Docket:
A-127-13
Citation:
2014 FCA 26
CORAM:
PELLETIER J.A.
GAUTHIER J.A.
TRUDEL 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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RITA SAVOIE-FORGEOT
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Respondent
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REASONS
FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
This is an application for judicial
review of a decision rendered by Mr. Donald Buckingham, the Chairperson of the
Canada Agricultural Review Tribunal (the Tribunal), on March 7, 2013 (Rita
Savoie Forgeot v. Canada Border Services Agency, 2013 CART 7) (Reasons).
The Tribunal held that Ms. Savoie-Forgeot did not violate section 40 of the Health
of Animals Regulations, C.R.C., c. 296 (Regulations), which prohibits the
importation of animal by-products into Canada, except in accordance with Part
IV of the Regulations.
[2]
I propose to allow the application,
quash the Tribunal’s decision and refer the matter back to the Tribunal for redetermination.
The Chairperson erred in his interpretation of section 40 of the Regulations,
and in finding that the Canada Border Services Agency (CBSA) is required to
provide individuals with a “reasonable opportunity” to justify the importation
of animal by-products.
Facts
[3]
Ms. Savoie-Forgeot, a flight
attendant, travels to Paris four to five times per month. On November 13, 2011,
she traveled from France to Canada and arrived at Pierre Elliott Trudeau International Airport in Montréal. She was carrying several food products with her,
including cheese and two cans that contained meat. She completed a Canada
Border Services Agency E311(09) Declaration Card and marked “yes” next to the
statement: “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” (Reasons
at paragraph 13). She valued the products being imported at 30 Canadian
dollars.
[4]
Upon presenting her declaration
card at customs, the primary officer asked her what kind of food she was
carrying. According to the CBSA she replied “only cheese”. Ms. Savoie-Forgeot
testified that she had declared cheese, salad, some canned foods, and bread and
that she had presented her receipt to the officer and listed its items. The
primary officer modified the declaration card to indicate that Ms.
Savoie-Forgeot was not carrying any goods that required a customs examination.
[5]
Upon a secondary inspection, a
second officer asked her whether she had anything to declare. Ms.
Savoie-Forgeot maintains that she described the same items as she had at
primary inspection. The CBSA claims that she declared only the cheese. The
officer verified the contents of her bags, found two cans and treated them as
undeclared in light of the CBSA’s version of the facts. An examination of their
labels revealed that they contained beef, and that their importation into Canada is prohibited.
[6]
Ms. Savoie-Forgeot was charged with
violating section 40 of the Regulations which reads:
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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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Consequently, she was found to have violated section 7 of the Agriculture
and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 (Penalties
Act) and section 2 of the Agriculture and Agri-Food Administrative
Monetary Penalties Regulations, SOR/2000-187 (Penalties
Regulations) and was served with a notice of violation and received a fine
of 800 dollars (Notice of Violation No. 3961-11-M-0378).
[7]
Ms. Savoie-Forgeot requested that
the Tribunal review the facts of the violation pursuant to paragraph 9(2)(c)
of the Penalties Act.
The Tribunal’s Decision
[8]
The Tribunal found that Ms.
Savoie-Forgeot did not commit the alleged violation and is not liable to pay
the fine. The Chairperson explained that in order to prove a violation under
section 40 of the Regulations the Agency must prove, on a balance of
probabilities, that:
i.
Forgeot is the person who
committed the violation;
ii.
Forgeot brought an animal by-product,
in this case two cans containing meat, into Canada; and
iii.
If Forgeot
did import meat products into Canada, that Agency officials provided a
reasonable opportunity for Forgeot to justify the importation in accordance
with Part IV of the Health of Animals Regulations (Reasons at paragraph
25).
The Tribunal specified that the third prong of the test is necessary
as subsections 41(1) and 41.1(1) of the Regulations allow alleged
violators of section 40 to defend themselves by producing a certificate, document
or permit justifying the meat’s importation, or by declaring the meat they are
carrying and allowing an inspector to determine if it may be imported into
Canada (Reasons at paragraphs 31-32).
