Ottawa, Ontario, this 17th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS and MINISTER
OF NATIONAL REVENUE
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 of a decision of the Minister of Public Safety and Emergency Preparedness (Minister) dated November 22, 2004 (Decision) imposing a penalty of $85,560 for the Applicant’s failure to immediately report the importation of a vessel in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (Act).
BACKGROUND
[2] The Applicant purchased a vessel, “Rennie B III” (Vessel) in December 2001. The Vessel had a permanent moorage at Point Roberts, Washington until July 26, 2003. The Applicant arranged for a moorage at Crescent Beach Marina, British Columbia to begin on August 1, 2003.
[3] In 2002, the Applicant brought the Vessel to Canada and reported to Canada Customs. However, in April 2003, the Applicant failed to report the Vessel’s entry into Canada. On July 9, 2003, when the Applicant brought the Vessel to Crescent Beach Marina to determine what modifications would be needed to the Applicant’s newly purchased boathouse at the marina, the Vessel’s entry into Canada was again not reported to Canada Customs at the time of entry.
[4] On July 11, 2003, the Applicant reported to Canada Customs and stated that he had just entered Canada with the Vessel that morning. When advised that Canada Customs’ officers were coming to the marina, the Applicant moved the Vessel from the boathouse to the gas dock so that it would be consistent with his explanation that he had arrived that morning. Despite the Applicant’s attempts to prevent Canada Customs from discovering that he had arrived two days earlier, Canada Customs’ officers concluded that the Applicant had permanently moved the Vessel to Canada on July 9, 2003 and had falsely reported it as a temporary importation. As a result, Canada Customs seized the Vessel and imposed a penalty equal to 25% of the Vessel’s value for its release. The penalty is for a level 1 infraction of non-report and for contraventions of a less serious nature. The Vessel was released from seizure on August 11, 2003 after payment of the sum of $106,950.
[5] On October 3, 2003, pursuant to s. 129 of the Act, the Applicant requested a Minister’s decision under section 131 of the Act. On October 30, 2003, the Adjudicator from the Customs Appeals Directorate of the Canada Customs and Revenue Agency provided a written notice of the reasons for the seizure and stated that the Applicant could provide submissions.
[6] On December 3, 2003, the Applicant provided submissions and requested the Minister to waive the penalty of $106,950 on the basis that the amount was excessive having regard to the nature of the default.
[7] By letter dated December 19, 2003, the Adjudicator requested information on the Vessel’s export as represented in the Applicant’s December 3, 2003 submission. The Applicant’s December 3, 2003 submission and the Adjudicator’s letter dated December 19, 2003 were sent to the Seizing Officer. The Adjudicator’s letter dated December 19, 2003 that was sent to the Applicant did not include any reference to a carbon copy or a postscript having been sent to the Seizing Officer.
[8] On January 27, 2004, the Seizing Officer replied to the Adjudicator’s letter dated December 19, 2003 and stated that he had reviewed the Applicant’s submission and that he stood by the seizure action. The Applicant did not receive copies of this communication to the Adjudicator from the Seizing Officer.
[9] On January 27, 2004, the Applicant provided a further submission relating to the export and the proposed sale of the Vessel. On March 4, 2004, the Adjudicator acknowledged the Applicant’s letter dated January 27, 2004 and, again, sent a copy of the Applicant’s January 27, 2004 submission to the Seizing Officer. Similarly, the letter that was sent to the Applicant did not include any reference to a carbon copy or a postscript having been sent to the Seizing Officer. In fact, the postscript comment that was addressed to the Seizing Officer in this letter read as follows:
P.S. Please find attached a copy of the most recent correspondence received in this matter for your review and comments. Would you support a reduction in the penalty, as the vessel has been permanently moved to the United States? Any further comments or representations should be forwarded to my attention within 30 days from the date of this correspondence. Thank you.
[10] By letter dated March 29, 2004, the Seizing Officer responded to the Adjudicator’s letter and provided reasons for the seizure and why he disagreed with the Applicant’s submissions. He also wrote that “[i]f the decision is ultimately made to reduce the penalty due to the export of the vessel to the USA, I would propose that same benefit be afforded the claimant that is given to non-residents of Canada when seized goods are exported; reducing the dollar value of the penalty by 20%.” The Applicant did not receive copies of this communication to the Adjudicator from the Seizing Officer.
