Date: 20061117
Docket: T-2251-04
Citation: 2006
FC 1397
Ottawa, Ontario, this 17th day of November, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ROBERT
LEASAK
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS and MINISTER
OF NATIONAL REVENUE
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7 of a decision of the Minister of Public Safety
and Emergency Preparedness (Minister) dated November 22, 2004 (Decision) imposing
a penalty of $85,560 for the Applicant’s failure to immediately report the
importation of a vessel in contravention of section 12 of the Customs Act,
R.S.C. 1985, c. 1 (2nd Supp.) (Act).
BACKGROUND
[2]
The Applicant
purchased a vessel, “Rennie B III” (Vessel) in December 2001. The Vessel had a
permanent moorage at Point
Roberts,
Washington until July 26, 2003. The Applicant arranged for a moorage at
Crescent Beach Marina, British Columbia to begin on August 1, 2003.
[3]
In 2002,
the Applicant brought the Vessel to Canada
and reported to Canada Customs. However, in April 2003, the Applicant failed
to report the Vessel’s entry into Canada. On July 9, 2003, when the Applicant
brought the Vessel to Crescent Beach Marina to determine what modifications
would be needed to the Applicant’s newly purchased boathouse at the marina, the
Vessel’s entry into Canada was again not reported to
Canada Customs at the time of entry.
[4]
On July
11, 2003, the Applicant reported to Canada Customs and stated that he had just
entered Canada with the Vessel that morning. When advised that Canada Customs’
officers were coming to the marina, the Applicant moved the Vessel from the
boathouse to the gas dock so that it would be consistent with his explanation
that he had arrived that morning. Despite the Applicant’s attempts to prevent
Canada Customs from discovering that he had arrived two days earlier, Canada
Customs’ officers concluded that the Applicant had permanently moved the Vessel
to Canada on July 9, 2003 and had
falsely reported it as a temporary importation. As a result, Canada Customs
seized the Vessel and imposed a penalty equal to 25% of the Vessel’s value for
its release. The penalty is for a level 1 infraction of non-report and for
contraventions of a less serious nature. The Vessel was released from seizure
on August 11, 2003 after payment of the sum of $106,950.
[5]
On October
3, 2003, pursuant to s. 129 of the Act, the Applicant requested a Minister’s
decision under section 131 of the Act. On October 30, 2003, the Adjudicator
from the Customs Appeals Directorate of the Canada Customs and Revenue Agency
provided a written notice of the reasons for the seizure and stated that the
Applicant could provide submissions.
[6]
On December
3, 2003, the Applicant provided submissions and requested the Minister to waive
the penalty of $106,950 on the basis that the amount was excessive having regard
to the nature of the default.
[7]
By letter
dated December 19, 2003, the Adjudicator requested information on the Vessel’s
export as represented in the Applicant’s December 3, 2003 submission. The Applicant’s
December 3, 2003 submission and the Adjudicator’s letter dated December 19,
2003 were sent to the Seizing Officer. The Adjudicator’s letter dated December
19, 2003 that was sent to the Applicant did not include any reference to a
carbon copy or a postscript having been sent to the Seizing Officer.
[8]
On January
27, 2004, the Seizing Officer replied to the Adjudicator’s letter dated December
19, 2003 and stated that he had reviewed the Applicant’s submission and that he
stood by the seizure action. The Applicant did not receive copies of this
communication to the Adjudicator from the Seizing Officer.
[9]
On January
27, 2004, the Applicant provided a further submission relating to the export
and the proposed sale of the Vessel. On March 4, 2004, the Adjudicator
acknowledged the Applicant’s letter dated January 27, 2004 and, again, sent a copy
of the Applicant’s January 27, 2004 submission to the Seizing Officer. Similarly,
the letter that was sent to the Applicant did not include any reference to a
carbon copy or a postscript having been sent to the Seizing Officer. In fact,
the postscript comment that was addressed to the Seizing Officer in this letter
read as follows:
P.S. Please find attached a copy of the
most recent correspondence received in this matter for your review and
comments. Would you support a reduction in the penalty, as the vessel has been
permanently moved to the United
States? Any
further comments or representations should be forwarded to my attention within
30 days from the date of this correspondence. Thank you.
