diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -28775,25 +28775,7 @@ "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT THE FEDERAL COURT DATED October 28, 2014, DOCKET NUMBER IMM-6711-13 (2014 FC 1022).", - "current_to": "2016-03-29", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" - }, - { - "id": "fca-143152-51", - "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 74", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "DOCKET: A-512-14 STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. PARMINDER SINGH and CANADIAN ASSOCIATION OF REFUGEE LAWYERS PLACE OF HEARING: MONTRÉAL, QUÉBEC DATE OF HEARING: OCTOBER 8, 2015 REASONS FOR JUDGMENT: JUSTICE De MONTIGNY CONCURRED IN BY: NADON J.A. GAUTHIER J.A. DATED: mARCH 29, 2016 APPEARANCES: Mario Blanchard Daniel Latulippe FOR THE appellant Stéphanie Valois FOR THE RESPONDEnt Anthony Navaneelan Aadil Mangalji for the intervener SOLICITORS OF RECORD: William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE APPELLANT Me Stéphanie Valois Lawyer Montréal, Québec FOR THE RESPONDENT Mamann, Sandaluk and Kingwell LLP Toronto, Ontario Long Mangalji LLP Toronto, Ontario FOR THE INTERVENER", + "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL", "current_to": "2016-03-29", "last_amended": "", "history": "", @@ -29347,29 +29329,11 @@ "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 78–80", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", - "part": "Federal Court of Appeal", - "division": "", - "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.", - "current_to": "2012-12-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" - }, - { - "id": "fca-37663-32", - "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 81", + "marginal_note": "paras 78–81", "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Subject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-379-11 STYLE OF CAUSE: FEBLES v MCI PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 19, 2012 REASONS FOR JUDGMENT BY: EVANS J.A. CONCURRED IN BY: SHARLOW J.A. CONCURRING REASONS BY: STRATAS J.A. DATED: December 7, 2012 APPEARANCES: Jared Will Peter Shams FOR THE APPELLANT Normand Lemyre FOR THE RESPONDENT SOLICITORS OF RECORD: Jared Will, Lawyer Montreal, Quebec FOR THE APPELLANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT", + "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.\n\nSubject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL", "current_to": "2012-12-07", "last_amended": "", "history": "", @@ -29963,7 +29927,7 @@ "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-140-08 STYLE OF CAUSE: RUWAN CHANDIMA JAYASEKARA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 14, 2008 REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: SHARLOW J.A. PELLETIER J.A. DATED: December 17, 2008 APPEARANCES: Michael Korman FOR THE APPELLANT Lisa Hutt FOR THE RESPONDENT SOLICITORS OF RECORD: Otis & Korman Toronto, Ontario FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT", + "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL", "current_to": "2008-12-17", "last_amended": "", "history": "", @@ -30179,7 +30143,7 @@ "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-11-07 APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE MOSLEY DATED DECEMBER 7, 2006 IN FILE NO. IMM-7269-05 STYLE OF CAUSE: Syed Masood Raza et al v. MCI et al PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 29, 2007 REASONS FOR JUDGMENT BY: SHARLOW J.A. CONCURRED IN BY: LINDEN J.A. RYER J.A. DATED: December 6, 2007 APPEARANCES: Mr. Ronald Poulton FOR THE APPELLANTS Mr. Greg George Mr. Bernard Assan FOR THE RESPONDENTS SOLICITORS OF RECORD: Mamann & Associates Toronto, Ontario John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE APPELLANTS FOR THE RESPONDENTS Toronto, Ontario", + "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL", "current_to": "2007-12-06", "last_amended": "", "history": "", @@ -30841,29 +30805,11 @@ "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 107–108", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", - "part": "Federal Court of Appeal", - "division": "", - "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.", - "current_to": "2014-11-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" - }, - { - "id": "fca-99694-38", - "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 109", + "marginal_note": "paras 107–109", "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "In view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-281-13 STYLE OF CAUSE: BEHZAD NAJAFI v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 1, 2014 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: PELLETIER J.A. NEAR J.A. DATED: nOVEMBER 7, 2014 APPEARANCES: Lorne Waldman Clare Crummey For The Appellant David Cranton Sofia Karantonis For The Respondent SOLICITORS OF RECORD: Waldman and Associates Toronto, Ontario For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent", + "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.\n\nIn view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL", "current_to": "2014-11-07", "last_amended": "", "history": "", @@ -31471,29 +31417,11 @@ "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 54–55", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", - "part": "Federal Court of Appeal", - "division": "", - "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.", - "current_to": "2006-10-12", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" - }, - { - "id": "fca-35313-23", - "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 56", + "marginal_note": "paras 54–56", "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "For these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-473-05 (APPEAL FROM AN ORDER OF THE HOUNOURABLE MR. JUSTICE HUGHES, FEDERAL COURT, DATED SEPTEMBER 22, 2005, IMM-8912-04) DOCKET: A-473-05 STYLE OF CAUSE: JOTHIRAVI SITTAMPALAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 25, 2006 REASONS FOR JUDGMENT BY: linden j.a. CONCURRED IN BY: NADON J.A. SEXTON J.A. DATED: OCTOBER 12, 2006 APPEARANCES: Barbara Jackman Leigh Salsberg For The Appellant Meilka Visnic Alison Engel-Yan For The Respondents SOLICITORS OF RECORD: Jackman & Associates Toronto, Ontario For The Appellant John H. Sims, Q.C. Deputy Attorney General of Canada For The Respondents", + "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.\n\nFor these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL", "current_to": "2006-10-12", "last_amended": "", "history": "", @@ -31817,7 +31745,7 @@ "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-479-03 STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Kaileshan Thanabalasingham PLACE OF HEARING: Ottawa, Ontario DATES OF HEARING: December 9, 2003 REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. CONCURRED IN BY: STONE J.A. SHARLOW J.A. DATED: January 9, 2004 APPEARANCES: Mr. Donald MacIntosh and Mr. Greg George FOR THE APPELLANT Ms. Barbara Jackman FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. Morris Rosenberg Deputy Attorney General of Canada Toronto, Ontario FOR THE APPELLANT Barbara Jackman Toronto, Ontario FOR THE RESPONDENT", + "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL", "current_to": "2004-01-09", "last_amended": "", "history": "", @@ -32213,7 +32141,7 @@ "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-444-16 STYLE OF CAUSE: JACOB DAMIANY LUNYAMILA v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 30, 2017 REASONS FOR JUDGMENT BY: LASKIN J.A. CONCURRED IN BY: STRATAS J.A. WOODS J.A. DATED: january 19, 2018 APPEARANCES: Anthony Navaneelan For The Appellant John Provart Susan Gans For The Respondent SOLICITORS OF RECORD: REFUGEE LAW OFFICE Legal Aid Ontario Toronto, Ontario For The Appellant Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent", + "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL", "current_to": "2018-01-19", "last_amended": "", "history": "", @@ -33451,29 +33379,11 @@ "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 160–162", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", - "part": "Federal Court of Appeal", - "division": "", - "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?", - "current_to": "2020-08-07", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" - }, - { - "id": "fca-483607-70", - "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 163", + "marginal_note": "paras 160–163", "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "I would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Dockets: A-274-17 AND A-282-17 STYLE OF CAUSE: ALVIN BROWN ET AL. v. MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 26-27, 2019 REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: GAUTHIER J.A. STRATAS J.A. DATED: AUGUST 7, 2020 APPEARANCES: Jared Will Jean Marie Vecina For The Appellant, Alvin Brown Swathi Sekhar FOR THE APPELLANT, End Immigration Detention Network Bernard Assan Charles Julian Jubenville For The Respondents Sharryn Aiken Maureen Silcoff Aris Daghighian For The Interveners SOLICITORS OF RECORD: Jared Will & Associates Toronto, Ontario For The Appellant, Alvin Brown Nathalie G. Drouin Deputy Attorney General of Canada For The Respondents Refugee Law Office Toronto, Ontario For The Interveners", + "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nI would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL", "current_to": "2020-08-07", "last_amended": "", "history": "", @@ -34175,7 +34085,7 @@ "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-165-08 STYLE OF CAUSE: SERGIO ADRIAN BARON and MARIELA FERNANDA RIQUELME v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, ON DATE OF HEARING: December 1, 2008 REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: DESJARDINS J.A. REASONS CONCURRING IN THE RESULT BY: BLAIS J.A. DATED: March 13, 2009 APPEARANCES: D. Clifford Luyt FOR THE APPELLANTS Amina Riaz Maria Burgos Manuel Mendelzon FOR THE RESPONDENT SOLICITORS OF RECORD: D. Clifford Luyt, Barrister and Solicitor Toronto, ON FOR THE APPELLANTS John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT", + "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL", "current_to": "2009-03-13", "last_amended": "", "history": "", @@ -36349,29 +36259,11 @@ "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 129–130", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", - "part": "Federal Court of Appeal", - "division": "", - "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.", - "current_to": "2021-08-05", - "last_amended": "", - "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" - }, - { - "id": "fca-501244-88", - "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 131", + "marginal_note": "paras 129–131", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-348-19 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. BEST BUY CANADA LTD. PLACE OF HEARING: Heard by online video conference hosted by the Registry DATE OF HEARING: January 19, 2021 REASONS FOR JUDGMENT BY: NEAR J.A. CONCURRING REASONS BY: GLEASON J.A. CONCURRED IN BY: LEBLANC J.A. DATED: August 5, 2021 APPEARANCES: Andrew Gibbs Elsa Michel For The Appellant Justin Kutyan Thang Trieu For The Respondent SOLICITORS OF RECORD: Nathalie G. Drouin Deputy Attorney General of Canada For The Appellant KPMG Law LLP Toronto, Ontario For The Respondent", + "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL", "current_to": "2021-08-05", "last_amended": "", "history": "", @@ -36803,7 +36695,7 @@ "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-407-18 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. HONEY FASHIONS LTD PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 6, 2019 REASONS FOR JUDGMENT BY: DE MONTIGNY J.A. CONCURRED IN BY: BOIVIN J.A. GLEASON J.A. DATED: March 19, 2020 APPEARANCES: Stéphanie Lauriault David Di Sante For The Appellant Peter Kirby Alexandra Logvin For The Respondent SOLICITORS OF RECORD: Nathalie G. Drouin Deputy Attorney General of Canada For The Appellant Fasken Martineau DuMoulin LLP Montréal, Quebec For The Respondent", + "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL", "current_to": "2020-03-19", "last_amended": "", "history": "", @@ -36818,7 +36710,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 1–3", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", @@ -36836,7 +36728,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 4", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Mr. Hociung purchased the coins in the United States at a cost of $5,700 USD, although their denomination or face value is $220 USD. Mr. Hociung had been traveling to the United States for the day only (same day traveler); he was not questioned about the amount of “cash” or “currency” in his possession by the CBSA officer and the seizure did not relate to a failure to declare the coins under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, S.C. c. 17 (the Proceeds of Crime Act) or the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 (the Reporting Regulations). The coins were discovered after Mr. Hociung was asked to present himself to the CBSA’s office for inspection after he declared having bought two new tires for his car in the United States (declared value $500). There is no indication in the record that he was asked to pay any duties or taxes on the tires.", @@ -36854,7 +36746,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 5–6", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Mr. Hociung contested the seizure and requested a decision from the Minister of Public Safety and Emergency Preparedness (the Minister) on the issue of whether the Customs Act had been contravened. Pursuant to section 131 of the Customs Act, the Minister’s delegate found that there had indeed been a contravention of section 12 of the Customs Act, but as he was entitled to do pursuant to section 133 of the Customs Act, he reduced the penalty for the release of the seized coins from $1,606.97 to $321.39 (section 133 of the Customs Act). He dismissed Mr. Hociung’s argument that the coins were “currency” as opposed to “goods” and therefore he did not need to declare them under the Customs Act. It is in this context that Mr. Hociung contested the CBSA’s interpretation of the word “currency” in the Proceeds of Crime Act that contributed in his view to a misapplication of the Customs Act and the Proceeds of Crime Act, as well as the relevant regulations adopted under the latter statute.\n\nThe denomination value of the coins ($220 USD) if used as legal tender in the United States was less than $10,000 CAD. Even if held to be currency within the meaning of the Proceeds of Crime Act, Mr. Hociung was not required to declare the coins under that statute as their value was below the limit set out in the Reporting Regulations. There is no dispute about this.", @@ -36872,7 +36764,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 7–8", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "The Minister’s delegate issued his decision on May 28, 2015. On August 28, 2015, Mr. Hociung filed his action before the Federal Court. Although his action includes an appeal pursuant to section 135 of the Customs Act, it does include other claims and seeks additional relief, including damages based on alleged torts committed during the interaction between CBSA employees and Mr. Hociung, such as threats of violence and fraudulent misrepresentations.\n\nIn his statement of claim, Mr. Hociung, a self-represented litigant, describes the seizure and the alleged misinterpretation of the Customs Act, the Proceeds of Crime Act and the Currency Act, R.S.C., 1985, c. C-52 (the Currency Act) by the CBSA as fraudulent and designed to (i) aid crime and terrorism in Canada, and (ii) make illegal profits from the taxation of “currency” as “goods”. He alleges that various employees involved in the seizure and his contestation of it are guilty of criminal conduct. Among the other relief sought are damages and various declarations, such as a declaration that Canadian and foreign precious metal coins fall within certain provisions of the Proceeds of Crime Act as opposed to the Customs Act. Mr. Hociung also seeks an order directing the Prime Minister to create an oversight body to ensure the lawful implementation of the Proceeds of Crime Act, as well as an order directing the refund of all taxes, duties, and any fines obtained by the CBSA in relation to shipments of gold and silver coins, foreign and domestic, since the Proceeds of Crime Act was enacted.", @@ -36890,7 +36782,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 9", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "In his motion to amend his statement of claim (the subject of the appeal in file A-101-18), Mr. Hociung seeks to add two defendants, including Her Majesty the Queen (vicarious liability), as well as claims against other employees of the CBSA involved in the process leading to the Minister’s final decision (see e.g., paragraphs 3(a)(4), 3(a)(4)(g), 5 and 6 of the proposed amended statement of claim). He also wishes to include various factual details, particularly with respect to the so-called “money laundering scheme run by the CBSA” (such as paragraphs 9, 10 and 11 of the proposed amended statement of claim), references to internal bulletins, and previous instances involving the alleged “misapplication” of the Proceeds of Crime Act and other statutes by the CBSA, of which he became aware after filing his action. Mr. Hociung also sought to amend his statement of claim to refer to section 469 of the Criminal Code, R.S.C. 1985, c. C-46, which grants the power to every court of criminal jurisdiction to deal with certain types of offences, and to include additional relief such as an order directing the Minister of Public Safety to dismantle the present CBSA and to implement a new Agency that conforms to the requirements of the Canada Border Services Agency Act.", @@ -36908,7 +36800,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 10–11", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "In August 2016, after filing a brief statement of defence, the respondent filed a motion in writing seeking an order striking out the statement of claim in its entirety without leave to amend. In her order dismissing the said motion, Prothonotary Milczynski made it clear that the respondent had not relied on an alternative approach of challenging each type of claim and relief sought so that at least some portions of the statement of claim could be struck. Having found that it was not clear that the appeal pursuant to section 135 of the Customs Act was without merit and that Mr. Hociung had to institute a separate action for his other causes of action, the Prothonotary dismissed the motion. That said, she expressly noted that the respondent would not be prevented from seeking an order striking out portions of the statement of claim at a later stage, once Mr. Hociung filed the motion to amend he alluded to in his representations before her.\n\nOn February 20, 2017, Mr. Hociung filed a motion in writing to amend his statement of claim. On March 1, 2017, the respondent filed the motion for summary judgment that resulted in the decision under appeal in this file. Despite the Prothonotary’s comments, once again, rather than relying on arguments targeted at each type of claim and relief sought, the respondent asked for the dismissal of the entire action, even in its amended form based on what the respondent considered the only genuine issues. These consisted of two questions of law: (i) whether, in an action brought under section 135 of the Customs Act, a plaintiff may claim damages or seek mandamus, and (ii) whether collector coins are “currency” or “goods” for the purpose of the Customs Act.", @@ -36926,7 +36818,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 12–14", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "It is not disputed that in an appeal pursuant to section 135 of the Customs Act, a plaintiff cannot contest decisions such as the imposition of a penalty made under other provisions of the Customs Act, for generally such decisions must be contested by an application for judicial review to be filed within 30 days of the decision, rather than an ordinary action filed within the 90 days from the notification of the ministerial decision (see for example Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724; Starway v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1208) and very recently Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 9).\n\nRelying on the jurisprudence referred to in the Federal Court’s reasons (the Reasons) at paragraphs 27 to 29, the respondent sought to exclude any other claims or relief from the statement of claim on the basis that these were also outside the scope of section 135. Presumably, rather than dealing with the numerous legal issues arising from the nature of those allegations including jurisdiction and standing, this offered an easier way to dispose of the numerous claims and relief sought by Mr. Hociung.\n\nObviously, unless the respondent succeeded on the first question of law, the answer as to the second question of whether Mr. Hociung’s collector coins were “goods” or “currency” could not warrant the dismissal of the statement of claim in its entirety (see Reasons at paras. 16 to 20). Indeed, as acknowledged by the respondent’s counsel at the hearing before us, unless a joinder of causes of action is precluded, the answer to the second question clearly could not justify the dismissal of the claim for damages based on threats of violence by a CBSA officer.", @@ -36944,7 +36836,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 15–17", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "I ought to note that there are obvious difficulties arising when a party is self-represented and may lack legal knowledge and some or all of his claims may be without merit. Despite this reality, defendant’s counsel has the duty to put before the court a motion including all of the appropriate grounds and authorities that will enable the Court to efficiently strike out or dismiss a claim on the basis that it has no merit. Efficiency and proportionality do not justify undue legal shortcuts.\n\nThe Federal Court dismissed the action after reformulating the first question as follows: “Is an action commenced pursuant to section 135 of the Customs Act limited to a determination of whether there has been a contravention of the Customs Act?” It found that anything other than whether or not Mr. Hociung had contravened section 12 of the Customs Act was beyond the scope of a section 135 action and must be pursued in other proceedings (Reasons at paras. 25 to 32). Except for a brief mention at paragraph 26 of the Reasons that it had not been persuaded by Mr. Hociung that section 135 allows for a joinder of various causes of action, the Federal Court did not explain why it excluded the application of Rules 101and 106 of the Federal Courts Rules, S.O.R./98-106 (the Rules), from the ambit of subsection 135(2) of the Customs Act (See paragraph 21 below).\n\nIn respect of the second question, it held that the collector coins at issue are “goods” within the meaning of section 12 of the Customs Act and had to be declared. Thus, Mr. Hociung had contravened the Customs Act and his collector coins could be seized on that basis.", @@ -36962,7 +36854,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 18–20", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Furthermore, the Federal Court found that even if in its view these type of coins may also have to be declared when their denomination value was over the limit of $10,000 CAD or its equivalent in foreign currency (section 12 of the Proceeds of Crime Act and section 2 of the Reporting Regulations), the fact that these coins are also “goods” under the Customs Act does not create a true conflict between the relevant legislative provisions (Reasons at paras. 68 to 72).\n\nImportantly, the Federal Court also noted that the question of whether duties were payable on these “goods” was not the issue in the action, as the obligation to declare under section 12 of the Customs Act was not limited to “goods” on which duties are actually payable (Reasons at paras. 63 to 66).\n\nThis appeal raises the following main issues: Did the Federal Court make a reviewable error in answering the two questions raised in the respondent’s motion? Is there a reasonable apprehension of bias as alleged by Mr. Hociung?", @@ -36980,7 +36872,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 21–22", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Subsection 12(1) and section 135 of the Customs Act read as follows: 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. 12 (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions réglementaires, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. 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. 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. Ordinary action Action ordinaire (2) The Federal Courts Act and the rules made under that Act 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. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi 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.\n\nRules 101 and 106 as well as some of the other relevant provisions referred to herein are reproduced in Annex 1.", @@ -36998,7 +36890,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 23", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "It is well established that on a motion for summary judgment, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply (Hryniak v. Mauldin, 2014 SCC 7 at paras. 81 and 84). Thus, the standard of correctness applies to questions of law, while questions of fact and of mixed fact and law are reviewed on the standard of palpable and overriding error.", @@ -37016,7 +36908,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 24", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "As mentioned earlier, Mr. Hociung’s main argument is that Rule 101(1) allows him to request relief in his action in respect of more than one claim. Pursuant to Rule 101(3), not all parties to the action need have an interest in all relief claimed in the said proceeding. Mr. Hociung submits that if Parliament intended to exclude the application of this Rule to actions instituted pursuant to section 135 of the Customs Act, it would have used explicit language similar to the one used in subsection 81.28(3) of the Excise Tax Act, R.S.C., 1985, c. E-15 (the Excise Tax Act), which deals with actions brought under that section. The relevant portion of the provision reads as follows: (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that (3) Un appel à la Cour fédérale en vertu de la présente partie est réputé être une action devant celle-ci à laquelle la Loi sur les Cours fédérales et les règles établies conformément à cette loi s’appliquent comme pour une action ordinaire, sauf dans la mesure où l’appel est modifié par des règles spéciales établies à l’égard de tels appels, sauf que : (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part; a) les règles concernant la jonction d’instances et de causes d’action ne s’appliquent pas, sauf pour permettre la jonction d’appels en application de la présente partie; […] […]", @@ -37034,7 +36926,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 25–27", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Subsection 135(2) of the Customs Act clearly indicates that the Rules apply to an action instituted under subsection 135(1), except as varied by special rules made in respect of such actions. The Customs Act does contain some specific provisions such as its subsection 106(3), which deals with stays of actions and other proceedings that could be viewed as special rules within the meaning of subsection 135(2). However, the respondent did not direct us to any provisions of the Customs Act setting a special rule that could preclude the application of Rules 101 and 106. I have not found any.\n\nThe case law holding that in an action pursuant to section 135, a party cannot seek judicial review of decisions other than whether there has been a contravention to the Customs Act is of no help here. None of the decisions relied upon by the Federal Court and the respondent deal with the issue before us or rely on reasoning that could be relevant to the interpretation of the current issue.\n\nThe Rules are very liberal in their treatment of joinders of parties and causes of action. However, this right is subject to the overriding discretion and power of the Court to sever claims as provided by Rule 106. Before severing claims pursuant to that provision, the Court must carefully weigh the prejudice to the plaintiff, if any. Severing claims pursuant to Rule 106 is not the same as dismissing an action for summary judgment. It is a procedural order that is usually followed by appropriate directions detailing how to sever the claims. Certainly, it should be done in a manner that would not preclude a party from pursuing an otherwise valid claim because it would now be time-barred.", @@ -37052,7 +36944,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 28–31", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "In the same manner that the respondent’s motion, which refers to Rule 221 as opposed to Rule 215, was considered a proper motion for summary judgment by the Federal Court, despite this error, Mr. Hociung’s action must be considered for what it is – an action where he has included more than one cause of action and where he seeks more than an appeal of the Minister’s decision under section 135 of the Customs Act.\n\nBecause the Federal Court erred in its conclusion in respect of this first question, it could not simply dismiss the action in its entirety on the sole basis that there had been a contravention to the Customs Act without examining if and how all the causes of action and relief sought were affected by such determination.\n\nI will comment further on what order could be granted on this motion and in this appeal in section V of these reasons after reviewing whether the Federal Court erred in concluding that the coins at issue were “goods” that had to be declared under subsection 12(1) of the Customs Act.\n\nBefore us, Mr. Hociung argues that as the purpose of the Customs Act is to collect custom duties, the obligations set out in section 12 of the Customs Act can only apply to goods on which duties are payable. Even if his coins were “goods”, a conclusion that he also contests, because they were either exempted from taxes or subject to a zero custom duty rate, there was no obligation to report them. I will deal with this argument first. If I find that the obligation to report applies regardless of whether duties are payable, I will review whether as argued by Mr. Hociung, his coins fall outside of the ambit of “goods” as this word is used in section 12.", @@ -37070,7 +36962,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 32–34", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Having considered the wording of section 12 in its context, harmoniously with the purpose and object of the scheme of the Customs Act and of this particular provision, I agree with the Federal Court that the obligation to declare is distinct from the obligation to pay duties which is dealt with under the title “Duties” starting at section 17 of the Customs Act. The obligation to report is not limited to goods that attract the payment of duties or other taxes.\n\nThere is nothing in the ordinary meaning of the wording of subsection 12(1) that would justify such a limitation.\n\nWhen one considers the wording of subsection 12(1) in the context of section 12 as a whole, subsection 12(7) becomes relevant. It provides that subject to three cumulative conditions, goods described in tariff item 9813.00.00 or 9814.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36 may not be seized as forfeit by reason only that they were not reported under subsection 12(1). It is telling that “goods” that fall within the description of the aforementioned tariff items will only be exempted from such seizure if “their importation 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.” This is so, even if those goods are not charged with duties (see text of this provision in Annex 1).", @@ -37088,7 +36980,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 35–39", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Moreover, I cannot agree that the interpretation suggested by Mr. Hociung is mandated by the main purpose of the Customs Act. The officers of the CBSA are the persons charged with determining whether or not duties are payable and whether or not goods can be imported into Canada without any restrictions under other statutes. They cannot fulfill their statutory responsibilities unless goods are reported to them. To claim the benefit on an exemption or a zero rate of duty, one must first report the goods.\n\nSection 13 of the Customs Act also creates another obligation quite distinct from the payment of duties. It is an obligation to answer questions about the goods imported and to present those goods for inspection to an officer of CBSA when required to do so. This obligation arises whether or not duties or other taxes are due.\n\nThen, the Customs Act provides at section 18 who is liable to pay the duties as defined in section 2(1) of the Customs Act (see also The Excise Tax Act, section 212 which refers to persons liable under the Customs Act to pay duties on imported goods confirming that such an obligation arises from the provisions of the Customs Act itself).\n\nThere is no ambiguity, an exemption from the payment of taxes under the Excise Tax Act, or a zero custom duty rate in the Customs Tariff is not an exemption to report under subsection 12(1) of the Customs Act.\n\nIt appears from the case synopsis (Appeal Book, Volume 4 at page 655 and 658) that in the CBSA’s view, subsection 12(7) of the Customs Act did not apply to Mr. Hociung’s coins, which were imported for the first time into Canada. Mr. Hociung did not contest this particular finding. From my review of the description of the tariff items referred to in that provision, it is evident that he indeed had no basis to do so.", @@ -37106,7 +36998,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 40–43", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Having determined that the obligation to report or declare all goods imported in Canada is not limited to “goods” which are subject to the payment of duties or other taxes, it is clear from the wording of the motion for summary judgment and the respondent’s written representations that the only other question that had to be determined is whether the actual coins seized were “goods” within the meaning of section 12 of the Customs Act.\n\nThere is no need, and it would be unwise for this Court to attempt to give an exhaustive definition of the word “goods”, considering the Customs Act does not contain such an exhaustive definition. Indeed at section 2, it simply states: goods, for greater certainty, includes conveyances, animals and any document in any form; (marchandises) marchandises Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support. (goods)\n\nThe word “goods” is intended to be used in the broadest sense possible considering that in its ordinary meaning; it would not usually be understood to include “any document in any form”.\n\nNeither party relied on any case law dealing with the ambit of section 12 of the Customs Act or on the legislative evolution of that section. However, Mr. Hociung and the respondent have referred to several statutes, including the Customs Tariff, the Excise Tax Act, the Proceeds of Crime Act, the Currency Act, the Royal Mint Act, R.S.C., 1985, c. R-9 and related regulations. Although I have considered them, I need not refer to all of them for I find that the Customs Tariff provides the most useful indication of the legislator’s intention as to whether coins that have legal tender such as those under consideration are included in the word “goods”.", @@ -37124,7 +37016,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 44–45", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Pursuant to section 4 of the Customs Tariff: Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe.\n\nNothing in the Customs Tariff provides otherwise in respect of the word “goods”. It is quite clear when one reads, for example, the definition of “Tariff Item” which basically is a description of “goods”, and section 10 of the Customs Tariff (See Annex 1) which deals with the classification of “goods” in the List of Tariff Provisions, that generally something listed under a Tariff item is within the ambit of the word “goods” in the Customs Act, particularly as used in section 12.", @@ -37142,7 +37034,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 46", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "As explained in Canada (Attorney General) v. Igloo Vikski Inc., 2016 2 S.C.R. 80 (Igloo Vikski), the Customs Tariff “implements Canada’s obligation as a party to the International Convention Governing the Harmonized Commodity Description and Coding System…The Convention governs the Harmonized Commodity Description and Coding System (The “Harmonized System”) by which approximately 5,000 commodity groups of imported goods are classified” (Igloo Vikski at para. 3) (my emphasis). This system was developed to foster predictability and stability in classification practices internationally. “The Harmonized System uses an eight-digit classification system for tariff classifications, which is incorporated into the Schedule to the Customs Tariff” (Igloo Vikski at para. 5). Rather than using the example (Live Animals; Animal Products) used in Igloo Vikski, I will refer to some classification items related to what one would ordinarily consider “money” or “currency” such as issued banknotes that are legal tender (Tariff item No. 4907.00.00.12, see Annex 1), coins (Tariff item No. 71.18) including gold coins that are legal tender (Tariff item No. 7118.90.00.10 – see Annex 1), and silver or other metal coins (Tariff item No. 7118.90.00.99). There are other relevant Tariff items, but my point here is that the words “money” and “currency” are not used in the Customs Tariff or in the Customs Act except when a sum of money needs to be paid or value is considered (see for example sections 55, 132 and 133 of the Customs Act). Indeed the Harmonized System is a much more precise classification for imported goods. It is therefore not particularly useful to look at various statutory definitions of “money” or “currency” to construe section 12 of the Customs Act.", @@ -37160,7 +37052,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 46–49", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "It is also unnecessary to examine whether coins could be “financial instruments” under the Excise Tax Act.