RTA no 60359
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE
MONETARY PENALTIES ACT
DECISION:
In the matter of an application for a review of the facts of a violation under Section 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.
Fadumo Hassan Migil, Applicant
AND
Canada Border Services Agency, Respondent
MEMBER H. LAMED
Decision
[1] Following an oral hearing and a review of all written and oral submissions, the Tribunal, by order, determines the Applicant did not commit the violation.
REASONS
[2] The Applicant requested that a hearing be held in accordance with paragraph 15(1) of the Agriculture and Agri-food Administrative Monetary Penalties Regulations.
[3] A hearing was held in Ottawa on September 18, 2009.
[4] The Applicant, Mrs. Fadumo Hassan Migil, was not present at the hearing. She was represented by her spouse, Mr. Didar.
[5] The Respondent was represented by Ms. Rosemary Copeland-Jones.
[6] The representatives of the parties agreed to proceed despite the absence of the Applicant. The Tribunal specified that it would evaluate the evidence presented according to the ordinary rules.
[7] The Notice of Violation no. YOW-08-0121 dated February 5, 2008 alleges that the Applicant, "at or around 6:30 p.m., on February 5, 2008, in Ottawa, in the province of Ontario, committed a violation, that is to say: The above named person, committed a violation, namely: fail to declare wood with bark as perscribed (sic) contrary to sec 39, Plant Protection Regulations" contrary to section 39 of the Plant Protection Regulations.
[8] Section 39 of the Plant Protection Regulations reads as follows:
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).
THE EVIDENCE
The E311 Customs Declaration Card
[9] The E311 Customs Declaration Card is produced at tab 3 of the Respondent's report. The E311 Customs Declaration Card indicates that Mrs. Migil checked "no" in all the sections, including the one concerning "Food (fruits, vegetables." When asked about the E311 Customs Declaration Card, Mr. Didar said that Mrs. Migil does not know how to read or write. He said that he recognized his spouse's sign or initials on the signature line, but that the card must have been completed by a third party. Mr. Didar confirmed that Mrs. Migil entered Canada from London, UK, on Air Canada flight 889 on February 5, 2008.
The Inspection
[10] The "Non-Compliance report for travelers at places of entry" is produced at tab 4 of the Respondent's report. The non-compliance report names Mrs. Annie Rochon (#17129) as the primary inspection agent and Mr. Liban Issa (#16285) as the secondary inspection agent. The Tribunal notes that this report is not signed, and there is no indication as to who might have completed it. The non-compliance report notes the discovery of three wooden sticks used as toothbrushes. In the section labelled "Product hidden in what manner? (Please specify)", "Hidden in second suitcase, wrapped in a plastic bag in between clothing" was written.
[11] In an email dated March 4, 2008, which is produced at tab 2 and addressed to Mrs. Copeland-Jones, Mrs. Annie Rochon confirms having acted as primary inspection agent at the date and time of Mrs. Migil's arrival. She states that she does not specifically remember Mrs. Migil. A statement from Mr. Liban Issa, the secondary inspector, is also produced at tab 2. He declares therein that Mrs. Migil approached the counter and gave him her E311 Customs Declaration Card. Mr. Issa states that the search of Mrs. Migil's first piece of luggage revealed the presence of candies, chocolate and cookies from the UK, and the search of a second piece of luggage revealed the presence of the pieces of wood in question, described by him as "wooden sticks, commonly used as 'toothbrushes' in some parts of Africa and the Middle East. Note that the wood products did in fact originate in East Africa."
[12] In the last paragraph of his statement, produced in tab 2, Mr. Issa claims to have given the Notice of Violation back to Mrs. Migil and asked her to review it. Once she had reviewed it, he says that he explained Mrs. Migil's options regarding the Notice of Violation to her, reduced the penalty and had her sign the form, indicating that she accepted the violation. Since she did not have enough money with her to pay the fee for the violation, he allegedly notified her that she had 15 days to pay the reduced amount.
