Docket:
A-55-13
Citation: 2013 FCA 271
CORAM:
SHARLOW J.A.
MAINVILLE J.A.
NEAR J.A.
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BETWEEN:
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CANADA BORDER SERVICES AGENCY
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Applicant
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and
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MARIO CASTILLO
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Respondent
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REASONS
FOR JUDGMENT
NEAR J.A.
[1]
The Canada Border Services Agency has applied for
review of a November 2, 2013 decision of the Canada Agricultural Review
Tribunal (Mario Castillo v. Canada (CBSA), 2012 CART 22), which
determined that the respondent Mr. Castillo did not commit a violation under
section 40 of the Health of Animals Regulations, C.R.C., c. 296.
I: Facts
[2]
On January 25, 2012, Mr. Castillo arrived at Pearson International Airport in Toronto on a flight from El Salvador. On entering Canada, he completed a Canada Border Services Agency (CBSA) Declaration Card. Among other
questions, the Declaration Card requires entrants to Canada to answer “yes” or
“no” to:
I am/we are bringing into Canada Meat/meat products;
dairy products; fruits; vegetables; seeds; nuts; plants and animals or their
parts/products; cut flowers; soil; wood/wood products; birds; insects.
[3]
Mr. Castillo ticked the “no” box, indicating that he
was not importing any of those products into Canada.
[4]
Mr. Castillo was referred to secondary inspection and
his bags were examined. His luggage contained 15 pieces of fried chicken with
an approximate value of $18.00US. Following this discovery, a CBSA Officer
issued him with a Notice of Violation of section 40 of the Health of Animals
Regulations, under the authority of the Agriculture and Agri-Food
Administrative Monetary Penalties Act, S.C. 1995, c. 40, subsection 7(2).
Mr. Castillo received an $800 penalty with the option of reducing it to $400 by
paying the penalty within 15 days.
II: Procedural
History
[5]
Mr. Castillo requested an oral hearing before the
Tribunal, which took place on October 17, 2012.
[6]
Before the Tribunal Mr. Castillo admitted that he was
the owner of the luggage. He also admitted that the chicken was in his luggage
but he testified that he did not know it was there. He stated that his mother
had put it in his bag in El Salvador while he was in the shower. Under
cross-examination, Mr. Castillo testified before the Tribunal that he did not
have any permits or certificates for importing the chicken. The parties also
agreed that the CBSA Officer was not satisfied on reasonable grounds that the
chicken was processed in such a way that would prevent disease from coming into
Canada. Thus, none of the exemptions provided for in Part IV of the Health
of Animals Regulations which may have permitted the importation of animal
by-products from El Salvador applied.
[7]
In its reasons, the Tribunal set out the elements of
the violation that the Tribunal considered must be proved as:
In the case of a violation of section 40 of the Health
of Animals Regulations, the Agency must prove the following:
(1) Castillo is
the person who committed the violation;
(2) Castillo imported an
animal by-product, in this case, fried chicken, into Canada; and
(3)
if Castillo did import meat products into Canada, Agency officials gave him a
reasonable opportunity to justify the importation in accordance with
Part IV of the Health of Animals Regulations (Reasons, paragraph
27).
[8]
The Tribunal found that the first and second elements
had been established, but held that the third had not been established given
that no opportunity was given to Mr. Castillo to justify the importation of the
chicken after it had been discovered:
The third element of an alleged violation under
section 40 of the Health of Animals Regulations therefore legitimately
requires that Agency officials give every traveller a reasonable opportunity to
justify the importation of a meat product found [in] their bags, in accordance
with Part IV of the Health of Animals Regulations, before a Notice
of Violation is issued (paragraph 43).
[9]
Accordingly, the Tribunal determined that Mr. Castillo did
not commit the violation and was not liable for the payment of any monetary
penalty.
III: Issue
[10]
The issue is whether the Tribunal erred in law in
concluding that, in order to prove that a person has violated section 40 of the
Health of Animals Regulations, the Agency must prove that an Agency
official gave the person a reasonable opportunity to justify the importation in
accordance with Part IV of the Health of Animals Regulations?