\n\nHowever, in light of Mr. Hociung’s argument that it would be contradictory to include anything falling within the definition of “currency” under the Proceeds of Crime Act in the definition of “goods” under the Customs Act, I must agree with the Federal Court that the interpretation of the Proceeds of Crime Act it adopted, even if it was not required in my view to do so to answer the question raised in the motion before it, does not result in a conflict between the Proceeds of Crime Act and the Customs Act. Those two statutes can both be applied without contradiction or conflict. The fact that under the Proceeds of Crime Act the obligation to report is more limited – it only applies to currency and monetary instruments over the limit set out in the Reporting Regulations, cannot justify restricting the proper interpretation of section 12 of the Customs Act which Parliament clearly did not see fit to amend when it adopted the Proceeds of Crime Act in 2000.\n\nI therefore conclude that the Federal Court did not err in law when it concluded that the coins were “goods” subject to the obligation to declare provided for in section 12 of the Customs Act.\n\nAs mentioned, to determine this appeal, it is not necessary for this Court to deal with the issue of whether or not the subject coins could fall within the definition of “currency” of the Proceeds of Crime Act in other cases. That said, I note that the respondent did not challenge the findings of the Federal Court in that respect, particularly those found at paragraphs 35 and 53 of the reasons.", @@ -37178,7 +37070,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 50–53", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Mr. Hociung alleges that the Federal Court judge was biased against him. He points specifically to paragraph 16 of the Reasons where the Federal Court states “the plaintiff does not dispute that the issues identified by the defendant are genuine issues. However, the plaintiff submits that there are additional issues raised in the statement of claim to be addressed in the course of the action. I disagree.”\n\nMr. Hociung also indicates that bias can be inferred from the fact that the Federal Court relied on “evidence” that was not relied upon by the parties in paragraphs 58 and 60 of the Reasons. At paragraph 58 of the Reasons, the Federal Court refers to the definition of “goods” at subsection 2(1) of the Customs Act and at paragraph 60 to section 123 of the Excise Tax Act where the word “money” is defined.\n\nThe applicable standard here is a reasonable apprehension of bias (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394). The apprehension must be a reasonable one and the test is: what would an informed person, viewing the matter realistically and practically – in having thought the matter through – conclude. This is a difficult test to meet. There is a strong presumption that judges are performing their duties in an unbiased way, and cogent evidence must be adduced to support such a serious allegation.\n\nI have no hesitation in concluding that Mr. Hociung’s allegation is baseless. Unfortunately, as is often the case with self-represented litigants, it appears to be the result of a misunderstanding of the law and the task to be performed by a court when required to construe legislation before it.", @@ -37196,7 +37088,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 54–56", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "The fact that the Federal Court may have reached the wrong conclusion at paragraph 16 is in no way evidence of a bias, real or apprehended. Otherwise all decisions reversed in appeal or quashed on an application for judicial review based on an error of law or any other reviewable error would raise such an apprehension. This is simply not so.\n\nStatutory provisions, including definitions in statutes put in play by the issues before a court, are not “evidence”. When asked to construe a statute, a court may refer to the provisions that are clearly relevant as they are part of the context it must consider to reach its decision. I also note that there would have been no benefit to seek the parties’ views on those legislative provisions which they allegedly fail to expressly refer to, for they are quite unambiguous, and were clearly relevant to the issues raised by them.\n\nIn fact, when one considers the decision as a whole, especially the fact that the Federal Court dealt with the issue of whether collector coins could be included in the definition of “currency” under the Proceeds of Crime Act, it becomes clear that the Federal Court did not do what an allegedly bias decision maker would be expected to do. It did not accept the interpretation proposed by the respondent. It clearly endeavoured to answer Mr. Hociung’s preoccupation with the CBSA’s restrictive interpretation. Although Mr. Hociung may not agree with the interpretation of the Federal Court, the fact remains that he got more in that respect than he might otherwise have been entitled to on this motion.", @@ -37214,7 +37106,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 57–58", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Having correctly concluded that there was a contravention to section 12 of the Customs Act, the Federal Court had the power, pursuant to Rule 215(3), to dismiss all the allegations relating to the appeal pursuant to section 135 of the Customs Act as it involves no other genuine issue. Its legal conclusion in respect of section 12 could also be sufficient to justify dismissing the claims for damages based on the allegations that the seizure constituted a fraud and a misapplication of the Customs Act in this case. On the other hand, as mentioned, it could not dismiss the claim based on alleged threats of violence.\n\nAlthough Mr. Hociung has attempted to summarize his various claims at paragraph 14 and again on page 15 of his memorandum of fact and law, I do not consider that this Court had the benefit of sufficient representations by the parties to render the decision that the Federal Court should have rendered had it properly exercised its power under section 215(3) of the Rules. Obviously, this Court cannot simply dismiss the motion for summary judgment, given its conclusion that there was a contravention to section 12 of the Customs Act. Thus, there is little choice but to return the matter to the Federal Court, who will be in a better position to deal with this issue after seeking additional written representations by the parties as this motion was made in writing pursuant to Rule 369.", @@ -37232,7 +37124,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 59–62", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "That said, before concluding, I ought to add some comments for the benefit of Mr. Hociung. Now that it is clear that his appeal pursuant to section 135 of the Customs Act and his claims based on fraud and misrepresentations as to the right of the CBSA to seize his coins do not raise any genuine issue for trial, I urge him to seek legal advice so that he may seriously reassess whether he wishes to pursue whatever claims or allegations may remain in his statement of claim.\n\nThe fact that this appeal may be granted in part should not be construed in any manner as meaning that whatever claims or relief ultimately remaining have any chance of success. Clearly at this stage, this Court is not in a position to make such a finding, especially not having heard arguments from either side on the numerous legal issues raised by the melting pot of claims that may remain.\n\nMr. Hociung is a well-educated and intelligent man who clearly devoted much effort to researching the law. However, the fact remains that the issues raised in his action are highly technical and complex.\n\nFor example, he may not appreciate that the Federal Court does not have any inherent criminal jurisdiction to deal with offences under s. 469 of the Criminal Code or to impose penalties under the said Code. Also, in S.A. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court of Canada recently reiterated at paragraph 60 that: [d]eclaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought […].", @@ -37250,7 +37142,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "paras 63–64", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "It is certainly not clear to me at this stage, given that the only basis on which Mr. Hociung’s coins were seized was a contravention to the Customs Act, that there is any real, as opposed to a theoretical dispute left, and that Mr. Hociung has a genuine interest (in the legal sense) in its resolution. This is why, among other things, legal advice at this stage would be most appropriate. It would also ensure that Mr. Hociung does not unduly expose himself to the payment of court costs should his remaining claims ultimately fail.\n\nThe appeal should be granted in part; the judgment of the Federal Court dismissing the action in its entirety should be quashed. The matter should be returned to the Federal Court for determination of which claims and relief can properly be dismissed on the basis of the Federal Court’s finding that Mr. Hociung has contravened section 12 of the Customs Act and the CBSA was legally entitled to seize his coins under the Customs Act. Obviously, this should not be construed as limiting any other order the Federal Court may choose to issue under Rule 215(3).", @@ -37268,7 +37160,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Given that success was divided on the issues raised in this appeal, I propose that each party pay their own costs. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” Annex 1 Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Interpretation Définitions et champ d’application Definitions Définitions 2(1) In this Act, 2(1) Les définitions qui suivent s’appliquent à la présente loi. […] […] duties means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b) and 65(1)(b), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; (droits) droits Les droits ou taxes imposés, en vertu de la Loi de 2001 sur l’accise, de la Loi sur la taxe d’accise, de la Loi sur les mesures spéciales d’importation, du Tarif des douanes ou de toute autre loi fédérale, sur les marchandises importées. En sont exclues, pour l’application du paragraphe 3(1), des alinéas 59(3)b) et 65(1)b), des articles 69 et 73 et des paragraphes 74(1), 75(2) et 76(1), les taxes imposées en vertu de la partie IX de la Loi sur la taxe d’accise. (duties) […] […] Report of Goods Déclaration Report Déclaration Certain goods not subject to seizure Marchandises soustraites à la saisie-confiscation 12(7) Goods described in tariff item No.", @@ -37286,7 +37178,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff 12(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 nos tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l’annexe du Tarif des douanes, pour lesquelles les conditions suivantes sont réunies : (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, 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) that are not charged with duties, and b) elles ne sont pas passibles de droits; (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. 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.", @@ -37304,7 +37196,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "[…] […] Obligation to answer questions and present goods Obligations du déclarant 13 Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall 13 La personne qui déclare, dans le cadre de l’article 12, des marchandises à l’intérieur ou à l’extérieur du Canada, ou qu’un agent intercepte en vertu de l’article 99.1 doit : (a) answer truthfully any question asked by an officer with respect to the goods; and a) répondre véridiquement aux questions que lui pose l’agent sur les marchandises; (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. 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 examiner. […] […] Presumption of importation Présomption d’importation 18 (1) For the purposes of this section, all goods reported under section 12 shall be deemed to have been imported. 18 (1) Pour l’application du présent article, toutes les marchandises déclarées conformément à l’article 12 sont réputées avoir été importées.", @@ -37322,7 +37214,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Liability of person reporting goods short landed Solidarité du déclarant et de son mandant (2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods (2) En cas d’application de l’article 12, le déclarant et son mandant ou employeur sont, sous réserve des paragraphes (3) et 20(2.1), solidairement responsables de tous les droits imposés sur les marchandises, sauf si, dans le délai réglementaire, l’un d’eux établit le paiement des droits ou, à propos des marchandises, l’un des faits suivants : (a) were destroyed or lost prior to report or destroyed after report but prior to receipt in a place referred to in paragraph (c) or by a person referred to in paragraph (d); a) elles ont été soit détruites ou perdues avant la déclaration, soit détruites entre le moment de la déclaration et leur réception en un lieu visé à l’alinéa c) ou par la personne visée à l’alinéa d); (b) did not leave the place outside Canada from which they were to have been exported; b) elles n’ont pas quitté le lieu de l’extérieur du Canada d’où elles devaient être exportées; (c) have been received in a customs office, sufferance warehouse, bonded warehouse or duty free shop; c) elles ont été reçues dans un bureau de douane, un entrepôt d’attente, un entrepôt de stockage ou une boutique hors taxes; (d) have been received by a person who transports or causes to be transported within Canada goods in accordance with subsection 20(1); d) elles ont été reçues par une personne qui fait", @@ -37340,7 +37232,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "office de transitaire conformément au paragraphe 20(1); (e) have been exported; or e) elles ont été exportées; (f) have been released. f) elles ont été dédouanées. Rates of duties Taux des droits (3) The rates of duties payable on goods under subsection (2) shall be the rates applicable to the goods at the time they were reported under section 12. (3) Le taux des droits payables sur les marchandises conformément au paragraphe (2) est celui qui leur est applicable au moment où elles font l’objet de la déclaration prévue à l’article 12. Regulations Règlements (4) The Governor in Council may make regulations prescribing the circumstances in which such bonds or other security as may be prescribed may be required from any person who is or may become liable for the payment of duties under this section. (4) Le gouverneur en conseil peut, par règlement, fixer les cautions ou autres garanties susceptibles d’être souscrites par les personnes effectivement ou éventuellement redevables de droits au titre du présent article et déterminer les circonstances de la souscription. Federal Courts Rules, S.O.R./98-106 Joinder of claims Causes d’action multiples 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim. 101 (1) Sous réserve de la règle 302, une partie à une instance peut faire une demande de réparation contre une autre partie à l’instance à l’égard de deux ou plusieurs causes d’action. Separate capacity Réparation à titre distinct (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding. (2) Une partie peut demander réparation à titre distinct pour diverses causes d’action faisant l’objet d’une instance.", @@ -37358,7 +37250,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Interest in all relief not essential Réparation ne visant pas toutes les parties (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding. (3) Il n’est pas nécessaire que chacune des parties à l’instance soit visée par toutes les réparations demandées dans le cadre de celle-ci. […] […] Separate determination of claims and issues Instruction distincte des causes d’action 106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that 106 Lorsque l’audition de deux ou plusieurs causes d’action ou parties dans une même instance compliquerait indûment ou retarderait le déroulement de celle-ci ou porterait préjudice à une partie, la Cour peut ordonner : (a) claims against one or more parties be pursued separately; a) que les causes d’action contre une ou plusieurs parties soient poursuivies en tant qu’instances distinctes; (b) one or more claims be pursued separately; b) qu’une ou plusieurs causes d’action soient poursuivies en tant qu’instances distinctes; (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or c) qu’une indemnité soit versée à la partie qui doit assister à toute étape de l’instance dans laquelle elle n’a aucun intérêt, ou que la partie soit dispensée d’y assister; (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party. d) qu’il soit sursis à l’instance engagée contre une partie à la condition que celle-ci soit liée par les conclusions tirées contre une autre partie. Customs Tariff, S.C. 1997, c.", @@ -37376,7 +37268,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "36 PART 1 PARTIE 1 Interpretation and General Définitions et dispositions générales Interpretation [EN BLANC] Definitions Définitions 2 (1) The definitions in this subsection apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la présente loi. […] […] tariff item means a description of goods in the List of Tariff Provisions and the rates of customs duty and the accompanying eight-digit number in that List and, if applicable, in the “F” Staging List. (numéro tarifaire) numéro tarifaire Dénomination de marchandises, figurant sur la liste des dispositions tarifaires, marquée d’un numéro à huit chiffres et les taux figurant sur cette liste et, le cas échéant, au tableau des échelonnements. (tariff item) […] […] Words and expressions in Act Termes de la Loi sur les douanes 4 Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection. 4 Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe. … […] Classification of goods in the List of Tariff Provisions Classement des marchandises dans la liste des dispositions tarifaires 10 (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.", @@ -37394,7 +37286,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "10 (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l’interprétation du Système harmonisé et les Règles canadiennes énoncées à l’annexe. Classification of “within access commitment” goods Classement de marchandises « dans les limites de l’engagement d’accès » (2) Goods shall not be classified under a tariff item that contains the phrase “within access commitment” unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit. 2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention « dans les limites de l’engagement d’accès » que dans le cas où leur importation procède d’une licence délivrée en vertu de l’article 8.3 de la Loi sur les licences d’exportation et d’importation et en respecte les conditions.", @@ -37412,7 +37304,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "Customs Tariff – Schedule Section X: Pulp of Wood or of Other Fibrous Cellulosic Material; Recovered (Waste and Scrap) Paper or Paperboard; Paper and Paperboard and Articles Thereof Section X : Pâtes de bois ou d'autres matières fibreuses cellulosiques; Papier ou carton à recycler (déchets et rebuts); Papier et ses applications 49 PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY; MANUSCRIPTS, TYPESCRIPTS AND PLANS 49 PRODUITS DE L'ÉDITION, DE LA PRESSE OU DES AUTRES INDUSTRIES GRAPHIQUES; TEXTES MANUSCRITS OU DACTYLOGRAPHIÉS ET PLANS 4907.00.00 Unused postage, revenue or similar stamps of current or new issue in the country in which they have, or will have, a recognized face value; stamp-impressed paper; banknotes; cheque forms; stock, share or bond certificates and similar documents of title. 4907.00.00 Timbres-poste, timbres fiscaux et analogues, non oblitérés, ayant cours ou destinés à avoir cours dans le pays dans lequel ils ont, ou auront, une valeur faciale reconnue; papier timbré; billets de banque; chèques; titres d'actions ou d'obligations et titres similaires. Banknotes being legal tender: Billets de banque, ayant cours légal : 4907.00.00.12 Issued 4907.00.00.12 Émis […] […] Section XIV Chapter 71: Natural or Cultured Pearls, Precious or Semi-precious Stones, Precious Metals, Metals Clad with Precious Metal, and Articles Thereof; Imitation Jewellery; Coin Section XIV Chapitre 71 : Perles fines ou de culture, pierres gemmes ou similaires, métaux précieux, plaqués ou doublés de métaux précieux et ouvrages en ces matières; bijouterie de fantaisie; monnaies 7118 Coin 7118 Monnaies.", @@ -37430,7 +37322,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "[…] […] 7118.90.00 Other 7118.90.00 Autres 7118.90.00.10 Gold coin 7118.90.00.10 Pièces de monnaie d'or 7118.90.00.91 Canadian coin 7118.90.00.91 Monnaie canadienne […] […] 7118.90.00.99 Other 7118.90.00.99 Autres Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 Currency and monetary instruments Déclaration 12 (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12 (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire. Limitation Exception (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) à l’égard d’une importation ou d’une exportation si les conditions réglementaires sont réunies à l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Sending reports to Centre Transmission au Centre (5) The Canada Border Services Agency shall send the reports they receive under subsection (1) to the Centre.", @@ -37448,7 +37340,7 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", "text": "It shall also create an electronic version of the information contained in each report, in the format specified by the Centre, and send it to the Centre by the electronic means specified by the Centre. (5) L’Agence des services frontaliers du Canada fait parvenir au Centre les déclarations recueillies en application du paragraphe (1) et établit, dans la forme prévue par le Centre, une version électronique des renseignements contenus dans chaque déclaration qu’elle transmet au Centre par les moyens électroniques prévus par celui-ci. Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 Minimum Value of Currency or Monetary Instruments Valeur minimale des espèces ou effets 2 (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2 (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit être déclarée doivent avoir une valeur égale ou supérieure à 10 000 $.", @@ -37466,10 +37358,10 @@ "section": "", "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", "marginal_note": "para 65", - "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", - "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE GLEESON DATED MARCH 15, 2018, NO. T-1450-15 DOCKET: A-102-18 STYLE OF CAUSE: RADU HOCIUNG v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 23, 2019 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: WEBB J.A. RIVOALEN J.A. DATED: AUGUST 7, 2019 APPEARANCES: Radu Hociung For The Appellant ON HIS OWN BEHALF Eric Peterson For The Respondent SOLICITORS OF RECORD: Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent", + "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL", "current_to": "2019-08-07", "last_amended": "", "history": "", @@ -39328,5 +39220,3155 @@ "last_amended": "", "history": "", "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fca-36092-1", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 1–2", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from the decision of Simpson J. of the Federal Court, reported at 2007 FC 208, [2007] F.C.J. No. 280, dismissing Mr. Sellathurai's application for judicial review of the Minister's decision (made on his behalf by his delegate) declining to return approximately $123,000 which were seized from him by a customs officer as he was about to depart for Sri Lanka from Pearson International Airport.\n\nThe funds were seized and forfeited because Mr. Sellathurai failed to declare them to a customs officer as he was required to do by section 12 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act) and, as conceded by his counsel, at the time of seizure there were reasonable grounds to suspect that the funds were proceeds of crime or were to be used in the funding of terrorism. The issue in this appeal is whether the Minister properly exercised his discretion in refusing to return the funds to Mr. Sellathurai. THE FACTS", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-2", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 3", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The following statement of the facts surrounding the seizure is taken from the Case Synopsis and Reasons for Decision prepared by the Canada Border Services Agency (formerly the Canada Customs and Revenue Agency) (the Agency) in response to Mr. Sellathurai's request for a ministerial review of the seizure of his funds: … on November 10, 2003, Mr. Sellathurai was questioned by Customs officials at Pearson International Airport, Toronto, Ontario outbound from Canada. He reported $4,000.00 in Canadian currency and $400.00 in American currency. He was asked the purpose of his trip. Mr. Sellathurai responded that he was to attend the funeral of his father and would be absent from Canada one week. The officer examined his passport noting that he had exited the United Arab Emirates on October 13, 2003. The officer asked to verify his currency. Mr. Sellathurai provided an envelope that contained several bills. The officer requested that he present the American currency, which he stated was in his carry-on. The officer questioned why he was taking $4,000.00 for a week-long trip. He advised the officer that he was an importer of clothing and a grocer as well as a salesman. Examination of his carry-on revealed two gold bars. When asked the value, he stated \"$20,000.00\". A receipt was provided from a Canadian jewellery store indicating that gold jewellery had been exchanged for the two gold bars. In his front pant pocket was more money. Mr. Sellathurai was moved to a private area for further examination. Mr. Sellathurai had, in total, eight envelopes of currency, the gold bars and some American currency. The officer asked him what the money was intended for. He stated that he was going to buy jewellery.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-3", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 3", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "At this time, the officer reminded him that he had stated he was a salesman, grocer and importer of clothing. Mr. Sellathurai stated that he is also a wholesaler of jewellery. He provided a business card. The name on the card was the same as the business name on the receipt for the gold bars. The officer advised Mr. Sellathurai that the currency was under seizure. While the paperwork was being prepared, Mr. Sellathurai stated that $90,000.00 was a loan from a jeweller in Montreal. He stated that $47,000.00 was from one individual and another $45,000.00 was from another person. He was unsure of their names at first. He stated that he intended to purchase jewellery for the two on this trip. He had no contract to substantiate this and no documents to support a withdrawal from a banking institution. As the officer had reasonable grounds to suspect that the currency was proceeds of crime, no terms of release were offered. The officer returned his documents, his two gold bars and other jewellery. [Appeal Book, at p. 227-228.]", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-4", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 4", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The seizure was made under the authority of sections 12 and 18 of the Act: section 12 requires all persons entering or leaving Canada with more than a prescribed amount of currency to report that amount to the nearest customs office upon arriving in or leaving Canada, while section 18 authorizes seizure in the event of a breach of section 12: 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. … (3) Currency or monetary instruments shall be reported under subsection (1) (a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; … 18. (1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments. (2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. … 12.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-5", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 4–5", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire. […] (3) Le déclarant est, selon le cas : a) la personne ayant en sa possession effective ou parmi ses bagages les espèces ou effets se trouvant à bord du moyen de transport par lequel elle arrive au Canada ou quitte le pays ou la personne qui, dans les circonstances réglementaires, est responsable du moyen de transport; […] 18. (1) S'il a des motifs raisonnables de croire qu' l y a eu contravention au paragraphe 12(1), l'agent peut saisir à titre de confiscation les espèces ou effets. (2) Sur réception du paiement de la pénalité réglementaire, l'agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes. […]\n\nThe prescribed amount is $10,000: see section 2 of the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-6", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 6", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In accordance with paragraph 18(3)(a) of the Act, the officer gave Mr. Sellathurai written notice of the seizure and of his recourse under sections 25 and 30 of the Act: 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. … 30. (1) A person who requests a decision of the Minister under section 27 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. […] 30.(1) La personne qui a demandé que soit rendue une décision en vertu de l'article 27 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d'action à la Cour fédérale à titre de demandeur, le ministre étant le défendeur.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-7", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 7–10", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Sellathurai exercised his right to request a ministerial review of the officer's decision. In a letter dated January 12, 2004, an officer of the Agency set out the circumstances surrounding the seizure. The officer then went on to request further information: Please submit evidence to support where you obtained the money such as withdrawal from a bank account or other such evidence that would support that the money was legitimately obtained. [Emphasis added.] [Appeal Book, at p. 63.]\n\nNo specific grounds for suspicion are identified in this letter and no specific explanations are requested. The only proof requested is proof that the funds were legitimately obtained.\n\nIn response to this request, Mr. Sellathurai supplied three affidavits and three letters of reference. The affidavits were provided by Sathi Sathananthan, Shudhir Chawla, and George Montgomery Pathinather. Sathi Sathananthan, Mr. Sellathurai's bookkeeper, produced bank statements and cancelled cheques showing withdrawals from Mr. Sellathurai's business account between September 19, 2003 and November 10, 2003, in the amount of $37,000 by way of cheques drawn in favour of Mr. Sellathurai's wife.\n\nShudhir Chawla deposed that he is Mr. Sellathurai's business associate and that he loaned him $47,000 in cash to purchase 22 carat gold jewellery for him in Dubai. The $47,000 was the product of the sale of 93 ounces of gold bullion in various cash transactions. George Montgomery Pathinather deposed that he is in the jewellery business in Montreal and has known Mr. Sellathurai for three and a half years. He further deposed that he provided the latter, from funds kept in his office safe, $45,000 in cash, generated by cash transactions.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-8", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 11–13", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The officer responded to these elements of proof in a letter to Mr. Sellathurai's counsel dated March 15, 2004. The material parts of that letter are as follows: The affidavits from George Pathinather and Shudhir Chawla do not substantiate the legitimacy of their portion of the seized currency. Legitimate businesses wish to maintain records of their funds and expenses to ensure records for tax purposes and maintain internal audit controls…They will require documentary evidence to support the legitimacy of the seized currency. … Having broken the law and failed to declare, a person cannot regain currency seized as forfeit, on a reasonable suspicion under the Act, by merely telling a story that could be true. An innocent explanation as to the origin of the funds must be proven in sufficient detail and with enough credible, reliable and independent evidence to establish that no other reasonable explanation is possible… [Emphasis added.] [Appeal Book, at p. 103-104.]\n\nWhen counsel objected to the dismissal of the evidence provided on Mr. Sellathurai's behalf, the officer responded as follows in a letter dated May 3, 2004: I would like to re-state that the affidavits from George Pathinather and Shudhir Chawla do not substantiate the legitimacy of their portion of the seized currency. They will require documentary evidence to support the legitimacy of the seized currency. [Appeal Book, at p. 107.]\n\nIn a letter dated June 18, 2004, the officer responded to a further inquiry by Mr. Sellathurai's counsel by re-stating the position taken in her letter of March 15, 2004, and insisting upon production of documentary evidence to support the legitimacy of the seized currency: Appeal Book, at p. 108-109.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-9", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 14–15", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister (by his delegate) advised Mr. Sellathurai of his decision by letter dated October 6, 2005. The reasons given for the decision are contained in the following two paragraphs: The evidence submitted has confirmed that you were specifically questioned by a Customs officer at Pearson International Airport on November 10, 2003, and you advised the officer that you did not have currency in excess of $10,000.00 CAD. Examination revealed $435.00 USD currency and $123,000.00 Canadian currency. Consequently, by virtue of section 12 and 18 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act; [sic] the currency was lawfully subject to seizure. No terms of release were offered for the currency as the officer had reasonable suspicion to suspect proceeds of crime [sic]. Although your solicitor's representations have been considered, mitigation has not been granted in this case. The evidence provided is not verifiable and does not substantiate the origin of the currency. Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency, reasonable suspicion still exists. As such the currency has been held as forfeit… [Appeal Book, at p. 116-117.] THE FEDERAL COURT'S DECISION\n\nMr. Sellathurai sought judicial review of this decision in the Federal Court. The application judge reviewed the facts and addressed the question of standard of review. She concluded that the Minister's decision should be reviewed on a standard of reasonableness, except \"when dealing with the burden of proof faced by an applicant who wishes to dispel ' reasonable grounds to suspect'. On that issue, correctness will be the standard of review:\" Reasons for Decision, at para. 60.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-10", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 16", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel for Mr. Sellathurai argued that the Minister's delegate used the wrong test in deciding whether to confirm the forfeiture of Mr. Sellathurai's funds. This is apparent from the application judge's statement of the issues: 61. The Applicant has raised the following issues. The headings are mine. No reasonable grounds? I. The Minister erred in his decision that the funds in question are forfeit insofar as there exists no reasonable grounds to suspect that the funds in question are the proceeds of crime. An improper test? II. The Minister erred in his decision insofar as he improperly reversed the burden of proof, finding, in effect, that the Applicant failed to prove that the funds in question were not the proceeds of crime. A contradictory decision? III. The Minister erred in his decision insofar as his decision is, on its face, contradictory and therefore unreasonable. [Reasons for Judgment and Judgment, at para. 61.]", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-11", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 17", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge dealt with the second issue, that of the reversal of the onus of proof, in the following terms: 63. Section 29 of the Act is silent about the principles to be used by a Minister's Delegate in deciding whether to confirm a currency forfeiture. However, the Decision makes it clear that, in this case, the Minister's Delegate was determining whether a reasonable suspicion still existed. In other words, the Minister's Delegate adopted for the Decision the test the Customs Officer at the airport was required to use when she declined to return the Forfeited Currency, pursuant to subsection 18(2) of the Act. That subsection provides that she must have had \"reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities\". In my view, the Decision stated the correct test when it indicated that the Minister's Delegate was determining whether such reasonable grounds still existed. [Reasons for Judgment and Judgment, at para. 63.]", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-12", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 18", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge found no merit in the first issue and then analyzed the issue of standard of proof applicable to an applicant who sought to recover funds seized as forfeit. After a discussion of the authorities, she concluded as follows: 72. With regard to the burden of proof on an applicant who wishes to dispel a suspicion based on reasonable grounds, it is my view that such an applicant must adduce evidence which proves beyond a reasonable doubt that there are no reasonable grounds for suspicion. Only in such circumstances will the evidence be sufficient to displace a reasonable suspicion. 