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Thursday, September 16, 2010

Agricultural Review Tribunal clears Saskatchewan farmer of CFIA cattle tagging infraction

In May, 2009, Ken Habermehl was moving cattle from his farm to the Elbow Community Pasture about 67 kilometres away.  Three trucks left the farm.  On arrival, it was discovered that seven cattle were missing the identification tags required by CFIA and federal regulations.  A CFIA inspector was on hand.  Habermehl immediately left the pasture and drove about 2 hours to obtain new tags.  The cattle were re-tagged as soon as was humanly possible in the circumstances.  No harm, no foul.  However, under the current regulations, the missing tags were a problem for CFIA and Habermehl was cited for a violation of the Health of Animal Regulations (moving cattle without a tag) and a $500 fine.

Habermehl decided to fight the charge and, in a decision delivered earlier this month, he was exonerated by the Canadian Agricultural Review Tribunal.  In his decision, Dr. Don Buckingham made the following findings of fact central to the validity of the charge:
The evidence in this case is that the system that the Regulations rely upon, or perhaps more accurately the equipment and technology to support that system, does not establish a permanent and infallible system to track the movements of all bison, cattle and sheep in Canada. The Tribunal accepts the evidence of Habermehl that he tagged all of his cattle in 2006 with RFID (CCIA approved) identification tags and that again on the weekend of May 22-24, 2009 he did the same, even though some cattle tagged in 2006 had to be retagged because they had lost their 2006 tag. If there was human error in the application of the RFID tags during the weekend of May 22-24, 2009, there was no evidence of it presented at the hearing and it is not unimportant to note that Habermehl was a trained professional practitioner of veterinary medicine as well as being an experienced cattleman. On transport day, Habermehl again verified that all cows and calves were ready to leave his farm on May 25-26, 2009 for community pastures. The Agency and its officials were never at the Habermehl farm and there is no evidence which contradicts the testimony of Habermehl and his son on this point.
Given these facts, Dr. Buckingham could not find that the violation (moving cattle without the proper tag) had been proven on a balance of probabilities:
What is lacking from an evidentiary perspective by the Agency in this case is proof that the seven cattle did not have RFID tags when they left the Habermehl farm. Over 200 cattle had been prepared, verified and shipped from the farm between May 22 and May 26. They had all been tagged with RFID tags and then shipped in several trailers to several different pastures. Tags and buttons were found in the chute and in the trailers, but to which cattle did they belong? Agency officials failed to look for any evidence of lost tags in the trailers, or of ripped ears (or lack thereof) in the retagged cattle that would have provided the Tribunal with perhaps enough evidence to determine whether the cattle lost their tags on the Habermehl farm or on their way to, or in the holding pens of, the Elbow Community Pasture.
Given the lack of sufficient evidence on the matter, it would be "mere conjecture ... speculation, hunches, impressions or hearsay" to conclude that, on the balance of probabilities, any of the seven cows were without tags on the morning of May 26, before they were loaded into transport trailers. These tags are, after all, supposed to be permanent identification tags. The fact that any or all of these permanent tags would be lost within less than 48 hours is not proved from the evidence presented to the Tribunal.
In his decision, Dr. Buckingham also noted the problems with the imperfect nature of the tagging technology, which puts farmers in a difficult position given the flexibility of the tagging regulations.  There is no defence of due diligence (i.e. that you did everything reasonably possible to avoid the violation) available to farmers and very few instances in which a lost tag will not result in an automatic violation and fine.  As Dr. Buckingham notes, this is a "not insusbtantial problem" of RFID identification tags:
Evidence from Habermehl and Rutledge indicated that there is a problem with the current tagging system of RFID (CCIA approved) identification tags. Whether the Tribunal accepts the opinion evidence of witness Rutledge, or the actual case of the seven cows in this case, a not insubstantial problem of RFID (CCIA approved) identification tag failure exposes players in the beef, bison and sheep industry to liability for violations of Part XV of the Health of Animals Regulations.
At the end of the day, Habermehl was exonerated and the $500 fine cancelled.  However, this case highlights the extreme difficulty the tagging regulations create for farmers.  Habermehl still had to prepare for and participate in a one-day hearing in Saskatoon over a $500 fine.  CFIA also participated in the hearing represented by counsel - over a $500 fine.  The system is set up in a way that almost necessitates that farmers just eat the fine.  Almost no defences are available if a tag is found to be missing, and there is even a discount on the fine offered if it is paid immediately.  This might be acceptable if the tags themselves were foolproof and sure to stay attached to the animals indefinitely.  But that isn't the case.  Something needs to change.  Either the tags need to be perfected, or the regulations need to be made fairer to farmers by being made more flexible.

Read the full decision at: Habermehl v. CFIA.