[9]
Applying his three-part test to the
facts at hand, he found that the CBSA did not give Ms. Savoie-Forgeot a
“reasonable opportunity” to justify the importation and that the Agency had an
obligation to question Ms. Savoie-Forgeot further and more carefully with
regard to what she was bringing into Canada. The Tribunal therefore found that
Ms. Savoie-Forgeot did not commit the violation as alleged and accordingly she
was not liable to pay the penalty.
[10]
Unhappy with this result, the CBSA brought this application for judicial review of the Tribunal’s
decision.
Parties’ Positions
[11]
The CBSA argued before our Court
that the Tribunal erred in law by mandating that the CBSA prove that its
customs officers gave Ms. Savoie-Forgeot a reasonable opportunity to justify
the importation of the meat she was carrying. Rather, according to the CBSA,
Ms. Savoie-Forgeot had the burden of demonstrating that she had imported these
products in conformity with the Regulations. The CBSA stressed that Canadian
customs operates on the basis of a system of voluntary disclosure and that Ms.
Savoie-Forgeot was bound by section 12 of the Customs Act, R.S.C. 1985,
c. 1 (2nd Supp.), which mandates that all imported products must be reported at
the nearest customs office. Thus she was responsible for declaring what she was
carrying, and the CBSA was not required to ask her to provide further
information. The CBSA also argued, in the alternative, that if the Tribunal did
not err in law, it erred in finding that Ms. Savoie-Forgeot was not, in fact,
given a reasonable opportunity to justify the importation of the animal
by-products.
[12]
Ms. Savoie-Forgeot argued that the
Tribunal’s conclusion – that she did not have the opportunity to
demonstrate that she was abiding by the Regulations – is supported by the
evidence which was before the Tribunal.
Analysis
[13]
This case calls upon our Court to
clarify the proper legal test where an individual is alleged to have violated
section 40 of the Regulations. In my respectful view, the Tribunal’s
interpretation cannot stand on a proper construction of the Health of
Animals Act and its Regulations no matter which standard of review is
applied to the Tribunal’s decision.
[14]
The purpose of the Health of
Animals Act, S.C. 1990 c. 21 and its Regulations is to protect
against the introduction of foreign animal diseases into Canada by controlling
and restricting the importation of animal products and by-products from other
countries (Canada Border Services Agency v. Castillo, 2013 FCA 271 at
paragraph 12 [Castillo]). To this end, section 40 of the Regulations
prohibits the importation of animal by-products into Canada. This prohibition,
however, is not absolute. The importation of animal by-products may be
permitted, for instance, where an individual produces a certificate attesting
to the products’ country of origin or safety (subsection 41(1) of the Regulations)
or allows for their products to be inspected and the items are found not to
pose a risk of spreading disease (subsection 41.1(1) of the Regulations). The Health
of Animals Act and its Regulations defines “animal by-product” as
including, inter alia, anything containing the flesh of a bird or
mammal, with some specified exceptions (Health of Animals Act, subsection
2(1); Regulations, section 2).
[15]
To assist with the enforcement of
the Health of Animals Act and its Regulations, Parliament also enacted
the Penalties Act which establishes an administrative penalty scheme and
which provides the Minister of Agriculture and Agri-Food with the power to
create regulations that enable this penalty scheme to be applied where
individuals have contravened the Health of Animals Act (Castillo
at paragraph 15; Penalties Act, sections 2, 4). Section 2 of the Penalties
Regulations states that where an individual contravenes a provision of the Health
of Animals Act or its Regulations this constitutes a violation subject to
the Penalties Act, while section 7 of the Penalties Act states
that an individual who commits such a violation is liable to receive a warning
or a penalty. Where an individual contravenes section 40 of the Regulations
this constitutes a serious violation under the Penalties Regulations,
subject to an $800 fine (Penalties Regulations, Schedule 1, paragraph
5(1)(b)).
[16]
Where the Tribunal is
called upon to review the facts of a violation, the Minister must prove “on a
balance of probabilities, that the person named in the notice of violation
committed the violation identified in the notice” (Penalties Act, section
19). In the case at hand, the CBSA thus needed to prove that Ms. Savoie-Forgeot
“imported” into Canada an animal by-product that was not subject to one of the
exceptions set out in Part IV of the Regulations.