73. I have reached this conclusion because, if a Minister's Delegate were only satisfied on the balance of probabilities that there were no reasonable grounds for suspicion, it would still be open to him to suspect that forfeited currency was proceeds of crime. The civil standard of proof does not free the mind from all reasonable doubt and, if reasonable doubt exists, suspicion survives. 74. In this case, the adjudicator required proof beyond all doubt and I am satisfied that this constituted an error in law because proof beyond a reasonable doubt is sufficient to defeat reasonable grounds for suspicion.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-13", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 19–20", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge concluded that the adjudicator [the Agency officer] required proof in excess of proof beyond a reasonable doubt because of the statement, quoted earlier in these reasons, that proof that there was no other reasonable explanation as to the source of the funds, was required. However, the application judge went on to conclude that the error was not material because Mr. Sellathurai's evidence fell below the standard of proof beyond a reasonable doubt. Since the Minister's error could not have affected the outcome, the application for judicial review could not succeed and was therefore dismissed. THE POSITIONS OF THE PARTIES\n\nIn the Memorandum of Fact and Law filed on Mr. Sellathurai's behalf, his counsel defined the issue in the appeal as follows: 15. The Appellant respectfully submits that Justice Simpson erred in law in finding that, in order to dispel a reasonable suspicion that funds seized and held as forfeit are the proceeds of crime under section 18(2) of the Proceeds of Crime (Money Laundering) and Terrorism Financing Act and to thereby obtain the return of the currency under section 29(1)(a) of the Act, the Appellant had to establish beyond a reasonable doubt that the funds were legitimately obtained. It is submitted that the standard of proof required to dispel a reasonable suspicion properly lies between the civil standard of proof on a balance of probabilities and the criminal standard of proof beyond a reasonable doubt. [Emphasis in the original.] [Appellant's Memorandum, at para. 15.]", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-14", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 21", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The balance of the Memorandum discussed the nuances of standard of proof, proof beyond a reasonable doubt and proof required to dispel a reasonable doubt. In the course of that discussion, counsel for Mr. Sellathurai conceded that: … reasonable suspicion existed at the time of the forfeiture by the CBSA officer. [Emphasis in the original.] [Appellant's Memorandum, at para. 16.]", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-15", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 22", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The substance of the appellant's argument was that since the evidence submitted by Mr. Sellathurai was uncontradicted and was relevant to the source and the legitimacy of the funds, it ought to have been accepted as sufficient to dispel the reasonable suspicion which existed at the time of the seizure of the currency. Counsel argued that the requirement of proof beyond a reasonable doubt is misplaced since that standard is used only in the criminal context where the liberty of the subject is at stake. In this case, the Act makes no reference to proof beyond a reasonable doubt. According to counsel for Mr. Sellathurai, the appropriate standard of proof required to dispel reasonable suspicion lies between the civil standard of proof and the criminal standard of proof beyond a reasonable doubt. In taking this position, counsel relies on a quotation from Bennett J. in R. v. Pilarinos, 2001 BCSC 1690, [2001] B.C.J. No. 2540, at paragraph 143, dealing with proof of a reasonable apprehension of bias: 143. In summary, there is a strong presumption of judicial integrity that may only be displaced by cogent evidence establishing a real likelihood of bias. It is trite to note that this burden is higher than a simple balance of probabilities, but lower than proof beyond a reasonable doubt. The burden lies with the person alleging a reasonable apprehension of bias. A reasonable apprehension of bias is determined by the well-informed, right-minded individual who is aware of all of the circumstances, including the nature of the case, its surrounding circumstances and the presumption of judicial integrity.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-16", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 23–25", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel for Mr. Sellathurai concluded his argument by suggesting: … At the very least, when the material was being submitted by the Appellant to the Recourse Directorate, some effort should have been made by the Recourse Directorate or the Minister's Delegate to put the Appellant on notice as to the standard that was being applied so that he could meet it… [Appellant's Memorandum, at para. 26.]\n\nThe Minister's position is that the application judge's conclusion is reasonable and therefore, no intervention is justified. ANALYSIS Standard of Review\n\nThe question of the standard of review of the Minister's decision under section 29 was settled by this Court in Dag v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 95, 70 Admin. L.R. (4th) 214, at paragraph 4 (Dag), where it was held that the standard of review of the Minister's decision under section 29 was reasonableness. Consideration of the issue of the standard of review of the decision as to the standard of proof to be met by the applicant will, for reasons which will become apparent, be deferred to a later point in these reasons. Review of the Jurisprudence", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-17", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 26", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Simpson J.'s decision in this case was followed in a number of subsequent cases in the Federal Court which adopted her endorsement of the Minister's statement of the basis on which he was exercising his discretion under section 29 of the Act: see Dag, 2007 FC 427, 318 F.T.R. 269, at para. 31, aff'd 2008 FCA 95; Dupre v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1177, [2007] F.C.J. No. 1521, at para. 22 (Dupre); Hamam v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 691, 314 F.T.R. 151, at para. 24; Yang v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 158, [2008] F.C.J. No. 197, at para. 11 (Yang); Lyew v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1117, 317 F.T.R. 234, at para. 31 (Lyew); Dang v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 157, [2008] F.C.J. No. 196, at para. 29; Ondre v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 454, 312 F.T.R. 134, at para. 46 (Ondre); Yusufov v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 453, 312 F.T.R. 122, at para. 42 (Yusufov); Majeed v. Canada (Minister of Public Safety), 2007 FC 1082, [2007] F.C.J. No. 1394, at para. 47 (Majeed); Qasem v. Canada (Minister of National Revenue), 2008 FC 31, 322 F.T.R. 47, at para. 14 (Qasem).", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-18", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 27–29", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the other hand, there has been a certain divergence of opinion as to the standard of proof to be met by the applicant. Some judges have adopted Simpson J.'s position that the appropriate standard is proof beyond a reasonable doubt: see Ondre, at para. 19; Yusufov, at para. 20; Majeed, at para. 50. Other judges have framed the issue in terms of the evidentiary burden on the applicant to dispel the Minister's suspicions: see Dupre, at paras. 37-38; Yang, at paras. 20-21; Qasem, at para.18. Some judges have been critical of the use of language taken from the criminal context to describe the burden upon the applicant: Qasem, at para. 21; Lyew, at para. 32.\n\nIt appears from this that Simpson J.'s decision in this case has, to some extent, framed the terms of the debate with respect to the operation of section 29. Two themes have emerged from the jurisprudence, namely the basis on which the Minister exercises his discretion under section 29 and the standard of proof to be met by an applicant. Before examining these in more detail, it is necessary to examine the nature of the Minister's decision under section 29. The Nature of the Section 29 Decision\n\nTo understand what the Minister is required to do under section 29, it is necessary to understand the status of the seized currency at the time the section 29 decision is taken.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-19", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 30–31", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The forfeiture of currency under section 18 is effective as of the time of the breach of section 12: 23. Subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized, and no act or proceeding after the forfeiture is necessary to effect the forfeiture. 23. Sous réserve du paragraphe 18(2) et des articles 25 à 31, les espèces ou effets saisis en application du paragraphe 18(1) sont confisqués au profit de Sa Majesté du chef du Canada à compter de la contravention au paragraphe 12(1) qui a motivé la saisie. La confiscation produit dès lors son plein effet et n'est assujettie à aucune autre formalité.\n\nNot only is the forfeiture effective as of the date of the breach of section 12, it is also final, subject only to judicial review of the finding that section 12 has been breached: 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30. 24. La confiscation d'espèces ou d'effets saisis en vertu de la présente partie est définitive et n'est susceptible de révision, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-20", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 32", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "As this Court pointed out in Tourki v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FCA 186, 284 D.L.R. (4th) 356 (Tourki), that which is the subject of review under sections 25 to 30 is the conclusion that there has been a breach of section 12, not the consequences of that breach: see paras. 16-18. Of course, the applicant's only interest in challenging the finding under section 12 is to attempt to obtain the return of the funds seized or the penalty paid. And since the only way to access the discretion vested in the Minister under section 29 is to request a review under section 25, such an application is, in effect, an application for relief from forfeiture.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-21", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 33", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The only means by which a decision under section 29 may be challenged is by means of judicial review: see Tourki, at para. 18. The jurisprudence suggests that the question raised in such an application for judicial review is the relationship between the Minister's decision under section 29 and that of the customs officer under subsection 18(2). Does section 29 call for the Minister to review or to repeat the exercise undertaken by the customs officer in coming to the conclusion to seize the funds? 29.(1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-22", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 33", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "29.(1) S'il décide qu'il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu'il fixe : a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu'il en est informé, prend les mesures nécessaires à l'application des alinéas a) ou b).", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-23", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 34–35", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister is only called upon to exercise his discretion under section 29 where he concludes, pursuant to a request made under section 25, that there has in fact been a breach of section 12. Consequently, the starting point for the exercise of the Minister's discretion is that the forfeited currency, which is now in the hands of the Minister of Public Works pursuant to section 22, is, for all legal purposes, property of the Crown: see Canada v. Central Railway Signal Co., [1933] S.C.R. 555 at p. 557-558, where the following appears: Some question was raised on the argument as to the effect of the seizure of the 4th July and as to its character as well. The point was not raised in the courts below and the evidence on the point is quite sufficient. It is not open to question on that evidence, that the goods were seized, and \"seized as forfeited\" for violation of the Excise Act. Nor is there any room for doubt as to the effect of such a seizure. It proceeds upon the assumption that the goods, having been forfeited ipso jure, in consequence of the violation of the Act, are at the time of seizure, and not as a consequence of it, the property of the Crown. There are several provisions of the statute under which forfeiture supervenes upon the commission of the offence, as a legal consequence of the offence, independently of any act on the part of the officers of excise or any conviction or other judgment of a court.\n\nThe logic which applies under the Excise Act, R.S.C. 1985, c. E-14, also applies to the Customs Act, R.S.C. 1985, (2nd Supp.), c. 1, as well as to the Act under consideration here: see Tourki, at para. 17.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-24", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 36–37", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "It seems to me to follow from this that the effect of the customs officer's conclusion that he or she had reasonable grounds to suspect that the seized currency was proceeds of crime is spent once the breach of section 12 is confirmed by the Minister. The forfeiture is complete and the currency is property of the Crown. The only question remaining for determination under section 29 is whether the Minister will exercise his discretion to grant relief from forfeiture, either by returning the funds themselves or by returning the statutory penalty paid to secure the release of the funds.\n\nIn this case, the Minister recognized the nature of the discretion he was being called upon to exercise when he advised Mr. Sellathurai, in his letter of October 6, 2005, that \"mitigation has not been granted in this case\": Appeal Book, at p. 117. Mitigation of the consequences of forfeiture is, in effect, relief from forfeiture. While the Minister's characterization of the decision he makes under section 29 is not conclusive, I find confirmation of my position in the Minister's response to Mr. Sellathurai's request. The Basis of the Exercise of the Minister's Discretion", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-25", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 38–40", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "This leads to the question as to how the Minister will exercise his discretion. As this Court recognized in Tourki, at paragraph 29, the Act does not stipulate the basis on which the Minister is to exercise his discretion. The jurisprudence on the exercise of a statutory discretion requires, among other considerations, that the discretion be exercised to further the objects of the statute which confers the discretion: It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. [Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at p. 7-8 (Maple Lodge Farms).]\n\nWhile the basis upon which courts will intervene with respect to discretionary decisions has evolved since Maple Lodge Farms, consideration of the statutory purpose remains a key element of the analysis: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 67-68; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 36. The Exercise of the Minister's Discretion\n\nHow did the Minister exercise his discretion in this case? The answer to that question requires a review of what the Minister did, as well as what the Minister said he did. In my view, they are not the same thing.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-26", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 41–42", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "From his first contact with Mr. Sellathurai, the Minister (acting through the Agency and through his delegate) asked him for one thing only: to demonstrate to him that the seized funds came from a legitimate source. A review of the exchange of correspondence between the Agency and Mr. Sellathurai's counsel, set out in the first part of these reasons, shows that Mr. Sellathurai was repeatedly and consistently asked to provide proof that the seized funds came from a legitimate source. When Mr. Sellathurai did provide such proof in the form of the affidavits of Sathananthan, Chawla, and Pathinather, the Minister was not persuaded because the affidavits provided explanations which were unverifiable. It seems clear from a fair reading of the record that what the Minister actually did was to insist upon proof of the legitimacy of the source of the funds as a condition of exercising his discretion in favour of Mr. Sellathurai.\n\nWhat the Minister said he did is slightly different. In his letter to Mr. Sellathurai explaining why he was refusing his request for \"mitigation\", the Minister wrote as follows: Although your solicitor's representations have been considered, mitigation has not been granted in this case. The evidence provided is not verifiable and does not substantiate the origin of the currency. Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency, reasonable suspicion still exists. As such the currency has been held as forfeit… [Emphasis added.] [Appeal Book, at p. 117.]", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-27", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 43–45", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is logic in the Minister's reasoning that if the applicant cannot show that the seized funds come from a legitimate source, the customs officer's reasonable grounds for suspicion that the funds are proceeds of crime still remain. However, to cast the issue in these terms is to see the section 29 decision in terms of reassessing the customs officer's decision. As noted above, once the breach of section 12 is confirmed, the only issue remaining is whether the Minister will grant relief from forfeiture. Thus while the Minister's statement appears reasonable, it mischaracterizes the nature of the problem confronting the Minister.\n\nThe reference to \"reasonable suspicion still exists\" suggests that the Minister considered the reasonable grounds for suspicion identified by the customs officer and, in light of the information provided by Mr. Sellathurai, decided whether those grounds for suspicion were still legitimate. In her reasons, the application judge equated this exercise with the adoption of the test imposed on the Minister by subsection 18(2): see para. 63.\n\nThe application judge may have been lead to that conclusion by the nature of the affidavit filed by the Minister's delegate. While the letter setting out the reasons for the refusal of Mr. Sellathurai's request deals only with the evidence of the legitimacy of the source of the seized funds, the Minister's delegate filed an affidavit in which he restated and reviewed the grounds for suspicion identified by the customs officer, and indicated why he believed they remained unanswered. In my view, this form of affidavit is inappropriate and ought not to have been given any weight at all.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-28", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 46–48", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judges of the Federal Court have previously stated that a tribunal or a decision-maker cannot improve upon the reasons given to the applicant by means of the affidavit filed in the judicial review proceedings. In Simmonds v. Canada (Minister of National Revenue), 2006 FC 130, 289 F.T.R. 15, Dawson J. wrote at paragraph 22 of her reasons: I observe the transparency in decision-making is not promoted by allowing decision-makers to supplement their reasons after the fact in affidavits.\n\nSee to the same effect Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208, at para. 15; Yue v. Canada (Minister of Citizenship and Immigration), 2006 FC 717, [2006] F.C.J. No. 914, at para. 3; bin Abdullah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1185, [2006] F.C.J. No. 1482, at para. 13. Any other approach to this issue allows tribunals to remedy a defect in their decision by filing further and better reasons in the form of an affidavit. In those circumstances, an applicant for judicial review is being asked to hit a moving target.\n\nQuite apart from its admissibility on the issue of the reasons for the decision, the Minister's delegate's affidavit raises issues of credibility because the factual issues identified in the affidavit were never raised with Mr. Sellathurai, nor was he ever asked for any explanation of any of the facts which were identified as giving rise to reasonable grounds for suspicion. One would have thought that if the Minister's delegate was examining the facts identified as the grounds for suspicion, he would have made inquiries about them.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-29", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 49–50", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where the Minister repeatedly asks for proof that the seized currency has a legitimate source, as he did in this case, it is a fair conclusion that he made his decision on the basis of the applicant's evidence on that issue. The underlying logic is unassailable. If the currency can be shown to have a legitimate source, then it cannot be proceeds of crime.\n\nIf, on the other hand, the Minister is not satisfied that the seized currency comes from a legitimate source, it does not mean that the funds are proceeds of crime. It simply means that the Minister has not been satisfied that they are not proceeds of crime. The distinction is important because it goes directly to the nature of the decision which the Minister is asked to make under section 29 which, as noted earlier in these reasons, is an application for relief from forfeiture. The issue is not whether the Minister can show reasonable grounds to suspect that the seized funds are proceeds of crime. The only issue is whether the applicant can persuade the Minister to exercise his discretion to grant relief from forfeiture by satisfying him that the seized funds are not proceeds of crime. Without precluding the possibility that the Minister can be satisfied on this issue in other ways, the obvious approach is to show that the funds come from a legitimate source. That is what the Minister requested in this case, and when Mr. Sellathurai was unable to satisfy him on the issue, the Minister was entitled to decline to exercise his discretion to grant relief from forfeiture. The Standard of Proof", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-30", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 51–52", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "This leads to the question which was argued at length before us. What standard of proof must the applicant meet in order to satisfy the Minister that the seized funds are not proceeds of crime? In my view, this question is resolved by the issue of standard of review. The Minister's decision under section 29 is reviewable on a standard of reasonableness. It follows that if the Minister's conclusion as to the legitimacy of the source of the funds is reasonable, having regard to the evidence in the record before him, then his decision is not reviewable. Similarly, if the Minister's conclusion is unreasonable, then the decision is reviewable and the Court should intervene. It is neither necessary nor useful to attempt to define in advance the nature and kind of proof which the applicant must put before the Minister.\n\nOn the facts of this case, Mr. Sellathurai put before the Minister evidence which was essentially unverifiable. It was not unreasonable for the Minister to decline to accept this evidence at face value. As was pointed out in the correspondence between the Agency and counsel for Mr. Sellathurai, businesses are bound to retain books and records sufficient to allow the Agency to verify their compliance with their obligations under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1. The failure to do so is not evidence that such businesses are breaking the law, but it does not assist them in demonstrating that their income is legitimately derived. As a result, I see no basis for intervening and I would dismiss the appeal. CONCLUSION", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-31", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 53–55", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The nature of the discretion to be exercised by the Minister under section 29 is whether to relieve an applicant, whose breach of section 12 he has just confirmed, from the consequences of that breach. The Minister's discretion must be exercised within the framework of the Act and the objectives which Parliament sought to achieve by that legislation. Within that framework, there may be various approaches to the exercise of the Minister's discretion but so long as the discretion is exercised reasonably, the courts will not interfere. In this case, the Minister proceeded by asking Mr. Sellathurai to demonstrate that the funds which were seized came from a legitimate source. The Minister concluded that the evidence provided by Mr. Sellathurai did not satisfy him that the funds came from a legitimate source. It was not unreasonable of the Minister, in those circumstances, to decline to exercise his discretion so as to grant relief from forfeiture.\n\nAs a result, I would dismiss the appeal with costs. \"J.D. Denis Pelletier\" \"I agree M. Nadon J.A.\" RYER J.A. (Concurring)\n\nI have reviewed the reasons of my colleague, Pelletier J.A., and concur with his decision that the appeal should be dismissed. However, since I have reached that conclusion by a different path, concurring reasons are warranted.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-32", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 56–57", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of Simpson J. (the “Application Judge”) of the Federal Court (2007 FC 208) dated February 23, 2007, dismissing the application of Mr. Gowrkumaran Sellathurai (the “appellant”) for judicial review of a decision of the Minister of Public Safety and Emergency Preparedness (the “Minister”), pursuant to paragraph 29(1)(c) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the “Act”), confirming the forfeiture of certain funds seized from the appellant. Unless otherwise indicated, all statutory references in these reasons are to the corresponding provisions of the Act.\n\nWhile the appellant concedes that there were valid grounds for the forfeiture at the time of the seizure of the funds, the appellant contends that the evidence that was provided to the Minister subsequent to the seizure was sufficient to dispel these grounds, thereby necessitating the return of the funds to him. BACKGROUND", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-33", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 58", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant and his wife operated a wholesale jewellery business in Scarborough, Ontario. He has frequently travelled internationally on business. In the course of his departure from Canada on November 10, 2003, when questioned by an officer (the “Officer”) of the Canada Border Services Agency (the “CBSA”) as to the amount of funds that he was travelling with, the appellant declared that he was carrying $4,000 CAD and $400 USD (collectively, the “Declared Funds”). An examination of his luggage and his person revealed that, in addition to the Declared Funds, the appellant was carrying $119,000 CAD and $35 USD (collectively, the “Undeclared Funds”). The appellant was also found to be carrying two gold bars that he valued at approximately $20,000 CAD. These items were left with the appellant, as they are not considered to be currency for the purposes of the Act.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-34", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 59", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "After having discovered the Undeclared Funds, the Officer determined that there were reasonable grounds for her to believe that the appellant had contravened subsection 12(1), which by reference to section 2 of the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412, requires the disclosure of any amount of currency or monetary instruments in excess of $10,000 CAD (or its equivalent in a foreign currency) that is being taken out of Canada. As a result, pursuant to subsection 18(1), the Officer seized the Declared Funds and the Undeclared Funds as forfeit. Subsections 12(1) and 18(1) read as follows: 12(1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12(1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire. 18(1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments 18(1) S’il a des motifs raisonnables de croire qu’il y a eu contravention au paragraphe 12(1), l’agent peut saisir à titre de confiscation les espèces ou effets", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-35", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 60–61", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant indicated to the Officer that the reason for his trip was to attend the funeral of his father. He stated that he would be absent from Canada for one week and would be spending two of those days in Dubai. The appellant told the Officer that his father had died on November 8, 2003, and that he purchased his tickets on November 10, 2003 because the ticket office was closed on November 8, 2003. However, an examination of the tickets revealed that they had, in fact, been purchased by the appellant prior to the date of his father’s death. The Officer examined the passport of the appellant and found that he had exited the United Arab Emirates on October 13, 2003.\n\nWhen questioned by the Officer as to the use of the Declared Funds and the Undeclared Funds, the appellant stated that $92,000 had been loaned to him by two jewellers in Montreal for whom he intended to purchase jewellery on his trip. The appellant did not have any documentation confirming these arrangements and initially was unsure of the names of the two jewellers. Additionally, he did not have any documentation to support a withdrawal from a banking institution of any portion of the funds. Moreover, the Officer observed that the funds were not wrapped according to the method used by financial institutions. Instead, they were in mixed denominations that were out of order and were held together with elastics.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-36", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 62", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having regard to the circumstances surrounding the seizure of the Declared Funds and the Undeclared Funds, the Officer determined that the normal requirement that the seized funds be returned to the person from whom they were seized, subject to a prescribed penalty, was not appropriate. Rather, the Officer maintained the forfeiture of the seized funds, as permitted by subsection 18(2), on the basis that she had reasonable grounds to suspect that the seized funds were proceeds of crime or funds for use in the financing of terrorist activities. Subsection 18(2) reads as follows: 18(2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. 18(2) Sur réception du paiement de la pénalité réglementaire, l'agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-37", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 63", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 462.3(1) of the Criminal Code defines proceeds of crime to mean any property obtained directly or indirectly as a result of the commission of a designated offence. That same provision defines designated offence (a “Designated Indictable Offence”) as any indictable offence under the Criminal Code and other federal statutes, other than indictable offences enumerated in section 1 of the Regulations Excluding Certain Indictable Offences from the Definition of “Designated Offence”, SOR/2002-63. A list of excluded indictable offences is reproduced in Schedule “A” to the decision of the Application Judge. The definitions of proceeds of crime and designated offence in subsection 462.3(1) of the Criminal Code read as follows: “designated offence” means (a) an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a); « infraction désignée » a) Soit tout acte criminel prévu à la présente loi ou une autre loi fédérale, à l’exception des actes criminels désignés par règlement; b) soit le complot ou la tentative en vue de commettre un tel acte ou le fait d’en être complice après le fait ou d’en conseiller la perpétration. “proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of (a) the commission in Canada of a designated offence, or (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-38", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 63–64", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "« produits de la criminalité » Bien, bénéfice ou avantage qui est obtenu ou qui provient, au Canada ou à l’extérieur du Canada, directement ou indirectement : a) soit de la perpétration d’une infraction désignée; b) soit d’un acte ou d’une omission qui, au Canada, aurait constitué une infraction désignée. DECISION OF THE MINISTER\n\nOn November 19, 2003, the appellant made a request, pursuant to section 25, for a decision of the Minister as to whether he had contravened subsection 12(1). Section 25 reads as follows: 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-39", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 65–67", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In response to the appellant’s request, a written notice (the “Notice of Reasons for Action”) of the circumstances of the seizure of the Declared Funds and the Undeclared Funds, as required by subsection 26(1), was provided to the appellant. Subsections 26(1) reads as follows: 26(1) If a decision of the Minister is requested under section 25, the President shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested. 26(1) Le président signifie sans délai par écrit à la personne qui a présenté la demande visée à l’article 25 un avis exposant les circonstances de la saisie à l’origine de la demande.\n\nThe Notice of Reasons for Action described the events leading up to the maintenance of the forfeiture of the Declared Funds and the Undeclared Funds by the Officer pursuant to subsection 18(2) and concluded with a request for evidence to be submitted to demonstrate that these funds had been legitimately obtained.\n\nAs permitted by subsection 26(2), the appellant submitted evidence to the Minister, consisting of four affidavits and three character reference letters. In addition, counsel for the appellant made submissions in relation to the seizure of the funds. Subsection 26(2) reads as follows: 26(2) The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish. 26(2) Le demandeur dispose de trente jours à compter de la signification de l’avis pour produire tous moyens de preuve à l’appui de ses prétentions.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-40", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 68–71", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The evidence provided by the appellant, as permitted by subsection 26(2), contradicted the information with respect to the sources of the Declared Funds and the Undeclared Funds that he had given to the Officer and sought to establish that $92,000 of these funds was actually provided by two different business associates, only one of whom was from Montreal, and that the balance came from several withdrawals from the bank account of the appellant’s jewellery business.\n\nThe three character references did not address the issue of the legitimacy of the origin of the Declared Funds and the Undeclared Funds.\n\nThe affidavits of the two business associates stated that they had provided the appellant with $92,000 in cash, from the cash sales of jewellery, for the purchase of jewellery in Dubai on their behalf. These affidavits did not contain any information with respect to the sales which allegedly generated the cash that was provided to the appellant.