T-9628-82
Bertram S. Miller Ltd. (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Moncton, New Bruns-
wick, April 2, 3, 4; Ottawa, May 7, 1985.
Constitutional law — Charter of Rights — Search or sei
zure — Warrantless detention and destruction, .under Plant
Quarantine Act, of imported trees — Trees infested by insect
larvae — Warrant easily obtainable but not required by stat
ute — Applying Supreme Court of Canada decision in Hunter
v. Southam Inc. and relevant case law, seizure unreasonable
under Charter s. 8 and destruction unlawful — S. 6(1)(a) of
Act inoperative to extent of inconsistency with Charter s. 8 —
Damages awarded — Plant Quarantine Act, R.S.C. 1970, c.
P-13, ss. 3(1),(2), 6(1)(a), 9(1),(2),(4) — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 8,
24(1), 52(1) — Canadian Bill of Rights, R.S.C. 1970, Appen
dix III, ss. 1(a), 2(e) — Criminal Code, R.S.C. 1970, c. C-34,
s. 443.
Agriculture — Warrantless search and seizure — Detention
and destruction of imported trees under Plant Quarantine Act
— Trees infested by insect larvae — Warrant not required by
statute but easily obtainable — Applying Supreme Court of
Canada decision in Hunter v. Southam Inc. and relevant case
law, seizure unreasonable under Charter s. 8 and destruction
unlawful — S. 6(1)(a) of Act inoperative to extent of inconsist
ency with Charter s. 8 — Damages awarded — Plant Quaran
tine Act, R.S.C. 1970, c. P-13, ss. 3(1),(2), 6(1)(a), 9(1),(2),(4)
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), ss. 8, 24(1), 52(1).
Inspectors of the Federal Department of Agriculture found a
shipment of trees imported by the plaintiff to be infested by
Gypsy Moth larvae and immediately ordered their detention.
The next day, after positive identification of the larvae, the
inspectors ordered the trees destroyed. The plaintiff did not
comply with the order immediately but tried to save the trees
by spraying. The trees were finally destroyed, five days after
their arrival. The inspectors acted in accordance with the Plant
Quarantine Act and Regulations throughout.
The plaintiff initiated this action in damages, arguing that
the inspectors acted contrary to natural justice in refusing to
hear its case, in refusing to have the trees inspected by
independent experts, and in destroying the evidence. The plain
tiff also invokes paragraphs 1(a) and 2(e) of the Canadian Bill
of Rights, but the main allegation is that the seizure was
unreasonable, violating section 8 of the Charter.
Held, the action should be allowed.
The evidence reveals that the inspectors heard the plaintiff's
arguments but came to the conclusion that the trees had to be
destroyed. The Plant Quarantine Act grants sweeping powers
to the inspectors with respect to search and seizure, detention,
confiscation and destruction of plants, but nowhere does it
require their obtaining a warrant to exercise such draconian
powers.
A review of the recent search and seizure case law, and
especially the Supreme Court of Canada decision in Hunter v.
Southam Inc., establishes clearly that prior authorization, usu
ally in the form of a valid warrant, is a pre-requisite for a valid
search and seizure both at common law and under most
statutes, unless it is "unfeasible" to obtain that prior authoriza
tion. In the case at bar, the inspectors had all the time needed
to procure a warrant.
It is also established that authorization has to be obtained
from impartial and detached arbiters, not, as in the case at bar,
from the persons executing the orders. Shortly before the
Southam case, the Federal Court of Appeal declared in Minis
ter of National Revenue v. Kruger Inc. that "save in exception
al cases, a statute authorizing searches without warrants may
be considered as offending section 8" of the Charter. Border
searches may be considered as such "special cases". But here,
there were no exceptional circumstances.
In the present case, the inspectors did not trespass on their
first visit to the nursery, as they had been impliedly invited
there. However, in the interval between the discovery of the
larvae and the actual destruction of the trees, an assessment
could have been made by an impartial arbiter as to whether or
not to seize and destroy the trees, had the Act so prescribed.
