Date
: 20071206
Docket:
T-2032-06
Citation:
2007 CF 1286
[ENGLISH
TRANSLATION]
Ottawa, Ontario, December 6, 2007
Present:
Justice Johanne Gauthier
BETWEEN:
THI
THUY NGUYEN
Applicant
and
MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Thi Thuy
Nguyen is requesting that the Court review the legality of a decision made by
the representative of the Minister of Public Safety and Emergency Preparedness , which confirms the
permanent forfeiture of the undeclared currency ($25,400.00 CAD and $7,060.00
USD) seized at Toronto’s Pearson International Airport on July 25, 2005
pursuant to section 29 of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, S.C. 2000, ch. 7, (the Act).
Background
[2]
In July 2005,
Ms. Nguyen, her spouse Van The Tran, and their five children were planning a
trip to Vietnam.. When they presented themselves to embark
on the plane, at Pearson airport, a customs officer asked Mr. Tran if he or any
member of his family possessed currency whose value was equal or superior to
$10,000. Mr. Tran answered no.
[3]
According to
the official reports from the various customs officers present during the
incident, Mr. Tran was apparently asked to show the officers all the currency
in his family's possession. Mr. Tran handed over his wallet and stated that his
wife also had some. The applicant, to whom the officer repeated the question,
took out a sheet that contained a wad of banknotes from her bag. The officer
then found other envelopes that contained currency in her bag. When she was
asked if she had more, the applicant shook her head as she answered negatively.
The officer then asked the applicant's husband to translate the question to be
sure she fully understood. When the officer was once again told that he did not
have any other currency, the officer then asked if Ms. Nguyen had money under
her clothes, especially near her waist. At that point, the applicant took
another wad of currency out from what appeared to be an inside pocket in her
undergarments.
[4]
Once again,
the officer asked whether they possibly had other banknotes, and he was told
that they did not. The officer then specifically asked whether the children had
money in their bags. Mr. Tran, after having a discussion with the applicant in
Vietnamese, answered negatively. Nonetheless, the officer decided to search one
of the bags that belonged to the young girls and found in it another sheet that
contained $10,000.00. This amount was eventually handed back to the family to
cover their travel-related fees.
[5]
The agents
went on to ask the applicant and her spouse a few questions to obtain further
details about the origin of this currency and their income. Mr. Tran stated
that only $20,000 belonged to the couple. According to him, it was savings
generated from the operation of their nail salon. Mr. Tran also stated that the
currency was issued by the bank, but he did not have a receipt. He then
corrected himself and stated that a certain amount of this money was actually
kept at their home.
[6]
The rest of
the money reportedly originated from members of the couple's family and friends
who wanted to send money to their families in Vietnam. In this regard, Mr. Tran
handed over a sheet of paper that indicated the total amount of currencies his
family received (names and amounts). However, these entries amounted to a total
of $2,750.00 only. When confronted about this, Mr. Tran declared that the rest
was from friends.
[7]
Since the
applicant and her spouse declared a total income of $20,000 (for the couple)
per year and that they had recently acquired a house for which they paid an
amount in excess of $85,000.00 ($245,000.00 X 35 percent) and also that the
monthly mortgage payments and the cost of one of their cars amounted to over
$1650.00, the officer asked them further questions to know how they managed to
pay for the seven plane tickets required for their vacations. The spouse of the
applicant then stated that a friend payed for them with this person's American
Express card.
[8]
The customs
officers also reported that Ms. Nguyen and her spouse were fairly evasive as
they were questioned. They even declined to provide the coordinates of their
nail salon and to confirm the name of the friend who paid for the plane
tickets.
[9]
Ms. Nguyen
and her spouse were then informed that their money would be seized for failure
to declare (sections 12 and 18 (1) of the Act) and that they were
forfeited without possibility of release (paragraph 18 (2) of the Act).
Officer Tone then gave them an information booklet and informed them of their
right to contest the forfeiture. The applicant and her family then chose not to
wait for an official receipt to be issued. They left for their month-long
vacation, satisfied with the promise that the official receipt would be mailed
to them.
