Date: 19990831 Docket: T-2468-93
BETWEEN:
AHMAD A. SARJI
Plaintiff
- and -
MINISTER OF NATIONAL REVENUE (Customs & Excise)
Defendant
REASONS FOR ORDER
INTRODUCTION
LEMIEUX J.:
(1] Ahmad A. Sarji, (the "plaintiff"), pursuant to section 135 of the Customs Act, R.S. 1985, c. 1, (2nd Supp.) (the "Act") appeals by way of action the decision of the Minister of National Revenue (the "Minister"), dated July 21, 1993, made under section 131 of the Act, confirming the forfeiture of seized jewellery on the grounds there had been a contravention of the Act or the Regulations. The stated contravention was the plaintiff's failure to report, contrary to section 12 of the Act, the jewellery on his return to Canada from a trip to the United States. The
Page: 2 Minister's decision also determined the seized jewellery would be returned upon payment of the sum of $3,791.04.
[2] Fifty-one personal items of gold jewellery, eighteen of which had previously been returned by the defendant to the plaintiff, are involved in this appeal. The jewellery is of foreign origin, was purchased in Saudi Arabia and Lebanon and is to be worn by a woman or a child. Mr. Sarji says this jewellery belongs to his wife and daughter and was previously declared as settler's goods when Mrs. Sarji immigrated to Canada in 1990.
As noted, the Minister's decision was taken under section 131 of the Act.
This section provides for an internal review of seizures and was triggered when the
plaintiff made a review request under section 129 of the Act. The relevant parts i
of section 131 read:
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
(a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened;
(3) The Minister's decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise
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-:
a) le motif d'infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l'avis prévu à l'article 124;
(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
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dealt with except to the extent and in the manner provided by subsection 135(1).
la mesure et selon les modalités prévues au paragraphe 135(1).
(4] This appeal is pursuant to subsection 135 which reads:
135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant.
(2) The Federal Court Act and the Federal Court Rules applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions.
135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l'article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d'action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.
(2) La Loi sur la Cour fédérale et les Règles de la Cour fédérale applicables aux actions ordinaires s'appliquent aux actions intentées en vertu du paragraphe (1 ), sous réserve des adaptations occasionnées par les règles particulières à ces actions.
THE MINISTER'S DECISION
(51 The Minister's decision is in the form of a letter to the plaintiff dated July 21, 1993 from J. Bérubé, A/Chief, (Montreal and Ottawa Section), Adjudications. Its material parts read:
This letter refers to the above-captioned appeal matter and constitutes the decision taken and the Notice thereof.
The circumstances of this case have been considered and weighed and under the provisions of section 131 of the Customs Act, the following decision has now been rendered:
that there has been a contravention of the Customs Act and/or the Regulations with respect to the goods which were seized.
The decision having been rendered, it has been determined that pursuant to section 133 of the Customs Act, the amount of $172 received for the return of the seized clothing be held as forfeit; that
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pursuant to section 133 of the Customs Act, the goods listed as items 10, 11, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 36, 37, 38, 39 and 51 on the Description of Goods Seized be returned to the appellant without payment and upon failure to obtain the return of these goods on the foregoing terms within 90 days from the date of this notice of decision, that these goods be held as forfeit; and that pursuant to section 133 of the Customs Act, the balance of the seized goods be returned to the appellant on receipt of an amount of $3,791.04 to be held as forfeit and upon failure to obtain the return of the seized goods on the foregoing terms within 90 days from the date of this notice of decision that the balance of the seized goods be forfeit.
The representations submitted as well as the official reports received were carefully noted and taken into consideration. In this case, the forfeiture is confirmed as the seizure was made within the law and the action taken by the seizing/assessing agency was appropriate in the circumstances. However, in consideration of the particulars of this case, discretion is being exercised and a degree of mitigation is warranted. As can be seen, the forfeiture is remitted accordingly.
P.-S. Les termes de mainlevée ont été réduits en considération des bijoux décrits par le gemmologiste comme étant très usagés et en considération des factures qui correspondaient aux bijoux saisis.
THE ISSUE
[6] The sole and narrow issue is whether the Minister was correct in determining, in this case, "that there has been a contravention of the Customs Act and/or the Regulations with respect to the goods which were seized".
