RTA #60349
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION
In the matter of an application for a review of the Minister’s decision that the Applicant committed a violation pursuant to provision 40 of the Health of Animals Regulations, and requested by the Applicant pursuant to paragraph 13(2)(b) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Iryna Maystrenko, Applicant
- and -
Canada Border Services Agency, Respondent
CHAIRMAN BARTON
Decision
Following a review of the Minister’s decision dated November 27th, 2008, and all submissions and information relating to the violation, the Tribunal, by order, confirms the Minister’s decision and orders the Applicant to pay 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 did not request an oral hearing.
This is not a review of the facts of the violation but rather a review of the Minister’s decision.
The Notice of Violation #YYZ 002689 dated November 4th, 2007 alleges that the Applicant, on or about 18:15 on the 4th day of November, 2007, at Toronto, 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 Animal Regulations, which states as follows:
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 of most animal by-products, if the country of origin is the United States. If the country of origin is other than the United States, importation into Canada 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:
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.
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3. The importer has acquired an import permit pursuant to subsection 52(2) which states:
52.(2) Notwithstanding anything in this part, a person may import an animal by-product under and in accordance with a permit issued by the Minister under section 160.
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.
In order to vary or set aside the Minister’s decision, the Review Tribunal must find that the Minister committed a jurisdictional error or an error in law. For example, an application for a review may be allowed for the following reasons:
1. Powers are exercised in bad faith.
2. Powers are improperly delegated.
3. Powers are exercised without regard to natural justice or fairness.
4. Powers are exercised for improper purposes.
5. There is no evidence before the Minister to support the decision.
6. A decision is based upon irrelevant considerations.
7. An error is made in the interpretation of related or governing legislation, common law principles generally, or as the principles apply to the facts.
8. A decision is so unreasonable that any reasonable person in the Minister’s position could not have made it.
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Although the written reasons for the Minister’s decision imply that the decision was based on the Applicant’s failure to declare meat on the declaration card, I am satisfied from the record before the Minister that there was ample evidence upon which the Minister could confirm that the violation was committed.
The Applicant submitted that she had no previous experience or knowledge of airport rules, had no previous violations or offences and was unaware that her grandmother had put the salted pork fat in her luggage.
Further, she submitted she had no intention to violate the law.
I do not doubt the veracity of the Applicant’s submissions but unfortunately this lack of intention and the lack of knowledge are not defences 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 Applicant further submitted that the penalty of $200.00 was too high and that gravity value adjustments should be made to reduce the penalty.
Again, the Tribunal is sensitive to these concerns but must point out that the amount of the penalty is fixed by regulation and cannot be changed. Gravity value adjustments can only be made for a serious or a very serious violation committed in the course of business or in order to obtain a financial benefit (where the violation sets out penalties of $2,000.00 and $4,000.00 respectively).
The Tribunal also wishes to point out to the Applicant that this is not a criminal or a federal offence but a monetary violation, and that she 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
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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.
Dated at Ottawa this 11th day of March, 2009.
__________________________________ Thomas S. Barton, Q.C., Chairperson