[10] The wads of banknotes were
counted and amounted to the following: 242 $100 bills, 47 $100 bills (US
dollars), 25 $50 bills, 46 $50 bills (US dollars), and three $20 US bills,
representing $25,400 and $7060.00 USD.
[11] When this money was scanned with
an ion scanner, significant traces of drugs were found on one of the wads.
Finally, officer Tone received a call from the Canadian Police Information
Centre confirming that Mr. Tran was listed on their file.
[12] Pursuant to 19.1 of the Act,
the customs officers involved prepared a written report that described the
events surrounding the seizure made under paragraph 18(1) of the Act.
[13] On August 30, 2005, the
applicant's lawyer (who says he represents Ms. Nguyen) wrote to Terminal 1 of
Pearson airport, indicating that he was mandated with contesting the forfeiture
and that transporting the money of Canadian friends to their families in
Vietnam is a Vietnamese tradition. Though his letter indicated that some of the
family's letters were attached to corroborate this claim, nine small bills (2
½" x 3") were found in it instead, and most of them were written by
the applicant (eight). They contained the following information and were signed
by Ms. Nguyen and the other persons concerned:
"I, Thi Thuy Nguyen,
received the amount of (X) from (name of the sender), on July (X), 2005, to
send it to (person's name) in Vietnam."
______________ __________________
Ms.
Nguyen Name of the sender
[14] The total of the sums written on
these bills amounted to over $28,000.00 and $6,000.00 USD. It therefore seems as
if this version of the facts also differs from the original version given by
the applicant at Pearson airport to the effect that a total of $20,000 belonged
to them personally.
[15] On September 9, 2005, the
Seizures Unit of the Canada Border Services Agency informed Ms. Nguyen that the
Adjudications Division is responsible for her case and that an officer would
contact her soon. On September 23, 2005, Ms. Nguyen was informed that her
application for review had indeed been received, and she was given the name of
the adjudicator assigned to her case (Marc Gobeil) and his coordinates,
including his phone number. She was also informed that after receiving an
initial letter from Mr. Gobeil explaining the reasons for the seizure, she
would have time to present more information to support her application.
[16] This letter was followed by a
letter from Marc Gobeil dated September 29, 2005, in which he explains the
reasons for the seizure carried out pursuant to paragraph 18 (1), which are the
following: the non-declaration of banknotes equal or superior to $10,000.00, and
the discovery of these banknotes after the applicant had denied she was
carrying them. This money was concealed since it had been placed on her body
($10,000.00), in her bags ($9000.00), in the purse ($6,400.00 and $7060.00
USD), and in her daughter's bag ($10,000.00). Mr. Gobeil informed the applicant
that she had 30 days to provide all the additional information and documents
that she felt were likely to facilitate making a decision in her case.
[17] The
applicant chose not to provide any additional information, and adjudicator
Gobeil prepared a summary of the facts in the case based on the various reports
made by the customs officers involved and the correspondence that had already
been received from the applicant. This document is entitled "Case Synopsis
and Reasons for Decision." The adjudicator indicates that the evidence on
file establishes that the applicant failed to comply with the obligation to
declare the currency, in violation of paragraph 12(1) of the Act and
that the customs officer provided sufficient evidence to support the suspicions
that these banknotes were generated by criminal activities. This evidence is
described as follows:
- Traveling
across an international border with a large sum of money
- The
money was not declared
- Currency
concealed on person, in a carry on, in diaper
- Contradicting
statements
- $10,000
in small child’s purse
- Tran
and Nguyen reported $20,000 on income taxes last year combined
- They
were traveling with equivalent of one years income in cash for one trip
- Minimal
income between two people
- Both
parties work in a nail salon
- Indicated
they earned the money at the nail salon
- When
asked if he had a withdrawal receipt- he said no
- Recently
purchased house for $245,000 with 35% down
- Tran
indicated that only $20,000 of the money belonged to him
- Balance
of money was given to him by friends and family
- Had
a breakdown of cash given to him from people but only totaled $2750
- The
family’s airline tickets were purchased by a friend
- Asked
if this friend had given him any money, Tran was avoiding answering and
kept changing the subject
- CPIC
positive
- Contradicting
statements
He concludes the following:
"Be it decided that : [translation] … under section 29 of the [Act]
that the money or effects be retained (sic) as forfeit." This
report was initialed on February 2, 2005 by Jean-Marc Dupuis, the principal
program counselor.