\n\nAn affidavit provided by the bookkeeper for the appellant’s jewellery business indicated that $37,000 of the seized funds (the balance of the seized funds after deducting the portion that had allegedly been loaned to the appellant) had been withdrawn from the bank account of the business through a series of cheques that were payable to the appellant’s wife. In his affidavit, the appellant stated that these cheques were issued for business purposes and that he received the money when the cheques were cashed.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-41", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 72–74", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In correspondence dated March 15, 2004 (the “First Notice”), a CBSA official (the “First Adjudicator”) advised the appellant that the affidavits of the two business associates did not demonstrate the legitimacy of the portion of the seized funds that those persons allegedly loaned to the appellant and invited further submissions. The First Notice contained the following statement: … Having broken the law and failed to declare, a person cannot regain currency seized as forfeit, on a reasonable suspicion under the Act, by merely telling a story that could be true. An innocent explanation as to the origin of the funds must be proven in sufficient detail and with enough credible, reliable and independent evidence to establish that no other reasonable explanation is possible. Otherwise reasonable doubts remain and the forfeiture stands.\n\nOn April 27, 2004, counsel for the appellant replied to the First Notice indicating that, in his view, an independent RCMP investigation demonstrated that the seized funds could not be linked to any terrorist financing.\n\nBy correspondence dated May 3, 2004, the First Adjudicator indicated that inquiries would be made with respect to the RCMP investigation. In addition, this correspondence reiterated the CBSA’s view (the “Second Notice”) that the affidavits of the two business associates did not adequately substantiate the legitimacy of the funds that allegedly had been loaned to the appellant and requested documentary evidence to support the legitimacy of the seized currency.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-42", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 75–77", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In correspondence dated June 18, 2004, the First Adjudicator advised the appellant that the RCMP investigation did not include a consideration of whether the seized funds were proceeds of crime, within the meaning of subsection 18(2). Once again, the appellant was put on notice (the “Third Notice”) that documentary evidence was needed in order to corroborate the affidavits of the two business associates in relation to the alleged loans.\n\nNotwithstanding the requests contained in the First Notice, the Second Notice and the Third Notice, the appellant did not provide any documentary evidence establishing the source of the funds that had allegedly been loaned by the two business associates to the appellant. Instead, counsel for the appellant asked the Minister to render the decision that had been requested by the appellant pursuant to section 25.\n\nSubsections 27(1) and (3) obligate the Minister to make a decision as to whether a contravention of subsection 12(1) has occurred and to provide written notice of the decision, including reasons, to the person who has made the request for the decision. Subsections 27(1) and (3) read as follows: 27(1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. 27(1) Dans les quatre-vingt-dix jours qui suivent l’expiration du délai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l’appui.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-43", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 78–79", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the circumstances of this case, the Minister delegated her responsibility to make the decisions contemplated by sections 25, 27 and 29 to a manager in the Recourse Directorate, Admissibility Branch of the CBSA (the “Minister’s Delegate”). In reaching the decision required by subsection 27(1), the Minister’s Delegate relied, in part, on the file that had been initially prepared by the First Adjudicator and completed by another CBSA official (the “Second Adjudicator”).\n\nAfter having reviewed the evidence and submissions that had been provided by the appellant’s counsel, as well as other available materials, including the Officer’s report, the Second Adjudicator prepared a document (the “Case Synopsis and Reasons for the Decision”) that was signed by her on September 25, 2005 and by the Minister’s Delegate on October 3, 2005. That document contained the statement from the First Notice that is reproduced in paragraph 72 of these reasons.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-44", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 80", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "By correspondence dated October 6, 2005, the Minister’s Delegate advised the appellant of his decision that there had been a contravention of subsection 12(1) by the appellant, in accordance with subsections 27(1) and (3). Having reached that decision, the Minister’s Delegate, as required by subsection 29(1), also addressed the issue of whether the seized funds were to be returned to the appellant. The provisions of subsection 29(1) read as follows: 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. 29.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-45", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 80–81", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu’il fixe : a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b).\n\nThe decision of the Minister’s Delegate under subsection 27(1) is not in dispute in this appeal. Rather, the focus of the appellant is on the decision that was made by the Minister’s Delegate under subsection 29(1).", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-46", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 82–83", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister’s Delegate decided to return the Declared Funds to the appellant pursuant to paragraph 29(1)(a) and to confirm the forfeiture of the Undeclared Funds pursuant to paragraph 29(1)(c). The Minister’s Delegate provided the following reasons in respect of his decision under subsection 29(1): Although your solicitor’s representations have been considered, mitigation has not been granted in this case. The evidence provided is not verifiable and does not substantiate the origin of the currency. Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency, reasonable suspicion still exists. As such the currency has been held as forfeit. However, it has been decided that the declared currency ($4,000.00 Canadian and $400.00 USD) should be returned to you. [Emphasis added.]\n\nThe appellant brought an application in the Federal Court for judicial review of the decision of the Minister confirming the forfeiture of the Undeclared Funds pursuant to paragraph 29(1)(c) (the “Subsection 29(1) Decision”). DECISION OF THE FEDERAL COURT", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-47", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 84–87", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Application Judge held that section 29 is silent with respect to the principles that the Minister, or her delegate, must apply in deciding whether to confirm a forfeiture of funds that have been seized under Part 2 of the Act. The Application Judge found that, in this case, the Minister’s Delegate decided to base his Subsection 29(1) Decision upon a determination of whether the test in subsection 18(2), which was applied by the Officer, would still be met, that is to say, whether reasonable grounds to suspect that the seized currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities (“Reasonable Grounds To Suspect”) still existed at the time of the Subsection 29(1) Decision.\n\nThe Application Judge referred to the cross-examination of the Minister’s Delegate on the affidavit that he had sworn as indicating that because of his reliance on the Case Synopsis and Reasons for the Decision and the standard of proof referred to therein, he may have thought that to dispel Reasonable Grounds To Suspect, the appellant was obligated to prove an innocent explanation beyond all doubt.\n\nThe Application Judge determined that the standard of proof that is necessary to establish Reasonable Grounds To Suspect requires more than a subjective suspicion or a hunch. Instead, the Application Judge held that evidence to substantiate Reasonable Grounds To Suspect must be credible and objective.\n\nThe Application Judge then went on to state that the standard of proof referred to in the Case Synopsis and Reasons for the Decision, namely, proof beyond all doubt, was erroneous and that to dispel Reasonable Grounds To Suspect, only proof beyond a reasonable doubt is required.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-48", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 88–91", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the circumstances, the Application Judge found that this error on the part of the Minister’s Delegate was immaterial, stating at paragraph 75: [The appellant’s] evidence failed to displace, beyond a reasonable doubt, the objective and credible evidence supporting the Minister’s Delegate’s suspicion that the Undeclared Currency was proceeds of crime. Accordingly, the Application Judge held that the error in the specification of the requisite standard of proof to dispel Reasonable Grounds To Suspect was insufficient to allow the application for judicial review to succeed.\n\nThe Application Judge also found no merit in the appellant’s argument that there are no Reasonable Grounds To Suspect that the Undeclared Funds are proceeds of crime. Moreover, the Application Judge found that the return of the Declared Funds did not contradict the confirmation of the forfeiture of the Undeclared Funds so as to render the decision of the Minister unreasonable.\n\nAccordingly, the Application Judge dismissed the application for judicial review. ISSUE\n\nThe issue in this appeal is whether the Minister’s Delegate erred in making the Subsection 29(1) Decision, in which the forfeiture of the Undeclared Funds was confirmed pursuant to paragraph 29(1)(c). ANALYSIS The Nature of the Subsection 29(1) Decision", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-49", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 92–93", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 29(1) provides the Minister with broad discretionary powers to determine the monetary sanction, if any, that is to be imposed on a person who has been determined, pursuant to subsection 27(1), to have contravened subsection 12(1). In particular, paragraph 29(1)(a) empowers the Minister to reverse a forfeiture of seized funds, with or without a penalty, paragraph 29(1)(b) empowers the Minister to remit all or a portion of any penalty imposed under subsection 18(2) and paragraph 29(1)(c) empowers the Minister to confirm a forfeiture of seized funds. As correctly observed by the Application Judge, the basis upon which the Minister is to exercise her discretion under subsection 29(1) is not spelled out in that provision or elsewhere in the Act. Moreover, the Minister is under no obligation to provide reasons for a decision made pursuant to subsection 29(1) (see Tourki v. Canada (Minister of Public Safety and Emergency Preparedness, [2007] F.C.J. No. 685; 2007 FCA 186). The Decision Under Review\n\nIt is at this point that I must respectfully diverge from the reasons of my colleague, Pelletier J.A.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-50", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 94", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Application Judge, at paragraph 63 of her reasons, acknowledges the absence of guiding principles with respect to the basis for a decision under subsection 29(1) but goes on to find that the Minister’s Delegate adopted the test in subsection 18(2) as the basis for his subsection 29(1) decision. That paragraph reads as follows: [63] Section 29 of the Act is silent about the principles to be used by a Minister’s Delegate in deciding whether to confirm a currency forfeiture. However, the Decision makes it clear that, in this case, the Minister’s Delegate was determining whether a reasonable suspicion still existed. In other words, the Minster’s Delegate adopted for the Decision the test the Customs Officer at the airport was required to use when she declined to return the Forfeited Currency, pursuant to subsection 18(2) of the Act. That subsection provides that she must have had “reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities”. In my view, the Decision stated the correct test when it indicated that Minister’s Delegate was determining whether such reasonable grounds still existed.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-51", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 95", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the hearing of the appeal, counsel for the respondent confirmed that the Minister’s Delegate exercised the discretion provided in subsection 29(1) in accordance with this finding by the Application Judge. This confirmation is consistent with the position taken by counsel for the respondent in paragraphs 67 and 68 of his memorandum of fact and law. Those paragraphs are as follows: 67. In order to respond to this argument, it is important to first understand the nature of the ministerial review conducted by the Respondent, which is not a criminal prosecution. It is an administrative review of an in rem property seizure where the sole issue is whether there are reasonable grounds to suspect that the currency is proceeds of crime, not whether the person who failed to declare the currency has committed a crime. Similarly, currency may be seized and forfeited whether or not it is in fact associated with money laundering or terrorism. The test, as set out in the PCMLTFA, is only that there are reasonable grounds to suspect that the currency is proceeds of crime. 68. The exercise conducted by the Respondent decision-maker in the case at bar was to review the totality of the factual record before him and to reach a conclusion on whether or not reasonable grounds existed to suspect that the currency is proceeds of crime. This flows from the fact that the Respondent was reviewing the Customs officer’s determination that she had reasonable grounds to suspect that the currency was proceeds of crime and therefore could not return the currency to the Applicant pursuant to s. 18(2) of the PCMLTFA.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-52", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 96–98", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The adoption by the Minister’s Delegate of the Reasonable Grounds To Suspect test in subsection 18(2) is further evident from paragraphs 14 and 24 of his affidavit, the relevant portions of which read as follows: 14. In my view, this material demonstrated that there were reasonable grounds to suspect that the undeclared currency seized from the Applicant on November 10, 2003 was proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code… 24. In sum, on the basis of all of the material that was before me, with particular emphasis on the grounds set out above and taken as a whole, I concluded that it was reasonable to suspect that the unreported currency in the amount of $119,000 (Canadian) and $35 (US) was proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code.\n\nAt no stage in the proceedings has it been argued that the Minister’s Delegate did not, in fact, adopt the Reasonable Grounds To Suspect test, in subsection 18(2), as the basis upon which he exercised his discretion under subsection 29(1). Moreover, there has been no argument that the adoption of that test was an improper exercise of the discretion given to the Minister’s Delegate under subsection 29(1).\n\nI would hasten to add that, in my view, the Minister’s Delegate was not required to adopt the Reasonable Grounds To Suspect test as the basis upon which to make his Subsection 29(1) Decision. That test is not the only basis upon which a Subsection 29(1) Decision can be made. Indeed, by choosing to adopt that test, it may be that the Minister’s Delegate has set a higher standard for himself than he needed to.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-53", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 99–101", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, unlike my colleague Pelletier J.A., I am of the view that this appeal must proceed on the basis that the Minister’s Delegate, in fact, adopted the Reasonable Grounds To Suspect test in subsection 18(2) and that the issue is whether the Minister’s Delegate properly applied that test.\n\nIn concluding that the Minister’s Delegate applied the subsection 18(2) test by considering whether Reasonable Grounds To Suspect “still existed”, the Application Judge, in effect, found that the Minister’s Delegate was reviewing the decision of the Officer to impose the forfeiture in light of the evidence and submissions that had been provided by the appellant subsequent to the seizure of the funds. This explains the approach of the Application Judge in determining the standard of proof that was required of the appellant to “dispel” the Reasonable Grounds To Suspect, as found by the Officer.\n\nIndeed, this approach is also adopted by the appellant who takes issue with the Application Judge only to the extent that she determined the requisite standard of proof to be beyond a reasonable doubt. According to the appellant, a lower standard of proof, namely, one that lies “midway between the civil standard of proof on a balance of probabilities and the criminal standard of proof beyond a reasonable doubt”, is sufficient to “dispel” the Reasonable Grounds To Suspect that the Officer found to be present at the time of the seizure of the funds.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-54", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 102–103", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent argues that the focus on the standard of proof required to “dispel” the Reasonable Grounds To Suspect that were found by the Officer is misguided. According to the respondent, the exercise that was undertaken by the Minister’s Delegate in making the Subsection 29(1) Decision was in the nature of a de novo consideration by the Minister’s Delegate of the question of whether Reasonable Grounds To Suspect existed at the time of the de novo consideration.\n\nI am inclined to accept the respondent’s characterization of the nature of the decision that was undertaken by the Minister’s Delegate. This characterization is supported by the following excerpt from the October 6, 2005 correspondence of the Minister’s Delegate: Based on the totality of the evidence and the lack of verifiable evidence to support the legitimate origin of the currency reasonable suspicion still exists. Further support is contained in paragraph 24 of the affidavit of the Minister’s Delegate, which is produced in paragraph 45 of the reasons of the Application Judge and reads as follows: 24. In sum, on the basis of all of the material that was before me, with particular emphasis on the grounds set out above and taken as a whole, I concluded that it was reasonable to suspect that the unreported currency in the amount of $119,000 (Canadian) and $35 (US) was proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-55", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 104", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, where the Minister exercises the discretion provided in subsection 29(1) by adopting the Reasonable Grounds To Suspect test in subsection 18(2) as the basis upon which to decide upon the monetary sanction that is to be imposed upon a person whose funds have been subject to forfeiture and who has been determined by the Minister to have contravened subsection 12(1), the Minister is then required to make a fresh consideration of whether, at the time of her decision, there are Reasonable Grounds To Suspect. This obligates the Minister to come to her own conclusion as to the existence of Reasonable Grounds To Suspect. In that regard, the Minister’s decision must be based upon the entirety of the record before her, which would include the evidence that was available to the officer at the time of the seizure of the funds, as well as any evidence and submissions that are provided to the Minister after that time. As such, the consideration by the Minister is not a de novo review in the sense of a trial de novo, in which the case is decided only on the new record and without regard to evidence adduced in prior proceedings (see Molson Breweries v. John Labatt Ltd., [2000] F.C.J. No. 159; [2000] 3 F.C. 145 (C.A.) at paragraph 46). Thus, in such circumstances, the Minister’s de novo consideration would necessarily entail a determination of the legal test for Reasonable Grounds To Suspect and thereafter, an application of that test to the facts before her.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-56", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 105–106", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In view of the misconception, on the part of the Application Judge, of the approach that was required to be taken, and was in fact taken, by the Minister’s Delegate in rendering his Subsection 29(1) Decision, that decision was not appropriately reviewed by the Application Judge. Accordingly, I will undertake that review. The Standard of Review\n\nIn Dunsmuir v. New Brunswick, 2008 SCC 9, Justices Bastarache and LeBel provided the following guidance, at paragraph 62: 62 In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-57", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 107–108", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Dag v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 95, [2008] F.C.J. No. 442; this Court held that the applicable standard of review of a decision of the Minister under subsection 29(1) is reasonableness. In Dag, as in this case, the Minister made the determination that the decision as to the monetary sanction that was to be imposed in light of a contravention of subsection 12(1) would be made on the basis of the application of the Reasonable Grounds To Suspect test in subsection 18(2). This is evident from paragraph 5 of the decision, which reads as follows: 5 With respect to the substantive issue which was before Blais J., we are of the view, applying this standard, that he committed no error when he held that the record allowed the Minister to conclude in the present case that there were “reasonable grounds to suspect” that the currency was “proceeds from crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities”.\n\nIt is apparent that in Dag, no issue was taken with respect to the proper interpretation of the Reasonable Grounds To Suspect element of the test in subsection 18(2).", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-58", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 109–111", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "While the question posed by subsection 18(2) is one of mixed fact and law, the proper interpretation of the Reasonable Grounds To Suspect element of that question may be seen as a legal question. In that regard, Dunsmuir informs that where a legal issue that is intertwined with factual issues can nonetheless be easily separated from those factual issues and where the legal issue is one of general law, the standard of correctness will apply in relation to that issue. In my view, both of those requirements are present with respect to the proper interpretation of Reasonable Grounds To Suspect as found in subsection 18(2). Accordingly, the issue of the proper interpretation of that phraseology not having arisen in Dag, I am of the view that the question of whether that phraseology was properly interpreted by the Minister’s Delegate in making the Subsection 29(1) Decision must be reviewed on the standard of correctness.\n\nThe application of the legal test for Reasonable Grounds To Suspect by the Minister’s Delegate to the facts that were before him is, in accordance with Dag, required to be reviewed on the standard of reasonableness. The Legal Test for Reasonable Grounds To Suspect\n\nThe Application Judge analyzed the issue of the standard of proof that is required to establish Reasonable Grounds To Suspect. She found that there must be more than a mere subjective suspicion. Instead, the Application Judge found that to substantiate Reasonable Grounds To Suspect, there must be objective and credible evidence.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-59", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 112", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "This finding of the Application Judge is consistent with the conclusion of the Supreme Court of Canada in its recent decision in R. v. Kang-Brown, [2008] S.C.J. No. 18, 2008 SCC 18. In that case, the standard of proof that is required to establish a “reasonable suspicion” is described, in paragraph 75, as one that requires objectively ascertainable facts that are capable of judicial assessment. In my view, there is little to differentiate a “reasonable suspicion” from “reasonable grounds to suspect”. Accordingly, I am of the view that the standard of proof described in Kang-Brown is an appropriate one to be applied to the determination of whether Reasonable Grounds To Suspect may be said to exist. I would hasten to add that I see no material difference between that standard of proof and the standard of proof as formulated by the Application Judge.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-60", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 113", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "The record does not demonstrate a clear and specific enunciation by the Minister’s Delegate of the appropriate standard of proof required to establish Reasonable Grounds To Suspect. However, a review of both the Case Synopsis and Reasons for the Decision and the affidavit of the Minister’s Delegate indicates that credible and objectively ascertainable evidence was sought as the basis upon which to ground the Subsection 29(1) Decision. It is clear to me that the Minister’s Delegate was looking for more than a subjective suspicion or a “hunch” as the basis for that decision. Moreover, the requests in the First Notice, the Second Notice and the Third Notice, for additional documentary support with respect to the origin of the portion of the seized funds that were allegedly loaned to the appellant, clearly demonstrate that the First Adjudicator sought credible and objectively ascertainable evidence from the appellant to include in the record upon which the Minister’s Delegate based his Subsection 29(1) Decision. Accordingly, I am of the view that the record demonstrates a sufficient awareness on the part of the Minister’s Delegate of the legal standard that is necessary to establish Reasonable Grounds To Suspect. As such, the Subsection 29(1) Decision is unassailable in terms of whether it was based upon a correct understanding of the appropriate legal standard that underpins the Reasonable Grounds To Suspect test.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-61", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 114–116", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In light of the standard of proof that has been determined, Reasonable Grounds To Suspect may be found where there are objectively ascertainable facts indicating that the seized funds are for use in the financing of terrorist activities. Terrorist activity is defined in section 2 as having the same meaning as in subsection 83.01(1) of the Criminal Code. Alternatively, Reasonable Grounds To Suspect may be found where objectively ascertainable facts indicate that the seized funds are proceeds of crime, within the meaning of subsection 462.3(1) of the Criminal Code. Both of these possibilities were considered by the Minister’s Delegate, as indicated in paragraph 9 of his affidavit, but the Subsection 29(1) Decision was ultimately based upon a reasonable suspicion that the seized funds were proceeds of crime.\n\nThe definition of proceeds of crime provides an expansive, although not unlimited, scope as to what may be considered a criminally acquired asset. The Designated Indictable Offences which may give rise to proceeds of crime include a number of the more serious offences under the Criminal Code and other federal statutes, such as illegal drug trafficking, bribery, fraud, robbery, counterfeit money, stock manipulation and money laundering (where the Crown proceeds by way of indictment).\n\nIt is clear that not all crimes or offences are Designated Indictable Offences. Importantly, it is only those crimes and offences that are Designated Indictable Offences that have the requisite degree of criminality that will permit seized funds to be characterized as proceeds of crime for the purposes of the Reasonable Grounds To Suspect test in subsection 18(2).", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-62", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 117–118", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, the record before the Minister or her delegate may indicate that the seized funds are associated with crime, albeit not necessarily a Designated Indictable Offence. In my view, the determination of whether there are Reasonable Grounds To Suspect that seized funds are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code can be approached, where it is helpful to do so, by breaking the analysis into two parts. Viewed in this manner, the analysis involves a consideration of whether there is a reasonable suspicion that the seized funds are associated with criminality, and that such criminality is a Designated Indictable Offence. I would add that this approach is equally applicable to an officer who is obligated to consider the Reasonable Grounds To Suspect test in subsection 18(2) as it is to the Minister, or her delegate, where that test is adopted for the purposes of a Subsection 29(1) Decision.\n\nIt is apparent that the second part of this approach is the more difficult of the two. Evidence linking the seized funds to criminality in general is likely to be available. However, evidence indicating a linkage between the seized funds and a particular Designated Indictable Offence is less likely to be available.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-63", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 119–121", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, requiring an officer or the Minister to establish a direct linkage between the seized funds and the commission of a specific Designated Indictable Offence, in order to meet the Reasonable Grounds To Suspect test, imposes too onerous a standard. In the context of forfeitures of funds under certain provisions of the Criminal Code, it has been observed that where the Crown is unable to directly establish a specific offence as the source of alleged proceeds of crime, a forfeiture of the funds may nonetheless be upheld where an appropriate inference that the funds are connected to the particular offence or class of offences can be drawn from the facts. See for example R. v. Shah, [1992] B.C.J. No. 2716 (Prov. Ct.); R. v. Clymore, [1992] B.C.J. No. 1705, 74 C.C.C. (3d) 217 (S.C.); R. v. Hicks, [2000] B.C.J. No. 2653 (Prov. Ct. (Crim. Div.)).\n\nIn my view, it is entirely appropriate to rely upon properly drawn inferences that seized funds that have been derived from some type of criminality have been derived from a Designated Indictable Offence, as required by the Reasonable Grounds To Suspect test in subsection 18(2). Application of the Legal Test\n\nThe question at this point is whether, in accordance with Dag, the Subsection 29(1) Decision of the Minister’s Delegate is reasonable.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-64", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 122–123", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "As stated in the October 6, 2005 correspondence, in the Subsection 29(1) Decision the Minister’s Delegate determined that a reasonable suspicion existed since the evidence provided by the appellant after the seizure of the funds was not verifiable and did not point to a legitimate origin of the seized funds. The Minister’s Delegate expanded upon this reasoning in paragraph 24 of his affidavit that is reproduced in paragraphs 96 and 103 of these reasons, wherein the Minister’s Delegate stated that he had concluded, based on all of the material in the record, that it was reasonable to suspect that the Undeclared Funds were proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code.\n\nAs explained in his affidavit, the relevant portions of which are reproduced in paragraph 45 of the reasons of the Application Judge, the following facts relied on by the Minister’s Delegate in arriving at the Subsection 29(1) Decision pointed to a reasonable suspicion that the Undeclared Funds were associated with criminality, in accordance with the first stage of the analysis as described above: (a) the appellant had attempted to export a large amount of funds and had chosen to report a small fraction of this amount to the Officer; (b) the appellant had provided vague answers in response to the Officer’s questions; (c) further to his request for a ministerial decision, the appellant provided an explanation as to the origin of the seized funds that differed from that originally given to the Officer; and (d) the ultimate explanation provided by the appellant in respect of the origin of the seized funds was not corroborated by sufficient supporting documentation.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-65", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 124", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the first ground, the Minister’s Delegate was of the view that the appellant’s behaviour in choosing not to report the Undeclared Funds, when explicitly questioned by the Officer as to the amount of funds that he was travelling with, was suspicious, particularly since the appellant was a frequent international traveller who would have been aware of currency reporting requirements. The Minister’s Delegate pointed to the fact that individuals wishing to transfer large amounts of legitimate funds between countries usually prefer to use the services of financial institutions because such transactions are faster, cheaper and more secure than bulk cash transportation. Additionally, the Minister’s Delegate commented that, unlike American currency, Canadian currency is not readily used or accepted in many other countries. For that reason, the Minister’s Delegate found it implausible that large quantities of legitimate Canadian currency would have been brought by a traveller to a country such as the United Arab Emirates in order to conduct legitimate business.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-66", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 125", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the second ground, the Minister’s Delegate referred to the fact that when asked by the Officer to explain the origin of the Declared Funds and the Undeclared Funds, the appellant initially advised that he was unsure of the identities of the individuals who had given him the currency and only later produced the names of two business associates in Montreal who had provided him with $92,000 to purchase jewellery. Furthermore, when questioned by the Officer, the appellant had “sweat pouring down his face” and was visibly nervous. According to the Minister’s Delegate, for the rare international traveller who transports large sums of legitimately earned currency destined for legal purposes it can be expected that he or she will be able to clearly explain both the source and intended use of that currency, whereas an inability to clearly provide such an explanation suggests an awareness that the currency was not earned through legitimate means or is intended for illicit use.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-67", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "para 126", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the third ground, the Minister’s Delegate referred to the fact that four months after the seizure of the Declared Funds and the Undeclared Funds, the appellant provided an explanation for the origin of the funds that contradicted the explanation that he had given to the Officer. The appellant sought to establish that $92,000 had actually been provided by two individuals that differed from those initially identified and only one of whom was from Montreal, and, for the first time, the appellant explained that the balance of the seized funds had been withdrawn from the bank account of his jewellery business. The Minister’s Delegate was of the view that the fact that the appellant provided a new explanation for the origin of the seized funds which differed from that provided at the time of the forfeiture raised a suspicion that the funds were illicit.