[10]
By letter
dated March 29, 2004, the Seizing Officer responded to the Adjudicator’s letter
and provided reasons for the seizure and why he disagreed with the Applicant’s
submissions. He also wrote that “[i]f the decision is ultimately made to
reduce the penalty due to the export of the vessel to the USA, I would propose
that same benefit be afforded the claimant that is given to non-residents of
Canada when seized goods are exported; reducing the dollar value of the penalty
by 20%.” The Applicant did not receive copies of this communication to the Adjudicator
from the Seizing Officer.
[11]
On June
30, 2004, the Applicant sold the Vessel to a US resident and informed the Adjudicator of
the sale on July 2, 2004.
[12]
On
November 22, 2004, the Minister confirmed that the Vessel had been validly
seized and that, under section 133 of the Act, $85,560 of the amount received would
be held as forfeit and the balance in the amount of $21,390 returned to the
Applicant in recognition of the sale and export of the Vessel from Canada. It
is this Decision that is the subject of review in the present application.
PERTINENT LEGISLATION
[13]
The
relevant sections of the Act are found in Schedule “A”.
ISSUES
[14]
The
Applicant raises the following issues:
Has the Minister
breached the duty of procedural fairness by failing to:
1)
Disclose
submissions made to the Adjudicator by the Seizing Officer;
2)
Determine
whether the importation of the Vessel to Canada on July 9, 2003 was a temporary
importation or a permanent importation made with the intention of avoiding the
payment of customs duties; and
3)
Consider
whether the penalty imposed under the guidelines in the Customs Enforcement
Manual is excessive?
[15]
The
Respondents describe the issues in the following terms:
1.
Whether
the Minister breached any duty of fairness in exercising his discretion under
section 133 of the Act to reduce the amount payable by the Applicant by 20%;
and
2.
Whether
the Minister’s decision under section 133 of the Act to reduce by 20% the
amount payable by the Applicant is patently unreasonable.
APPLICANT’S SUBMISSIONS
Communications between
Adjudicator and Seizing Officer
[16]
The Applicant
contends that as a result of the Adjudicator’s failure to disclose the Seizing
Officer’s submissions, the Applicant did not have an opportunity to reply to those
submissions and did not have access to the information and evidence relied upon
by the Adjudicator in reaching her Decision. The Applicant alleges that the
Adjudicator intentionally concealed from the Applicant that she was inviting
submissions from the Seizing Officer by excluding the carbon copy and
postscript notes to the Seizing Officer from the letters she sent to the
Applicant.
Nature of the Importation
[17]
The
Applicant states that there are two separate interpretations of the purpose of
the entry of the Vessel into Canada on July 9, 2003. The Seizing
Officer’s position is that the Vessel had been permanently moved to Canada; the
Applicant’s position, however, is that the importation was temporary for the
purposes of obtaining modifications to the boathouse. The Applicant claims
that the Seizing Officer imposed the penalty on the basis that the Vessel had
been moved permanently into Canada. However, the Applicant
states that the circumstances of the import are inconsistent with a permanent
importation.
[18]
The
Applicant argues that a decision on this issue is necessary to determine the seriousness
of the event and the amount of the penalty that should be imposed. However, in
the present case, the Adjudicator and the Minister have not addressed or made a
decision concerning the Applicant’s intent. The Applicant further argues that
it is legitimate for him to expect the Minister to address factual issues that
are relevant to determining the amount of penalty and, if there is a reasonable
doubt on the facts, to resolve this doubt in favour of the Applicant.
Discretion regarding the
Penalty
[19]
The
Applicant claims that he had a legitimate expectation that the Adjudicator would
exercise her discretion under section 133 of the Act to determine whether the
penalty imposed was excessive or insufficient. The Applicant points out that
the Adjudicator only considered whether the penalty was in compliance with the Customs
Enforcement Manual (Guidelines). She intended to follow the Guidelines
rather than exercise her discretion. Instead of examining the appropriateness
of the penalty in relation to the nature of the offence, the Adjudicator simply
applied another section of the Guidelines.