[11] On June 30, 2004, the Applicant sold the Vessel to a US resident and informed the Adjudicator of the sale on July 2, 2004.
[12] On November 22, 2004, the Minister confirmed that the Vessel had been validly seized and that, under section 133 of the Act, $85,560 of the amount received would be held as forfeit and the balance in the amount of $21,390 returned to the Applicant in recognition of the sale and export of the Vessel from Canada. It is this Decision that is the subject of review in the present application.
PERTINENT LEGISLATION
[13] The relevant sections of the Act are found in Schedule “A”.
ISSUES
[14] The Applicant raises the following issues:
Has the Minister breached the duty of procedural fairness by failing to:
1) Disclose submissions made to the Adjudicator by the Seizing Officer;
2) Determine whether the importation of the Vessel to Canada on July 9, 2003 was a temporary importation or a permanent importation made with the intention of avoiding the payment of customs duties; and
3) Consider whether the penalty imposed under the guidelines in the Customs Enforcement Manual is excessive?
[15] The Respondents describe the issues in the following terms:
1. Whether the Minister breached any duty of fairness in exercising his discretion under section 133 of the Act to reduce the amount payable by the Applicant by 20%; and
2. Whether the Minister’s decision under section 133 of the Act to reduce by 20% the amount payable by the Applicant is patently unreasonable.
APPLICANT’S SUBMISSIONS
Communications between Adjudicator and Seizing Officer
[16] The Applicant contends that as a result of the Adjudicator’s failure to disclose the Seizing Officer’s submissions, the Applicant did not have an opportunity to reply to those submissions and did not have access to the information and evidence relied upon by the Adjudicator in reaching her Decision. The Applicant alleges that the Adjudicator intentionally concealed from the Applicant that she was inviting submissions from the Seizing Officer by excluding the carbon copy and postscript notes to the Seizing Officer from the letters she sent to the Applicant.
Nature of the Importation
[17] The Applicant states that there are two separate interpretations of the purpose of the entry of the Vessel into Canada on July 9, 2003. The Seizing Officer’s position is that the Vessel had been permanently moved to Canada; the Applicant’s position, however, is that the importation was temporary for the purposes of obtaining modifications to the boathouse. The Applicant claims that the Seizing Officer imposed the penalty on the basis that the Vessel had been moved permanently into Canada. However, the Applicant states that the circumstances of the import are inconsistent with a permanent importation.
[18] The Applicant argues that a decision on this issue is necessary to determine the seriousness of the event and the amount of the penalty that should be imposed. However, in the present case, the Adjudicator and the Minister have not addressed or made a decision concerning the Applicant’s intent. The Applicant further argues that it is legitimate for him to expect the Minister to address factual issues that are relevant to determining the amount of penalty and, if there is a reasonable doubt on the facts, to resolve this doubt in favour of the Applicant.
Discretion regarding the Penalty
[19] The Applicant claims that he had a legitimate expectation that the Adjudicator would exercise her discretion under section 133 of the Act to determine whether the penalty imposed was excessive or insufficient. The Applicant points out that the Adjudicator only considered whether the penalty was in compliance with the Customs Enforcement Manual (Guidelines). She intended to follow the Guidelines rather than exercise her discretion. Instead of examining the appropriateness of the penalty in relation to the nature of the offence, the Adjudicator simply applied another section of the Guidelines.
[20] The Applicant submits that this is an instance where there are clear reasons why a lesser penalty should be imposed. For example, the following should have been considered: (a) the fact that he is not a repeat offender who intentionally and successfully avoided the payment of duties;
(b) that no duty was avoided; (c) that the misrepresentation was to avoid a penalty for late reporting of a temporary entry and not to avoid the payment of duty; and (d) that the amount of $85,400 is far in excess of the penalty for most criminal offences where an intent to defraud is required.
[21] Moreover, the Applicant submits that rather than a 25% or 20% penalty, the Guidelines would have permitted a penalty of 5%, as this is an importation of a temporary good that is subject to 0% duty.
