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Bill C-6

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2nd Session, 40th Parliament,

57 Elizabeth II, 2009

house of commons of canada

BILL C-6

An Act respecting the safety of consumer products

Preamble

Whereas the Parliament of Canada recognizes the objective of protecting the public by addressing dangers to human health or safety that are posed by consumer products;

Whereas the Parliament of Canada recognizes that the growing number of consumer products that flow across the borders of an increasingly global marketplace make the realization of that objective a challenge;

Whereas the Parliament of Canada recognizes that along with the Government of Canada, individuals and suppliers of consumer products have an important role to play in addressing dangers to human health or safety that are posed by consumer products;

Whereas the Parliament of Canada wishes to foster cooperation within the Government of Canada, between the governments in this country and with foreign governments and international organizations, in particular by sharing information, in order to effectively address those dangers;

Whereas the Parliament of Canada recognizes that, given the impact activities with respect to consumer products may have on the environment, there is a need to create a regulatory system regarding consumer products that is complementary to the regulatory system regarding the environment;

Whereas the Parliament of Canada recognizes that a lack of full scientific certainty is not to be used as a reason for postponing measures that prevent adverse effects on human health if those effects could be serious or irreversible;

And whereas the Parliament of Canada recognizes that the application of effective measures to encourage compliance with the federal regulatory system for consumer products is key to addressing the dangers to human health or safety posed by those products;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the Canada Consumer Product Safety Act.

INTERPRETATION

Definitions

2. The following definitions apply in this Act.

“advertisement”
« publicité »

“advertisement” includes a representation by any means for the purpose of promoting directly or indirectly the sale of a consumer product.

“analyst”
« analyste »

“analyst” means an individual designated as an analyst under section 28 or under section 28 of the Food and Drugs Act.

“article to which this Act or the regulations apply”
« article visé par la présente loi ou les règlements »

“article to which this Act or the regulations apply” means

(a) a consumer product;

(b) anything used in the manufacturing, importation, packaging, storing, advertising, selling, labelling, testing or transportation of a consumer product; or

“confidential business information”
« renseignements commerciaux confidentiels »

“confidential business information” — in respect of a person to whose business or affairs the information relates — means business information

(a) that is not publicly available;

(b) in respect of which the person has taken measures that are reasonable in the circumstances to ensure that it remains not publicly available; and

(c) that has actual or potential economic value to the person or their competitors because it is not publicly available and its disclosure would result in a material financial loss to the person or a material financial gain to their competitors.

“consumer product”
« produit de consommation »

“consumer product” means a product, including its components, parts or accessories, that may reasonably be expected to be obtained by an individual to be used for non-commercial purposes, including for domestic, recreational and sports purposes, and includes its packaging.

“danger to human health or safety”
« danger pour la santé ou la sécurité humaines »

“danger to human health or safety” means any unreasonable hazard — existing or potential — that is posed by a consumer product during or as a result of its normal or foreseeable use and that may reasonably be expected to cause the death of an individual exposed to it or have an adverse effect on that individual’s health — including an injury — whether or not the death or adverse effect occurs immediately after the exposure to the hazard, and includes any exposure to a consumer product that may reasonably be expected to have a chronic adverse effect on human health.

“document”
« document »

“document” means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked.

“government”
« administration »

“government” means any of the following or their institutions:

(a) the federal government;

(b) a corporation named in Schedule III to the Financial Administration Act;

(d) an aboriginal government as defined in subsection 13(3) of the Access to Information Act;

(e) a government of a foreign state or of a subdivision of a foreign state; or

(f) an international organization of states.

“import”
« importer »

“import” means to import into Canada.

“inspector”
« inspecteur »

“inspector” means an individual designated as an inspector under subsection 18(1).

“manufacture”
« fabrication »

“manufacture” includes produce, formulate, repackage and prepare, as well as recondition for sale.

“Minister”
« ministre »

“Minister” means the Minister of Health.

“person”
« personne »

“person” means an individual or an organization as defined in section 2 of the Criminal Code.

“personal information”
« renseignements personnels »

“personal information” has the same meaning as in section 3 of the Privacy Act.

“prescribed”
Version anglaise seulement

“prescribed” means prescribed by regulation.

“review officer”
« réviseur »

“review officer” means an individual designated as a review officer under section 33.

“sell”
« vente »

“sell” includes offer for sale, expose for sale or have in possession for sale — or distribute to one or more persons, whether or not the distribution is made for consideration — and includes lease, offer for lease, expose for lease or have in possession for lease.

PURPOSE

Purpose

3. The purpose of this Act is to protect the public by addressing or preventing dangers to human health or safety that are posed by consumer products in Canada, including those that circulate within Canada and those that are imported.

APPLICATION

Consumer products

4. (1) This Act applies to consumer products with the exception of those listed in Schedule 1.

Tobacco products

(2) This Act applies to tobacco products as defined in section 2 of the Tobacco Act but only in respect of their ignition propensity.

PROHIBITIONS

Consumer products in Schedule 2

5. No person shall manufacture, import, advertise or sell a consumer product listed in Schedule 2.

Products that do not meet regulatory requirements

6. No person shall manufacture, import, advertise or sell a consumer product that does not meet the requirements set out in the regulations.

