Docket: A-145-13
Citation: 2013
FCA 292
CORAM: BLAIS C.J.
GAUTHIER
J.A.
MAINVILLE
J.A.
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BETWEEN:
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THE ATTORNEY GENERAL OF CANADA
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Applicant
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and
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BOUCHAIB EL KOUCHI
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Respondent
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REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
The Attorney General of Canada (AGC) has brought
an application for the judicial review of a decision of the Canada Agricultural
Review Tribunal (the Tribunal), 2013 CART 12, declaring that Bouchaib El Kouchi
(the respondent) did not violate paragraph 34(1)(b) of the Health
of Animals Regulations, C.R.C., c. 296 (the Regulations), essentially because
there was no causal link between the act of importing the artisanal butter
found in his suitcase and the respondent himself, independent of the acts of a
third party.
[2]
For the reasons that follow, the application for
judicial review should be allowed.
Background
[3]
On April 25, 2013, the respondent arrived at the
Montréal international airport on a flight from Morocco. He signed his Canada
Border Services Agency (the Agency) Declaration Card E311 after, among other
things, ticking the “no” box next to the statement “I am/we are bringing into Canada: . . . dairy products”.
[4]
After being processed at the Canadian customs
primary inspection line, the respondent was required to undergo a secondary
inspection. Before that inspection, in reply to a question by the inspector,
the respondent indicated that he owned the bags he was carrying, that he had
packed them himself and that he knew their contents. The inspector then
searched the respondent’s luggage and found in a plastic bag a bowl containing
approximately one kilogram of artisanal butter. The inspector asked the
respondent whether he had any permits or certificates allowing him to import
this dairy product from Morocco, to which the respondent replied “no”.
[5]
In his non-compliance report, the inspector
stated that the respondent had not declared the product and that the product was
seized and destroyed. He then issued the respondent a notice of violation of
paragraph 34(1)(b) of the Regulations. This notice also stated that
such a violation is, under section 4 of the Agriculture and Agri-Food Administrative
Monetary Penalties Regulations, SOR/2000-187, a serious violation for which
the penalty is $800.
[6]
The respondent challenged the notice of
violation. Although most of the facts were not in dispute before the Tribunal,
two witnesses testified, namely, the inspector and the respondent. In his
testimony, the respondent stated that he was unaware that there was butter in
his suitcase because his sister had packed it before he left Morocco and she had not told him about it. The inspector, on the other hand, testified that
when he found the butter, the respondent told him that he was unaware that the
law required him to declare milk products.
Decision of the Tribunal
[7]
After a brief review of the statutory framework
and the case law, the Tribunal noted that it was incumbent on the Agency to
prove, on a balance of probabilities, all the elements of the violation. The
Tribunal then explained that to establish a violation of paragraph 34(1)(b)
of the Regulations, the Agency had to prove the following four elements:
(i) Mr.
El Kouchi is the person who committed the violation;
(ii)
Mr. El Kouchi brought (imported) milk or milk products from a country other
than the United States;
(iii)
Mr. El Kouchi did not provide an Agency inspector with a certificate of origin
signed by an official of the government of the country of origin that shows
that the country of origin is designated as free of foot and mouth disease; and
(iv)
there is a direct causal link between the act of importing the milk product and
the violator, independent of the acts of a third party.
[8]
The Tribunal found that the first three elements
had been established to its satisfaction. However, it noted that the Agency had
not proved the required direct causal link (element (iv), above). After
summarizing the respondent’s testimony regarding his sister’s actions, the
Tribunal stated that the Agency had not produced any evidence to the contrary.
According to the Tribunal, if the respondent was unaware that there was butter
in his suitcase, it was impossible for him to declare it. The Tribunal noted
that it had come to similar conclusions in Castillo v. Canada (CBSA),
2012 CART 22 (Castillo 2012), a decision that this Court later set aside
in Canada (Border Services Agency) v. Mario Castillo, 2013 FCA 271
(Castillo FCA).