RESPONDENTS’ SUBMISSIONS
Communications between Adjudicator and Seizing Officer
[22] The Respondents say that the Applicant was advised of the Seizing Officer’s position when he requested a Minister’s decision under section 129 and received the Seizing Officers’ narrative reports and a letter dated October 30, 2003. The Respondents assert that the Seizing Officer’s comments dated March 29, 2004 merely reiterate the information previously provided to the Applicant through the narrative reports and correspondence from the Adjudicator.
[23] The Respondents argue that there is no prejudice to the Applicant when the Seizing Officer refers to a 20% reduction in penalty because the Applicant had addressed the issue of the amount of the penalty through his three sets of submissions. In other words, the Respondents say that the Applicant did respond fully to the case against him so that the Minister did not breach any duty of fairness to the Applicant in not providing him with the comments made by the Seizing Officer.
Standard of Review
[24] The Respondents disagree with the Applicant’s characterization of the remaining two issues and say that the grounds of review are not procedural in nature but relate to the substance of the Decision.
[25] The Respondents submit that the appropriate standard of review for a decision under section 133 of the Act is patent unreasonableness for the following reasons:
a) Parliament did not intend a right of appeal and the only way to review the penalty or forfeiture amount imposed is by way of judicial review. This indicates a high level of deference;
b) The Minister has expertise with respect to the administration of penalties under the Act and his expertise is related to the matter before him;
c) Section 133 is discretionary;
d) The purpose of the Act is to regulate the importation of goods into Canada and the duties payable on such goods. The Act also sets penalties for contraventions of the Act and regulations to uphold the customs system and to ensure compliance; and
e) The question is highly factual and involves broader issues of public policy.
Nature of the Importation and Discretion regarding the Penalty
[26] The Respondents assert that the Minister’s Decision to reduce the penalty amount by 20% is not patently unreasonable.
[27] They submit that the Applicant’s interpretation of section 133 to include a requirement for the Minister to consider the particular nature of the default or the nature of the contravention is not supported by the wording of the section, the related sections of the Act, or any evidence. Nonetheless, the Respondents submit that the Minister considered all circumstances of the matter and the record before him in arriving at the Decision.
[28] The Respondents point out that the penalties in the Guidelines correspond to the seriousness of the offence. They argue that while the reduction of the penalty amount by 20% is contemplated by the Guidelines, it does not indicate a failure to exercise discretion.
[29] The Respondents say that the Applicant is merely dissatisfied with the Decision and is seeking to have the Court re-weigh the factors considered. Furthermore, the Respondents note that the Applicant’s “legitimate expectation” argument only relates to procedural remedies. The Applicant is seeking to expand the scope of the doctrine of legitimate expectation to a substantive remedy.
ANALYSIS
Procedural Fairness
[30] The relationship between section 133 of the Act and the duty of fairness was described in some detail by Justice MacKay in ACL Canada Inc. v. The Queen in right of Canada et al. (1993), 107 D.L.R. (4th) 736 at 759-760, 68 F.T.R. 180:
The conduct of the adjudication process, which is essentially a “hearing” by mail, is extremely important to ensure that a sensible and supportable decision is rendered, as the only appeal from such decision is an appeal to the Federal Court of Canada which is without power of remission, that is, it can only decide whether or not a forfeiture has been incurred as alleged, without power to change or adjust penalties if a forfeiture has been incurred.
There is no provision in the Act, and I was not referred to any regulations concerning the work of the Adjudications Division. The Manual appears designed to provide guidance within Customs and Excise for consistency in discharge of responsibilities in a major department with many local offices each dealing with many members of the public at large. In that context, within statutory or regulatory restrictions, it is open to the Minister to make whatever arrangements he deems appropriate for administrative decisions, though those arrangements must ensure that decisions are made in a manner consistent with the duty of fairness owed to persons affected.
