Date: 20090316
Docket: T-1117-08
Citation: 2009 FC 264
BETWEEN:
ZAKER AYOBIE
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
GIBSON
D. J.
Introduction
[1]
There
reasons follow the hearing at Toronto on the 11th of March, 2009 of
an application for judicial review of a decision of a Minister’s Delegate,
pursuant to sections 27 and 29 of the Proceeds of Crime (Money Laundering)
and Terrorist Financing Act (The
“Act”). The substance of the decision, which was supported by reasons,
is in the following terms:
After considering all of the
circumstances, I have decided, under the provisions of section 27 of the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act, that there has
been a contravention of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act or the Regulations with respect to the currency or
monetary instruments which were seized.
Under the provisions of section 29 of the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the
seized currency shall be held as forfeit.
In sum, the decision under review confirmed
the seizure of substantial funds from the Applicant that had taken place at Vancouver
International Airport on the 2nd
of September, 2007 and confirmed the forfeiture of those funds without
reduction pursuant to the discretion granted by section 29 of the Act.
Background
[2]
The
Applicant was born and brought up in Afghanistan. He fled Afghanistan in 1993. He
affirmed:
My upbringing in Afghanistan where I was born was harsh to say the
least. I was taught to be suspicious and careful of authority particularly
Government Officials and local police. My country is very corrupt. My father
lost his life savings when [his] money was “frozen” in a bank account which was
then seized by Taliban authority when they came to power in Afghanistan. Therefore as a matter of
necessity and to avoid losing everything when travelling we would often conceal
valuables and money about ourselves and in our belongings. This was common
practice and a hard habit to break. I continue to be suspicious of authority
and banks despite having not lived in Afghanistan
for nearly 14 years. I use banks but will never forget what happened to my
father…
[3]
The
Applicant lived in Russia for approximately 2 years after leaving Afghanistan. He then
moved on to Germany where he
lived and worked for some 5 years. On leaving Germany, he claims
to have left significant savings in the care of a former employer and respected
member of the Afghan community in Germany.
[4]
On
leaving Germany in 2000, the Applicant travelled to New Zealand where he has
lived and worked at all times relevant to this matter. He is a citizen of New Zealand and is
married with at least one child.
[5]
The
Applicant has a brother and two sisters who live with their families in Canada. The
Applicant claims that, at his request, his brother flew from Canada to Germany to collect
the funds that the Applicant had left there. The Applicant further claims that
his brother returned to Canada with those funds, without declaring them on
re-entering Canada, and that,
by the summer of 2007, those funds amounted to some 7000 Euros. The Applicant
further claims that, additionally, by the summer of 2007, his brother was
indebted to him in the amount of some $9000 in U. S. funds.
[6]
In
August of 2007, the Applicant travelled from New Zealand to Canada,
carrying with him some $43,000 in U.S. funds which he did not
declare on entering Canada. His declared purposes in coming to Canada were to
research the possibility of buying a home and obtaining employment here,
visiting his family members and obtaining the funds being held here for him by
his brother together with the proceeds of his loan to his brother.
[7]
The
Applicant determined not to purchase a home in Canada.
[8]
On
the 2nd of September, 2007, the Applicant found himself at Vancouver
International Airport on
his way back to New Zealand via Hawaii. On being asked by
American customs authorities whether he was carrying funds or monetary
instruments to a value in excess of $10,000.00, the Applicant responded that he
was not. He and his baggage were closely examined by American and Canadian
customs authorities. He was found to have secreted in his baggage and on his
person monies amounting to some $70,000.00 Canadian. Canada customs
seized the monies as forfeited.
The Legislative Scheme
[9]
Section
3 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act sets
out the object of the Act. It reads as follows:
|
Object
of Act
3. The
object of this Act is
(a) to implement specific measures to detect and deter
money laundering and the financing of terrorist activities and to facilitate
the investigation and prosecution of money laundering offences and terrorist
activity financing offences, including
(i)
establishing record keeping and client identification requirements for
financial services providers and other persons or entities that engage in
businesses, professions or activities that are susceptible to being used for
money laundering or the financing of terrorist activities,
(ii)
requiring the reporting of suspicious financial transactions and of
cross-border movements of currency and monetary instruments, and
(iii)
establishing an agency that is responsible for dealing with reported and other
information;
(b) to respond to the threat posed by organized crime by
providing law enforcement officials with the information they need to deprive
criminals of the proceeds of their criminal activities, while ensuring that
appropriate safeguards are put in place to protect the privacy of persons
with respect to personal information about themselves; and
(c) to assist in fulfilling Canada’s international commitments to
participate in the fight against transnational crime, particularly money
laundering, and the fight against terrorist activity.
|
Objet de la Loi
3.
