Citation: Knezevic v. Canada (CBSA), 2011 CART 21
Date: 20111117;
CART/CRAC‑1559
Between:
Danijela Knezevic, Applicant
- and -
Canada Border Services Agency, Respondent
Before: Chairperson Donald Buckingham
In the matter of an application made by the applicant, pursuant to paragraph 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, for a review of the facts of a violation of section 39 of the Plant Protection Regulations, alleged by the respondent.
DECISION
[1] Following an oral hearing and a review of all oral and written submissions of the parties, the Canada Agricultural Review Tribunal (Tribunal), by order, determines that the applicant did not commit the violation and is not liable for the payment of the penalty.
The hearing was held in Toronto, ON,
on September 15, 2011.
REASONS
Alleged incident and issues
[2] The respondent, the Canada Border Services Agency (Agency), alleges that the applicant, Ms. Danijela Knezevic (Knezevic), on November 23, 2010 at Pearson International Airport in Toronto, Ontario, failed to declare plants, contrary to section 39 of the Plant Protection Regulations.
[3] Section 39 of the Plant Protection Regulations reads as follows:
39. Every person shall, at the time of importation into Canada of any thing that is a pest, is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest, declare that thing to an inspector or customs officer at a place of entry set out in subsection 40(1).
[4] The Tribunal must decide whether the Agency has established all the elements required to support the impugned Notice of Violation in question, particularly that:
▪ Knezevic had plant material in her belongings as she entered Canada;
▪ plant material of the nature of house plants found in a coffee mug were infested or could be infested with a pest or constituted or could constitute a biological obstacle to the control of a pest; and
▪ Knezevic failed to declare that plant material to the Agency inspector on November 23, 2010.
Procedural history
[5] Notice of Violation 4974-10-AMPS-0187, dated November 23, 2010, alleges that on that day at around 17:10 at Pearson International Airport, Terminal 3 in Toronto, Ontario, Knezevic "committed a violation, namely: Fail to declare plant as prescribed, contrary to section 30 of the Plant Protection Regulations".
[6] The Notice of Violation also sets out that the alleged act constitutes a violation of section 7 of the Agriculture and Agri-Food Administrative Monetary Penalties Act and section 2 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and that, pursuant to section 4 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, the alleged act constitutes a serious violation for which a $800 penalty is assessed to Knezevic. The Notice of Violation further states that it was personally served on Knezevic by the Agency on November 23, 2010.
[7] In a letter faxed to the Tribunal on December 22, 2010, Knezevic requested a review by the Tribunal of the facts of the violation, in accordance with subsection 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act. In that fax, Knezevic provided the Tribunal with her initial submissions in defence of the alleged violation. In a second fax dated December 27, 2010, Knezevic contacted Tribunal staff requesting that the review be by way of an oral hearing, in accordance with subsection 15(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
[8] On January 10, 2011, the Agency sent its report (Agency Report) concerning the Notice of Violation to Knezevic and to the Tribunal, the latter receiving it that same day. The covering letter of the Agency Report contained the following sentence: "The Canada Border Services Agency would like to acknowledge that the Section quoted on the Notice of Violation was in error and should read 39 rather than 30." This error was also acknowledged by the Agency at pages 13 and 14, and Tab 7 of the Agency Report.
[9] In a letter dated January 10, 2011, the Tribunal invited Knezevic to file with it any additional submissions (Additional Submissions) in this matter, no later than February 9, 2011. On February 8, 2011, the Tribunal received a fax from Knezevic setting out her Additional Submissions, a copy of which the Tribunal forward to the Agency that same day. In those Additional Submissions, Knezevic requested that the Tribunal dismiss the Notice of Violation against her as there is no evidence that she committed any "violation contrary to section 30". On February 16, 2011, the Agency submitted legal arguments to argue that the error of section number was a "technical irregularity in the Notice of Violation, and should consequently be overlooked by the Tribunal (pursuant to Section 4, Rules of the Review Tribunal (Agriculture and Agri-Food))". The Tribunal forwarded the Agency's legal arguments to the applicant and reserved its decision on the disposition of this matter until the oral hearing of the matter. With the exception of communications from the parties concerning the Agency's request for a postponement of the hearing scheduled for September 15, 2011, a request that the Tribunal denied, no further written submissions were received from the parties prior to the hearing of this case.
[10] The oral hearing requested by Knezevic was held in Toronto, Ontario on September 15, 2011, with Knezevic self‑representing and the Agency represented by Mr. Marc Gobeil. At the commencement of the hearing, the parties presented their legal arguments with respect to the error that the Agency has noted is contained on the Notice of Violation. After hearing both parties, and recalling the Agency's identification of its error very early on in the proceedings (January 10, 2011) and the Agency's argument that its request for a change in the section from section 30 to section 39 of the Plant Protection Regulations would not prejudice Knezevic in knowing the case against her and preparing her defence, the Tribunal ordered that the Notice of Violation be amended to refer to section 39 rather than section 30 of the Plant Protection Regulations. The Tribunal rejected Knezevic's argument that it should follow an earlier Tribunal decision in Morrison v. Canada (CBSA) 2010 CART 1, stating that unlike this case, in the Morrison case no request had ever been made by the Agency to amend the section number under which the applicant had been penalized.