[7] In particular, the issue is whether the plaintiff breached the reporting provisions of section 12 of the Act when he made his customs declaration upon deplaning at Dorval International Airport on October 30, 1992.
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THE PLAINTIFF'S EVIDENCE
[81 Mr. Sarji was the only witness who testified for the plaintiff. His wife did not take the stand. The following is a description of his testimony.
[91 Mr. Sarji became a permanent resident of Canada in 1976. Mrs. Sarji became a landed immigrant of Canada in 1990 arriving in Canada on March 1 1 th of that year. She completed on landing a Customs Casual Goods Account Document L503785 in which she declared she had with her "Effet Personnel" worth $500 and "Rien à venir". Mrs. Sarji described her status as "Settler/Immigrant".
[101 The plaintiff, his wife and child, left Canada in late 1991 destined for Los Angeles, U.S.A. The plaintiff wanted to be with his father who was to be hospitalized for some time. Their stay in the United States was to be a lengthy one. Mrs. Sarji brought with her the jewellery in question.
[ 11 1 While in the United States, Mrs. Sarji learned she was pregnant with her second child; the pregnancy was complicated and, before birth, necessitated special surgical intervention. Canadian authorities determined that medical coverage would only be paid if delivery and attendant medical care was provided in a Canadian hospital.
Page: 6 [ 12] The return to Canada of the Sarji family was somewhat hasty because of
Mrs. Sarji's condition. All of the jewellery was left in the safety deposit box in Los Angeles rented by the plaintiff's brother who lived there.
[131 After the birth, the plaintiff, this time no longer accompanied by the rest of his family, returned on July 10, 1992 to Los Angeles to be with his father.
[141 After a few months, the plaintiff returned to Montreal on October 30, 1992 on a Northwest Airlines flight. He had with him the jewellery in a money belt tied to his waist. He said the money belt was visible and not concealed. He also had checked a suitcase.
[15] On the aircraft, he completed prescribed Canada Customs Form E-311. In
the area to be completed by all travellers, Mr. Sarji wrote "No" to the question "I
am bringing into Canada goods which exceed the values/quantities of my personal
exemption, including gifts". In the area to be completed by residents of Canada
only, Mr. Sarji wrote in what is underlined below on prescribed printed form:
I left Canada on 10/07/92 and the total value of all the goods that I am bringing into Canada which were purchased, received or acquired in any manner while outside the country, and at Duty Free Stores is: $200.00
- I have goods to follow at a later date valued at: $000
- I qualify for and wish to claim a personal exemption of goods valued at: $300.00
Page: 7 [161 Upon deplaning, the plaintiff handed the completed and signed declaration form to the Canadian Customs officer at the primary control point (before coming to the area where checked baggages are claimed). The plaintiff was asked about the $200 exemption and he declared to the primary control officer he had gifts of $200. He was also asked about alcohol and tobacco and he said he had none.
[171 The plaintiff was referred to the secondary control point. After picking up his luggage, the plaintiff was questioned by Customs Officer Larry Aubry.
[181 This is what Mr. Sarji said happened. Mr. Aubry first asked him "Do you have anything to declare" to which the plaintiff said "I have my wife's jewellery". Mr. Aubry then asked him where the jewellery was. The plaintiff answered it was in the pouch. Mr. Aubry asked for the pouch. The plaintiff gave it to Mr. Aubry who examined its contents. Mr. Aubry then said to another Customs Officer "Jackpot, let's go into a room for a strip search". The plaintiff was asked to empty his pockets and take off his jacket. He did so. He was not stripped and searched. Mr. Aubry then asked where the goods were purchased to which the plaintiff answered "This is before my wife immigrated to Canada. I bought it mostly from Saudi Arabia and Lebanon". Mr. Aubry then asked "Do you have the receipts", to which the plaintiff said "Yes, but it's overseas. It will take me like maybe a couple of weeks to bring it". Mr. Aubry then said "We will give you one month to bring the receipts and when you bring the receipts, we will give you the jewellery". Mr.
Page: 8 Sarji testified he obtained the receipts, attended at Dorval Airport, provided the receipts to the Customs Supervisor who was unreceptive. Mr. Sarji said he went to Ottawa and filed the receipts with the Customs Headquarters.
