RTA# 60127
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION
In the matter of an application for a review of the facts of a violation of section 39 of the Plant Protection Regulations, alleged by the Respondent, and requested by the Applicant pursuant to paragraph 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Chris Pery, Applicant
- and -
Canadian Food Inspection Agency, Respondent
CHAIRMAN BARTON
Decision
Following a review of the written submissions of the parties including the report of the Respondent, the Tribunal, by order, determines the Applicant did not commit the violation and is not liable for payment of the penalty.
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RTA# 60127
Page 2
REASONS
The Applicant did not request an oral hearing.
The Notice of Violation dated April 29, 2004, alleges that the Applicant, at 21:50 hours on the 29th day of April, 2004, at MCIA, Ottawa, in the province of Ontario, committed a violation, namely: “Fail to declare potatoes as prescribed” contrary to section 39 of the Plant Protection Regulations, which states:
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).
Section 2 of the Plant Protection Act, under which the Regulations were passed, states:
2. The purpose of this Act is to protect plant life and the agricultural and forestry sectors of the Canadian economy by preventing the importation, exportation and spread of pests and by controlling or eradicating pests in Canada.
Section 3 of the Plant Protection Act contains the following pertinent definitions:
“pest” means any thing that is injurious or potentially injurious, whether directly or indirectly, to plants or to products or by-products of plants, and includes any plant prescribed as a pest;
“plant” includes a part of a plant;
“prescribed” means prescribed by regulation;
“thing” includes a plant and a pest.
The undisputed facts are that the Applicant imported two potatoes from the United States without declaring them to an inspector or a customs officer at the time of importation. The Applicant had brought the potatoes with him from Canada and was bringing them back on his return.
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The potatoes were not declared on the Customs Declaration Card (Form E-311). Although the Applicant may have avoided a Notice of Violation had the potatoes been declared on this form, this lack of disclosure is not itself a violation which can be proceeded with under the Agriculture and Agri-food Administrative Monetary Penalties Act.
Having failed to declare the potatoes to an inspector or customs officer at the time of importation, the sole remaining question is whether the potatoes were “pests”.
The evidence of the Respondent relates solely to the importation of potatoes from the United States. Potato tubers and soil adhering to the tubers are identified as a serious carrier of plant pathogens which could pose a threat to Canada’s plant life in the agricultural and forestry sectors.
Because the Respondent’s evidence relates to potatoes, tubers, and soil (adhering to potatoes and tubers) imported from the United States, it is a necessary implication that the evidence refers to potatoes grown in United States soil.
Since there is no evidence the potatoes in question were grown in the United States (but were likely grown in Canada), there is no evidence that the Canadian potatoes are “pests”.
The Respondent has accordingly failed to establish, on a balance of probabilities, that the Applicant committed the violation set out in the Notice of Violation.
Dated at Ottawa this 13th day of July, 2004.
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Thomas S. Barton, Q.C., Chairman