources putting strong cases together and just have someone in management say, ``Maybe we should take it more easy,'' when the field staff have seen these people be bad actors for a very long time, that is extremely depressing. As I said, no one knows better who the bad actors are than their colleagues in the industry. Believe you me, when they see us about to prosecute someone they are hoping it will happen too; and when it does not, basically that is worse than having no law at all.

Senator Buth: You have primarily focused on resources and I am not surprised. Clearly, there will always be tensions between union and management. Your presentations and your comments were not unexpected. However, I was interested in the comment you made, Mr. Kingston, that the bill is good. I want to pull this conversation back to Bill S- 11 and get your comments in terms of the bill. The focus has been on resources, but I would like the focus to be on the bill in terms of traceability and the increase in fines, which I think you have already covered.

In terms of the prohibitions regarding deception and tampering, the importer registration, you have talked about the resources in terms of that and the consolidation of inspection powers. Could you both comment on what you see in the bill that is good and what you would support?

Mr. Kingston: In terms of the traceability, the licensing of importers is a good thing, as Mr. Caron mentioned, as long as it is actually done. Ten thousand licences will not just fall into some kind of filing system on their own, so we all would have to agree that it has to be more than just something that exists, but that is a good thing.

The consolidation of powers under the various pieces of legislation so that they are now uniform is a good idea. In the past, every different commodity group had a different way of doing everything, from detentions to releases from detention, to whether or not to allow items into the country. The other thing is now they all have the authority to actually prohibit items from coming into the country if they are bad. Those are all good things.

When you harmonize as much as practical among the programs, you also make training easier and more cost effective. Instead of having five bookshelves of manuals, maybe there will only be three or four, but it is definitely an improvement. There are many good things.

Again, we are pointing out our concerns, but definitely we said from the get-go that there are definitely some good things in the bill.

Mr. Caron: I agree with that. When I was an inspector, I would see flagrant violations of food safety in regard to processed foods. However, under the food and drug administration, I never had the power to refuse entry. All I could do was put that load under detention and it could proceed inland. Like I said, it proceeded inland and then there could be a fictitious importer or someone using someone else's name. The product could be destined for an empty lot, so I would lose track of that shipment and I could not follow through on the detention. It was a food safety risk. That is a good area too. If there is a licensed importer of record, I know the contact, the address and how to get hold of them so that CFIA can go after these people and say, ``Where is that food product? Present it to us; we have to inspect it.'' That is the good part of the bill.

On the enforcement end, CFIA needs to put the resources into enforcement. Similar to what Mr. Kingston was saying, I wrote countless non-compliance reports on products coming into the country. I got tired of doing it because nothing happened with those. They just disappeared and no one followed through on them, so I thought it was useless to make all the effort and take time to do these things. It was discouraging and demoralizing for a front-line inspector to be going through this.

Senator Buth: I just wanted to clarify that because we get into this business of duelling numbers and whether inspectors are actually there or not, or what is happening. I wanted to focus back on the bill, so thank you very much.

Senator Mercer: I want to state from the get-go that I have 100 per cent faith in the farmers producing good quality products in this country. I think Canadians need to be assured, though, that we have something wrong in the system between the farm gate and the grocery store shelf. Something has gone wrong here, and we need to find out how to fix it and if this bill is helpful in doing that.

Mr. Kingston, you are a union president. I have great respect for what you do. Let us talk about the numbers, though. We have heard the numbers and that there are 700 new people in the system. If I understand correctly, when you go to work for the Government of Canada and you become a permanent employee at CFIA, which is a union shop, you would probably become a member the PSAC. Has your membership increased by a number? It seems that the math would be easy here. If there are supposedly 700 more people in the system, give or take some people who might be excluded, you should have a fairly hefty increase in membership, should you not?

Mr. Kingston: Funny you mention that, because when we were working out the essential service agreement and those figures were being tabled with us we asked where the dues were that we were supposed to be getting.

There are some numbers that are not quite right and, as I said, I have been waiting for a meeting where we can work that out. I know that when that meeting finally happens we will be able to work it out. When we argued about numbers during the McCain issue, when we finally sat down and compared notes, it took us about 10 minutes to reconcile the numbers. It turned out that only 225 were delivering that program. They were actually out by 2.

