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).

OMAFRA proposing mandatory livestock disease reporting

The Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) is developing two regulations under the Animal Health Act, 2009 (the Act):

1. Reporting – A proposed Minister’s regulation would address the mandatory reporting of hazards (including animal diseases) by laboratories, as well as certain findings made by veterinarians; and
2. Compensation – A proposed Lieutenant Governor in Council regulation would provide a legal framework for providing financial compensation under the Act.

OMAFRA is asking for feedback on its proposals.  The proposed reporting regulation would designate a number of hazards, such as animal diseases, as immediately notifiable hazards and periodically notifiable hazards, which laboratories would have to report to OMAFRA. The list of specific diseases appears in detail in a discussion paper posted on the OMAFRA website. To promote greater coordination with the Canadian Food Inspection Agency (CFIA), laboratories would have to provide notice to OMAFRA of any animal diseases in terrestrial animals (including amphibians and birds) that are also reportable or immediately notifiable under federal regulations made under the Health of Animals Act (Canada).  However, the CFIA would lead in responding to the most significant of these reports, including where foreign animal diseases are indicated. A number of Ontario-specific hazards have also been proposed for reporting to OMAFRA by laboratories that are not normally priorities for the CFIA, but are still of local concern in the province.

At this time, the proposed reporting regulation would not require individual livestock and poultry producers to report any knowledge or suspicion of a hazard, such as an animal disease, to OMAFRA. The proposed regulation would not affect any existing reporting obligations they may have to the CFIA.

In addition to designating hazards under the Act, the proposed regulation would also set out specific findings that veterinarians would be required to report that are encountered while the veterinarian is engaged in the practice of veterinary medicine. Reporting these findings is designed to capture atypical animal health situations, such as high mortality in a herd or flock, which could indicate the presence of a significant hazard (such as a toxic substance in animal feed or an emerging strain of a disease) at the earliest possible opportunity.

The proposed regulation would also set out reporting requirements, including the information that must be provided by operators of laboratories and veterinarians, as well as the time in which such reports must be made.

In some cases, the Chief Veterinarian for Ontario (CVO) may need to order destruction of an animal or animal-related thing, such as feed, in order to reduce the possible spread of a hazard. In these unusual cases, the Act authorizes the Minister to provide financial compensation for certain losses stemming from the order at his discretion. The proposed compensation regulation would provide clarity, transparency and assurance to stakeholders that a legal framework exists to address, at the Minister’s discretion some or all the direct losses incurred by persons who have complied with orders issued under the Act.

OMAFRA is seeking input on these regulatory proposals.  The proposal has been posted for a 45 day public review and comment period starting March 09, 2012.  Comments can be directed to:

Christy Taglieri
Senior Policy Advisor
Ministry of Agriculture, Food and Rural Affairs
Policy Division
1 Stone Road West
Floor 2 SW
Guelph Ontario
N1G 4Y2
Phone: (519) 826-3832
Fax: (519) 826-3492

Comments can be submitted on-line at: On-line Submission.