Manufacturer and importer

7. No manufacturer or importer shall manufacture, import, advertise or sell a consumer product that

(a) is a danger to human health or safety;

(b) is the subject of a recall order made under section 30 or such an order that is reviewed under section 34 or is the subject of a voluntary recall in Canada because the product is a danger to human health or safety; or

(c) is the subject of a measure that the manufacturer or importer has not carried out but is required to carry out under an order made under section 31 or such an order that is reviewed under section 34.

Advertising and selling

8. No person shall advertise or sell a consumer product that they know

(a) is a danger to human health or safety;

(c) is the subject of a measure that has not been carried out but is required to be carried out under an order made under section 31 or such an order that is reviewed under section 34.

Misleading claims — package or label

9. No person shall package or label a consumer product

(a) in a manner — including one that is false, misleading or deceptive — that may reasonably be expected to create an erroneous impression regarding the fact that it is not a danger to human health or safety; or

(b) in a manner that is false, misleading or deceptive regarding its certification related to its safety or its compliance with a safety standard or the regulations.

Misleading claims — advertise or sell

10. No person shall advertise or sell a consumer product that they know is advertised, packaged or labelled in a manner referred to in section 9.

False or misleading information

11. No person shall knowingly provide the Minister with false or misleading information in relation to a matter under this Act or the regulations.

TESTS, STUDIES AND COMPILATION OF INFORMATION

Tests, studies and information

12. The Minister may, by written notice, order any person who manufactures or imports a consumer product for commercial purposes to

(a) conduct tests or studies on the product in order to obtain the information that the Minister considers necessary to verify compliance or prevent non-compliance with this Act or the regulations;

(b) compile any information that the Minister considers necessary to verify compliance or prevent non-compliance with this Act or the regulations; and

(c) provide him or her with the documents that contain that information and the results of the tests or studies in the time and manner that the Minister specifies.

PREPARING AND MAINTAINING DOCUMENTS

Requirement

13. (1) Any person who manufactures, imports, advertises, sells or tests a consumer product for commercial purposes shall prepare and maintain

(a) documents that indicate

(i) in the case of a retailer, the name and address of the person from whom they obtained the product and the location where and the period during which they sold the product, and

(ii) in the case of any other person, the name and address of the person from whom they obtained the product or to whom they sold it, or both, as applicable; and

(b) the prescribed documents.

Keeping and providing documents in Canada

(2) The person shall keep the documents at their place of business in Canada or at any prescribed place and shall, on written request, provide the Minister with them.

Exemption — outside Canada

(3) The Minister may, subject to any terms and conditions that he or she may specify, exempt a person from the requirement to keep documents in Canada if the Minister considers it unnecessary or impractical for the person to keep them in Canada.

Importation

(4) A person who imports a consumer product for commercial purposes shall, no later than at the time of the product’s importation, provide the Minister with those documents referred to in paragraph (1)(b) that are specified in the regulations.

DUTIES IN THE EVENT OF AN INCIDENT

Definition of “incident”

14. (1) In this section, “incident” means, with respect to a consumer product,

(a) an occurrence in Canada or elsewhere that resulted or may reasonably have been expected to result in an individual’s death or in serious adverse effects on their health, including a serious injury;

(b) a defect or characteristic that may reasonably be expected to result in an individual’s death or in serious adverse effects on their health, including a serious injury;

(c) incorrect or insufficient information on a label or in instructions — or the lack of a label or instructions — that may reasonably be expected to result in an individual’s death or in serious adverse effects on their health, including a serious injury; or

(d) a recall or measure that is initiated for human health or safety reasons by

(i) a foreign entity,

(ii) a provincial government,

(iii) a public body that is established under an Act of the legislature of a province,

(iv) an aboriginal government as defined in subsection 13(3) of the Access to Information Act, or

(v) an institution of an entity referred to in subparagraphs (ii) to (iv).

Requirement to provide information

(2) A person who manufactures, imports or sells a consumer product for commercial purposes shall provide the Minister and, if applicable, the person from whom they received the consumer product with all the information in their control regarding any incident related to the product within two days after the day on which they become aware of the incident.

Report

(3) The manufacturer of the consumer product, or if the manufacturer carries on business outside Canada, the importer, shall provide the Minister with a written report — containing information about the incident, the product involved in the incident, any products that they manufacture or import, as the case may be, that to their knowledge could be involved in a similar incident and any measures they propose be taken with respect to those products — within seven days after the day on which they become aware of the incident or within the period that the Minister specifies by written notice.

DISCLOSURE OF INFORMATION BY THE MINISTER

Personal information

15. The Minister may disclose personal information to a person or a government that carries out functions relating to the protection of human health or safety without the consent of the individual to whom the personal information relates if the disclosure is necessary to identify or address a serious danger to human health or safety.

Confidential business information — agreement

16. The Minister may disclose confidential business information to a person or a government that carries out functions relating to the protection of human health or safety or the environment — in relation to a consumer product — without the consent of the person to whose business or affairs the information relates and without notifying that person if 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.

Confidential business information — serious and imminent danger

17. The Minister may, without the consent of the person to whose business or affairs the information relates and without notifying that person, disclose confidential business information about a consumer product that is a serious and imminent danger to human health or safety or the environment.

INSPECTORS

Designation

18. (1) The Minister may designate an individual as an inspector for the purpose of the administration and enforcement of this Act and the regulations.

Certificate to be produced

(2) An inspector shall be given a certificate in a form established by the Minister attesting to the inspector’s designation and, on entering a place under subsection 20(1), the inspector shall, on request, produce the certificate to the person in charge of that place.

