S.M. 2002, c. 38

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S.M. 2002, c. 38

Bill 38, 3^rd Session, 37^th Legislature

THE PUBLIC HEALTH AMENDMENT ACT

(Assented to August 9, 2002)

WHEREAS the inhalation of the vapours of intoxicating substances has devastating health effects on persons;

AND WHEREAS the use of intoxicating substances has adverse effects on the health of communities;

AND WHEREAS the prevention of the adverse health effects of intoxicating substances is a pressing Provincial concern that may be addressed by limiting the availability of intoxicating substances;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P210 amended

The Public Health Act is amended by this Act.

The following is added after section 27:

INTOXICATING SUBSTANCES

Definitions

27.1

In this section and in sections 27.2 to 27.7,

"intoxicating substance" means

(a) glues, adhesives, cements, cleaning solvents, thinning agents and dyes containing toluene or acetone,

(b) petroleum distillates or products containing petroleum distillates including naphtha, mineral spirits, Stoddard solvent, kerosene, gasoline, mineral seal oil and other related distillates of petroleum,

(d) any substance that is required, under the Hazardous Products Act (Canada) or the regulations to that Act, to bear the label "Vapour Harmful", "Vapour Very Harmful" or "Vapour Extremely Harmful",

(e) aerosol disinfectants and other aerosol products containing ethyl alcohol, and

(f) any other product or substance that is prescribed by regulation as an intoxicating substance for the purposes of this Act; (« substance intoxicante »)

"paraphernalia" means any equipment, product or material that may enable an intoxicating substance to be used as an intoxicant; (« attirail pour substances intoxicantes »)

"provide" means give, sell, offer to sell, lend, or deliver possession of; (« fournir »)

"use as an intoxicant" means to inhale, administer or otherwise introduce into a person's respiratory system the vapours of an intoxicating substance for the purpose of inducing euphoria, hallucinations or intoxication. (« utiliser comme substance intoxicante »)

Seizure of intoxicating substances

27.2(1)

A public health inspector or peace officer who has reasonable grounds to believe that

(a) an intoxicating substance has been repackaged for the purpose of facilitating its use as an intoxicant;

(b) a person has provided an intoxicating substance to another person where there was a reasonable basis to believe that the other person would use the substance as an intoxicant; or

(c) a person is in possession of an intoxicating substance for the purpose of using it as an intoxicant or providing it to another person for use as an intoxicant;

may seize the intoxicating substance, and any other intoxicating substances in the possession of the person, and bring the items seized before a justice.

Seizure of paraphernalia

27.2(2)

A public health inspector or peace officer who has reasonable grounds to believe that a person is in possession of paraphernalia for the purpose of enabling an intoxicating substance to be used as an intoxicant may seize it and bring it before a justice.

Search re intoxicating substances and paraphernalia

27.2(3)

A public health inspector or peace officer who has reasonable grounds to believe that a person is in possession or control of personal effects, a receptacle, a container or a motor vehicle containing an intoxicating substance or paraphernalia that is liable to seizure under subsection (1) or (2), may, without a warrant, search the personal effects, receptacle, container or motor vehicle and seize the intoxicating substance or the paraphernalia.

Seizure on site

27.3(1)

If an item seized under section 27.2 is of such a kind or in such quantity that it cannot be readily removed, the public health inspector or peace officer may, pending an order under subsection 27.4(5),

(a) seize the item without removing it; and

(b) take measures necessary to ensure that it remains secured, including appointing as his or her agent the person who was in possession or control, or another responsible person on the premises, to retain or take custody of the item.

Responsibilities of agent

27.3(2)

A person appointed as an agent under clause (1)(b) shall ensure that any item placed in his or her custody is preserved and not removed from the premises, pending an order under subsection 27.4(5).

Justice to hold hearing

27.4(1)

A justice shall hold a hearing in relation to an item seized under section 27.2 or 27.3.

Notice of show cause hearing

27.4(2)

Before holding a hearing, the justice must give notice of the hearing to the person in whose possession or control the item was at the time it was seized. The notice must be given to the person, at least 10 days before the hearing,

(a) personally; or

(b) by sending a copy of the notice to the last known address of the person.

Service of notice dispensed with

27.4(3)

A justice may dispense with service of the notice under subsection (2) if the item, when seized, was not in the possession or control of a person, or if the person in possession or control is unknown or cannot be located after reasonable effort.