The warrantless search powers conferred by paragraph
6(1)(a) of the Act are not necessarily unreasonable and they do
not ineluctably collide with section 8 of the Charter. There may
be circumstances where obtaining a warrant would be unfea
sible. However, paragraph 6(1)(a) is inoperative to the extent
of its inconsistency with section 8, such as in the present case
where it has not been established that the obtaining of such a
warrant was unfeasible or even impracticable. In the result, the
destruction of the plaintiff's property was unlawful and his
right to be secure against unreasonable search or seizure was
denied. The plaintiff will therefore be compensated for his
damages.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; 11
D.L.R. (4th) 641; 55 N.R. 241; [1984] 6 W.W.R. 577;
33 Alta. L.R. (2d) 193; 84 DTC 6467; 14 C.C.C. (3d) 97;
41 C.R. (3d) 97; 9 C.R.R. 355; Minister of National
Revenue, Canada, et al. v. Kruger Inc., et al., [1984] 2
F.C. 535; 55 N.R. 255 (C.A.); R. v. Rao (1984), 4
O.A.C. 162; 46 O.R. (2d) 80; 40 C.R. (3d) 1; Her
Majesty The Queen and Brian Eric Belliveau and Claude
Cecil Losier, judgment dated February 25, 1985, New
Brunswick Court of Queen's Bench, F/CR/11/84, not yet
reported.
REFERRED TO:
United States y Ramsey, 52 L. Ed. 2d 617 (S.C. 1977);
R. v. Jordan (1984), 11 C.C.C. (3d) 565 (B.C.C.A.); R.
v. Simmons (1984), 45 O.R. (2d) 609; 7 D.L.R. (4th)
719; 39 C.R. (3d) 223; 11 C.C.C. (3d) 193 (C.A.).
COUNSEL:
Mark M. Yeoman, Q.C. for plaintiff.
A. R. Pringle for defendant.
SOLICITORS:
Yeoman, Savoie, LeBlanc & Assoc., Monc-
ton, New Brunswick for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
DUBÉ J.: This action in damages is launched by
a New Brunswick company which operates a nur
sery business dealing in ornamental trees and
shrubs at the Village of St. Martins, in the County
of Saint John, N.B.
The damages in issue result from the detention
and destruction of a shipment of trees by inspec
tors of the Federal Department of Agriculture on
May 25, 1982. The trees in question had been
imported by the plaintiff from the United States.
It was found by the inspectors that the trees were
infested by insect larvae which were identified as
Gypsy Moths.
The evidence establishes that Donald Miller, a
graduate in agricultural science and vice-president
of the plaintiff company, who personally operates
the nursery, applied for an import permit at the
Department's Saint John office earlier in May.
The permit, issued on May 13, 1982, shows the
delivery point for inspection to be St. Martins,
N.B. (As customary for such shipments and for
the convenience of both the importer and the
Department, the inspection was not carried out at
the border but on the premises of the importer.)
On that date the inspector present at the Saint
John office cautioned Donald Miller to beware of
Gypsy Moths which caused a serious problem in
the New England states. He was also given a
pamphlet titled "The Gypsy Moth, a potential
threat to the Maritimes".
Donald Miller admits that before leaving the
U.S. nurseries with his shipment he did not thor
oughly inspect all the trees. The trees, however,
were sprayed against the Gypsy Moth before being
placed on board his truck. Shortly after his arrival
at St. Martins, he notified the Department in
Saint John of his arrival and an inspector came
over the same day, May 20, 1982. The inspector
observed a quantity of insect larvae on the trees as
they were being unloaded. He immediatély issued
a Notice of Detention pursuant to the Plant Quar
antine Act' and notified the plaintiff not to move
the trees until the larvae were identified. On the
next day the plaintiff was duly informed that the
larvae were Gypsy Moths and that the imported
trees would have to be destroyed.
The plaintiff did not carry out the destruction
but attempted to solve the problem by further
spraying the trees. After the long week-end
(Monday was a holiday), during which they dis
covered that the imported trees had not been
burnt, the inspectors proceeded to the Miller home
on May 25, 1982. They delivered a fresh Notice of
Detention calling for the destruction of the trees
by fire, a letter outlining the reasons for the deci
sion, and a copy of the relevant sections of the
Plant Quarantine Act (the plaintiff had asked
earlier for a copy of the Act).
