RTA no 60360
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 of section 39 of the Plant Protection Regulations, and requested by the Applicant pursuant to subsection 13 (2) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Chaouki Dakdouki, Applicant
- and -
Canada Border Services Agency, Respondent
MEMBER H. LAMED
Decision
[1] Following an oral hearing and a review of the Minister's decision dated October 2, 2008, of all the submissions of the parties and of the information relevant 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 to the Respondent within 30 days after the day on which this decision is served.
REASONS
Notice of Violation
[2] Pursuant to subsection 15(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, the Applicant requested an oral hearing to review the Minster's decision.
[3] The hearing was held in Ottawa on September 18, 2009.
[4] The Applicant represented himself.
[5] The Respondent was represented by Rosemary Copeland-Jones.
[6] Notice of Violation # YOW-07-0084 dated December 13, 2007, alleges that at about 19:00 on December 13, 2007, in Ottawa in the province of Ontario, the Applicant committed a violation of section 39 of the Plant Protection Regulations, namely: "Défaut de déclarer des marrons".
[7] Section 39 of the Plant Protection Regulations reads:
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).
[8] As part of a review of the Minister's decision, the Tribunal may vary or set aside the decision if there has been an error in the exercise of the Minister's jurisdiction, or if there has been an error in law. Below are some of the reasons for the Tribunal to vary or set aside the Minister's decision:
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.
[9] Consequently, the Tribunal must determine if the decision is reasonable in the circumstances and not whether it is the correct decision, even if the decision is not necessarily the decision that the Tribunal would have made.
[10] The evidence reviewed by the Minister shows that Mr. Dakdouki arrived in Ottawa from Portugal on Air Canada flight 889 on December 13, 2007. He had answered "No" to all questions on the Customs Declaration Card E311, including the question regarding "Food (fruits, vegetables, meat, eggs, dairy products), animals, birds, insects, plants, plant parts, soil, living organisms, vaccines". Primary Inspection found undeclared food and Mr. Dakdouki was sent to Secondary Inspection.
[11] Secondary Inspection took place in an atmosphere of aggressiveness and exaggerated zeal on the part of the inspector, according to the inspector's own notes, as well as the facts as related by Mr. Dakdouki at the hearing, and which were not contradicted. Tension developed as soon as Mr. Dakdouki asked to be served in French, and the inspection was unduly prolonged with an abusive attitude on the part of the inspector. It is true that Mr. Dakdouki had failed to declare items purchased or received as gifts while abroad, but it is also clear that the inspector had derided him during the inspection.
[12] Secondary Inspection revealed the presence of raw chestnuts in Mr. Dakdouki's luggage, which gave rise to the Notice of Violation.
[13] Mr. Dakdouki claims that it is impossible for a reasonable traveller to determine from card E311 or the directives of the Canada Food Inspection Agency posted on the website, whether the importation of nuts to Canada is prohibited. This may be true, which points to the importance of declaring all foods that are being brought into Canada on Customs Declaration Card E311 and to Primary Inspection so that an inspector can determine which foods might be prohibited.
[14] In his decision, the Minister concludes that the failure to declare the raw chestnuts and their importation without authorization constitutes a violation under the Plant Protection Regulations. The Tribunal finds that it is reasonable to conclude that the raw chestnuts fall into several categories set out on card E311. Even though it could be debated whether a nut is a fruit, a reasonable person would understand that a chestnut would fall within one of the terms "fruits, vegetables, plants", even though the word "nut" is not expressly indicated. Accordingly, there was an obligation to declare the chestnuts at the point of entry. That was not done, and because the inspection revealed the presence of raw chestnuts in Mr. Dakdouki's luggage, without authorization to import them, the Tribunal concludes that the Minister's decision to the effect that the facts of the violation were established, is reasonable.
[15] Consequently, the Tribunal orders the Applicant to pay the penalty in the amount of $200 to the Respondent within 30 days after the day on which this decision is served.
Dated at Montréal, October 25, 2009.
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H. Lamed, Member