Canadian Food Inspection Agency v. Westphal-Larsen, 2003 FCA 383

Date: 20031020

Docket: A-567-02

Citation: 2003 FCA 383

CORAM:        LINDEN J.A.

ROTHSTEIN J.A.

PELLETIER J.A.

BETWEEN:

                                        CANADIAN FOOD INSPECTION AGENCY

                                                                                                                                            Applicant

                                                                           and

                                              GUY ELINAR WESTPHAL-LARSEN

                                                                                                                                        Respondent

                                            Heard at Ottawa, Ontario, on June 24, 2003.

                               Judgment delivered at Ottawa, Ontario, on October 20, 2003.

REASONS FOR JUDGMENT BY:                                                                           PELLETIER J.A.

CONCURRED IN BY:                                                                                                   LINDEN J.A.

                                                                                                                               ROTHSTEIN J.A.

Date: 20031020

Docket: A-567-02

Citation: 2003 FCA 383

CORAM:        LINDEN J.A.

ROTHSTEIN J.A.

PELLETIER J.A.

BETWEEN:

                                        CANADIAN FOOD INSPECTION AGENCY

                                                                                                                                            Applicant

                                                                           and

                                              GUY ELINAR WESTPHAL-LARSEN

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

PELLETIER J.A.

[1]                On July 31, 2000, the respondent Guy Elinar Westphal-Larsen arrived at Vancouver International Airport on a flight from Amsterdam. In the course of the flight, he completed the Customs Declaration Card which he presented to a representative of the Canada Customs and Revenue Agency (CCRA) upon arrival. On that card he declared that he was not bringing into Canada any of a series of designated products, one of which was meat. Because of an outbreak of foot and mouth disease in Holland, all arrivals from that country were being subject to a full screening including X-ray scan of luggage. Before his bags reached the X-ray machine, the respondent declared to a Canadian Food Inspection Agency official that he had a salami in his bags.

[2]                The respondent was interviewed by the official and asked why he had indicated on his card that he was not bringing any meat into Canada. He explained that he believed that the question on the Customs Declaration Card referred to unprocessed meat such as steaks. The official served the respondent with a Notice of Violation with Penalty under the authority of subsection 7(2) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 ( the Agri-Food Act) alleging that he had imported into Canada an animal by-product without complying with the requirements of section 40 of the Health of Animals Regulations, C.R.C. 1978, c. 296 (the Regulations).

[3]                The respondent invoked his right to have the Minister review the violation under subsection 9(2)b) of the Agri-Food Act. The Minister confirmed the violation. The respondent then referred the matter to the Review Tribunal established under the Agri-Food Act for review. The operative portion of the Review Tribunal's decision is reproduced below:

The Notice of Violation dated July 31, 2001, alleges that the Applicant, on or about 18:20 hours on the 31rst day of July 2001, at Vancouver International Airport, committed a violation, namely: "import an animal by-product , to wit, meat, without meeting the prescribed requirements" contrary to section 40 of the Health of Animals Regulations, which states:

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.

The Health of Animals Regulations were made pursuant to the Health of Animals Act. The Regulations are subordinate to, and must be read in conjunction with the Act. The primary obligation of a person importing an animal by-product into Canada is set out in subsection 16(1) of the Act which states as follows:

16. (1) Where a person imports into Canada any animal, animal product, animal byproduct, animal food or veterinary biologic, or any other thing used in respect of animals or contaminated by a disease or toxic substance, the person shall, either before or at the time of importation, present the animal, animal product, animal by-product, animal food, veterinary biologic or other thing to an inspector, officer or customs officer who may inspect it or detain it until it has been inspected or otherwise dealt with by an inspector or officer.

Accordingly, if an importer complies with this subsection, he cannot be in violation of section 40 of the Regulations.

The Minister, in his decision, finds as a fact that prior to the x-ray inspection, the Applicant verbally declared to the Respondent's Inspector that he had a salami and then produced it. Having done so, the Applicant met the requirements of subsection 16(1) of the Health of Animals Act.

(Applicant's Record, at p. 7 (italics in the original).)

[4]                The applicant, Canadian Food Inspection Agency, brings this application for judicial review of the Review Tribunal's decision. Notwithstanding the failure of the respondent to take part in these proceedings, the applicant urges us to hear the matter on the merits and to issue reasons with respect to the issue raised in the Review Tribunal's reasons. The Review Tribunal has ruled in the same way in a number of other cases, which is apparently causing a practical problem for the applicant. The Court agreed to proceed with the matter on the basis suggested by the applicant.

[5]                The applicant argues that the Review Tribunal is mistaken in its interpretation of the legislation. The applicant's position is that the Health of Animals Act, S.C. 1990, c. 21 (the Act) and the Health of Animals Regulations (the Regulations) can be read harmoniously. Subsection 16(1) of the Act imposes upon a person importing an animal, animal product, or animal by-product into Canada the obligation to present the animal, animal product or animal by-product to an inspector at or before the time of importation. This simply imposes an obligation to disclose that goods are being imported into Canada. Thereafter, the importation of those goods is governed by the applicable legislation, in this case, the Regulations.