After some discussions where the inspectors
rejected the alternative of returning the trees back
to the U.S. (too risky), they proceeded to the
nursery where New Brunswick forest rangers
(acting as agents for the Department) had already
started a fire. The imported trees were destroyed
forthwith.
I am fully satisfied that the inspectors carried
out their duty as they were obligated to do under
1 R.S.C. 1970, c. P-13.
the Plant Quarantine Act and Regulations. The
plaintiff, however, argues that the inspectors acted
contrary to natural justice in that they refused to
hear the plaintiffs side of the case, refused to have
the trees inspected by independent experts and
destroyed the evidence. The plaintiff also alleges
that the acts complained of constitute unreason
able seizure contrary to the provisions of section 8
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], that the plaintiff was deprived of its
rights and the enjoyment of its property without
due process of law and without a fair hearing
contrary to the provisions of paragraphs 1(a) and
2(e) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III].
My appreciation of the evidence is that the
inspectors did not refuse to hear the plaintiffs
version. They did discuss the matter with Donald
Miller and his father, the president of the plaintiff
company, but the inspectors did not accept their
proposed solutions. In the inspectors' views, fur
ther spraying would not destroy the larvae and
returning the infested trees back to the United
States could cause further infestation. They con
sidered the larvae to be a dangerous pest that had
to be destroyed at once. The inspectors felt that
they had reasonable grounds to believe that the
trees were infested with a pest and were thus
authorized under the Plant Quarantine Act to
order their destruction.
I must consider, however, whether the provisions
of that Act are not in violation of section 8 of the
Charter which reads as follows:
8. Everyone has the right to be secure against unreasonable
search or seizure.
The following provisions of the Plant Quaran
tine Act come into play:
3. (1) Except as provided by this Act and the regulations no
person shall knowingly introduce or admit into Canada, spread
within Canada or convey within or from Canada any pest or
any plant or other matter that is infested or likely to be infested
with a pest or that constitutes a biological obstacle to the
control of any pest.
(2) The Minister may order compensation to be paid in
respect of any plant or other matter destroyed or prohibited or
restricted from sale or any restriction of the use of any property
or premises pursuant to this Act in the amounts approved by,
and subject to the terms and conditions prescribed by, the
regulations.
6. (1) An inspector may at any reasonable time
(a) enter any place or premises in which he reasonably
believes there is any pest or plant or other matter to which
this Act applies, and may open any container or package
found therein or examine anything found therein that he has
reason to believe contains any such pest or plant or other
matter, and take samples thereof, and
9. (1) Whenever an inspector believes on reasonable grounds
that an offence under this Act has been committed he may
seize and detain the plant or other matter by means of or in
relation to which he reasonably believes the offence was
committed.
(2) Any plant or other matter seized and detained pursuant
to subsection (1) shall not be detained after
(a) in the opinion of an inspector the provisions of this Act
and the regulations have been complied with,
(b) the owner agrees to dispose of such plant or other matter
in a manner satisfactory to the Minister, or
(c) the expiration of ninety days from the day of seizure, or
such longer period as may be prescribed with respect to any
plant or other matter,
unless before that time proceedings have been instituted in
respect of the offence in which event the plant or other matter
may be detained until the proceedings are finally concluded.
(4) Whenever an inspector believes on reasonable grounds
that any plant or other matter constitutes a hazard because it is
or could be infested with any pest or constitutes a biological
obstacle to the control of any pest, he may confiscate such plant
or other matter and may order its destruction or disposition
forthwith.
Clearly, the Act grants sweeping powers to the
inspectors for achieving the object of the Act,
namely to prevent the introduction or spreading of
pests injurious to plants. Under paragraph 6(1)(a)
an inspector may enter and search any place in
which he "reasonably believes" there is such a
pest. Under subsection 9(1) when he "believes on
reasonable grounds" that an offence has been com
mitted he may seize and detain the plant. Subsec
tion 9(4) authorizes him to confiscate and destroy
any such plant if he "believes on reasonable
grounds" that it "could be infested with any pest".
