In spite of a successful battle on the part of the public, consumer and small business groups to quash Bill C-51--a federal law that would have severely restricted and unfairly policed the natural health products industry in Canada--a new bill, poised to become law, will likely have the same effect on the industry long term. This, according to constitutional lawyer and president of the Natural Health Products Protection Association, Shawn Buckley.

As a result of consumer and natural health industry outrage directed at MPs from all parties across Canada--and the dissolving of Parliament--Bill C-51 died. A new bill, C-36, has taken its place--with one difference. The Canada Consumer Product Safety Act expressly exempts natural health products from its provisions--but Buckley believes the new bill is still a Trojan horse that will ultimately pave the way for government to re-introduce new, sweeping provisions that bypass the rule of law to apply to Canada's natural health industry, which has been under siege since natural health products were included under the Food and Drugs Act in 2004. As a result of those NHP regulations, thousands of products have become unavailable to consumers, restricting access to health-care alternatives and putting NHP providers out of business.

Buckley says the new act, which purports to make Canadians safer, will actually make them less safe. And if passed, he says (at press time, Bill C-36 was before the Senate, poised to become law) C-36 will likely face a barrage of constitutional challenges in the courts.
The new consumer safety laws gives Health Canada sweeping new powers, shifts control to bureaucrats, and puts Canadians at risk of trespass and raids by Health Canada--without requiring government officials to go through the courts.

"Bill C-36 is sold to us as necessary for our safety," says Buckley, "but if I'm correct, this bill represents one of the most unsafe legal moves--certainly in my lifetime."
Buckley says Health Canada bureaucrats will have unprecedented powers to shut down businesses, order recalls, seize bank accounts and property--all without allowing the business owner the due recourse of turning to the courts. "In essence, we've moved away from the rule of  law," says Buckley, "and the rule of law is that if the state is going  to ­imprison you or seize your property, they have to go through an independent court and be supervised to do it."

The bill also gives Health Canada the ability to dole out severe penalties for offences, both administrative and criminal. Inspectors could hand out fines of up to $5 million, two years in prison or both for indictable offences.

The lawyer says small and medium business owners will be left with no recourse if Health Canada comes knocking at their doors with sweeping new powers to seize the company's bank accounts and inventory and conduct their own recall. Buckley says such citizens "will ­likely not have the money to go to the high courts to challenge the laws on constitutional grounds, or seek an impartial review of the bureaucrats' decision."

And, Buckley says, there is no doubt  Canada's new consumer protection law will face an onslaught of constitutional challenges in the courts. In Senate committee hearings, Senators Elaine McCoy (PC), Joseph Day (Lib), Celine Hervieux-Payette (Lib), George Furey (Lib), and Tommy Banks (Lib)--all lawyers--­expressed concern that the bill is a breach of civil liberties and will probably not stand up to what will likely be many court challenges, should it pass. Banks says, "it is undoing 400 years of common law."

Fasken Martineau, one of the country's leading law firms, has also warned Bill C-36 will likely result in a surge of class-action lawsuits. Peter Pliszka, a partner with Fasken Martineau's Toronto office, says, "Bill C-36 will introduce a revolutionary upheaval in product regulation in Canada," claiming it goes against 140 years of Canadian history.

For more information go to www.nhppa.org. 

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