RELEVANT LEGISLATION

[6]                The relevant legislation to this problem provides as follows:

[7]                The first issue is the standard of review of the decision of the Review Tribunal. Applying the analytical framework set out in 2003 SCC 19">Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, I note that the Review Tribunal is not protected by a privative clause. Section 12 of the Canada Agricutural Products Act, R.S. 1985, c. 20 (4^th Supp.), the legislation under which the Review Tribunal is constituted, provides that decisions of the Tribunal may only be reviewed under the Federal Court Act, which I take to mean that its decisions are reviewable on the grounds set out in subsection 18.1(4) of that Act, including error of law. The nature of the question before the Tribunal is a pure question of statutory interpretation which does not draw upon its particular expertise in agriculture and the agri-food industry. To that extent, the Tribunal does not have any relative legal expertise vis-à-vis this Court. The particular proceedings giving rise to this application involve an administrative penalty for non-compliance with certain regulatory provisions. The Tribunal was therefore not required to engage in the kind of polycentric analysis to which a certain deference is owed by a reviewing Court. Taking these factors together, I conclude that the standard of review of the Review Tribunal in relation to the question raised by this application is that of correctness.

[8]                I turn now to the substantive issue. As I understand the applicant's argument, it is that the combination of section 16 of the Act and section 40 (and related sections ) of the Regulations make the production of an object for inspection a high risk activity. The applicant considers that the fact of presenting an object for inspection at the time of importation amounts to importing the object, and exposes the importer to risk of administrative sanctions if the object is one which does not meet the prescribed standard. In that regard, the applicant points to section 18 of the Agriculture and Agri-Food Administrative Monetary Penalties Act which removes the defence of due diligence from those charged with a violation under the Act. Whether administrative penalties are imposed or not is a matter of the inspector's discretion.

[9]                   The Review Tribunal's position is that when Parliament authorized the importer to present the object for inspection at the time of importation, it cannot have intended to expose the importer to administrative penalties if the object did not qualify for importation to Canada.    Once the object is presented for inspection, the legislative purpose is satisfied. Whether the object qualifies for importation or not is a matter for the applicant. The only time provisions such as section 40 would expose an importer to penalties is when the importer did not produce the object for inspection. If the object is produced for inspection and is found to be ineligible for admission to Canada, then it must either be removed from Canada pursuant to section 18 of the Act or forfeit to the Crown pursuant to section 17 of the Act. In either case, the object does not enter Canada, and the statutory purpose is fulfilled.

[10]            I find the applicant's argument that importing objects derived from animals into Canada is an absolute liability activity, exposing the importer to administrative penalties on a discretionary basis, unappealing. The imposition of penalties on a discretionary basis is arbitrary. It is one thing to make a failure to produce goods for inspection an absolute liability offence; it is quite another to make production of ineligible goods to an inspector an absolute liability offence, which is the practical effect of the position adopted by the applicant.

[11]            On the other hand, it is difficult to resist the argument that Parliament used the words import and importation consistently throughout the Act and Regulations. If the object is presented for inspection upon importation, and the Regulations make it an offence to import that object, it is a reasonable inference that at the time of being presented, it had been imported, thus exposing the importer to liability. Furthermore, the remedies available in the case of goods which are ineligible to be imported into Canada, forfeiture (s. 17) or an order for removal from Canada (s. 18) both depend upon a finding that the thing had been imported into Canada. It is difficult to see how something which was produced at the time of importation, and was ordered forfeit by reason of being unlawfully imported to Canada, should not be treated as imported for purposes of liability under section 40 of the Regulations. Contrary to the view of the Tribunal, this is not an issue which turns upon the primacy of the Act over the Regulations.

[12]            Notwithstanding the harshness of the result, I am unable to agree that the word "import" means something different when used in section 40 of the Regulations than it does (as the root of the word "importation") in section 16 of the Act. If 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.

[13]            Consequently, the decision of the Tribunal must be quashed and sent back for a fresh determination. However, in keeping with the applicant's request that this Court provide some guidance, I would add the following comments.

[14]            It appears to have been assumed by all concerned that proceedings against the respondent were properly initiated under the Health of Animals Act. The Meat Inspection Act, R.S. 1985, c. 25 (1^st Supp.) is legislation which applies to the importation of meat products into Canada. It requires the production of imported meat products for inspection upon importation, subject to certain exemptions which appear in the Regulations promulgated under the authority of the Act. The Tribunal may wish to consider whether the violation issued to the respondent is reviewable on the ground that the Act and Regulations which he is alleged to have violated do not apply to the importation of a salami for human consumption.

[15]            If the Tribunal concludes that the Meat Inspection Act has no application to these facts and that the Health of Animals Act is the governing legislation, it may nonetheless wish to consider whether section 40 of the Regulations applies to these facts. That provision applies only to the importation of animal by-products which are defined in the Health of Animals Act to include a series of inedible products, the only exception being "flesh". It appears to have been assumed that a salami was an animal by-product, perhaps because it was thought to come within the ambit of "flesh". The Tribunal should consider whether that assumption is sound.

[16]            In the result, the decision of the Review Tribunal is quashed, and the matter is remitted to it for a fresh determination. As the respondent did not appear, there will be no order as to costs.

                                                                 "J.D. DENIS PELLETIER"

                                                                                                       J.A.

"I agree

   A.M. Linden, J.A."

"I agree

   Marshall Rothstein, J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-567-02

STYLE OF CAUSE:                                                   CANADIAN FOOD INSPECTION AGENCY v. GUY ELINAR WESTPHAL-LARSEN

PLACE OF HEARING:                                                         Ottawa, Ontario

DATE OF HEARING:                                                           June 24, 2003

REASONS FOR JUDGMENT BY:                          Pelletier J.A.

CONCURRED IN BY:                                                          Linden J.A.

Rothstein J.A.

DATED:                                                                                  October 20, 2003

APPEARANCES:

Mr. Geoffrey S. Lester                                                  for the Applicant

SOLICITORS OF RECORD:

Mr. Morris Rosenberg                                                   for the Applicant

Deputy Attorney General of Canada