[19] As part of the plaintiff's exhibits (P-1), the plaintiff produced and identified a number of receipts or invoices from various jewellery retailers in Saudi Arabia and Lebanon. These receipts were to prove the origin of the seized goods, the dates of purchase as well as their cost. Three examples suffice: the purchase of a gold serpent on January 3, 1988, is said to cost US$566; another purchase on that date of two gold serpents is said to be for US$1212. A purchase in Saudi Arabia on June 28, 1989 is for US$915. Other receipts are in Lebanese pounds with no conversion to Canadian dollars. Other items cost between $25 and $50 each.
THE DEFENDANT'S EVIDENCE
[20] The defendant's version of the events at Dorval Airport on October 30, 1992, was provided through the testimony of Larry Aubry, the Customs Officer at the secondary checkpoint. Mr. Aubry said the plaintiff was referred to him by the primary control officer because the primary control officer had doubts on the plaintiff's declared value of goods imported. He said he asked the plaintiff what was covered by the $200 exemption, that is, what he had bought, what he had
Page: 9 received or what he had acquired on his trip to the U.S. The plaintiff answered he had purchased $200 worth of clothes.
[211 Mr. Aubry then asked the plaintiff to open his luggage. Mr. Aubry said he found $700 worth of clothes, had determined this value by examining the clothing in the plaintiff's suitcase, identified their origin and asked the plaintiff their cost. Mr. Aubry then seized clothing worth $400 ($700 less than the $300 exemption). Mr. Aubry then said, after the baggage search, he noticed the plaintiff was wearing a money belt. He asked him to hand over the money belt so he could examine it. Upon examination, he found the jewellery items wrapped in paper. Mr. Aubry then asked the plaintiff to step inside a separate search room. He asked the plaintiff where the jewellery came from and why he had the jewellery inside his money belt; the plaintiff answered it was the jewellery of his wife and his daughter and that they were settler goods. Mr. Aubry examined the jewellery more closely and noticed some of the jewellery appeared to be new and asked him again whether the items of jewellery were settler effects to which the plaintiff answered yes and had legal proof of importation at his house. Mr. Aubry testified some of the jewellery appeared to be relatively new and decided to seize the goods. Mr. Aubry listed a description of the goods seized. They consisted of gold bracelets, rings, earrings, etc.
Page: 10 [221 The seized jewellery was sent by Customs to an outside examiner, Mr.
Jocelyn Gonthier, who prepared a report for Customs. He testified at trial. valued the seized goods at $9,081.60 being their market value in Montreal confirmed that many of the pieces of jewellery were very slightly used, others were only slightly used, some nearly new; others were very worn.
He He
[231 The defendant filed as exhibit D-3 a letter dated November 24, 1992 written by the plaintiff to Customs and Excise Canada. This letter is essentially the plaintiff's section 129 appeal to the Minister. Mr. Sarji, in that letter, complained about what he said was the unjustified seizure of his wife and daughter's jewellery and requested one month's delay to provide documentation to prove the ownership of these personal settler's effects prior to his wife's landing in Canada as an immigrant and declared by her at that time.
THE RELEVANT STATUTORY AND REGULATORY PROVISIONS
[241 Section 12 of the Act deals with reporting requirements and reads:
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.
(2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe.
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.
(2) La déclaration visée au paragraphe (1) est à faire selon les modalités de temps et de forme fixées par le gouverneur en conseil.
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(3) Goods shall be reported under subsection (1)
(a) in the case of qoods in the actual possession of a person arrivinq in Canada, or that form part of his baqqaqe where the person and his baqqaqe are beinq carried on board the same conveyance, by that person; (a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada;
(b) in the case of goods, other than goods referred to in paragraph (a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and
(c) in any other case, by the person on behalf of whom the goods are imported.
(3.1) For greater certainty, for the purposes of the reporting of goods under subsecti-)n (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods.
(4) Subsection (1) does not apply in respect of goods that are reported in the manner prescribed under subsection (2) prior to importation at a customs office outside Canada unless an officer requires that the goods be reported again under subsection (1) after importation.
(5) This section does not apply in respect of goods on board a conveyance that enters Canadian waters, including the inland waters, or the airspace over Canada while proceeding directly from one place outside Canada to another place outside Canada unless an officer otherwise requires.
(6) Where qoods are required by the regulations to be reported under subsection (1) in writing, they shall be reported in the prescribed form containinq the prescribed information, or in such form containinq such information as is. satisfactory to the_. Minister.
