Docket:
A-256-13
Citation: 2014 FCA 63
CORAM:
NOËL
J.A.
PELLETIER
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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YOUSSEF BOUGACHOUCH
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Respondent
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REASONS FOR JUDGMENT
NOËL
J.A.
[1]
This is an application for judicial review of a
decision of the Canada Agricultural Review Tribunal (the Tribunal) (2013 CART
20 – CART/CRAC-1624) cancelling the notice of violation issued against Youssef
Bougachouch (the respondent) under section 40 of the Health of Animals
Regulations, C.R.C., c. 296 (Animals Regulations), respecting the
prohibition against importing meat by-products into Canada.
[2]
The notice of violation was issued against the
respondent by the Canada Border Services Agency (CBSA) for having unlawfully
imported meat-based products in his luggage, contrary to section 7 of the Agriculture
and Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40
(Penalties Act), section 2 of the Agriculture and Agri-Food
Administrative Monetary Penalties Regulations, SOR/2000-187, and
section 40 of the Animals Regulations.
[3]
The Tribunal stated that it was satisfied that
the alleged violation had been committed, but it cancelled the notice of
violation because of alleged discrimination in the inspection process that had
led to the notice being issued.
[4]
For the reasons that follow, I am of the opinion
that the Tribunal acted unreasonably in cancelling the notice of violation on
this basis, and that the matter should be referred back to the Tribunal for
redetermination on the basis of the evidence of the impugned conduct.
[5]
The statutory provisions that are relevant to
the following analysis are reproduced in an appendix to these reasons for
judgment.
RELEVANT FACTS
[6]
The events occurred on March 27, 2012, at Pierre-Elliot Trudeau International Airport, when the respondent arrived in Canada on a flight from Morocco (Applicant’s Record at pages 56 and 61). The record shows that
the respondent failed to declare some sausages that he had in his luggage,
either on his Declaration Card or when he was questioned in this regard by the
primary inspection line officer (Applicant’s Record, at pages 59 and 61). When
he was directed to the secondary inspection line, the respondent again denied
having imported any food (Applicant’s Record, at page 56).
[7]
When the respondent was searched on secondary
inspection, three commercially packaged turkey sausages were discovered in his
luggage (Applicant’s Record, at pages 56, 67 and 74). Because he did not
have a permit to import the sausages, the respondent was given a “Notice of
Violation at the Point of Entry”, along with a monetary penalty of $800 (Applicant’s
Record at pages 68 and 69).
[8]
On or about April 1, 2012, the respondent
filed a request to have the Tribunal review the notice of violation (Applicant’s
Record, at pages 80 et seq.). In his request, the respondent argued, inter
alia, that the CBSA had discriminated against him on the basis of his
ethnic origins because [translation] “only
Arabs were targeted en masse for baggage inspection” (Applicant’s
Record, at pages 82 and 83).
[9]
At the hearing, the Tribunal wanted to hear the
parties on the respondent’s allegations of discrimination. The CBSA’s
representative argued that the conduct of the inspectors was not relevant to
the Tribunal proceeding and should instead be handled through the CBSA’s
internal complaint resolution mechanism (Reasons at paragraph 21). A
witness for the CBSA explained that the respondent may have had the impression
that only Arabs were targeted because this was a flight from Morocco and newcomers to Canada are automatically sent for secondary inspection (Reasons at
paragraph 22; Applicant’s Record at pages 123 and 124).
[10]
The Tribunal was not satisfied with these
answers and asked the CBSA to submit additional evidence regarding the
allegations of discrimination, suggesting that all the notices of violation
issued to passengers on the same flight as the respondent be reviewed (Reasons
at paragraphs 23 and 24; Applicant’s Record at pages 35 et seq., 125 to
134). The CBSA did not want to adduce new evidence, arguing that the notice of
violation had to be analyzed independently of the allegations of
discrimination, that the Penalties Act did not require it to provide reasons why
an individual is referred for secondary inspection, and that, in any event, the
Tribunal does not have the power to review notices of violation on that basis (Reasons
at paragraphs 25 to 29; Applicant’s Record at pages 21 et seq.).