[17]
The term “import” is undefined in
the Health of Animals Act and its Regulations. However, a purposive and
contextual reading of section 40 of the Regulations suggests that while the
process of importing an animal by-product may begin when an item is brought
onto Canadian soil, it is not complete at that point. Upon arrival in Canada, individuals have the obligation to declare the items they are carrying in
accordance with section 12 of the Customs Act. They also have the
obligation, either before or at the time of importation, to present any animal
by-products to an inspector, officer or customs officer for inspection in
accordance with section 16 of the Health of Animals Act. If an inspector
or officer finds that the by-product does not pose a risk of spreading disease
or the individual presents a certificate attesting to its country of origin and
safety, then the importation will be allowed in accordance with subsections 41(1)
and 41.1(1) of the Regulations. The process of importing the by-product will be
complete at this point, as individuals will be free to leave the inspection
area with these items. However, if the by-product poses a risk of spreading
disease or is otherwise ineligible for importation, the inspector or officer
will require that it be forfeited or be removed from Canada in accordance with
sections 17 or 18 of the Health of Animals Act. The importation of these
products would then be stopped at this point, as these items would not be
permitted further entry into Canada.
[18]
It follows that where individuals
declare that they are carrying animal by-products and thus voluntarily make
them available for inspection, they ought not to be found to have violated section
40 of the Regulations. Even if upon inspection they are found to have in their
possession animal by-products that do not fall within the exceptions enumerated
in Part IV of the Regulations, they have not yet completed the process of
importing these by-products into Canada.
[19]
Conversely, individuals who fail to declare
the animal by-products they are carrying and thus do not make them available
for inspection are in violation of section 40 of the Regulations. In their
case, the failure to declare signals the end of the importation process as they
have, through their failure, removed the possibility for the officer to inspect
the items and also the officer’s discretion under subsection 41.1(1) of the Regulations
to allow the individual to retain them. As a result, even if the items are
later located, forfeited or removed, individuals in this instance will have
already contravened section 40 of the Regulations.
[20]
The prospective and conditional
language used in subsection 41.1(1) supports this interpretation of section 40
of the Regulations. Subsection 41.1(1) states:
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Despite section 41, a person may import into Canada an
animal by-product or a thing containing an animal by-product, other than one
described in section 45, 46, 47, 47.1, 49, 50, 51, 51.2 or 53, if an
inspector has reasonable grounds to believe that the importation of the
by-product or thing, by its nature, end use or the manner in which it has
been processed, would not, or would not be likely to, result in the
introduction into Canada of any reportable disease, any disease referred to
in Schedule VII and any serious epizootic disease to which the species from
which the by-product was derived is susceptible and that can be transmitted
by the by-product, and the by-product or thing is not intended for use as
animal food or as an ingredient in animal food (SOR/2009-18).
[Emphasis added.]
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Malgré l’article 41, il est permis d’importer un sous-produit animal
ou une chose contenant un sous-produit animal, autres que ceux visés aux
articles 45, 46, 47, 47.1, 49, 50, 51, 51.2 et 53, si l’inspecteur a des
motifs raisonnables de croire que l’importation du sous-produit ou de la
chose, par sa nature, sa destination ou sa transformation, n’entraînera
pas — ou qu’il est peu probable qu’elle entraîne — l’introduction de
toute maladie déclarable, de toute maladie mentionnée à l’annexe VII et de
toute épizootie grave que l’espèce de laquelle il provient est susceptible de
contracter et qui peut être transmise par lui, pourvu que le sous-produit ou
la chose ne soit pas destiné à servir d’aliments pour animaux ou d’ingrédient
pour de tels aliments (DORS/2009-18).
[Non
souligné dans l’original.]
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The words “may import” indicate that the importation may be
permitted following the inspection, not that it has already occurred. In turn,
the use of the conditional language “would” further suggests that the process
of importing the products has not yet been completed. If the importation
process had been finalized at the time of inspection, then this provision would
have used either the present or past tense. For instance, it would have stated
that the importation “does not” create or “has not” created a risk of spreading
disease
[21]
This interpretation based on the scheme set out in the Health of
Animals Act and the Regulations, does not necessarily apply to other types
of importation, for example the importation of illegal drugs. In a case where
there is a complete prohibition on importation, the act of importation is
complete as soon as the thing or substance arrives on Canadian territory, since
there is no possibility of justifying its importation. In each case, the
statutory scheme governing the importation of a good or a product must be
examined to determine whether or not the simple presence of the good on
Canadian territory is a violation of the scheme.
