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
Senator Kelvin Kenneth Ogilvie (Vice-Chair) in the chair.
The Deputy Chair: Welcome to the Standing Senate Committee on Social
Affairs, Science and Technology.
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
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
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
The Deputy Chair: The motion is in order. Is there discussion on the
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
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
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
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
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
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
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 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
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
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
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
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
Ms. Aglukkaq: Yes.
Senator Day: All I wanted to know is that you are aware of the U.S.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Ms. Aglukkaq: We do not have mandatory recalls.
Senator Callbeck: That is my question. Did you give that any
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
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
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
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
I had a list. Senator Cordy kindly offered to allow the questioning to go to
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
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
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.
We believe that consumers and industry also have responsibility for product
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.
With this legislation, the Minister of Health will be able to require
manufacturers and importers to produce test results to show that their products
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.