[18] On February 24, 2006, Mr.
Proceviat, the manager of the Recourse Directorate, informed Ms. Nguyen of the
Ministerial decision, namely the confirmation of the seizure and the forfeiture
of the banknotes "without any (sic) terms of release." The
succinct reasons briefly given in this letter will be described later on during
the analysis of the arguments presented.
Legislative Regime
[19] Sections 18 and 29 of the Act read
as follows:
|
Proceeds of Crime
(Money Laundering) and Terrorist Financing Act
2000, c. 17
Seizure and forfeiture
18. (1) If an officer believes on reasonable grounds
that subsection 12(1) has been contravened, the officer may seize as
forfeit the currency or monetary instruments.
Return of seized currency or monetary instruments
(2) The officer shall, on payment of a penalty in the
prescribed amount, return the seized currency or monetary instruments to the
individual from whom they were seized or to the lawful owner unless the
officer has reasonable grounds to suspect that the currency or monetary
instruments are proceeds of crime within the meaning of subsection 462.3(1)
of the Criminal
Code or funds for use in the financing of terrorist
activities.
If there is a contravention
29. (1) If the Minister decides that subsection 12(1)
was contravened, the Minister may, subject to the terms and conditions
that the Minister may determine,
(a)
decide that the currency or monetary instruments or, subject to subsection
(2), an amount of money equal to their value on the day the Minister of
Public Works and Government Services is informed of the decision, be
returned, on payment of a penalty in the prescribed amount or without
penalty;
(b)
decide that any penalty or portion of any penalty that was paid under
subsection 18(2) be remitted; or
(c)
subject to any order made under section 33 or 34, confirm that the
currency or monetary instruments are forfeited to Her Majesty in right of
Canada.
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.
Limit on amount paid
(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.
2000, c. 17, s. 29; 2006, c. 12, s. 15.
|
Loi
sur le recyclage des produits de la criminalité et le financement des
activités terroristes
2000,
ch. 17
Saisie et confiscation
18. (1) S’il a des motifs raisonnables de croire qu’il y a eu
contravention au paragraphe 12(1), l’agent peut saisir à titre de
confiscation les espèces ou effets.
Mainlevée
(2) Sur réception du paiement de la pénalité réglementaire, l'agent
restitue au saisi ou au propriétaire légitime les espèces ou effets saisis sauf
s'il soupçonne, pour des motifs raisonnables, qu'il s'agit de produits de la
criminalité au sens du paragraphe 462.3(1) du Code criminel ou de
fonds destinés au financement des activités terroristes.
Cas de contravention
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;
b) soit restituer
tout ou partie de la pénalité versée en application du paragraphe 18(2);
c) soit confirmer
la confiscation des espèces ou effets au profit de Sa Majesté du chef du
Canada, sous réserve de toute ordonnance rendue en application des articles
33 ou 34.
Le ministre des Travaux publics et des
Services gouvernementaux, dès qu’il en est informé, prend les mesures
nécessaires à l’application des alinéas a) ou b).
Limitation du montant versé
(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.
2000, ch. 17, art. 29; 2006, ch. 12, art. 15.
|
All the other relevant provisions
are included in the annex.
[20]
The
legislative regime of the Act set out regarding seizures and forfeitures
when a violation of the obligation to declare—under section 12 of the Act—has
taken place, and the effect of these various provisions was commented on
extensively by this Court in various recent decisions, such as Tourki v.
Canada (Minister of Public Safety and Emergency Preparedness),
[2006] FCJ No. 52; Hamam v. Canada (Minister of Public Safety
and Emergency Preparedness) [2007] ACF 940; Ondre v. Canada (Minister of
Public Safety and Emergency Preparedness, [2007] FCJ No. 616; Dupre v.