[20]
The Applicant
submits that this is an instance where there are clear reasons why a lesser
penalty should be imposed. For example, the following should have been considered:
(a) the fact that he is not a repeat offender who intentionally and
successfully avoided the payment of duties;
(b) that no duty was avoided; (c) that the misrepresentation
was to avoid a penalty for late reporting of a temporary entry and not to avoid
the payment of duty; and (d) that the amount of $85,400 is far in excess of the
penalty for most criminal offences where an intent to defraud is required.
[21]
Moreover,
the Applicant submits that rather than a 25% or 20% penalty, the Guidelines
would have permitted a penalty of 5%, as this is an importation of a temporary
good that is subject to 0% duty.
RESPONDENTS’ SUBMISSIONS
Communications between
Adjudicator and Seizing Officer
[22]
The
Respondents say that the Applicant was advised of the Seizing Officer’s
position when he requested a Minister’s decision under section 129 and received
the Seizing Officers’ narrative reports and a letter dated October 30, 2003.
The Respondents assert that the Seizing Officer’s comments dated March 29, 2004
merely reiterate the information previously provided to the Applicant through
the narrative reports and correspondence from the Adjudicator.
[23]
The
Respondents argue that there is no prejudice to the Applicant when the Seizing
Officer refers to a 20% reduction in penalty because the Applicant had addressed
the issue of the amount of the penalty through his three sets of submissions.
In other words, the Respondents say that the Applicant did respond fully to the
case against him so that the Minister did not breach any duty of fairness to
the Applicant in not providing him with the comments made by the Seizing
Officer.
Standard of Review
[24]
The
Respondents disagree with the Applicant’s characterization of the remaining two
issues and say that the grounds of review are not procedural in nature but
relate to the substance of the Decision.
[25]
The
Respondents submit that the appropriate standard of review for a decision under
section 133 of the Act is patent unreasonableness for the following reasons:
a) Parliament did not intend a right
of appeal and the only way to review the penalty or forfeiture amount imposed
is by way of judicial review. This indicates a high level of deference;
b) The Minister has expertise
with respect to the administration of penalties under the Act and his expertise
is related to the matter before him;
c) Section 133 is discretionary;
d) The purpose of the Act is to
regulate the importation of goods into Canada and the duties payable on such
goods. The Act also sets penalties for contraventions of the Act and regulations
to uphold the customs system and to ensure compliance; and
e) The question is highly factual
and involves broader issues of public policy.
Nature of the Importation and
Discretion regarding the Penalty
[26]
The
Respondents assert that the Minister’s Decision to reduce the penalty amount by
20% is not patently unreasonable.
[27]
They
submit that the Applicant’s interpretation of section 133 to include a requirement
for the Minister to consider the particular nature of the default or the nature
of the contravention is not supported by the wording of the section, the
related sections of the Act, or any evidence. Nonetheless, the Respondents
submit that the Minister considered all circumstances of the matter and the record
before him in arriving at the Decision.
[28]
The
Respondents point out that the penalties in the Guidelines correspond to the
seriousness of the offence. They argue that while the reduction of the penalty
amount by 20% is contemplated by the Guidelines, it does not indicate a failure
to exercise discretion.
[29]
The
Respondents say that the Applicant is merely dissatisfied with the Decision and
is seeking to have the Court re-weigh the factors considered. Furthermore, the
Respondents note that the Applicant’s “legitimate expectation” argument only relates
to procedural remedies. The Applicant is seeking to expand the scope of the
doctrine of legitimate expectation to a substantive remedy.
ANALYSIS
Procedural Fairness
[30]
The
relationship between section 133 of the Act and the duty of fairness was
described in some detail by Justice MacKay in ACL Canada Inc. v. The Queen
in right of Canada et al. (1993), 107 D.L.R. (4th) 736 at 759-760,
68 F.T.R. 180:
The
conduct of the adjudication process, which is essentially a “hearing” by mail,
is extremely important to ensure that a sensible and supportable decision is
rendered, as the only appeal from such decision is an appeal to the Federal
Court of Canada which is without power of remission, that is, it can only
decide whether or not a forfeiture has been incurred as alleged, without power
to change or adjust penalties if a forfeiture has been incurred.
