Canada: Agricultural Law NetLetter: Friday, February 21, 2014 - Issue 294

** HIGHLIGHTS **

  • The Federal Court of Appeal has clarified the obligations of persons importing animal by-products into Canada under the Health of Animals Regulations. All persons are required to make a complete declaration of all animal by-products and must fully disclose each type of animal products being imported, to the Canadian Border Services Agency customs officer in order that the customs officer might determine whether the by-products are eligible for import. If goods not eligible for import are disclosed, the goods will be forfeited at this point and no violation under the Regulations will have occurred, as the goods have not yet been "imported". If undeclared ineligible by-products are later disclosed as a result of a secondary inspection, the individual may be in violation and subject to a penalty under the Agriculture and Agri-Food Administrative Monetary Penalties Act and Regulations. The Court of Appeal granted an application for judicial review from a decision of the Canada Agricultural Review Tribunal which held that Canada Border Services Agency must provide individuals with a "reasonable opportunity" to justify the importation of animal by-products. The only issue is whether on the facts of the case, the items were declared and made available for inspection before importation. (Savoie-Forgeot v. Canada (Border Services Agency), CALN/2014-008, [2014] F.C.J. No. 110, Federal Court of Appeal)
  • A Justice of the Supreme Court of Nova Scotia has considered whether a reservation for the "purpose of removing hay and other crops" in a 1960 Deed transferring an acreage from a farmer to a third party was valid and enforceable by the heirs of the farmer. The current owners of the acreage wanted to construct a new home on the land, together with outbuildings, a driveway and other improvements. The Court concluded that the reservation was a valid and effectual profit à prendre under Nova Scotia law which remained valid and enforceable notwithstanding the passage of time, but that the reservation had to be interpreted reasonably, having regard to the rights of the current owners to improve the home and live on the land, and the right of the current holder of the profit à prendre to take hay from the land. (Chisholm v. Snyder, CALN/2014-009, [2014] N.S.J. No. 43, Nova Scotia Supreme Court)

** NEW CASE LAW **

Savoie-Forgeot v. Canada (Border Services Agency); CALN/2014-008, Full text: [2014] F.C.J. No. 110; 2014 FCA 26, Federal Court of Appeal, Pelletire, Gauthier and Trudel JJ.A., January 31, 2014.

Importation of Animal By-Products into Canada -- Violation of Import Prohibitions under the Health of Animals Act and Regulations.

The Attorney General of Canada ("the Federal Government") brought an application for judicial review of a decision rendered by the Canada Agricultural Review Tribunal (the "Tribunal") on March 7, 2013.

The Tribunal had held that Rita Savoie-Forgeot did not violate s. 40 of the Health of Animals Regulations, C.R.C., c. 296 (the "Regulations") which prohibits the importation of animal by-products into Canada, except in accordance with the Regulations.

Section 40 provides:

"No person shall import into Canada an animal by-product, manure or a thing containing an animal by-product or manure except in accordance with this Part."

Ms. Savoie-Forgeot was a flight attendant. On November 13, 2011, she travelled from France to Canada. On arrival she completed a Canada Border Services Agency Declaration Card which marked "yes" next to the statement:

"I am/we are bringing into Canada: Meat/meat products; dairy products; fruits; vegetables; seeds; nuts; plants and animals or their parts/products; cut flowers; soil; wood/wood products; birds; insects"

Upon presenting her Declaration Card at Customs, the Customs Officer asked her what kind of food she was carrying. According to the Customs Officer, she replied "only cheese".

Ms. Savoie-Forgeot testified that she had declared cheese, salad, some canned foods and bread, and that she presented her receipt to the Officer for these items.

The Customs Officer modified the Declaration Card to indicate that Ms. Savoie-Forgeot was not carrying any goods that required a Customs examination.

Upon a secondary inspection, the second Officer asked whether she had anything to declare. Ms. Savoie-Forgeot maintained that she described the same items as she did at the primary inspection; however this Customs Officer also claimed that she only declared cheese.

