Date: 20061214
Docket: A-406-05
Citation: 2006 FCA 408
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
PELLETIER
J.A.
BETWEEN:
LES FERMES G.
GODBOUT & FILS INC.
Applicant
and
CANADIAN FOOD
INSPECTION AGENCY
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the bench at Montréal,
Quebec, on December 14, 2006)
LÉTOURNEAU J.A.
[1]
In dockets
A-406-05, A-603-05, A-604-05, A-605-05 and A-616-05, the applicants applied for
judicial review of decisions rendered by a member of the Review Tribunal,
Agriculture and Agri-Food
Canada (the
Tribunal).
[2]
In each of
the cases, the respondent accused the applicants of having contravened
paragraph 138(2)(a) of the Health of Animals Regulations,
C.R.C., c. 296 (Regulations), enacted pursuant to the Health of Animals Act,
S.C. 1990, c. 21.
[3]
Paragraph
138(2)(a) reads as follows:
|
138(1)
. . .
(2) Subject
to subsection (3), no person shall load or cause to be loaded on any railway
car, motor vehicle, aircraft or vessel and no one shall transport or cause to
be transported an animal
(a) that by reason of infirmity,
illness, injury, fatigue or any other cause cannot be transported without
undue suffering during the expected journey;
(Emphasis added)
|
138.(1)
[…]
(2) Sous
réserve du paragraphe (3), il est interdit de charger ou de faire charger, ou
de transporter ou de faire transporter, à bord d’un wagon de chemin de fer,
d’un véhicule à moteur, d’un aéronef ou d’un navire un animal :
a) qui,
pour des raisons d’infirmité, de maladie, de blessure, de fatigue ou pour
toute autre cause, ne peut être transporté sans souffrances indues au
cours du voyage prévu;
(nous soulignons)
|
We also reproduce paragraph 138(2)(c):
|
138(1)
. . .
(2)
. . .
(c) if it is probable that the animal
will give birth during the journey.
|
138(1)
[…]
(2)
[…]
c) s’il est probable que l'animal mette
bas au cours du voyage.
|
[4]
Each one
of these cases involved the transport by motor vehicle of a farm animal, more
specifically, hogs. A contravention of paragraph 138(2)(a) of the
Regulations is a violation within the meaning of the Agriculture and
Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40
(Act), giving rise to a warning or an administrative monetary penalty: see
sections 4 and 7 of the Act.
[5]
An appeal lies
to the Tribunal pursuant to paragraph 9(2)(c) of the Act. This paragraph
states that an offender may “request a review by the Tribunal of the facts of
the violation”.
[6]
A joint
hearing was held before this Court for all five cases. Counsel for the
applicants made submissions applicable to all five cases, and more specific
submissions were made in the cases of François Carbonneau (A-616-05), Les
Fermes G. Godbout et Fils Inc. (A-406-05) and L’Oiselier de St-Bernard Inc.
(A-605-05).
Did the Tribunal fail to take into
account the prevailing practices at the time of the alleged offences, as well
as the ambiguities and inconsistencies which characterized the transportation
of animals at that time?
[7]
Counsel
for the applicants argue that in rendering its decision in each one of the five
cases, the Tribunal failed to take into account the customary practices
regarding the transportation of animals at the time the offences were
committed. They also allege that the criteria relating to the transportation of
animals were imprecise and inconsistent at that time, as is shown by the
corrective measures which have been applied since then. Finally, they submit
that there cannot be any undue suffering within the meaning of paragraph
138(2)(a) of the Regulations in cases of the transport of animals for
human consumption.
[8]
The argument
concerning customary practices at that time is an attractive one. It is
especially attractive because it disguises its real nature and diverts
attention from the evidence adduced in each case concerning the state of health
of the animals and the suffering caused by their transport. The applicants’ defence,
like the defence invoking ambiguities and inconsistencies in the transportation
of farm animals, is the equivalent of a defence of good faith and due
diligence. The latter defence consists in making efforts to know the
transportation standards and comply with them.
[9]
Unfortunately,
subsection 18(1) of the Act rules out a defence of good faith and due
diligence:
|
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.
|
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.
|
Violations of the Act are of absolute liability.
[10]
Finally,
the applicants’ argument to the effect that there can be no undue suffering
within the meaning of paragraph 138(2)(a) of the Regulations when the
animal is for human consumption implies that there is an economic justification
for such suffering. In other words, according to this argument, suffering
caused by transport cannot be undue or unwarranted because the animal’s ultimate
and inevitable destination is the slaughterhouse, to then be introduced into
the food chain.