Obstruction and false statements

19. No person shall knowingly obstruct, hinder or knowingly make a false or misleading statement either orally or in writing to an inspector who is carrying out their functions.

INSPECTION

Authority to enter place

20. (1) Subject to subsection 21(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 they have reasonable grounds to believe that a consumer product is manufactured, imported, packaged, stored, advertised, sold, labelled, tested or transported, or a document relating to the administration of this Act or the regulations is located.

Powers

(2) The inspector may, for the purpose referred to in subsection (1),

(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;

(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) the conveyance;

(e) order the owner or person having possession, care or control of an article to which this Act or the regulations apply that is found in the place — or of the conveyance — to move it or, for any time that may be necessary, not to move it or to restrict its movement;

(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 and make recordings and sketches; and

(i) order the owner or person in charge of the place or a person who manufactures, imports, packages, stores, advertises, sells, labels, tests or transports a consumer product at the place to establish their identity to the inspector’s satisfaction or to stop or start the activity.

Conveyance

(3) For the purpose of entering the conveyance, an inspector may order the owner or person having possession, care or control of the conveyance to stop it or move it to a place where the inspector can enter it.

Entering private property

(4) An inspector who is carrying out their functions or any person accompanying them may enter on or pass through or over private property, and they are not liable for doing so.

Assistance and information to be given to inspector

(5) The owner or person in charge of the place and every person found in the place shall give an inspector who is carrying out their functions all reasonable assistance and provide them with any information that they may reasonably require.

Warrant or consent required to enter dwelling-house

21. (1) If the place mentioned in subsection 20(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).

Authority to issue warrant

(2) A justice of the peace may, on ex parte application, issue a warrant authorizing, subject to the conditions specified in the warrant, the person who is 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 described in subsection 20(1);

(b) entry to the dwelling-house is necessary for the purposes referred to in subsection 20(1); and

(c) entry to the dwelling-house was refused or there are reasonable grounds to believe that it will be refused or to believe that consent to entry cannot be obtained from the occupant.

Use of force

(3) In executing a warrant issued under subsection (2), the inspector may not use force unless they are accompanied by a peace officer and the use of force is authorized in the warrant.

Telewarrant

(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 any necessary modifications.

PROCEDURES FOLLOWING SEIZURE

Interference

22. Except with the authority of an inspector, no person shall remove, alter or interfere in any way with anything seized under this Act.

Storage of things seized

23. 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 it at the time of its seizure, store it or move it to another place; or

(b) order its owner or the person having possession, care or control of it at the time of its seizure to store it or move it to another place at their expense.

Release of things seized

24. 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.

Forfeiture — thing unclaimed

25. (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) the owner or person who is entitled to possess it, within 60 days after the day on which they are notified that the inspector has released the seized thing, does not claim it.

Proceedings instituted

(2) Subsection (1) does not apply if proceedings are instituted in respect of an offence that relates to the thing that was seized.

Disposal

(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.

Forfeiture — conviction for offence

26. (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.

Disposal

(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.

Forfeiture — on consent

27. If the owner of a seized thing consents to its forfeiture, the seized thing is forfeited to Her Majesty in right of Canada and may be disposed of at the expense of the owner.

ANALYSIS

Analysts

28. The Minister may designate any individ-ual or class of individuals as analysts for the administration and enforcement of this Act and the regulations.

Analysis and examination

29. (1) An inspector may submit to an analyst, for analysis or examination, anything seized by the inspector, or any sample of it, or any samples taken by the inspector.

Certificate or report

(2) An analyst who has made an analysis or examination may issue a certificate or report setting out the results of the analysis or examination.

INSPECTORS’ ORDERS

Recall

30. (1) If an inspector believes on reasonable grounds that a consumer product is a danger to human health or safety, they may order a person who manufactures, imports or sells the product for commercial purposes to recall it.

Notice

(2) The order shall be provided in the form of a written notice and must include

(a) a statement of the reasons for the recall; and

(b) the time and manner in which the recall is to be carried out.

Taking measures

31. (1) An inspector may order a person who manufactures, imports, advertises or sells a consumer product to take any measure referred to in subsection (2) if

(a) that person does not comply with an order made under section 12 with respect to the product;

(b) the inspector has made an order under section 30 with respect to the product;

(c) the inspector believes on reasonable grounds that the product is the subject of a measure or recall undertaken voluntarily by the manufacturer or importer; or

(d) the inspector believes on reasonable grounds that there is a contravention of this Act or the regulations in relation to the product.

Measures

(2) The measures include

(a) stopping the manufacturing, importation, packaging, storing, advertising, selling, labelling, testing or transportation of the consumer product or causing any of those activities to be stopped; and

(b) any measure that the inspector considers necessary to remedy a non-compliance with this Act or the regulations, including any measure that relates to the product that the inspector considers necessary in order for the product to meet the requirements of the regulations or to address or prevent a danger to human health or safety that the product poses.

Notice

(3) The order shall be provided in the form of a written notice and must include

(a) a statement of the reasons for the measure; and

(b) the time and manner in which the measure is to be carried out.

Measures taken by inspector

32. If a person does not comply with an order made under section 30 or 31 within the time specified, the inspector may, on their own initiative and at that person’s expense, carry out the recall or measure required.

REVIEW OF INSPECTORS’ ORDERS

Review officer

33. The Minister may designate any individ-ual or class of individuals that are qualified as review officers for the purpose of reviewing inspectors’ orders under section 34.

