Possible amendments to Bill C-36

Senator Day has proposed new amendments to Bill C-36 and they were moved by Hon. Tommy Banks on Thursday December 9 2010. These amendments include:

THAT Bill C-36 be amended in clause 15, on page 9,

(a) by replacing line 13 with the following:

"information in relation to a consumer product to a person or a government that" and

(b) by replacing lines 17 to 20 with the following:

"relates only if

(a) the person to whom or government to which the information may be disclosed agrees in writing to maintain the confidentiality of the information and to use it only for the purpose of carrying out those functions; and

(b) the disclosure is necessary to identify or address a serious danger to human health or safety.

(2) The Minister shall provide prior notice of the intended disclosure to the individual to whom the personal information relates unless doing so would endanger human health or safety.

(3) If the Minister discloses personal information under subsection (1) without providing prior notice, he or she shall, as soon as practicable but not later than six months after the disclosure, notify the individual to whom the personal information relates.

(4) For greater certainty, nothing in this".

These amendments are a huge move in the right direction with this unconstitutional bill and the debate on Thursday was great.

Highlights from Thursday's debate:

"This bill, honourable senators, proposes a new scheme of a bureaucratic or an administrative type of governance. The basis for this legislation is criminal law legislation. However, rather than go through the time-honoured process of an offence under the criminal law jurisdiction and the checks that have been built into that to protect the individual, with which we are very familiar and comfortable here in Canada, this legislation proposes a new type of administrative process. Instead of offences, it refers to "violations." That, honourable senators, is the reason this bill deserves considerable study and why it must be scrutinized at the highest degree to ensure that, under this new scheme, individual rights and fundamental freedoms are not unnecessarily interfered with." - Senator Day

"I refer honourable senators quickly to section 21, which deals with verifying compliance. This provision means that inspectors can go into a property — they do not have to suspect that there is an infringement, a breach, or a violation of the act — and verify compliance. However, when they go in to verify compliance, they also can seize any product or vehicle for the purpose of verifying compliance. Furthermore, they can require the person whose product was seized to move that product somewhere else at that person's own expense.
Why is it necessary for this legislation to go that far? Why would inspectors not have the right to seize certain samples to verify; and then, if there is a breach or violation, they take the necessary steps?
There is no requirement for a warrant to enter into and over private property. The requirement for a warrant appears only with respect to dwelling houses, and then it is a weak warrant provision of ex parte, meaning that the warrant can be obtained without anyone knowing about it, without the knowledge of the person whose property will be violated, and without any representation there." - Senator Day

"Honourable senators, my office has received almost 1,000 emails requesting that the Standing Senate Committee on Social Affairs, Science and Technology take the time to hear from witnesses who are familiar with the proposed legislation and to consider carefully the powers being sought by the government and ensuring that they are necessary and desirable.
Mr. Shawn Buckley was recommended as a possible witness, but the senators on the government side have refused to hear from him, and I asked myself why. Mr. Buckley is a very reputable constitutional lawyer and is highly qualified, probably one of the most qualified on this proposed legislation of anyone in Canada. We heard from Mr. Buckley in the previous version of this bill when it was Bill C-6, and he was very informative and insightful. Naturally, when the bill was reintroduced, he was the person we immediately suggested should be brought in to discuss the changes, those changes that were not made, as well as to enlighten us on the strengths and weaknesses of this new legislation being proposed. Unfortunately, the Conservative senators unanimously voted down Senator Cordy's motion to allow Mr. Buckley to appear before the committee. - Senator Day

Senator Mercer: Shame.

Senator Tardif: Shame."

"Does the honourable senator have a better definition or feel for what the term "foreign entity" means within Bill C-36? - Senator Cordy
Senator Day: I thank Senator Cordy for that question. I was here when she asked that question of Senator Martin, as well, and I referred to it earlier on. It is in clause 14 of the bill. Clause 14(1)(d) states that the minister can initiate a recall based on a recall or a measure that is initiated for human health or safety reasons by a foreign entity. That is one of the places where the term is used.
Senator Cordy has expressed a concern about an entity doing this for mischief reasons, for example, having a small recall in a particular area to get a competitive product off the market. That is a concern, and the real concern is that the term is not defined and thereby leaves it wide open for inspectors and government people to take actions and say that it was based on a foreign entity activity.
If one looks at the definition of "government," it is so terribly broad that it includes so many subsections of government operating in foreign areas. "Foreign entity," I would say, would be interpreted as something broader than that, and that is just virtually every group, organization, company or business anywhere in the world, quite frankly. It is troublesome." - Senator Day

"Before I get there, I want to reiterate some of the things that Senator Day has said. The government is going down what could be a very slippery slope here, as Senator Day has explained to us, by moving things that were previously considered offences in criminal law into a new regime called "violations." Those would be violations under regulations, the guilt of which is determined by a process, which, if one reads this bill carefully, allows for no possibility that a person, having been issued a notice of violation, can ever be found not to have committed the violation, regardless of what representations at any level the person so charged makes.
In addition, there is the matter that Senator Day referred to that is very important in that connection. The things that are now called "violations" and not "offences" are, in this act, made not susceptible of a defence in common law. In common law, we have always been able to defend against a charge of an offence by reason of having done demonstrable due diligence or by demonstrating that we reasonably believed in facts, which, if they were true, would be exculpatory. We have always been able to do that.
Now here are these "violations," not offences, in which this bill states the defence of common law, of due diligence, or of having believed in facts, which, if they were true, would be exculpatory, is no longer applicable. One cannot use the common law as a defence here. That is the beginning of a slippery slope, honourable senators. I hope we are not going down this staircase. - Senator Banks

Full debate can be found HERE

Here is the email response that senator Day is sending out:
Canadian Citizens,

If you are receiving this letter it is because you have expressed to me your concerns about Bill C-36 through one of the several hundred e-mails I have received over the last month. As you know, on December 1...st the Senate Standing Committee on Social Affairs, Science and Technology passed C-36. I strongly opposed the passage without hearing from adequate witnesses, so I requested a recorded vote. The Conservative majority in committee all voted to pass the Bill without amendments, and now it returns to the Senate for third reading. The Conservatives hold a similar majority in the Senate.

We have worked hard to ensure that should Bill C-36 pass, it can only do so when given proper consideration, and only after every informed voice on the matter has been heard. This has not been then case. I have also proposed many amendments, all of which were voted down by the Conservatives voting together.

Many have asked what they can do to address this situation, to which I recommend the following; continue to e-mail your Senators, voicing your concern about how this Bill is being passed. In particular, you should contact the office of those Conservative Senators who seem intent on ramming this Bill through without giving due consideration to its repercussions. They seem totally disinterested in the potential effects of this Bill.

Below you will find a list of those Senators who voted in favour of passing Bill C-36 in committee. The Senate Chamber is meant to be a chamber of independent second thought, occupied by independent minded people. Amendments in the Senate will not cause an election, and thus should happen more frequently.

We are now in debate in the Senate. I spoke on Thursday, and it will continue Monday and Tuesday. Let’s hope for the best.

Yours Truly,

Joseph A. Day LL.M., P. Eng.


The Honourable Senator Braley

The Honourable Senator Champagne

The Honourable Senator Eaton

The Honourable Senator Housakos

The Honourable Senator Martin

The Honourable Senator Ogilvie

The Honourable Senator Seidman

I would suggest that we take his advice! Rather than continuing to email all of the senators, We should focus our efforts on the conservative senators. If we can spook even a couple of them, they may back off a little bit.

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