Bill C-51 and the Power of Inspectors

According to StopC51’s propaganda campaign, Bill C-51 is set to empower Gestapo-like health product inspectors to enter your property without permission or warrant, confiscate and dispose of your property, seize your bank accounts, give you a $5M fine and throw you in jail for two years, presumably for serving herbal tea to your children or advising a friend to take vitamins.  We are also warned that the Bill will “[a]llow [a] ‘Crack house style’ of enforcement on natural health providers”.  I’m not sure what that is, but it evokes images of helmeted SWAT members bashing down the doors and rappelling through the windows of health food stores.  Of course, these claims may be a bit over-the-top.
 
Or are they?  Underneath the hyperbole, maybe StopC51 are on to something.  To judge for yourself, have a look at the following list of inspector powers:

  • conduct warrantless searches
  • examine articles
  • take samples
  • open packages
  • examine documents
  • seize property
  • compel assistance
  • compel storage of property
  • compel removal of property
  • pursue forfeiture of property
  • pursue destruction of property

Does that list of powers cause you concern?

 
If so, then you should have complained before now because these are the powers currently granted to inspectors under the Food and Drugs Act (see extracts below) and have been since at least 1985.  In fact, under many federal statutes, that is a fairly standard list of powers granted to federal inspectors.  For example, check the following Acts to name a few:

So why does StopC51 make a point of claiming that Bill C-51 is giving police-state authority to inspectors?  Since the Bill is amending some of the inspectors’ powers, the text of the Bill repeats the list of powers with the amendments.  My guess is that StopC51 are taking advantage of this and pointing out that text in order to imply that all those powers are new, knowing that most people do not know what powers federal inspectors currently have and will not refer back to the current Food and Drugs Act to check them out.
 
In reality, most of the Bill’s amendments are just clarifying existing powers and, no doubt, repairing legal technicalities that have burned them in the past.  However, a few new powers have been introduced to enhance Health Canada’s ability to enforce product safety, such as the authority to recall or destroy dangerous products.  StopC51 can rest easier.  If their feared police state has not goose-stepped into existence with all the powers that inspectors have had since 1985, then the few new powers introduced by Bill C-51 are not going to change the situation much.
 
Of course, critical readers will want to do a side-by-side comparison in order to assess the changes for themselves.  (Note:  The following extracts are ordered by sequence of the sections in the Act, with the sections of C-51 rearranged to match up where different.)
 
Authority to Enter
Here, the Act and the Bill are essentially the same, with some clarifying details included in the Bill’s amendments.
 

Food and Drugs Act Bill C-51
23. (1) Subject to subsection (1.1), an inspector may at any reasonable time enter any place where the inspector believes on reasonable grounds any article to which this Act or the regulations apply is manufactured, prepared, preserved, packaged or stored, and may …
[Note: See 23. (1)(a.1) below for authority enter a conveyance.]
23. (1) Subject to subsection 23.1(1), an inspector may, for the purpose of verifying compliance or preventing non-compliance with this Act or the regulations, at any reasonable time enter a place, including a conveyance, in which the inspector believes on reasonable grounds that an activity that is governed by this Act or the regulations is conducted or a document relating to the administration of this Act is located.

 
Powers of Inspectors
Here, the Act and the Bill are the same in intent.  Most of the changes seem to include more details of the type of tasks that inspectors carry out.  StopC51 makes a big deal about taking samples “free of charge”, but that seems reasonable to me.  The provision that allows an activity to be stopped has probably been included to prevent the production or distribution of dangerous products but could be abused without better limits.
 