Request for review

34. (1) Subject to any other provision of this section, an order that is made under section 30 or 31 shall be reviewed on the written request of the person who was ordered to recall a consumer product or to take another measure — but only on grounds that involve questions of fact alone or questions of mixed law and fact — by a review officer other than the inspector who made the order.

Contents of and time for making request

(2) The written request must state the grounds for review and set out the evidence — including evidence that was not considered by the inspector who made the order — that supports those grounds and the decision that is sought. It shall be provided to the Minister within seven days after the day on which the order was provided or, in the event of a serious and imminent danger to human health or safety, any shorter period that may be specified in the order.

No authority to review

(3) The review is not to be done if the request does not comply with subsection (2) or is frivolous, vexatious or not made in good faith.

Reasons for refusal

(4) The person who made the request shall, without delay, be notified in writing of the reasons for not doing the review.

Review initiated by review officer

(5) A review officer — other than the inspector who made the order — may review an order, whether or not a request is made under subsection (1).

Order in effect

(6) An order continues to apply during a review unless the review officer decides otherwise.

Completion of review

(7) A review officer shall complete the review within a reasonable time.

Decision on completion of review

(8) On completion of a review, the review officer shall confirm, amend, terminate or cancel the order.

Notice

(9) The person who made the request or, if there is no request, the person who was ordered to recall the consumer product or to take another measure shall, without delay, be notified in writing of the reasons for the review officer’s decision under subsection (8).

Effect of amendment

(10) An order that is amended is subject to review under this section.

INJUNCTION

Court

35. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do an act or thing that constitutes or is directed toward the commission of an offence under this Act, the court may issue an injunction ordering the person who is 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; or

(b) do an act or thing that it appears to the court may prevent the commission of an offence under this Act.

Notice

(2) No injunction shall be issued under subsection (1) unless 48 hours’ notice is served to the party or parties who are named in the application or the urgency of the situation is such that service of notice would not be in the public interest.

REGULATIONS

Governor in Council

36. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations

(a) exempting, with or without conditions, a consumer product or class of consumer products from the application of this Act or the regulations or a provision of this Act or the regulations, including exempting consum-er products manufactured in Canada for the purpose of export or imported solely for the purpose of export;

(b) exempting, with or without conditions, a class of persons from the application of this Act or the regulations or a provision of this Act or the regulations in relation to a consumer product or class of consumer products;

(d) respecting the preparation and maintenance of documents, including by specifying the documents to be prepared and maintained, where they may be kept and for how long;

(e) specifying the documents that an import-er shall provide the Minister with under subsection 13(4);

(f) respecting the manufacturing, importation, packaging, storing, sale, advertising, labelling, testing or transportation of a consumer product or class of consumer products;

(g) prohibiting the manufacturing, importation, packaging, storing, sale, advertising, labelling, testing or transportation of a consumer product or class of consumer products;

(h) respecting the communication of warnings or other health or safety information to the public by a person who manufactures, imports, advertises or sells a consumer product or class of consumer products, including by way of a product’s label or instructions;

(i) respecting the time and manner in which information, notices and documents are to be provided or served under this Act;

(j) respecting the designation or recognition of persons or classes of persons who would be authorized to certify that a consumer product or class of consumer products meets the applicable requirements and respecting their functions in relation to that certification;

(k) respecting the performance of an inspector’s, analyst’s or review officer’s functions and the circumstances in which an inspector or a review officer may exercise their powers;

(l) respecting the taking of samples or the seizure, detention, forfeiture or disposal of anything under this Act;

(m) respecting the recall of a consumer product or class of consumer products;

(n) respecting the measures referred to in section 31;

(o) respecting the review of inspectors’ orders under section 34; and

(p) prescribing anything that by this Act is to be prescribed.

Externally produced material

(2) A regulation made under this Act may incorporate by reference documents produced by a person or body other than the Minister including by

(a) an organization established for the purpose of writing standards, including an organization accredited by the Standards Council of Canada;

(b) an industrial or trade organization; or

Reproduced or translated material

(3) A regulation made under this Act may incorporate by reference documents that the Minister reproduces or translates from documents produced by a body or person other than the Minister

(a) with any adaptations of form and reference that will facilitate their incorporation into the regulation; or

(b) in a form that sets out only the parts of them that apply for the purposes of the regulation.

Jointly produced documents

(4) A regulation made under this Act may incorporate by reference documents that the Minister produces jointly with another government for the purpose of harmonizing the regulation with other laws.

Internally produced standards

(5) A regulation made under this Act may incorporate by reference technical or explanatory documents that the Minister produces, including

(a) specifications, classifications, illustrations, graphs or other information of a technical nature; and

(b) test methods, procedures, operational standards, safety standards or performance standards of a technical nature.

Incorporation as amended from time to time

(6) Documents may be incorporated by reference as amended from time to time.

For greater certainty

(7) Subsections (2) to (6) are for greater certainty and do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.

INTERIM ORDERS

Regulations

37. (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if he or she believes that immediate action is required to deal with a significant danger — direct or indirect — to human health or safety.

Cessation of effect

(2) An interim order has effect from the time that it is made but ceases to have effect on the earliest of

(a) 14 days after it is made, unless it is approved by the Governor in Council,

(b) the day on which it is repealed,

(c) the day on which a regulation made under this Act that has the same effect as the interim order comes into force, and

(d) one year after the interim order is made or any shorter period that may be specified in the interim order.