[11]
In our
view, it is obvious from one of the important objectives of the Health of
Animals Act, namely, the prevention of the mistreatment of animals
(see Samson v. Canada (Canadian Food Inspection
Agency) 2005
FCA 235, paragraph 12), that economic considerations cannot in themselves
warrant the infliction of undue suffering. In fact, subsection 138(4) of the
Regulations clearly shows Parliament’s intent by obliging a carrier to stop the
transport of an animal that becomes injured, sick or otherwise unfit for
transport during the trip. Transport must then end at the nearest place where
the animal can receive proper care and attention:
|
138(1)
[…]
(4)
No railway company or motor carrier shall continue to transport an animal
that is injured or becomes ill or otherwise unfit for transport during a
journey beyond the nearest suitable place at which it can receive proper care
and attention.
|
138(1)
[…]
(4)
Une compagnie de chemin de fer ou un transporteur routier cesse le transport
d’un animal blessé, malade ou autrement inapte au transport en cours de
voyage, au plus proche endroit où il peut recevoir des soins
|
[12]
In any
event, in each one of the cases at bar, the animal was deemed unfit for human
consumption and euthanized.
The case of Carbonneau (A-616-05)
[13]
The applicant
criticizes the Minister of Agriculture and Agri-Food (Minister) for having
rendered a decision in the absence of any evidence as to the condition of the
animal before it was loaded for transport. Therefore, according to the applicant,
he could not be found guilty of a violation.
[14]
The
evidence on the record, consisting of the inspector’s report and explicit
colour photographs, showed that on arrival at the slaughterhouse, the hog had a
large umbilical hernia that touched the floor. It measured approximately 30 cm
x 30 cm x 30 cm and hindered the animal’s gait. On inspection, the animal
showed signs of being in pain: see Applicant’s Record at pages 12 and 60.
[15]
Given the approximately
85-kilometre trip from the departure point to arrival at the slaughterhouse and
the short time elapsed between these two points, it is not unreasonable in the
circumstances to infer from a condition so extreme on arrival that the animal was
in a precarious state of health at the time of loading.
The case of L’Oiselier de St-Bernard Inc.
(A-605-05)
[16]
The applicant
submits that the Tribunal erred in not accepting the testimony of Richard
Nadeau, who saw the animal before loading, and in preferring the testimony of
Dr. Marc Lapierre, who inspected the animal on arrival at the slaughterhouse.
This was the same animal as in the Carbonneau case, Mr. Carbonneau being the
carrier.
[17]
In his
testimony, Mr. Nadeau stated that there had been a hernia at the time of
loading, but it had not been as large as it was on arrival, as shown by the
photograph.
[18]
According
to Dr. Lapierre’s testimony, this hernia involved painful injuries caused by
rubbing on the ground. It forced the animal to keep its back arched to avoid
rubbing and relieve its suffering. The animal showed other signs of distress.
Dr. Lapierre stated that, without a doubt, the animal was suffering from a
hernia before transport, and this was confirmed by Mr. Nadeau.
[19]
In our
opinion, the evidence before the Tribunal allowed it to conclude that the
animal was not fit for transport and that transporting it with 94 other hogs
caused it undue suffering.
The case of Les Fermes G. Godbout et Fils
Inc. (A-406-05)
[20]
Counsel
for the applicant submitted that the applicant had not been advised of the
specific violation of which it was accused. This claim is unfounded. The applicant
was advised of the fact that it was accused of having contravened paragraph
138(2)(a) of the Regulations. The fact that it could also have been
charged under paragraph 138(2)(c) of the Regulations because it was
probable that the animal would give birth during the trip does not alter or
change the violation alleged.
[21]
According
to Dr. Lamothe, the animal gave birth to a stillborn piglet on the day of transport.
Another witness stated having learned that the birth had taken place during the
unloading process. In any event, the Tribunal accepted that the applicant was
not charged under paragraph 138(2)(c), but actually under paragraph
138(2)(a).
[22]
According
to the Tribunal, Dr. Lamothe noted that the animal [translation]
“suffered
from a serious uterine prolapse, which he described as a large mass of tissue
approximately 20 cm long and 15 cm in diameter”. There were obvious signs
of cyanosis which led him to conclude that the animal had been suffering from
this condition before the loading and transport. It was on the basis of this
state of health that the Tribunal concluded that there had been a violation of
paragraph 138(2)(a). In our opinion, the evidence allowed it to
reach such a conclusion.
[23]
For these
reasons, the five applications for judicial review will be dismissed with
costs. However, there will be only one set of costs for the joint hearing, to
be paid in equal shares by each of the applicants.
[24]
A copy of
these reasons will be placed in each file in support of the judgment rendered.
“Gilles
Létourneau”
Certified
true translation
Michael
Palles
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