Canadian Constitutional Law

1997

Mape Leaf that says "Oh! Canada"My first exposure to legislative “regulations” was when I tried reading the Provincial Government’s proposed Bill 160 back in 1997.   Although I’m reasonably well educated and usually able to grasp the big picture, when reading through this proposed education legislation more than once I still couldn’t figure it out. At first I worried that my critical thinking had been impaired by motherhood. As it turned out, that was not the problem. The problem was that Bill 160 wasn’t complete, it was a framework.

Regulations are the details that get filled in later after the law has been passed. Regulations are decided behind closed doors by the cabinet. Bill 160 even specified that many of its regulations could be retroactive. As a citizen, this makes me nervous.

The point of our lawmaking procedure is to allow for laws to be made democratically in the light of day by elected representatives.
I can understand how it started… a government wanted to put through a law quickly, but they were missing a detail or two so they left a regulatory blank to be filled in later. But legislation made up of “regulations to be named later” bypasses the system of parliamentary legislation which is how our laws are supposed to be made. This is like signing a contract that hasn’t been filled in.

2010

Prime Minister Stephen Harper
One result of Prime Minister Stephen Harper’s misuse of prorogation means that more than half of the legislation in the works has been killed.

From my perspective, it is rather a good thing that some of the laws were derailed. As it turns out, it is a very good thing that Bill C-6 Canada Consumer Product Safety Act was not actually passed.

Marketed under the Healthy Canadians Food and Consumer Safety Action Plan umbrella, this law has not yet passed. This law is being sold as “protecting you and your family'”.

Constitutional lawyer Shawn Buckley explains about legislative regulations at the federal level:

Regulations don’t have to go through parliament. There doesn’t have to be a vote. If you want to pass a regulation and you’re the government, you just publish it in the Canada Gazette Twice, and it becomes the law.
–Shawn Buckley YouTube Video: Part 1 Restricting Our Freedoms

Through a discussion board on the Facebook Canadians Against Proroguing Parliament CAPP site I first learned about Bill C-6. I was directed to National Health Products Protection Organization (NHPPA)‘s Constitutional lawyer Shawn Buckley, who speaks on the two YouTube videos I’ve included in this page.

Although his focus is National Health Products Protection he very clearly lays out a few very frightening things that are happening in this legislation. Mr. Buckley’s concern with the regulations within this proposed law because he believes once the law is passed the regulatory elements will be employed detrimentally.


PART 1 Restricting Our Freedoms – Shawn Buckley about Bill C-6

Bill C-6 abolishes the Law of Trespass

Our right to privacy, which Canadians enjoyed on our own land, or in our own homes, is abolished under this law. Established in British Common Law, Canada’s Law of Trespass is older than confederation. The legal protection it afforded citizens was that any invasion of our privacy by citizens or the state had remedies in law. This law is why it is necessary for law enforcement to have a search warrant before invading citizen’s homes. Currently all levels of Canadian law enforcement employ the standards laid out in the Canadian Criminal Code: there needs to be a substantial likelihood of evidence of a crime.

Shawn Buckley says that Bill C-6 will allow a Justice to grant a search warrant to a Health Canada Inspector to any place that is “likely to find something regulated by the act”. Being skeptical, I went and looked it up on the government’s own website:

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.
Bill C-6 – As Passed by the House of Commons Version

Exerpting the scary bit: “reasonable grounds to believe that a consumer product is … stored.”

My house has stored consumer products in it.   Every house does.   He’s right.

This law means that no one’s home is safe.

Of course, law enforcement isn’t going to be breaking down doors willy nilly… would they?

The Rule of Law

Canadian Flag
The Rule of Law is one of my favorites. Currently, the state needs to go through the court before it can deprive us of our liberty or our property. The court only grants the state the right to deprive us of these things if there is the provision of a crime or a legal judgement.

Bill C-6 allows a Health Canada Inspector to seize your property without going to court for a warrant.

Under current law, anything that is seized under a warrant must be (a) reported to the court immediately, and (b) the enforcement agent must apply to the court to keep it. The court may decide the seizure was improper and order it’s return.

Bill C-6 allows property seizure without having to bother with the court.

Worse, it allows the person whose property was seized can be billed for storage of their seized property. Or the Inspector can decide to destroy the property.

Keeping it cozy, the ministry that charges you keeps the goods they have seized.

So, in the name of “safety”, a warrant may be obtained without evidence, goods may be seized without a warrant, and then kept, disposed of or destroyed without a court order.


PART 2 Restricting Our Freedoms – Shawn Buckley about Bill C-6

I know that I am not Shawn Buckley’s intended audience because my only connection with the National Health Products Protection Organization would be as a consumer.   I’m just a citizen.   There are some really good laws in place currently protecting consumers.

If the inspectors are having trouble doing their job within Canada’s existing laws, perhaps the real problem is that there are not enough inspectors to be able to do the job properly. Rectifying that problem would be beneficial to consumers.

As a reader and writer I can see all too clearly the realms of abuse that laws like this will open up. And once a law like this passes, it will be that much easier to pass others as bad or worse.

There are really good reasons to afford citizens protection from the state. That’s why our legal system evolved the way it has… to ensure that the powerful state does not wantonly abuse its citizens. Citizens must be considered innocent until proven guilty. That’s important.

This law will strip centuries old legal protections from me and my family. That’s not good for us… that’s bad.

Prorogation killed this law. We’re safe from it now.

Well, no.

Bill C-6 was originally Bill C-52. It didn’t get passed and it has come back. A hair’s breath from being a law. So when parliament reconvenes it will no doubt be back. And this time, it will most likely be pushed through on a fast track.

We can get some good out of this prorogation if we can work to stop further erosion of our civil rights. Lets make democracy work for us.

Canadian House of Commons

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