There is a problem with the way the numbers are being reported. I am not sure where the problem is. Like I said, I have been asking for a while to get it sorted out. You are quite right that we are not getting the dues those numbers would reflect. I do know that when we did an analysis of some of their numbers through their software programs, we found out that some names appeared twice, some people had died and some people had retired who were still in the system. I am not sure how much of that is at play here.

I do know there have been increases in numbers, but to be quite honest, we have seen more of that at the headquarters level than in the field. They have created whole new branches, new vice-presidents and all the associated management regimes that come along with that. I just have not seen any additional numbers in the meat plants.

Senator Mercer: I do not know that we need more management. We have listened to Mr. Caron's frustration of being out there doing his work. I assume that all food inspectors are out there doing what they are supposed to do. There is an issue of whether they are trained properly. It is a question of capacity. Are we asking them to do more than they have the capacity to do?

We have had the frustration from Mr. Caron that he has written up reports time after time, and they go for naught. He has put shipments on hold. I forget your term.

Mr. Caron: Detention.

Senator Mercer: They have been detained and then suddenly they are missing. One would assume that if they are missing, they did not go back.

Mr. Caron: No.

Senator Mercer: They went ahead. We heard your concerns about the safety of that food. It ended up somewhere. I do not suspect that their first stop was the local city dump.

Are we asking too much? Are Canadians expecting too much of the system that we have in place? If so, how do we fix the system?

Mr. Caron: Speaking from the import side of it, I think CFIA, by removing all their inspectors from the borders, have created a real problem.

In the documentation regarding the new bill on their website, they discuss how they mirror the U.S. in their inspection and how they do things. They are not even close to what the U.S. does on imports. Imports, as I said, have to go through the Department of Homeland Security, customs, FDA and the USDA. If it is a meat product, it then must go through full inspection and every load is examined. We do not do that here. The load comes to the primary line of customs and then they release it.

Senator Mercer: If I were a suspicious man, and I am not, I would say that there must be something very wrong with the system in that potentially tainted products are getting across the border. I am shocked by the fact that you say that under the current legislation the maximum fines have never been levied. I do not understand how we can expect that these new, bigger fines will be of any help if we have not used what is already in place.

Both of you have talked about the fact that recommendations have been made to go ahead and then, as it goes through the system, suddenly someone says, ``Let us back off of it.'' Who is that someone who is telling that somebody to do that backing off? That is what I want to know.

Mr. Caron: I am not sure of the question, senator.

Mr. Kingston: I am.

Mr. Caron: Are you? Okay, you go ahead.

Senator Mercer: I thought Mr. Kingston would be.

Mr. Kingston: I do not think you want actual names or anything, but I can think of one big case where there was evidence sitting in a warehouse for the better part of a year. The enforcement section in Ottawa started putting pressure on the local management to make a decision and asking if we are prosecuting or not. Quite honestly, local management was a little flustered. That was not the program they came up through. They were not as familiar with the program as the people in the field doing the enforcement. The pressure got to them. They said let it go, so the product was released.

A lot of were upset about that. That kind of thing happens more often than it should by a long shot.

Senator Mercer: I can understand why you would be frustrated. You are doing a good job. You make a recommendation that the law be enforced as it exists, and then someone comes along and pulls the plug or puts you in a situation to do something that you are not trained to do.

Mr. Kingston: Yes.

Mr. Caron: I explained to you about all these meat shipments that were supposed to go for inspection but never did go for inspection. I wrote compliance reports. I went to management. I complained vigorously about this. I got lip service saying, ``Yes, we have to do something about it.'' However, I know there has only been one shipment out of all those thousands of shipments that was prosecuted out of failure to present. That was about two years ago and that happened at a plant in Quebec. That was only one case and they had two counts against them. Nothing has been done to anyone else. The industry says why do we even worry about it? They just thumb their nose at it. They figure that if they do get caught, the fine is only minimal and is just a cost of doing business.

Senator Mercer: If we pass this bill and try to implement it as the government says they want to do, we will have quite a time getting people's attention.

Mr. Caron: Yes.

Senator Mercer: The system — not the individuals — has lost a lot of respect from the players, if I interpret this correctly.

Mr. Caron: We talked about the culture within CFIA. My experience with the culture is the people setting the policy and making the final decisions do not consult enough with the front-line people. They ignore them. They are not listening to them. I think people should be brought in and consulted. These people in management positions should go to the front line and visit these sites to see exactly what is going on. They are not doing that, as far as I can determine.

Senator Demers: I am replacing Senator Duffy.