Exemption from Statutory Instruments Act

(3) An interim order is exempt from the application of sections 3 and 9 of the Statutory Instruments Act.

Deeming

(4) For the purpose of any provision of this Act other than this section, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.

Tabling of order

(5) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.

House not sitting

(6) In order to comply with subsection (5), the interim order may be sent to the Clerk of the House if the House is not sitting.

OFFENCES

Offence

38. (1) A person who contravenes a provision of this Act, other than section 8, 10, 11 or 19, a provision of the regulations or an order made under this Act is guilty of an offence and is liable

(a) on conviction on indictment, to a fine of not more than $5,000,000 or to imprisonment for a term of not more than two years or to both; or

(b) on summary conviction, for a first offence, to a fine of not more than $250,000 or to imprisonment for a term of not more than six months or to both and, for a subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than 18 months or to both.

Defence of due diligence

(2) Due diligence is a defence in a prosecution for an offence under subsection (1).

Offence — fault

(3) A person who contravenes section 8, 10, 11 or 19 or who knowingly or recklessly contravenes another provision of this Act, a provision of the regulations or an order made under this Act is guilty of an offence and is liable

(a) on conviction on indictment, to a fine in an amount that is at the discretion of the court or to imprisonment for a term of not more than five years or to both; or

(b) on summary conviction, for a first offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than 18 months or to both and, for a subsequent offence, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years or to both.

Sentencing considerations

(4) A court that imposes a sentence shall take into account, in addition to any other principles that it is required to consider, the harm or risk of harm caused by the commission of the offence and the vulnerability of individuals who use the consumer product.

Offences by corporate officers, etc.

39. If a person other than an individual commits an offence under this Act, any of the person’s directors, officers, agents or mandataries who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to the offence and is liable on conviction to the punishment provided for by this Act, even if the person is not prosecuted for the offence.

Offences by employees, agents or mandataries

40. In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by any employee, agent or mandatary of the accused, even if the employee, agent or mandatary is not identified or is not prosecuted for the offence.

Continuing offence

41. If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.

Venue

42. A prosecution for an offence under this Act may be instituted, heard and determined

(a) in the place where the offence was committed or the subject-matter of the prosecution arose;

(b) where the accused was apprehended; or

Limitation period

43. Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within two years after the time the Minister becomes aware of the acts or omissions that constitute the alleged offence.

Admissibility of evidence

44. (1) In proceedings for an offence under this Act, a declaration, certificate, report or other document of the Minister or an inspector, analyst or review officer purporting to have been signed by that person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the matters asserted in it.

Copies and extracts

(2) In proceedings for an offence under this Act, a copy of or an extract from any document that is made by the Minister or an inspector, analyst or review officer that appears to have been certified under the signature of that person as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.

Presumed date of issue

(3) A document referred to in this section is, in the absence of evidence to the contrary, presumed to have been issued on the date that it bears.

Notice

(4) No document referred to in this section may be received in evidence unless the party intending to produce it has provided reasonable notice of that intention on the party against whom it is intended to be produced together with a duplicate of the document.

Self-incrimination

45. The information and results contained in the documents that a person provides under an order made under section 12 may not be used or received to incriminate the person in any proceeding against them in respect of an offence under this Act.

ADMINISTRATIVE MONETARY PENALTIES

Violation

Commission of violation

46. Every person who contravenes an order that is made under section 30 or 31 or reviewed under section 34 commits a violation and is liable to the penalty established in accordance with the regulations.

Powers of the Governor in Council and Minister

Regulations

47. (1) The Governor in Council may make regulations

(a) fixing a penalty, or a range of penalties, in respect of each violation;

(b) classifying each violation as a minor violation, a serious violation or a very serious violation;

(c) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be increased or reduced, including a reduction in the amount that is provided for in a compliance agreement; and

(d) respecting the determination of a lesser amount that may be paid as complete satisfaction of a penalty if paid in the prescribed time and manner.

Maximum penalties

(2) The maximum penalty for a violation is $5,000 in the case of a violation committed by a non-profit organization — or by any other person for non-commercial purposes — and $25,000 in any other case.

Notices of violation

48. The Minister may

(a) designate individuals, or classes of individuals, who are authorized to issue notices of violation; and

(b) establish, in respect of each violation, a short-form description to be used in notices of violation.

Proceedings

Issuance of notice of violation

49. (1) If a person designated under paragraph 48(a) believes on reasonable grounds that a person has committed a violation, the designated person may issue, and shall provide the person with, a notice of violation that

(a) sets out the person’s name;

(b) identifies the alleged violation;

(d) sets out the particulars concerning the time and manner of payment; and

(e) subject to the regulations, sets out a lesser amount that may be paid as complete satisfaction of the penalty if paid in the prescribed time and manner.

Summary of rights

(2) A notice of violation must clearly summarize, in plain language, the rights and obligations under this section and sections 50 to 63 of the person named in it, including the right to have the acts or omissions that constitute the alleged violation or the amount of the penalty reviewed and the procedure for requesting that review.

Penalties

Payment

50. (1) If the person named in the notice pays, in the prescribed time and manner, the amount of the penalty or, subject to the regulations, the lesser amount set out in a notice of violation that may be paid in lieu of the penalty,

(a) they are deemed to have committed the violation in respect of which the amount is paid;

(b) the Minister shall accept that amount as complete satisfaction of the penalty; and

Alternatives to payment

(2) Instead of paying the penalty set out in a notice of violation or, if applicable, the lesser amount that may be paid in lieu of the penalty, the person named in the notice may, in the prescribed time and manner,

(a) if the penalty is $5,000 or more, request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the order to which the violation relates; or

(b) request a review by the Minister of the acts or omissions that constitute the alleged violation or the amount of the penalty.

