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).

Classic tale of winding up in trouble for good deed

The Canada Agricultural Review Tribunal has upheld a notice of violation issued by CFIA in "a classic tale of one person doing a good deed in helping a neighbour and then winding up in trouble for his good deed."  Joseph Nalli transported, for no fee, seven sheep to a stockyard to help his neighbour, who was suffering from health concerns.  The neighbour had not tagged the sheep prior to their departure and, once at the stockyard, Nalli immediately told stockyard staff that the sheep were untagged. 

The stockyard staff would not accept the sheep until they were tagged.  After requesting and receiving instruction from a CFIA inspector on how to apply the tags, Nalli went into his trailer and tagged seven sheep with approved tags.  The CFIA inspector recorded the tag numbers and later, when tracing to whom the approved tags had been issued, found they were registered to Nalli and not to his neighbour who owned the sheep.

In its decision on the review of the notice of violation, the Tribunal accepted that Nalli was acting in good faith without fee to help a neighbour and that he was undoubtedly apologetic for using his own tags on his neighbours sheep.  The Tribunal also noted that, while it is regrettable that Nalli’s efforts to help a neighbour resulted in his committing a regulatory violation, the Tribunal is only permitted, under its enabling statutes, to assess the validity of the notice of violations issued by the agencies it oversees.

Read the decision at: Nalli v. Canada (CFIA). 

Quebec company found to have transported a "compromised pig" in violation of Health of Animals Regulation

The Canadian Food Inspection Agency (CFIA), alleged that Trans-Porcs B.M. inc. (Trans-Porcs), on March 12, 2008, in Yamachiche, Quebec, transported a compromised pig that could not be transported without undue suffering during the expected journey, contrary to paragraph 138(2)(a) of the Health of Animals Regulations.  Trans-Porcs challened the notice of violation that was issued by the CFIA before the Canadian Agricultural Review Tribunal at a hearing in Drummondville, Quebec.  On review of the case, Dr. Donald Buckingham, Chairman of the Tribunal, found that the CFIA had proven all necessary elements of the violation on a balance of probabilities.

The following evidence was not contested at the hearing:

•On March 12, 2008, Trans-Porcs loaded 223 pigs, including a compromised pig, transported the pigs for more than one hour, and unloaded them all at the Atrahan Transformation inc. abattoir at or about 1:30 p.m.

•The compromised pig was lame, bore the owner's tattoo (No. 12066), was placed in the holding pen after unloading and was given a holding tattoo (No. S-14-1). The pig was examined ante mortem. The pig was euthanized, and a post mortem examination was conducted on the carcass.

The contested evidence in this case was in answer to the following question: "What was the condition of the compromised pig before transportation, during transportation and upon arrival at the abattoir on March 12, 2008?".

For there to be a violation of paragraph 138(2)(a) of the Health of Animals Regulations, the CFIA must establish the following elements (from an earlier case called Doyon):

1. that the animal in question was loaded (or was caused to be loaded) or transported (or caused to be transported);

2. that the animal in question was loaded onto or transported on a railway car, motor vehicle, aircraft or vessel;

3. that the cargo loaded or transported was an animal;

4. that the animal could not be transported without undue suffering;

5. that the animal suffered unduly during the expected journey ("voyage prévu" in French);

6. that the animal could not be transported without undue suffering by reason of infirmity, illness, injury, fatigue or any other cause; and

7. that there was a causal link between the transportation, the undue suffering and the animal's infirmity, illness, injury or fatigue, or any other cause.

In finding that a violation had been committed, Dr. Buckingham's ruled:

In this case, the pig was not transported without undue suffering. Upon the pig's arrival at the abattoir, the animal was observed to have grade 4 lameness. As it is unlikely that the pig had already been suffering from grade 4 lameness on the farm of origin (given that it had walked up the truck ramp), that deterioration resulted from transportation to the abattoir. If the pig had already been suffering from significant lameness on the farm of origin, according to the Court's reasoning in Cèdres, the Tribunal finds that it was very unreasonable to have transported the pig, since the industry prohibits producers and transporters from transporting a pig in such a condition. It is assumed that transporting an animal in such a condition will undoubtedly cause undue suffering. However, if the deterioration in the pig's condition occurred during transportation, the Court's reasoning in Doyon would apply, and the Tribunal is satisfied that the Agency has proven elements 4, 5, 6 and 7, as required in Doyon, above.

The violation resulted in a fine of $2,200 to Trans-Porcs, but Dr. Buckingham did note at the end of his decision that the violation is not a criminal offence:

However, the Tribunal wishes to inform Trans-Porcs that this violation is not a criminal offence. After five years, Trans-Porcs will be entitled to apply to the Minister to have the violation removed from its record, in accordance with section 23 of the Agriculture and Agri-Food Administrative Monetary Penalties Act:

23. (1) Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from

(a) where the notice of violation contained a warning, the date the notice was served, or

(b) in any other case, the payment of any debt referred to in subsection 15(1),

unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.

Read the decision at: Trans-Porcs B.M. v. Canada (CFIA).