Canada (Minister of Public Safety and Emergency Preparedness, 2007
FC 1177; Sellathurai v.
Canada (Minister
of Public Safety and Emergency Preparedness), 2007 FCJ No. 280; Yusufov
v. Canada (Minister of Public Safety and Emergency Preparedness), [2007]
FCJ No. 615; Thérancé v.
Canada (Minister of Public Safety and Emergency Preparedness) 2007 FC 136 ; and Dag
v. Canada (Minister of Public Safety and Emergency Preparedness)
2007 FCJ No. 591.
[21] It is unnecessary to add to the
complete summary made by the Federal Court of Appeal in Tourki, [2007]
F.C.J. No. 685, at paragraphs 23 to 31, but it is worth noting—as the Federal
Court of Appeal did, incidentally—that the obligation to declare represents the
cornerstone of the monitoring regime for the importation and exportation of
cash or monetary instruments.
[22] Furthermore, though the Act
sets out at paragraph 18 (2) the criterion that must guide the customs officer when
he or she decides whether it is necessary to confiscate the seized currency
pursuant to paragraph 18(1), the Act does not indicate what the Minister
must base his decision on under section 29. However, case law seems to
unanimously state that the test under section 18(2) also applies when it is
confirmed by the Minister under paragraph 29(1)(c), it being understood that
the Minister may have before him explanations and evidence that was not before
the officer.
[23] Furthermore, contrary to the
officer, who must set down the reasons that support his decision to perform a
seizure, the Act does not impose such a duty on the seizing officer
under paragraph 18(2) any more than it does on the Minister.
[24] In her factum, the applicant
seemed to contest the validity of the Minister's decision confirming the
seizure of the currency pursuant to section 27. At the hearing, her attorney confirmed
that only the decision made under section 29, namely the forfeiture without
terms of release, was the issue at hand. Additionally, the Court notes that
under section 30 (1), the Minister's decision under section 27 can solely be
contested by way of action (an appeal) (Tourki above). For the purposes
of this application, the Minister's decision confirming the seizure of the
currency is therefore final.
Analysis
[25] In her written representations,
the applicant essentially argues that the decision is not well founded for the
following reasons:
i)
The
Minister's delegate did not have any evidence of intent before him, an
essential element of the offence found in paragraph 462.31(1) of the Criminal
Code and an element to be considered to determine whether the applicant had
knowingly committed a violation of the Act.
ii)
The
Minister's delegate did not have any valid arguments to underpin his decision,
and he clearly either ignored or gave insufficient weight to the applicants'
explanations and evidence.
[26] At the hearing, the applicant
acknowledged that the offence found in paragraph 462.31(1) of the Criminal
Code was not relevant to the present case. Indeed, paragraph 18(2) refers
instead to paragraph 462.3(1) of the Code, which simply defines the
expression "proceeds of crime."
[27] As noted
by Justice Max Teitlebaum in Hamam at paragraph 24:
"It is
important to recall that the issue before the Court is not whether there are reasonable
grounds to suspect that the person who failed to declare the currency has
committed a crime but it is whether there are reasonable grounds to suspect
that the currency itself is proceeds of crime."
(See to the same
effect Ondre at paragraph 16; Dupre at paragraph 36; Sellathurai
at paragraph 66; Yusufov at paragraph 17; and Dag at paragraph
30).
[28]
In this
respect, the Federal Court of Appeal was crystal clear in Tourki at
paragraph 44: the forfeiture of the seized currency is a civil collection
mechanism intended for an article (undeclared currency), not a person.
[29]
Since no changes have been made against the applicant, the
Minister's delegate was not required to look into whether evidence of mens
rea (intention) existed when he made his decision under section 29 of the Act.
[30]
This therefore means that the well-foundedness of the application
lies entirely in the second argument raised by the applicant. As noted by the
Court at the hearing, in the context of a judicial review, the Court cannot simply
substitute its own analysis of the evidence for the decision maker's. We are
not dealing with an appeal, and the Court reviews decisions based on the
standard of review that applies to the issue raised.