[11]
On June 24, 2013, the Tribunal rendered a
decision exonerating the respondent on the ground that the evidence supporting
the notice of violation had to be excluded, hence the application for judicial
review before this Court.
dECISION OF THE TRIBUNAL
[12]
At the review hearing, the Tribunal declared
that it was satisfied that the evidence proved that the respondent had
committed the alleged act (Applicant’s Record, transcription, at page 128).
It nevertheless cancelled the notice of violation on the ground that the
evidence of the violation had been obtained in an arbitrary or discriminatory
manner (Reasons at paragraphs 34 and 35).
[13]
In support of this conclusion, the Tribunal
noted, first, the respondent’s allegation of discrimination, presented in the
following terms (Reasons at paragraph 19):
[translation]
. . . I am of Moroccan origin. I arrived on an airplane
on which half the passengers were of European, American or Canadian origin, and
only Arabs were targeted en masse for baggage inspection . . . .
[14]
Citing the decision of the Tribunal in Zhou v.
Canada (Border Services Agency), 2010 CART 20, the Tribunal
stated that in most cases, the conduct of CBSA inspectors is an issue that is
relevant to a request to review a notice of violation (Reasons at paragraph 30).
It nevertheless found that it had a duty to “determine whether the reasons and
actions of the inspector demonstrate that she abused her discretionary power
and thus based her decision to issue a Notice of Violation to Mr. Bougachouch
on arbitrary and discriminatory criteria” (Reasons at paragraph 30).
[15]
Declaring that it was not satisfied with the
explanations provided by the CBSA to rebut the impression of discrimination alleged
by the respondent, the Tribunal concluded that there was bias in the secondary
inspection of passengers (Reasons at paragraphs 32 and 33):
. .
. For some reason, without any convincing explanation, only Arabs were referred
to secondary inspection in this case. Discretion is not being exercised when
only Arabs, arriving on a flight with many other individuals, are required to
undergo secondary inspection. The Tribunal remains without a convincing
explanation from the [CBSA] for this “Arab waiting line”.
[16]
Citing R. v. Johnson, 55 CR (6th) 118, 2007 CanLII 57813 (ON SC); R.
v. Nguyen, 139 CRR (2d) 65, 2006 CanLII
1769 (ON SC); and Amalia Eustergerling v. Canada
(Border Services Agency), 2012 CART-1593, 2012 CART 19 (CanLII) (Amalia),
the Tribunal cancelled the notice of violation by invoking its discretion to “bar
evidence” obtained as a result of “highly egregious” conduct on the part of
CBSA officials, in order to avoid bringing the administration of justice into
disrepute (Reasons at paragraphs 31 and 34).
POSITION OF THE PARTIES
[17]
The Attorney General of Canada (the applicant) raises
two main grounds in support of his application for judicial review. First, he
argues that the reasons of the Tribunal lack the transparency and
intelligibility required of a decision of an administrative tribunal (Applicant’s
Memorandum at paragraphs 31 and 32). In this regard, the applicant notes
that [translation] “it is
extremely difficult, if not impossible, to determine which legal concept the
Review Tribunal did indeed apply to arrive at its conclusion” (Applicant’s
Memorandum at paragraph 36).
[18]
Second, the applicant is of the view that in
excluding the evidence supporting the notice of violation, the Tribunal
exceeded its authority under the Penalties Act and acted unreasonably (Applicant’s
Memorandum at paragraphs 39 to 62).
[19]
More specifically, it is submitted that the
Tribunal made an unreasonable error in disregarding the evidence supporting the
notice of violation because the conditions for excluding it had not been met.
The applicant accepts that a tribunal may reject certain pieces of evidence
where fundamental rights have been violated in obtaining them and the use of
that evidence would bring the administration of justice into disrepute (Applicant’s
Memorandum at paragraph 41, citing Bellefeuille c. Morisset, 2007
QCCA 535 at paragraphs 23 and 24 (Bellefeuille)). He submits,
however, that none of these conditions have been met in this case.