There seems to be lack of structure. It seems that everyone is doing whatever they want to do. There may be some fraud in there.

Your presentation was great. I know you are trying to protect certain things and that, in a way, you cannot say certain things, but there seems to be no structure. Everyone does what they want to do. There are connections and clicks and all that. Am I right by saying that? I see your frustration, and I respect that because I think you are both very honest in the way you presented. However, it gives me the impression that if everything were to be discovered, there could be a major scandal here in the way things are operated. I do not know if I see it the same way everyone does who has spoken here so far.

The Chair: A comment from Mr. Kingston and Mr. Caron, and then we will go to Senator Robichaud.

Mr. Kingston: One thing I want to make clear is this: If you spend time with the agency, CFIA, you will find that as a group they are highly idealistic and very dedicated to the point where they will take on more than they can handle with a smile on their face. That is the kind of environment that is there, which can get them into trouble sometimes. They are an extremely idealistic group of people who believe in what they do.

Over the last couple of decades, a lot of government organizations have taken on this philosophy that you do not really have to know something to manage it. It took hold in CFIA in a large way. At senior management levels, it was explained just like that: ``You do not really have to know something to manage it.'' That is fair enough. We all accept that at senior levels.

The second president was a lawyer. All of a sudden, CFIA was hiring lawyers left, right and centre. The last one before the current one was an economist. All of a sudden, they were flooded with economists running every branch in CFIA. You had an economist running the program branch, which was always held by someone with a science background, and an economist running the operations branch.

At the senior levels that was okay. That has started now to happen at the lower levels, too. We are finding that at the lower levels you have supervisors who are the first line of contact for industry when they have a complaint. You will have someone who came up through meat inspection who is now in charge of plant protection or vice versa; that is, you will have someone with a plant science background who is supervising fish inspection. Personally, I think that is taking that philosophy a bit too far.

We have spoken to the agency about that, but you do end up with people struggling with decisions about enforcement when they do not have the appropriate background in the section that they are supervising or managing. I think that is one of the factors. I do not think it is because anyone is corrupt. I think it is a fine group of people.

Senator Demers: Thank you.

The Chair: Thank you, Mr. Kingston.

Mr. Caron: In addition to these managers that Mr. Kingston described, who have no knowledge of the program they are administrating, you now have people in those programs with inadequate training and they have to go to these supervisors as well for guidance and instruction on how to do things. That creates problems, too.

Senator Robichaud: In this bill, will we put in place a system that requires a lot more paperwork? We have heard that some inspectors are overwhelmed with paper and that it takes them away from the job they should be doing. Would this bill create such an environment?

Mr. Kingston: I can say that, for example, on the import licensing aspect, that will require a lot more paperwork. I do not see a plan to bring in the support structure for that program. If that falls to the inspectors, that would be a problem. If they actually have administration staff, as Mr. Caron mentioned earlier, to look after the licensing functions, then I think it would be good. I do not think it would necessarily add to what inspectors do paper-wise. It depends how they choose to implement it.

Mr. Caron: There is a lot of paperwork when you are an inspector, auditing plants and things along that line, HACCP programs. There is a vast amount of paperwork involved, and they spend a vast amount of time going through those documents. They spend more time doing that than actually going through the plant. The paperwork is overwhelming in terms of the number of forms that these companies create that inspectors have to audit, verify and go through. It is all paperwork now. There is no on-the-line inspection. There is no front-line inspection to see what is actually going on in plants. A lot of the inspectors, because they are not out in the plants, do not understand the full concept of how plants work, what happens in those plants, and things they could look for. Just going through paperwork is not the whole answer.

Senator Robichaud: On the issue of paperwork, I think Mr. Kingston mentioned the problem we are faced with right now with the mass recall. It is self-regulating. When it came into the plant, something that should have happened did not happen, through no ill will, I am sure. Will this do anything to prevent that? We are talking about fines to the industry. The whole industry will pay dearly with what is happening now, will they not?

Mr. Kingston: That is probably the saddest part of it all. You are right; not only is this costing CFIA and the government a fortune, but it is costing the whole industry a fortune.

In terms of what effect this bill has vis-à-vis increased fines, if having a broader range, a higher range, encourages more judges to impose fines in the middle, ``in the middle'' of this legislation would be way higher than the top of the old legislation. Maybe that could be a good thing, if they prosecute and if they go ahead with that kind of stuff. Short of that, I do not see this legislation impacting what happened at XL.

