We are no strangers to helping individuals who find themselves subject to a Canada Border Services Agency (“CBSA”) seizure and all the consequences that come with that – including NEXUS seizures and revocation. But when it comes to bringing plant or animals (or their derivatives – e.g., food) into Canada, travellers can inadvertently commit a violation which is very punitive and difficult to defend.
Specifically, the Agriculture and Agri-Food Administrative Monetary Penalties Act (“AAAMPA”) imposes violations (“AAAMPs”) which leave no room for reasonableness or diligence. Even with the hurdles involved, however, appealing an AAAMP might be worthwhile (and successful) – particularly given that it can lead to continual secondary screening and a loss of NEXUS eligibility!
The AAAMPA
The AAAMPA imposes a set of administrative monetary penalties that apply when anyone violates a Canadian “agri-food Act” or its regulations (e.g., the Health of Animals Act, Plant Protection Act (“PPA”), and Safe Food for Canadians Act). This often – but by no means exclusively – can lead to problems when importing food and other regulated goods.
Unlike Customs Act violations – where you must pay before you are allowed to appeal – paying an AAAMP means that you are deemed to have committed the violation, and lose any right to review. The process is all the more (for lack of a better term) predatory because there are discounts for early payment, encouraging travellers to rush into what could ultimately be a very bad decision! (think: NEXUS eligibility)
Absolute Liability!
What makes AAAMPs special is that they are a relatively rare kind of violation. While they are not criminal in nature, they are so-called “absolute liability” offences. (This further makes AAAMPs different from Customs Act violations, which are usually “strict liability” offences.)
Limited Appeal Rights
While there are many more reasons why the Federal Court of Appeal (“FCA”) once referred to AAAMPs as “draconian”, one of the most critical is that once you are issued an AAAMP you have very little recourse. As mentioned, there is often an incentive to pay the penalty quickly to get a discount, which will close off any right of appeal.
It is easy to see how ordinary travellers can feel browbeaten into just paying the fine and moving on rather than seeking help – even if they did nothing wrong!
What Does this Mean for Me?
While you might expect problems at the border when bringing cash, something which might seem innocent – like bringing an apple or ham into Canada – can be even more serious, because it is extremely difficult to defend (by design)!
While difficult to defend, we have had success in restoring Nexus cards that have been confiscated because of these types of inadvertent offenses. The appeals process, however, is not for the faint of heart, and does require time and financial resources. However, when compared to the expected referral to secondary screening for the next 5 to 7 years, committing the financial resources to this sort of appeal can make sense!
Do you require assistance in this area? If so, please click here.