Can the public now beat Bill C-6’s bid to search and seize products?
by Shawn Buckley
In the late 1990s, Anthony Stephan and David Hardy, the gentlemen who later formed Truehope Nutritional Support Ltd. (Truehope), began successfully treating persons suffering from bi-polar disorder with a wide spectrum of vitamins and minerals. The success of their protocol attracted the interest of researchers at the University of Calgary, which subsequently ran two case series on bi-polar patients. These studies showed that eight out of 10 study participants experienced dramatic improvements.
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In addition to being published in peer-reviewed journals, the results of these studies impressed the Alberta government, which decided to use taxpayers’ money to fund a large trial. Halfway through the clinical trial, however, Health Canada took steps to shut it down, stating that the mineral germanium posed too much of a risk. Health Canada now admits that it was incorrect about the risk factor of germanium.
Health Canada then turned its sights on Truehope and demanded that it stop selling its nutritional supplement EMPowerplus, even while thousands of Canadians with significant mental illness were being effectively treated with the supplement. Truehope refused to comply with Health Canada’s demands and clearly communicated to Health Canada that if it were to stop selling EMPowerplus, it would result in deaths and hospitalizations.
Health Canada subsequently took a number of actions to enforce Truehope to remove EMPowerplus from the market, which included the seizure of EMPowerplus at the Canadian border and instructing Canada Customs to turn away other shipments as they arrived. These enforcement actions created a literal panic for people who depended upon EMPowerplus and they reacted by doing everything they could. They wrote letters, protested, held news conferences, advertised their concerns and made repeated phone calls. Health Canada implemented counsellors to take note of the numerous calls from people who made it clear that their lives depended on EMPowerplus. The most troubling communications came from the Alberta Branch of the Canadian Mental Health Association. CMHA director Ron LaJeunesse publically warned Health Canada that its actions would lead to suicides and then later publically blamed Health Canada for the deaths of CMHA members.
Despite all the warnings to Health Canada that it was putting Canadians at risk, Health Canada did not relent. It pressed on, eventually charging Truehope in an effort to force the company to stop selling its supplement. However, Truehope was acquitted of these charges because the Court found that if the company had stopped selling EMPowerplus, deaths and hospitalizations would have occurred as a result. The Court further found it was necessary for Truehope to ignore Health Canada. Ironically, EMPowerplus is now licensed for sale in Canada.
At the time that Health Canada seized EMPowerplus, Truehope initiated a Federal Court action to have Health Canada’s seizure powers declared unconstitutional. Truehope’s basic premise is that the state cannot take away health products that Canadians rely upon, without taking into consideration the risk of removing the products and without giving Canadians the opportunity to be heard on the issue. This may seem like common sense, but Health Canada is vigorously trying to protect its seizure powers. This, in itself, is very instructive.
When Health Canada ignored the pleas of Canadians for access to EMPowerplus, it declared that the product – like most natural health products (NHPs) at the time – did not have a licence. It did not matter to Health Canada that people’s lives depended upon the product. Indeed, at the trial, Health Canada inspectors told the Court that things like news of suicides were not relevant. All that mattered to Health Canada was that the product was not in full compliance with the regulations at the time.
Unfortunately, this is not an isolated example. I am not aware of any instance where Health Canada ever considered the risk of removing a natural health product it was attacking or took into consideration input from the Canadian public. I think the mindset of Health Canada has been a major factor in Canadians resisting recent attempts to increase that agency’s seizure powers. Many readers will recall that, prior to the last election, there was a citizens’ revolt against Bill C-51, which would have expanded Health Canada’s seizure and detention powers. There was also concern about Bill C-52, known as the Consumer Products Safety Act, which would have expanded Health Canada’s seizure and detention powers in the area of consumer products.
Interestingly, after the election, Bill C-52 was quietly re-introduced as Bill C-6 and has already been passed in the House of Commons. It is now in the Senate. Most Canadians are not even aware of Bill C-6 and the dangers it presents to some of our fundamental rights and freedoms. For example, Bill C-6 exempts Health Canada inspectors from the law of trespass. These inspectors can come onto your private property and remain there. You cannot make them leave. This is curious because if you instruct members of the regular police force to leave your property, they must do so, unless they have a warrant or there are special circumstances. The regular police force cannot search your property without a warrant.
With this legislation, however, Health Canada will be able to inspect any business, garage or shed on your property, without a warrant. The only place it will not be able to search without a warrant is your home. Whereas the regular police force has to convince a justice it is likely to find evidence of a crime in your home to be able to obtain a legal warrant, Health Canada inspectors need only show the likelihood of a consumer product being found in your home. In effect, under the new law, it is possible for the state to intrude into our homes without evidence of wrongdoing because everyone’s home contains consumer products.
Bill C-6 also allows Health Canada to seize, destroy and/or keep private property without court supervision. This is a move away from the rule of law and it presents a significant danger to our way of life. To appreciate the importance of this, it is necessary to understand why the rule of law is so fundamental. In the past, when rulers wanted to imprison or kill people, soldiers were sent to do the deed. When rulers wanted people’s property, soldiers took care of that as well. After a while, our ancestors decided they did not appreciate tyranny and fought for the rule of law, which simply means that the law is above everyone and it applies to everyone. No one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law, and there is an independent court between the state and the citizens. Under the rule of law, if the state wants to imprison you or seize your property, it can only do so with court supervision. The courts ensure that people can only be imprisoned or lose property, according to the law.
The importance of the rule of law should be immediately obvious. Without it, our freedom and our property are subject to the “good will” of the state. This is tyranny, whether we expect it to be benign or not. No good has ever come from citizens giving up the rule of law. Indeed, this is the most disconcerting development I have ever witnessed. The state is currently attempting to undermine the rule of law, which is the core philosophical underpinning of our freedoms. We are allowing this to happen because the state is telling Canadians it is necessary that it have these powers to protect our safety. It is time for us to consider the old adage that those who trade their freedom for security will have neither.
Shawn Buckley is president of the Natural Health Products Protection Association (www.nhppa.org) and a lawyer with expertise in the Food and Drugs Act and Regulations. He acts primarily for manufacturers of Natural Health Products
