Date: 20110621
Docket: T-2105-10
Citation: 2011 FC 734
Ottawa, Ontario, June 21,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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FRISTHA THOMAS
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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]
This
is an application for judicial review under section 135 of the Customs Act,
R.S.C., 1985, c. 1 (2nd Supp.) (the Act) of a decision rendered by the Minister
of Public Safety and Emergency Preparedness (the Minister), in which it was
found that a contravention under section 131 of the Act occurred when the
applicant failed to report jewellery upon her arrival to Canada. A penalty
under section 133 of the Act was assessed in the amount of 30% of the value for
duty for the jewellery. The applicant is a self- represented litigant.
[2]
For
the reasons summarized below, this application for judicial review shall
be dismissed.
[3]
The
facts are adapted from the background provided in the respondent’s memorandum.
[4]
The
applicant arrived with her two sisters at the Calgary
International Airport on January
20, 2010, from Afghanistan.
[5]
Upon
arrival, the applicant and her sisters declared zero value for goods purchased
and received abroad.
[6]
Customs
sent the applicant for a secondary screening and the Border Services Officer
(BSO) observed that the applicant was wearing several pieces of jewellery.
[7]
The
BSO informed the applicant that the information on her declaration card would
be verified. The BSO emphasized that the focus would be on “goods purchased
and/or received on this trip”.
[8]
The
applicant stated again that they did not purchase anything.
[9]
The
applicant was then asked to place all the jewellery she was wearing on the
counter. The applicant then took off six bangles and placed them on the
counter. The BSO then ask her to remove her necklace and hearings. The BSO
then ask if the applicant had any more jewellery. The applicant removed two
gold bangles from underneath her left sleeve.
[10]
She
also had a bracelet with white stone and admitted that she had purchased it in Kabul.
[11]
The
BSO also remembered her wearing three rings on her left hand and asked her to
place the additional two rings on the counter. The applicant needed to be
asked a second time before producing both additional rings from her handbag.
She informed the BSO that those two additional rings were sent by her mother,
who was still in Afghanistan, for the applicant’s two other sisters in Calgary.
[12]
All
of the applicant’s jewellery was seized for appraisal with the exception of the
gold bracelet with white stones which was seized for failure to report (the
“bracelet”). The applicant informed the BSO that the bracelet was purchased in
Afghanistan for the
equivalent of approximately $423.88 (Canadian dollars). The BSO accepted the
applicant’s valuation of this bracelet and assessed a penalty of $127.16,
constituting 30% of the bracelet’s value. The applicant paid this sum and
Customs returned the bracelet to her.
[13]
Customs
sent the remaining eight items of jewellery (the “jewellery”) for appraisal.
It was appraised at $17,785.00. Based upon the total appraised value, Customs
determined the value for the duty was $7,825.40 and the amount required for the
return for the seized jewellery was $2,347.62 (30% of the value for duty).
[14]
Upon
being notified of the amount required for return of the jewellery, the
applicant requested a decision of the Minister pursuant to section 129 of the
Act.
[15]
Customs
notified her of the reasons for the seizure action on March 2, 2010 and gave
her 30 days to provide further evidence.
[16]
The
applicant provided some receipts to the Minister. The Minister had these
receipts translated and provide a copy of the translation to the applicant.
The Minister gave the applicant further time to provide more submissions.
[17]
The
Minister rendered a decision on November 22, 2010 and decided that under
the provisions of section 131 of the Act, there had been a contravention
of the Act or the Regulations in respect of the goods that were seized.
The Minister also decided that under the provisions of section 133 of the Act,
the amount of $127.16 received for the return of the seized bracelet was being
held as forfeit. He also informed the applicant that the other goods under
seizure (items 1 to 8 on the Statement of Goods Seized) be returned to her upon
receipt of an amount of $2,347.62 which amount would be held as forfeit. If
the release of the goods was not taken on the above terms within 90 days they
would be forfeited and disposed of. It is that decision which is the subject
of the present application for judicial review.