There
is no provision in the Act, and I was not referred to any regulations
concerning the work of the Adjudications Division. The Manual appears designed
to provide guidance within Customs and Excise for consistency in discharge of
responsibilities in a major department with many local offices each dealing
with many members of the public at large. In that context, within statutory or
regulatory restrictions, it is open to the Minister to make whatever
arrangements he deems appropriate for administrative decisions, though those
arrangements must ensure that decisions are made in a manner consistent with
the duty of fairness owed to persons affected.
I
am persuaded that the process here followed in making decisions on behalf of
the Minister under s. 133 in relation to the terms of both forfeitures, the
penalties to be applied, in the two seizures did not comply with the Minister’s
duty of fairness owed to ACLC, the party affected by the decisions. The
Adjudications Division, in its “hearing by mail” did not, in my view, provide
to ACLC information or evidence upon which it relied in reaching its decisions,
and thus the plaintiff was not in the position to fully know the case it had to
meet, or the allegations or charges against it. That case and those allegations
were not, in my view, adequately identified by the notices of seizure issued in
August and September or in the later written notices of reasons for the
seizures issued by the Adjudications Division on behalf of the Deputy Minister.
The [page 760] evidence on which those notices were based, consisting of the
reports on the seizures and correspondence or other communications with the
officers responsible in Halifax, was not provided for information or
comment by ACLC. At the very least, the original reports of Customs officers
relating to the seizures, and any subsequent comments from them, particularly
comments relating to submissions made by ACLC ought to have been provided to
the plaintiff, with an opportunity to respond before the decisions were made.
Only then could it be said that ACLC had a fair opportunity to comprehend and
to respond to the concerns of the Seizing Officers about the significance, if
any, of the April, 1986 seizure and for both seizures in 1987, about the
serious view of the infractions taken by the officers responsible in Halifax,
and the allegations of smuggling, a term not defined by the Act or regulations
and for which in testimony at trial the officers responsible for the 1987
seizures were able to provide only their personal definitions.
On
the evidence adduced before me, I am of the view that this is an appropriate
case for the Minister's determinations under s. 133 to be set aside and the
matter sent back for reconsideration. Another adjudicator should reconsider the
appropriate terms of forfeitures and remissions, if any, in the two cases,
utilizing the record of reports, correspondence, and submissions already
compiled, after having provided opportunity for ACLC to respond to or comment
upon any reports or correspondence from the Customs officers responsible in Halifax. That reconsideration should, of course, be without any
reference to or regard for the determinations previously made.
[31]
In the
present case, the Respondent says that the penalty imposed by the Seizing
Officer was in accordance with the Guidelines in that the penalty related to a
first infraction of non-report, which is 25% of the value for duty of the
undeclared goods which fall under group 2.
[32]
When the
Decision was made, the penalty was reduced by 20% in recognition of the export
of the Vessel from Canada, as contemplated by paragraph
63 of the Guidelines.
[33]
Mr. Nick
Fabiano, who made the Decision on behalf of the Minister explains in his
affidavit how he proceeded:
Although the comments of the seizing officer
were considered, the seizing officer did not participate in the Decision. The
Decision was made by me after considering all the circumstances of the matter,
including the submissions of counsel for the Applicant and the comments and
reports of the seizing officer.
[34]
Mr.
Fabiano also says that it is standard practice to send a seizing officer copies
of correspondence from counsel for an applicant and to ask the seizing officer
to make comments on that correspondence:
As adjudications has [sic] no
independent knowledge of the facts of any particular matter, in order to make a
fair and full consideration of the seizure and the terms of the release, along
with the submissions of an applicant, it is important to obtain the comments of
the officer(s) involved in the seizure.
[35]
So Mr.
Fabiano’s view (and he says this is standard practice) is that fairness and
fullness require that a seizing officer should see and comment upon an
applicant’s submissions. However, he does not appear to think that fairness and
fullness require that an applicant see and comment upon a seizing officer’s
submissions.
