Bill C-36 permits Health Canada to issue
secret recall orders…
by Shawn Buckley
Every time I hear the Minister of Health promoting the new Canada Consumer Product Safety Act (Bill C-36), I think of George Orwell’s book 1984 and the famous “Ministry of Truth,” which was responsible for deceiving the public. It’s not that the Minister or Health Canada are lying per se. Rather, the main justifications for the Bill are misleading to the average Canadian.
The two main justifications given for the Bill are as follows: 1) Health Canada does not currently have the power to order the recall of a dangerous product. 2) Our consumer product legislation needs to be updated. When the average person hears that Health Canada does not have any power to recall a dangerous product, they are misled into thinking that Health Canada does not have the power to protect us from dangerous products. This is false. Today, in the very rare event that a manufacturer will not recall a dangerous product, Health Canada can obtain a Court injunction, obtain a search warrant to seize the product and make a binding ministerial order under the Hazardous Products Act. All of these orders are binding and backed up by the police. The problem from Health Canada’s perspective is that they all involve independent supervision by an independent body (a Court or a Review Board). All the orders are also public.
In contrast, the recall power in Bill C-36 permits Health Canada to issue secret recall orders – they are specifically exempted from publication and review under the Statutory Instruments Act – that are not authorized or supervised by an independent body. This undermines the rule of law, which ensures the government cannot take control over your person or property without the authorization and supervision of independent Courts. To appreciate how important this is to a free society, imagine living in medieval times before the rule of law. If the state wanted your property, the soldiers simply came from the castle and took it. Hopefully, you were not killed in the process. The state was all. Political philosophers have constantly warned against ever undermining the rule of law.
When the Minister of Health and mainstream media parrot the propaganda for this Bill, that Health Canada does not currently have the power to order recalls, what they really mean is that Health Canada does not currently have the power to issue secret orders to take control over private property without independent court supervision. You should be thankful that no prior Parliament has been willing to undermine the rule of law in this way. Unfortunately, the current Parliament is likely to pass this Bill. Before the House of Commons was prorogued for the Olympics, every party in the House of Commons had voted to pass the Bill (then named Bill C-6). It is as if our current MPs have no conception of how dangerous it is to undermine the rule of law. More likely, they are afraid of publically criticizing a Bill being promoted as necessary for our “safety.”
Safety is the justification used throughout history to restrict freedom. It works because when we believe that our families are in danger there is little we will not do to protect them, including giving up our freedoms. When we hear the second justification for Bill C-36, that our safety laws need to be “updated,” we will support the Bill because “out-of-date” laws cannot protect us. Again, we are misled. Our current consumer safety laws are quite strict. As outlined above, dangerous products can be controlled by Court and Ministerial orders. If anyone is hurt or killed by a dangerous product, penalties can include life imprisonment for criminal negligence. It simply is not true that, in 2010, Canada does not have tough consumer safety laws. The big difference between Bill C-36 and our current laws is the abolition of the rule of law. Under Bill C-36, Health Canada can seize and keep private property without a Court order and without Court supervision. Its representatives can literally walk into a store or factory and seize everything without ever involving a Court. There does not have to be a “safety” risk to justify the seizure.
In effect, the “updating” of our “outdated” safety laws is to remove the rule of law and our personal rights, which takes us back to medieval times when the state was both the police and the courts. This is anything but safe. Perhaps in addition to “updating” our safety laws, we should rename Health Canada the “Ministry of Truth.”
Shawn Buckley is a lawyer with expertise in the Food and Drugs Act and Regulations. Mr. Buckley acts primarily for manufacturers of Natural Health Products and has an enviable track record in protecting companies charged by Health Canada. www.nhppa.org