The Applicant's Evidence
[13] In a letter that was undated, but received by the Tribunal on February 13, 2008, the Applicant presented her point of view concerning the circumstances surrounding the Notice of Violation. Mr. Didar testified that he wrote this letter on behalf of his spouse, according to what she told him. In this letter, the Applicant states:
I was approaching the customs officer and I saw a customs officer who was not from my tribe (Somali) who wanted to take my suitcase...This officer searched my entire suitcase, without finding anything wrong, he asked me for my handbag and emptied out all the contents, he found the dry bark that I had been using for more than a month to remove meat that gets stuck between my teeth that I had while I was in Canada. It was a piece of a branch that I had cut from in front of my house in Ottawa. I tried to convince him and tell him the truth, but it was not possible given the words and phrases that he used, it seemed that these gentlemen were bringing our country's war to Canada.[Translated]
[14] At the hearing, Mr. Didar said that the wood in question came from the tree in front of his house in Ottawa and that he had cut it himself. He also stated that Mr. Issa and his spouse stated that they realized that they came from the same country. He stated that as his spouse was coming out of the arrivals room, she went to help another woman, and it was at this time that Mr. Issa allegedly called for the secondary inspection. The Tribunal explained that these latter two elements constitute hearsay and although it can take them into account, it must nonetheless assign them the appropriate evidentiary weight in its analysis of the evidence.
Analysis
[15] The evidence tends to demonstrate that there was a certain "backdrop" colouring the circumstances surrounding the secondary inspection in the Applicant's case, which could lead a person involved in it to question the integrity and impartiality of the inspection procedure. The Tribunal particularly focused on the following elements: the contradictory testimony concerning where the pieces of wood were found, (suitcase or handbag); the fact that the clandestine aspect ("hidden in a plastic bag between the clothes") described in the non-compliance report is not restated in the subsequent declaration by Inspector Issa; the fact that the inspector maintains with certainty that the wood comes from Eastern Africa, but does not report the Applicant's version concerning the origin of the wood, and the fact that he had her sign the Notice of Violation although the reduced sum was not paid at the point of entry.
[16] The Tribunal can understand how a person in the Applicant's situation could have gotten the impression of having been targeted by the inspector, and even if this was not the case in reality, it is important not to harm the trust in the inspection system at the place of entry.
[17] However, the Tribunal does not consider the irregularities in the inspection procedure serious enough to justify the immediate rejection of the Notice of Violation.
[18] The Tribunal refers to Section 2 of the Plant Protection Act, which states the goal of the regulation of importation of plant products and reads as follows:
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.
[19] The Tribunal already decided in the matter of Dhahira Ibrahim and the Canada Border Services Agency (RTA no. 60248) that the importation of pieces of wood used as toothbrushes from Somalia constituted a violation of Section 39 of the Plant Protection Regulations. In this decision, Chairman Barton stated as follows:
.
The Respondent added that a well known fact, and I am in agreement with her, is that tree bark can carry insects and insect eggs and could thus be infested by exotic, invasive species.
.
[20] What if the wood is of Canadian origin, and makes a roundtrip voyage to England, as the Applicant maintains? The Tribunal agrees that the response is found within the Importation Requirements of the Canadian Food Inspection Agency (an extract of which is produced at tab 9 of the Respondent's report), which indicates under the section "Wood" that when the wood is of Canadian origin and returns to Canada, even from the United Kingdom, regardless of the type of tree:
.
In the case of material of Canadian origin returning to Canada, the return must remain within its original packaging and be protected against the risk of infestation. The shipment must thus.remain separate from all other material.
.
[21] As a result of this requirement, wood of Canadian origin which goes abroad and which is wrapped can be repatriated. In this case, the Respondent's evidence is the fact that he found the pieces of wood wrapped in a plastic bag in the Applicant's baggage. The Applicant states that the pieces of wood were in her handbag but does not deny that they were in a plastic bag. Furthermore, the Respondent did not provide any evidence that the pieces of wood had been removed from the plastic bag abroad. There is nothing in the inspector's report indicating that he allegedly asked the Applicant this question. It might have been clearer concerning these questions if Mr. Issa had been at the hearing to present his evidence. It is far from being complete or clear, but overall, the evidence tends to demonstrate that the pieces of wood had been wrapped in plastic and thus sheltered from the risk of infestation in accordance with the Plant Protection Act. The Tribunal comes to the conclusion that the Respondent did not establish, weighing the probabilities, that the violation had been committed.
Dated at Ottawa this 25th day of October, 2009.
_______________________________
H. Lamed, Member