Nowhere in the Act is it required that an inspector
obtain a warrant before the exercise of any of such
draconian powers.
The leading case dealing with warrantless
search or seizure is the recent Supreme Court of
Canada decision in Hunter et al. v. Southam Inc. 2
The offices of Southam had been searched and the
material therein seized pursuant to the Combines
Investigation Act [R.S.C. 1970, c. C-23]. At the
outset of his judgment Dickson J. [as he then was]
(speaking for the Court) squarely faced the issue.
He said that the crux of the case was the meaning
to be given to the term "unreasonable" in the
section 8 guarantee of freedom from unreasonable
search or seizure. He described the Charter of
Rights and Freedoms as a "purposive document",
its purpose being to guarantee "within the limits of
reason, the enjoyment of the rights and freedoms it
enshrines". He then focussed on an "assessment"
which must be made before a search and seizure is
carried out. He said at page 159 S.C.R.; 249 N.R.:
The guarantee of security from unreasonable * search and
seizure only protects a reasonable * expectation. This limitation
on the right guaranteed by s. 8, whether it is expressed nega
tively as freedom from "unreasonable" search and seizure, or
positively as an entitlement to a "reasonable" expectation of
privacy, indicates that an assessment must be made as to
whether in a particular situation the public's interest in being
left alone by government must give way to the government's
interest in intruding on the individual's privacy in order to
advance its goals, notably those of law enforcement. [Emphasis
added.]
He then raised the question as to when the
assessment is to be made, by whom, and on what
basis?
A—WHEN?
The Supreme Court judgment notes that the
determination of the balance of the competing
interests between individual and the government, if
it were made only after the search had been con
ducted, would seriously conflict with the purpose
2 [1984] 2 S.C.R. 145; 11 D.L.R. (4th) 641; 55 N.R. 241;
[1984] 6 W.W.R. 577; 33 Alta. L.R. (2d) 193; 84 DTC 6467;
14 C.C.C. (3d) 97; 41 C.R. (3d) 97; 9 C.R.R. 355.
* Editor's Note: Emphasis added by Dickson J.
of section 8 which stands for the protection against
unjustified intrusions on the privacy of individuals.
Therefore a system of prior authorization is called
for, rather than one of subsequent validation. The
Court stated at page 160 S.C.R.; 250 N.R.:
A requirement of prior authorization, usually in the form of
a valid warrant, has been a consistent pre-requisite for a valid
search and seizure both at common law and under most
statutes. Such a requirement puts the onus on the state to
demonstrate the superiority of its interest to that of the
individual. As such it accords with the apparent intention of the
Charter to prefer, where feasible, the right of the individual to
be free from state interference to the interests of the state in
advancing its puposes through such interference.
I recognize that it may not be reasonable in every instance to
insist on prior authorization in order to validate governmental
intrusions upon individuals' expectations of privacy. Neverthe
less, where it is feasible to obtain prior authorization, I would
hold that such authorization is a pre-condition for a valid
search and seizure. [Emphasis added.]
It follows therefore that a search and a seizure
(a fortiori a destruction) without a valid warrant
must be considered prima facie unreasonable and
the onus is on the state to rebut that presumption
by showing that it was "unfeasible"' to obtain
prior authorization.
In the case at bar the inspectors had all the time
needed to procure a warrant: five days went by
between the discovery of the larvae and the
destruction of the trees. There is no doubt in my
mind they would have obtained one—they
appeared to me to be highly responsible officers—
had the Act which governed their activities called
for a warrant.
B—BY WHOM?
In the Southam case the Court noted (at page
162 S.C.R.; 250 N.R.) that for an authorization
procedure to be meaningful the person authorizing
the search would have to do so "in an entirely
neutral and impartial manner". Obviously, the
inspectors themselves were not the proper persons
to carry out the assessment as they were them
selves executing the orders. Nemo judex in sua
causa: obviously, the inspectors could not be the
3 Some dictionaries and authors prefer "infeasible". Both
adjectives are accepted.
impartial and detached arbiters necessary to grant
an effective authorization.
