Bill S-38

1st Session, 38th Parliament,

53-54 Elizabeth II, 2004-2005

senate of canada

BILL S-38

An Act respecting the implementation of international trade commitments by Canada regarding spirit drinks of foreign countries

WHEREAS Canada has made international commitments regarding the use of names of spirit drinks of foreign countries;

AND WHEREAS those commitments are contained in the Agreement between Canada and the European Community on trade in wines and spirit drinks, signed on September 16, 2003, and in side letters to that Agreement, in the North American Free Trade Agreement, signed on December 17, 1992, and in commitments made by Canada at the Commonwealth Heads of Government meeting in Nassau in 1985 to establish an economic and trade development program for the Commonwealth Caribbean countries and territories;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. This Act may be cited as the Spirit Drinks Trade Act.

2. The following definitions apply in this Act.

“Minister” means the Minister of Agriculture and Agri-Food.

“sell” includes offer for sale, expose for sale and have in possession for sale.

3. (1) No person shall use the name of a spirit drink referred to in the schedule to sell a product as that spirit drink except in accordance with the schedule.

(2) Subsection (1) does not prevent the use of any trademark that was registered or applied for before January 1, 1996.

4. The Governor in Council may, by order, amend the schedule to implement Canada’s international trade obligations regarding the use of names of spirit drinks to sell products as spirit drinks.

5. (1) The Minister may designate any persons, or classes of persons, as inspectors for the purpose of the enforcement of this Act.

(2) Every inspector shall be given a certificate in a form established by the Minister attesting to the inspector’s designation and, on entering any place under subsection 6(1), an inspector shall, if so requested, produce the certificate to the person in charge of that place.

6. (1) An inspector may at any reasonable time enter any place, including a conveyance but excluding a dwelling-house, where the inspector believes on reasonable grounds any article to which this Act or the regulations apply is manufactured, prepared, preserved, packaged or stored, and may

(a) examine the article and take samples of it, and examine anything that the inspector believes on reasonable grounds is used or capable of being used for the article’s manufacture, preparation, preservation, packaging or storing;

(b) open and examine any receptacle or package that the inspector believes on reasonable grounds contains any article to which this Act or the regulations apply;

(c) examine and make copies of, or extracts from, any books, documents or other records found in any place referred to in this subsection that the inspector believes on reasonable grounds contain any information with respect to any article to which this Act or the regulations apply; and

(d) seize and detain for such time as may be necessary any article by means of or in relation to which the inspector believes on reasonable grounds any provision of this Act or the regulations has been contravened.

(2) The owner or person in charge of a place entered by an inspector under subsection (1) and every person found in it shall give the inspector all reasonable assistance and furnish the inspector with any information that they may reasonably require.

7. (1) No person shall obstruct or hinder, or knowingly make any false or misleading statement either orally or in writing to, an inspector while the inspector is carrying out their duties or functions under this Act or the regulations.

(2) Except with the authority of an inspector, no person shall remove or alter in any way any article seized under this Act.

8. Any article seized under this Act may, at the option of an inspector, be kept or stored in the place where it was seized or, at the direction of an inspector, the article may be removed to any other place.

9. An inspector who has seized any article under this Act shall release it when they are satisfied that all the provisions of this Act and the regulations with respect to it have been complied with.

10. (1) If an inspector seizes an article under this Act and its owner or the person in whose possession the article was at the time of seizure consents to its destruction, the article is immediately forfeited to Her Majesty and may be destroyed or otherwise disposed of as the Minister may direct.

(2) If a person is convicted of a contravention of this Act or the regulations, the court or judge may order that any article by means of or in relation to which the offence was committed, and any thing of a similar nature belonging to or in the possession of the person or found with the article, be forfeited. On the making of the order, the article and thing are forfeited to Her Majesty and may be disposed of as the Minister may direct.

(3) Without prejudice to subsection (2), a judge of a superior court of the province in which any article is seized under this Act may, on the application of an inspector and on any notice to those persons that the judge directs, order that the article and any thing of a similar nature found with it be forfeited to Her Majesty, if the judge finds, after making any inquiry that the judge considers necessary, that the article is one by means of or in relation to which any of the provisions of this Act or the regulations have been contravened. On the making of the order, the article or thing may be disposed of as the Minister may direct.

11. The Minister may designate any persons, or classes of persons, as analysts for the purpose of the enforcement of this Act.

12. (1) An inspector may submit to an analyst for analysis or examination any article seized by the inspector, any sample from it or any sample taken by the inspector.

(2) An analyst after making the analysis or examination may issue a certificate or report setting out the results of the analysis or examination.

13. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Act and, in particular, may make regulations respecting the powers and duties of inspectors and analysts and the taking of samples and the seizure, detention, forfeiture and disposition of articles.

14. Every person who contravenes any provision of this Act or the regulations is guilty of an offence and liable

(a) on summary conviction, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months or to both; and

(b) on conviction on indictment, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding three years or to both.

15. No person shall be found guilty of an offence under this Act, other than an offence under section 7, if the person establishes that they exercised all due diligence to prevent its commission.

16. (1) Subject to this section, in any prosecution for an offence under this Act, a certificate purporting to be signed by an analyst and stating that an article, sample or substance has been submitted to, and analysed or examined by, the analyst and stating the results of the analysis or examination is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed it.

(2) The party against whom the analyst’s certificate is produced may, with leave of the court, require the attendance of the analyst for the purposes of cross-examination.

(3) No certificate shall be admitted in evidence unless, before the trial, the party intending to produce the certificate has given reasonable notice of that intention, together with a copy of the certificate, to the party against whom it is intended to be produced.

17. This Act comes into force on June 1, 2006.