ATTORNEY GENERAL OF CANADA Applicant v. ELENA KLEVTSOV, 2018 FCA 196

Date: 20181026 Docket: A-136-17 Citation: 2018 FCA 196 CORAM: WEBB J.A. RENNIE J.A. LASKIN J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and ELENA KLEVTSOV Respondent Heard at Toronto, Ontario, on October 3, 2018. Judgment delivered at Ottawa, Ontario, on October 26, 2018. REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: WEBB J.A. LASKIN J.A. Date: 20181026 Docket: A-136-17 Citation: 2018 FCA 196 CORAM: WEBB J.A. RENNIE J.A. LASKIN J.A.

BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and ELENA KLEVTSOV Respondent REASONS FOR JUDGMENT RENNIE J.A. [ 1 ] On October 9, 2015, the Canada Border Services Agency (CBSA) issued a Notice of Violation to the respondent imposing a penalty of $800 for importing fruit into Canada, in this case, ten apples, without declaring them as required under

section 39 of the Plant Protection Regulations , SOR/95-212 (Regulations). The Minister of Public Safety and Emergency Preparedness (Minister) reviewed the facts and upheld the Notice of Violation. [ 2 ] Ms. Klevtsov appealed the Minister’s decision upholding the Notice of Violation to the Canadian Agricultural Review Tribunal (Tribunal) pursuant to

section 12 of the Agriculture and Agri-Food Administrative Monetary Penalties Act (S.C. 1995, c. 40) (AAAMPA). [ 3 ] In reasons reported at 2017 CART 10 ( Klevtsov v. Canada (Minister of Public Safety and Emergency Preparedness) ), the Tribunal allowed Ms. Klevstov’s application. Relying on the respondent’s recounting of events, which included falling down a set of stairs prior to boarding a flight from Moscow to Toronto, together with medical evidence from physicians in Toronto that tended to show that the respondent had suffered a head injury, the Tribunal concluded that the common law defence of automatism was made out on a balance of

probabilities and set aside the Minister’s decision. [4] The Attorney General of Canada applies to this Court to set aside the Tribunal’s decision. [5] A breach of

section 39 of the Regulations is governed by the AAAMPA. Violations of the AAAMPA are absolute liability offences.A violation is established upon proof of the prohibited act, or the actus reus. Mistakes of fact and due diligence are not defences.Common law defences, including necessity, mental disorder and abuse of process however, are available: Canada (Border ServicesAgency) v. Castillo, 2013 FCA 271 at para. 21, 455 N.R. 50; Doyon v. Canada (Attorney General), 2009 FCA 152, 312 D.L.R. (4th) 142.Subsections 18(1) and (2) of the AAAMPA makes this clear: "Certain defences not available " "Exclusion de certains moyens de défense ""18

(1) A person named in a notice of violation does nothave a defence by reason that the person " "(

a) exercised due diligence to prevent the violation; or" "(

b) reasonably and honestly believed in the existenceof facts that, if true, would exonerate the person. " "18 (1)"" Le contrevenant ne peut invoquer en défensele fait qu’il a pris les mesures nécessaires pourempêcher la violation ou qu’il croyait raisonnablementet en toute honnêteté à l’existence de faits qui, avérés,l’exonéreraient. " "Common law principles " "Principes de la common law ""18

(2) Every rule and principle of the common law thatrenders any circumstance a justification or excuse inrelation to a charge for an offence under an agri-foodAct applies in respect of a violation to the extent that itis not inconsistent with this Act. " "18 (2)"" Les règles et principes de la common law quifont d’une circonstance une justification ou une excusedans le cadre d’une poursuite pour infraction à une loiagroalimentaire s’appliquent à l’égard d’une violationsauf dans la mesure où ils sont incompatibles avec laprésente loi.

