RTA #60358
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 34(2)(a) 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.
Enqiu Tang, Applicant
- and -
Canada Border Services Agency, Respondent
MEMBER H. LAMED
Decision
[1] 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.
[2] The Applicant requested a review of the facts before this Tribunal pursuant to subsection 15(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations.
[3] An oral hearing was held in Ottawa on September 18, 2009.
[4] The Applicant was present at the hearing and represented himself.
[5] The Respondent was represented by Ms. Rosemary Copeland-Jones.
[6] The Notice of Violation #YOW-09-0072 alleges that the Applicant, on the 29th day of March, 2009, at or about 00:30 a.m., at Ottawa, Ontario, committed a violation, namely: "[did] import unfertilized eggs from a country that is not designated free from Newcastle disease and avian influenza", contrary to provision 34(2)(a) of the Health of Animals Regulations, C.R.C., c. 296.
[7] Paragraph 34(2)(a) of the Health of Animals Regulations reads as follows:
.
(2) Subject to subsection (3), no person shall import unfertilized bird eggs or egg products into Canada from a country other than the United States or from a part of such a country, unless
(a) the country of origin or part of such a country is designated as free of avian pneumoencephalitis (Newcastle disease) and fowl plague pursuant to section 7;
.
The Evidence
[8] Mr. Tang arrived in Canada from China via the United States on Flight UA 7570 on March 29, 2009. He acknowledges having filled out and signed the E311 Customs Declaration Card filed at Tab 2 of the Respondent's Report.
[9] On the E311 Customs Declaration Card, Mr. Tang checked off the "no" box in answer to the question whether he was bringing "Meat/meat products; dairy products; fruits; vegetables; seeds; nuts; plants and animals or their parts/products; cut flowers; soil; wood/wood products; birds; insects."
[10] The Respondent refers to the following documents as its proof.
[11] Tab 4 of the Respondent's Report contains a photocopy of (CFIA 1275) Seizure Receipt #0008714, dated March 29, 2009, which identifies the Examining Officer as #19129. This receipt states that the country of origin of the intercepted item is China and under the heading "Other Relevant Information Excluding Traveller Information" appears the word "Eggs".
[12] The Inspector's Non Compliance Report for Travellers at Points of Entry, filed at Tab 8 of the Respondent's Report, also dated March 29, 2009, states that unfertilized, hardboiled eggs were found "in luggage". The Non Compliance Report identifies the primary inspector as Jean‑François Boisvert (#17175) and secondary inspector as Anthony Gallant (#19129).
[13] The Case Summary, filed at page 12 of the Respondent's Report, states:
At secondary, inspector #19129 reviewed Mr. Tang's E311 card to determine what Mr. Tang had declared. Following the standard questions regarding the baggage that Mr. Tang had with him, including: was he aware of the contents of his luggage, Mr. Tang replied yes. After searching Mr. Tang's luggage inspector 19129 founds (sic) boiled eggs from China.
[14] Mr. Tang testified that on March 29, 2009, he was returning from China, where he had been visiting a sick relative. He was returning home for the birth of his child. He had a stopover in Chicago O'Hare Airport. During the stopover, his wife telephoned him to say that the child had been born. He testified that he bought the eggs in O'Hare Airport, ate three of them, and put the rest of them in his backpack, which he was carrying with him in the plane, along with a bottle of water. He testified that he intended to give the eggs to his wife immediately upon his return to Canada. Mr. Tang admits that he did not declare the eggs. Mr. Tang testified that the inspector who found them did not ask him where the eggs came from.
Discussion
[15] The Tribunal takes note of the fact that there is no declaration or written signed statement filed by the secondary inspector. The author of the Case Summary is unknown, and it is therefore unclear how much of it is hearsay evidence. The Respondent has not tendered any evidence to show that the secondary inspector even asked Mr. Tang about the origin of the eggs, nor is there any evidence of an answer to that question. Nor did the Respondent choose to call the secondary inspector to give oral evidence which might have provided some greater clarity as to the events of the day. In the absence of such evidence, the Tribunal accepts Mr. Tang's evidence that the secondary inspector never asked him where he bought the eggs. Mr. Tang's statement that he bought the eggs at O'Hare Airport in the U.S. is consistent with his statement that he put the eggs in his backpack, since he did not have access to the rest of his luggage. The statement in the Non Compliance Report that the eggs were "in luggage" does not contradict Mr. Tang's statement, as luggage is a general term denoting any or all receptacles for a passenger's belongings. If the Non Compliance Report had stated "suitcase", that would cast doubt on Mr. Tang's statement. Although his English is halting, the Tribunal found Mr. Tang to be a credible witness, and his statements were consistent with each other. In the absence of any evidence of any effort by the Respondent to ascertain the origin of the eggs, and in the absence of any evidence by the Respondent as to the actual origin of the eggs, the Tribunal accepts Mr. Tang's evidence that he bought the eggs at O'Hare Airport in Chicago.
[16] In his request for a review of the facts, dated April 1, 2009, Mr. Tang admits that he did not declare the eggs, stating that he did not realize he was obliged to. There is no doubt that he failed to declare correctly. However, the Notice of Violation issued against Mr. Tang is for importing a prohibited food, not for failing to declare food which is otherwise permitted. If the eggs originated in the United States, and, as stated above, the Tribunal accepts Mr. Tang's evidence that he bought them in Chicago, they were not prohibited. The introductory paragraph of subsection 34(2) of the Health of Animals Regulations states "Subject to subsection (3), no person shall import unfertilized bird eggs or egg products into Canada from a country other than the United States or from a part of such a country, unless..." (emphasis added). The guide to travellers entitled "I Declare - a guide for residents of Canada returning to Canada" filed at Tab 10 of Respondent's Report gives the same information at page 14:
The following are some examples of the limits that apply to personal importations of food products from the United States:
- 2 dozen eggs
[17] The Tribunal therefore concludes that the Respondent has not made out an essential element of the violation under paragraph 34(2)(a) of the Health of Animals Regulations, namely that the eggs originated from a country other than the United States.
Dated at Ottawa, on this 24th day of October, 2009.
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H. Lamed, Member