[9]
The Tribunal also noted that the requirement to
prove a causal link had been clearly laid down in Doyon v. Attorney General
of Canada, 2009 FCA 152 (Doyon). It concluded from this that its
position was consistent with subsection 18(1) of the Agriculture and
Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 (Penalties
Act), in which Parliament has expressly provided that a person named in a
notice of violation cannot raise a defence of due diligence or of a reasonable belief
in the existence of facts that, if true, would exonerate him or her.
Legislation
[10]
The relevant statutory provisions are reproduced
in Appendix “A”, as is section 138 of the Regulations, on which this Court
commented in Doyon.
Issue
[11]
The sole issue is whether the Tribunal erred in
its statement of the elements that the Agency had to prove to establish a
violation of paragraph 34(1)(b) of the Regulations, particularly by
requiring that the Agency establish a direct causal link between the act of
importing a milk product and the violator, independent of the acts of a third
party.
[12]
It should be noted that the respondent did not
file a memorandum and did not attend the hearing before us.
[13]
The AGC argues that this Court established in Castillo
(FCA), at paragraph 11, that the standard of review applicable to this
issue is correctness. However, in my view, the applicable standard is of no
importance here because, even if the reasonableness standard were applied, the
outcome would be the same. The wording of paragraph 34(1)(b) of the
Regulations is clear and unambiguous. It does not allow of more than one
reasonable interpretation: Qin v. Canada (Citizenship and Immigration),
2013 FCA 263 at paragraphs 32-33; McLean v. British Columbia
(Securities Commission), 2013 SCC 67 at paragraph 38.
[14]
As the Tribunal stated, it had already set aside
a notice of violation under the Regulations in a situation in which the
unauthorized product (in that case, a prohibited animal by-product under
section 40 of the Regulations) had been placed in the violator’s luggage
by a third party (his mother) without his knowledge, in Castillo 2012. Two
comments must be made on this point.
[15]
First, in that decision, rendered a few months
prior to the decision under review here, the Tribunal also set out the elements
that the Agency had to prove. It is disconcerting to see that, despite the
similarity of the provisions involved, which deal with prohibitions against
importing products, the Agency’s burden of proof was limited to three elements (which
more or less match the first three elements used in the present case). There
was no question in the earlier case of proving a direct causal link between the
importation and the violator.
[16]
Second, in Castillo (FCA), this Court
very clearly held, at paragraph 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 [2003 FCA 383] 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.
[17]
As regards the statement in Doyon (paragraph 41)
of the elements to be established in order to prove a violation of
paragraph 138 (2)(a) of the Regulations, it is difficult to imagine
that it could apply to a violation of paragraph 34(1)(b) of the
Regulations, since the wording of these two provisions is completely different.
[18]
The language itself of paragraph 138(2)(a)
of the Regulations, which deals with the transportation of animals, refers to
various factors causing undue suffering during the expected journey. This is
the vocabulary that was the basis for the reference to a causal link between
the transportation, the undue suffering and the factors described in that
provision. Paragraph 34(1)(b) simply and clearly states that no
person shall import a milk product into Canada from a country other than the United States, unless the country is designated as free of foot and mouth disease or a
certificate of origin is produced.
[19]
The Tribunal did not explain on what basis it
could apply the above-mentioned passage from Doyon in the present case.
Moreover, the distinction it made to avoid applying subsection 18(1) of
the Penalties Act simply does not stand up. It is obvious that the
approach adopted by the Tribunal circumvents the intention so clearly expressed
by Parliament. In my view, there is no valid reason not to apply the reasoning
of this Court in Castillo (FCA) to the present case. The Tribunal erred
in law in requiring the Agency to prove that there was a causal link independent
of the acts of a third party and, more specifically, that the violator knew
that the prohibited product was in his luggage.
[20]
This Court has stated in the past that the
current system is highly punitive, even draconian: Doyon at paragraph 21.
Whether it agrees or not with this system or how it is applied, the Tribunal
must apply the law.
[21]
The application for judicial review should be
allowed, the decision of the Tribunal set aside and the matter referred back to
the Tribunal for reconsideration in accordance with these reasons, without
costs.
“Johanne
Gauthier”
“I agree
Pierre
Blais”
“I agree
Robert M. Mainville”
Certified true
translation
Erich Klein
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