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-68", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 127–128", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the fourth ground, the Minister’s Delegate referred to the fact that while the affidavits of the two business associates maintained that they had provided the appellant with $92,000 to purchase certain vaguely described jewellery in the United Arab Emirates on their behalf, neither had provided contracts, receipts or any other documentation to support the existence of such a significant financial obligation. The Minister’s Delegate did not find it plausible that legitimate businesses seeking to purchase $92,000 worth of jewellery in a foreign country would do so by entrusting another person with currency in that amount without documenting this arrangement in some form and by providing vague instructions about the type and quantity of jewellery to buy. Moreover, while copies of cheques and bank statements were provided in the affidavit of the bookkeeper to show that six cheques totalling $37,000 made payable to the appellant’s wife were drawn against the bank account of the jewellery business in September and early November 2003, the Minister’s Delegate stated that there was no indication that the balance of the seized funds had indeed originated from these withdrawals. According to the Minister’s Delegate, the fact that the appellant chose to provide an implausible and unsubstantiated explanation for the origin of the seized funds rendered it reasonable to suspect that the currency was in fact illicit.\n\nAs previously indicated, it is not sufficient to simply establish a reasonable suspicion that the Undeclared Funds were associated with criminality. The test for Reasonable Grounds To Suspect in subsection 18(2) also requires a reasonable suspicion that such criminality is a Designated Indictable Offence.", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-36092-69", + "doc_type": "caselaw", + "act_code": "2008 FCA 255", + "act_short": "Sellathurai", + "act_name": "Sellathurai v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 255", + "marginal_note": "paras 129–131", + "heading": "PCMLTFA cross-border currency forfeiture; on a s. 30 appeal the issue is whether the s. 12 reporting duty was contravened, and the claimant must satisfy the Minister that the seized funds are of legitimate origin", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the Minister’s Delegate concluded that it was reasonable to suspect that the Undeclared Funds were proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code. This demonstrates that the Minister’s Delegate determined that it was reasonable to suspect that the Undeclared Funds were the proceeds of a Designated Indictable Offence. In my view, the fact that the Undeclared Funds consisted of $119,000 CAD in mixed denominations that were out of order and held together with elastics, supports a reasonable inference that the criminality reasonably suspected of being associated with the Undeclared Funds was not a minor offence but rather an indictable offence that constituted a Designated Indictable Offence. The reasonableness of such an inference is supported by the failure of the appellant to provide any credible and objective evidence of any legitimate source for the Undeclared Funds.\n\nIn my view, the record before the Minister’s Delegate was sufficient for him to reach his decision that there are Reasonable Grounds To Suspect that the Undeclared Funds are proceeds of crime. Accordingly, I am satisfied that the Subsection 29(1) Decision of the Minister’s Delegate, upholding the forfeiture of the Undeclared Funds, is reasonable. DISPOSITION\n\nFor the foregoing reasons, I would dismiss the appeal with costs. \"C. Michael Ryer\" J.A. FEDERAL COURT OF APPEAL", + "current_to": "2008-09-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36092/index.do" + }, + { + "id": "fca-35921-1", + "doc_type": "caselaw", + "act_code": "2008 FCA 95", + "act_short": "Dag", + "act_name": "Dag v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Dag v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 95", + "marginal_note": "paras 1–5", + "heading": "PCMLTFA currency forfeiture; the limited scope of review of the Minister's decision and the privative clause", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from the judgment of Blais J. of the Federal Court (2007 FC 427) dismissing the appellants’ application for judicial review of the seizure of $125,275 CAN at the Dorval International Airport, Montréal, Quebec by Canadian Customs agents.\n\nThe appellants allege that Blais J. committed a number of reviewable errors in confirming the Respondent Minister’s decision forfeiting the currencies seized in favour of Her Majesty.\n\nWe are satisfied that Blais J. committed no error which would merit our intervention.\n\nWith respect to the standard of review, there was a debate in the past about whether the standard applicable to the Minister’s decision was patent unreasonableness or reasonableness simpliciter. Given the recent pronouncement of the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9, which collapsed those two standards into one, and given the existence of the strong privative clause which appears in section 24 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act), we are satisfied that the applicable standard in reviewing the Minister’s decision under section 29 of the Act is reasonableness.\n\nWith respect to the substantive issue which was before Blais J., we are of the view, applying this standard, that he committed no error when he held that the record allowed the Minister to conclude in the present case that there were “reasonable grounds to suspect” that the currency was “proceeds from crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities”.", + "current_to": "2008-03-10", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35921/index.do" + }, + { + "id": "fca-35921-2", + "doc_type": "caselaw", + "act_code": "2008 FCA 95", + "act_short": "Dag", + "act_name": "Dag v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Dag v. Canada (Public Safety and Emergency Preparedness), 2008 FCA 95", + "marginal_note": "paras 6–9", + "heading": "PCMLTFA currency forfeiture; the limited scope of review of the Minister's decision and the privative clause", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants also allege that Blais J. erred in conducting a fresh examination of the evidence. With respect, we find no error in the manner in which Blais J. conducted his analysis. He supported the conclusion reached by the Minister on the basis of the specific points noted by the Minister’s officer in his report as well as on the basis of other elements in the record which pointed in the same direction, something which he was entitled to do.\n\nWith respect to the allegation that the appellants’ right to procedural fairness was breached, both by reason of the failure of the Minister to provide him with the recommendations of his officer and the insufficiency of the reasons, we note that the appellants were fully informed of the Minister’s case against them and were given ample opportunity to respond (Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72, at para. 26). We stress in this regard that the appellants have yet to provide any explanation for the fact that the bulk of the currency was concealed in a pair of stockings wrapped around Ms. Yas Dagg’s waist.\n\nWe are also satisfied that these alleged breaches would have had no consequence on the Minister’s decision given counsel’s candid admission that no new evidence would have been adduced. In our respectful view, the “new spin” which she would have given to the evidence, as she described it before us, would not have changed the outcome.\n\nThe appeal will be dismissed with costs. “Marc Noël” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2008-03-10", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35921/index.do" + }, + { + "id": "fca-35595-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 1–3", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from the decision of the Federal Court (Harrington J.) (2006 FC 50) dismissing the action brought by the appellant, Mr. Tourki, under subsection 30(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act). Harrington J. held, inter alia, that in an action under section 30 of the Act, the Federal Court has no jurisdiction to review the decision of the Minister of Public Safety and Emergency Preparedness (the Minister) to confirm that currency seized under the Act is forfeited, the appropriate procedure being an application for judicial review. Facts\n\nOn July 5, 2003, the appellant boarded a flight from Montréal to Paris. The private security corporation that was responsible for the security checkpoint had informed customs that Mr. Tourki had told them that his briefcase contained $25,000 in currency from the sale of an automobile. Before the plane left, two officers asked Mr. Tourki to disembark. When his person and baggage were searched, a briefcase containing banknotes totalling $102,642.33 was found. The notes were seized as forfeit by a customs officer. The Minister subsequently confirmed the forfeiture.\n\nThe appellant brought an action under section 30 of the Act. He challenged the Minister's decision that the appellant had violated section 12 of the Act and the Minister's decision to confirm the forfeiture of the notes. The appellant also challenged the validity of sections 12, 15, 16, 18, 19 and 22 to 29 of the Act on the ground that they were inconsistent with sections 7, 8 and 11(d) of the Canadian Charter of Rights and Freedoms (the Charter).", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 4", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The trial judge dismissed the action. He held that, in an action under section 30 of the Act, the Federal Court does not have jurisdiction to review the Minister's decision to confirm the forfeiture of the currency. In addition, the trial judge was of the opinion that the appellant had violated section 12 of the Act by failing to report to customs the exportation of money of a value greater than $10,000.00. He also held that the Act did not violate the rights guaranteed by sections 7, 8 and 11(d) of the Charter. Relevant Legislation", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "I will first set out the relevant sections of the Act. Object 3. The object of this Act is (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including Objet 3. La présente loi a pour objet : a) de mettre en œuvre des mesures visant à détecter et décourager le recyclage des produits de la criminalité et le financement des activités terroristes et à faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment : (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities, (i) imposer des obligations de tenue de documents et d’identification des clients aux fournisseurs de services financiers et autres personnes ou entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées pour le recyclage des produits de la criminalité ou pour le financement des activités terroristes, (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments, and (ii) établir un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, (iii) establishing an agency that is responsible for dealing with reported and other information; (iii) constituer un organisme", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "chargé de l’examen de renseignements, notamment ceux portés à son attention en application du sous-alinéa (ii); (b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; and b) de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, tout en assurant la mise en place des garanties nécessaires à la protection de la vie privée des personnes à l’égard des renseignements personnels les concernant; (c) to assist in fulfilling Canada’s international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity. c) d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational, particulièrement le recyclage des produits de la criminalité, et la lutte contre les activités terroristes. Currency and monetary instruments 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. . . . Déclaration 12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] (3) Currency or monetary instruments shall be reported under subsection (1) (3) Le déclarant est, selon le cas : (a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; . . . a) la personne ayant en sa possession effective ou parmi ses bagages les espèces ou effets se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada ou a quitté le pays ou la personne qui, dans les circonstances réglementaires, est responsable du moyen de transport; […] Seizure and forfeiture 18. (1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments. Saisie et confiscation 18. (1) S’il a des motifs raisonnables de croire qu’il y a eu contravention au paragraphe 12(1), l’agent peut saisir à titre de confiscation les espèces ou effets. (2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) Sur réception du paiement de la pénalité réglementaire, l’agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s’il soupçonne, pour des motifs raisonnables, qu’il s’agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes. (3) An officer who seizes currency or monetary instruments under subsection (1) shall (3) L’agent qui procède à la saisie-confiscation prévue au paragraphe (1) : (a) if they were not imported or exported as mail, give the person from whom they were seized written notice of the seizure and of the right to review and appeal set out in sections 25 and 30; a) donne au saisi, dans le cas où les espèces ou effets sont importés ou exportés autrement que par courrier, un avis écrit de la saisie et du droit de révision et d’appel établi aux articles 25 et 30; (b) if they were imported or exported as mail and the address of the exporter is known, give the exporter written notice of the seizure and of the right to review and appeal set out in sections 25 and 30; and b) donne à l’exportateur, dans le cas où les espèces ou effets sont importés ou exportés par courrier et son adresse est connue, un avis écrit de la saisie et du droit de révision et d’appel établi aux articles 25 et 30; (c) take the measures that are reasonable in the circumstances to give notice of the seizure to any person whom the officer believes on reasonable grounds is entitled to make an application under section 32 in respect of the currency or monetary instruments.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "c) prend les mesures convenables, eu égard aux circonstances, pour aviser de la saisie toute personne dont il croit, pour des motifs raisonnables, qu’elle est recevable à présenter, à l’égard des espèces ou effets saisis, la requête visée à l’article 32. Power to call in aid 19. An officer may call on other persons to assist the officer in exercising any power of search, seizure or retention that the officer is authorized under this Part to exercise, and any person so called on is authorized to exercise the power. Main-forte 19. L’agent peut requérir main-forte pour se faire assister dans l’exercice des pouvoirs de fouille, de rétention ou de saisie que lui confère la présente partie. Toute personne ainsi requise est autorisée à exercer ces pouvoirs. Recording of reasons for decision 19.1 If an officer decides to exercise powers under subsection 18(1), the officer shall record in writing reasons for the decision. . . . Enregistrement des motifs 19.1 L’agent qui décide d’exercer les attributions conférées par le paragraphe 18(1) est tenu de consigner par écrit les motifs à l’appui de sa décision. […] When forfeiture under s. 14(5) 22. (1) An officer who retains currency or monetary instruments forfeited under subsection 14(5) shall send the currency or monetary instruments to the Minister of Public Works and Government Services. Confiscation aux termes du paragraphe 14(5) 22. (1) En cas de confiscation aux termes du paragraphe 14(5) des espèces ou effets retenus, l’agent les remet au ministre des Travaux publics et des Services gouvernementaux.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) An officer who seizes currency or monetary instruments or is paid a penalty under subsection 18(2) shall send the currency or monetary instruments or the penalty, as the case may be, to the Minister of Public Works and Government Services. (2) En cas de saisie d’espèces ou d’effets ou de paiement d’une pénalité réglementaire aux termes du paragraphe 18(2), l’agent les remet au ministre des Travaux publics et des Services gouvernementaux. Time of forfeiture 23. Subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized, and no act or proceeding after the forfeiture is necessary to effect the forfeiture. Moment de la confiscation 23. Sous réserve du paragraphe 18(2) et des articles 25 à 31, les espèces ou effets saisis en application du paragraphe 18(1) sont confisqués au profit de Sa Majesté du chef du Canada à compter de la contravention au paragraphe 12(1) qui a motivé la saisie. La confiscation produit dès lors son plein effet et n’est assujettie à aucune autre formalité. Review of forfeiture 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30. Conditions de révision 24. La confiscation d’espèces ou d’effets saisis en vertu de la présente partie est définitive et n’est susceptible de révision, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30. Request for Minister's decision 25.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. Demande de révision 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l’article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s’il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l’agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. Notice of President 26. (1) If a decision of the Minister is requested under section 25, the President shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested. Signification du président 26. (1) Le président signifie sans délai par écrit à la personne qui a présenté la demande visée à l’article 25 un avis exposant les circonstances de la saisie à l’origine de la demande. (2) The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish. (2) Le demandeur dispose de trente jours à compter de la signification de l’avis pour produire tous moyens de preuve à l’appui de ses prétentions. Decision of the Minister 27.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. Décision du ministre 27. (1) Dans les quatre-vingt-dix jours qui suivent l’expiration du délai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges. (2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle-ci doit être prise dans les trente jours suivant l’issue des poursuites. (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l’appui. If there is no contravention 28. If the Minister decides that subsection 12(1) was not contravened, the Minister of Public Works and Government Services shall, on being informed of the Minister’s decision, return the penalty that was paid, or the currency or monetary instruments or an amount of money equal to their value at the time of the seizure, as the case may be. Cas sans contravention 28.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-11", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Si le ministre décide qu’il n’y a pas eu de contravention au paragraphe 12(1), le ministre des Travaux publics et des Services gouvernementaux, dès qu’il est informé de la décision du ministre, restitue la valeur de la pénalité réglementaire, les espèces ou effets ou la valeur de ceux-ci au moment de la saisie, selon le cas. If there is a contravention 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, Cas de contravention 29. (1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu’il fixe : (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-12", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 5", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b). (2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. (2) En cas de vente ou autre forme d’aliénation des espèces ou effets en vertu de la Loi sur l’administration des biens saisis, le montant de la somme versée en vertu de l’alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l’aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l’aliénation, aucun paiement n’est effectué. Appeal to Federal Court 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. Cour fédérale 30. (1) La personne qui a présenté une demande en vertu de l’article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d’action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-13", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 5–6", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), avec les adaptations nécessaires occasionnées par les règles propres à ces actions. (3) The Minister of Public Works and Government Services shall give effect to the decision of the Court on being informed of it. [Emphasis added.] (3) Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en a été informé, prend les mesures nécessaires pour donner effet à la décision de la Cour. [Je souligne.] Standard of Review\n\nThe jurisdiction of the Federal Court under section 30 of the Act is a question of statutory construction that is reviewable on the correctness standard. The question of whether the appellant contravened subsection 12(1) of the Act is a question of mixed fact and law that is reviewable on the palpable and overriding error standard: Housen v. Nikolaisen, [2002] 2 S.C.R. 235. Jurisdiction of the Federal Court under Section 30 of the Act", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-14", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 7–9", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 24 of the Act contains the following privative clause: Review and Appeal Review of forfeiture 24. The forfeiture of currency or monetary instruments seized under this Part is final and is not subject to review or to be set aside or otherwise dealt with except to the extent and in the manner provided by sections 25 to 30. Révision et appel Conditions de révision 24. La confiscation d’espèces ou d’effets saisis en vertu de la présente partie est définitive et n’est susceptible de révision, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues aux articles 25 à 30.\n\nThat section provides that the forfeiture of currency seized may be reviewed by way of an action under section 30 of the Act. The English version of section 24 is also very clear on this point.\n\nThe word \"forfeiture\" (\"confiscation\") means, in law, \"a divestiture of specific property without compensation\" (Black’s Law Dictionary, 8th ed. 2004, p. 667). That definition was cited by the Supreme Court of Canada in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 at paragraph 44, which dealt with the word \"forfeiture\" (\"confiscation\") in subsection 72(1) of the Fisheries Act, R.S.C. 1985, c. F-14.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-15", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 10", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 30 of the Act, however, provides as follows: Appeal to Federal Court 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. Cour fédérale 30. (1) La personne qui a présenté une demande en vertu de l’article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d’action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. (2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), avec les adaptations nécessaires occasionnées par les règles propres à ces actions. (3) The Minister of Public Works and Government Services shall give effect to the decision of the Court on being informed of it. [Emphasis added.] (3) Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en a été informé, prend les mesures nécessaires pour donner effet à la décision de la Cour. [Je souligne.]", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-16", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 11", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "That section allows anyone who has made a request under section 25 to appeal by way of an action before the Federal Court in which the person is the plaintiff, within 90 days \"after being notified of the decision\". The Act does not specify which decision. Subsection 30(1), however, refers to a request under section 25, which provides as follows: Request for Minister's decision 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. [Emphasis added.] Demande de révision 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l’article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s’il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l’agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. [Je souligne.]", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-17", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 12–13", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 25 refers to the decision of the Minister as to whether subsection 12(1) of the Act was contravened. It is therefore that decision that is at issue in subsection 30(1). The Minister makes that decision under section 27 of the Act, which provides: Decision of the Minister 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. Décision du ministre 27. (1) Dans les quatre-vingt-dix jours qui suivent l’expiration du délai mentionné au paragraphe 26(2), le ministre décide s’il y a eu contravention au paragraphe 12(1). (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges. (2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle-ci doit être prise dans les trente jours suivant l’issue des poursuites. (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. [Emphasis added.] (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l’appui. [Je souligne.]\n\nThere is no doubt that the action that may be brought relates to the decision made by the Minister under section 27.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-18", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 14", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "If the Minister decides that subsection 12(1) of the Act was contravened, the Minister must then, on his own initiative, make another decision. Section 29 provides as follows: If there is a contravention 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, Cas de contravention 29. (1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu’il fixe : (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b).", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-19", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 14–15", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. [Emphasis added.] (2) En cas de vente ou autre forme d’aliénation des espèces ou effets en vertu de la Loi sur l’administration des biens saisis, le montant de la somme versée en vertu de l’alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l’aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l’aliénation, aucun paiement n’est effectué. [Je souligne.]\n\nIs this second decision also covered by section 30?", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-20", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 16", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437, [2005] F.C.J. No. 1783 (QL), Layden-Stevenson J. answered this question in the negative. She stated, at paragraphs 35 and 37: [35] The decisions of the Minister pursuant to sections 27 and 29 are discrete decisions. One deals with contravention; the other deals with penalty and forfeit. Section 27 stipulates that the Minister shall decide whether subsection 12(1), i.e. the requirement to report, was contravened. The wording is unequivocal and leaves no room for doubt. Section 29 provides that, in circumstances where the Minister determines that there was a failure to report, the Minister is to review the quantum of the sanction imposed by the customs official under subsection 18(2), i.e. full forfeiture or a penalty ranging from $250 to $5,000. The Minister will either confirm the customs official's determination with respect to sanction or reduce it to some lesser penalty. [35] Les décisions rendues par le ministre en application des articles 27 et 29 sont des décisions distinctes. L’une a trait à la contravention, tandis que l’autre porte sur la pénalité et la confiscation. L’article 27 énonce que le ministre doit décider s’il y a eu contravention au paragraphe 12(1), c’est-à-dire à l’obligation de déclarer les espèces ou effets. Le libellé est non équivoque et ne laisse aucun doute quant à sa signification. L’article 29 prévoit que, dans le cas où le ministre détermine que la personne a négligé de faire la déclaration requise, le ministre doit décider si le montant de la pénalité imposée par l’agent des douanes en application du paragraphe 18(2) était approprié, à savoir la confiscation entière des espèces ou une pénalité allant de 250 à 5 000 $.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-21", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 16", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Le ministre peut confirmer la décision de l’agent des douanes eu égard à la pénalité ou ordonner la restitution d’une partie plus ou moins importante de celle-ci. . . . […] [37] There is no ambiguity in the language. The Act authorizes an appeal in relation to a decision of the Minister under section 25. Section 25 relates only to a decision as to whether subsection 12(1) was contravened (the provision that imposes the obligation to report). It necessarily follows that the references to \"a decision\" and \"the decision\" in subsection 30(1) refer to the Minister's determination under section 27 of the Act. In my view, it cannot reasonably be construed in any other way. Consequently, the Federal Court's jurisdiction, pursuant to section 30 of the Act, is limited to reviewing the decision under section 27 of the Act. That decision is with respect to whether or not there was a contravention of the Act under subsection 12(1). [37] Le libellé des dispositions est clair. La Loi permet d’interjeter appel de la décision du ministre fondée sur l’article 25. Cet article vise uniquement une décision sur la question de savoir s’il y a eu contravention au paragraphe 12(1), qui énonce l’obligation de faire une déclaration. Il s’ensuit que les termes « une demande » et « la décision » employés à l’article 30 renvoient à la décision du ministre en application de l’article 27. À mon avis, il s’agit de la seule interprétation raisonnable. La compétence de la Cour fédérale en vertu de l’article 30 de la Loi est donc restreinte à la révision de la décision rendue en application de l’article 27 de la Loi. Cette décision vise à déterminer s’il y a eu contravention au paragraphe 12(1).", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-22", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 17–19", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "I am of the same opinion. The distinction she made between a decision under section 27 (the contravention or report) and a decision under section 29 (the penalty and forfeiture) is, as she demonstrated, based on the case law of this Court dealing with the seizure review and appeal mechanism provided for in the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), a mechanism similar to what is found in the Act (see Time Data Recorder International Ltd v. M.N.R., [1997] F.C.J. No. 475 (C.A.)(QL), affirming [1993] F.C.J. No. 768 (T.D.)(QL); Nerguizian v. M.N.R., [1996] F.C.J. No. 866 (T.D.)(QL); He v. Canada, [2000] F.C.J. No. 93 (T.D.)(QL).\n\nAccordingly, any decision relating to a penalty and seizure cannot be challenged by way of an action under section 30 of the Act. The appropriate remedy is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7.\n\nThe respondent drew our attention to the Act to amend the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Income Tax Act and to make a consequential amendment to another Act, S.C. 2006, c. 12, sections 14 and 16 of which, inter alia, came into force on February 10, 2007 (Order in Council P.C. 2007-0142 (Registration SI/20-07-18)). Those amendments are not effective retroactively and are not relevant for the purposes of this appeal. It is not for the Court, in the context of this case, to make pronouncements on the effect of the amendments for the future. This Court commented on them in Minister of Public Safety and Emergency Preparedness v. Pham, 2007 FCA 141, [2007] F.C.J. No. 496 (QL) (see paragraph 23). Subsection 12(1) of the Act", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-23", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 20–23", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant argues that he has not contravened subsection 12(1) of the Act. He says, and customs officer J.C. Prémont acknowledged at the hearing before the trial judge, that he had signed a declaration before leaving the airport in the early hours of July 6, 2003.\n\nThe trial judge clearly took note of that statement. He nonetheless held that the form signed by Mr. Tourki did not constitute a report under subsection 12(1) of the Act. It was too late to do so, because he was sitting on a plane on the tarmac when he was intercepted.\n\nThe trial judge did not err in deciding that the Minister was correct in determining that the appellant had contravened subsection 12(1) of the Act. Connection between a Forfeiture and a Declaration\n\nOne of the objects of the Act is to require the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments (subparagraph 3(a)(ii)). As Layden-Stevenson J. explained at paragraph 26 of her reasons, the implementation of those objectives is achieved through Part 2 of the Act which requires that importers and exporters make a report to a customs official whenever they import or export large quantities of currency or monetary instruments into or out of Canada. The reporting requirement is the cornerstone of the system established for monitoring cross-border movements.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-24", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 24", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is therefore important to note that a review of the Minister's decision, regarding both the contravention and the penalty or forfeiture, is necessarily initiated by a request under section 25 of the Act. It is also important to note that subsection 26(2), which is related to the request under section 25, is the only section of the Act that gives the person whose property has been seized an opportunity to offer evidence regarding both the contravention and the forfeiture.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-25", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 25", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Sections 18 to 20 of the Act are under the heading Seizures. The Act provides that if an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments (subsection 18(1) of the Act). An officer who decides to exercise the powers provided for in subsection 18(1) is required to record in writing reasons for the decision (section 19.1 of the Act). An officer who seizes currency or monetary instruments under subsection 18(1) of the Act must give the person from whom they were seized written notice of the seizure and of the right to review and appeal set out in sections 25 and 30 of the Act (subsection 18(3) of the Act). The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities (subsection 18(2) of the Act). If the currency or monetary instruments have been seized under section 18, the officer who seized them shall without delay report the circumstances of the seizure to the President of the Canada Border Services Agency and to the Financial Transactions and Reports Analysis Centre of Canada (section 20).", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-26", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 26–27", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Under the heading Forfeiture, section 23 of the Act provides that subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized. No act or proceeding after the forfeiture is necessary to effect the forfeiture (section 23 of the Act).\n\nThe Act then provides, under the heading Review and Appeal, that the forfeiture is final and is not subject to review except to the extent and in the manner provided for by sections 25 to 30 of the Act (section 24 of the Act).", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-27", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 28", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Act then provides that a person from whom currency or monetary instruments were seized, or the lawful owner, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place (section 25). If a decision of the Minister is requested under section 25, the President shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested (subsection 26(1)). The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish (subsection 26(2)). The Minister shall decide, within 90 days after the expiry of the period referred to in subsection 26(2), whether subsection 12(1) was contravened (subsection 27(1)). The Minister has more time if criminal charges are laid (subsection 27(2)). When the time allowed by the Act expires, the Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it (subsection 27(3)).", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-28", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 29–31", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "If the Minister decides that subsection 12(1) of the Act was contravened, the Minister shall (a) decide that the currency or monetary instruments be returned (paragraph 29(1)(a)); (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted (paragraph 29(1)(b)); or (c) confirm that the currency or monetary instruments are forfeited to Her Majesty in Right of Canada (paragraph 29(1)(c)). The Act does not require that the Minister give reasons for the decision, nor does it state the basis on which the Minister decides. No doubt, however, the Minister has before him the reasons recorded by the officer who exercised the powers provided for in subsection 18(1). The Minister also has the evidence offered by the person from whom currency or monetary instruments were seized under subsection 26(2).\n\nThe Minister's decision to confirm the forfeiture makes the forfeiture final, subject to judicial review as noted earlier.