[36]
In fact,
as happened in this case, Mr. Fabiano says that a carbon copy or post-script
notation “would not have been on the correspondence sent to the Applicant or
his counsel, but would appear on the file copy of correspondence held in
Adjudications.”
[37]
Mr.
Fabiano does not say that it is standard practice to keep applicants uninformed
about correspondence with, and input from, the relevant Seizing Officer.
However, there is no reason to think that keeping this knowledge from an
applicant was something that was only done in this case.
[38]
In my
view, this is a decidedly odd approach to fairness and fullness: one side of
the hearing by letter (the Minister’s side) is provided with the submissions
made by the other side, but this is not reciprocated. In fact, the applicant’s
side is not even allowed to know whether a receiving officer has been consulted,
let alone what the officer has to say in terms of facts, interpretations and
recommendations.
[39]
Mr.
Fabiano is quite clear in his affidavit that, in making his Decision on behalf
of the Minister, he considered the comments of the Seizing Officer. In fact, he
says that because he had no independent knowledge, he had to go to the Seizing
Officer.
[40]
This
process hardly accords with either basic principles of procedural fairness or
with the process outlined by Justice MacKay in ACL Canada for a decision
under section 133 of the Act.
[41]
Contrary
to the Respondents’ arguments, there is no less reason to keep the Seizing
Officer’s comments from the Applicant. It is similar to the situation in ACL
Canada where Justice MacKay made it quite clear that any subsequent
comments, particularly comments relating to submissions made by applicants,
ought to be provided, and applicants should be given “an opportunity to
respond” before a decision is made.
[42]
The
Respondent says that the Applicant in the present case already knew the case he
had to answer and had responded in full. I cannot accept this. The Decision was
made before the Applicant was given an opportunity to respond to the Seizing
Officer’s comments in the letter of March 29, 2004.
[43]
The Seizing
Officer in that letter makes highly material and significant comments regarding
“the reduction or cancellation of the penalty.” The Seizing Officer
acknowledges in the same letter that the Applicant’s “main issue with the
seizure action is the amount of the penalty.” The Seizing Officer then goes on
to make submissions on what should affect the amount of the penalty imposed. He
also makes submissions with regards to his own views on how the Guidelines are
supposed to work in relation to penalties. He even makes a proposal as to how
any reduction should be calculated.
[44]
The
Applicant was never aware of any of this; in fact, the correspondence system
was set up deliberately so that he would not even know what the Seizing Officer
was shown, or what the Seizing Officer said.
[45]
In my
view, it makes no sense to allege that this process was designed to allow the
Adjudicator to “make a fair and full consideration of the seizure and the terms
of the release […]”, to use Mr. Fabiano’s words. This system is designed to let
a seizing officer have the last word on any submission an applicant makes, and
to ensure that an applicant is given no opportunity to know a significant
aspect of the case he or she has to meet.
[46]
In the
present case, while the Applicant was aware of the Seizing Officers’ narrative
reports and the written notice of the reasons for the seizure, the
uncontradicted evidence shows that the Applicant was not aware of the
communications between the Adjudicator and the Seizing Officer.
[47]
I disagree
with the Respondents’ submission that the Seizing Officer’s submission dated
March 29, 2004 was a reiteration of the information previously provided to the
Applicant through the narrative reports and correspondence from the Adjudicator.
In my view, the Seizing Officer was doing more than reiterating the facts; the Seizing
Officer was responding to the Applicant’s submissions, arguing why the penalty
should not be reduced, and proposing a 20% reduction in the penalty amount
should reduction occur.
[48]
The
Applicant was unable to access the Seizing Officer’s arguments and was unaware
that there were submissions made against him. In my opinion, whether or not
the Applicant was in fact prejudiced is immaterial. The key is the perceived
unfairness in the process taken by the Adjudicator. As in ACL Canada,
the Applicant’s submissions were available for comment by the Seizing Officer
whereas the Applicant, the party affected by the Adjudicator’s Decision, was
not provided a similar opportunity to comment on the Seizing Officer’s
arguments. I find that procedural fairness dictates that the Applicant should
have been provided with the Seizing Officer’s comments and an opportunity to
understand and respond to the Seizing Officer’s concerns before a decision was
made. The failure to do that in this case amounts to a breach of procedural
fairness.
