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

HPA Section 1 - Short Title

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An Act to prohibit the advertising, sale and importation of hazardous products.

Short Title

1. This Act may be cited as the Hazardous Products Act, R.S., c. H-3, s.1.

Legislative Jurisdiction

Section 91 and 92 of the Constitution Act, 1867 define the division of powers between Parliament and Provincial Legislatures. Criminal law is one of the areas designated as being under federal jurisdiction. Matters of property and civil rights are among those under provincial jurisdiction.

the Hazardous Products Act is criminal law and, therefore, under federal jurisdiction. Parliament's authority to make the Hazardous Products Act was challenged in R. v. Cosman's Furniture (1972) Ltd. (1977) 73 D.L.R.(3d) 312 (Man. C.A.). The Manitoba Court of Appeal held that the Hazardous Products Act
constitutes a proper exercise of the legislative jurisdiction of the Parliament of Canada because it is in pith and substance criminal law within the meaning of Section 91(27) of the Constitution Act, 1867. The Court further ruled that the Hazardous Products Act does not infringe upon provincial jurisdiction over "property and civil rights".

Citation: "R.S., c. H-3" indicate that this Act can be found in the 1985 Revision of the Statutes of Canada at chapter H-3.

General Concepts Of Law

Law: A law is a binding rule made by a governing body that the governed have empowered to act on their behalf, such as Parliament or a provincial legislature. It is an offence to fail to comply with a law and penalties may be imposed on an offender.

Regulation: A regulation is a law made by a body or person to whom the power to make regulations has been delegated in an Act. Normally, as in the case of the Hazardous Products Act, the power to make regulations is delegated to the Governor in Council. Although regulations are not made by Parliament itself,
they are laws.

Rule of Law: When a society is governed by rule of law, it is governed by known laws made by a properly constituted body, rather than by the whims of any person or group. Rule of law includes the concept that persons who make, administer and judge the law must also obey the law and act in good faith. Where a person administering the law acts contrary to the law, the administrator's actions will be without force and effect. For example, a seizure of goods by an inspector is proper only to the extent that the seizure is authorized by an Act of Parliament.

Administrative Discretion: Administrative discretion in administering and enforcing laws and regulations is an important consideration in ensuring reasonable application of an Act or regulation within its intent and purpose.

The Department has developed policies for the administration of the Hazardous Products Act. Those policies are based on the Department's understanding of the intent of the legislation, and on the concept of responsible administration. The Department's legal advisors have indicated that the use of such policies is proper and valid until the particular policy is found by a court of law to be incorrect.

Retroactivity: Laws take effect on the date that they are proclaimed in force and are not usually retroactive or retrospective. For example, in the Hazardous Products Act, a product, material or substance legally imported, manufactured and distributed before the effective date of an amendment that adds the product,
material or substance to Part I of Schedule I, cannot be sold or advertised after the effective date of the amendment. This is not retroactive law. Rather, it is law that becomes effective on a specific date.

Functions of the Courts: The function of the courts is to settle disputes in a binding manner. Disputes can be civil or criminal in nature and can be between individuals or governments or both. Before the courts, the interpretation of a law argued by the government is neither more valid or more correct than that argued by an accused. In his or her defence, an accused may dispute any or all of the alleged facts of the case, the interpretation of the law, or the validity of the law itself.

In a prosecution, the duty of the Crown is not to "win" cases, but to place its evidence of an alleged violation before the court for a determination of whether a violation has occurred in fact and in law.

Mens Rea and Strict Liability: Proof of guilt for most criminal offenses requires proof, not only that the prohibited action was committed (actus reus), but also that the action was committed with intent (i.e. guilty mind or mens reus), or with recklessness or negligence. However, there are many regulatory offenses for which it is not necessary to show intent or direct knowledge of the offence. Offenses that can be committed without intent or knowledge are called strict liability or absolute liability offenses. The offenses set out in the Hazardous Products Act are strict liability offenses. Therefore, in a prosecution, the Crown does not need to prove intent or knowledge of the offence, only that the offence occurred and its particular facts. With strict liability offenses, however, an accused will be acquitted where the accused establishes that he or she took all reasonable steps, or acted with due diligence, to ensure that the offence did not occur.

Absolute liability offenses are very rare because there are no defences to such offenses. Once the Crown has proven the facts of the offence beyond a reasonable doubt, guilt is established even where the offender had not intended to commit the illegal act or did not know about it. The absence of intent and of a due diligence defence means that absolute liability offenses offend the right to security of the person in section 7 of the Charter of Rights and Freedoms. Absolute liability offenses, therefore, will survive only where they can meet a very high test of justification under section 1 of the Charter; that is, that the wrong they address is so grave that it is justifiable in a free and democratic society that the Crown not have to prove intent or knowledge.

Burden of Proof: Unless a law states otherwise, the burden of proof in any action falls on the person bringing the suit. In a civil action, the plaintiff must prove his or her case to the degree that a court can conclude that it is more probable that the plaintiff's version of the facts and law is correct rather than that the defendant's version is correct. In criminal law, which includes the Hazardous Products Act, the Crown must prove beyond a reasonable doubt that the accused is guilty. The accused is not required to prove innocence nor even to testify.

However, subsection 29(2) of the Hazardous Products Act places the burden on the accused of proving that he or she falls within an exception, exemption, excuse or qualification that provides a defence under the Act. But this burden of proof only arises after the Crown has proven beyond a reasonable doubt that the accused committed the illegal act.

Benefit of Doubt in Interpretation: Under the Charter, an accused is innocent until the Crown proves his or her guilt. As a consequence, in criminal law the accused is given the benefit of any doubt. Not only must the Crown prove the facts of its case beyond a reasonable doubt but also in that there is no ambiguity in the interpretation of the law. Where the interpretation of a statute or regulation is unclear or in doubt, the Charter requires that the statute or regulation be interpreted "restrictively"; that is, to the benefit of the accused.

However, ambiguity does not automatically work to the benefit of the accused. When interpreting a law, the court will also look to the purpose of the law and will not interpret it so restrictively as to defeat the purpose of the Act. In other words, if the interpretation that benefits the accused would defeat the purpose of the law, the court will reject the accused's argument. This principle is found at section 12 of the Interpretation Act, which states that:

"Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."

where "remedial" means that a problem was perceived and a law was passed to remedy it.

Powers of Officers and Functionaries: The powers of inspectors under the Hazardous Products Act are set out in section 22 of the Act. In addition, subsection 31(2) of the Interpretation Act applies:

"Where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given".