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Criminal - 'Reasonable Suspicion Standard'. Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) ['reasonable suspicion standard' (it's like the criminal RPG)]
In Prince Edward Island Potato Board v. Canada (Agriculture and Agri-Food) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from an earlier dismissed JR, here against "an [SS: Ministerial] Order issued by the Minister of Agriculture and Agri-Food [Minister] under section 15(3) of the Plant Protection Act, SC 1990, c 22, declaring the entire province of Prince Edward Island [PEI] as "“a place infested with potato wart”" and prohibiting the movement of PEI seed potatoes from PEI without written authorization from an inspector [Ministerial Order]".
The court considers the argument that the Minister lacked adequate evidence to determine that there was an 'infestation' [under the Plant Protection Act s.15(3), and the 'reasonable suspicion standard'] (more fully at paras 50-52 and 64-115):(a) In the context of the Act, the reasonable suspicion standard asks whether, based on objectively discernable facts, a pest is possibly present in a place
[90] Section 2 of the Regulations states that a place is "“infested”" if either a pest is present in the place, or the place is so exposed to a pest that one can reasonably suspect that the pest is in the place.
[91] The parties did not identify any judicial consideration of the definition of "“infested”". However, the Appellant argued that the definition incorporates the standard of reasonable suspicion defined and applied by the Supreme Court of Canada in R v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 [Chehil]. Under this standard, a reasonable suspicion must be based on "“objectively discernible facts”": Chehil at para. 3. The Respondents took no issue with the Appellant’s formulation of the applicable standard. Like the Federal Court, in the absence of any express analysis of the definition of "“infested”" by the Minister, I adopt the parties’ agreement on this standard in assessing the reasonableness of her decision. As the Supreme Court noted in Vavilov at para. 111, citing the "“reasonable grounds to suspect”" standard as an example, "“where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard.”"
[92] The Supreme Court noted in Chehil that, in the criminal law context, while both the "“reasonable grounds to suspect”" and the "“reasonable and probable grounds to believe”" standards have to be grounded in objective facts, "“reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime”": Chehil at para 27. The fact that reasonable suspicion dealt with possibilities, rather than probabilities, necessarily meant that "“in some cases the police will reasonably suspect that innocent people are involved in crime”": Chehil at para. 28.
[93] In Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, 455 N.R. 157 at para. 97 [Farwaha], this Court addressed the "“reasonable grounds to suspect”" standard in the context of a Minister’s power to revoke a dock worker’s security clearance where there were reasonable grounds to suspect, among others, his membership in or association with terrorist or criminal organizations:While fanciful musings, speculations or hunches do not meet the standard of “reasonable grounds to suspect”, the “totality of the circumstances” and inferences drawn therefrom, including information supplied by others, apparent circumstances and associations among individuals can. To satisfy the “reasonable grounds to suspect” standard, verifiable and reliable proof connecting an individual to an incident—proof of the sort required to secure a conviction or even a search warrant —is not necessary. [94] By analogy to the criminal law context in Chehil, where police may reasonably suspect of criminal activities people who turn out to be innocent, the application of the "“reasonable suspicion”" standard in the plant protection context means that in some cases, the Minister may reasonably suspect that a pest is in a place where it turns out not to be. Therefore, in order to declare that all fields in PEI are infested with PW, the Minister did not need to have before her objective facts establishing that the pest is present or even probably present in each and every field. Objective facts that establish that the pest is possibly present in each and every field were sufficient.
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