RTA #60343
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 provision 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.
Osita Nwora Obi, Applicant
- and -
Canada Border Services Agency, Respondent
CHAIRMAN BARTON
Decision
Following an oral hearing and a review of all oral and written submissions , 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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REASONS
The Applicant requested an oral hearing pursuant to subsection 15(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
The oral hearing was held in Vancouver, British Columbia, on January 21, 2009.
The Applicant represented himself.
The Respondent was represented by Ms. Rosemary Copeland-Jones.
Having confirmed both parties had copies of the following documentation received by the Tribunal, I entered the documents on the record as evidence for the purpose of the hearing:
• Notice of Violation #YEG-08-0024 dated March 30, 2008.
• Letter dated April 10, 2008, from the Applicant requesting an oral review.
• Letter dated May 12, 2008, from the Respondent enclosing its case report.
• Letter dated June 11, 2008, from the Applicant with reasons for disputing the violation.
• Letter dated June 18, 2008, from the Respondent’s representative with additional information.
The Notice of Violation #YEG-08-0024 dated March 30, 2008, alleges that the Applicant, on or about 17:40 on the 30th day of March, 2008, at Edmonton international Airport, in the province of Alberta, committed a violation, namely: “Fail to declare; root crop, as prescribed” contrary to provision 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).
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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 evidence is that the Applicant imported from the United Kingdom, a small quantity of powdered milk and two yams. The importation of the powdered milk is not an issue in this case.
The Applicant admitted that the yams were not declared on the Customs Declaration Card (Form E311) as the Applicant indicated he filled in the form in haste and did not see a place on the card to put the yams. In his oral testimony, he did, however, indicate that on secondary inspection he notified the officer he had two yams in his luggage.
Form E311 is a product of the Customs Act and Regulations and the manner of completion of this declaration does not, in itself, give rise to a matter that can be proceeded with as a violation under the Agriculture and Agri-Food Administrative Monetary Penalties Act and Regulations.
Had the yams been declared on Form E311, however, Ms. Copeland-Jones indicated the Applicant would not likely have received a Notice of Violation.
Put simply, failure to declare the yams on Form E311 did not give rise to a Notice of Violation being issued.
Notwithstanding the question of whether or not the yams were declared at the time of importation, in order for there to be a contravention of section 39 of the Plant Protection Regulations, the thing imported must be a pest, or must or could be infested or constitutes or could constitute a biological obstacle to the control of a pest.
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The onus of proof in these matters is upon the Respondent to establish, on a balance of probabilities, that a violation was committed.
In this case, there is absolutely no evidence to indicate the yams in question fall within the definition of “pest” or that they come within the parameters of section 39. Without such evidence, almost anything imported could be argued to fall within that section.
As confirmed by Ms.Copeland-Jones, Tab 2 of the Respondent’s report is an internal direction to Customs Officers as to what documentation and registration requirements they should be seeking on the importation of certain products.
Although it appears these directions were followed and that the Applicant did not have the requested documentation, this does not mean the imported yams were pests, were or could be infested or constituted or could constitute biological obstacles to the control of a pest.
Without any evidence to link the yams to the requirements of this section, and notwithstanding the yams may not have been properly declared at the time of importation, the Respondent has not met its onus of proof in establishing a violation was committed.
This finding is consistent with a line of earlier decisions of this Tribunal, including RTA #60093, RTA #60106, RTA #60165 and RTA #60186.
Dated at Ottawa, this 5th day of February, 2009.
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Thomas S. Barton, Q.C., Chairman