Deeming

(3) If the person named in the notice of violation does not pay the penalty in the prescribed time and manner or, if applicable, the lesser amount that may be paid in lieu of the penalty, and does not exercise any right referred to in subsection (2) in the prescribed time and manner, they are deemed to have committed the violation identified in the notice.

Compliance Agreements

Compliance agreements

51. (1) After considering a request under paragraph 50(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on any terms and conditions that are satisfactory to the Minister, which terms and conditions may

(a) include a provision for the giving of reasonable security, in a form and in an amount satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; and

(b) provide for the reduction, in whole or in part, of the penalty for the violation.

Deeming

(2) A person who enters into a compliance agreement with the Minister is, on doing so, deemed to have committed the violation in respect of which the compliance agreement was entered into.

If compliance agreement complied with

(3) If the Minister is satisfied that a person who has entered into a compliance agreement has complied with it, the Minister shall cause a notice to that effect to be provided to the person, at which time

(a) the proceedings commenced in respect of the violation under section 49 are ended; and

(b) any security given by the person under the compliance agreement shall be returned to the person.

If compliance agreement not complied with

(4) If the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with it, the Minister shall cause a notice of default to be provided to the person to the effect that

(a) instead of the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, the person is liable to pay, in the prescribed time and manner, twice the amount of that penalty and, for greater certainty, subsection 47(2) does not apply in respect of that amount; or

(b) the security, if any, given by the person under the compliance agreement shall be forfeited to Her Majesty in right of Canada.

Effect of notice of default

(5) Once provided with the notice of default, the person may not deduct from the amount set out in the notice any amount they spent under the compliance agreement and

(a) is liable to pay the amount set out in the notice; or

(b) if the notice provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada and the proceedings commenced in respect of the violation under section 49 are ended.

Effect of payment

(6) If a person pays the amount set out in a notice of default under subsection (4) in the prescribed time and manner,

(a) the Minister shall accept the amount as complete satisfaction of the amount owing; and

(b) the proceedings commenced in respect of the violation under section 49 are ended.

Refusal to enter into compliance agreement

52. (1) If the Minister refuses to enter into a compliance agreement pursuant to a request under paragraph 50(2)(a), the person who made the request is liable to pay the amount of the penalty in the prescribed time and manner.

Effect of payment

(2) If a person pays the amount referred to in subsection (1),

(a) they are deemed to have committed the violation in respect of which the payment is made;

(b) the Minister shall accept the amount as complete satisfaction of the penalty; and

Deeming

(3) If a person does not pay the amount referred to in subsection (1) in the prescribed time and manner, they are deemed to have committed the violation identified in the notice of violation.

Review by the Minister

Review — with respect to facts

53. (1) On completion of a review requested under paragraph 50(2)(b) with respect to the acts or omissions that constitute the alleged violation, the Minister shall determine whether the person requesting the review committed the violation. If the Minister determines that the person committed the violation but that the amount of the penalty was not established in accordance with the regulations, the Minister shall correct the amount and cause a notice of any decision under this subsection to be provided to the person who requested the review.

Review — with respect to penalty

(2) On completion of a review requested under paragraph 50(2)(b), with respect to the amount of the penalty, if the Minister determines that the amount of the penalty was not established in accordance with the regulations, the Minister shall correct the amount and cause a notice of any decision under this subsection to be provided to the person who requested the review.

Payment

(3) If the Minister determines under subsection (1) that a person committed a violation, the person is liable to pay the amount of the penalty confirmed or corrected in that decision in the prescribed time and manner.

Effect of payment

(4) If a person pays the amount referred to in subsection (3),

(a) the Minister shall accept the amount as complete satisfaction of the penalty; and

(b) the proceedings commenced in respect of the violation under section 49 are ended.

Review in writing

(5) In determining whether a person committed a violation, the Minister is to consider only written evidence and written submissions.

Enforcement

Debts to Her Majesty

54. (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered as such in the Federal Court:

(a) the amount of a penalty, from the time the notice of violation setting out the penalty is provided;

(b) every amount set out in a compliance agreement entered into with the Minister under subsection 51(1), from the time the compliance agreement is entered into;

(d) the amount of a penalty as set out in a decision of the Minister under subsection 53(1) or (2), from the time the notice under that subsection is provided; and

(e) the amount of any reasonable expenses incurred under section 61, from the date they are incurred.

Time limit

(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.

Debt final

(3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 50 to 53.

Certificate of default

55. (1) Any debt referred to in subsection 54(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.

Judgments

(2) On production to the Federal Court, the certificate shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges associated with the registration of the certificate.

Rules of Law About Violations

Certain defences not available

56. (1) A person named in a notice of violation does not have a defence by reason that the person

(a) exercised due diligence to prevent the violation; or

(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.

Common law principles

(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.

Burden of proof

57. In every case where the facts of a violation are reviewed by the Minister, he or she must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice.

Violation by corporate officers, etc.

58. If a person other than an individual commits a violation under this Act, any of the person’s directors, officers, agents or mandataries who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation whether or not the person who actually committed the violation is proceeded against in accordance with this Act.

