RTA # 60345
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 40 of the Health of Animals 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.
Li Ge Zhou, 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 committed the violation and is liable for payment of the penalty in the amount of $200.00 to the Respondent within 30 days after the day on which this decision is served.
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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 Toronto on February 11, 2009.
The Applicant made his own submissions.
The Respondent was represented by Ms. Rosemary Copeland-Jones.
At the outset of the hearing, I reviewed the following documentation received by the Tribunal:
• Notice of Violation dated July 21st, 2008.
• Letter dated July 23rd, 2008, from the Applicant requesting a review.
• Letter dated August 25th, 2008, from the Respondent enclosing its case report.
After both parties indicated they had copies of these documents, I entered them on the record as evidence for the purpose of the hearing.
The Notice of Violation #YYZ-002867 dated July 21, 2008, alleges that the Applicant, on or about 2:00 a.m., on the 21st day of July, 2008, at LBPIA-T3, in the province of Ontario, committed a violation, namely: “Import an animal by-product to wit: meat, without meeting the prescribed requirements ” contrary to provision 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.
In general, Part IV of the Health of Animals Regulations permits importation into Canada from the United States of most animal by-products, if the country of origin is the United States.
Importation into Canada from other countries is only permitted (except for certain specified products such as gluestock and bone meal, for which there are other specific requirements) if the importer meets one of the following four prescribed requirements of Part IV of the Health of Animals Regulations, namely:
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1. Under subsection 41(2) if the country of origin has a disease-free designation and the importer produces a certificate signed by an official of the government of the country of origin that shows that the country of origin is the designated country referred to in the disease-free designation.
2. The importer meets the requirements of subsection 52(1) which provides as follows:
52.(1) Notwithstanding anything in this Part, a person may import an animal by-product if the person produces a document that shows the details of the treatment of the animal by-product and the inspector is satisfied, based on the source of the document, the information contained in the document and any other relevant information available to the inspector and, where necessary, on an inspection of the animal by-product, that the importation of the animal by-product into Canada would not, or would not be likely to, result in the introduction into Canada, or the spread within Canada, of a vector, disease or toxic substance.
3. The importer has acquired an import permit pursuant to subsection 52(2).
4. The importer has presented the animal by-product for inspection and a satisfactory inspection has been carried out under paragraph 41.1(1)(a) which states as follows:
41.1(1) Notwithstanding section 41, a person may import into Canada an animal by-product or a thing containing an animal by-product, other than a thing described in section 45, 46, 47, 47.1, 49, 50, 51, 51.2 or 53, if
(a) an inspector is satisfied on reasonable grounds that the animal by-product is processed in a manner which would prevent the introduction into Canada of any reportable disease or any other serious epizootic disease to which the species that produced the animal by-product is susceptible and which can be transmitted by the animal by-product, provided that the animal by-product or the thing containing the animal by-product is not intended for use as animal food or as an ingredient in animal food.
The undisputed facts are that on July 21st, 2008, the Applicant imported a small quantity of meat sausage from China without any documentation that would meet the requirements of section 40.
The meat was inspected by an officer of the Respondent who was unable to satisfy himself that it was processed in a way that would prevent disease from coming into Canada.
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The Applicant did not deny importing the meat contrary to the Regulations and I am satisfied from his evidence that he simply forgot he had it in his luggage.
However, the Applicant’s lack of intention is not a defence to a violation by reason of subsection 18(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act which states as follows:
18.(1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
The Tribunal wishes to point out to the Applicant that this is not a criminal or a federal offence but is a monetary violation, and that he has the right to apply after 5 years to have the notation of this violation removed from the Minister’s records in accordance with subsection 23(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, which states as follows:
23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from
a) where the notice of violation contained a warning, the date the notice was served, or
b) in any other case, the payment of any debt referred to in subsection 15(1),
unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.
This violation will also have no impact on the Applicant’s subsequent travels.
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The Applicant believed the violation to be unfair. I pointed out at the hearing that the nature of the violation and the penalty imposed for it were matters that were set by the Agriculture and Agri-Food Administrative Monetary Penalties Regulations over which I have no ability to change.
Dated at Ottawa this 19th day of February, 2009.
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Thomas S. Barton, Q.C., Chairman