[31] Though
the applicant does not address this point in detail in her written
representations, she submitted that the reasonableness standard applies to the
Minister's decision on the merits.
[32] As for the Minister, having
carried out a pragmatic analysis, he argues that it is rather the patent
unreasonableness standard that applies here.
[33] In many recent decisions relating
to applying the legal test set out in the Act at paragraph 18(2) and in
section 29 to the particular facts of a case, the judges carried out a
pragmatic and functional analysis, and they concluded that this mixed question
of law and fact had to be reviewed against the reasonableness standard in some
cases (Sellathurai at paragraphs 46 to 60; Dupre at paragraphs 18
to 23; Dag at paragraphs 17 to 26) and against the patent
unreasonableness standard in other cases (Therancé at paragraphs 13 to
20; Tourki at paragraphs 18 to 25; Yusufov at paragraphs 31 to
42; Ondre at paragraphs 35 to 47; Hamam at paragraphs 14 to 23).
[34] Though their conclusions differ,
an overwhelming majority of judges agree on the following points:
i)
The Act
includes a clear privative clause (section 24). Though it sets out a right to
appeal the Minister's decision to the Federal Court under section 27, it does
not set out such a right with respect to a decision made under section 29. This
suggests greater deference.
ii)
The
legislator himself determined the balance between the public interest and the
interests of citizens by adopting the provisions under review. Thus, the
Minister's role in this case does not involve a polycentric analysis. This
suggests less deference.
iii)
The issue of
knowing whether, in a particular case, there are reasonable grounds to suspect
that the undeclared currency represents the proceeds of crime is a mixed
question of law and fact that suggests a certain degree of deference.
[35] It is with respect to the Court's
expertise that the judge's analyses differ. In this case, it seems rather clear
to me that through the assessment of evidence such as the currency denominations,
or even the purchase of a ticket by a third party, whose coordinates individuals
refuse to divulge (Gregory v. Canada, 2002 FCJ no. 523 at paragraph 13),
the Minister's delegates at the Recourse Directorate, who have been specially
trained by the Royal Canadian Mounted Police (Sellathurai at paragraph
49), have greater expertise than the Court. This suggests a certain level of
deference.
[36]
In light of
the preceding, the Court is satisfied that it must apply the reasonableness
standard to determine whether, in this case, the minister's decision to confirm
the seizure contains a reviewable error. For the benefit of the applicant, it
is important to reiterate what this standard implies. In Law Society of New
Brunswick v. Ryan [2003] 1 S.C.R. 247, the Supreme Court of Canada explained what it
implies as follows:
54
How will a reviewing court know whether a decision is reasonable given that it
may not first inquire into its correctness? The answer is that a reviewing
court must look to the reasons given by the tribunal.
55 A
decision will be unreasonable only if there is no line of analysis within the
given reasons that could reasonably lead the tribunal from the evidence before
it to the conclusion at which it arrived If any of the reasons that are
sufficient to support the conclusion are tenable in the sense that they can
stand up to a somewhat probing examination, then the decision will not be
unreasonable and a reviewing court must not interfere (Southam, para
56). This means that a decision may satisfy the reasonableness standard if it
is supported by a tenable explanation even if this explanation is not one that
the reviewing court finds compelling (see Southam, at para 79).
56 This
does not mean that every element of the reasoning given must independently pass
a test for reasonableness. The question is rather whether the reasons, taken as
a whole, are tenable as support for the decision. At all times, a court
applying a standard of reasonableness must assess the basic adequacy of a
reasoned decision remembering that the issue under review does not compel one
specific result Moreover, a reviewing court should not seize on one or more
mistakes or elements of the decision which do not affect the decision as a
whole.
[37] Since the applicant placed
special emphasis on this argument at the hearing, it is firstly necessary to
consider whether—as she claims—the Minister's delegate did not consider these
explanations or whether this individual did not sufficiently consider them.