Vicarious liability — acts of employees and agents

59. A person is liable for a violation that is committed by any employee, agent or mandatary of the person acting in the course of the employee’s employment or the scope of the agent or mandatary’s authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.

Continuing violation

60. A violation that is continued on more than one day constitutes a separate violation in respect of each day on which it is continued.

Forfeiture

61. Anything seized under this Act that is the subject of a violation is, at Her election, immediately forfeited to Her Majesty in right of Canada and 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, if

(a) the person is deemed by this Act to have committed the violation; or

(b) the Minister, on the basis of a review under this Act, has determined that the person has committed a violation.

Other Provisions

Evidence

62. In any proceeding for a violation or for a prosecution for an offence, a notice of violation purporting to be issued pursuant to this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed the notice of violation.

Time limit

63. No proceedings in respect of a violation may be commenced later than six months after the Minister becomes aware of the acts or omissions that constitute the alleged violation.

GENERAL PROVISIONS

Statutory Instruments Act

64. For greater certainty, orders made under this Act, except under section 37, are not statutory instruments within the meaning of the Statutory Instruments Act.

How act or omission may be proceeded with

65. If an act or omission can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Certification by Minister

66. A document appearing to have been issued by the Minister, certifying the day on which the acts or omissions that constitute the alleged offence or violation became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and, in the absence of evidence to the contrary, is proof that the Minister became aware of the acts or omissions on that day.

Publication of information about contraventions

67. The Minister may publish information about any contravention of this Act or the regulations, or any violation referred to in section 46, for the purpose of encouraging compliance with this Act and the regulations.

R.S., c. H-3

CONSEQUENTIAL AMENDMENTS TO THE HAZARDOUS PRODUCTS ACT

R.S., c. 24 (3rd Supp.), s. 1

68. (1) The definitions “advertise”, “controlled product”, “hazardous product”, “prohibited product” and “restricted product” in section 2 of the Hazardous Products Act are repealed.

(2) Section 2 of the Act is amended by adding the following in alphabetical order:

“controlled product” or “hazardous product”
« produit contrôlé » ou « produit dangereux »

“controlled product” or “hazardous product” means any product, material or substance specified by the regulations made pursuant to paragraph 15(1)(a) to be included in any of the classes listed in Schedule II;

R.S., c. 24 (3rd Supp.), s. 1, c. 15 (4th Supp.), s. 9(2); 1996, c. 8, s. 26; 1997, c. 9, s. 104; 2002, c. 28, s. 85; 2004, c. 9, ss. 1 and 2, c. 15, s. 67

69. Part I of the Act is repealed.

R.S., c. 24 (3rd Supp.), s. 1

70. Paragraph 12(f) of the Act is replaced by the following:

(f) a consumer product as defined in section 2 of the Canada Consumer Product Safety Act;

SOR/85-378; SOR/86-943; R.S., c. 24 (3rd Supp.), s. 2(1); SOR/87-444; SOR/88-150 and 557; SOR/90-38, and 246; SOR/93-235; 1997, c. 13, s. 63; SOR/98-175; SOR/99-472; SOR/2001-270; SOR/2003-332; 2004, c. 9, s. 3; SOR/2004-46; SOR/2005-110, 133 and 343; SOR/2007-205 and 259; SOR/2008-89, 190(F) and 230

71. Schedule I to the Act is repealed.

COMING INTO FORCE

Order in council

72. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Explanatory Notes

Hazardous Products Act

Clause 68: (1) Existing text of the definitions:

“advertise”, in relation to a prohibited product or restricted product, includes any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of the product;

“controlled product” means any product, material or substance specified by the regulations made pursuant to paragraph 15(1)(a) to be included in any of the classes listed in Schedule II;

“hazardous product” means any prohibited product, restricted product or controlled product;

“prohibited product” means any product, material or substance included in Part I of Schedule I;

“restricted product” means any product, material or substance included in Part II of Schedule I;

(2) New.

Clause 69: Existing text of Part I:

PART I

PROHIBITED AND RESTRICTED PRODUCTS

Application

3. (1) This Part does not apply in respect of the advertising, sale or importation of any

(a) explosive within the meaning of the Explosives Act;

(b) cosmetic, device, drug or food within the meaning of the Food and Drugs Act;

(d) nuclear substance, within the meaning of the Nuclear Safety and Control Act, that is radioactive.

(2) This Part does not apply to the advertising, sale or importation of a tobacco product as defined in section 2 of the Tobacco Act or the advertising of lighters or matches that display a tobacco product-related brand element, except to the extent that a cigarette described in item 41 of Part I of Schedule I is a prohibited product.

(3) If the Governor in Council does not make a regulation under paragraph 5(b.1) on or before June 30, 2004,

(a) the Minister shall prepare a report;

(b) the Minister shall cause a copy of the report to be tabled in each House of Parliament on any of the first ten days on which that House is sitting after June 30, 2004; and

(4) The report is to include

(a) an explanation as to why the regulation has not been made;

(b) a schedule for the making of the regulation;

(d) summaries of any scientific studies that have been reviewed by the Minister during the process of establishing the flammability standards to be used to test cigarettes.

Prohibitions

4. (1) No person shall advertise, sell or import a prohibited product.

(2) No person shall advertise, sell or import a restricted product except as authorized by the regulations made under section 5.

