RTA #60356
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.
William Auyeung, Applicant
- and -
Canada Border Services Agency, Respondent
MEMBER H. LAMED
Decision
Following a review of the Minister’s decision dated March 11th, 2009, 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 #YVR 002706 dated June 16th, 2007, alleges that the Applicant, on or about 10:35, on the 16th day of June, 2007, at Vancouver International Airport, in the province of British Columbia, 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 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 order to vary or set aside the Minister’s decision, the 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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The Minister’s decision dated March 11th, 2009, found that the facts as presented confirm that the violation was committed. More particularly, the Minister’s decision underlines the fact that the Applicant responded “no” to the question on the E311 Customs Declaration Card asking whether the bearer is bringing any food, including meat into Canada. The decision also relies on the fact that the Applicant presented his list of declared items only once past the point of entry, at which point the violation had been committed.
The Tribunal finds that in light of the facts, the Minister’s decision is reasonable. It is reasonable to conclude that the pork imported by the Applicant falls into the category of “meat”as it appears on the E311 Declaration Card. Although the pork in question may have been dried and shredded, this does not change its essential characteristic as meat. The Cambridge English Dictionary online: (http://dictionary.cambridge.org/define.asp?key=61577&dict=CALD) defines pork as “meat from a pig, eaten as food”. It is therefore also reasonable for the Minister to have concluded that the pork constituted an animal by-product pursuant to s. 40 of the Health of Animals Regulations, and that the importation of the product into Canada without declaring it, and without the appropriate certification, violated s. 40 of the Regulations.
The Tribunal has carefully reviewed all of the Applicant’s written submissions. The Applicant states variously that he thought the obligation to declare on the E311 Customs Declaration Card concerned a commercial agricultural product importer, that it related to fresh or raw meat only, that it related to products for resale, that he believed the product he was carrying was not meat but snack food, and that he did not intend to commit the violation.
The Tribunal has no reason to doubt the Applicant, but unfortunately neither his lack of
intention, nor his erroneous interpretation or lack of knowledge of the Regulations can constitute defences to a violation by reason of subsection 18(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, which reads 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) reasonable and honestly believed in the existence of facts, that, if true, would exonerate the person.
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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 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.
The Tribunal therefore 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.
Dated at Montreal, this 19th day of June, 2009.
_________________________________ H. Lamed, Member