Evidence
[11] The evidence before the Tribunal in this case consists of written submissions from the Agency (Notice of Violation and Agency Report) and from Knezevic (request for review and Additional Submissions). The Agency presented one witness, Inspector Ryan Lyttle (Lyttle) while Knezevic presented two witnesses-herself, and her husband Darko Makic (Makic) who tendered evidence at the hearing on September 15, 2011. The parties tendered no exhibits at the hearing.
[12] Certain facts in this case are not in dispute:
▪ On November 23, 2010, Knezevic, with her husband Makic, arrived in Toronto from Belgrade via Kiev and proceeded to primary inspection before an Agency inspector.
▪ The Agency inspector at primary inspection received a Declaration Card E311 (Tab 2 of the Agency Report) that Knezevic had completed and which was signed by both Knezevic and Makic. On this Declaration Card E311, the "no" box was checked beside 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."
▪ Knezevic and Makic then proceeded from primary inspection and were directed to undergo secondary inspection. That inspection was undertaken by Inspector 14652, who found two mugs containing five small plants wrapped in tissue.
▪ Inspector 14652 issued Notice of Violation 4974‑10‑AMPS‑0187 (Tab 3 of the Agency Report) to Knezevic. As well, Inspector 14652 completed an Inspector's Non Compliance Report for Travellers at Point of Entry (Tab 6 of the Agency Report), photographed the mugs and plants that he found (Tab 8 of the Agency Report), and then destroyed the mugs and the plants.
[13] The disputed facts in this case are: (1) whether the plants that were found by Inspector 14652 were imported by Knezevic or by Makic; and (2) if the plants were imported by Knezevic, whether the plants were infested or could be infested with a pest or constituted or could constitute a biological obstacle to the control of a pest.
[14] Written submissions at Tab 6 of the Agency Report from Agency's witness, Inspector 14652, stated that he found rooted plants for propagation in mugs. In the remarks section of the Inspector's report he notes: "The traveller on entry into Canada from Serbia Yugoslavia (sic) was asked if the bags were theirs, if they packed them, and if they were aware of the contents, to which they replied yes to all questions. Upon examination of the luggage the undeclared plant(s) was (sic) found. I asked if they had an import permit or
certificate for the above products and they said no. The undeclared plant product from Serbia Yugaslovia (sic) was taken, photographed, seized and subsequently disposed of as international waste." On the following page of the report, Inspector 14652 makes the following declaration: "On November 23, 2010 at approximately 17:10 hrs, Canada border Services Officer #14652 found undeclared plants, coming in from Serbia Inside the suitcase in the possession of passenger Mr./Mrs./Ms. KNEZEVIC during secondary examination. The officer asked the passenger if the suitcase is his/hers, and the passenger said "Yes". The officer asked for permits or certificates, and none were produced. The officer seized, photographed and explained the options to the passenger. I have inspected the imported plants with no documentation, and I am unable to satisfy myself on reasonable grounds that it was processed in any way that would prevent disease from coming into Canada, and the passenger did not give a valid reason for not declaring."
[15] At Tab 10 of the Agency Report, live plants for propagation originating from Serbia are, according to the to the Automated Import Reference System (AIRS) reference system of the Canadian Food Inspection Agency, to be refused entry because, it is to be inferred that, they pose a threat of being infested by a pest by direction of the Plant Health and Production Division of the Canadian Food Inspection Agency.
[16] The Agency's witness at the hearing, Lyttle, told the Tribunal that, while he was not on duty on November 23, 2010, he could provide the Tribunal with information about how the Agency proceeds with inspections. He told the Tribunal that inspectors are trained to ask individuals three questions: "Are these your bags; did you pack them yourselves; is there anything sharp or dangerous or anything to declare in them?" Lyttle told the Tribunal that the assumption of the Agency is that the traveller(s) will honestly fill out the E311 declaration card, and where undeclared materials are later found, any enforcement action would normally be issued against and in the name of the person in whose bag the undeclared materials were found.
[17] In cross‑examination, Lyttle told the Tribunal that the Agency does not have a test for when a plant will be considered dangerous but that Agency inspectors will use their common knowledge and Canadian Food Inspection Agency guidelines to refuse entry of plants that might be harmful or dangerous. Each inspector is given training and during that training the inspectors are taught to make use of the AIRS system to assist them in making their determination as to whether plant materials should be allowed entry into Canada and whether they would pose a threat because of infestation by pests.