La présente loi a pour objet :
a) de mettre en oeuvre des mesures visant à détecter
et décourager le recyclage des produits de la criminalité et le financement
des activités terroristes et à faciliter les enquêtes et les poursuites
relatives aux infractions de recyclage des produits de la criminalité et aux
infractions de financement des activités terroristes, notamment :
(i) imposer des obligations de tenue de documents et d’identification des
clients aux fournisseurs de services financiers et autres personnes ou
entités qui se livrent à l’exploitation d’une entreprise ou à l’exercice
d’une profession ou d’activités susceptibles d’être utilisées pour le
recyclage des produits de la criminalité ou pour le financement des activités
terroristes,
(ii) établir un régime de déclaration obligatoire des opérations
financières douteuses et des mouvements transfrontaliers d’espèces et
d’effets,
(iii) constituer un organisme chargé de l’examen de renseignements,
notamment ceux portés à son attention en application du sous-alinéa (ii);
b) de combattre le crime organisé en fournissant aux
responsables de l’application de la loi les renseignements leur permettant de
priver les criminels du produit de leurs activités illicites, tout en
assurant la mise en place des garanties nécessaires à la protection de la vie
privée des personnes à l’égard des renseignements personnels les concernant;
c) d’aider le Canada à remplir ses engagements
internationaux dans la lutte contre le crime transnational, particulièrement
le recyclage des produits de la criminalité, et la lutte contre les activités
terroristes.
|
[10]
Section
12 of the Act provides that persons or entities, including persons such
as the Applicant, shall report to a Customs Officer the importation or
exportation of currencies or monetary instruments of a value equal to or
greater than a prescribed amount which, at the 2nd of September,
2007, was $10,000.00. It was not in dispute before the Court that the Applicant
contravened section 12 of the Act.
[11]
Pursuant
to subsection 18 (2) the Customs Official determined that there were reasonable
grounds to suspect that the currency seized was proceeds of crime or funds for
terrorist financing and thus, the seized currency remained forfeited.
[12]
Section
25 of the Act provides for a review of the forfeiture by the Minister or
his or her delegate where a request for a review is made within a specified
delay period. Such a request was made by the Applicant within the time provided.
That request led to the decision here under review.
The Issues
[13]
In
the Memorandum of Fact and Law filed on behalf of the Applicant in this matter,
the issues are stated in the following terms:
19. What is the standard of review?
20. What is the appropriate test
for confirming forfeiture?
21. What is the burden on the
Applicant under this test?
22. Did the Minister
fail to exercise his discretion to consider returning some or all of the money?
23. Was there a breach
of natural justice because Mr. Ayobie does not speak English well and did not
have an interpreter when the money was seized?
[14]
The
“natural justice” issue was not pursued before the Court.
[15]
In
the Memorandum of Fact and Law filed on behalf of the Respondent, the issues
raised on behalf of the Applicant, leaving aside the “natural justice” issue,
are summarized as follows:
Was the decision of the Minister’s
Delegate to confirm the forfeiture of the currency seized from the Applicant
reasonable?
Analysis
[16]
In
Yang v. The Minister of Public Safety, Justice Décary, writing for the majority
and after noting that the appeal there before the Court was “…yet another
appeal in recent months pertaining to the interpretation of the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act…”, wrote at paragraph 9 of
his reasons:
Very recently, this Court has held that the
standard of review with respect to the exercise of the Ministerial discretion
under section 29 of the Act was that of reasonableness…The Court also had the
occasion, a few days ago, to examine the nature of a section 29 decision and
the basis upon which the Minister exercises his discretion…
[citations omitted]
[17]
For
the foregoing, Justice Décary cited, in addition to Dag v. Canada (Minister
of Public Safety and Emergency Preparedness) and Sellathurai v. Canada (Minister of
Public Safety and Emergency Preparedness).
[18]
Justice
Décary then went on to quote paragraphs 25, 36 and 49, 51 of the Reasons of
Justice Pelletier, for the Court, in Sellathurai. I repeat those
paragraphs here:
25.