IV: Standard of
Review
[11]
This Court has established that the standard of review
applicable to questions of statutory interpretation made by the Tribunal is
correctness: Doyon v. Canada (Attorney General), 2009 FCA 152 at
paragraphs 30-32 (Doyon); Canada (Attorney General) v. Porcherie des
Cèdres Inc., 2005 FCA 59 at paragraph 13; Canada (Canadian Food
Inspection Agency) v. Westphal-Larsen, 2003 FCA 383 at paragraph 7 (Westphal-Larsen).
V: Legal
Framework
The Health
of Animals Act and its Regulations
[12]
The Health of Animals Act, S.C. 1990, c. 21,
operates to protect Canada from the introduction of foreign animal diseases by
regulating whether and how animal products and by-products may be brought into Canada. Section 40 of the Health of Animals Regulations, the provision which Mr.
Castillo allegedly violated, prohibits the importation into Canada of animal by-products, except in accordance with Part IV of the Health of Animals
Regulations:
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40. No
person shall import into Canada an animal by-product, manure or a thing
containing an animal by-product or manure except in accordance with this
Part.
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40. Il
est interdit d’importer un sous-produit animal, du fumier ou une chose
contenant un sous-produit animal ou du fumier, sauf en conformité avec la
présente partie.
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[13]
“Animal by-product” is a defined term in the Health
of Animals Regulations:
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“animal
by-product” means an animal by-product that originated from a bird or from
any mammal except a member of the orders Rodentia, Cetacea, Pinnipedia and Sirenia;
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« sous-produit
animal » Sous-produit animal provenant d’un oiseau ou d’un mammifère, à
l’exception des rongeurs, des cétacés, des pinnipèdes et des siréniens.
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[14]
Part IV of the Health of Animals Regulations
operates to permit the importation of animal by-products from El Salvador in four circumstances:
1)
Where the importer produces documentation from
the government of the country of origin attesting to certain safety
requirements (paragraph 41(1)(c));
2)
Where an inspector has reasonable grounds to believe
that the animal by-product would not introduce disease into Canada (subsection 41.1(1));
3)
Where the importer produces documentation showing the
treatment of the by-product and where an inspector has
reasonable grounds to believe (based on the document, its information, and any
other relevant information, including potentially an inspection of the
by-product) that the importation of the by-product would not, or would likely
not, introduce disease (subsection 52(1)); or
4)
Where the Minister of Agriculture and Agri-Food has
issued a permit allowing the importation of the animal by-product (subsection
52(2) and section 160);
Administrative Monetary Penalties
[15]
In order to achieve the goal of the Health of
Animals Act to protect Canada from the introduction of foreign animal
diseases, Parliament enacted the Agriculture and Agri-Food Administrative
Monetary Penalties Act. This Act establishes an administrative monetary
penalty (AMP) system to enforce Canada's agriculture and agri-food acts,
including the Health of Animals Act. It permits the Minister (in this
case of violations under the Health of Animals Act, the Minister of
Agriculture and Agri-Food) to make regulations enabling the AMP scheme to be
used for contraventions of an agri-food act:
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4. (1) The
Minister may make regulations
(a) designating as a
violation that may be proceeded with in accordance with this Act
(i) the contravention of any
specified provision of an agri-food Act or of a regulation made under an
agri-food Act,
…
if the contravention, or
the failure or neglect to perform the duty, as the case may be, is an offence
under an agri-food Act;
(b) classifying each
violation as a minor violation, a serious violation or a very serious
violation;
(c) fixing a penalty, or a
range of penalties, in respect of each violation;
(d) respecting the
circumstances under which, the criteria by which and the manner in which a
penalty may be increased or reduced, including the reduction of a penalty
pursuant to a compliance agreement under subsection 10(1);
(e) respecting the
determination of a lesser amount that may be paid in complete satisfaction of
a penalty if paid within the prescribed time and manner;
(f) respecting the
circumstances under which reviews under this Act by the Tribunal shall be
oral or in writing;
(g) respecting the service
of documents required or authorized to be served under this Act including,
without restricting the generality of the foregoing, the manner of serving
such documents, the proof of their service and the circumstances under which
such documents shall be deemed to have been served;
(h) prescribing anything
that by this Act is to be prescribed; and
(i) generally,
for carrying out the purposes and provisions of this Act.