(7) Goods described in tariff item No. 9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff
(3) Le déclarant visé au paragraphe (1) est, selon le cas-:
a) la personne ayant en sa possession effective ou parmi ses bagages des marchandises se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada;
a.1) l'exportateur de marchandises importées au Canada par messager ou comme courrier;
b) le responsable du moyen de transport arrivé au Canada à bord duquel se trouvent d'autres marchandises que celles visées à l'alinéa a) ou importées comme courrier;
c) la personne pour le compte de laquelle les marchandises sont importées.
(3.1) II est entendu que le fait de faire entrer des marchandises au Canada après leur sortie du Canada est une importation aux fins de la déclaration de ces marchandises prévue au paragraphe (1 ).
(4) Le paragraphe (1) ne s'applique qu'à la demande de l'agent aux marchandises déjà déclarées, conformément au paragraphe (2), dans un bureau de douane établi à l'extérieur du Canada.
(5) Le présent article ne s'applique qu'à la demande de l'agent aux marchandises, se trouvant à bord d'un moyen de transport qui se rend directement d'un lieu à un autre de l'extérieur du Canada en passant par les eaux canadiennes, y compris les eaux internes, ou l'espace aérien du Canada.
(6) Les déclarations de marchandises à faire, selon les règlements visés au paragraphe (1), par écrit sont à établir en la forme, ainsi qu'avec les renseignements, déterminés par le ministre ou satisfaisants pour lui.
(7) Ne peuvent être saisies à titre de confiscation en vertu de la présente loi, pour la seule raison qu'elles n'ont pas fait l'objet de la déclaration prévue au présent article, les marchandises, visées aux n ° 5 tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l'annexe du Tarif des
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(a) that are in the actual possession of a person arriving in Canada, or that form part of his baggage, where the person and his baggage are being carried on board the same conveyance, (b) that are not charged with duties, and
(c) the importation of which is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any Act of Parliament other than this Act or the Customs Tariff
may not be seized as forfeit under this Act by reason only that they were not reported under this section.
douanes, pour lesquelles les conditions suivantes sont réunies:
a) elles sont en la possession effective ou parmi les bagages d'une personne se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada; b) elles ne sont pas passibles de droits; c) leur importation n'est pas prohibée par le Tarif des douanes, ni prohibée, contrôlée ou réglementée sous le régime d'une loi fédérale autre que la présente loi ou le Tarif des douanes.
[emphasis mine]
[251 Section 13 of the Act spells out the obligation to answer questions and
present goods:
13. Every person reporting goods under section 12 inside or outside Canada shall
(a) answer truthfully any question asked by an officer with respect to the goods; and
(b) where an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part thereof, or open or unpack any package or container that the officer wishes to examine.
13. Quiconque déclare, dans le cadre de l'article 12, des marchandises à l'intérieur ou à l'extérieur du Canada doit-:
a) répondre véridiquement aux questions que lui pose l'agent sur les marchandises;
b) à la demande de l'agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l'agent veut visiter.
[261 Section 8 of the Act authorizes the Minister to prescribe forms. This section
reads:
8. The Minister may prescribe any form or any information to be qiven on a form that is by this Act or the regulations to be prescribed and may include on any form so prescribed a declaration, to be signed bb the person
8. Le ministre peut déterminer les formulaires à employer en vertu de la présente loi ou de ses règlements, ainsi que les renseignements à y porter, et y inclure une déclaration, à signer par l'intéressé, où celui-ci atteste la véracité,
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completing the form, declaring that the information given by that person on the form is true accurate and complete.
[emphasis mine]
l'exactitude et l'intégralité des renseignements qu'il a donnés.
[27] "Prescribed" is defined in section 2 of the Act in the following manner:
"prescribed" means
(a) in respect of a form, the information to be provided on or with a form, or the manner of filing a form, prescribed by the Minister, and
(b) in any other case, prescribed by regulation or determined in accordance with rules prescribed by regulation; [emphasis mine]
« •réglementaire »
a) Prescrit par le ministre, pour les formulaires, leurs modalités de production et les renseignements afférents;
b) prévu par règlement ou déterminé en conformité avec les règles prévues par règlement, dans tous les autres cas.
