Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations

HPA Section 29 - Exception, etc., Need Not be Mentioned and Burden of Proof

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29. (1) No exception, exemption, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information or indictment for an offence under section 28 of this Act or under section 463, 464 or 465 of the Criminal Code in respect of an offence under section 28.

(2) In any prosecution for an offence mentioned in subsection (1), the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused and the prosecutor is not required except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.

Interpretation / Discussion of Section 29

The "information" or "indictment" referred to in subsection 29(1) is the court form containing the wording of the actual charge being laid against the accused. In the wording of the information, 29(1) indicates that it is sufficient to state that the importation, advertisement or sale of a prohibited product, or a restricted product that does not accord with the applicable Regulations under the HPA, or the importation or sale of a WHMIS controlled product which does not comply with the Controlled Products Regulations, has occurred. Elaboration by the Crown of the possible exceptions, exemptions, etc. is not required. For example, a charge involving a restricted product need only set out the fact of the sale of the item. The charge need not make reference to a regulation that would have permitted the sale of the item had the requirements of that regulation been met. In actual practice, however, the information will likely state that the conditions of a regulation that would have permitted a legal sale of the product were not met by the accused.

Subsection 29(2) clearly states that the accused has the onus of proving that an exception, exemption, etc. operates in the accused's favour. This means that once the Crown prosecutor has proved that the accused sold, for example, a controlled product that could only be sold as authorized by a regulation, the accused has the onus of proving the defence that an exception or exemption in the regulation applies to the accused and, hence, that the sale of the product in question was legal. The Crown is not required to prove a negative; that is, that the exceptions or exemptions do not operate in favour of the accused.

Again, in practice, the Crown prosecutor would anticipate the defence set out in Section 29. As part of his or her case, the Crown prosecutor would present evidence (e.g., laboratory test results) that the product in question did not fall within any exception or exemption set out in a regulation. By proving that the product was non-complying, the Crown prosecutor prevents the accused from raising a defence of exception or exemption.

The regulations made under the authority of the HPA are not the only exceptions that an accused can raise. Some items in Schedule I to the HPA include express exceptions: See Part I, items 7, 16, 17(2) and 26 and Part II, items 13(k), 27, 29 and 30. In these cases also, the Crown should provide evidence that the product does not fall within any of the exceptions listed in the item.

The regulations specify that every product must comply. Consequently, if ten articles are seized, all ten must pass the tests for compliance. If any fail to pass those tests, then an offence has occurred and a prosecution can be commenced. If the prosecution fails and the accused is acquitted, it is not possible to lay a second charge in respect of these same ten seized articles. However, an inspector can return to the accused's establishment and seize more of the same articles (same lot, etc.) and have them tested again. Should any of this second sample fail the tests, then a second prosecution can be commenced. This latter situation is not "double jeopardy"; that is, prosecuting twice for the same offence. The second testing failure is a second offence involving a separate and different set of facts. It is, as a result, a completely new offence.