A Criminalized World

Does the Consumer Product and Safety Act forfeit our rights and freedoms in the name of consumer safety?

Imagine: someone from the government comes to your door. It is your workplace, but it may also be your home if you happen to have a home office. They search and seize your computers, your files, and anything related to your business, including the goods that you sell or produce. They can do this without your permission and without giving you prior notice or warning. They can hold on to these goods long enough to disrupt your business and ruin your livelihood. There are no means for preventing this: no judicial review, no recourse for action, no due process.

Have you committed a heinous crime? No – if you had, it would be the police at your door and they would have to get a warrant issued by a judge to have the right to come on to your private property and take possession of your goods. Have you already been found guilty of a crime? Nope – there is only a suspicion by bureaucrats, not backed by any judicial or scientific review, and there’s nothing you can do about it and no one you can go to until well after the fact.

Is this a flashback to an Eastern Bloc country at the height of the cold war? No – this is Canada in the 21st Century.

Are you a drug smuggler, porn producer, or human trafficker? Wrong again – you are someone who, as an occupation, makes or sells ordinary consumer goods to Canadians and you may be completely innocent of any wrongdoing. The folks at your door demanding entry are not even trained police, they are Health Canada inspectors – and the only thing you can do about it is to complain to other Health Canada bureaucrats.

Last week the Standing Senate Committee on Social Affairs, Science, and Technology completed its review of the highly touted Bill C-6, the Canada Consumer Product Safety Act (CCPSA). The CCPSA is a long-awaited bill intended to replace consumer safety legislation that has not been updated in Canada for more than 40 years. Given the changes in trade and consumer trends in this time span, with increased globalization and complex and convoluted supply chains, the update is welcomed – and even overdue.

At its heart, the CCPSA has honourable goals, which is why it passed the House with cross-partisan support and flying colours. It prohibits the manufacture, sale, or promotion of consumer products that pose an “unreasonable danger to human health or safety,” it prohibits false or misleading labeling or advertising of products as it relates to health and safety, it institutes mandatory reporting of incidents for goods that have caused serious harm or death, it provides an increase in fines and penalties for those who break the rules, it enhances systems to ensure quick product identification and recall should that be necessary, and much more.

In all, the CCPSA strives to ensure that Canadian consumer goods are safe, and if they prove not to be, that they will be quickly and efficiently withdrawn from the market. Who can argue with that?

Unfortunately, embedded in the minutiae of the legislation are disturbing new powers given to bureaucrats that, in its present wording, would go against the tradition of common law in Canada: the right to judicial review and due process, for example. It is these powers that some members of the Senate are rightly concerned about – and not the heart and body of the CCPSA itself.

For this reason, the Senate committee last week voted to amend the legislation to mitigate these powers without taking the teeth out of this important new bill. This is the job of the Senate after all: the chamber of sober second thought. The Senate has the time, resources and expertise to carefully review our legislation before it becomes law and make recommendations to the House, which may choose to heed our advice or not.

The crux of the matter is this: do we need to rescind our long-established rights and freedoms in the name of safety? No. This is a false choice. Everyone wants a safe world for their families, but let’s not give up some hard-earned rights and freedoms to get there. As Shawn Buckley, a lawyer representing natural health product companies, has argued of Bill C-6, “Have consumer products suddenly become so dangerous that we have to give up fundamental freedoms to protect ourselves, and are we more safe giving the state free range over our property?”

Health Canada is granted extraordinary powers in this bill, and, in the words of Senator Day, “Health Canada has overreached themselves.” Senate amendments are not playing partisan games or diminishing the need for improved safety mechanisms for consumer products. Quite the opposite: the Senate committee amendments highlight some serious concerns over broad definitions of risk in the bill, and emphasize the need for judicial oversight and independent appeal processes – all proud Canadian traditions few of us would want to lose.

Frankly, it is surprising that Conservatives are supporting this bill so uncritically, given that they more generally tend to resist unchecked bureaucratic powers and unwarranted government intrusion into private business matters – precisely what CCPSA would enable.

Let’s stop criminalizing our world. We should resist the urge to live in a totally controlled, and controlling, society. Let’s make our world safer, by all means. But let’s not lose our rights and freedoms along the way.