\n\nIn this case, the Minister's decision under section 27 and section 29 was as follows (A.B. vol. II, p. 273): [translation] Decision After examining all of the circumstances of the case, I conclude, under section 27 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, that the contravention was validly determined to have occurred and the seizure of the currency was justified. Under section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the currency seized is retained as forfeit. Reasons Because the currency was not properly reported to Customs, it was seized as forfeit. Forfeiture of the currency without conditions for return is in accordance with the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Forfeiture of Negotiable Instruments in this Case", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-29", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 32–35", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant argues that the trial judge found that the property seized did not constitute proceeds of crime.\n\nAt paragraph 59 of his reasons, Harrington J. added, in obiter: ¶ 59 That being said, in the event that I am wrong and the Minister's decision to confirm the forfeiture is also the subject of this appeal, I am of the opinion, based on the evidence at trial, that there are no reasonable grounds to suspect that the $102,642.33 or any part thereof are the proceeds of crime within the meaning of Section 462.3(1) of the Criminal Code. In reaching that opinion, it was not necessary to consider the burden of proof and the threshold which must be reached before it can be said that suspicions are supported by reasonable grounds.\n\nHaving regard to his ruling that any review of the Minister's decision to confirm the forfeiture had to be done by way of an application for judicial review, the trial judge did not need to consider the \"reasonable grounds to suspect that…\". That was not his role. Sections 7, 8 and 11(d) of the Charter\n\nBefore the trial judge, the appellant challenged the constitutional validity of sections 12, 15, 16, 18, 19 and 22 to 29 of the Act, and more specifically: (1) the duty imposed on an individual under section 12 of the Act to report money or currency that do not constitute proceeds of crime or are intended to be used to finance terrorist activities; (2) the right of an officer to seize as forfeit, on mere suspicion, currency that does not constitute proceeds of crime or that is not intended to be used to finance terrorist activities; and (3) the powers to order the seizure and forfeiture of currency solely because of a failure to report, based on mere suspicion, without further proof of its origin or illegal destination.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-30", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 36–38", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the appellant's submission, section 12 of the Act creates a presumption whereby unreported currency of a value greater than $10,000 constitutes proceeds or crime or is intended to be used to finance terrorist activities, so that the currency may then be seized and forfeited. That presumption is unconstitutional, ultra vires, null and void, in the appellant's submission, as contrary to sections 8 and 11(d) of the Charter. Its effect is a reverse onus of proof. As well, it is inconceivable that the right to declare forfeit should be based on a mere suspicion.\n\nBefore the trial judge, the appellant also invoked section 7 of the Charter, referring to R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. In that decision, the Supreme Court of Canada recognized the existence of a principle of fundamental justice whereby laws must not so lack in precision as not to give sufficient guidance for legal debate. In this Court, the appellant submits that the Act creates a presumption that is abusive, extreme and illogical by using the expressions \"proceeds of crime\" and \"terrorist financing\", which are [translation] “too vague and too general”.\n\nSection 8 of the Charter protects reasonable expectations of privacy: Hunter v. Southam, [1984] 2 S.C.R. 145. That provision is intended to protect individual privacy and is not a constitutional guarantee of property rights: Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708 at paragraph 52. See also R. v. Plant, [1993] 3 S.C.R. 281 at paragraph 16.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-31", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 39", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "In R. v. Simmons, [1988] 2 S.C.R. 495, the Supreme Court of Canada held that the search and seizure provisions in the Customs Act, which authorized the search of an individual if a customs officer had \"reasonable grounds for supposing\" that the person had prohibited goods secreted about his or her person, did not violate section 8 of the Charter. At paragraph 49 of its reasons, the Court explained: I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods. [Emphasis added.]", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-32", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 40–43", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court of Canada has further confirmed, in R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 37, that the reasoning in Simmons applies notwithstanding the amendments to the Customs Act that authorizes a search on the basis of reasonable grounds to suspect.\n\nThe provisions of the Act in question therefore do not violate section 8 of the Charter. The trial judge did not err in finding that \"[p]hysical searches of luggage and of the person are accepted aspects of that process where they are grounds for suspecting that a person has made a false declaration or is transporting prohibited goods\" and holding that the provisions in issue are not unreasonable.\n\nMoreover, the presumption of innocence guaranteed by section 11(d) of the Charter applies only to an accused, that is, an individual who is facing criminal, quasi-criminal or regulatory charges: see, for example, R. v. Wigglesworth, [1987] 2 S.C.R. 541 at page 554; Schmidt v. R., [1987] 1 S.C.R. 500.\n\nThe appellant is not an accused. He is not charged with any criminal, quasi-criminal or regulatory offence. The fact that his conduct may result in criminal prosecutions does not mean that the forfeiture procedure set out in the Act can be characterized as a penal proceeding. The appropriate test is the nature of the proceeding, and not the nature of the act: Martineau v. Canada (Minister of National Revenue), [2004] 3 S.C.R. 737, at paragraph 31. The seizure and forfeiture process established by the Act is a civil collection mechanism that is not intended to punish the individual: see Martineau at paragraphs 22-23; Wigglesworth at page 560.", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-33", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "paras 44–47", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 11(d) of the Charter therefore does not come into play. The trial judge did not err in describing the forfeiture provided for in the Act as civil proceedings against a thing, not proceedings against a person, and holding that this provision does not apply because no charge has been laid against Mr. Tourki.\n\nSection 7 is also not engaged. Even before addressing the issue of whether section 7 rights have been infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that there has been an infringement of the right to life, liberty and security of the person: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.\n\nThe duty to report imposed by the Act and the seizure and forfeiture mechanism it establishes do not engage the right to life, liberty and security of the person. The right to life, liberty and security of the person encompass a person's fundamental life choices, and not purely economic interests or property rights: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at paragraph 95; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 at paragraph 45.\n\nAt paragraph 56 of his reasons, the trial judge concluded that \"the law is crystal clear. If you do not declare, the Customs officer is entitled to forfeit that which should have been declared. It is as simple as that.\" It was not necessary to examine the appellant's argument based on the vagueness of the Act, because the appellant's situation does not engage section 7. Conclusion", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-35595-34", + "doc_type": "caselaw", + "act_code": "2007 FCA 186", + "act_short": "Tourki", + "act_name": "Tourki v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Tourki v. Canada (Public Safety and Emergency Preparedness), 2007 FCA 186", + "marginal_note": "para 48", + "heading": "PCMLTFA; the structure of the s. 30 appeal to the Federal Court against the forfeiture of seized currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "I would dismiss the appeal with costs. \"Alice Desjardins\" J.A. \"I agree. Marc Noël J.A.\" \"I agree. J.D. Denis Pelletier J.A.\" Certified true translation François Brunet, LLB, BCL DOCKET: A-71-06 (APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED JANUARY 19, 2006, FILE No. T-903-04). STYLE OF CAUSE: Skander Tourki v. The Minister of Public Safety and Emergency Preparedness PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: February 7, 2007 REASONS FOR JUDGMENT BY: Desjardins J.A. CONCURRED IN BY: Noël J.A. Pelletier J.A. DATED: May 11, 2007 APPEARANCES: Jérôme Choquette and Jean-Stéphane Kourie Montréal, Quebec FOR THE APPELLANT Jacques Mimar Montréal, Quebec FOR THE RESPONDENT SOLICITORS OF RECORD: Choquette Beaupré Rhéaume Montréal, Quebec FOR THE APPELLANT Justice Canada Montréal, Quebec FOR THE RESPONDENT", + "current_to": "2007-05-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35595/index.do" + }, + { + "id": "fca-304112-1", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 1–7", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Williams appeals from the order dated February 24, 2017 of the Federal Court (per McDonald J.): 2017 FC 234. The Federal Court dismissed a summary judgment motion brought by Mr. Williams in an action he has started.\n\nIn his action, Mr. Williams seeks the return of certain United States currency that a border services officer seized from him at a customs reporting station. Part of the currency has been declared forfeited.\n\nWhether Mr. Williams succeeds depends solely on a legal question: was the seizure and forfeiture of his currency authorized by law? Mr. Williams says no. The respondent Minister says yes. The Federal Court agreed with the Minister. Mr. Williams now appeals.\n\nFor the reasons that follow, I would allow the appeal and grant summary judgment in Mr. Williams’ favour.\n\nThe border services officer had no legal power under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the “Act”) to seize any of the currency. The respondent Minister has pointed to no other legal authority to justify the seizure. Thus, Mr. Williams is entitled to the return of all of his currency.\n\nMr. Williams’ motion for summary judgment was brought under Rule 215(2)(b) of the Federal Court Rules, SOR/98-106. In his notice of motion, Mr. Williams specifically sought the determination of a question of law concerning the authority of the border services officer and then judgment in the action in his favour on the basis that no genuine issue for trial remained.\n\nThe parties did not file any affidavits in the summary judgment motion. Thus, the only facts the Federal Court could have relied upon in determining Mr. Williams’ motion are those that the Minister pleaded to or admitted to in his statement of defence.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-2", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 8–12", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Given this, the thrust of Mr. Williams’ motion is clear: judgment must be granted in his favour because, on the facts the Minister pleaded or admitted, the border services officer had no legal authority to seize his currency.\n\nOn July 3, 2015, Mr. Williams travelled eastbound for Canada on the Blue Water Bridge. The bridge connects Port Huron, Michigan, United States and Sarnia, Ontario, Canada. At the Canada Border Services Agency reporting station, Mr. Williams told the border services officer that “he made a wrong turn and did not intend to enter Canada.” See statement of defence, paras. 5 and 6.\n\nThe border services officer then “proceeded with the standard line of questioning, including whether or not [Mr. Williams] was in possession of currency or monetary instruments equal to or greater than $10,000.00 CAD”: statement of defence, para. 6. Mr. Williams replied, falsely, that he was not.\n\nThe border services officer then referred Mr. Williams to secondary inspection. There, Mr. Williams was asked about a large bulge in the front pocket of his shorts. Mr. Williams replied that he was carrying approximately $6,000.00. When asked to produce the currency for inspection, Mr. Williams “admitted that he may, in fact, be in possession of upwards of $10,000.00 as he was holding $2,500.00 for one of his passengers.” See statement of defence, para. 7.\n\nIn fact, Mr. Williams was carrying $10,758.00 USD, then the equivalent of $13,518.50 CAD: statement of defence, para. 8. When asked why he had not reported the currency, Mr. Williams stated that “he was confused when initially questioned because he had not intended to come to Canada and that he had actually forgotten that he had it in his pocket”: statement of defence, para. 9.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-3", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 13–16", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Soon afterward, Mr. Williams’ currency “was seized as forfeit,” purportedly under the authority of section 18(1) of the Act: statement of defence, para. 10. As a result of a later administrative decision, the Minister decided that $2,020.00 USD should be returned to Mr. Williams because it was proven to be legitimate in origin: statement of defence, paras. 11-13. The rest, $8,738.00 USD, remained seized as forfeit.\n\nUpon receipt of the Minister’s decision, Mr. Williams brought an action in the Federal Court seeking the return of the $8,738.00 USD. This is how an aggrieved person can obtain review of the Minister’s decision: Act, section 30. Mr. Williams also seeks pre-judgment interest running from the date of seizure on the full amount originally seized from him, as none of it has been returned to him.\n\nThe Act creates a regime for the regulation of currency and monetary instruments imported or exported by cross-border travellers. Under the Act, any amount of currency and monetary instruments may be imported or exported.\n\nBut there is a reporting requirement in subsection 12(1) of the Act. Under this subsection, cross-border travellers must report “the importation or exportation of [domestic and foreign] currency or monetary instruments” equal or greater than a reporting threshold. The reporting threshold is $10,000.00 CAD: Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412, s. 2(1).", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-4", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "para 17", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, the objective of the Act is not to prevent cross-border flows of large amounts of currency and monetary instruments, but rather to keep track of the cross-border flows. This objective is meant to fulfil certain larger purposes, including, broadly speaking, the detection and prevention of money laundering, terrorist financing and organized crime. These are explicitly set out in section 3 of the Act: 3. The object of this Act is 3. La présente loi a pour objet : (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including a) de mettre en oeuvre des mesures visant à détecter et décourager le recyclage des produits de la criminalité et le financement des activités terroristes et à faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment : (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities, (i) imposer des obligations de tenue de documents et d’identification des clients aux fournisseurs de services financiers et autres personnes ou entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées pour le recyclage des produits de la criminalité ou pour le financement des activités terroristes, (ii) requiring the reporting of suspicious financial transactions and of", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-5", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "para 17", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "cross-border movements of currency and monetary instruments, and (ii) établir un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, (iii) establishing an agency that is responsible for ensuring compliance with Parts 1 and 1.1 and for dealing with reported and other information; (iii) constituer un organisme chargé du contrôle d’application des parties 1 et 1.1 et de l’examen de renseignements, notamment ceux portés à son attention au titre du sous-alinéa (ii); (b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; b) de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, tout en assurant la mise en place des garanties nécessaires à la protection de la vie privée des personnes à l’égard des renseignements personnels les concernant; (c) to assist in fulfilling Canada’s international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity; and c) d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational, particulièrement le recyclage des produits de la criminalité, et la lutte contre les activités terroristes; (d) to enhance Canada’s capacity to take targeted measures to protect its financial system and to facilitate Canada’s efforts to mitigate the risk", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-6", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 17–20", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "that its financial system could be used as a vehicle for money laundering and the financing of terrorist activities. d) de renforcer la capacité du Canada de prendre des mesures ciblées pour protéger son système financier et de faciliter les efforts qu’il déploie pour réduire le risque que ce système puisse servir de véhicule pour le recyclage des produits de la criminalité et le financement des activités terroristes.\n\nIn order to advance these larger purposes, reports under subsection 12(1) are sent to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC): subsection 12(5) of the Act. The Customs Act also allows information obtained through these reports to be shared widely in certain circumstances: see, e.g., paragraphs 107(4)(c) and 107(5)(k) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).\n\nIn support of this regime, the Act provides for the temporary retention of imported or exported currency and monetary instruments (section 14), the interception of mail (sections 17 and 21) and for searches of persons (section 15) and conveyances (section 16).\n\nThe Act also provides that where a border services officer has reasonable grounds to believe that a person has not reported under subsection 12(1) of the Act the importation or exportation of currency or monetary instruments exceeding the reporting threshold, the currency or monetary instruments may be “seize[d] as forfeit” (section 18). In this case, the parties are agreed that if in fact Mr. Williams was not under an obligation to report his currency under subsection 12(1) of the Act, the border services officer had no reasonable grounds to seize the currency.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-7", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 21–24", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Considering the basic facts of this case and this legislative regime as explained thus far, one might conclude that the seizure of currency from Mr. Williams was authorized by law. He carried currency in excess of $10,000.00 CAD across the border and did not report it. On its face, subsection 12(1) requires that a report be made in circumstances such as these. And, as mentioned, section 18 allows for the currency to be seized where a report is not made when it should have been made.\n\nBut that conclusion would be too hasty. For there is another section in the Act that Mr. Williams says relieves him from making a report under subsection 12(1). It is section 13.\n\nSection 13 allows a person who is required to report currency to “decide not to proceed further with importing or exporting” the currency “at any time” before the currency is retained under section 14 or forfeited under section 18. The parties agree that to trigger section 13 a person must not only make the decision not to proceed further with the importation or exportation but must state the decision to the border services officer.\n\nIf, as here, a person triggers section 13 immediately upon arrival in Canada—i.e., in effect states that he is not importing anything into Canada—does the person have to make a report under subsection 12(1) of the Act?", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-8", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 25–26", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The answer to this legal question determines the outcome of this case: If the answer is yes—i.e., even though Mr. Williams triggered section 13, he still had to make a report under subsection 12(1) of the Act—then Mr. Williams’ failure to comply with subsection 12(1) of the Act is sufficient legal authority for the forfeiture of the currency under section 18 of the Act. As mentioned, section 18 allows for the currency to be seized where an officer has reasonable grounds to believe that a report that should have been made under the Act is not made. Thus, the currency was properly seized. If the answer is no—i.e., Mr. Williams triggered section 13 and so he did not need to make a report under subsection 12(1) of the Act—then Mr. Williams did not offend subsection 12(1) of the Act. This changes everything: the prerequisite for section 18—which authorizes seizure only when there is a reasonable belief that a report is required and not made—is not present. Thus, there is no legal authority for the seizure of Mr. Williams’ currency under section 18 of the Act and so Mr. Williams should get his currency back.\n\nImmediately upon arriving in Canada, Mr. Williams announced he was accidentally in Canada and later, consistent with this, stated that did not intend to be in Canada. This is the expression of a decision not to enter Canada and, thus, not to import anything into Canada. Section 13 allows him to announce this “at any time” before the currency is retained or forfeited. Mr. Williams says that this includes the time before a report is made under subsection 12(1) of the Act. He emphasizes the words “at any time.”", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-9", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 27–31", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, according to Mr. Williams, the trigger for making a report under subsection 12(1)—the “importation or exportation” of currency over $10,000.00 CAD—was not present. According to Mr. Williams, he was not obligated to report that he was importing currency because he had already expressed his decision not to import the currency under section 13.\n\nThe Federal Court rejected Mr. Williams’ submissions. It adopted those of the Minister. In this Court, the Minister adopts the reasoning of the Federal Court.\n\nThe Federal Court held (at para. 14) that the obligation to report to the officer “the importation…of currency” over $10,000.00 CAD in subsection 12(1) of the Act “is the first step in the importation of currency”.\n\nIn the Federal Court’s view, the decision “not to proceed further with importing or exporting” the currency can only be taken after the report under subsection 12(1) of the Act has been made. Only after the report can a person “choose to ‘opt out’ of the importation pursuant to section 13” (at para. 16).\n\nAccording to the Federal Court, the fact that Mr. Williams did not intend to enter Canada “is irrelevant to his obligation to report and to answer truthfully the questions” asked by the border services officer under subsection 12(1) of the Act (at para. 18). In its view, interpreting section 13 in the manner suggested by Mr. Williams is inconsistent with the reporting obligations imposed by subsection 12(1) of the Act. In effect, the obligation to report under subsection 12(1) takes primacy over section 13.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-10", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 32–36", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Therefore, according to the Federal Court, the border services officer in this case—who had a belief on reasonable grounds that Mr. Williams did not make the required report under subsection 12(1)—had the power under section 18 of the Act “to seize as forfeit the currency.”\n\nIn reaching its decision, the Federal Court did not analyze the role of the words “at any time” in section 13. The effect of its decision is to interpret “at any time” to mean “any time after a report has been made under subsection 12(1) of the Act”; as a result, a decision not to import under section 13 does not displace the reporting requirement imposed by subsection 12(1) of the Act.\n\nThe Federal Court proceeded on the basis that Mr. Williams had triggered section 13. In my view, on this issue, the Federal Court did not commit any reversible error.\n\nMost cross-border travellers are not knowledgeable about the law. Section 13 does not require them to use a particular, exact series of words to trigger section 13. Thus, the substance, not the form, of what the traveller says must be examined.\n\nThe Minister’s statement of defence concedes that immediately upon arrival in Canada and before the border services officer asked Mr. Williams any questions, Mr. Williams told the border services officer that he arrived in Canada accidentally. Later, in secondary inspection, but before his currency was seized as forfeit under section 18, Mr. Williams stated that he did not intend to enter Canada, thereby confirming his earlier statement. His words can only as construed as meaning that he was going straight back to the United States.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-11", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 37–42", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Williams was carrying his currency on his person. One cannot import into Canada something on one’s person unless one enters Canada. In the circumstances of this case, Mr. Williams’ statement that he did not intend to enter Canada is in substance a statement that he did not intend to import anything on his person into Canada. If he was going straight back to the United States, he was not importing anything into Canada.\n\nViewed in these circumstances, Mr. Williams did the objective act required to trigger section 13, the communication of a decision not to import. I conclude that Mr. Williams triggered section 13.\n\nIn light of the foregoing, the Federal Court was entitled in these circumstances to proceed on the basis that Mr. Williams triggered section 13. So shall we.\n\nThus, the legal question posed earlier now must be answered: if, as here, a person triggers section 13 immediately upon arrival in Canada—i.e., in effect states that he is not importing anything into Canada—does the person have to make a report under subsection 12(1) of the Act? To answer this, we must interpret the relevant provisions of the Act.\n\nWe are to interpret the relevant provisions of the Act in accordance with their text, context and purpose: Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559.\n\nIn this analysis, “[w]hen the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-12", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 43–47", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, a court must consider the total context of the provision to be interpreted “no matter how plain the disposition may seem upon initial reading”: ATCO Gas and Pipelines Ltd v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at para. 48.\n\nAlso relevant to the process of legislative interpretation is that the seizure authorized under the Act operates in a way similar to absolute liability provisions found in a number of regulatory statutes. As I shall explain below, under this legislative regime the acts and omissions of travellers, not their intentions, are alone relevant. This Court has held that provisions such as these can operate in draconian ways and, thus, call for careful scrutiny: Doyon v. Canada, 2009 FCA 152, 312 D.L.R. (4th) 142; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175 at paras. 18-19, citing Canada v. Kabul Farms Inc., 2016 FCA 143 and Canada v. Guindon, 2013 FCA 153, 360 D.L.R. (4th) 515 at paras. 54-55.\n\nI wish to offer some additional guidance concerning legislative interpretation. For clarity, none of this guidance should be construed as a comment on how the Federal Court interpreted the Act.\n\nLegislative interpretation can be tricky. One must be on guard not to introduce extraneous considerations into the proper, objective analysis of the text, context and purpose of legislation.\n\nPersonal evaluations of the moral conduct of the parties, good or bad, should play no role in the analysis. In the case before us, we have a cross-border traveller who falsely declared to a border services officer how much currency he was carrying. In cases like this, some might let their reaction to the facts skew their interpretation of the legislation. That would be wrong.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-13", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 48–49", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Also wrong would be to permit personal policies or political preferences to play a part in our interpretation of the legislation: for example, to aim for a result we personally prefer, to fasten onto what we like and ignore what we don’t, or to draw upon what we think is best for Canadian society. Common to these practices is an analytical focus on what we want the legislation to mean rather than on what the legislation authentically means.\n\nIn our legal system, the starting point is that only elected legislators—not unelected judges—have the “exclusive” power to express their personal policies or political preferences in binding legislation: see the opening words of ss. 91 and 92 of the Constitution Act, 1867. These words enshrine a principle won four centuries ago at the cost of much bloodshed: for a recent restatement and discussion of the principle, see R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, [2017] 2 W.L.R. 583 at paras. 40-46. The only exception is where legislation expressly delegates the power to legislate: see Hodge v. The Queen (1883), 9 App. Cas. 117, 9 C.R.A.C. 13 (J.C.P.C.) (regulations made by delegatees) and In Re Gray (1918), 57 S.C.R. 150, 42 D.L.R. 1 (orders akin to legislation made by delegatees). But even then the delegation often must meet strict requirements of a constitutional nature: see, e.g., Eurig Estate (Re), [1998] 2 S.C.R. 565, 165 D.L.R. (4th) 1, Ontario Home Builders’ Association v. York Region Board of Education, [1996] 2 S.C.R. 929, 137 D.L.R. (4th) 449 and Ontario Public School Boards’ Assn. v. Ontario (Attorney General) (1997), 151 D.L.R. (4th) 346 at pp. 362-365, 45 C.R.R. (2d) 341 at pp. 356-359 (Ont. Gen. Div.) (discussion of Henry VIII clauses).", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-14", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 50–52", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Absent a successful argument that legislation is inconsistent with the Constitution, judges—like everyone else—are bound by the legislation. They must take it as it is. They must not insert into it the meaning they want. They must discern and apply its authentic meaning, nothing else.\n\nHow do we go about this? As the authorities suggest, we are to investigate the text, context and purpose of the legislation as objectively and fairly as we can. On this, especially when investigating the purpose, we have assistance: the Interpretation Act, R.S.C. 1985, c. I-2, canons of statutory construction known to both legislative drafters and courts, and other legitimate aids to interpretation such as—in certain circumstances and with appropriate caution—extraneous, contemporaneous materials (e.g., regulatory impact or official explanatory statements), legislative debates, and legislative history.\n\nA frequently used tool in the interpretive process is to assess the likely effects or results of rival interpretations to see which accords most harmoniously with text, context and purpose. This is appropriate. The judge is assessing effects or results not to identify an outcome that accords with personal policies or political preferences. Rather the judge is assessing them against the standard, accepted markers of text, context and purpose in order to discern the authentic meaning of the legislation. For example, if the effect of one interpretation offends the legislative purpose but the effect of another interpretation does not, the latter may be preferable to the former.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-15", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 53–55", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "With these thoughts front of mind, I turn first to the purposes of the Act. While the Act’s primary objectives, as set out in section 3, are to detect and prevent money laundering, terrorist financing and organized crime, both parties agree that section 13 is aimed at a different objective, namely to “[ensure] that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves”: subsection 3(b) of the Act. Section 13, as interpreted by Mr. Williams, is consistent with this purpose. A person who has expressed his or her intention not to import currency into Canada need not make a report under subsection 12(1). The information that would have otherwise been disclosed in a report and shared with other agencies remains private.\n\nOn the Minister’s view of the matter, it is difficult to see what role section 13 plays.\n\nParliament did not legislate section 13 into existence for no reason. An accepted canon of construction is that legislators do not legislate in vain. So what is behind section 13? What does expression of the decision not to import under section 13 give to a cross-border traveller?", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-16", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "para 56", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 13 can only mean that once a person expresses a decision not to import, that person need not report under the Act. This advances the purpose of protecting “the privacy of persons with respect to personal information about themselves” (subsection 3(b) of the Act). Once a person makes a currency report under subsection 12(1) of the Act, the person’s privacy interests evaporate. All reports “shall” be sent to the FINTRAC who can then, in certain circumstances and for certain purposes, share that information with local police forces, the Canada Revenue Agency, provincial securities regulators, the Canada Border Services Agency, the Communications Security Establishment, Canadian Security and Intelligence Services, and even foreign governments—and the Customs Act also allows information obtained through a currency report to be shared widely across government institutions in certain circumstances, including FINTRAC: see, e.g., sections 12(5), 55(3), 55.1, 56 and 56.1 of the Act and paragraphs 107(4)(c) and 107(5)(k) of the Customs Act.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-17", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 57–59", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "In response to questioning by the Court, the Minister was unable to identify a plausible role for section 13. In all of the Minister’s proposed interpretations of section 13, the cross-border traveller must make a truthful report before section 13 could be invoked. But once a report is made, the horse has long left the barn. If section 13 does not eliminate the requirement to report and prevent all these privacy-diminishing consequences, it has no practical use. Allowing a person under section 13 not to give a report averts these consequences and furthers an important purpose under subsection 3(b) of the Act—“ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves.”\n\nNow to a consideration of context. The Act sits alongside the Customs Act. The Act does not displace or modify any of the provisions of the Customs Act. The Customs Act contains provisions that require individuals presenting themselves to a border services officer at a border station to answer questions, provide truthful information and cooperate fully with authorized searches: e.g., sections 11(1), 98, 99, 153.1. The purposes for making full and candid disclosure at a border under the Customs Act include those under the Act and extend to others.\n\nThese and other obligations under the Customs Act apply regardless of whether section 13 of the Act applies. Specifically, a statement by a person that she is turning around and going back immediately to the United States and not importing anything into Canada does not relieve that person from answering all questions honestly and cooperating fully under the Customs Act.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-18", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 60–63", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Customs Act sets out sanctions for contraventions of a number of its provisions, sanctions that are separate and apart from those set out under the Act: Part VI of the Customs Act.