Senator Plett: Actually, Mr. Kingston, you somewhat addressed the question I had on the last answer to Senator Robichaud, but I do want to follow up on that very briefly.

First, I certainly appreciate as well your support of the majority of this bill, that you are supporting it. It is good to see that you are supporting it, and we recognize some of your concerns.

However, you did comment that this government is a bit of a law-and-order government. As such, I think you suggested that if judges give fines in the middle, then we have done something because the fines have gone up.

In your opinion, is that not generally what judges have been seen to have done? They are afraid to hand out maximum penalties, and so that is one of the reasons we sometimes have to create legislation for minimums. Would you not agree there is a good chance that judges will increase the fines as a result of the maximums being as high as they are?

Mr. Kingston: Over the years we have seen a bit of that. However, I would add that even more important is that CFIA proceed with prosecutions more often. Quite honestly, when I started, which was back in 1978-79, there were almost no prosecutions taking place at all. At the time, it was the Food Production and Inspection Branch of Agriculture Canada. When we first started introducing into courts the idea that producers, processors and shippers needed in some cases to be prosecuted, the fines were almost non-existent. It was laughable. As the courts had more experience with it and got to understand the issues better, the penalties became more serious.

Again, a very important part of it is that they will have to follow through with more vigorous enforcement. I think that, combined with a bigger range of fines, might achieve what we are trying to do here.

Senator Plett: I know this government agrees with that, which is one of the reasons they are creating the legislation and the opportunities. I think the indication is there that we certainly agree with you. Thank you very much.

The Chair: Thank you, honourable senators.

To the witnesses, thank you for sharing your comments with us.

Honourable senators, we now have before us Mr. Mel Fruitman, Vice-President of the Consumers' Association of Canada. We also have with us Ms. Elizabeth Nielsen, a board member of the Consumers Council of Canada.

Thank you for accepting our invitation. I am told by our clerk that Ms. Nielsen will make her presentation first, followed by Mr. Fruitman.

Elizabeth Nielsen, Board Member, Consumers Council of Canada: Good evening, Mr. Chair and honourable senators. I would like to thank you for inviting the Consumers Council of Canada to participate in these hearings on the proposed act that deals with one of the most important necessities of life, and that is the food supply and its safety. The council is a non-profit organization that works collaboratively with consumers, business and government to establish a fair, equitable and safe marketplace. We are very concerned about the food consumed by Canadians and that it is safe, that it is affordable and that it is available, and that the information on or accompanying the products is accurate, accessible and easily understood.

Canada, for the most part, has created a good food safety system. However, it has also experienced a number of serious food safety incidents, such as the E. coli on produce from the U.S. and now the hamburger from Alberta and the listeriosis outbreak resulting in the deaths of 22 people.

As a result of these incidents and Sheila Weatherill's investigation, the government drafted this bill to improve Canada's food safety regime and make it more proactive.

We are fully aware that the provisions within the acts enforced by CFIA are not consistent, and this creates severe problems for the inspectors who have to carry through on the enforcement of these acts, industry that has to meet the acts, and many of the enforcement criteria are out of date.

Thus, the council supports many of the changes being proposed, such as having inspectors with up-to-date enforcement and inspection powers, the same across all food commodities, and those powers are really no different than are present in other acts that I have worked with.

There is search and seizure power, same as with what is presently under the Canada Consumer Product Safety Act; tougher fines and penalties; prohibition against tampering or threatening to make a product injurious to health, which is excellent; registration and licensing of importers; and prohibition about importing unsafe food, which is going to give them a very useful tool.

They also will have the authority to make regulations for the recall of products, the traceability of any food items, for quality management and control programs and preventive control plans.

Although the council supports many of these provisions, we also have a number of concerns. One is the capability of CFIA to actually implement the provisions of the bill. A decrease in its budget will come at a time when new licensing procedures will identify thousands of new importers with quality management and preventive control plans that CFIA staff will have to evaluate, they will have to audit them and they will have to inspect the facilities as a result. Moreover, many of the new inspectors hired are on term contracts, raising concerns about the sustainability of the inspection system over the long term.

The modernization of inspection envisaged by this bill includes nine functions, five of which are new. It is not clear who will manage and resource these new functions and what impact that will have on the structure and operational costs of CFIA. Having worked in government, I can see five new empires being developed there. This raises the question of whether or not CFIA can do the job and whether Canadians can be confident in the safety of the food they are feeding their families.