The second Customs Officer inspected the contents of her bags and found two cans of beef which he treated as undeclared in light of the Customs Officers' version of the events.

The importation of canned beef into Canada is prohibited.

Consequently, Ms. Savoie-Forgeot was found to have violated s. 7 of the Agricultural Agri-Food Administrative Monetary Penalties Act, S.C. 1995, c. 40 (the "Penalties Act") and s. 2 of the Agriculture and Agri-Food Administrative Monetary Penalties Regulations, SOR/2000-187 (the "Penalties Regulations") and was served with a notice of violation and a fine of $800.00.

Ms. Savoie-Forgeot applied to the Tribunal to review the facts of the violation pursuant to the Penalties Act.

The Tribunal found that Ms. Savoie-Forgeot did not commit the alleged violation and was not liable to pay the fine.

The Tribunal held that in order to prove a violation under s. 40 of the Regulations, the Canadian Border Services Agency must prove, on a balance of probabilities that:

"i. Forgeot is the person who committed the violation;

ii. Forgeot brought an animal by-product, in this case two cans containing meat, into Canada; and

iii. If Forgeot did import meat products into Canada, that Agency officials provided a reasonable opportunity for Forgeot to justify the importation in accordance with Part IV of the Health of Animals Regulations."

The Tribunal held that s. 40(1) and 40.1(1) of the Regulations allow alleged violators to defend themselves by producing a certificate, document or permit justifying the meat's importation, or declaring the meat they are carrying and allowing the inspector to determine if they may be imported into Canada.

Applying this test, the Tribunal found that the Customs Officers did not give Ms. Savoie-Forgeot a "reasonable opportunity to justify the importation" and that the Agency had an obligation to question Ms. Savoie-Forgeot further and more carefully with regard to what she was bringing into Canada.

Section 40.1(1) of the Regulations provide:

"Despite section 41, a person may import into Canada an animal by-product or a thing containing an animal by-product, other than one described in section 45, 46, 47, 47.1, 49, 50, 51, 51.2 or 53, if an inspector has reasonable grounds to believe that the importation of the by-product or thing, by its nature, end use or the manner in which it has been processed, would not, or would not be likely to, result in the introduction into Canada of any reportable disease, any disease referred to in Schedule VII and any serious epizootic disease to which the species from which the by-product was derived is susceptible and that can be transmitted by the by-product, and the by-product or thing is not intended for use as animal food or as an ingredient in animal food."

Decision: Trudel, J.A., for the Court of Appeal, allowed the Federal Government's application for judicial review, set aside the Tribunal's decision, and referred the matter back to the Tribunal for determination on the basis of the test set out in the Court's decision [at para. 27].

Trudel, J.A. observed that the case required the Court of Appeal to clarify the proper legal test for an individual that is alleged to have violated s. 40 of the Regulations under the Health of Animals Act.

Trudel, J.A. observed [at para. 14 to 16]:

"[14] The purpose of the health of Animals Act, S.C. 1990 c. 21 and its Regulations is to protect against the introduction of foreign animal diseases into Canada by controlling and restricting the importation of animal products and by-products from other countries (Canada Border Services Agency v. Castillo, 2013 FCA 271 (CanLII), 2013 FCA 271 at paragraph 12 [Castillo]). To this end, section 40 of the Regulations prohibits the importation of animal by-products into Canada. This prohibition, however, is not absolute. The importation of animal by-products may be permitted, for instance, where an individual produces a certificate attesting to the products' country of origin or safety (subsection 41(1) of the Regulations) or allows for their products to be inspected and the items are found not to pose a risk of spreading disease (subsection 41.1(1) of the Regulations). The Health of Animals Act and its regulations defines "animal by-product" as including, inter alia, anything containing the flesh of a bird or mammal, with some specified exceptions (Health of Animals Act, subsection 2(1); Regulations, section 2).