[28] The Act contains three provisions dealing with seizures and forfeit relevant
to this case. They are subsections 11 0(1), sections 122 and 123 which read:
110. (1) An officer may, where he believes on reasonable grounds that this Act or the regulations have been contravened in respect of goods, seize as forfeit
(a) the goods; or
(b) any conveyance that the officer believes on reasonable grounds was made use of in respect of the goods, whether at or after the time of the contravention.
122. Subject to the reviews and appeals established by this Act, any goods or conveyances that are seized as forfeit under this Act within the time period set out in section 113 are forfeit
(a) from the time of the contravention of this Act or the regulations in respect of which the goods or conveyances were seized, or
(b) in the case of a conveyance made use of in respect of goods in respect of
110. (1) L'agent peut, s'il croit, pour des motifs raisonnables, à une infraction à la présente loi ou à ses règlements du fait de marchandises, saisir à titre de confiscation-: a) les marchandises;
b) les moyens de transport dont il croit, pour des motifs raisonnables, qu'ils ont servi au transport de ces marchandises, lors ou à la suite de l'infraction.
122. Sous réserve des révisions, réexamens, appels et recours prévus par la présente loi, les marchandises ou moyens de transport saisis à titre de confiscation dans le délai fixé à l'article 113 sont confisqués:
a) soit à compter de l'infraction à cette même loi ou à ses règlements qui a motivé la saisie;
b) soit à compter de l'utilisation des moyens de transport qui ont servi au transport des marchandises ayant donné lieu à pareille infraction.
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which this Act or the regulations have been contravened, from the time of such use,
and no act or proceeding subsequent to the contravention or use is necessary to effect the forfeiture of such goods or conveyances.
123. The forfeiture of goods or conveyances seized under this Act or any money or security held as forfeit in lieu thereof is final and 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 section 129.
II n'est besoin de nul acte ni de nulle procédure postérieurs à l'infraction ou à l'utilisation pour donner effet à la confiscation.
123. La confiscation des marchandises ou des moyens de transport saisis en vertu de la présente loi, ou celle des montants ou garanties qui en tiennent lieu, est définitive et n'est susceptible de révision, de restriction, d'interdiction, d'annulation, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues à l'article 129.
[291 The onus provisions are spelled out in section 152 of the Act which read:
152. (1) In any proceeding under this Act relating to the importation or exportation of goods, the burden of proof of the importation or exportation of the goods lies on Her Majesty.
(2) For the purpose of subsection (1), proof of the foreign origin of goods is, in the absence of evidence to the contrary, proof of the importation of the goods.
(3) Subject to subsection (4), in any proceeding under this Act, the burden of proof in any question relating to
(a) the identity or origin of any goods, (b) the manner, time or place of importation or exportation of any goods,
(c) the payment of duties on any goods, or
(d) the compliance with any of the provisions of this Act or the regulations in respect of any goods
lies on the person, other than Her Majesty, who is a party to the proceeding or the person who is accused of an offence, and not on Her Majesty.
(4) In any prosecution under this Act, the burden of proof in any question relating to the matters referred to in paragraphs (3)(a) to (d) lies on the person who is accused of an
152. (1) Dans toute procédure engagée sous le régime de la présente loi en matière d'importation ou d'exportation de marchandises, la charge de prouver l'importation ou l'exportation incombe à Sa Majesté.
(2) Pour l'application du paragraphe (1), la preuve de l'origine étrangère des marchandises constitue, sauf preuve contraire, celle de leur importation.
(3) Sous réserve du paragraphe (4), dans toute procédure engagée sous le régime de la présente loi, la charge de la preuve incombe, non à Sa Majesté, mais à l'autre partie à la procédure ou à l'inculpé pour toute question relative, pour ce qui est de marchandises-:
a) à leur identité ou origine;
b) au mode, moment ou lieu de leur importation ou exportation;
c) au paiement des droits afférents; d) à l'observation, à leur égard, de la présente loi ou de ses règlements.
(4) Dans toute poursuite engagée sous le régime de la présente loi, la charge de la preuve incombe, pour toute question visée aux alinéas (3)a) à d), non à Sa Majesté, mais au prévenu, à condition toutefois que la Couronne ait établi que les faits ou circonstances en cause sont
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offence, and not on Her Majesty, only if the Crown has established that the facts or circumstances concerned are within the knowledge of the accused or are or were within his means to know.
connus de l'inculpé ou que celui-ci est ou était en mesure de les connaître.