[18]
In
arriving at this decision, the Minister took into account that the applicant
and her two sisters made a “nil” declaration at the Airport. He noted
that when the applicant was informed that her declaration would be verified,
she maintained her “nil” declaration. Furthermore, he also noted that when the
applicant was repeatedly asked to remove all the jewellery that she was
wearing, she admitted that she had purchased a bracelet with white stones on
the trip and that some of the other jewellery was given to her by her mother to
bring to Canada for her
other sisters living in Calgary. The applicant then
stated that the necklace and six bracelets that she was wearing also belonged
to her mother (who was in Afghanistan) long before the
applicant’s trip.
[19]
The
Minister also considered the applicant’s explanation that she did not know what
the declaration cards were for and how to fill them out. She alleged that she
did not know that personal jewellery had to be reported and that she thought
that only commercial and business goods had to be declared. However, the
Minister also took into account that it was explained to the applicant that all
goods imported into Canada had to be declared to CBSA. Given that the
applicant failed to report the jewellery in question, the Minister concluded
that a contravention under section 131 of the Act did occur.
[20]
With
regards to the applicant’s argument that some of the jewellery was actually
taken with her from Canada to Afghanistan, the Minister considered this
argument, but found that she was not able to provide evidence of lawful
importation or Canadian origin of the jewellery. This determination was made based
on the Minister’s examination of the submitted receipts. The receipts were
found not to be specific enough to draw any solid conclusions in favour of the
applicant (Minister’s decision, page 2).
[21]
The
Minister indicated at the end of his decision that in order to appeal the
decision made pursuant to section 131, the applicant could file an appeal by
way of an action in the Federal Court in accordance with section 135 of the
Act.
[22]
The
Minister also indicated that in order to contest the decision made pursuant to
section 133 of the Act, the applicant can file an application for judicial
review under section 18.1(1) of the Federal Courts Act which she did.
[23]
At
the hearing, the Court explained to the applicant that if she wished to suspend
the present application, the Court would entertain an oral motion to grant an
extension of time to the applicant so she could serve and file an action to
appeal the Minister's decision concerning the contravention of the Act.
[24]
The
Court also explained to the applicant that under the present application it
could not consider any of the remedies requested such as compensation for being
treated unfairly.
[25]
Although
satisfied with the explanations by the Court that two decisions had been made
by the Minister, the applicant stated that she wished only to proceed with the
application for judicial review on the reasonableness of the assessment of the
penalty imposed by the Minister.
[26]
After
a careful review and analysis of the documents filed by both parties, their
written and oral submissions, the Court cannot qualify the assessment of the
penalty as unreasonable Dunsmuir v New Brunswick [2008] 1SCR 190 para 47.
[27]
The
documents (Certified Record, pages 21 to 31) provided by the applicant to
contradict the assessment obtained by the Minister from a gemologist (Certified
Record, page 49) are deficient, vague and unreliable so that they could be
considered as estimates of the jewellery seized.
[28]
At
the hearing, the applicant maintained that the jewellery in question did not
surpass the amount of $2,401.00. The Court is unable to accept that estimation
because it is not supported by any documentation.
[29]
The
Court understands that it is quite difficult for the applicant to provide
receipts or documentation for jewelleries that were bought many years ago but,
in a case such liked this, it has no choice but to accept the estimate filed by
the Minister.
[30]
The
applicant states that she had asked the Minister to provide her with the
jewellery so that an independent estimate could be obtained. Unfortunately,
she did not file a motion for such a request.
[31]
The
Court cannot also force the Minister to accept an offer that was made prior to
the hearing by the applicant.
[32]
Finally,
the Court determines that there was no breach of procedural fairness in this
case. The applicant was notified in due course that she was in contravention
of the Act, was made aware of why and how she could contradict or contest the
Minister's findings. She was given ample time to provide reliable documents or
explanations to assert that the Minister’s decision was unreasonable. She was
also informed at all times how the decision was rendered.
[33]
The
Minister did not seek costs.
JUDGMENT
THIS COURT
ORDERS that:
1.
The
application for judicial review be dismissed.
2.
No
costs are awarded.
“Michel Beaudry”
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