C—ON WHAT BASIS?
When dealing with this question in Southam,
Dickson J. considered the standards set by the
common law, by section 443 of the Criminal Code
[R.S.C. 1970, c. C-34], and by the American Bill
of Rights. He concluded (at page 168 S.C.R.; 254
N.R.):
In cases like the present, reasonable and probable grounds,
established upon oath, to believe that an offence has been
committed and that there is evidence to be found at the place of
the search, constitutes the minimum standard, consistent with
s. 8 of the Charter, for authorizing search and seizure. [Empha-
sis added.]
In Minister of National Revenue, Canada, et al.
v. Kruger Inc., et al., 4 a decision of the Federal
Court of Appeal released shortly before the
Southam decision, the constitutionality of a war-
rantless search and seizure of materials carried out
pursuant to the Income Tax Act [R.S.C. 1952, c.
148 (as am. by S.C. 1970-71-72, c. 63, s. 1)] was
considered. The Court held as follows (at page 548
F.C.; 262 N.R.):
A search without warrant may or may not be justified irrespec
tive of the fact that it was made without warrant; however, save
in exceptional cases, a statute authorizing searches without
warrants may be considered as offending section 8 because it
deprives the individual of the protection that normally results
from the warrant requirement. [Emphasis added.]
Several months before that decision the Ontario
Court of Appeal in R. v. Rao 5 dealt with search
and seizure under the Narcotic Control Act
[R.S.C. 1970, c. N-1] and held that at common
law, there is no power to search premises without
warrant, except as an incident of a lawful arrest.
Martin J.A., speaking for the Court, concluded as
follows at page 182 O.A.C.; 106-107 O.R.:
4 [1984] 2 F.C. 535; 55 N.R. 255 (C.A.).
5 (1984), 4 O.A.C. 162; 46 O.R. (2d) 80; 40 C.R. (3d) 1.
In my view, the warrantless search of a person's office
requires justification in order to meet the constitutional stand
ard of reasonableness secured by s. 8 of the Charter, and
statutory provisions authorizing such warrantless searches are
subject to challenge under the Charter. The justification for a
warrantless search may be found in the existence of circum
stances which make it impracticable to obtain a warrant: see,
for example, s. 101(2) of the Code; s. 11(2) of the Official
Secrets Act. The individual's reasonable expectation of privacy
must, of course, be balanced against the public interest in
effective law enforcement. However, where no circumstances
exist which make the obtaining of a warrant impracticable and
when the obtaining of a warrant would not impede effective law
enforcement, a warrantless search of an office of fixed location
(except as an incident of a lawful arrest) cannot be justified
and does not meet the constitutional standard of reasonableness
prescribed by s. 8 of the Charter. [Emphasis added.]
D—BORDER SEARCHES
Possible exceptions to the general rule that war-
rantless searches are prima facie unconstitutional
are "border searches" which the American
jurisprudence 6 has considered to be "reasonable"
and some Canadian authorities' have defined as
special cases. McDonald J. in his volume on Legal
Rights in the Canadian Charter of Rights and
Freedoms sets out the matter as follows at page
71:
An exception to the requirement that either probable cause
or a warrant is necessary in order to justify a search occurs
when the search is by officials at the border in the enforcement
of customs laws, as compared with other official searches made
in connection with official law enforcement.
One of the underlying reasons for the exception
is spelled out in R. v. Simmons 8 where the Ontario
Court of Appeal dealing with a body search at a
Canadian airport on a passenger arriving in
Canada held that "border searches for contraband
fall into a very special category". Howland C.J.O.
noted at page 220 C.C.C.:
6 United States y Ramsey, 52 L.Ed. 2d 617 (S.C. 1977).
7 R. v. Jordan (1984), 11 C.C.C. (3d) 565 (B.C.C.A.).
8 (1984), 45 O.R. (2d) 609; 7 D.L.R. (4th) 719; 39 C.R. (3d)
223; 11 C.C.C. (3d) 193 (C.A.).
I do not think it is unreasonable for sovereign nations, such as
Canada, to provide for a temporary restraint on persons enter
ing the country, and if necessary, for a search of their persons
to see if they are bringing contraband into Canada.