[30] Lastly, reference is made to the Reporting of Imported Goods Regulations,
SOR/86-873 ("Reporting Regulations") made under the Act. The relevant
provisions are section 3 and subsections 5(1) [in part] and 5(3) which read:
3. Except as otherwise provided in these Regulations, all goods that are imported shall be reported under section 12 of the Act forthwith in writing at the nearest desiqnated customs office that is open for business.
5. (1) Subject to subsections (2) to (4), the following goods may be reported orally unless an officer requires the importer of the goods to report the goods in writing:
(a) goods in the actual possession of a person arriving in Canada, or that form part of his baggage where the person and his baggage are being carried on board the same conveyance;
(3) Goods that are imported by a person arriving in Canada on board a commercial passenger conveyance other than a bus shall be reported in writing.
[emphasis mine]
3. Sauf disposition contraire du présent règlement, toutes les marchandises qui sont importées doivent aussitôt être déclarées, aux termes de l'article 12 de la Loi, par écrit, au plus proche bureau de douane établi qui soit ouvert.
5. (1) Sous réserve des paragraphes (2) à (4), les marchandises suivantes peuvent être déclarées verbalement, sauf si un agent demande à l'importateur de faire une déclaration écrite
a) les marchandises en la possession effective d'une personne arrivant au Canada ou parmi ses bagages lorsque cette personne et ses bagages sont arrivés à bord du même moyen de transport;
(3) Les marchandises importées par des personnes arrivant au Canada à bord d'un moyen de transport commercial autre qu'un autobus doivent être déclarées par écrit.
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DISCUSSION AND CONCLUSIONS
(a) When and what has to be reported
[311 The plaintiff's amended statement of claim asserts Mr. Sarji had disclosed the seized jewellery items to the Customs Officer and his declaration was made in good faith and without any effort to hide-the seized items. Counsel for the plaintiff argued on this basis. Counsel for the plaintiff's argument was based on the fact, which if believed, the plaintiff had indicated to Mr. Aubry, the second control officer, the jewellery he had in his possession was the personal settler's effects of his wife (and daughter).
[321 On my view of this case, I do not have to make a credibility finding. Assuming the plaintiff's testimony is true, in my view, the plaintiff still failed to meet the reporting requirements of the Act and the Reporting Regulations.
[331 This case is one to be decided as a matter of statutory interpretation: what does section 12 of the Act mean, what do the Reporting Regulations provide, and what is the nature of the obligation set out in prescribed form E-31 1. In particular, what do the words "the total value of all the goods that I am bringing into Canada which were purchased, received or acquired in any manner while outside the country" in that prescribed form say.
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[341 Recently, the Supreme Court of Canada provided guidance on matters of
statutory interpretation. In A.G. of Canada v. Canadianoxy Chemicals Ltd. et al.,
decided on April 23, 1999, Major J., on behalf of the Court said this:
Statutory provisions should be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur; Rizzo & Rizzo Shoes Ltd. (Re), [19981 1 S.C.R. 27, at paras. 21-22. It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids.
[351 Adopting this approach, I find the plaintiff had an obligation under section 12 of the Act and under the Reporting Regulations, to report (declare) his wife's and daughter's jewellery on the E-31 1 prescribed form authorized by the Minister under section 8 of the Act and such declaration must be made in writing and handed to the primary control officer.
[361 This requirement is clear from a plain reading of the relevant portions of the Act and Regulations.
(a) Subsection 12(1) requires all goods imported to be reported. (b) Subsection 12(2) provides such reporting to be done at a time and manner as prescribed by the Regulations.
(c) Paragraph 12(3)(a) stipulates the goods in the actual possession of a person arriving in Canada shall be reported by that person.
Page: 18 (d) Subsection 12(6) says where the Regulations provide for reporting in writing, the goods shall be reported in the prescribed form containing the prescribed information.
(e) Section 3 of the Reporting Regulations require reporting forthwith to the nearest designated Customs office.
(f) Subsection 5(3) of the Reporting Regulations provides in the case of an airline passenger, reporting is to be in writing.
[37] Prescribed form E-311 required the plaintiff to declare, "all goods which he had purchased, received or acquired in anv manner while outside the countrv" i.e. on his July 10, 1992 trip to the United States where he took possession of his wife's jewellery.