I am persuaded that the process here followed in making decisions on behalf of the Minister under s. 133 in relation to the terms of both forfeitures, the penalties to be applied, in the two seizures did not comply with the Minister’s duty of fairness owed to ACLC, the party affected by the decisions. The Adjudications Division, in its “hearing by mail” did not, in my view, provide to ACLC information or evidence upon which it relied in reaching its decisions, and thus the plaintiff was not in the position to fully know the case it had to meet, or the allegations or charges against it. That case and those allegations were not, in my view, adequately identified by the notices of seizure issued in August and September or in the later written notices of reasons for the seizures issued by the Adjudications Division on behalf of the Deputy Minister. The [page 760] evidence on which those notices were based, consisting of the reports on the seizures and correspondence or other communications with the officers responsible in Halifax, was not provided for information or comment by ACLC. At the very least, the original reports of Customs officers relating to the seizures, and any subsequent comments from them, particularly comments relating to submissions made by ACLC ought to have been provided to the plaintiff, with an opportunity to respond before the decisions were made. Only then could it be said that ACLC had a fair opportunity to comprehend and to respond to the concerns of the Seizing Officers about the significance, if any, of the April, 1986 seizure and for both seizures in 1987, about the serious view of the infractions taken by the officers responsible in Halifax, and the allegations of smuggling, a term not defined by the Act or regulations and for which in testimony at trial the officers responsible for the 1987 seizures were able to provide only their personal definitions.
On the evidence adduced before me, I am of the view that this is an appropriate case for the Minister's determinations under s. 133 to be set aside and the matter sent back for reconsideration. Another adjudicator should reconsider the appropriate terms of forfeitures and remissions, if any, in the two cases, utilizing the record of reports, correspondence, and submissions already compiled, after having provided opportunity for ACLC to respond to or comment upon any reports or correspondence from the Customs officers responsible in Halifax. That reconsideration should, of course, be without any reference to or regard for the determinations previously made.
[31] In the present case, the Respondent says that the penalty imposed by the Seizing Officer was in accordance with the Guidelines in that the penalty related to a first infraction of non-report, which is 25% of the value for duty of the undeclared goods which fall under group 2.
[32] When the Decision was made, the penalty was reduced by 20% in recognition of the export of the Vessel from Canada, as contemplated by paragraph 63 of the Guidelines.
[33] Mr. Nick Fabiano, who made the Decision on behalf of the Minister explains in his affidavit how he proceeded:
Although the comments of the seizing officer were considered, the seizing officer did not participate in the Decision. The Decision was made by me after considering all the circumstances of the matter, including the submissions of counsel for the Applicant and the comments and reports of the seizing officer.
[34] Mr. Fabiano also says that it is standard practice to send a seizing officer copies of correspondence from counsel for an applicant and to ask the seizing officer to make comments on that correspondence:
As adjudications has [sic] no independent knowledge of the facts of any particular matter, in order to make a fair and full consideration of the seizure and the terms of the release, along with the submissions of an applicant, it is important to obtain the comments of the officer(s) involved in the seizure.
[35] So Mr. Fabiano’s view (and he says this is standard practice) is that fairness and fullness require that a seizing officer should see and comment upon an applicant’s submissions. However, he does not appear to think that fairness and fullness require that an applicant see and comment upon a seizing officer’s submissions.
[36] In fact, as happened in this case, Mr. Fabiano says that a carbon copy or post-script notation “would not have been on the correspondence sent to the Applicant or his counsel, but would appear on the file copy of correspondence held in Adjudications.”
[37] Mr. Fabiano does not say that it is standard practice to keep applicants uninformed about correspondence with, and input from, the relevant Seizing Officer. However, there is no reason to think that keeping this knowledge from an applicant was something that was only done in this case.
[38] In my view, this is a decidedly odd approach to fairness and fullness: one side of the hearing by letter (the Minister’s side) is provided with the submissions made by the other side, but this is not reciprocated. In fact, the applicant’s side is not even allowed to know whether a receiving officer has been consulted, let alone what the officer has to say in terms of facts, interpretations and recommendations.
[39] Mr. Fabiano is quite clear in his affidavit that, in making his Decision on behalf of the Minister, he considered the comments of the Seizing Officer. In fact, he says that because he had no independent knowledge, he had to go to the Seizing Officer.
[40] This process hardly accords with either basic principles of procedural fairness or with the process outlined by Justice MacKay in ACL Canada for a decision under section 133 of the Act.