A more fundamental reason for the exception
can be found in Southam which asserted that the
right guaranteed by section 8 was "within reason
able expectation of security from unreasonable
search and seizure". Persons crossing the border
run the chance of being searched personally and
have the goods they import searched on the spot
and seized forthwith.
However, the search, seizure and destruction of
the goods in the instant case were not carried out
at the border, nor under the Customs Act [R.S.C.
1970, c. C-40], but, by agreement, on the plain
tiff's own property. And it is now clearly estab
lished that the Charter as a constitutional docu
ment must be given a liberal interpretation.
In a very recent decision (Her Majesty The
Queen and Brian Eric Belliveau and Claude Cecil
Losier) 9 the Court of Queen's Bench of New
Brunswick had to deal with the seizure of a van
containing cartons of cigarettes allegedly brought
into Canada contrary to the provisions of the
Tobacco Tax Act [R.S.N.B. 1973, c. T-7] of New
Brunswick. The seizure did not take place at the
border but in front of a gas bar at Harvey, N.B.
Stevenson J. analyzed the Southam judgment and
noted that the Crown in the case before him made
no argument that it was unfeasible or unnecessary
to obtain prior authorization for the searches con
templated by the Act. He said at page 19:
In the absence of such argument or of any evidence to support
such a contention I hold that s-ss. 2.2(3) and (4) of the Act as
they stood at the time of the alleged offence were inconsistent
with s.8 of the Charter. It has not been suggested, either at trial
or on the present appeal, that the provisions of those two
subsections constitute reasonable limits on the right guaranteed
by s. 8 that can be demonstrably justified in a free and
democratic society.... Those provisions having been of no
force and effect it follows that a search or seizure purportedly
made pursuant to those provisions infringed the citizen's right
9 F/CR/11/84, Stevenson J., February 25, 1985.
to be secure against unreasonable search or seizure. In those
circumstances the search and seizure were not only unreason
able, they were illegal having been carried out pursuant to
statutory provisions that offended the Constitution. [Emphasis
added.]
In the case at bar, the inspectors did not trespass
on their first visit to the nursery, as they had been
impliedly invited as a result of the agreement
between both parties that the inspection would
take place at the nursery. It is my view, however,
that in the interval between the discovery of the
larvae and the actual destruction of the trees an
assessment could have been made by an impartial
arbiter as to whether or not to seize and destroy
the goods, had the Act so prescribed.
I cannot conclude from the jurisprudence to
date, as applied to the facts of the case at bar, that
the warrantless search powers conferred by para
graph 6(1)(a) of the Plant Quarantine Act are
necessarily unreasonable and that they ineluctably
collide with section 8 of the Charter. There may be
circumstances of emergency where the obtention
of a warrant would be unfeasible. In my view,
however, paragraph 6(1)(a) is inoperative to the
extent of its inconsistency with section 8, such as
in the present case where it has not been estab
lished that the obtaining of such a warrant was
unfeasible or even impracticable. Subsection 52(1)
of the Charter provides for such situations:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force and effect.
Under the circumstances, I find that the
destruction of the plaintiff's property was unlawful
and that his right to be secure against unreason
able search or seizure, as guaranteed by section 8
of the Charter, has been denied. Subsection 24(1)
of the Charter reads:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
The Trial Division of the Federal Court of
Canada is the court of competent jurisdiction in
the present case and the "appropriate and just"
remedy is compensation to the plaintiff in the
amount of its losses. 10
It is admitted that the value of the goods
destroyed is of $13,073.50, the costs of renting a
sprayer $108, brokers' fees $165, long-distance
telephone calls $92.52, for a total of $13,439.02.
The plaintiff also claims $1,980 in "wages paid for
wasted work" but it was not established to my
satisfaction that such wages were consequential to
the loss of goods. Judgment therefore in the
amount of $13,439.02 and costs.
1 ° It is to be noted that subsection 3(2) of the Plant Quaran
tine Act (supra) provides that the Minister may order that
compensation be paid in respect of any plant destroyed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.