[38] Unless there is evidence to the
contrary, the decision maker is presumed to have considered all the material
before him or her (Florea v. Canada (Minister of Employment and Immigration)
1993 F.C.J. No.598 (FCA)), thus the simple fact that the delegate did not
set down these explanations in the letter he wrote on February 24, 2006,
provides no basis to conclude that the Minister's delegate did not take it into
consideration.
[39] Furthermore, it is evident in
this case that adjudicator Gobeil's report was before Mr. Proceviat. A plain
reading of the case law indicates that preparing such a document is an integral
part of the decision-making process under section 29. On page 4 of his summary,
adjudicator Gobeil accurately and properly describes Ms. Nguyen's explanations.
Furthermore, the structure of the document indicates that the adjudicator first
considered the reasons given in the reports then the applicant's explanations
before concluding that the officer had submitted sufficient evidence to
underpin the suspicions that the currency represented the proceeds of crime.
[40] In her written representations,
the applicant submitted that she did not attempt to conceal the currency to
deceive the customs officers, but rather to conceal them as a precautionary
measure to prevent them from being lost or stolen.
[41] In her affidavit in support of
the application, the applicant addresses this issue; however, she does not
indicate that either the customs officer at the airport or the Minister were
provided with such an explanation as part of the application for review. The
reports from the customs officer did not include this explanation for the
letter dated August 30 either.
[42] In the context of a judicial
review, the Court cannot consider information that was not before the decision
maker. In this case, there is no evidence to the effect that the decision maker
should have considered this explanation.
[43] At the hearing, the applicant
pointed out that neither she nor her spouse fully understand English or French.
Once again, there was no evidence or allegation to this effect before the Minister's
delegate. Even the applicant's latest affidavit does not address it. The
applicant and her husband are Canadians. They have been living and working in
Canada for years. Nothing indicates that they verbalized the need for an
interpreter at the airport. Furthermore, it is clear that the officers gave Mr.
Trans the time and the opportunity to translate their requests and discuss them
with the applicant.
[44] Thus, this explanation
is hardly plausible with respect to the failure to declare the currency in her
daughter’s bag because the applicant was offered many opportunities to declare
all the currency the family was carrying.
[45] This alleged language-related
problem cannot explain the contradictions in the explanations that were
actually provided by the applicant and her spouse with respect to the origin of
the currency ($20,000 in savings) because the documents that were provided in
August tend to establish that almost all of the seized currency was given to
them by third parties.
[46] The language problem also cannot
explain why, after having consulted a judicial counsellor in August, and even
afterward, as part of the review, she did not present the Minister with more
detailed explanations underpinned by one or more sworn statements describing
more precisely the relationships with the various third parties who were
presumably involved, how they had obtained this currency, and why the members
of her community do not use the banking system to transfer such considerable
sums.
[47] In the circumstances and considering
the contents of and the low probative value of the limited explanations and
meagre evidence provided by the applicant on August 30, 2005, the applicant has
failed to overcome the burden of convincing the Court that the Minister's
delegate did not consider her explanations.
[48] What remains to be done is to
consider whether the reasons underpin the decision.
[49] But before addressing this last
point, we must now consider the limited reasons in the letter dated February
24, 2006.
[50] As I stated earlier, Mr.
Proceviat endorsed adjudicator Gobeil's conclusion. First, he indicates the
following in his letter: [translation] "A seizure without terms of release
aligns with the Agency's guidelines." The Court's understanding is that
according to the Minister's delegate, the customs officer who carried out the
seizure complied with the test set out in the Act, namely the existence of
reasonable grounds to suspect that the currency indeed represents the proceeds
of crime.
[51] The Minister's delegate then adds
the following: [translation] "In this case, there are reasonable grounds
to believe that the money represented the proceeds of crime. The reasons
include the disparity between the applicant's job and the salary she earns, the
concealed currencies, the unused option to perform an electronic funds
transfer, and the denominations of the seized currency (sic).”