[41] Contrary to the Respondents’ arguments, there is no less reason to keep the Seizing Officer’s comments from the Applicant. It is similar to the situation in ACL Canada where Justice MacKay made it quite clear that any subsequent comments, particularly comments relating to submissions made by applicants, ought to be provided, and applicants should be given “an opportunity to respond” before a decision is made.
[42] The Respondent says that the Applicant in the present case already knew the case he had to answer and had responded in full. I cannot accept this. The Decision was made before the Applicant was given an opportunity to respond to the Seizing Officer’s comments in the letter of March 29, 2004.
[43] The Seizing Officer in that letter makes highly material and significant comments regarding “the reduction or cancellation of the penalty.” The Seizing Officer acknowledges in the same letter that the Applicant’s “main issue with the seizure action is the amount of the penalty.” The Seizing Officer then goes on to make submissions on what should affect the amount of the penalty imposed. He also makes submissions with regards to his own views on how the Guidelines are supposed to work in relation to penalties. He even makes a proposal as to how any reduction should be calculated.
[44] The Applicant was never aware of any of this; in fact, the correspondence system was set up deliberately so that he would not even know what the Seizing Officer was shown, or what the Seizing Officer said.
[45] In my view, it makes no sense to allege that this process was designed to allow the Adjudicator to “make a fair and full consideration of the seizure and the terms of the release […]”, to use Mr. Fabiano’s words. This system is designed to let a seizing officer have the last word on any submission an applicant makes, and to ensure that an applicant is given no opportunity to know a significant aspect of the case he or she has to meet.
[46] In the present case, while the Applicant was aware of the Seizing Officers’ narrative reports and the written notice of the reasons for the seizure, the uncontradicted evidence shows that the Applicant was not aware of the communications between the Adjudicator and the Seizing Officer.
[47] I disagree with the Respondents’ submission that the Seizing Officer’s submission dated March 29, 2004 was a reiteration of the information previously provided to the Applicant through the narrative reports and correspondence from the Adjudicator. In my view, the Seizing Officer was doing more than reiterating the facts; the Seizing Officer was responding to the Applicant’s submissions, arguing why the penalty should not be reduced, and proposing a 20% reduction in the penalty amount should reduction occur.
[48] The Applicant was unable to access the Seizing Officer’s arguments and was unaware that there were submissions made against him. In my opinion, whether or not the Applicant was in fact prejudiced is immaterial. The key is the perceived unfairness in the process taken by the Adjudicator. As in ACL Canada, the Applicant’s submissions were available for comment by the Seizing Officer whereas the Applicant, the party affected by the Adjudicator’s Decision, was not provided a similar opportunity to comment on the Seizing Officer’s arguments. I find that procedural fairness dictates that the Applicant should have been provided with the Seizing Officer’s comments and an opportunity to understand and respond to the Seizing Officer’s concerns before a decision was made. The failure to do that in this case amounts to a breach of procedural fairness.
Other Grounds
[49] The Applicant also contests the nature of the importation and the discretion regarding the penalty. Given that there is a breach of procedural fairness in the present case, I am of the opinion that it is not strictly necessary to address these other issues. However, for the sake of completeness, I will summarize my view of these issues. First of all, I agree with the Respondents that the other issues should be characterized as substantive grounds. I also agree with the Respondents that a pragmatic and functional analysis indicates the standard of review of patent unreasonableness applies. This is because Parliament insulated an appeal from the penalty imposed, and the Decision is discretionary in nature.
[50] It is well-settled that an importer is liable for failing to meet his obligation to account for goods and that the lack of intention on the part of the importer to evade duties and taxes is irrelevant in a seizure proceeding and the validity of a seizure. However, the amount of penalty imposed is not automatic and the Minister has discretion in determining that amount.
[51] In my view, the Decision in relation to the penalty imposed in this case is patently unreasonable because there is no evidence that the Adjudicator considered the Guidelines and determined whether the importation of the Vessel was of a temporary or permanent nature which factor may be relevant in fixing the amount.
[52] Further, according to the document entitled “Appealing an Enforcement Action Customs Act – 1st Party Frequently Asked Questions”, (which was referred to in the affidavit of Nick Fabiano), at Exhibit B:
The Adjudicator will review your case and consider all of the circumstances including the following:
…
Whether there are mitigating or aggravating circumstances?