Other Grounds
[49]
The
Applicant also contests the nature of the importation and the discretion
regarding the penalty. Given that there is a breach of procedural fairness in
the present case, I am of the opinion that it is not strictly necessary to
address these other issues. However, for the sake of completeness, I will
summarize my view of these issues. First of all, I agree with the Respondents
that the other issues should be characterized as substantive grounds. I also
agree with the Respondents that a pragmatic and functional analysis indicates
the standard of review of patent unreasonableness applies. This is because Parliament
insulated an appeal from the penalty imposed, and the Decision is discretionary
in nature.
[50]
It is
well-settled that an importer is liable for failing to meet his obligation to
account for goods and that the lack of intention on the part of the importer to
evade duties and taxes is irrelevant in a seizure proceeding and the validity
of a seizure. However, the amount of penalty imposed is not automatic and the
Minister has discretion in determining that amount.
[51]
In my
view, the Decision in relation to the penalty imposed in this case is patently
unreasonable because there is no evidence that the Adjudicator
considered the Guidelines and determined whether the importation of the Vessel
was of a temporary or permanent nature which factor may be relevant in fixing
the amount.
[52]
Further,
according to the document entitled “Appealing an Enforcement Action Customs
Act – 1st Party Frequently Asked Questions”, (which was referred
to in the affidavit of Nick Fabiano), at Exhibit B:
The Adjudicator will review your case and
consider all of the circumstances including the following:
…
Whether there are mitigating or
aggravating circumstances?
…
Whether there was evidence to suggest
that you knowingly did not report the goods or falsely report the goods or the
circumstances under which they were imported?
Whether the penalty was appropriate?
[53]
Although
the Adjudicator reduced the penalty amount by 20% based on the export of the
Vessel, and the case synopsis, I am not satisfied that she actually considered
whether the penalty amount was appropriate. Instead, the Adjudicator merely
confirmed that there was a contravention of the Act (which is not disputed in
this case) and reiterated the submissions of the Applicant and the Seizing
Officer. The Minister’s Decision appears to be a reproduction of the
Adjudicator’s decision and, hence, it too does not address or analyze the
issues surrounding the penalty amount. Therefore, the Minister failed to
consider relevant considerations and as a result, the Decision is patently
unreasonable. I realize that, in referring to the amount retained by the Minister
that the word “penalty” is being used loosely, in that section 133 does not
refer to a penalty. I am using the word in this context as it was used by the Seizing
Officer in his letter of March 29, 2004, and as it appears to be used in the
“Appealing Enforcement Action Customs Act – 1st Party
Frequently Asked Questions” (as referred to above and included at Exhibit B to
Mr. Fabiano’s affidavit).
ORDER
THIS COURT ORDERS that
1. The Application for judicial
review is allowed and the Decision of the Minister dated November 22, 2004
under section 133 of the Customs Act is set aside;
2. The matter is referred back to
the Minister for reconsideration by a different adjudicator;
3. The new adjudicator should
reconsider the appropriateness of the amount to be remitted to the Applicant
under section 133 of the Customs Act;
4. Any such reconsideration shall
ensure that the Applicant is provided with an opportunity to respond to or
comment upon any reports or correspondence from the relevant Seizing Officer
and to know the full case he has to answer;
5. Any such reconsideration
should be made without any reference or regard to the Decision previously made
in so far as it relates to the amount to be returned to the Applicant and the
amount to be forfeited.
6. The Applicant shall have the
costs of this Application.
“James Russell”
Schedule “A”
|
12. (1) Subject to this section, all
goods that are imported shall, except in such circumstances and subject to
such conditions as may be prescribed, be reported at the nearest customs
office designated for that purpose that is open for business.
…
129.