The E. coli problem illustrates what happens when there is an incident. The U.S. bans the import of suspect products, consumers stop purchasing, resulting in serious implications for farmers, who will bear the brunt of this, and for cross-border trade.

We are concerned about the changes being made to the enforcement of labelling. Clause 81 of the new safe food for Canadians act makes the following change to the Consumer Packaging and Labelling Act: ``(3) This Act does not apply to any food commodity as defined in section 2 of the Safe Food for Canadians Act,'' which is just about any type of food.

In addition, the recent budget stated the government is going to change how CFIA enforces non-health and non- safety food-labelling regulations. Nobody knows really what this means. Does it mean that CFIA intends to stop policing information and claims on food labels? From past surveys of labels that it carried out, CFIA found a 75 to 85 per cent non-compliance rate in the products that they surveyed, and this is from their studies. For consumers suffering from diseases such as Crohn's disease, diabetes, cardiac problems or severe allergies, accurate labelling of nutritional information and ingredients is essential. Hopefully that will not be affected. Other types of labelling, such as place of business, manufacturer, date of production, et cetera, are needed in order to identify recall products. Of the thousands of products that are now being recalled, you can understand how important having that sort of information is.

For these reasons, we strongly oppose any changes to the requirements and enforcement of all types of labelling on food.

We are also concerned about the potential increase in the cost of food. At the present time, industry pays substantial amounts of money to CFIA to cover the cost of inspection of their plants. CFIA staff at a recent consultation on modernization of inspection stated that CFIA obtains $45 million each year from industry to pay for inspection. CFIA staff, during the consultations on the modernization of inspection related to this act, stated that they had not carried out any analysis of the impact of what is being proposed on the cost of food. We are talking about the new systems and preventive control plans that will have to be put in place. If the new licensing system or added requirements raise industry's costs, the increase will be passed directly on to the price of food for consumers.

We are also concerned about the reliance on industry to regulate itself. In the recent E. coli incident, it became evident that there was a problem that test results with respect to E. coli contamination were not being reported, and they were not being assessed by any central agency, as occurs in the United States, to detect trends that are occurring so that action could be taken.

We therefore recommend that the act be amended to include such a requirement. We would also like to see some type of audit carried out on CFIA to make sure that it is actually doing the job it is supposed to be doing.

We are concerned about the involvement of consumers in policy and regulatory development under the new act. Part of it is due to the mission of CFIA when it was initially put into play. There was a conflict between the concept of helping the industry and the concept of safe food, and this was a dichotomy for a long period of time.

As far as involvement of consumers, the proposed act, like all enabling legislation, creates a framework, and the details of how it will be implemented will be drafted in regulations. That is where the details will come.

!! The cabinet directive on streamlining regulations requires that an assessment of the impact of regulations on all stakeholders, including consumers, be carried out. The resources for consumers to actively participate are not usually available. Industry can go and meet with the president of CFIA while this legislation is being developed, but you did not see any consumers there visiting in that same way.

Not only is it important to engage consumers, but it is also necessary to take their views into account when deciding how to develop and manage legislation so the benefits are maximized and risks minimized. This is what is included in the cabinet streamlining regulation directive. All too often public involvement means communicating the final decision or trying to educate consumers in order to promote a particular position.

Involvement should really start at the beginning of the decision-making process, identifying the issues and helping to set priorities. The council would ask this committee to encourage the CFIA and the government to ensure that consumer representation is included in this decision-making process, particularly for the regulations, and that it is funded. The consumers' organizations do not have the funding to be able to do that.

I would like to thank you for the time this evening, and I look forward to your questions.

The Chair: Thank you very much, Ms. Nielsen. It is well said, and no doubt well documented.

Senators, we will start with Senator Plett to be followed by Senator Peterson, but first we will hear from Mr. Fruitman.

Mel Fruitman, Vice-President, Consumers' Association of Canada: Thank you. The Consumers' Association of Canada is very pleased to have this opportunity to present our views here, and your review is obviously extremely timely given the events over the past few weeks, of which we have heard quite a bit about in the last hour and a half.

For 65 years, the Consumers' Association of Canada, which is a volunteer-based organization, has represented the interests of ordinary Canadians in their role as consumers of goods and services as provided by both the public and private sectors. Our mandate is to inform and educate consumers on marketplace issues, to advocate for consumers with government and industry and to work to solve marketplace problems in beneficial ways.