Food and Drugs Act Bill C-51
23. (1) … and may
(a) examine any such article and take samples thereof, and examine anything that the inspector believes on reasonable grounds is used or capable of being used for that manufacture, preparation, preservation, packaging or storing;
(a.1) enter any conveyance that the inspector believes on reasonable grounds is used to carry any article to which section 6 or 6.1 applies and examine any such article found therein and take samples thereof;
(b) open and examine any receptacle or package that the inspector believes on reasonable grounds contains any article to which this Act or the regulations apply;
(c) examine and make copies of, or extracts from, any books, documents or other records found in any place referred to in this subsection that the inspector believes on reasonable grounds contain any information relevant to the enforcement of this Act with respect to any article to which this Act or the regulations apply; and
(d) seize and detain for such time as may be necessary any article by means of or in relation to which the inspector believes on reasonable grounds any provision of this Act or the regulations has been contravened.
23. (2) The inspector may
(a) examine or test anything — and take samples free of charge of an article to which this Act or the regulations apply — that is found in the place;
(b) open a receptacle or package that is found in the place;
(c) examine a document that is found in the place, make a copy of it or take an extract from it;
(d) seize and detain for any time that may be necessary
     (i) an article to which this Act or the regulations apply that is found in the place, or
     (ii) a conveyance;
(e) direct the owner or the person having possession, care or control of a conveyance to move it;
(f) use or cause to be used a computer or other device that is at the place to examine a document that is contained in or available to a computer system or reproduce it or cause it to be reproduced in the form of a printout or other intelligible output and remove the output for examination or copying;
(g) use or cause to be used copying equipment that is at the place and remove the copies for examination;
(h) take photographs or make recordings or sketches; and
(i) direct the owner or person in charge of the place or a person who conducts an activity that is governed by this Act or the regulations at the place
     (i) to establish their identity to the inspector’s satisfaction, or
     (ii) to stop or start the activity.

 
Passing through Private Property
This new provision likely responds to instances in the past in which inspectors have been prevented access to legitimate production or storage facilities because those facilities have been situated conveniently surrounded by private property.
 

Food and Drugs Act Bill C-51
  23. (4) An inspector who is carrying out their functions may enter on or pass through or over private property without being liable for doing so and without the owner of the property having the right to object to that use of the property.

 
Dwelling-house
Here, the Act and the Bill are the same.  In both cases, inspectors cannot enter a home without a warrant and can only obtain a warrant by showing that an activity related to the Act is occurring within.
 

Food and Drugs Act Bill C-51
23. (1.1) Where any place mentioned in subsection (1) is a dwelling-house, an inspector may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (1.2).
23. (1.2) Where on ex parte application a justice of the peace is satisfied by information on oath
(a) that the conditions for entry described in subsection (1) exist in relation to a dwelling-house,
(b) that entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and
(c) that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused, the justice of the peace may issue a warrant under his hand authorizing the inspector named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant.
23.1 (1) If the place referred to in subsection 23(1) is a dwelling-house, an inspector may not enter it without the consent of the occupant except under the authority of a warrant issued under subsection (2).
23.1 (2) A justice of the peace may, on ex parte application, issue a warrant authorizing, subject to the conditions specified in the warrant, the inspector named in it to enter a dwelling-house if the justice of the peace is satisfied by information on oath that
(a) the dwelling-house is a place referred to in subsection 23(1);
(b) entry to the dwelling-house is necessary for a purpose referred to in subsection 23(1); and
(c) entry to the dwelling-house was refused or there are reasonable grounds to believe that it will be refused.

 
Use of Force
Here, the Act and the Bill are the same.
 

Food and Drugs Act Bill C-51
23. (1.3) In executing a warrant issued under subsection (1.2), the inspector named therein shall not use force unless the inspector is accompanied by a peace officer and the use of force has been specifically authorized in the warrant. 23.1 (3) In executing a warrant issued under subsection (2), the inspector may not use force unless the inspector is accompanied by a peace officer and the use of force is authorized in the warrant.

 
Telewarrant
This new provision is just an updated means of obtaining a warrant.
 

Food and Drugs Act Bill C-51
  23.1 (4) If an inspector believes that it would not be practical to appear personally to make an application for a warrant under subsection (2), a warrant may be issued by telephone or other means of telecommunication on application submitted by telephone or other means of telecommunication and section 487.1 of the Criminal Code applies for that purpose, with the necessary modifications.

 
Articles to Which the Act Applies
This section of the Act has been eliminated, likely due to its redundancy.  Other sections of the Act detail the products to which the Act applies.
 

Food and Drugs Act Bill C-51
23. (2) In subsection (1), “article to which this Act or the regulations apply” includes
(a) any food, drug, cosmetic or device;
(b) anything used for the manufacture, preparation, preservation, packaging or storing thereof; and
(c) any labelling or advertising material.
 