[20]
Regarding the conditions under which the
evidence was obtained, the applicant argues that the Tribunal erred in
inferring bias on the part of the CBSA strictly on the basis of the subjective
impression of the applicant. The Tribunal cannot base its decision on mere
conjecture when there could be a multitude of reasons other than discrimination
for the presence of people of Arab origin in the secondary inspection line.
[21]
The applicant submits that it was impossible to
provide statistics on the proportion of people of Arab origin referred for
secondary inspection because passengers’ ethnic origins cannot be determined
from their declaration cards (Applicant’s Memorandum at paragraph 53). Moreover,
such statistics would not explain the reasons for sending certain passengers
for secondary inspection (Applicant’s Memorandum at paragraphs 52 and 54).
[22]
The applicant adds that the Tribunal’s reasoning
was also unreasonable with regard to the question of whether admitting the
evidence would bring the administration of justice into disrepute. The Tribunal
failed to apply the proportionality test established by the case law, which
requires balancing respect for fundamental rights with the search for truth (Applicant’s
Memorandum at paragraphs 59 and 60, citing Bellefeuille at
paragraphs 70 and 71). If the Tribunal had applied that test, it would
have concluded that the balance favoured the search for truth in this case
because of the scheme and purposes of the legislation in issue (Applicant’s
Memorandum at paragraph 61).
[23]
The respondent, on the other hand, did not
submit any written representations, which leads me to conclude that he relies
on the decision of the Tribunal.
ANALYSIS
Applicable
standard of review
[24]
The applicant simply states the law regarding
the standard of review applicable on judicial review without actually identifying
the nature of the issues decided by the Tribunal and the appropriate standard
of review for each of them (Applicant’s Memorandum at paragraphs 22 and 23).
[25]
The intelligibility of the reasons must be
assessed on a standard of reasonableness, while the issue of whether the Tribunal
acted within its jurisdiction calls for the standard of correctness.
Intelligibility and transparency of the Tribunal’s reasons
[26]
The first question raised by the applicant is
whether the reasons of the Tribunal are sufficient to meet the criteria of
intelligibility and transparency in the decision-making process as established
in Dunsmuir v. New Brunswick, 2008 SCC 9. To meet these requirements,
the reasons in question must “allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes” (Newfoundland and Labrador Nurses’
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 16 (Newfoundland Nurses)). It should be noted that the
evidentiary burden of the party challenging the sufficiency or reasonableness
of the reasons is a particularly heavy one. Indeed, as the Supreme Court
recently noted in Newfoundland Nurses at paragraph 16,
[r]easons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion . . . .
[27]
In my opinion, the first ground of appeal must
fail. It is true that the Tribunal refers in several places to its discretion
to “[refuse] to admit evidence obtained” (Reasons at paragraph 31),
or “to bar evidence obtained” [emphasis added] (Reasons at
paragraphs 31 and 34). The choice of words is unfortunate, in that it does
indeed seem to refer to the Tribunal’s powers regarding the administration of
the evidence.
[28]
However, when read in their context, the reasons
show that the Tribunal did in fact exclude the evidence, once it was filed and
submitted, on the ground that it had been obtained through an unreasonable
search. This interpretation is confirmed by the fact that the Tribunal cites, at
paragraph 31 of its reasons, two judgments of the Ontario Superior Court
of Justice regarding the exclusion of evidence obtained in violation of the
fundamental rights of an accused in a criminal context, under
subsection 24(2) of the Canadian Charter of Rights and Freedoms. The
Tribunal also cites Amalia at paragraph 45, in which a different
panel apparently admitted that the Tribunal might, in certain circumstances, be
able to intervene “where the improper purpose contributed to a material extent
in the issuance of the Notice of Violation with Penalty” (Reasons at
paragraph 31).
[29]
Although the Tribunal’s decision might appear to
be deficient in certain respects, a reviewing court should “first seek to
supplement [the reasons] before it seeks to subvert them” (Newfoundland
Nurses at paragraph 12, citing David Dyzenhaus, “The Politics of
Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The
Province of Administrative Law (1997), 279, at page 304). Taking this
approach, I must conclude that the application for judicial review cannot be
allowed on this basis alone, as the applicant claims. However, the application
for judicial review must in my view be allowed for the following reason.