(1) The following persons may, within ninety days after the date of a seizure
or the service of a notice, request a decision of the Minister under section
131 by giving notice in writing, or by any other means satisfactory to the
Minister, to the officer who seized the goods or conveyance or served the
notice or caused it to be served, or to an officer at the customs office
closest to the place where the seizure took place or closest to the place
from where the notice was served:
(a)
any person from whom goods or a conveyance is seized under this Act;
(b)
any person who owns goods or a conveyance that is seized under this Act;
(c)
any person from whom money or security is received pursuant to section 117,
118 or 119 in respect of goods or a conveyance seized under this Act; or
(d)
any person on whom a notice is served under section 109.3 or 124.
…
130.
(1) Where a decision of the Minister under section 131 is requested under
section 129, the President shall forthwith serve on the person who requested
the decision written notice of the reasons for the seizure, or for the notice
served under section 109.3 or 124, in respect of which the decision is
requested.
(2)
The person on whom a notice is served under subsection (1) may, within thirty
days after the notice is served, furnish such evidence in the matter as he
desires to furnish.
(3)
Evidence may be given under subsection (2) by affidavit made before any
person authorized by an Act of Parliament or of the legislature of a province
to administer oaths or take affidavits.
131.
(1) After the expiration of the thirty days referred to in subsection 130(2),
the Minister shall, as soon as is reasonably possible having regard to the
circumstances, consider and weigh the circumstances of the case and decide
…
(c)
in the case of a penalty assessed under section 109.3 against a person for
failure to comply with subsection 109.1(1) or (2) or a provision that is
designated under subsection 109.1(3), whether the person so failed to comply.
…
(2)
The Minister shall, forthwith on making a decision under subsection (1),
serve on the person who requested the decision a detailed written notice of
the decision.
(3)
The Minister’s decision under subsection (1) is not subject to review or to
be restrained, prohibited, removed, set aside or otherwise dealt with except
to the extent and in the manner provided by subsection 135(1).
…
133.
(1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there
has been a contravention of this Act or the regulations in respect of the
goods or conveyance referred to in that paragraph, and, in the case of a
conveyance referred to in paragraph 131(1)(b), that it was used in the manner
described in that paragraph, the Minister may, subject to such terms and
conditions as the Minister may determine,
(a)
return the goods or conveyance on receipt of an amount of money of a value
equal to an amount determined under subsection (2) or (3), as the case may
be;
(b)
remit any portion of any money or security taken; and
(c)
where the Minister considers that insufficient money or security was taken or
where no money or security was received, demand such amount of money as he
considers sufficient, not exceeding an amount determined under subsection (4)
or (5), as the case may be.
(1.1) If the Minister
decides under paragraph 131(1)(c) that the person failed to comply,
the Minister may, subject to any terms and conditions that the Minister may determine,
(a) remit
any portion of the penalty assessed under section 109.3; or
(b) demand
that an additional amount be paid.
If an
additional amount is demanded, the total of the amount assessed and the
additional amount may not exceed the maximum penalty that could be assessed
under section 109.3.
(2) Goods
may be returned under paragraph (1)(a) on receipt of an amount of money of a
value equal to
(a) the
aggregate of the value for duty of the goods and the amount of duties levied
thereon, if any, calculated at the rates applicable thereto
(i) at the
time of seizure, if the goods have not been accounted for under subsection
32(1), (2) or (5) or if duties or additional duties have become due on the
goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6)
applies, or
(ii) at
the time the goods were accounted for under subsection 32(1), (2) or (5), in
any other case; or
(b) such lesser amount as the Minister may direct.
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12.
(1) Sous réserve des autres dispositions du présent article, ainsi que des
circonstances et des conditions prévues par règlement, toutes les
marchandises importées doivent être déclarées au bureau de douane le plus
proche, doté des attributions prévues à cet effet, qui soit ouvert.
…
129.