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4. (1) Le
ministre peut, par règlement :
a) désigner
comme violation punissable au titre de la présente loi la contravention — si
elle constitue une infraction à une loi agroalimentaire :
(i) aux dispositions spécifiées
d’une loi agroalimentaire ou de ses règlements,
[…]
b) qualifier
les violations, selon le cas, de mineures, de graves ou de très graves;
c) fixer
le montant — notamment par barème — de la sanction applicable à chaque
violation;
d) prévoir
les critères de majoration ou de minoration — notamment pour les transactions
— de ce montant, ainsi que les modalités de cette opération;
e) régir
la détermination d’un montant inférieur à la sanction infligée dont le
paiement, dans le délai et selon les modalités réglementaires, vaut
règlement;
f) prévoir
les cas dans lesquels la Commission peut procéder, dans le cadre du
paragraphe 14(1), par écrit ou par la tenue d’une audience;
g) régir,
notamment par l’établissement de présomptions et de règles de preuve, la
notification des documents autorisés ou exigés par la présente loi;
h) prendre
toute mesure d’ordre réglementaire prévue par la présente loi;
i) prendre toute autre mesure d’application de la présente loi.
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[16]
Pursuant to section 2 of the Agriculture and
Agri-Food Administrative Monetary Penalties Regulations, S.O.R./2000-187,
contraventions of the Health of Animals Act or its Regulations may be
proceeded with in accordance with the AMP system:
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2. The
contravention of a provision of the Health of Animals Act or the
Plant Protection Act or of a regulation made under these Acts,
or the contravention of an order — or class of orders — made by the Minister
under the Plant Protection Act, or the refusal or neglect to
perform any specified duty — or class of duties — imposed by or under the Health
of Animals Act or the Plant Protection Act that is set
out in column 1 of an item of Schedule 1, is a violation that may be
proceeded with in accordance with the Act.
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2. L’infraction à
une disposition de la Loi sur la santé des animaux, de la Loi
sur la protection des végétaux ou de leurs règlements, à tout arrêté
ou toute catégorie d’arrêtés pris par le ministre au titre de la Loi
sur la protection des végétaux, ou à toute obligation ou catégorie
d’obligations — par refus ou omission de l’accomplir — découlant de la Loi
sur la santé des animaux ou de la Loi sur la protection des
végétaux, qui figure à la colonne 1 de l’annexe 1, est une violation
punissable au titre de la Loi.
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[17]
According to Schedule 1 of the Agriculture and
Agri-Food Administrative Monetary Penalties Regulations, a contravention of
section 40 of the Health of Animals Regulations is classified as a “serious
violation.”
[18]
Paragraph 5(1)(b) of the Agriculture and
Agri-Food Administrative Monetary Penalties Regulations provides that the
penalty for a serious violation committed by an individual (and neither
committed in the course of business nor to obtain a financial benefit) is $800:
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5. (1) The
amount of the penalty in respect of a violation that is committed by an
individual otherwise than in the course of business and that is not committed
to obtain a financial benefit is
(a) $500, for a minor
violation;
(b) $800, for a serious
violation; and
(c) $1300,
for a very serious violation.
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5. (1) Le
montant de la sanction applicable à la violation commise par une personne
physique, sauf dans le cadre d’une entreprise ou à des fins lucratives, est
de :
a) 500 $,
dans le cas d’une violation mineure;
b) 800 $,
dans le cas d’une violation grave;
c) 1 300 $, dans le cas d’une violation très grave.