\n\nWhen the Act and the Customs Act are reviewed, one can see that violations of the Customs Act do not constitute a ground for forfeiture of currency under section 18 of the Act. Of course, contraventions of the Customs Act can result in serious sanctions. But those sanctions are under the Customs Act. And those sanctions under the Customs Act do not include seizure under section 18 of the Act.\n\nIn interpreting the Act, some mindful of the anti-money-laundering and anti-terrorism purposes of the Act might be reluctant to hold that section 13 relieves people from disclosing necessary information. But that would be taking an unduly narrow view of the statutory landscape. People are not relieved from disclosing necessary information. Obligations under the Customs Act remain. Failure to abide by them can result in serious sanctions.\n\nThe practical effect is that even if Mr. Williams’ invocation of section 13 of the Act is effective to relieve him of making a report under subsection 12(1) of the Act, the broad obligations imposed on him by the Customs Act remain. If the border services officer asks questions about currency, those obligations include answering those questions honestly.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-19", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "para 64", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "This interpretation is consistent with another provision in the Act, subsection 14(3). This provides that currency or monetary instruments retained but not yet seized by a border services officer must be given back to the person if “the officer is satisfied that the currency or monetary instruments have been reported under subsection 12(1) [of the Act]” or if “the importer or exporter…advises the officer that they have decided not to proceed further with importing or exporting them.” The “or” is disjunctive. Thus, even if a report has not been made under subsection 12(1) of the Act, subsection 14(3) requires border services officers to return any retained currency or monetary instruments once the traveller advises the border services officer that the currency or monetary instruments are not being imported—in other words, using the circumstances of Mr. Williams, the person is turning around and going back to the United States. Subsection 14(3) represents a slight extension of section 13, which allows a person to express a decision not to import currency or monetary instruments only until the currency or monetary instruments are retained. Nevertheless subsection 14(3) confirms the interpretation that a failure to report is not cause for the forfeiture of currency or monetary instruments as long as a proper and timely decision not to import or export is expressed.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-20", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 65–67", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Looking now at the text of section 13, the words “at any time” before the currency is retained under section 14 or forfeited under section 18 are, in the words of Canada Trustco, “precise and unequivocal.” There is no reason consistent with the purpose of the Act to read them down, especially in light of the broad disclosure obligations under the Customs Act. In fact, even if section 13 did not contain the words “at any time”, it may have been necessary to read those words into section 13 to give meaning to it: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 211-214.\n\nAgain, looking at the text, the obligation under subsection 12(1) is to report “the importation…of currency” over $10,000.00 CAD. Mr. Williams, having declared he was not intending to enter Canada, was not importing anything. As he was not importing anything, he had no report of importation to make under subsection 12(1).\n\nThe Minister submits that Mr. Williams’ subjective intention not to import the currency is irrelevant: Azouz v. Canada (Public Safety and Emergency Preparedness), 2009 FC 1222; Zeid v. Canada (Public Safety and Emergency Preparedness), 2008 FC 539; Hoang v. Canada (Minister of National Revenue), 2006 FC 182. I agree only insofar as the Minister suggests that a decision not to import must be expressed to the border services officer and that it is no defence for a traveller to argue that he or she did not intend to contravene the reporting requirement or had no knowledge they were in contravention. The cases cited stand only for these two propositions and neither justifies the seizure of Mr. Williams’ currency.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-21", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 68–69", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 13 as I have interpreted it does not rely on a subjective intention not to import. To trigger section 13, as the parties agree, a person must express the decision. In substance, Mr. Williams expressed to the border services officer his decision not to import. By doing that act, he triggered section 13.\n\nIn this Court, Mr. Williams is not making any submissions about his intention. Rather he is submitting that because of his act of expressing his decision not to import, he cannot be taken in law to be importing currency. Arriving in Canada by accident, in substance he expressed his decision to turn around and go back to the United States right away. Thus, under subsection 12(1), he had no obligation to report “the importation or exportation of currency.” And thus, there was no basis for the seizure of his currency under section 18.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-22", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "para 70", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister also points to subsection 12(4) of the Act which requires travellers to “answer truthfully any questions asked by the officer in the performance of the officer’s duties and functions” under Part 2 of the Act and adds that Mr. Williams did fail to answer truthfully the officer’s question about how much currency he was carrying, a question that falls under Part 2 of the Act. But this is of no moment. The forfeiture of the currency under section 18 is available only on the basis of reasonable grounds to believe subsection 12(1) is infringed, not subsection 12(4). The text of section 13 does not make it contingent on the cross-border traveller making a report or making an accurate report; again, it says it can be invoked “at any time” before the currency is retained under section 14 or forfeited under section 18. And, as previously mentioned, recourses may exist under the Act and the Customs Act for Mr. Williams’ failure to answer questions truthfully, such as the obligation under subsection 12(4) of the Act: see, e.g., subsection 74(1) of the Act and sections 11(1), 153, 153.1, 160, 160.1 and 161 of the Customs Act. But none of those recourses permit the forfeiture of the unreported currency under section 18 of the Act.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-23", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "paras 71–75", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "To reiterate, this interpretation of section 13 does not turn it into something like a “get out of jail free” card for money launderers, terrorist financiers and other transnational criminals. The Act and section 13 occupy a small corner in the broader universe of obligations created by the Customs Act and the powerful investigatory and enforcement mechanisms that accompany it. Backed by the threat of significant financial and custodial consequences, border services officers wield wide-ranging powers under the Customs Act to question travellers without cause, search travellers and their possessions, seize those possessions, compel truthful responses, arrest travellers committing offences under the Criminal Code, R.S.C., 1985, c. C-46, and share information widely to protect the interests of Canadians and their institutions of government: see e.g., sections 11(1), 98, 99, 107, 110, 153, 153.1, 160, 160.1, 161, 163.5 of the Customs Act. These powers and penalties loom large over every cross-border traveller, including Mr. Williams.\n\nSection 13 performs a very limited function at the border: it protects a privacy interest—the amount of currency or monetary instruments in one’s possession—for individuals who are not importing currency or monetary instruments. It does not immunize travellers engaging in unlawful activities.\n\nFor the foregoing reasons, the seizure and forfeiture of Mr. Williams’ currency was not authorized by law.\n\nIt is not necessary to consider Mr. Williams’ alternative submissions under the Canadian Bill of Rights or the Charter.\n\nNothing in these reasons affects any recourse under the Customs Act that may exist against Mr. Williams on the facts of this case.", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fca-304112-24", + "doc_type": "caselaw", + "act_code": "2017 FCA 252", + "act_short": "Williams", + "act_name": "Williams v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Williams v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 252", + "marginal_note": "para 76", + "heading": "PCMLTFA; the s. 13 exception -- electing not to proceed with the importation or exportation relieves the duty to report currency", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the foregoing reasons, I would allow the appeal, set aside the order of the Federal Court, grant Mr. Williams’ motion for summary judgment with costs of the action and costs here and below on the motion. Pre-judgment interest should run from the date of seizure until the return of the currency and should be calculated on the basis that the cause of action arose in Ontario in accordance with subsection 36(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. \"David Stratas\" J.A. “I agree. M. Nadon J.A.” “I agree. Wyman W. Webb J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2017-12-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/304112/index.do" + }, + { + "id": "fc-37898-1", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 1–4", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The question to be answered in this case is whether the Federal Court has jurisdiction under section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act) to review a ministerial decision made under section 29 of the Act. I have concluded that the answer is no because the Act does not vest the Federal Court with appellate jurisdiction to review a section 29 ministerial decision.\n\nThe defendant, by notice of motion under Rule 220 of the Federal Courts Rules, 1998, SOR/98-106, and on consent of the plaintiff, sought an order directing the determination of a question of law. Madam Justice Tremblay-Lamer, by Order dated March 24, 2005, granted the request. FACTS\n\nThe parties submitted an Agreed Statement of Facts. A copy of that document is attached to these reasons as Schedule \"A\". For context, a recitation of the pertinent facts is set out here.\n\nThe plaintiff, Mr. Dokaj, is a Canadian citizen. On October 16, 2003, he was scheduled to travel from Dorval Airport (as it then was) in Montreal to Athens, Greece en route to Albania. At the time, he was in possession of approximately $25,950 in U.S. currency and $400 in Canadian funds. When asked by customs officials if he had in his possession more than $10,000 he answered that he did not. Customs officials, upon searching Mr. Dokaj, discovered the aforementioned currency in his wallet, coat pocket, and luggage. A customs officer seized the money and provided him with a \"Customs Seizure Receipt\".", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-2", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 5–6", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Mr. Dokaj requested that the Minister review the seizure of the monies. The ministerial delegate, in correspondence dated March 16, 2004, rendered the following decision: After considering all of the circumstances, I have decided, under section 27 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, that there has been a contravention in respect of the currency which was seized. Under section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the seized currency is held as forfeit. The ministerial delegate enclosed, in the correspondence, a copy of sections 26, 27 and 30 of the Act and commented \"[y]ou may find this information helpful should you wish to appeal this decision\".\n\nMr. Dokaj initiated an appeal by way of action by issuing a statement of claim, pursuant to section 30 of the Act, and requested monetary relief equal to the value of the seized currency less a penalty of $2,500. Mr. Dokaj admits, in the statement of claim, that he failed to declare the currency to the customs officials. He alleges that the ministerial delegate erred in law because she: (a) \"failed to investigate the source of the currency as documented by the solicitor acting for the plaintiff\"; and (b) \"failed to consider alternatives to forfeiture without terms of release pursuant to subsection 18(2) of the [Act]\".", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-3", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 7–8", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The defendant Minister moved to strike the statement of claim on the basis that the Court's jurisdiction, under section 30 of the Act, is limited to reviewing the section 27 decision and it is without jurisdiction to entertain an appeal of a section 29 decision. A prothonotary concluded that the answer to the question was not plain and obvious and accordingly dismissed the motion. The prothonotary suggested that the proper procedure for adjudication would be a motion to determine a question of law. Hence, the Minister moved under Rule 220 and the Order of Madam Justice Tremblay-Lamer issued. ISSUE\n\nThe sole issue is the determination of the question: \"Does the Federal Court have jurisdiction pursuant to section 30 of the [Act] to review a ministerial decision issued pursuant to section 29 of the Act?\" THE RELEVANT STATUTORY PROVISIONS", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-4", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 9", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The relevant statutory provisions are attached to these reasons as Schedule \"B\". For ease of reference, sections 25 to 30 of the Act are reproduced here. Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 26. (1) If a decision of the Minister is requested under section 25, the Commissioner shall without delay serve on the person who requested it written notice of the circumstances of the seizure in respect of which the decision is requested. (2) The person on whom a notice is served under subsection (1) may, within 30 days after the notice is served, furnish any evidence in the matter that they desire to furnish. 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the conclusion of all court proceedings in respect of those charges. (3) The Minister shall, without delay after making a decision, serve on the person who requested it a written notice of the decision together with the reasons for it. 28.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-5", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 9", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "If the Minister decides that subsection 12(1) was not contravened, the Minister of Public Works and Government Services shall, on being informed of the Minister's decision, return the penalty that was paid, or the currency or monetary instruments or an amount of money equal to their value at the time of the seizure, as the case may be. 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister shall, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada. The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. (2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-6", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 9", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "(2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (3) The Minister of Public Works and Government Services shall give effect to the decision of the Court on being informed of it. (4) If the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, the total amount that can be paid under subsection (3) shall not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes, L.C. 2000, ch. 17 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. 26. (1) Le commissaire signifie sans délai par écrit à la personne qui a présenté la demande visée à l'article 25 un avis exposant les circonstances de la saisie à l'origine de la demande. (2) Le demandeur dispose de trente jours à compter de la signification de l'avis pour produire tous moyens de preuve à l'appui de ses prétentions. 27. (1) Dans les quatre-vingt-dix jours qui suivent l'expiration du délai mentionné au paragraphe 26(2), le ministre décide s'il y a eu contravention au paragraphe 12(1).", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-7", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 9", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "(2) Dans le cas où des poursuites pour infraction de recyclage des produits de la criminalité ou pour infraction de financement des activités terroristes ont été intentées relativement aux espèces ou effets saisis, le ministre peut reporter la décision, mais celle-ci doit être prise dans les trente jours suivant l'issue des poursuites. (3) Le ministre signifie sans délai par écrit à la personne qui a fait la demande un avis de la décision, motifs à l'appui. 28. Si le ministre décide qu'il n'y a pas eu de contravention au paragraphe 12(1), le ministre des Travaux publics et des Services gouvernementaux, dès qu'il est informé de la décision du ministre, restitue la valeur de la pénalité réglementaire, les espèces ou effets ou la valeur de ceux-ci au moment de la saisie, selon le cas. 29. (1) S'il décide qu'il y a eu contravention au paragraphe 12(1), le ministre, aux conditions qu'il fixe : a) soit décide de restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit décide de restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirme la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu'il en est informé, prend les mesures nécessaires à l'application des alinéas a) ou b).", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-8", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 9–10", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "(2) En cas de vente ou autre forme d'aliénation des espèces ou effets en vertu de la Loi sur l'administration des biens saisis, le montant de la somme versée en vertu de l'alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l'aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l'aliénation, aucun paiement n'est effectué. 30. (1) La personne qui a présenté une demande en vertu de l'article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d'action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s'appliquent aux actions intentées en vertu du paragraphe (1), avec les adaptations nécessaires occasionnées par les règles propres à ces actions. (3) Le ministre des Travaux publics et des Services gouvernementaux, dès qu'il en a été informé, prend les mesures nécessaires pour donner effet à la décision de la Cour. (4) En cas de vente ou autre forme d'aliénation des espèces ou effets en vertu de la Loi sur l'administration des biens saisis, le montant de la somme qui peut être versée en vertu du paragraphe (3) ne peut être supérieur au produit éventuel de la vente ou de l'aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l'aliénation, aucun paiement n'est effectué. THE POSITIONS OF THE PARTIES\n\nThe Minister takes the position that the Federal Court's jurisdiction under section 30 is limited to considering the section 27 decision. Consequently, the Court is without jurisdiction to deal with an appeal of the section 29 decision.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-9", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 11–13", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Mr. Dokaj contends that the Federal Court's appellate jurisdiction under subsection 30(1) must necessarily include jurisdiction to hear an appeal from a decision made under section 29 of the Act. THE ARGUMENTS\n\nThe Minister's argument is two-pronged. First, based on a contextual approach to statutory interpretation, the right of appeal to the Federal Court contained in section 30 of the Act cannot reasonably be extended to include the Minister's decision as to sanction for a violation of subsection 12(1) of the Act. Section 30 provides that a person who requests a decision of the Minister under section 25 may appeal the Minister's decision. Section 25, in turn, refers to requesting a review for \"a decision of the Minister as to whether subsection 12(1) was contravened\". The appeal provided for in section 30 therefore relates solely to subsection 12(1). That subsection creates the obligation to report the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount.\n\nPut another way, an individual who contravenes subsection 12(1) may, under section 25, request a ministerial review. However, the provision for review (as specifically stipulated in section 25) relates to subsection 12(1). The Minister must render a decision as to whether subsection 12(1) was contravened. An appeal lies to the Federal Court with respect to the Minister's decision by virtue of section 30, but that section specifically stipulates that the appeal is with respect to a section 25 review. Approached from either direction, the result is the same. The appeal provided for in section 30 is concerned with a \"contravention\" of subsection 12(1).", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-10", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 14–15", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The Minister bolsters this argument by reference to the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). It was Parliament's intention, according to the Minister, to institute an appeal mechanism harmonized with the Customs Act, an analogous statute with strikingly similar review mechanisms. Moreover, the administration and enforcement of the Act was entrusted to the same customs officials charged with the administration and enforcement of the Customs Act.\n\nFor example, both statutes allow an individual, from whom goods are seized by a customs official for contravention of the statute in question, to request a ministerial decision as to whether a contravention occurred. Additionally, when the Minister decides that either of the respective statutes has been contravened, a determination is made as to whether the sanction imposed by the customs official is appropriate. The Minister asserts that under the Customs Act, the second decision cannot be challenged by means of a statutory appeal to the Federal Court pursuant to section 135 of the Customs Act or otherwise.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-11", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 16–17", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The Minister points to several instances where the Federal Court has concluded that its jurisdiction on a section 135 Customs Act statutory appeal is limited to determining whether or not there has been a contravention of the Customs Act that would justify the seizure. The Court is precluded from dealing with any other issues on such statutory appeals including reviews of decisions rendered by the Minister in relation to sanctions. Rather, the recourse available to a person who disagrees with the penalty imposed for contravening the Customs Act is an application for judicial review under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7. The Minister urges the Court to interpret the Act as it has interpreted the Customs Act and confirm that a statutory appeal under section 30 of the Act is limited to a consideration of the Minister's section 27 decision that the Act was contravened for failure to report the seized currency. It is not permissible to add words where there is an acceptable interpretation without reading in words.\n\nMr. Dokaj claims that while the Minister's submissions regarding similarity between the two statutes are attractive, they are superficial and constitute an elevation of form over substance. The frailties include: a lack of regard to the effect of such decisions for citizens; resort to analogies that invite a review of the similarities between the statutes without consideration of the differences; and a failure to appreciate that the intention of Parliament is presumed to be based on reason and logic. Section 30 of the Act should be interpreted as being applicable to both section 27 and section 29 because both constitute the same decision.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-12", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 18–19", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "In Mr. Dokaj's view, once the Minister has determined that there has been a contravention of subsection 12(1), the Minister must, of necessity, proceed to section 29 to determine what sanction is to be imposed (the presumption being the return of the currency less any penalty unless there is a finding that the funds are proceeds of crime or of terrorist activity).\n\nConstruction in a strict grammatical sense, says Mr. Dokaj, is based on the presumption that the statute was drafted properly to achieve parliamentary purpose. While the legislative text is the source from which parliamentary intent is most likely inferred, the Court must look not to the text, but to the meaning of the statute. It is open to the Court to import words so long as it does not add to what is already implied by the statute. Parliament could not reasonably have intended two different mechanisms of review flowing from the same decision under subsection 12(1). If two reasonable interpretations can be found, the Court should adopt that which is more logical.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-13", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 20–21", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Mr. Dokaj argues that where an obvious conflict exists between the letter and the spirit of the law, the court should undertake to interpret logically to give effect to legislative intent and override those written expressions incompatible with the purpose of the law. Moreover, section 24, the review provision of the Act, precludes review except as provided in sections 25 to 29. This, he says, is indicative of Parliament's intent to include both sections 27 and 29 under the statutory right of appeal in section 30. Since a section 29 decision, of necessity, flows from section 27, the two cannot be separated because the second decision is mandated by the making of the first decision. The two are inextricably intertwined and the appeal process must encompass all logical and correlative decision-making that follows from it.\n\nRegarding the Minister's position that the Act should be interpreted in the same manner as the Customs Act, Mr. Dokaj submits that to do so would be improper. The two statutes are similar in structure, but not in purpose. For instance, under the Customs Act, goods seized are automatically forfeited making it logical to preclude a review of penalty. In contrast, the Act does not entail automatic forfeiture; it requires return of the funds unless there are reasonable grounds for believing that the funds flow from terrorist activities or are proceeds of crime. Section 23 of the Act must be read in conjunction with subsection 18(2). The penultimate distinction between the Customs Act and the Act, according to Mr. Dokaj, is that under the former a penalty is purely discretionary whereas the latter dictates mandatory return unless subsection 18(2) is put into play.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-14", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 22–26", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Mr. Dokaj contends that the Minister's interpretation results in a cumbersome and complex review mechanism whereby a person, from whom funds have been seized (who wishes to have the decision reviewed), must engage in two different proceedings on substantially the same facts. ANALYSIS\n\nIn Bell Expressvu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, Mr. Justice Iacobucci, at paragraphs 26 to 29, discussed the principles of statutory interpretation. Those paragraphs (citations omitted) state:\n\nIn Elmer Dridger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: ...I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment \"is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects\".", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-15", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 27–28", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article \"Statute Interpretation in a Nutshell\" (1938), 16 Can. Bar Rev. 1, at p. 6, \"words, like [page581] people, take their colour from their surroundings\". This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as \"the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter\"...\n\nOther principles of interpretation -- such as the strict construction of penal statutes and the \"Charter values\" presumption -- only receive application where there is ambiguity as to the meaning of a provision...", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-16", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 29", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "What, then, in law is an ambiguity? To answer, an ambiguity must be \"real\" ... The words of the provision must be \"reasonably capable of more than one meaning\"... By necessity, however, one must consider the \"entire context\" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General),[1999] 1 S.C.R. 743, at para. 14, is apposite: \"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\" (emphasis added), to which I would add, \"including other principles of interpretation\". [24] Guided by these principles, I turn to the Act which is the result of an initiative that is not unique to Canada. The Financial Action Task Force (FATF), of which Canada is a member, is comprised of approximately 40 nations (all of them industrialized). FATF is committed to addressing, among other things, the sharing of information in relation to transnational crime. The Act received Royal Assent on June 29, 2000, and many of its provisions have been introduced piecemeal. [25] The objectives of the Act are set out in section 3 therein and include the following: (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including ... (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-17", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 29", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "(b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; and (c) to assist in fulfilling Canada's international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity. [26] Of particular concern, here, is the objective stipulated in sub-paragraph 3(a)(ii). Implementation of this objective was to have been achieved through Part 2 of the Act which provides for a currency reporting regime whereby importers and exporters of currency must make a report to a customs official whenever they import or export large quantities of currency or monetary instruments into or out of Canada. Part 2 of the Act became effective with the coming into force of the Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412 (the Cross-border Regulations) on January 6, 2003. The relevant reporting requirements in this case (involving the exportation of currency) stem from subsection 12(1) and paragraph 12(3)(a) of the Act in conjunction with sections 2, 3, and 11 of the Cross-border Regulations. These provisions require every person who exports, from Canada, currency or monetary instruments worth $10,000 or more to report this exportation to a customs official.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-18", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 29", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "[27] When reports are made with respect to cross-border movements of currency or monetary instruments in excess of $10,000, the reports are forwarded to the Financial Transaction Reports Analysis Centre of Canada (FINTRAC) which apparently possesses expertise in tracking and analysing international currency and monetary instruments transfers. If patterns appear, FINTRAC may become suspicious that the funds constitute \"dirty\" money in which case information may be passed on to a law enforcement agency. [28] Notably, the Act does not prohibit the transporting of large amounts of currency. Rather, it requires that amounts exceeding $10,000 be reported. The obligation to report arises in all cases, i.e. whether the money is \"dirty\" or otherwise. [29] The scheme in relation to the transporting of more than $10,000 of currency or monetary instruments is contained in sections 12 through 39 of the Act and in the Cross-border Regulations. In circumstances where a person exports from Canada currency worth more than $10,000 and fails to report the exportation, subsection 18(1) of the Act provides that the currency is subject to seizure as forfeit, by a customs officer, if the customs officer believes on reasonable grounds that subsection 12(1) of the Act has been contravened. By virtue of subsection 18(2) of the Act, the customs officer must return the seized currency or monetary instruments less the prescribed penalty (which ranges from $250 to $5,000 under section 18 of the Cross-border Regulations) unless the officer has reasonable grounds to suspect that the currency is proceeds of crime or funds for terrorist financing.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-19", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 30–32", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Section 23 of the Act stipulates that (subject to return under subsection 18(2) and the review provisions of sections 25 to 31) currency seized as forfeit under subsection 18(1) is automatically forfeited to Her Majesty in Right of Canada from the time of the contravention in respect of which it was seized and no act or proceeding after the forfeiture is necessary to effect the forfeiture.\n\nSection 25 of the Act permits either the person from whom the currency was seized or the lawful owner of the currency to request a decision of the Minister[1] as to whether subsection 12(1) of the Act was contravened, provided such a request is made in writing within 90 days after the date of the seizure. If such a request is made, the Commissioner[2] is obliged to serve that person with written notice of the circumstances of the seizure, pursuant to subsection 26(1) of the Act. The person is then entitled, under subsection 26(2), to provide any evidence in the matter that he or she wishes to submit provided that the evidence is tendered within 30 days of receiving the Commissioner's written notice.\n\nThe Minister is required, under section 27 of the Act, to make a decision with respect to whether subsection 12(1) of the Act was contravened. If the Minister decides that there was no failure to report, the currency or the assessed penalty must be returned to the person, pursuant to section 28 of the Act. If, on the other hand, the Minister decides that there was a failure to report, the Minister will, under section 29 of the Act, determine the appropriate sanction for the infraction, including whether to confirm the forfeiture (where the customs officer has determined that the currency or monetary instruments constitute proceeds of crime or terrorist financing).", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-20", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 33–35", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Section 30 of the Act permits the person who requested a decision of the Minister to appeal that decision by way of an action in the Federal Court. The narrow issue is which decision is appealable, the section 27 decision, the section 29 decision, or both.\n\nWith respect, I do not share Mr. Dokaj's view that a decision under section 27 and a decision under section 29 constitute the \"same decision\". A reading of the provisions simply does not support such an interpretation. Section 27 requires nothing more and nothing less than for the Minister to decide whether subsection 12(1) was contravened. The fact that an affirmative response precipitates a review of the penalty which, in turn, results in another determination does not convert the two decisions into a single determination.\n\nThe decisions of the Minister pursuant to sections 27 and 29 are discrete decisions. One deals with contravention; the other deals with penalty and forfeit. Section 27 stipulates that the Minister shall decide whether subsection 12(1), i.e. the requirement to report, was contravened. The wording is unequivocal and leaves no room for doubt. Section 29 provides that, in circumstances where the Minister determines that there was a failure to report, the Minister is to review the quantum of the sanction imposed by the customs official under subsection 18(2), i.e. full forfeiture or a penalty ranging from $250 to $5,000. The Minister will either confirm the customs official's determination with respect to sanction or reduce it to some lesser penalty.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-21", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 36", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "What then of the appeal procedure provided for in section 30 of the Act? I share the Minister's view that the section provides for a statutory appeal in relation to the determination made under section 27. It does not permit an appeal of a decision made under section 29. For ease of reference, subsection 30(1), section 25 and subsection 27(1) are again reproduced. The emphasis is mine. 30. (1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant. 