[38] The plain and ordinary meaning of the word "received" is "take or accept into one's hands or one's possession; accept delivery of; be a recipient" (the New Shorter Oxford English Dictionary, page 2499). Moreover, the word "received" on the E-31 1 form must be read in conjunction with the remainder of the phrase which contains the words "in any manner while outside the country".
[39] These words have a broad meaning and, without doubt, cover the circumstances of Mr. Sarji's taking possession of his wife's and daughter's
Page: 19 jewellery while in the United States and bringing that jewellery into Canada on October 30, 1992.
[40] Such an interpretation is in accordance with the purpose of the reporting
provisions of the Act and Regulations. Martin J.A. of the Ontario Court of Appeal
in The Queen v. Walker et al. (1981), 2 C.E.R. 238, said this about the general
scheme of the Customs Act at page 242:
The general scheme of the Customs Act is to place a duty upon the person bringing goods into Canada to report them to Customs and make due entry of them in order to enable the Customs authorities to control the entry of goods into Canada, and to determine whether such goods are dutiable or not. [emphasis mine]
[411 Counsel for the plaintiff maintained the plaintiff did declare the goods when he said in answer to Mr. Aubry he had his wife's and daughter's jewellery. This argument must fail. The plaintiff's obligation was to report the jewellery in writing on the E-31 1 form and forthwith hand that form to the primary control officer. He failed to discharge this statutory obligation. It was simply too late for Mr. Sarji to make an oral declaration at the secondary control point. Such reporting, in Mr. Sarji's circumstances, is not in accord with the Act and Reporting Regulations and would defeat the reporting scheme.
[42] Counsel for Mr. Sarji argued the plaintiff was absolved from declaring the jewellery because that jewellery had previously been declared by his wife as
Page: 20 settler's goods. This Court's jurisprudence is contrary to the plaintiff's position. (See for example Kong v. Her Majesty The Queen (1985), 7 C.E.R. 240 and Shaikh v. Her Majesty The Queen (1983), 4 C.E.R. 122.) The fundamental thrust of that jurisprudence, in my view, is still generally good law notwithstanding the Customs Act was revamped in the mid 1980s. The reporting provisions in the new Act were modified somewhat but, as I see it,-the general reporting framework and scheme remained in place as previous.
[43] Teitelbaum J. in Lakhia v. The Queen (1992), 10 T.T.R. 180, added another element to a returning settler's jewellery case. He examined the issue of whether the seized jewellery was the jewellery which had been declared as settler's effect. He said the burden of proof was on the plaintiff. He was not satisfied the plaintiff had discharged this burden.
[44] I am of similar view in this case as Teitelbaum J. was in the Lakhia case. Mrs. Sarji's settler's effect declaration in March of 1990 which included the seized jewellery was valued by her at $500. Mr. Sarji, at trial, produced invoices showing the purchase prices of the jewellery. On their face, these invoices reveal purchase prices for the seized jewellery well exceeding the $500 covered by Mrs. Sarji's settler declaration. On this basis alone, I am not satisfied the plaintiff linked or matched in any reasonable way the seized jewellery to Mrs. Sarji's previous settler's declaration. In this case, where the defendant was satisfied that some of
Page: 21 the seized jewellery matched or could be covered by Mrs. Sarji's settler declaration, the defendant released the jewellery to the plaintiff. The defendant's action, in my view, while discretionary, was appropriate in this case.
THE GOOD FAITH ARGUMENT
[45] The plaintiff urged he acted in good faith throughout. He did not make any effort to hide the jewellery. He declared the jewellery to Mr. Aubry when asked.
[46] I need not deal with this issue at length. It is clear that under the Act, a seizure results from failure to report in accordance with the Act and Reporting Regulations regardless of whether the individual in question acted in good faith or what that person's intentions were. This proposition was settled by Pratte J.A. in The Queen v. Letarte, [1981] 2 F.C. 76 (F.C.A.).
[47) In Fenn (H.B.) and Co. Ltd. v. Minister of National Revenue (Customs &
Excise), 53 F.T.R. 7, Strayer J. (as he then was), said this at page 14:
It appears to me that in principle it does not matter whether the importer makes an innocent mistake as to fact or as to law. The system is one of voluntary reporting and strict liability attaches to those who fail to report. The contravention of the Act occurs when an incorrect declaration is made on behalf of an importer and the source of the error is irrelevant.