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[19]
Where a recipient of a Notice of Violation requests a
hearing, the Tribunal may review the “facts of the violation” (Agriculture
and Agri-Food Administrative Penalties Act, at s. 9(2)(c)). The
burden of proof falls on the Minister to prove, “on a balance of probabilities,
that the person named in the notice of violation committed the violation
identified in the notice” (Agriculture and Agri-Food Administrative Monetary
Penalties Act at s. 19); Doyon at paragraph 20.
[20]
The defences of due diligence and reasonable and honest
mistake of fact are not available to a person accused of contravening the Agriculture
and Agri-food Administrative Monetary Penalties Act:
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18. (1) A
person named in a notice of violation does not have a defence by reason that
the person
(a) exercised
due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts
that, if true, would exonerate the person.
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18. (1) Le
contrevenant ne peut invoquer en défense le fait qu’il a pris les mesures
nécessaires pour empêcher la violation ou qu’il croyait raisonnablement et en
toute honnêteté à l’existence de faits qui, avérés, l’exonéreraient.
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[21]
This Court has confirmed previously that violations
under the Agricultural and Agri-Food Administrative Monetary Penalties Act are
absolute liability offences for which the defences of due diligence and honest
or reasonable mistake of fact are not available: Doyon at paragraph 11; Fermes
G. Godbout et Fils Inc. v. Canada (Canadian Food Inspection Agency), 2006
FCA 408; Westphal-Larsen at paragraph 9.
[22]
Further, in R. v. Sault Ste. Marie, [1978] 2
S.C.R. 1299, Justice Dickson, writing for a unanimous Supreme Court, described
the nature of absolute liability offences in Canada (emphasis added):
In sharp contrast [with true criminal offences], “absolute liability” entails
conviction on proof merely that the defendant committed the prohibited act
constituting the actus reus of the offence. There is no relevant
mental element. It is no defence that the accused was entirely without fault.
He may be morally innocent in every sense, yet be branded as a malefactor and
punished as such (at 1310).
Offences of absolute liability would be those in
respect of which the Legislature had made it clear that guilt would follow
proof merely of the proscribed act. The overall regulatory pattern adopted by
the Legislature, the subject matter of the legislation, the importance of the
penalty, and the precision of the language used will be primary considerations
in determining whether the offence falls into the third category (at 1326).
VI: Analysis
[23]
The facts before the Tribunal clearly show that there
was an importation by Mr. Castillo of an animal by-product as defined in the Health
of Animals Regulations to which none of the exceptions set out within Part
IV of these regulations applied.
[24]
Mr. Castillo may have been unaware that the chicken was
in his luggage, but this is of no assistance to him given a plain reading of
the provisions and the clear intention of Parliament to provide for an absolute
liability regime for these types of violations. As this Court has noted
before, the AMP system can be harsh (Westphal-Larsen at paragraph 12)
but it is clear that Parliament intended that it be so, given the important
stated objective of protecting Canada from the introduction of foreign animal
diseases.
[25]
It is conceivable that a person served with a notice of
a violation of section 40 may wish to present evidence to the Tribunal that the
Agency official who issued the notice of violation did so without providing an
opportunity to produce documentation that would justify the importation pursuant
to one or more of the provisions mentioned above in paragraph 14. Such
evidence might well explain why the documentation was not presented to the
Agency official when the importation was reported or discovered, as the case
may be. However, such evidence cannot, as a matter of law, relieve the person
of liability for the violation if, as in this case, no such documentation ever
existed.
[26]
Upon a plain reading of the legislative provisions, the
Tribunal’s decision that Mr. Castillo was to have been provided with a
reasonable opportunity to justify his importation of animal by-products from El
Salvador beyond the provisions of Part IV after they were discovered amounts to
an error of law.
VII: Conclusion
[27]
I would allow the application for judicial review, quash
the decision of the Tribunal, and remit the matter back to it for a fresh
determination in accordance with these reasons. I would make no order as to
costs.
"David G. Near"
“I agree
K. Sharlow J.A.”
“I agree
Robert M.
Mainville J.A.”
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