…
Whether there was evidence to suggest that you knowingly did not report the goods or falsely report the goods or the circumstances under which they were imported?
Whether the penalty was appropriate?
[53] Although the Adjudicator reduced the penalty amount by 20% based on the export of the Vessel, and the case synopsis, I am not satisfied that she actually considered whether the penalty amount was appropriate. Instead, the Adjudicator merely confirmed that there was a contravention of the Act (which is not disputed in this case) and reiterated the submissions of the Applicant and the Seizing Officer. The Minister’s Decision appears to be a reproduction of the Adjudicator’s decision and, hence, it too does not address or analyze the issues surrounding the penalty amount. Therefore, the Minister failed to consider relevant considerations and as a result, the Decision is patently unreasonable. I realize that, in referring to the amount retained by the Minister that the word “penalty” is being used loosely, in that section 133 does not refer to a penalty. I am using the word in this context as it was used by the Seizing Officer in his letter of March 29, 2004, and as it appears to be used in the “Appealing Enforcement Action Customs Act – 1st Party Frequently Asked Questions” (as referred to above and included at Exhibit B to Mr. Fabiano’s affidavit).
ORDER
THIS COURT ORDERS that
1. The Application for judicial review is allowed and the Decision of the Minister dated November 22, 2004 under section 133 of the Customs Act is set aside;
2. The matter is referred back to the Minister for reconsideration by a different adjudicator;
3. The new adjudicator should reconsider the appropriateness of the amount to be remitted to the Applicant under section 133 of the Customs Act;
4. Any such reconsideration shall ensure that the Applicant is provided with an opportunity to respond to or comment upon any reports or correspondence from the relevant Seizing Officer and to know the full case he has to answer;
5. Any such reconsideration should be made without any reference or regard to the Decision previously made in so far as it relates to the amount to be returned to the Applicant and the amount to be forfeited.
6. The Applicant shall have the costs of this Application.
“James Russell”
Schedule “A”
|
12. (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business.
…
129. (1) The following persons may, within ninety days after the date of a seizure or the service of a notice, request a decision of the Minister under section 131 by giving notice in writing, or by any other means satisfactory to the Minister, to the officer who seized the goods or conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or closest to the place from where the notice was served:
(a) any person from whom goods or a conveyance is seized under this Act;
(b) any person who owns goods or a conveyance that is seized under this Act;
(c) any person from whom money or security is received pursuant to section 117, 118 or 119 in respect of goods or a conveyance seized under this Act; or
(d) any person on whom a notice is served under section 109.3 or 124.
…
130. (1) Where a decision of the Minister under section 131 is requested under section 129, the President shall forthwith serve on the person who requested the decision written notice of the reasons for the seizure, or for the notice served under section 109.3 or 124, in respect of which the decision is requested.
(2) The person on whom a notice is served under subsection (1) may, within thirty days after the notice is served, furnish such evidence in the matter as he desires to furnish.
(3) Evidence may be given under subsection (2) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.
131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide
…
(c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply.
… (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.
(3) The Minister’s decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 135(1).
…
133. (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine,
(a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be;
(b) remit any portion of any money or security taken; and
(c) where the Minister considers that insufficient money or security was taken or where no money or security was received, demand such amount of money as he considers sufficient, not exceeding an amount determined under subsection (4) or (5), as the case may be. (1.1) If the Minister decides under paragraph 131(1)(c) that the person failed to comply, the Minister may, subject to any terms and conditions that the Minister may determine,
(a) remit any portion of the penalty assessed under section 109.3; or
(b) demand that an additional amount be paid.
If an additional amount is demanded, the total of the amount assessed and the additional amount may not exceed the maximum penalty that could be assessed under section 109.3.