The question of the standard of review of the Minister's decision under section
29 was settled by this Court in Dag v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FCA 95, 70 Admin. L.R. (4th) 214,
at paragraph 4 (Dag), where it was held that the standard of review of
the Minister's decision under section 29 was reasonableness. Consideration of
the issue of the standard of review of the decision as to the standard of proof
to be met by the applicant will, for reasons which will become apparent, be
deferred to a later point in these reasons.
…
36.
It seems to me to follow from this that the effect of the customs officer's
conclusion that he or she had reasonable grounds to suspect that the seized
currency was proceeds of crime is spent once the breach of section 12 is
confirmed by the Minister. The forfeiture is complete and the currency is
property of the Crown. The only question remaining for determination under
section 29 is whether the Minister will exercise his discretion to grant relief
from forfeiture, either by returning the funds themselves or by returning the
statutory penalty paid to secure the release of the funds.
…
49.
Where the Minister repeatedly asks for proof that the seized currency has a
legitimate source, as he did in this case, it is a fair conclusion that he made
his decision on the basis of the applicant's evidence on that issue. The
underlying logic is unassailable. If the currency can be shown to have a
legitimate source, then it cannot be proceeds of crime.
50.
If, on the other hand, the Minister is not satisfied that the seized currency
comes from a legitimate source, it does not mean that the funds are proceeds of
crime. It simply means that the Minister has not been satisfied that they are
not proceeds of crime. The distinction is important because it goes directly to
the nature of the decision which the Minister is asked to make under section 29
which, as noted earlier in these reasons, is an application for relief from
forfeiture. The issue is not whether the Minister can show reasonable grounds
to suspect that the seized funds are proceeds of crime. The only issue is
whether the applicant can persuade the Minister to exercise his discretion to
grant relief from forfeiture by satisfying him that the seized funds are not
proceeds of crime. Without precluding the possibility that the Minister can be
satisfied on this issue in other ways, the obvious approach is to show that the
funds come from a legitimate source. That is what the Minister requested in
this case, and when Mr. Sellathurai was unable to satisfy him on the
issue, the Minister was entitled to decline to exercise his discretion to grant
relief from forfeiture.
51. This leads to the question which
was argued at length before us. What standard of proof must the applicant meet
in order to satisfy the Minister that the seized funds are not proceeds of
crime? In my view, this question is resolved by the issue of standard of
review. The Minister's decision under section 29 is reviewable on a standard of
reasonableness. It follows that if the Minister's conclusion as to the
legitimacy of the source of the funds is reasonable, having regard to the
evidence in the record before him, then his decision is not reviewable.
Similarly, if the Minister's conclusion is unreasonable, then the decision is
reviewable and the Court should intervene. It is neither necessary nor useful
to attempt to define in advance the nature and kind of proof which the
applicant must put before the Minister.
[19]
Justice
Décary then concluded with respect to the issues that were before him, and that
are all of the issues here before the Court, in the following terms:
The Minister, quite properly, sought to
obtain from the Appellant [here the Applicant] additional information
respecting the legitimacy of the funds. He was not satisfied that any credible
one had been presented. He came to the conclusion that the Appellant had
“failed to provide any legitimate documentary evidence or information to
demonstrate that the funds were legitimately obtained” and that “Reasonable
suspicion still stands”….The Minister not having been satisfied, to use the
words of Pelletier J.A. at para. 50, “that the seized funds are not proceeds of
crime”, it was reasonably open to him to confirm the forfeiture. [one citation
omitted]
[20]
Precisely
the same must be said here.
[21]
Justice
Ryer, in Reasons concurring with the result arrived at by Justice Décary,
added:
I wish to add that, in my view, the
Minister, in exercising his discretion under subsection 29 (1), was not
required to consider the factors put forward by the appellant; namely:
(a) whether confirming the forfeiture of
the funds in issue
would serve the public interest or
the purposes of the Act;
(b) the likely reason that
the individual contravened subsection 12 (1) of the Act;
(c) the impact of the confirmation of
the forfeiture on the
individual.
[22]
Once
again, precisely the same must be said here.
Conclusion
[23]
For
the foregoing very brief reasons, and particularly in light of the recent
authorities from the Federal Court of Appeal, cited, this application for
judicial review was dismissed by Order dated the 11th of March,
2009. In the exercise of my discretion, I provided no Order as to costs.
“Frederick E. Gibson”
Ottawa,
Ontario
March
16, 2009
Email this Content