 
Assistance and Information
Here, the Act and the Bill are the same.
 

Food and Drugs Act Bill C-51
23. (3) The owner or person in charge of a place entered by an inspector pursuant to subsection (1) and every person found therein shall give the inspector all reasonable assistance and furnish the inspector with any information he may reasonably require. 23. (3) The owner or person in charge of the place and a person found in the place shall give an inspector who is carrying out their functions all reasonable assistance and provide them with the information that they may reasonably require.

 
Obstruction and False Statements
Here, the Act and the Bill are the same.
 

Food and Drugs Act Bill C-51
24. (1) No person shall obstruct or hinder, or knowingly make any false or misleading statement either orally or in writing to, an inspector while the inspector is engaged in carrying out his duties or functions under this Act or the regulations. 24.2 (1) No person shall obstruct or hinder, or knowingly make a false or misleading statement either orally or in writing to, an inspector who is carrying out their functions.

 
Interference
Here, the Act and the Bill are the same.
 

Food and Drugs Act Bill C-51
24. (2) Except with the authority of an inspector, no person shall remove, alter or interfere in any way with anything seized under this Part. 24.2 (2) Except with the authority of an inspector, no person shall remove, alter or interfere in any way with anything seized under this Act.

 
Restriction on Movement
This new provision has likely been included to prevent the distribution of dangerous products.
 

Food and Drugs Act Bill C-51
  23.2 An inspector may direct the owner or person having possession, care or control of an article to which this Act or the regulations apply to not move it — or to restrict its movement — for as long as is in the opinion of the inspector necessary for the purposes referred to in subsection 23(1).

 
Storage and Removal
Here, the Act and the Bill are essentially the same, except that the Bill specifies that the owner may be liable for the expenses of storage and removal.
 

Food and Drugs Act Bill C-51
25. Any article seized under this Part may, at the option of an inspector, be kept or stored in the building or place where it was seized or, at the direction of an inspector, the article may be removed to any other proper place. 23.3 An inspector who seizes a thing under this Act may
(a) on notice to and at the expense of its owner — or the person having possession, care or control of the thing at the time of its seizure — store it or move it to another place
(b) direct its owner or the person having possession, care or control of it at the time of its seizure to store the thing or move it to another place at their expense; or …

 
Release of Seized Articles
Here, the Act and the Bill are the same.
 

Food and Drugs Act Bill C-51
26. An inspector who has seized any article under this Part shall release it when he is satisfied that all the provisions of this Act and the regulations with respect thereto have been complied with. 23.4 An inspector who seizes a thing under this Act shall release it if they are satisfied that the provisions of this Act and the regulations with respect to it have been complied with.

 
Destruction
The significant change here is that Health Canada no longer has to ask permission of the owner to destroy a dangerous product.
 

Food and Drugs Act Bill C-51
27. (1) Where an inspector has seized an article under this Part and its owner or the person in whose possession the article was at the time of seizure consents to its destruction, the article is thereupon forfeited to Her Majesty and may be destroyed or otherwise disposed of as the Minister or the Minister of Agriculture and Agri-Food may direct. 23.3 (c) if the inspector believes on reasonable grounds that the thing could be injurious to human health,
(i) dispose of it on notice to and at the expense of its owner or the person having possession, care or control of it at the time of its seizure, or
(ii) direct its owner or the person having possession, care or control of it at the time of its seizure to dispose of it at their expense.

 
Forfeiture
The significant change here is that Health Canada previously used to have no choice but to implement court proceedings to carry out the forfeiture of seized articles not involved in a conviction.  Probably, this resulted in many seized products being held in limbo when owners disappeared, became insolvent or did not want their product back.  The Bill’s amendments put a time limit on how long those seized products have to be kept around until they can be destroyed.
 

