A matter of rights
Quietly and without a great deal of public debate, Bill C-36 -- called the Canadian Consumer Product Safety Act -- became law this week. And, at least on the surface, the legislation seems to be something no one would have any issue with; after all, everyone wants to buy things that won't hurt us or make us ill.
However, Canada already has solid legislation -- including the Hazardous Product Act that's backed up by hefty fines and jail time for offenders -- to ensure that products are safe and won't find their way into the marketplace if they are harmful.
And the government already has the power to step in and ban a product that's deemed dangerous to health and safety, and inspectors can search and seize products with a warrant. For example, two years, ago Ottawa declared the widely used chemical bisphenol A toxic and unsuitable for use in baby bottles.
As Peter Pliszka, a partner with Fasken Martineau Du-Moulin LLP in Toronto, says, the current system is working well.
"From what I've seen practising in this area of law over the years, there wasn't really a problem crying out for this kind of somewhat draconian legislative fix," Pliszka told the National Post's Terence Corcoran.
The criticism of Bill C-36 has largely centred on the fact that it gives the government far-reaching new powers to regulate businesses and encroaches on traditional civil liberties.
It's estimated as many as 200 new inspectors will be hired to carry out provisions of the bill -- which will allow them to enter a business and seize property without a warrant.
The bill also gives inspectors the right to not only seize products, but the vehicles used to transport them. They can also examine any documents they want to.
In addition, the legislation gives the government the right to disclose personal and business information to foreign governments without the consent of the parties involved.
There's also a new requirement to inform Health Canada about products that are returned to businesses, even though nearly all returns are attributable to the fact people simply don't like them.
The Canadian Federation of Independent Business has already expressed concerns to Health Canada that the law could prove to be an unnecessary burden for its 107,000 small-and medium-sized business owners.
"Small business are more than aware of the disastrous consequences of producing and selling unsafe products, both on their customers' well-being and on their own bottom line," Corinne Pohlman, CFIB vice-president of national affairs, said in October. "They want to comply with safety regulations, yet the regulations must be tailored in a way that encourages compliance. Overly burdensome or complex forms and emulations will simply not work."
From a practical standpoint, the legislation is overkill. Not only is existing legislation working, experience suggests businesses quickly take action when they are concerned about a product because they want to do the right thing. The risk of doing nothing is consumer backlash and legal consequences.
From a legal standpoint, the legislation is invasive and an attempt to override rights. As a result, Shaun Buckley, a leading constitutional lawyer, says there will be a barrage of constitutional challenges to C-36. There's every reason to believe they will be warranted.
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