[18] Knezevic, testifying as the first witness in her defence, told the Tribunal that the plants found by Agency Inspector 14652, were found in her husband's bag, not hers. The plants and mugs had been offered to her by her mother on the evening prior to her departure from her mother's home in Serbia. She had specifically refused the gifts because she had no room
left in her bag. She prepared her luggage in the bedroom and her husband had prepared his in another room. Each had packed his or her own bag and in the morning Knezevic and Makic left Belgrade for their 15‑hour journey back to Toronto via Kiev. While they chatted during the journey, no mention was ever made regarding gifts from Knezevic's mother. Knezevic completed the E311 Declaration Card and both she and Makic signed it. The two proceeded to primary inspection, presented the E311 Declaration Card and were directed to secondary inspection where Inspector 14652 asked each of Knezevic and Makic if he or she had anything to declare. Knezevic replied that she had holy water from Montenegro but that was all, and this the inspector found in her bag. Then he proceeded to find two mugs with five plants in Makic's bag. When the inspector found the mugs, Knezevic asked Makic if her mother had given the mugs to him and he said that she had, on the morning of their departure. This oral testimony given by Knezevic is consistent with her submissions given in writing that accompanied her request for review filed with the Tribunal in December 2010.
[19] In cross‑examination, Knezevic told the Tribunal that she was unaware of the plants in Makic's suitcase prior to the discovery of them by Agency 14652 and that at no time during their return to Canada had they discussed the plants or any gifts received by them from Knezevic's parents while they were staying with them. When asked in cross-examination, Knezevic confirmed that she and Makic each had his/her own suitcase which they packed separately.
[20] Knezevic's second witness, her husband Makic, told the Tribunal that he finished packing his suitcase the night before their departure and left it in the living room of his mother-in-law's house. On the morning of their departure, his mother‑in‑law approached him and asked if he had room to pack two mugs in his suitcase because her daughter had told her that her bags were already full. Makic said he did have room and took the two mugs stuffed with tissue but did not examine their contents. He did not think of them again until Inspector 14652 found them in secondary inspection. Makic told the Tribunal that his wife did not know he had taken the mugs from her mother and he did not know they contained plants wrapped in tissue until Inspector 14652 found them. Because he had no knowledge that he had plants, he did not declare any plants on the Declaration Card E311.
[21] In cross‑examination, Makic told the Tribunal that on the night before and the morning of their departure from Serbia, his wife was packing her bag in the bedroom while he had his bag and packed it in the main room of the house. When his mother‑in‑law approached him to take the mugs on the morning of their departure, his wife was not in their presence. As it was his mother-in-law and, as it was a gift, he agreed to pack the mugs in his suitcase without thinking much more about the request and the contents of the gift.
Analysis and Applicable Law
[22] This Tribunal's mandate is to determine the validity of agriculture and agri-food administrative monetary penalties issued under the authority of the Agriculture and Agri-Food Administrative Monetary Penalties Act (the Act). The purpose of the Act is set out in section 3:
3. The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-food Acts.
[23] Section 2 of the Act defines "agri-food Act":
2. "agri-food Act" means the Canada Agricultural Products Act, the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act or the Seeds Act...
[24] Pursuant to section 4 of the Act, the Minister of Agriculture and Agri-Food, or the Minister of Health, depending on the circumstances, may make regulations:
4. (1) The Minister may make regulations
(a) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of an agri-food Act or of a regulation made under an agri-food Act...
[25] The Minister of Agriculture and Agri-Food has made one such regulation, the Agriculture and Agri-Food Administrative Monetary Penalties Regulations SOR/2000‑187, which designates as a violation several specific provisions of the Health of Animals Act and the Health of Animals Regulations, and the Plant Protection Act and the Plant Protection Regulations. These violations are listed in Schedule 1 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations and include a reference to section 39 of the Plant Protection Regulations.
[26] The Act's system of monetary penalties (AMP), including its severity, has been the subject of comment by the Federal Court of Appeal. In the case of Michel Doyon v. Attorney General of Canada, 2009 FCA 152, the court states at paragraphs 27 and 28:
[27] In short, the Administrative Monetary Penalty System has imported the most punitive elements of penal law while taking care to exclude useful defences and reduce the prosecutor's burden of proof. Absolute liability, arising from an actus reus which the prosecutor does not have to prove beyond a reasonable doubt, leaves the person who commits a violation very few means of exculpating him - or herself.
[28] Therefore, the decision-maker must be circumspect in managing and analysing the evidence and in analysing the essential elements of the violation and the causal link. This circumspection must be reflected in the decision-maker's reasons for decision, which must rely on evidence based on facts and not mere conjecture, let alone speculation, hunches, impressions or hearsay.