[52] Though the applicant did not
raise this question in her written or oral representations, the Court invited
the parties to indicate to it whether, according to them, the reference in the
letter [translation] "to reasonable grounds to believe" (paragraph
(18(1)) rather than to [translation] "reasonable grounds to suspect”
(paragraph 18 (2)) could have an impact of any kind on the validity of the
decision in the case. This point did not generate controversy, and the Court is
satisfied that the answer is no. First, as stated by the Supreme Court in R.
v. Monney [1999] 1 SRC 652, [1999] ASC no. 18, at paragraph 49, the
existence of reasonable grounds to suspect is a standard that can be considered
to be a less stringent standard than the one based on the existence of
reasonable and probable grounds to believe, even if the latter is included in
the former.
[53] Second, as I stated earlier,
adjudicator Gobeil refers very clearly to the test under section 18 (2), and
the Minister's delegate notes that the seizure is in accordance with the
Agency's guidelines.
[54] In his comments on the
reasonableness of the grounds, the Minister refers not only to the four items
of evidence or factors described in the letter dated February 24, 2006, but
also to those described by adjudicator Gobeil as elements that justify the
confirmation of the seizure (see paragraph 17 above).
[55] He submits that the list in the
letter dated February 24, 2006, is not exhaustive because Mr. Proceviat uses
the word "include" and that in light of the comments made by
the Supreme Court of Canada in Baker v. Canada (Minister of
Immigration, Refugees and Citizenship), [1999] 2 SRC 817, [1999] ACS no.
39, especially in paragraph 39, Mr. Proceviat's letter must be read jointly
with the document of adjudicator Gobeil, who—as his title indicates—is one of
the reasons for the decision.
[56] In a context that is more similar
to the one before the Court today, the Federal Court of Appeal, in Sketchley
v. Canada (Attorney General), [2005] FCJ no. 2056, from paragraphs 36 to
39, also affirms that the investigator's report, which includes the
Commission's recommendation on human rights, can be considered to be included
among the Commission's reasons during the judicial review when the Commission
adopts the investigator's recommendation and it provides succinct reasons.
[57] Furthermore, the court has not
hesitated thus far to refer to the synopsis prepared by the adjudicator as part
of the judicial review of the decisions made by the Minister's delegates under
section 29 of the Act.
[58] The Court is satisfied that it
must also consider the adjudicator's report during its review of the reasons
behind the decision made by the Minister's delegate in this case. However, to
ensure that it does not spark controversies, the Court used a two-stage
assessment process to ascertain the validity of the decision: The first
assessment took account of all the reasons listed in the letter dated February
24 and in adjudicator Gobeil's, while the second assessment solely took account
of the four items of evidence specifically described in the letter dated
February 24, 2006.
[59] As stated by the Supreme Court in
R. v. Jacques, [1993] 3 S.C.R. 312 at paragraph 24, and in Monney,
above at paragraph 50, the factors considered by the Minister's delegate and
which served as a basis for his conclusion must not be assessed separately. It
is the cumulative effect of various factors considered by the decision maker
that must be considered.
[60] After a rather extensive analysis
of the case and considering the letter dated August 30, 2005, the Court is
satisfied that the Minister's delegate had reasonable grounds to suspect that
the seized currencies represented the proceeds of crime and that the reasons
put forward underpin the decision to confirm the seizure.
[61] To reach this conclusion, and
taking into consideration that the applicant's explanations and the evidence
she provided are insufficient and tenuous, the Court did not even have to
consider the nature of the burden of proof which lay on her during the
Minister's review, and it did not apply the severe test established by the
court in Sellathurai.
[62] Even by limiting the analysis to
the four factors described in the letter dated February 24, the Court is
satisfied that the decision is reasonable.
[63] After having heard all the
parties' representations, the Minister offered a discontinuance without costs
to the applicant, who turned it down. In these circumstances, the Court has no
reason not to award the costs requested by the Minister.
[64] The application is thus dismissed
with costs in the cause.
JUGDMENT
THE
COURT ORDERS AND ADJUDGES that
1. The application for
judicial review is dismissed with costs in the cause.
"Johanne
Gauthier"
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