Formal rules of evidence not to apply

27.4(4)

At a hearing, evidence may be given before the justice in any manner that the justice considers appropriate, and the justice is not bound by the rules of law respecting evidence applicable to judicial proceedings.

Order

27.4(5)

At the conclusion of the hearing, the justice shall

(a) order that any intoxicating substance seized be forfeited if satisfied it was

(i) repackaged for the purpose of facilitating its use as an intoxicant,

(ii) provided to another person where there was a reasonable basis to believe that the other person would use the substance as an intoxicant, or

(iii) possessed for the purpose of using it as an intoxicant, or for providing it to another person for use as an intoxicant;

(b) order that any paraphernalia seized be forfeited if satisfied the person was in possession or control of the paraphernalia for the purpose of using it, or causing or permitting it to be used, for the purpose of facilitating an intoxicating substance to be used as an intoxicant; or

(i) that the item seized be returned to the owner or the person it was seized from, or

(ii) if the item when seized was not in the possession or control of a person, or if the owner or the person in possession or control is unknown or cannot be located after reasonable effort, that the item seized be forfeited.

Order is final

27.4(6)

The order of a justice is final and is not subject to appeal.

Compensation not payable

27.5

No compensation is payable to a person for the seizure under section 27.2 or 27.3, or forfeiture ordered under section 27.4, of an intoxicating substance or paraphernalia.

Evidence of nature of substance

27.6(1)

Wording or other information appearing

(a) on the labels attached to the bottles, packages, tins, tubes or other containers in which an intoxicating substance is provided or displayed;

(b) in any printed or written descriptive material displayed with or accompanying an intoxicating substance when provided; or

(c) in any advertising material respecting an intoxicating substance published or distributed by the maker or a seller of the intoxicating substance;

is, in the absence of evidence to the contrary, proof of the nature of the substance.

Proof by analysis

27.6(2)

At a hearing under section 27.4, a certificate of analysis furnished by an analyst authorized by the minister for the purpose is, in the absence of evidence to the contrary, proof of the facts stated in the certificate and of the authority of the person giving it, without further proof of the person's appointment or signature.

Sections 17 and 18 inapplicable

27.7

Sections 17 and 18 do not apply to an action taken by a public health inspector, peace officer, or justice under sections 27.2 to 27.4.

Section 28 is amended by adding the following after clause (nn):

(nn.1) prescribing any product or substance as an intoxicating substance;

(nn.2) extending or qualifying the descriptions of intoxicating substances in the definition of that term in section 27.1;

Consequential amendments, C.C.S.M c. G40

4(1)

The Gasoline Tax Act is amended by this section.

4(2)

Section 7 is amended by renumbering it as subsection 7(1), by adding "or" at the end of clause (e), and by adding the following after clause (e):

(f) who was in possession or control of an intoxicating substance or paraphernalia at the time it was seized, if a justice has made an order under section 27.4 of The Public Health Act forfeiting the intoxicating substance or paraphernalia.

4(3)

The following is added as subsection 7(2):

Definitions

7(2)

For the purpose of clause (1)(f), "intoxicating substance" and "paraphernalia" have the same meanings as in section 27.1 of The Public Health Act.

Consequential amendments, C.C.S.M. c. M220

5(1)

The Motive Fuel Tax Act is amended by this section.

5(2)

Section 8 is amended by renumbering it as subsection 8(1), by adding "or" at the end of clause (e), and by adding the following after clause (e):

5(3)

The following is added as subsection 8(2):

Definitions

8(2)

For the purpose of clause (1)(f), "intoxicating substance" and "paraphernalia" have the same meanings as in section 27.1 of The Public Health Act.

Consequential amendment, C.C.S.M. c. R130

6(1)

The Retail Sales Tax Act is amended by this section.

6(2)

Subsection 6(1) is replaced with the following:

Refusal to issue

6(1)

The minister may refuse to issue a registration certificate to any person

(a) who has been convicted of an offence under this Act;

(b) who fails to enter into a bond when so required under section 11;

(d) who was in possession or control of an intoxicating substance or paraphernalia at the time it was seized, if a justice has made an order under section 27.4 of The Public Health Act forfeiting the intoxicating substance or paraphernalia.

Definitions

6(1.1)

For the purpose of clause (1)(d), "intoxicating substance"and "paraphernalia" have the same meanings as in section 27.1 of The Public Health Act.

Coming into force

This Act comes into force on a day fixed by proclamation.