[27] Moreover, in Doyon, the Federal Court of Appeal points out that the Act imposes an important burden on the Agency. At paragraph 20, the Court states:
[20] Lastly, and this is a key element of any proceeding, the Minister has both the burden of proving a violation, and the legal burden of persuasion. The Minister must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice: see section 19 of the Act.
[28] The legislation is clear that the burden of proof for each element of the violation rests with the respondent, as set out in section 19 of the Agriculture and Agri-Food Administrative Monetary Penalties Act:
19. In every case where the facts of a violation are reviewed by the Minister or by the Tribunal, the Minister must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice.
[29] Consequently, the Agency must prove all the elements of the violation, on a balance of probabilities. For a violation of section 39 of the Plant Protection Regulations, the Agency must prove that
(1) The violator is Knezevic;
(2) Knezevic brought (imported) plant material into Canada;
(3) The house plants for propagation imported were or could be infested with a pest or constitute or could constitute a biological obstacle to the control of a pest; and
(4) Knezevic did not declare the plant material to any Agency inspector.
[30] The Tribunal found each of the witnesses at the hearing to be very credible and that they presented their evidence in a straight-forward and genuine manner and that there is no reason to doubt any of the testimony of Knezevic, Lyttle or Makic.
[31] With respect to element 4, Knezevic's and Makic's joint E311 Declaration Card shows that neither she nor he declared the house plants when they entered Canada on November 23, 2010. Furthermore, the testimony of Inspector 14652 is to the effect that neither Knezevic nor Makic declared the plant material prior to secondary inspection of their bags by Inspector 14652. Therefore, the Agency has proved, on the balance of probabilities, element 4 of the alleged violation.
[32] With respect to element 3, Inspector 14652 presented evidence for the Agency that the plant materials he found in the bag were house plants for propagation and reference to the AIRS system for importation of such products led him to conclude that the product did indeed need to be declared because it was a "thing that is a pest, is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest" (section 39 of the Plant Protection Regulations). On this element as well, the Tribunal is convinced that the Agency has adduced sufficient evidence, on the balance of probabilites, for a finding that the plants imported needed to be declared, as each one was a "thing that is a pest, is or could be infested or constitutes or could constitute a biological obstacle to the control of a pest".
[33] However, it is with respect to elements 1 and 2, that the Tribunal finds that the Agency has failed to adduced sufficient evidence, on the balance of probabilities, to support a valid Notice of Violation. The written record submitted by the Agency is clearly relevant and sheds light on the incident. However, the Agency presented no witness to speak to its specific contents or to contradict any evidence presented by Knezevic. Nor was there an opportunity for Knezevic to subject the contents of the written record to cross-examination. The Agency, on the other hand, did exercise its right during the hearing to cross-examine Knezevic, at times with some rather inappropriate questions in the opinion of the Tribunal, on the evidence which she tendered. In cross‑examination, the evidence of Knezevic remained consistent and credible.
[34] The Tribunal finds that the respondent has failed in this case to prove that the person named in the Notice of Violation committed the violation identified in the Notice. The Tribunal accepts the evidence given by Knezevic and Makic, and not contradicted by the Agency, to the effect that the house plants were found in Makic's bag. She was not aware of their presence there and the mere fact that it was her mother that provided the plants to her husband, after Knezevic herself had refused the same mugs and plants from her mother the evening before the return trip to Canada is not sufficient to tie the plants to Knezevic. The Tribunal finds as a fact that the importer of the plants was the person who received the plants in Serbia, stored them in his bags and then when he landed in Canada, by his taking them onto Canadian soil, imported them into Canada.
[35] The Tribunal finds that the plants were not imported by Knezevic. She had no knowledge of them, they were not in her bag and she did not possess them or control their entry into Canada. Makic was responsible for the importation of the plants into Canada and they were always under his care and control, even if, as he testified, he never knew that the plants were in the coffee mugs that he agreed to bring to Canada as a gift from his mother-in-law. Given these facts, the Tribunal finds that the Agency has failed to prove an essential element of the case, namely that the person named in the Notice of Violation committed the violation identified in the Notice. If such a violation occurred, it was not Knezevic who committed it.
[36] The Tribunal finds, therefore, that the Agency has failed, on the balance of probabilities, to prove all the elements of the case, particularly the identity of the person who committed the violation. While Agency inspectors are charged with the task of protecting Canadians, the food chain and agricultural production in Canada from risks posed by pests, pathogens and parasites, Notices of Violations under the AMPS Act can only be upheld under Canadian law by the Tribunal where all the essential elements of the case have been proved by the Agency on the balance of probabilities, which was not the case in the present matter. The Tribunal holds the applicant did not commit the violation and is not liable for payment of the penalty.
Dated at Ottawa, this 17th day of November, 2011.
____________________________________
Dr. Donald Buckingham, Chairperson