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seize and detain for any time anything connected to the Act and
Regulations, such as your products and equipment. This is a significant
change. Currently, an inspector can only seize if he/she “believes on
NHPPA Draft Discussion Paper
reasonable grounds” the article is connected to a violation of the Act or
Regulations. Now an inspector can seize all of your property without
the pre-condition that he/she believes it is connected to a violation of
the Act.
The addition of “for any time” is also a change. Previously articles could
only be held for such time “as may be necessary” and in connection with a
violation. So for example, if your property was seized for a labelling
problem and you printed correct labels, the property should be released.
Now the property can be held for any time and for any reason. This raises a
question as to why such new broad and sweeping seizure powers are
necessary?
Keep in mind that Health Canada always has access to the search warrant
provisions found in the Criminal Code. These provisions have been used
by Health Canada and seem to work adequately for other federal regulatory
bodies. What is going to occur that requires seizure without a warrant,
without any reason, without reporting back to a Court or Justice, and
without any time constraints?
enter on and pass through or over private property without any liability and
without the owner of the property having the right to object;
charge the owner for storage of seized property. Now not only can Health
Canada seize property for any length of time, but the new s. 23.3 gives
them the right to charge you for the moving and storage. I am aware of
one company that has had product seized for 5 years. Under this new
provision they would be liable for ongoing storage costs. This is
unprecedented. Usually the government can only seize private property for
violations and it is very unusual for their to be fees for the storage of what
is then considered to be evidence;
if inspectors believe on reasonable grounds the seized property could be
injurious to human health they can dispose of it at the expense of the
owner or direct the owner to dispose of it. Currently inspectors have to
either obtain the owner’s consent or apply to a Court to have product
destroyed. This protects the property owner by ensuring that an impartial
Judge will make the decision. It is difficult to understand why it is in
anyone’s interest to take away the current safeguards;
property is immediately forfeited after 60 days unless an owner is
identified. No application to a Court is necessary. I find this interesting as
I was involved in a case in which product was seized but for prosecution purposes Health Canada was going to have difficulty proving ownership.
Now if in doubt Health Canada can simply seize enough of your property
that you will go bankrupt if you do not claim it and hence solve the proof of
ownership issue. It is highly unusual for their to be forfeiture without a
Court order. The costs of destruction can be charged to the owner or
person entitled to possession
Inspectors are given apparently unlimited powers to
direct your actions and do “anything” for even the
slightest suspected violation of the Act or Regulations
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