Food and Drugs Act Bill C-51
27. (2) Where a person has been convicted of a contravention of this Act or the regulations, the court or judge may order that any article by means of or in relation to which the offence was committed, and any thing of a similar nature belonging to or in the possession of the person or found with the article, be forfeited. On the making of the order, the article and thing are forfeited to Her Majesty and may be disposed of as the Minister or the Minister of Agriculture and Agri-Food may direct.
27. (3) Without prejudice to subsection (2), a judge of a superior court of the province in which any article is seized under this Part may, on the application of an inspector and on such notice to such persons as the judge directs, order that the article and any thing of a similar nature found with it be forfeited to Her Majesty, if the judge finds, after making such inquiry as the judge considers necessary, that the article is one by means of or in relation to which any of the provisions of this Act or the regulations have been contravened. On the making of the order, the article or thing may be disposed of as the Minister or the Minister of Agriculture and Agri-Food may direct.
23.5 (1) A seized thing is, at Her election, forfeited to Her Majesty in right of Canada if
(a) within 60 days after the seizure, no person is identified as its owner or as a person who is entitled to possess it; or
(b) within 60 days after the day on which the owner or person who is entitled to possess it is notified that the inspector has released it, they do not claim it.
23.5 (2) Subsection (1) does not apply if proceedings are instituted in respect of an offence that relates to the seized thing.
23.5 (3) A seized thing that is forfeited may be disposed of at the expense of its owner or the person who was entitled to possess it at the time of its seizure.
23.6 (1) If a person is convicted of an offence under this Act, the court may order that a seized thing by means of or in relation to which the offence was committed be forfeited to Her Majesty in right of Canada.
23.6 (2) A seized thing that is forfeited may be disposed of at the expense of its owner or the person who was entitled to possess it at the time of its seizure.
23.7 If the owner of a seized thing consents to its forfeiture, it is forfeited to Her Majesty in right of Canada and may be disposed of at the owner’s expense.

 
Other Measures
This new provision has likely been included to prevent the production or distribution of dangerous products but could be abused without better limits.
 

Food and Drugs Act Bill C-51
  23.8 (1) If an inspector believes on reasonable grounds that there is a contravention of this Act or the regulations, the inspector may, among other things, direct a person to
(a) stop doing something that is in contravention of this Act or the regulations or cause it to be stopped; or
(b) take a measure that is necessary to identify or respond to a risk of injury to health that is related to the activity that is the subject of the contravention.
23.8 (2) The inspector may direct that a requirement established under subsection (1) apply for a specified period or until the inspector is satisfied that no further contravention is likely to take place.
23.8 (3) If a person is charged with an offence relating to the contravention, the court may confirm, vary or rescind the requirement.

 
Removal of Unlawful Imports
This new provision has evidently been included to respond to the importation of dangerous products.
 

Food and Drugs Act Bill C-51
  23.9 An inspector who believes on reasonable grounds that a food, therapeutic product or cosmetic that was imported for sale does not meet the requirements established under this Act, or was imported for sale in contravention of a requirement established under this Act, may direct its owner or importer or the person having possession, care or control of it to remove it from Canada at their expense even if the inspector does not seize it.

 
Recall
It has always seemed strange to me that Health Canada did not have the ability to recall dangerous products.  This new provision closes that gap.
 

Food and Drugs Act Bill C-51
  24. (1) If, in the opinion of the Minister, a therapeutic product or cosmetic presents a serious or imminent risk of injury to health, the Minister may direct a person who sells it to recall it and if necessary to have it sent to the place designated by the Minister.
24. (2) Subject to subsection (3), no person shall sell a therapeutic product or cosmetic that the Minister directs a person to recall.
24. (3) The Minister may authorize a person to sell a therapeutic product or cosmetic even if the Minister has directed a person to recall it.

 
Injunction
This new provision reinforces Health Canada’s ability to seek judicial injunction against the production and distribution of dangerous products.
 

Food and Drugs Act Bill C-51
  24.1 (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person did or is about or likely to do an act or thing that constitutes or is directed toward the commission of an offence under this Act, the court may order the person named in the application to
(a) refrain from doing an act or thing that it appears to the court may constitute or be directed toward the commission of an offence under this Act;
(b) do an act or thing that it appears to the court may prevent the commission of an offence under this Act; or
(c) take a measure referred to in subsection 23.8(1).
24.1 (2) No injunction shall be issued under subsection (1) unless 48 hours’ notice is given to the person named in the application or the urgency of the situation is such that giving notice would not be in the public interest.

 

18. August 2008 by barry
Categories: Alt. Med, Topics | Leave a comment

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