Early summer storms

Early summer storms

Tuesday, January 14, 2014

A draconian administrative monetary penalty system

Last December, the Canadian Agricultural Review Tribunal (CART) set aside a Notice of Violation served by the CFIA as a nullity.  The party charged was accused of having possessed or disposed of an animal or thing known to be imported illegally, contrary to Section 15 of the Health of Animals Act; she had imported a horse from the US.  Under the Administrative Monetary Penalty (AMP) Regulations, the violation alleged is classed as "very serious" and comes with a $10,000 penalty.

In making a decision in the case, CART member Bruce La Rochelle did not have to consider the evidence of either party because he found that the proceedings were illegitimate from the beginning (ab initio).  He wrote, "The issue to be addressed is whether the offence under subsection 15(1) of the HA Act may be contemporaneously framed as a violation of absolute liability, given that knowledge is an essential component of the prohibited act."

In an offence of absolute liability, once the prosecution has proven the offending act beyond a reasonable doubt, there is liability.  There is no defence of due diligence available.  There is no knowledge or intent requirement.  Violations that are the subject of a Notice of Violation and the AMPs are supposed to be absolute liability offences.

However, Section 15 provides:

(1) No person shall possess or dispose of an animal or thing that the person knows was imported in contravention of this Act or the regulations.
(2) In any prosecution for an offence under subsection (1), an accused who is found to have been in possession of an animal or thing that was imported in contravention of this Act or the regulations shall be considered, in the absence of evidence to the contrary, to have known that the thing was so imported.

Knowledge on the part of the offending party is an explicit part of the offence, and yet CFIA issued a Notice of Violation where the issue of knowledge is not supposed to be a defence.  Member La Rochelle asked himself, "How can it be considered fair to [the accused] when the violation she is alleged to have committed involves knowledge as an essential component, yet she is legislatively prohibited from raising lack of knowledge as a defence?"

As set out in the Agriculture and Agri-Foods Administrative Monetary Penalties Act at Section 18, there is no defence available by reason that the accused "exercised due diligence to prevent the violation" or that he or she "reasonably and honestly believed in the existence of facts that, if true, would exonerate the person."

Member La Rochelle concluded that a contravention of Section 15 of the HA Act "cannot be legally constituted as a violation subject to an admininstrative monetary penalty or warning".  Therefore, the Notice of Violation in this case is a nullity.

Read the decision at: Maria K. Stanford v. Canada (CFIA).