[15] To assist with the enforcement of the Health of Animals Act and its Regulations, Parliament also enacted the Penalties Act which establishes an administrative penalty scheme and which provides the Minister of Agriculture and Agri-Food with the power to create regulations that enable this penalty scheme to be applied where individuals have contravened the Health of Animals Act (Castillo at paragraph 15; Penalties Act, sections 2, 4). Section 2 of the Penalties Regulations states that where an individual contravenes a provision of the Health of Animals Act or its Regulations this constitutes a violation subject to the Penalties Act, while section 7 of the Penalties Act states than an individual who commits such a violation is liable to receive a warning or a penalty. Where an individual contravenes section 40 of the Regulations, this constitutes a serious violation under the Penalties Regulations, subject to an $800 fine (Penalties Regulations, Schedule 1, paragraph 5(1) (b)).

[16] Where the Tribunal is called upon to review the facts of a violation, the Minister must prove "on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice" (Penalties Act, section 19). In the case at hand, the CBSA thus needed to prove that Ms. Savoie-Forgeot "imported" into Canada an animal by-product that was not subject to one of the exceptions set out in Part IV of the Regulations."

Trudel, J.A. also observed that although the term "import" is not defined in the Health of Animals Act or Regulations, a contextual reading of s. 40 of the Regulations suggests that the process of importing animal by-products begins when the item is brought onto Canadian soil, but that the process is not complete until the declaration is presented to a Customs Officer. If, on declaration, the Customs Officer finds that the animal by-product imposes a risk of spreading disease or is otherwise ineligible for inspection, the inspector or officer will require that it be forfeited at this point, and these items will not be permitted further entry into Canada [at para. 17]. If declared, no violation of s. 40 of the Regulations will have occurred as the process of importing animal by-products into Canada has not been completed [at para. 18].

Individuals who fail to declare animal by-products they are carrying will have contravened s. 40 of the Regulations, if the items are later located, forfeited or removed on further inspection [at para. 19].

Trudel, J.A. [at para. 21] observed that the interpretation of s. 40 of the Regulations under the Health of Animals Act does not necessarily apply to other types of importation, such as illegal drugs, which are completely prohibited.

Trudel, J.A. also observed that this interpretation is consistent with the Canadian Border Service Agency's stated practice, which is to simply confiscate animal by-products which are not eligible for importation, if they are declared, and to not, at that point, issue a notice of violation.

Trudel, J.A. distinguished the Court's prior decision in Canadian Food Inspection Agency v. Westphal-Larsen, 2003 FCA 383 (CanLII), 2003 FCA 383 (Westphal-Larsen) on the grounds that the accused in that case had, at the first instance, failed to make goods available for inspection.

Trudel, J.A. concluded, at para. 25, with respect to the Westphal-Larsen case:

"[25] It should be noted that disclosure of goods and making them available for inspection should occur at the first contact with customs officials and not later, when a search is imminent or under way. A traveller is not allowed to gamble that he or she will not be directed to the secondary search area, and to declare the goods only if it appears that they will be discovered as a result of a search. Mr. Westphal-Larsen gambled and lost."

Trudel, J.A. concluded, at para. 26:

"[26] I find therefore that the Tribunal erred in its interpretation of section 40 of the Regulations. This provision does not impose an obligation on the CBSA to demonstrate that its officers gave Ms. Savoie-Forgeot a "reasonable opportunity [.] to justify the importation" (Reasons at paragraph 25). The duty falls on the individual transporting animal by-products into Canada to declare fully what they are bringing into the country. The question the Tribunal ought to have asked is simply whether, on the facts of this case, Ms. Savoie-Forgeot declared the items she was carrying and made them available for inspection. If so, she would not have violated section 40 of the Regulations, as she would have allowed for the items to be inspected and confiscated if they posed a risk of spreading disease. If she had not declared these items, however, she would have violated section 40, as she was found to have prohibited items in her possession which she did not voluntarily make available for inspection."

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Originally published by LexisNexis.

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