Grounds
for excluding the evidence
[30]
It is neither necessary nor appropriate to
consider the question of whether the Tribunal had the power to exclude the
evidence because in any event exclusion, although permitted, is unreasonable.
The evidence of discrimination as accepted by the Tribunal is based on the
respondent’s perception that, on his flight (Reasons at paragraph 19),
[translation]
. . . half the
passengers were of European, American or Canadian origin, and only Arabs were
targeted en masse for baggage inspection . . . .
[31]
It is from that allegation, as worded or
reformulated above, that the Tribunal concluded that the onus was on the CBSA
to prove that no racial profiling had occurred. Since the CBSA did not respond
to the invitation to provide evidence to the contrary, the Tribunal accepted
the respondent’s testimony and found that the CBSA had conducted a secondary
inspection on the basis of the racial profile of the passengers.
[32]
The full reasons of the Tribunal on this point
are found at paragraph 23 of its decision:
The
[CBSA] did not provide any explanation why only Arabs (who could have been
Canadians or citizens of another country) were directed to the secondary
inspection line. The Tribunal decided to give the [CBSA] an opportunity to
demonstrate that the preliminary impression of bias was not correct. One of
the Tribunal’s suggestions was that the [CBSA] could submit the information to
the individuals on the flight to whom Notices of Violation had been issued. The
Tribunal suggested a deadline of thirty days to submit a response, with the
possibility of an extension, in order to gather the information.
[Emphasis added.]
[33]
As the Tribunal acknowledges in that passage,
the respondent’s statement is based on a mere impression. However, an
impression is not proof. As this Court stated in Doyon v. Canada (Attorney
General), 2009 FCA 152 at paragraph 28, the Tribunal had to “rely on
evidence based on facts and not mere conjecture, let alone speculation,
hunches, impressions or hearsay”.
[34]
This is especially so since the Tribunal had
evidence before it that admitted a different explanation for the respondent’s
impression. Indeed, the border services officer who was working on the
secondary inspection line when the respondent’s flight arrived testified as
follows (Transcript, Applicant’s Record, at pages 123 and 124):
[translation]
You have to understand
that many passengers are newcomers to Canada, so they have a lot of forms to
fill out. When you arrive in Canada for the first time, you absolutely must go
through secondary to be checked. There are a lot of papers to fill out. So,
that’s one of the reasons why many immigrants end up at secondary, for formal
matters concerning forms to be filled out.
Then there are all the
times when the system at primary is programmed to have random checks, upon
random referrals to secondary. So, all those people who have a random referral
have to go to secondary. So, there are many reasons why someone would end up at
secondary, and just the fact that many immigrants have to fill out forms, that
explains a bit why there are often many immigrants at secondary.
[35]
Regardless of the preceding, the Tribunal erred
in criticizing the CBSA for not having filed the declaration cards of the
passengers in question and the related statistics to show that there was no
profiling. As the applicant notes, it is impossible to identify the ethnic
origins of individuals from these cards, and at any rate, the statistics
regarding the ethnic origins of passengers in a secondary inspection area would
not have taken into account the many reasons that could explain why they ended
up there, such as the payment of customs duties, immigration procedures, refugee
protection claims and random searches. Nothing useful or probative could have
come from such evidence.
[36]
To sum up, the Tribunal acted unreasonably in
shifting the burden of proof on the basis of a mere impression and in
criticizing the CBSA for not having entered in evidence the declaration cards
and related statistics.
[37]
Moreover, since the Tribunal declared that it
was satisfied that the respondent had committed the alleged act, I would allow
the application for judicial review, quash the decision of the Tribunal and
refer the matter back to it for redetermination on the basis of the finding
that it was satisfied that the violation had been committed.
“Marc Noël”
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Robert M.
Mainville J.A.”
Certified true
translation
François Brunet,
Revisor
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