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 27. (1) Within 90 days after the expiry of the period referred to in subsection 26(2), the Minister shall decide whether subsection 12(1) was contravened. 30. (1) La personne qui a présenté une demande en vertu de l'article 25 peut, dans les quatre-vingt-dix jours suivant la communication de la décision, en appeler par voie d'action devant la Cour fédérale à titre de demandeur, le ministre étant le défendeur. 25.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-22", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 36–37", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. 27. (1) Dans les quatre-vingt-dix jours qui suivent l'expiration du délai mentionné au paragraphe 26(2), le ministre décide s'il y a eu contravention au paragraphe 12(1).\n\nThere is no ambiguity in the language. The Act authorizes an appeal in relation to a decision of the Minister under section 25. Section 25 relates only to a decision as to whether subsection 12(1) was contravened (the provision that imposes the obligation to report). It necessarily follows that the references to \"a decision\" and \"the decision\" in subsection 30(1) refer to the Minister's determination under section 27 of the Act. In my view, it cannot reasonably be construed in any other way. Consequently, the Federal Court's jurisdiction, pursuant to section 30 of the Act, is limited to reviewing the decision under section 27 of the Act. That decision is with respect to whether or not there was a contravention of the Act under subsection 12(1).", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-23", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 38–39", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "While other ministerial decisions taken in the context of a seizure under the Act, such as a decision under section 29, may be the subject of judicial review applications initiated under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, they cannot be the subject of a statutory appeal brought pursuant to section 30 of the Act. Section 24 of the Act constitutes a strong privative clause that insulates, but does not immunize, decisions (other than those under section 27) from judicial review. Indeed the Minister takes the position that judicial review of such decisions is available and the existence and ambit of the privative clause is to be assessed in the consideration of the factors comprising the pragmatic and functional analysis. (see: Pushpanathan v. Canada(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).\n\nI agree with Mr. Dokaj that the result is one that is both awkward and inconvenient. I disagree, though, with his thesis that Parliament could not reasonably have intended two different mechanisms of review regarding the same decision. First, I have determined that the decisions are discrete. Second, I have concluded that the interpretation of the provision in question yields the result that Parliament's intention was to restrict the statutory appeal to decisions made under section 27 of the Act. Third, even in circumstances where the result can be viewed as unfair, if such a result is contemplated by the legislation, it does not displace Parliament's intent: Medovarski v. Canada (Minister of Citizenship and Immigration) 2005 SCC 51.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-24", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 40–41", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "My conclusion in this respect is supported by reference to the jurisprudence dealing with the analogous seizure review and appeal mechanism provided in the Customs Act. The similarity between the seizure review and appeal mechanism contained in the Act and that contained in the Customs Act is readily apparent. Specifically, the sections concord as follows: section 12 of the Act with section 12 of the Customs Act; section 18 of the Act with sections 110 and 117 of the Customs Act; section 23 of the Act with section 122 of the Customs Act; section 24 of the Act with section 123 of the Customs Act; section 25 of the Act with section 129 of the Customs Act; section 26 of the Act with section 130 of the Customs Act; section 27 of the Act with section 131 of the Customs Act; section 28 of the Act with section 132 of the Customs Act; section 29 of the Act with section 133 of the Customs Act; and section 30 of the Act with section 135 of the Customs Act.\n\nA review of these provisions indicates that Parliament intended that the seizure review and appeal mechanisms in the Act mirror and complement those found in the Customs Act so that the two regimes can operate harmoniously. The same basic scheme is to apply in relation to both Acts. It is also notable that Parliament entrusted the administration and enforcement of the cross-border currency reporting regime in the Act to the same customs officials who are assigned and experienced with the administration and enforcement of the \"goods reporting regime\" in the Customs Act.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-25", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "para 42", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "The Federal Court has concluded that its jurisdiction on a section 135 Customs Act statutory appeal is confined to determining whether there has been a contravention of the Customs Act that would justify the seizure. The Court is precluded from dealing with any other issues on such statutory appeals, including reviews of decisions rendered by the Minister in relation to sanctions. An individual who disagrees with the sanction imposed for contravening the Customs Act must resort to section 18 of the Federal Courts Act: ACL Canada Inc. v. Canada (1993), 107 D.L.R. (4th) 736 (F.C.T.D.); Time Data Recorder International Ltd. v. Canada (Minister of National Revenue - M.N.R.) (1993), 66 F.T.R. 253 aff'd. (1997), 211 N.R. 229 (F.C.A.); Nerguizian v. Canada (Minister of National Revenue - M.N.R.) (1996), 121 F.T.R. 241 (F.C.T.D.); He v. Canada (2000), 182 F.T.R. 85 (F.C.T.D.).", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-26", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 43–44", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Mr. Justice MacKay, in ACL Canada Inc, supra, opined as follows: I note in passing that, if my interpretation of the Act is correct, there is an anomalous situation presented for anyone seeking to question the Minister's decisions in relation to seizures and forfeitures. The Act provides for an appeal of a decision of the Minister on the issue of whether there has been a contravention of the Act or regulations and such an appeal may be made by way of an action in this court within 90 days of notice of the decision. The exercise of discretion in imposing the penalty, like any other administrative discretion, even where there is a privative clause, is subject to judicial review in this court, but since amendments to the Federal Court Act effective February 1, 1992, relief must be sought by an application for judicial review, not by an action, to be commenced within 30 days of the decision sought to be reviewed, unless the court grants an extension of time to apply. The person affected by Customs seizures and penalties can only be confused by the two remedial processes Parliament has now provided under the two statutes. Parliament might well consider whether both decisions of the Minister, under ss. 131 and 133, should be subject to review in a single proceeding, by way of an appeal or on application for judicial review.\n\nJustice MacKay's invitation to Parliament was extended in 1993. The Customs Act has not been modified. When Parliament adopted the Act, some seven years later, it had the opportunity to create a single statutory appeal for decisions rendered under sections 27 and 29 of the Act, if it so desired, but it chose otherwise. That choice, having been taken by Parliament, must, in my view, be respected by the Court.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-27", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 45–46", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Mr. Dokaj claims that there exists a major distinction between the Act and the Customs Act that justifies deviation from the jurisprudence relating to the Customs Act. That distinction is with respect to what he describes as \"automatic forfeiture\" under the Customs Act versus \"no automatic forfeiture under the Act\". He contends that the Act creates a presumption for return of the money and the provision is mandatory.\n\nThe short answer to this submission is section 23 of the Act which, like section 122 of the Customs Act, does provide for automatic forfeiture. It is correct that subsection 18(2) specifies that unless the customs official has reasonable grounds to suspect that the currency or monetary instruments constitute proceeds of crime or terrorist financing, the seized currency or monetary instruments shall, on payment of a penalty in the prescribed amount, be returned to the individual or the lawful owner. This subsection is analogous to section 117 of the Customs Act which allows for the return of seized goods if money is paid equal to a maximum of the value of the goods plus the duties owing. The only distinction between the provisions is that the Customs Act does not delineate a test to be applied by the customs official in deciding whether or not the goods should be returned. Rather, it permits the Minister to exercise discretion in this regard.", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-28", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 47–49", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "It is also true that section 133 of the Customs Act uses the word \"may\" to describe the various options available to the Minister, when reviewing the sanction for non-compliance imposed by the customs official, while section 29 of the Act uses the word \"shall\". In my view, that is a difference without a distinction. It is unreasonable to suggest that the Minister could choose not to render any decision under section 133 of the Customs Act after finding that a contravention had occurred. The word \"may\", in that context, must be interpreted as mandatory rather than permissive (see: Canada(Attorney General) v. Laidlaw (1998), 237 N.R. 1 (F.C.A.)).\n\nFinally, the fact that the privative clause at section 123 of the Customs Act refers to precluding review other than in the manner provided by section 129, while the privative clause at section 24 of the Act refers to precluding review other than in the manner provided by sections 25 to 30, in no way detracts from the clear and unambiguous language employed within those provisions. The similarities between the Act and the Customs Act far outweigh the minor distinctions. The overall scheme of both is the same and Parliament intended that they operate harmoniously.\n\nTo conclude, in my view, to interpret subsection 30(1) of the Act in the manner proposed by the plaintiff would require the insertion of words not included in the provision. Specifically, an amendment such as that set out below would be necessary. 30(1) A person who requests a decision of the Minister under section 25 may, within 90 days after being notified of the decision, appeal the decision [and any subsequent decision under section 29] by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-37898-29", + "doc_type": "caselaw", + "act_code": "2005 FC 1437", + "act_short": "Dokaj", + "act_name": "Dokaj v. Canada (Minister of National Revenue)", + "section": "", + "citation": "Dokaj v. Canada (Minister of National Revenue), 2005 FC 1437", + "marginal_note": "paras 50–51", + "heading": "PCMLTFA; the Federal Court's jurisdiction on a s. 30 appeal is limited to whether the s. 12 reporting duty was contravened", + "part": "Federal Court", + "division": "", + "text": "Parliament chose not to insert such language and it is not for the Court to override Parliament's intent.\n\nIn the result, for the foregoing reasons, the answer to the question - does the Federal Court have jurisdiction pursuant to section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 to review a ministerial decision issued pursuant to section 29 of that Act - is no. In the exercise of my discretion, I decline to award costs. ORDER THIS COURT ORDERS THAT the answer to the question set out below is \"no\". Does the Federal Court have jurisdiction pursuant to section 30 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 to review a ministerial decision issued pursuant to section 29 of that Act? \"Carolyn Layden-Stevenson\" Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-1118-04 STYLE OF CAUSE: GJOVALIN DOKAJ v. MINISTER OF NATIONAL REVENUE PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: OCTOBER 4, 2005 REASONS FOR ORDER: LAYDEN-STEVENSON J. DATED: OCTOBER 24, 2005 APPEARANCES: MATTHEW McGARVEY FOR THE PLAINTIFF JAN BRONGERS FOR THE DEFENDANT SOLICITORS OF RECORD: SHORE DAVIS McGARVEY FOR THE PLAINTIFF OTTAWA, ONTARIO JOHN H. SIMS, Q.C. FOR THE DEFENDANT DEPUTY ATTORNEY GENERAL OF CANADA", + "current_to": "2005-10-24", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/37898/index.do" + }, + { + "id": "fc-62413-1", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 1–3", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "Robert Bo Da Huang [the Applicant] is self-represented and appeared with the assistance of an interpreter. He applies for judicial review of a decision made by a delegate of the Minister of Public Safety and Emergency Preparedness, dated May 24, 2012 [the Decision], in which she decided that: i) there had a been a contravention of s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 [the Act], and ii) that the currency which had been seized from the Applicant would be held as forfeit pursuant to paragraph 29(1)(c) of the Act. The Facts\n\nOn January 5, 2011, the Applicant was scheduled to fly from Vancouver to Hong Kong. When approached in the departures area of the Vancouver International Airport by a Canada Border Services Agency customs officer [the Officer], the Applicant admitted to carrying more than $10,000.00 in currency which he had not reported. A total of $15,760.00 in cash was found in the Applicant’s bag. It was not concealed but was organized into three bundles: one wrapped in elastic bands, one wrapped in a thin piece of paper and one loose bundle.\n\nFollowing an interview with the Applicant, the Officer decided to hold the seized currency as suspected proceeds of crime. The fact that the Applicant had previously been convicted of drug smuggling, had been unemployed since 2007 and had no other source of income since then were among the reasons provided by the Officer for his suspicions. The sum of $15,760.00 will be described as the “Seized Funds”.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-2", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 4–8", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The Applicant contested the seizure to the Recourse Directorate and requested a Ministerial review pursuant to s. 25 of the Act. He provided the following explanation for the Seized Funds: (1) $ 6,700.00 was from the sale of his car; (2) $ 2,000.00 was “lucky money” given to him by his mother; and (3) the balance was his personal savings. He submitted a purchase agreement for the car, dated January 4, 2010 and a TD bank receipt indicating that the same amount had been deposited into his bank account.\n\nAn exchange with the adjudicator at the Recourse Directorate followed in which the Applicant was told that, although the $6,700.00 would be accepted as legitimate [the Legitimate Funds], he had failed to provide evidence to demonstrate an identifiable link between his savings and the “lucky money” and legitimate origins. This meant that the adjudicator still suspected that $9,060.00 of the Seized Funds was proceeds of crime. This amount will be described as the “Illicit Funds”. The Decision\n\nOn May 24, 2012, the Minister’s delegate informed the Applicant that all of the Seized Funds (i.e. $15,760.00) would be held as forfeit notwithstanding that only $9,060.00 was considered to be the Illicit Funds.\n\nThe reasons provide as follows: “Although there was evidence to support you received $6,700 from the sale of the vehicle, no additional corroborating evidence was provided to substantiate the legitimate origin of the remainder of the seized currency”.\n\nAt the hearing, held in Vancouver on May 21, 2013, counsel for the Minister conceded that the Respondent was satisfied that the Applicant had demonstrated that $6,700.00 of the Seized Funds was money earned from the sale of his car and did not represent proceeds of crime or funds used in the financing of terrorist activity. Jurisdiction", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-3", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 9–11", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The Applicant’s Notice of Application challenges not only the Minister’s decision to hold the currency forfeit under s. 29 but also the decision confirming the contravention of the Act pursuant to s. 27. However, s. 30 of the Act makes it clear that the question of whether the Act was contravened may only be challenged by way of an action in the Federal Court (Tourki v Canada (Minister of Public Safety & Emergency Preparedness), 2007 FCA 186 at paras 16-18; Kang v Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 798 paras 29-30). Thus, it is only the Minister’s decision to hold the Seized Funds forfeit pursuant to s. 29 that is open to challenge in this proceeding. The Issue\n\nIt became clear at the hearing that I considered the determinative issue to be whether s. 29 of the Act permits the Minister to hold forfeit only the Illicit Funds.\n\nSince the Respondent had no notice of the Court’s concern about this issue, the parties were asked to provide supplementary submissions. The Act", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-4", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 12", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The following provisions of the Act are relevant: 3. The object of this Act is (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities, (ii) requiring the reporting of suspicious financial transactions and of cross-border movements of currency and monetary instruments, and (iii) establishing an agency that is responsible for dealing with reported and other information; (b) to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of the proceeds of their criminal activities, while ensuring that appropriate safeguards are put in place to protect the privacy of persons with respect to personal information about themselves; and (c) to assist in fulfilling Canada’s international commitments to participate in the fight against transnational crime, particularly money laundering, and the fight against terrorist activity. 12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. […] 18.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-5", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 12", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "(1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments. (2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. […] 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 29. (1) If the Minister decides that subsection 12(1) was contravened, the Minister may, subject to the terms and conditions that the Minister may determine, (a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; (b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or (c) subject to any order made under section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-6", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 12", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The Minister of Public Works and Government Services shall give effect to a decision of the Minister under paragraph (a) or (b) on being informed of it. (2) The total amount paid under paragraph (1)(a) shall, if the currency or monetary instruments were sold or otherwise disposed of under the Seized Property Management Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the currency or monetary instruments. 3. La présente loi a pour objet : a) de mettre en oeuvre des mesures visant à détecter et décourager le recyclage des produits de la criminalité et le financement des activités terroristes et à faciliter les enquêtes et les poursuites relatives aux infractions de recyclage des produits de la criminalité et aux infractions de financement des activités terroristes, notamment : (i) imposer des obligations de tenue de documents et d’identification des clients aux fournisseurs de services financiers et autres personnes ou entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice d’une profession ou d’activités susceptibles d’être utilisées pour le recyclage des produits de la criminalité ou pour le financement des activités terroristes, (ii) établir un régime de déclaration obligatoire des opérations financières douteuses et des mouvements transfrontaliers d’espèces et d’effets, (iii) constituer un organisme chargé de l’examen de renseignements, notamment ceux portés à son attention en application du sous-alinéa (ii); b) de combattre le crime organisé en fournissant aux responsables de l’application de la loi les renseignements leur permettant de priver les criminels du produit de leurs activités illicites, tout en assurant la mise en place des garanties nécessaires à la protection de la", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-7", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 12", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "vie privée des personnes à l’égard des renseignements personnels les concernant; c) d’aider le Canada à remplir ses engagements internationaux dans la lutte contre le crime transnational, particulièrement le recyclage des produits de la criminalité, et la lutte contre les activités terroristes. 12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation des espèces ou effets d'une valeur égale ou supérieure au montant réglementaire. […] 18. (1) S’il a des motifs raisonnables de croire qu’il y a eu contravention au paragraphe 12(1), l’agent peut saisir à titre de confiscation les espèces ou effets. (2) Sur réception du paiement de la pénalité réglementaire, l'agent restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la criminalité au sens du paragraphe 462.3(1) du Code criminel ou de fonds destinés au financement des activités terroristes. […] 25. La personne entre les mains de qui ont été saisis des espèces ou effets en vertu de l'article 18 ou leur propriétaire légitime peut, dans les quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui les a saisis ou à un agent du bureau de douane le plus proche du lieu de la saisie. 29.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-8", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 12–13", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "(1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre peut, aux conditions qu’il fixe : a) soit restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; b) soit restituer tout ou partie de la pénalité versée en application du paragraphe 18(2); c) soit confirmer la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. Le ministre des Travaux publics et des Services gouvernementaux, dès qu’il en est informé, prend les mesures nécessaires à l’application des alinéas a) ou b). (2) En cas de vente ou autre forme d’aliénation des espèces ou effets en vertu de la Loi sur l’administration des biens saisis, le montant de la somme versée en vertu de l’alinéa (1)a) ne peut être supérieur au produit éventuel de la vente ou de l’aliénation, duquel sont soustraits les frais afférents exposés par Sa Majesté; à défaut de produit de l’aliénation, aucun paiement n’est effectué. The Statutory Context\n\nSubsection 12(1) of the Act requires individuals to report the importation or exportation of currency or monetary instruments equal to or greater than the prescribed amount. The Cross-Border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412 [the Regulations] sets the prescribed amount at $10,000.00.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-9", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 14–16", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "Subsection 18(1) of the Act permits an officer to seize as forfeit currency or monetary instruments if there are reasonable grounds to believe that there has been a contravention of s. 12(1). However, the seized currency “shall” be returned to an individual upon payment of the penalty prescribed in the Regulations unless the officer has reasonable grounds to suspect that the funds are proceeds of crime or used for financing terrorist activity (together, the Suspicions). If the officer does hold such Suspicions, then the funds remain forfeit.\n\nIn my view, this section provides the foundation for seizure and it clearly sets out Parliament’s intention: if there is a failure to report, a penalty is payable but Canada will only seize for forfeit funds which are subject to the Suspicions. It is noteworthy that there is nothing in this section which precludes the retention of a portion of the seized currency or monetary instruments if an officer is satisfied that only a portion is suspicious.\n\nSection 25 permits a person from whom funds were seized to request a Minister’s decision about whether there was a contravention of s. 12(1), i.e. a failure to report. Under s. 29, if the Minister decides that such a contravention occurred, the Minister may return the currency or monetary instruments or confirm that they are forfeited. It is of note that s. 29 does not expressly preclude the return of a portion of seized funds once their legitimate origins have been established. Discussion", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-10", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 17–19", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The Applicant argued that the Decision was unreasonable because it ignored the additional corroborating evidence provided to substantiate the legitimacy of the Illicit Funds. However, having reviewed the evidence submitted by the Applicant and the record before the Minister, it is my view that it was reasonable for the Minister to hold forfeit the amount said to be the Applicant’s personal savings and the money he received from his mother.\n\nRegarding the Legitimate Funds, the Respondent submits in supplementary submissions, dated June 11, 2013, that the principles of statutory interpretation, namely the modern approach to statutory interpretation and the “implied exclusion” principle, lead to the conclusion that s. 29 does not grant the Minister discretion to return a portion of the Seized Funds to the Applicant. The Applicant also filed supplementary submissions, dated June 19, 2013, in which he disagreed with the Respondent’s position saying that it was unfair. He now asks that only the Legitimate Funds be returned to him.\n\nThe Respondent says that in Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at paras 26-27 (SCC), the Supreme Court of Canada confirmed that the modern approach to interpreting statutes requires that the words in legislation be read in their entire context and in their grammatical and ordinary sense harmoniously with the legislation’s scheme and object and the intention of Parliament. The Respondent argues that because there is no reference in either s. 29 or elsewhere in the Act to the partial return of seized currency, it is apparent that the Parliament did not authorize a partial return of seized unreported funds.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-11", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 20", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The Respondent also relies on the Supreme Court’s statements in Bell ExpressVu regarding the applicability of other statutory principles when there is ambiguity about the meaning of a provision. If s. 29 is deemed ambiguous, the Respondent submits that the “implied exclusion” principle applies. It stipulates that where legislation expressly provides for something in one provision, it is to be assumed that the same meaning does not apply where it is not mentioned in another provision. In this case, the Respondent says that Parliament’s intention not to provide for a return of a portion of seized funds in paragraph 29(1)(a) is manifest when contrasted with paragraph 29(1)(b) which allows the Minister to remit “any penalty or portion of any penalty…” [emphasis added] to an individual. The Respondent argues that the differential treatment of these proximate concepts, found mere subparagraphs apart, is a strong indication that Parliament had in fact turned its mind to the issue of partial relief for seized funds but decided against such a measure.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-12", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 21–22", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "Counsel for the Respondent further submits that this Court has specifically addressed this issue and determined that s. 29 does not permit partial relief from forfeiture. The issue was directly addressed by Mr. Justice Rennie in Admasu v Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 451. The applicant in that case had failed to report just over $14,000.00 as he was boarding a flight for Ethiopia via Amsterdam. The Recourse Directorate accepted that $5,000.00 of the seized currency had a legitimate origin but refused to return that amount because the applicant had failed to identify a legitimate source for all of the seized currency. Mr. Justice Rennie noted the difference in language between paragraph 29(1)(a) and paragraph 29(1)(b) and concluded that the Act does not permit partial forfeiture of seized funds. He repeated this conclusion in Dhamo v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 443 at paras 16 and 33 where he said that it is not possible for the Minister to grant partial relief from forfeiture.\n\nIn Mohammad v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 148, Mr. Justice Martineau reached the same conclusion and Madam Justice Gleason has quoted Mr. Justice Rennie’s conclusion with approval although she did not find it necessary to decide the issue on the facts of her case, see Tran v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 600.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-13", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 23–25", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The Respondent stresses the importance of judicial comity and urges me to follow these decisions. As noted by Mr. Justice Marc Noël in Allegran Inc. v Canada (Minister of Health), 2012 FCA 308, the doctrine of comity seeks to promote certainty in the law by preventing the same issue from being decided differently by different judges of the same court.\n\nThe Respondent submits that it is only where there are “strong reasons to the contrary” that decisions of judicial colleagues should not be followed (Apotex Inc. v Pfizer Canada Inc., [2013] FCJ No 562 at paras 13-14 (FC); Altana Pharma Inc. v Novopharm Ltd., 2007 FC 1095 at para 36). According to the Respondent, this has been interpreted to meant the presence of one of the following factors: -Subsequent decisions have affected the validity of the impugned judgment; -It is considered that some binding authority in case law or some relevant statute was not considered; -The judgment was unconsidered, a nisi prius judgment given in circumstances familiar with all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.\n\nThe Respondent submits that none of these factors are present in the current case and thus there is no reason to depart from the four recent judgments of this Court.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-14", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "paras 26–27", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "However, in Allegran Inc., supra at paragraph 48, the Federal Court of Appeal indicated that a judge of this Court may depart from conclusions of law by another judge of the Court where he or she is convinced that a departure is necessary and can articulate cogent reasons for doing so. This Court has also acknowledged an exception to the principle of judicial comity where a judge is of the view that, if a previous decision of the Court were followed, it would create an injustice (Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at para 62).\n\nWith great respect to my colleagues, I am unable to agree with their conclusion that, because the Act specifies in paragraph 29(1)(b) that a portion of the penalty may be returned, it follows that a portion of the seized funds which is legitimate may not be returned under paragraph 29(1))(a) because that paragraph does not refer to a “portion”.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-15", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 28", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "My inability to agree is based on the following points which, in my view, constitute “strong reasons to the contrary”. I note that none of these points were referred to in the earlier Federal Court decisions: i. The objectives of Act are set out in s. 3 and confiscating legitimate funds does not further those objectives. In Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255, the Federal Court of Appeal considered the Minister’s exercise of discretion under s. 29 of the Act. In that regard, it said at paragraph 53 that “The Minister’s discretion must be exercised within the parameters of the Act and the objectives which Parliament sought to achieve by that legislation”. In my view, it would not be reasonable for the Minister to exercise his discretion in favour of holding the Legitimate Funds forfeit; ii. The penalty for this Applicant’s failure to report the Legitimate Funds is $250.00 according to s. 18(a) of the Regulations. Confiscation of $6,700.00 effectively imposes a draconian penalty not mandated by the Act; iii. In my view, if Parliament had intended to confiscate the Legitimate Funds it would have stated that fact in unequivocal terms. Although counsel for the Respondent was given the opportunity to make submissions on this issue, the Court was not provided with any legislative history showing that Parliament intended to appropriate such funds; iv. If the Applicant had had the documents about the sale of his car at the airport, the Officer would have been required by s. 18(2) of the Act to return the Legitimate Funds at that time subject to payment of the prescribed penalty. Accordingly, it makes no sense that it is open to the Minister to confirm the forfeiture of those funds at a later date. v.", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-16", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 28", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "The interpretation advanced by the Respondent could lead to absurdly punitive results. For example, if $100,000.00 was seized and $99,000.00 was later shown to be legitimate, the Respondent would nevertheless say that the Minister has no discretion to return the $99,000.00 under paragraph 29(1)(c) of the Act. In Re: Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27 (SCC) at paragraph 27, the Supreme Court of Canada noted that “It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.” Absurdity is defined in the decision to include interpretations that lead to inequitable consequences and those which are incompatible with the objects of the legislation. vi. Lastly, although the word “portion” appears in paragraph 29(1)(b), it is used in reference to the penalty which, according to the Regulations, cannot be more than $5,000.00. In my view, the interpretation of paragraph 29(1)(a), which could determine the fate of large sums of money, should not be based solely on the language used in a penalty provision. In other words, contrary to the Respondent’s submissions, I do not find that the penalty for failing to report and the forfeiture of suspicious funds are “proximate concepts”. This being so, I am not persuaded that the implied exclusion principle of statutory interpretation is applicable. Conclusion", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" + }, + { + "id": "fc-62413-17", + "doc_type": "caselaw", + "act_code": "2013 FC 729", + "act_short": "Da Huang", + "act_name": "Da Huang v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Da Huang v. Canada (Public Safety and Emergency Preparedness), 2013 FC 729", + "marginal_note": "para 29", + "heading": "PCMLTFA currency forfeiture; partial return of seized funds where only part is shown to be of legitimate origin", + "part": "Federal Court", + "division": "", + "text": "For all these reasons, it is my conclusion that the Decision to confirm forfeiture of the Seized Funds including the Legitimate Funds was an unreasonable exercise of discretion. ORDER THIS COURT ORDERS that The Decision is hereby set aside and the Applicant’s request for the return of the Legitimate Funds is to be reconsidered by the Minister in accordance with these reasons. “Sandra J. Simpson” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1219-12 STYLE OF CAUSE: ROBERT BO DA HUANG v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: May 21, 2013 REASONS FOR ORDER AND ORDER: SIMPSON J. DATED: June 28, 2013 APPEARANCES: Robert Bo Da Huang FOR THE APPLICANT Philippe Alma FOR THE RESPONDENT SOLICITORS OF RECORD: Robert Bo Da Huang Self-Represented Vancouver, British Columbia FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT", + "current_to": "2013-06-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" } ] \ No newline at end of file