[22]
The interpretation which I propose of section 40 is consistent with the
duty to declare items set out under section 12 of the Customs Act, as
well as the overall purpose of the Health of Animals Act to protect
against the introduction of animal diseases into Canada. If individuals who
declare the items they are carrying could be found to have violated section 40
of the Regulations, this could discourage prospective importers from making a
declaration. Individuals who have animal by-products in their possession upon
arrival in Canada might either try to discard them prior to reaching a customs
officer, or elect not to report them, as they would be subject to the same
penalty under section 40 of the Regulations regardless of whether or not they
made a declaration. In turn, by not declaring these items, individuals would
not voluntarily allow for them to be inspected in accordance with section 16 of
the Health of Animals Act, and enable inspectors to determine whether
these animal by-products pose a risk of spreading disease and thus ought to be
seized and destroyed.
[23]
Finally, this interpretation also
mirrors the CBSA’s stated practice on the ground. In their testimony before the
Tribunal, the officers explained that had Ms. Savoie-Forgeot declared the items
she was carrying, they would have simply confiscated them and she would not
have been issued a notice of violation (Reasons at paragraph 36).
[24]
I am aware that this interpretation
of section 40 deviates slightly from our Court’s prior jurisprudence. In Canadian
Food Inspection Agency v. Westphal-Larsen, 2003 FCA 383 [Westphal-Larsen]
our Court held, with considerable misgivings, that where an individual has
presented an item for inspection in accordance with section 16 of the Health
of Animals Act, he or she may nonetheless be found to have violated section
40 of the Regulations. It reasoned that “[i]f an object is produced at the time
of importation, it must have been imported. If it has been imported, then
section 40 of the Regulations applies” (Westphal-Larsen at paragraph
12). Westphal-Larsen did not, however, consider whether declaring an
item and thus voluntarily making it available for inspection would
preclude an individual from being found to have violated section 40 of the Regulations.
Mr. Westphal-Larsen had failed to declare that he was carrying meat on his
declaration card, which he submitted to a representative of the Canada Customs
and Revenue Agency upon his arrival in Canada. He only verbally declared that
he had salami in his suitcase and allowed for it to be inspected once he
discovered that all luggage arriving from Holland would be subject to an x-ray
on account of an outbreak of foot and mouth disease. The interpretation of
section 40 which I have proposed would have therefore resulted in the same
outcome in that case. Mr. Westphal-Larsen neglected to declare the item he was
carrying and to voluntarily make it available for inspection, such that it
might be confiscated if it posed a risk of spreading disease. Thus he was
correctly found to have violated section 40 of the Regulations.
[25]
It should be noted that disclosure of goods and making them available
for inspection should occur at the first contact with customs officials and not
later, when a search is imminent or under way. A traveller is not allowed to
gamble that he or she will not be directed to the secondary search area, and to
declare the goods only if it appears they will be discovered as a result of a
search. Mr. Westphal-Larsen gambled and lost.
Conclusion
[26]
I find therefore that the Tribunal
erred in its interpretation of section 40 of the Regulations. This provision
does not impose an obligation on the CBSA to demonstrate that its officers gave
Ms. Savoie-Forgeot a “reasonable opportunity […] to justify the importation”
(Reasons at paragraph 25). The duty falls on the individual transporting animal
by-products into Canada to declare fully what they are bringing into the
country. The question the Tribunal ought to have asked is simply whether, on
the facts of this case, Ms. Savoie-Forgeot declared the items she was carrying
and made them available for inspection. If so, she would not have violated
section 40 of the Regulations, as she would have allowed for the items
to be inspected and confiscated if they posed a risk of spreading disease. If
she had not declared these items, however, she would have violated section 40,
as she was found to have prohibited items in her possession which she did not
voluntarily make available for inspection.
[27]
For these reasons, I would allow
the application for judicial review without costs; I would set aside the
Tribunal’ s decision and I would refer the matter back to it for determination
on the basis of the test set out above.
"Johanne Trudel"
“I agree
J.D. Denis Pelletier
J.A.”
“I agree
Johanne Gauthier J.A.”
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