Date: 20051024
Docket: T-1118-04
Citation: 2005 FC 1437
Ottawa, Ontario, October 24, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
GJOVALIN DOKAJ
Plaintiff
and
MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR ORDER AND ORDER
[1] 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.
[2] The 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
[3] The 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.
[4] The 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".
[5] 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".
[6] Mr. 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]".
[7] 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
[8] The 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
[9] 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. 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.
(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.
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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).
(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).
(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.
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THE POSITIONS OF THE PARTIES
[10] The 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.
[11] 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
[12] The 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.
[13] Put 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).
[14] 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.
[15] For 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.
[16] 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.
[17] Mr. 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.
[18] 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).
[19] Construction 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.
[20] 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.
[21] Regarding 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.
[22] 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
[23] In 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:
26 In 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".
27 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">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"...
28 Other 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...
29 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.
(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.
[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.
[30] 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.
[31] Section 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 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 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.
[32] The 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).
[33] 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.
[34] With 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.
[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.
[36] 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.
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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. 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).
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[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).
[38] 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).
[39] I 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: 2005 SCC 51">Medovarski v. Canada (Minister of Citizenship and Immigration) 2005 SCC 51.
[40] 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.
[41] A 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.
[42] 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.).
[43] 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.
[44] Justice 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.
[45] 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.
[46] The 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.
[47] 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.)).
[48] Finally, 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.
[49] To 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
[50] Parliament chose not to insert such language and it is not for the Court to override Parliament's intent.
[51] In 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"
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