Date:
20120418
Docket: T-2022-10
Citation: 2012 FC 451
Ottawa,
Ontario, April 18, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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TADELE WOROTA ADMASU
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Applicant
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and
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THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Minister of Public Safety
and Emergency Preparedness (MPSEP) refusing to grant relief from forfeiture
pursuant to section 29 of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, SC 2000, c 17 (Act).
For the reasons that follow the application is dismissed.
Facts
[2]
On
April 2, 2009, the applicant was stopped by a Canada Border Services Agency
(CBSA) officer as he was boarding a flight bound for Amsterdam and onwards
to Ethiopia. The
officer explained that individuals carrying currency in excess of $10,000
Canadian must report it to customs officials. According to the officer the
applicant reported he did not have currency in excess of that amount. However,
a subsequent search revealed that he was carrying Canadian, US and Euro
currency, with the equivalent value of $14,277.44 CDN. The officer concluded
there were grounds to suspect that the currency was the proceeds of crime and
therefore seized the currency. In reaching this conclusion, the officer noted:
a. The
applicant’s failure to report the currency;
b. His deceptive
behaviour and failure to hand over all currency when asked;
c. His inability
to explain where the money came from and what it was for;
d. His vague and
contradictory explanation of his travel plans and the fact that the plane
ticket was purchased by a third party the week before;
e. The fact that
the amount of currency in the applicant’s possession was not in keeping
with his income and savings.
[3]
On
April 6, 2009, the applicant requested Ministerial review of the forfeiture
pursuant to section 25 of the Act. He explained that he had been
heavily medicated due to his disability (a serious injury to his arm from
a workplace accident), which explained why he had not been more careful about
the currency or able to explain its origins. Medication consistent with this
explanation was uncovered in the search, although the officer did not consider
this in reaching her conclusion. He also explained that most of the money was
from friends who asked him to carry it to their relatives in Ethiopia. In his
request for review the applicant attached medical notes together with letters
from his friends in Vancouver that purported to account for portions of the
seized currency.
[4]
The
adjudicator wrote to the applicant explaining the reasons for the seizure and
invited him to send further information and documentation which would
establish the legitimate origin of the seized currency. The letter explained
that he must identify the link between the currency and its origins, and
establish its legality.
[5]
Over
the course of several months the applicant and the adjudicator communicated
with one another as the adjudicator tried to obtain the necessary information.
Despite requests for further documentation the applicant did not identify to
the satisfaction of the adjudicator the legitimate source of all the currency.
The applicant also failed to provide any evidence to support his claim that
some of the currency was from his savings.
[6]
The
adjudicator provided a case synopsis and recommendation to the Minister’s
Delegate, dated August 17, 2010. The adjudicator summarized the history of
events and found that a contravention of the Act had clearly occurred. The
adjudicator reviewed the information and documentation submitted by the
applicant. Since this information did not establish the legitimate origin of
all of the currency, the adjudicator recommended that the seized currency be
held as forfeit.
[7]
By
letter dated November 4, 2010, the Minister’s Delegate informed the applicant
of her decision that a contravention of the Act occurred and that the
currency would be held as forfeit. The letter reviewed the facts and the
grounds upon which the currency was seized. The letter also summarized the
submissions made by the applicant in support of returning the seized currency.
[8]
The
Minister’s Delegate noted that the applicant had failed to provide evidence of
the legitimate origin of all the seized currency. She also explained that as
the applicant’s bank statements had never shown any savings and his credit line
was used to the maximum, he had failed to explain how over $3000CND of the
currency could have come from his savings. As a result, the Minister’s
Delegate declined to return the seized currency.
Standard of
Review and Issue
[9]
The
issue raised by this application is whether the Minister’s decision is
reasonable: Sellathurai v Canada (Minister of Public
Safety and Emergency Preparedness), [2008] FCJ No 1267 (CA) at para 25.
[10]
The
standard of review is informed or framed, in part, by the statutory provision
allowing the Minister to grant relief from forfeiture. Section 29(1)(a)
of the Act does not allow for partial relief in respect of seized
currency:
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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;
[…]
(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.
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29. (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;
[…]
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.
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[11]
Section
29(1)(b) stands in contrast to section 29(1)(a), which allows for
partial relief in respect of a penalty:
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29. (1)
[…]
(b) decide that any penalty
or portion of any penalty that was paid under subsection 18(2) be remitted;
or
[…]
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29. (1)
[…]
b) soit restituer tout
ou partie de la pénalité versée en application du paragraphe 18(2);
[…]
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[12]
The
applicant suggests that since he provided evidence of the legitimate origin of
some of the currency, that portion should be returned to him. As the
respondent submits, the Act does not contemplate return of a portion of
the seized currency. Section 29(1)(a) states that the Minister may
decide “that the currency or monetary instruments…be returned” or “confirm that
the currency or monetary instruments are forfeited”. In contrast, that section
29(1)(b) permits the Minister to remit “any penalty or portion of any
penalty” [emphasis added].
[13]
The
Minister’s decision is, therefore, an all or nothing proposition. There is no
middle ground of partial relief from forfeiture. The reasonableness of the
decision must be considered in the light of this statutory constraint.
Analysis
[14]
Most
of the applicant’s submissions to the Court relate to the treatment he received
by the CBSA officers when the currency was seized at the airport. As to the
central question as to whether the Minister’s decision was unreasonable, the
applicant reiterates his allegation that the currency was given to him by
friends to deliver to their relatives upon arrival in Ethiopia. The
applicant also notes that while the adjudicator accepted that $5000 CND of the
currency had a legitimate origin, none of the currency was returned to him.
[15]
The
discretion to return seized currency under section 29 only arises once the
Minister has concluded that a contravention of section 12 of the Act
has occurred. Therefore, as the Federal Court of Appeal stated in Sellathurai
at para 34: “the starting point for the exercise of the Minister's
discretion is that the forfeited currency…is, for all legal purposes, property
of the Crown”.
[16]
The
Act does not stipulate the factors that the Minister must consider in
exercising his discretion. Given the objectives of the Act and the
provisions governing forfeiture, it is evident that the applicant must persuade
the Minister that the currency is not the proceeds of crime. As stated in Sellathurai
at para 50:
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.
[17]
The
Court of Appeal also emphasized, at para 53, that there may be various
approaches to this exercise of discretion, but so long as the discretion was
reasonably exercised, there is no basis to intervene: see Yang v Canada
(Minister of Public Safety and Emergency Preparedness), [2008] FCJ No 1321
(CA); Qasem v Canada (Minister of Public Safety and Emergency Preparedness),
[2008] FCJ No 1489 (CA) for applications of this principle.
[18]
In
light of the principles articulated by the Federal Court of Appeal I find that
the Minister’s decision in this case is reasonable. As the respondent submits,
the applicant was unable to satisfy the Minister that the currency had a
legitimate source and therefore it was open to the Minister to decline to
exercise his discretion to grant relief from forfeiture.
[19]
The
adjudicator made it clear to the applicant what was required of him. He had to
identify the source of all the currency and provide evidence to link the
currency to its legitimate origin (for example, income from employment). It
was insufficient to supply only statements from the individuals or to
substantiate the source of only portions of the currency. While evidence was
provided in respect of $7,200 USD and $1,200 CND, the origin of all funds was
not explained to the satisfaction of the Minister. In this regard, it must be
remembered that $9,908 USD, $1,500 CND and €150 EUR was seized. The
refusal to give relief from forfeiture was, in circumstances such as this where
a significant percentage of the funds could not be explained, reasonable.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial review be and is
hereby dismissed.
"Donald
J. Rennie"
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