" [6] As a result, mental disorder, including automatism, is a potential defence. [7] Whether the constituent elements of a defence have been identified by a judge is a question of law, reviewable on a correctnessstandard (Vorobyov v. Canada (Minister of Agriculture and Agri-Food), 2014 FCA 102, at para. 28, 459 N.R. 134). In this case, theTribunal did not address the evidentiary and legal elements necessary to establish the defence of automatism. [8] The defence of automatism was described by the Supreme Court of Canada in R. v.

Stone, (SCC), [1999] 2 S.C.R.290 (Stone), at paragraph 156 as "“a state of impaired consciousness, rather than unconsciousness, in which an individual, thoughcapable of action, has no voluntary control over that action.”" Possible triggers for automatism include sleepwalking, blows to the head,and severe psychological blows. [9] Two criteria must be met in order to establish the defence. First, there must be an assertion of involuntariness by the defence, andsecond, confirming psychiatric evidence.

The Court is clear that the requirement of expert psychiatric evidence applies "“in all cases”"(Stone at paras.163, 187-188) and that genuine cases of automatism will be "“extremely rare”" (Stone at para. 180). Whether there existsa sufficient evidentiary foundation for the defence also takes into consideration relevant factors such as the severity of the triggeringstimulus, corroborating evidence of bystanders, any medical history of dissociative states and evidence of motive.

No one factor isdeterminative. [10] Neither of the two requirements was met in this case. [11] The respondent did not assert involuntariness, rather the evidence before the Tribunal was that she "“forgot”" about the apples (AB,Vol. 1, p. 224). Forgetfulness is simply a plea of mistake of fact, which is unavailable to her. [12] Secondly, the medical records relied on by the Tribunal do not qualify as the psychiatric evidence required under Stone. Therecords are not from psychiatric specialists.

There is no indication that the evaluating physicians conducted psychiatric tests relevant tothe state of automatism, nor do they make any conclusions as to the mental state of the respondent at the time of the offence. They makeno observations of the relevant contextual factors. They simply do not engage the question whether the respondent was in anautomatistic-type dissociative state at the relevant time. [13] The requirement of psychiatric evidence is critical. It stems from the basic observation that courts, and most administrative bodies,are not comprised of medical experts.

Without qualified expert testimony, they are unqualified to draw conclusions concerning anindividual’s physical or mental health, particularly in respect of complex dissociative conditions. In the absence of such evidence, theTribunal’s decision cannot stand. [14] The respondent did not assert that she lacked voluntary control over her actions at the time of the alleged violation. Following herinjury, she made the decision to board the plane rather than miss her flight.

On arrival at Pearson International Airport she completed thecustoms declaration card, retrieved her luggage and had a discussion with a CBSA officer. The officer’s notes of the conversationbetween her and the respondent do not indicate incoherence or disorientation.

All of this evidence would be material and relevant to anexpert qualified to express an opinion on whether the respondent was in an automatistic state. [15] For the reasons above, the Tribunal did not properly apply the defence of automatism as set out in Stone, and in so doing erred inconcluding that the defence was available in this instance. [16] I would therefore grant the application and set aside the decision of the Tribunal.

As there was only one possible conclusion open tothe Tribunal on the record before it, I would not remit the matter but would reinstate the Minister’s decision confirming the Notice ofViolation of October 9, 2015.

[ 17 ] In the circumstances, I would not award costs. “Donald J. Rennie” J.A. “I agree Wyman W. Webb J.A.” “I agree J.B. Laskin J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPLICATION FOR JUDICIAL REVIEW OF A DECISION OF THE CANADIAN AGRICULTURAL REVIEW TRIBUNAL DATED MARCH 27, 2017, DOCKET CART/CRAC-1907 ( 2017 CART 10 ) DOCKET: A-136-17 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. ELENA KLEVTSOV PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 3, 2018 REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: WEBB J.A. LASKIN J.A.

DATED: October 26, 2018 APPEARANCES : Jon Bricker FOR THE Applicant Elena Klevtsov Respondent SOLICITORS OF RECORD : Nathalie G. Drouin Deputy Attorney General of Canada For The APPLICANT