We commend the government for its recent actions to help improve the lot of Canadian consumers when they deal in an increasingly complex marketplace. The Canada Consumer Product Safety Act was a huge leap forward in providing mechanisms to ensure that customers would not be harmed by the non-food items they purchased and finally allowed for the mandated recall of items deemed unsafe. It is hoped that Bill S-11 will also provide significant improvements in the matter of food safety.

We were pleased to note Minister Ritz's comments when he appeared before you recently regarding ``the efforts to ensure the safety of all food products sold in Canada . . . no matter what the source'' and that the act ``will strengthen enforcement powers on imports . . . and deliver stiff fines to anyone who purposely endangers the safety of our food.'' It has long been a puzzlement that there was a possibility that imported foodstuffs would not necessarily receive the same scrutiny as did domestic products. That now appears to be something that will no longer be a problem.

Even though deliberate food tampering is rare, new prohibitions and strong penalties should dissuade most mischief-makers and make it easier to prosecute miscreants. Hopefully, it will also help to deter those sick individuals who do things such as putting razor blades in apples handed out to kids on Halloween, which is coming up in a few weeks.

The increased traceability requirements should make it easier to determine where foodstuffs came from and where they are at any time in the distribution system. This will enhance the capability to enforce the provision prohibiting the sale of food that is the subject of a recall order under section 19(1) of the CFIA Act. Unfortunately, there does not appear to be clarification on what is meant by a ``recall order'' beyond the fact that ``the product may be recalled or sent to a place designated by the minister.''

Consumers interpret the term ``recall'' to mean that if they have in their possession the offending product, they are supposed to return it, presumably to where it was purchased. Consumers also expect that they should not have to suffer financially as a result of having purchased a food commodity that is subsequently recalled. It is unacceptable that consumers should be expected to throw it out, as has been suggested by a CFIA official. We have also wondered about why, as a previous witness mentioned, we have only had voluntary recalls, given that the capability has always been there to have a mandatory recall.

The CAC definitely supports Bill S-11, but we do have a few not insignificant concerns. The first is about the efficacy of the act. Minister Ritz has stated that ``everything the CFIA does is risk-based.'' We presume he is referring to what is usually known as a risk management system, in which the probability of an undesirable outcome is measured against the cost of producing a desirable one. This is consistent with the CFIA's vision to excel as a science-based regulator.

Such a system can be cost-effective and result in infinitesimal risk to consumers. However, it is dependent on those entities that handle vulnerable food commodities to have in place a system of controls, checks and balances to ensure that contamination does not occur anywhere within their processes, supporting documentation to show their procedures and confirmation of their efficacy. It is then incumbent on the regulator to ensure that all of these requirements are being met and to verify that they are having the desired outcome. It is the latter stipulation that we fear may be overlooked; to put it quite bluntly, whether they are actually testing product or not.

In the ongoing XL Foods case, it appears that the CFIA was not conducting the proper oversight of the system, not necessarily considering whether or not the procedures were adequate or were having the desired effect. Apparently, the E. coli contamination was discovered as the result of supplementary testing the day after the USDA Food Safety and Inspection Service found a positive E. coli sample.

The CFIA then issued a ``corrective action request'' and ``inspectors also continued to supervise ongoing operations at the plant, including: Verifying that carcasses are clean prior to processing; continuing to verify that the facility is operating and the processing environment is clean; checking daily that all positive lots are diverted to rendering and/or cooking; verify that the company is developing and implementing action measures related to the corrective actions requested by the CFIA.'' They have also stated they were conducting ``an in-depth review of operations . . . focused on . . . preventive control measures and food-safety policies and procedures.''

It appears to us that all of this oversight was directed to confirming or improving the system, not to ensuring that the meat was not tainted; that is, showing that there is in place an elegant procedure or system rather than checking for the actual contamination to reduce the current risk to consumers. This is akin to trying to put the lid back on the petri dish after the bug has escaped.

This bill clearly strengthens CFIA's ability to track, trace and recall foods. However, we think it would be appropriate to have a means of monitoring the CFIA to determine if their procedures will result in the desired outcome: safer food. We do not know whether or not the CFIA has sufficient resources, but we do support Senator Peterson's proposal that the bill be amended to require an annual third party audit to ensure there are adequate resources to enforce this bill. We suggest that they also include an efficacy audit: Are they actually accomplishing what they have set out to do? That is a huge missing element in all of this, as far as we are concerned.