(2) Goods may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to
(a) the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto
(i) at the time of seizure, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies, or
(ii) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case; or
(b) such lesser amount as the Minister may direct. |
12. (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions prévues par règlement, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. …
129. (1) Les personnes ci-après peuvent, dans les quatre-vingt-dix jours suivant la saisie ou la signification de l’avis, en s’adressant par écrit, ou par tout autre moyen que le ministre juge indiqué, à l’agent qui a saisi les biens ou les moyens de transport ou a signifié ou fait signifier l’avis, ou à un agent du bureau de douane le plus proche du lieu de la saisie ou de la signification, présenter une demande en vue de faire rendre au ministre la décision prévue à l’article 131 :
a) celles entre les mains de qui ont été saisis des marchandises ou des moyens de transport en vertu de la présente loi;
b) celles à qui appartiennent les marchandises ou les moyens de transport saisis en vertu de la présente loi;
c) celles de qui ont été reçus les montants ou garanties prévus à l’article 117, 118 ou 119 concernant des marchandises ou des moyens de transport saisis en vertu de la présente loi;
d) celles à qui a été signifié l’avis prévu aux articles 109.3 ou 124. … 130. (1) Le président signifie sans délai par écrit à la personne qui a présenté la demande visée à l’article 129 un avis des motifs de la saisie, ou des motifs de l’avis prévu aux articles 109.3 ou 124, à l’origine de la demande.
(2) La personne visée au paragraphe (1) dispose de trente jours à compter de la signification de l’avis pour produire tous moyens de preuve à l’appui de ses prétentions.
(3) Les moyens de preuve visés au paragraphe (2) peuvent être produits par déclaration sous serment faite devant toute personne autorisée par une loi fédérale ou provinciale à faire prêter serment et à recevoir les déclarations sous serment.
131. (1) Après l’expiration des trente jours visés au paragraphe 130(2), le ministre étudie, dans les meilleurs délais possible en l’espèce, les circonstances de l’affaire et décide si c’est valablement qu’a été retenu, selon le cas :
… c) le motif de non-conformité aux paragraphes 109.1(1) ou (2) ou à une disposition désignée en vertu du paragraphe 109.1(3) pour justifier l’établissement d’une pénalité en vertu de l’article 109.3, peu importe s’il y a réellement eu non-conformité.
…
(2) Dès qu’il a rendu sa décision, le ministre en signifie par écrit un avis détaillé à la personne qui en a fait la demande.
(3) La décision rendue par le ministre en vertu du paragraphe (1) n’est susceptible d’appel, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues au paragraphe 135(1). …
133. (1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b), que les motifs d’infraction et, dans le cas des moyens de transport visés à l’alinéa 131(1)b), que les motifs d’utilisation ont été valablement retenus, peut, aux conditions qu’il fixe :
a) restituer les marchandises ou les moyens de transport sur réception du montant déterminé conformément au paragraphe (2) ou (3), selon le cas;
b) restituer toute fraction des montants ou garanties reçus;
c) réclamer, si nul montant n’a été versé ou nulle garantie donnée, ou s’il estime ces montant ou garantie insuffisants, le montant qu’il juge suffisant, à concurrence de celui déterminé conformément au paragraphe (4) ou (5), selon le cas.
(1.1) Le ministre, s’il décide en vertu de l’alinéa 131(1)c) que la personne ne s’est pas conformée, peut, aux conditions qu’il fixe :
a) remettre à la personne une portion de la pénalité établie en vertu de l’article 109.3;
b) réclamer une somme supplémentaire.
Toutefois, la totalité de celle-ci et de la somme établie ne doit pas dépasser le montant maximal de la pénalité qui peut être établie en vertu de l’article 109.3.
(2) La restitution visée à l’alinéa (1)a) peut, s’il s’agit de marchandises, s’effectuer sur réception :
a) soit du total de leur valeur en douane et des droits éventuellement perçus sur elles, calculés au taux applicable :
(i) au moment de la saisie, si elles n’ont pas fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), ou si elles sont passibles des droits ou droits supplémentaires prévus à l’alinéa 32.2(2)b) dans le cas visé au paragraphe 32.2(6),
(ii) au moment où elles ont fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), dans les autres cas;
b) soit du montant inférieur que le ministre ordonne. |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2251-04
STYLE OF CAUSE: Robert Leasak v. Minister of Public Safety and Emergency Preparedness et al
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 12, 2006
APPEARANCES:
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Mr. Douglas C. Morley
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Ms. Neva Beckie
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SOLICITORS OF RECORD:
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Davis & Company Vancouver, B.C.
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Vancouver Regional Office
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