(1) Les personnes ci-après peuvent, dans les quatre-vingt-dix jours suivant
la saisie ou la signification de l’avis, en s’adressant par écrit, ou par
tout autre moyen que le ministre juge indiqué, à l’agent qui a saisi les
biens ou les moyens de transport ou a signifié ou fait signifier l’avis, ou à
un agent du bureau de douane le plus proche du lieu de la saisie ou de la
signification, présenter une demande en vue de faire rendre au ministre la
décision prévue à l’article 131 :
a)
celles entre les mains de qui ont été saisis des marchandises ou des moyens
de transport en vertu de la présente loi;
b)
celles à qui appartiennent les marchandises ou les moyens de transport saisis
en vertu de la présente loi;
c)
celles de qui ont été reçus les montants ou garanties prévus à l’article 117,
118 ou 119 concernant des marchandises ou des moyens de transport saisis en
vertu de la présente loi;
d)
celles à qui a été signifié l’avis prévu aux articles 109.3 ou 124.
…
130.
(1) Le président signifie sans délai par écrit à la personne qui a présenté
la demande visée à l’article 129 un avis des motifs de la saisie, ou des
motifs de l’avis prévu aux articles 109.3 ou 124, à l’origine de la demande.
(2)
La personne visée au paragraphe (1) dispose de trente jours à compter de la
signification de l’avis pour produire tous moyens de preuve à l’appui de ses
prétentions.
(3)
Les moyens de preuve visés au paragraphe (2) peuvent être produits par
déclaration sous serment faite devant toute personne autorisée par une loi
fédérale ou provinciale à faire prêter serment et à recevoir les déclarations
sous serment.
131.
(1) Après l’expiration des trente jours visés au paragraphe 130(2), le
ministre étudie, dans les meilleurs délais possible en l’espèce, les
circonstances de l’affaire et décide si c’est valablement qu’a été retenu,
selon le cas :
…
c)
le motif de non-conformité aux paragraphes 109.1(1) ou (2) ou à une
disposition désignée en vertu du paragraphe 109.1(3) pour justifier
l’établissement d’une pénalité en vertu de l’article 109.3, peu importe s’il
y a réellement eu non-conformité.
…
(2)
Dès qu’il a rendu sa décision, le ministre en signifie par écrit un avis
détaillé à la personne qui en a fait la demande.
(3)
La décision rendue par le ministre en vertu du paragraphe (1) n’est susceptible
d’appel, de restriction, d’interdiction, d’annulation, de rejet ou de toute
autre forme d’intervention que dans la mesure et selon les modalités prévues
au paragraphe 135(1).
…
133.
(1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b), que les
motifs d’infraction et, dans le cas des moyens de transport visés à l’alinéa
131(1)b), que les motifs d’utilisation ont été valablement retenus, peut, aux
conditions qu’il fixe :
a)
restituer les marchandises ou les moyens de transport sur réception du
montant déterminé conformément au paragraphe (2) ou (3), selon le cas;
b)
restituer toute fraction des montants ou garanties reçus;
c)
réclamer, si nul montant n’a été versé ou nulle garantie donnée, ou s’il
estime ces montant ou garantie insuffisants, le montant qu’il juge suffisant,
à concurrence de celui déterminé conformément au paragraphe (4) ou (5), selon
le cas.
(1.1)
Le ministre, s’il décide en vertu de l’alinéa 131(1)c) que la personne ne
s’est pas conformée, peut, aux conditions qu’il fixe :
a)
remettre à la personne une portion de la pénalité établie en vertu de
l’article 109.3;
b)
réclamer une somme supplémentaire.
Toutefois,
la totalité de celle-ci et de la somme établie ne doit pas dépasser le
montant maximal de la pénalité qui peut être établie en vertu de l’article
109.3.
(2)
La restitution visée à l’alinéa (1)a) peut, s’il s’agit de marchandises,
s’effectuer sur réception :
a)
soit du total de leur valeur en douane et des droits éventuellement perçus
sur elles, calculés au taux applicable :
(i)
au moment de la saisie, si elles n’ont pas fait l’objet de la déclaration en
détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou
(5), ou si elles sont passibles des droits ou droits supplémentaires prévus à
l’alinéa 32.2(2)b) dans le cas visé au paragraphe 32.2(6),
(ii)
au moment où elles ont fait l’objet de la déclaration en détail ou de la
déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), dans les
autres cas;
b)
soit du montant inférieur que le ministre ordonne.
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