Another of our concerns is that this bill covers only those entities that are under federal jurisdiction. While this does not encompass the bulk of food commodities, all Canadians, no matter where they live or who regulates their food safety, should have the same high level of assurance and confidence in their foodstuffs and encourage the federal government to in turn encourage the provinces and territories and, where appropriate, municipalities to adopt similar legislation.

The last item of great concern is that the legislation continues to give the minister power, through regulation, to set compositional standards for foods. In light of the trend toward specifying desired results rather than defining how one gets there, this appears to be an anachronism. While this ability ostensibly protects consumers, we have a fear, based on past events, that this ability can be perverted to provide economic protection to some producing sectors to the disadvantage of Canadian consumers.

In summary, I would say that Bill S-11 provides new and enhanced tools to protect Canadian consumers, but — particularly after listening to the previous two witnesses — it does not appear as though the agency tasked to implement this legislation has the capability to do so.

Thank you for listening, and I would be pleased to expand on any of these points. I have tried to be somewhat diplomatic in my comments, but I have much more to say.

The Chair: If you do have additional information you want to share with the committee, please do not hesitate to send it to the clerk.

Thank you both for presenting these documents. They will be part of the Bill S-11 analysis.

Senator Plett: Thank you both for coming out. I have two questions that are very general in nature.

You suggested in your comments, and I will read right out of your document:

It is then incumbent on the regulator to ensure that all these requirements are being met and to verify that they are having the desired outcome.

Then you say:

It is the latter stipulation that we fear may be being overlooked.

Do you have evidence it is being overlooked, or is this just something you think might happen?

Mr. Fruitman: Just about everything the CFIA has said with respect to this XL fiasco suggests that they are putting a focus completely on the system that XL presumably has in place to ensure that they have the desired outcome, and they are not actually testing some of the product to see whether that has resulted. They are looking at whether their documentation is right, whether the system is right and whether they are doing the right things.

As far as we have heard, there has been only that one supplementary test, and they are not testing product. That is perhaps why there has been such a long delay from the initial finding and that it just keeps spilling out over time. It has been three weeks now since the initial finding, and it seems like every day they add something else to the list of banned or contaminated products.

There is no excuse for that. Canadian consumers should not have been at risk during the period of time they were investigating whether the paperwork was right, basically.

Senator Plett: Of course, as sad as the whole situation is, it is all pre-Bill S-11.

Mr. Fruitman: Although it does raise questions about what is post pre-Bill S-11.

Senator Plett: The other question may be a comment more than a question. You say another of your concerns is that it covers only entities under federal jurisdiction, and although we can certainly recommend to the province, the federal government can deal only with what is federal jurisdiction.

Mr. Fruitman: We understand that.

Senator Peterson: Thank you both for your presentations. I will be brief as well.

It is fair to say that the confidence of Canadians has been severely tested in the past few days with our food safety situation. One of the criticisms that has come out of the XL crisis is that the industry is too close to the watchdog, or CFIA. Because we are tending or trying to go down the road of more industry self-regulation, it would appear that without sufficient oversight by CFIA, it will not work. In your opinion, does Bill S-11 exacerbate or improve this close relationship?

Mr. Fruitman: It does not improve it.

You have touched on something that has been a major concern of ours for many years since CFIA came into being in 1997, that is, that it reports to the minister or through the Minister of Agriculture, who is responsible for promoting the sale, export and economic development of food stuffs in Canada. On the one hand, we have an agency that is responsible for regulating and ensuring that the food is proper and safe reporting to the same person who is responsible for promoting the product and while promoting the product should include the safety. Unfortunately, we see that there is a tension between the two objectives.

Ms. Nielsen: I can see the points you are making. We have a bit of concern about it. Putting into place quality management systems, quality control systems and prevention control plans should help with respect to the safety of the food, depending on how they are implemented and ensuring that they are audited carefully with a lot of oversight by the regulatory agency.

In many ways, it is much more effective than having an inspector at the end of the line who is able to sample only a few products here and there. Much of the problem here had to do with communication between the industry and CFIA. This is, I think, a cultural problem to some extent that goes right back to 1997 when we were involved in putting CFIA on the ground. Their mandate was confused; they had both a safe food mandate and also a trade mandate. I think that has caused a lot of the problems.