Page: 22 [481 To the same effect is Nerguizian v. Ministre du Revenu national (1996), 121 F.T.R. 241, per Tremblay-Lamer J.
DUE DILIGENCE
[491 Plaintiff's counsel argued due diligence defence to a violation of section 12 of the Act. Counsel for the Minister did not exclude the availability of such a defence. Counsel for the plaintiff cited the case of Chahill v. Canada, [ 1988) 3 F.C. 345, a decision of McNair J.
[501 This issue was recently considered by the Federal Court of Appeal in Time
Data Recorder International Ltd. et al. v. Minister of National Revenue (Customs &
Excise) (1997), 211 N.R. 229, where, under the heading "Strict Or Absolute
Liability" Pratte J.A. said this at page 234:
[161 A violation of s. 12 of the Customs Act is sanctioned both by criminal and by civil penalties. In such a case, as the criminal and civil offences are exactly the same, it follows, according to the appellant, that the defences available in the civil proceedings should be the same as in the criminal proceedings. As most of the penal offences under the Customs Act are strict liability offences admitting of a defence of due diligence, the same defence should be available in the civil proceedings.
[171 That argument was rejected by the trial judge who was of the view that our decision in Letarte v. R.. [19811 2 F.C.76 (F.C.A.), established that the defence of due diligence is not available to an importer whose goods have been seized and forfeited as a result of an erroneous declaration.
[181 Counsel for the appellant argued, not without reason, that the judge had apparently misconstrued our decision in Letarte. What was decided in that case was that the good faith of those who failed to comply with the Customs Act is not an excuse.
Page: 23
[191 This is, however, an academic discussion. In this case, the person who had to report the goods under s. 12 was the truck driver. He did not do it and the evidence does not show that he took reasonable care to comply with the section; if he had, he would not have forgotten to bring the documentation relating to the goods that were seized.
[511 Collier J. considered the due diligence defence in Kong, (supra). He put it
this way at page 250:
Counsel for Mrs. Kong contended the actions of the Immigration and customs officials prevented her from complying with the provisions of the Act; that she tried, in the circumstances, to comply; she
exercised due diligence; the line of authority found in R. v. Sault Ste Marie, [19781 2 S.C.R. 1299, permitting absolution from liability for "strict liability" obligations where reasonable care has been used, applies.
[521 Collier J. rejected the due diligence defence in the following terms at page
250:
The Sault Ste. Marie principle is not, to my mind, applicable to the circumstances here. Section 18 of the Customs Act (now section 12) requires a voluntary, unsolicited written report ("declaration" in modern language). On the evidence before me, I cannot find Mrs. Kong was deterred or prevented from doing that. She did what every experienced traveller normally does when entering Canada. She was not specifically asked about goods being brought in. She was wearing several pieces of jewellery. They were visible. Because of the difficulty that had arisen over her status she did say she was "bringing things" in. The officials treated her as having visitor status. They demanded nothing further in respect of her statement. She then assumed, unfortunately incorrectly, that she had done all she was required to, or perhaps more accurately, used to doing.
I cannot, however, find, on the evidence, she exercised due diligence, or that she was somehow prevented from carrying out the statutory duty.
Page: 24 [53] The words of Collier J. are appropriate and I would apply his reasoning to the matter at hand. As I read R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, the onus is on Mr. Sarji, on the balance of probabilities, to establish that he took every reasonable steps to avoid a breach of the reporting section of the Act or Regulations. Put another way, Mr. Sarji must establish he took all reasonable steps to report the seized jewellery. Mr. Sarji's evidence simply does not establish he took such steps.
DISPOSITION
[541 For these reasons, this action is dismissed with costs.
"Francois Lemieux"
JUDGE
OTTAWA, ONTARIO AUGUST 31, 1999
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2468-93
STYLE OF CAUSE: AHMAD A. SARJI v. THE MINISTER OF NATIONAL REVENUE (CUSTOMS & EXCISE)
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: MARCH 16, 1999
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE LEMIEUX DATED: AUGUST 31, 1999
APPEARANCES:
NAGI EBRAHIM
FOR PLAINTIFF
FRANCISCO COURO
FOR DEFENDANT
SOLICITORS OF RECORD:
EBRAHIM, MACLEOD & GERVAIS MONTRÉAL, QUÉBEC
FOR PLAINTIFF
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA OTTAWA, ONTARIO
FOR DEFENDANT