Regulations

5. The Governor in Council may make regulations

(a) authorizing the advertising, sale or importation of any restricted product and prescribing the circumstances and conditions under which and the persons by whom the restricted product may be advertised, sold or imported;

(b) prescribing the procedures to be followed by a board of review established pursuant to section 9 in conducting an inquiry;

(b.1) prescribing the method and flammability standard to be used to test cigarettes; and

Interim Orders

5.1 (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Part if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.

(2) The Minister may make an interim order in which any power referred to in section 6 is deemed to be exercised, if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to health or safety.

(3) An interim order has effect from the time that it is made but ceases to have effect on the earliest of

(a) 14 days after it is made, unless it is approved by the Governor in Council,

(b) the day on which it is repealed,

(c) in the case of an interim order made under subsection (1), the day on which a regulation made under this Part that has the same effect as the interim order comes into force and, in the case of an interim order made under subsection (2), the day on which an order made by the Governor in Council under this Part that has the same effect as the interim order comes into force, and

(d) one year after the interim order is made or any shorter period that may be specified in the interim order.

(4) No person shall be convicted of an offence consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.

(5) An interim order

(a) is exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act; and

(b) shall be published in the Canada Gazette within 23 days after it is made.

(6) For the purpose of any provision of this Part other than this section, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.

(7) A copy of each interim order must be tabled in each House of Parliament within 15 days after it is made.

(8) In order to comply with subsection (7), the interim order may be sent to the Clerk of the House if the House is not sitting.

Amendments to Schedule I

6. (1) The Governor in Council may, by order, amend Part I or II of Schedule I by adding thereto

(a) any product, material or substance that is or contains a poisonous, toxic, flammable, explosive, corrosive, infectious, oxidizing or reactive product, material or substance or other product, material or substance of a similar nature that the Governor in Council is satisfied is or is likely to be a danger to the health or safety of the public; or

(b) any product designed for household, garden or personal use, for use in sports or recreational activities, as life-saving equipment or as a toy, plaything or equipment for use by children that the Governor in Council is satisfied is or is likely to be a danger to the health or safety of the public by reason of its design, construction or contents.

(2) The Governor in Council may, by order, amend Part I or II of Schedule I by deleting therefrom any product, material or substance if the Governor in Council is satisfied that the inclusion of the product, material or substance in that Part is no longer necessary.

(3) For greater certainty, an order made pursuant to subsection (1) may describe a product, material or substance added thereby to Part I or II of Schedule I by reference to any properties or characteristics of the product, material or substance or by reference to any other criteria and any product, material or substance that has those properties or characteristics or meets those criteria shall, for the purposes of this Act, be deemed to have been added by the order to Part I or II, as the case may be, of Schedule I.

(4) An order made pursuant to subsection (1) incorporating a law, standard or specification by reference may incorporate that law, standard or specification as amended from time to time.

(5) [Repealed, 1996, c. 8, s. 26]

7. (1) The Minister shall cause a copy of each order made pursuant to subsection 6(1) to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the order is made.

(2) If both Houses of Parliament resolve that an order or any part of an order made pursuant to subsection 6(1) should be revoked, the order or that part thereof is thereupon revoked.

Board of Review

8. Where a product, material or substance is added to Part I or II of Schedule I by an order made pursuant to subsection 6(1), any manufacturer or distributor of that product, material or substance or any person having that product, material or substance in possession for sale may, within sixty days after the date of the making of the order, request the Minister to refer the order to a board of review.

9. (1) On receipt of a request described in section 8, the Minister shall establish a board of review, in this section referred to as the “Board”, consisting of not more than three persons and shall refer the order in respect of which the request was made to the Board.

(2) The Board shall inquire into the nature and characteristics of any product, material or substance to which an order referred to it under subsection (1) applies and shall give the person making the request and any other person affected by the order a reasonable opportunity of appearing before the Board, presenting evidence and making representations to it.

(3) The Board has all the powers that are or may be conferred by or under sections 4, 5 and 11 of the Inquiries Act on commissioners appointed under Part I of that Act.

(4) The Board, as soon as possible after the conclusion of its inquiry, shall submit a report with its recommendations to the Minister, together with all evidence and other material that was before the Board.

(5) Any report of the Board shall, within thirty days after its receipt by the Minister, be made public by the Minister, unless the Board states in writing to the Minister that it believes the public interest would be better served by withholding publication, in which case the Minister may decide whether the report, either in whole or in part, shall be made public.

(6) The Minister may publish and supply copies of a report referred to in subsection (4) in such manner and on such terms as the Minister deems proper.

Disclosure

10. (1) Where the Minister has reason to believe that a product, material or substance is a product, material or substance that may be added to Part I or II of Schedule I by an order made pursuant to subsection 6(1), the Minister may, by registered mail, send a written notice to any manufacturer of the product, material or substance requesting the disclosure of information relating to the formula, composition, chemical ingredients or hazardous properties of the product, material or substance and such other information as the Minister deems necessary for the purpose of determining whether the product, material or substance is or is likely to be a danger to the health or safety of the public.

(2) Every manufacturer to whom a notice referred to in subsection (1) is sent shall disclose to the Minister, in the manner and within the period specified in the notice, any information described in that subsection that is requested in the notice and is in the possession of the manufacturer.

(3) Information received by the Minister from a manufacturer pursuant to subsection (1) is privileged and shall not be disclosed to any other person except as may be necessary for the administration or enforcement of this section or for the purposes of section 6.

Clause 70: Relevant portion of section 12:

12. This Part does not apply in respect of the sale or importation of any

...

(f) product, material or substance included in Part II of Schedule I and packaged as a consumer product;