It can be done effectively, but there needs to be oversight. In the United States, all test results from microbiology testing, for instance, that are carried out by the firm — they can carry it out just as well as anybody else, as long as CFIA is auditing it — are sent to a central organization, and those are assessed. Right now, those types of tests are not being assessed here in Canada. I think it is possible for CFIA to set up that sort of organization within itself to be able to do assessment so that it can figure out trends with respect to contamination in the various plants and various places across the country.

Mr. Fruitman: In my mind, it raises a question of who oversees the overseers.

Senator Robichaud: Ms. Nielsen, you cite clause 81 in this bill, and I would like you to explain to me your preoccupations with that clause. It says:

(3) This Act does not apply to any food commodity as defined in section 2 of the Safe Food for Canadians Act.

Ms. Nielsen: The Consumer Packaging and Labelling Act sets out labelling requirements for all pre-packaged products, including food products, or it has up until this particular point. It is a lot of basic information, for example, about the quantity and where it is being produced, and that is also the information that consumers want now. This provision changes the Consumer Packaging and Labelling Act to take food out of it. No longer is there the requirement under that act to put this information on the product. It would fall under this new bill, and we do not know what CFIA will do with that information now. Some of it, they say, is non-health or non-safety; therefore, it can all go on a website. That is fine and dandy if you have a computer and if you can read. Will you, before you go to the store, check a website and where would you go? Forty per cent of the people in this country are illiterate in English or French. Who and where will they get the information from? They need that information if a recall comes up. Am I supposed to check every time there is a recall and go to the website to ensure that the label is correct? Right now, we know from CFIA's work that there is a massive problem with incorrect labelling.

Senator Robichaud: Will this bill not do anything to address it?

Ms. Nielsen: It depends. We do not know for sure. That is the problem. If I had the answer, I would be able to give it to you, but we just do not know, and as a result we are concerned. Much will come in regulations. We are sort of the last ones to be asked to provide information or even to get to the consultations. I have been going to the ones on the modernization of inspections for the council, and many times I do it because I am here in Ottawa. I used to work for Health Canada in the Health Products and Food Branch, so I know something about the legislation, but it is very difficult.

Senator Robichaud: You are hoping that somehow you will be able to contribute to the putting in place of the regulations.

Ms. Nielsen: Yes, because the thing I do know is legislation and regulations. I teach it over at the Canada School of Public Service. All my life, I worked with the Canada Consumer Product Safety Act and did all the policy work for it, also the Food and Drugs Act and the radiation protection. It is the one thing I feel I can contribute, namely, my going and taking part in it because I helped develop regulations and legislation previously. I would like to be able to do that. I would like to have the opportunity. I am a pensioner. I have a decent pension, but it is out of my pocket whenever I do this.

Senator Robichaud: Thank you for doing what you are doing.

Senator Mercer: I want to follow up on this discussion about the regulations. We pass legislation, and then there is a clause that allows the government to put in place regulations, and the devil is in the detail. I share your concern about labelling. I have been on a low sodium diet for a number of years. I am also the principal grocery shopper in my family, so I read a lot of labels, and I know what you say. On the front of the can or label there is a great advertisement that it is sodium-reduced, but when you flip it over, on the back you see that the reduced sodium is now 39 per cent instead of 42 per cent.

A consumer has to be extremely careful. The monitoring of my sodium intake is not as serious as some other Canadians have in monitoring their intake of other products.

I do not want to let the government off the hook, but I also understand the problem. You cannot put everything into a piece of legislation. There has to be some flexibility.

Do you think it is wise if we came back and looked at the regulation at some future date and said, ``We have had this act in place now for X number of years; let us look at how the regulations fit with what Parliament intended the bill to do''?

Ms. Nielsen: Many new regulations now have sunsetting clauses in them. I was quite surprised that in some pieces of legislation now they require the regulations to be there before the legislation is passed. I think they did that with the new citizen's act. I think there is nothing wrong with that and it is an excellent idea. In this bill there is a provision that it would be reviewed after five years, which is an excellent chance for people to look at it and evaluate it. There are some excellent provisions in this bill, if they are implemented properly and if the regulations are developed correctly.

Senator Mercer: We will count on you to come back in five years and tell us whether the regulations have worked and what needs to be changed in those.

Ms. Nielsen: I would love to, if I am still around.

Senator Nolin: A witness can be reimbursed for her expenses coming to the committee, right? You can ask for your $2.

Ms. Nielsen: I do not think I will. That, I can afford.

The Chair: Witnesses, on behalf of all senators, thank you for sharing your documents and your comments with us.

(The committee adjourned.)