Date: 20070427
Docket: T-887-06
Citation: 2007
FC 453
Vancouver, British
Columbia,
April 27, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ARON
YUSUFOV
Applicant
and
HER MAJESTY THE QUEEN
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
On May 23, 2005, the
Applicant, Mr. Aron Yusufov, arrived at the Vancouver International Airport from New York, in
transit to Beijing, carrying $9,800 USD
(approximately $12,348.00 CAD) in small bills in a clear plastic bag (the
Seized Currency). He was required to clear customs. During the customs
inspection process, the Applicant did not report this currency even after two
different customs officers advised him of the requirement to report currency
amounts exceeding $10,000 CAD. According to the written report (Narrative Report)
of the second customs officer, Ms. Monika Curkovic, who discovered the
currency, the Applicant explained to her that the money had been stolen from
his employer, GEB Enterprises Inc. (GEB).
[2]
Officer
Curkovic seized the money as “suspected proceeds of crime”, pursuant to the
provisions of the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, S.C. 2000, c. 17 (the Act). The Applicant sought a
Ministerial review of Officer Curkovic’s decision, as permitted under s. 25 of
the Act. In a decision dated December 15, 2005 (the Ministerial Decision or
decision of the Minister’s delegate), the Minister’s delegate confirmed that
there was a contravention of s. 12(1) of the Act (that is, a failure to report
as required) and that, under s. 29(1)(c) of the Act, the Seized Currency would
be held as forfeit.
[3]
The
Applicant seeks judicial review of the decision of the Minister’s delegate that
the Seized Currency be held as forfeit.
I. Issues
[4]
Overall,
the Applicant submits that there are no reasonable grounds to suspect that the
Seized Currency is the proceeds of crime. In his view, the Minister’s delegate
erred by preferring the evidence of Officer Curkovic to the evidence provided
by the Applicant. Breaking this issue down further, it appears to me that there
are two subsidiary questions:
1. Did the
Minister’s delegate fail to have regard for the fact that there was a breach of
natural justice when Officer Curkovic interviewed the Applicant in English and
did not provide an interpreter?
2. Did the
Minister’s delegate err by reaching his decision without credible and objective
evidence to support Officer Curkovic’s suspicion, and without regard to the
evidence of the Applicant on the source of the Seized Currency?
[5]
A further
issue was raised by the Applicant, for the first time, at the oral hearing of
the application. That issue is whether, given that the Applicant was in transit
on his way from the United
States to
Beijing and never left the secure area of the Vancouver Airport, Officer Curkovic had the authority to seize
the Seized Currency. This question was not mentioned in the memorandum of fact
and law of the Applicant. This issue is complex and goes to the authority of
the Canada Border Services Agency (CBSA) to seize currency and monetary
instruments under the Act while a person is in transit. The Respondent would be
seriously prejudiced by allowing the late introduction of this new issue. I
declined to hear arguments on this issue.
II. Statutory Framework
[6]
The statutory
scheme regarding the seizure and forfeiture of currency is relatively new,
having been in place since only 2000. I will set out my understanding of the
legislative framework and how that framework was applied in this case.
[7]
The
object of the Act revolves around the implementation of measures to detect and
deter money laundering and the financing of terrorist activities (s. 3, the
Act). Although the importation and exportation of large amounts of currency to
and from Canada is not prohibited,
there is a mandatory reporting requirement. Subsections 12(1) and (3)(a) of the
Act, together with s. 2(1) of the Cross-border Currency and Monetary
Instruments Reporting Regulations, SOR/2002-412 (the Regulations), obligate
a person entering or leaving Canada to report currency and monetary instruments
on their person or in their accompanying luggage if they have a value equal to or
greater than $10,000.00 CAD.
[8]
As I
understand it, the reported information is provided to the Financial
Transactions and Reports Analysis Centre of Canada, an arm’s-length agency
established under s. 41 of the Act. The Centre “collects, analyses, assesses
and discloses information in order to assist in the detection, prevention and
deterrence of money laundering and of the financing of terrorist activities”
(s. 40, the Act).
[9]
The
CBSA is responsible for the seizure and forfeiture of unreported currency and
monetary instruments under the Act. In general, once reported in accordance
with the Act and the Regulations, the currency or monetary instruments are
returned to the person without penalty or forfeiture by the responsible customs
officer. However, if the customs officer believes, on reasonable grounds, that
s. 12(1) (the reporting requirement) has been contravened, the customs officer
may "seize as forfeit the currency or monetary instruments” (s. 18(1), the
Act). Under s. 18(2) of the Act, the customs officer is mandated to return the
seized currency or monetary instruments, “unless the Customs Officer has
reasonable grounds to suspect that the currency or monetary instruments are
proceeds of crime”. Thereafter, the rights of review and appeal are as set out
in s. 25 and s. 30 of the Act.
[10]
The
term “proceeds of crime”, as set out in s. 462.3(1) of the Criminal Code,
R.S.C., 1985, c. C-46, provides:
|
"proceeds of crime" means any
property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result
of
(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere
that, if it had occurred in Canada, would have constituted a designated
offence.
|
"produits de la
criminalité" Bien, bénéfice ou avantage qui est obtenu ou qui provient,
au Canada ou à l'extérieur du Canada, directement ou indirectement:
a) soit de la perpétration
d'une infraction désignée;
b) soit d'un acte ou d'une
omission qui, au Canada, aurait constitué une infraction désignée.
|
A "designated offence" is essentially
an indictable offence.
[11]
It
is important to note that the Act provides that the currency and monetary
instruments may be seized and forfeited whether or not they are associated with
money laundering or terrorism. The test, as set out in the Act, is only that
there are reasonable grounds to suspect that they are the proceeds of crime.
[12]
Under
s. 25 of the Act, a person from whom the currency or monetary instruments were
seized or the lawful owner may request a decision of the Minister as to whether
s. 12(1) was contravened, within 90 days of the seizure.
[13]
After
a person seeks a Ministerial Decision, his file becomes the responsibility of
CBSA's Recourse Directorate. There, an adjudicator prepares a document
described as a "Notice of Reasons for Action” and serves this on the
Applicant pursuant to s. 26(1) of the Act. Thereafter, s. 26(2) of the Act
affords the person the opportunity to furnish evidence within 30 days. The customs
officer also makes submissions to the adjudicator.
[14]
Based
on all of the evidence, the adjudicator prepares a document entitled Case
Synopsis and Reasons for Decision (the Synopsis and Reasons). The Synopsis and
Reasons serve as a recommendation and are provided to the Minister’s delegate.
The Minister’s delegate – in this case, a manager within the Recourse
Directorate of the Minister – is delegated to make the Minister's Decisions
under sections 25 and 29 of the Act.
[15]
There
are two parts to the Ministerial Decision. The Minister’s delegate first
decides whether s. 12(1) was contravened by a failure to report the currency or
monetary instruments. Secondly, if the Minister’s delegate determines that
there was a contravention of s. 12(1), the Minister, under s. 29, determines
whether the currency should be forfeited or returned on the payment of a
penalty or if a penalty paid should be returned.
[16]
A
decision that there has been a failure to report under s. 12 of the Act may be
appealed to the Federal Court by way of an action (s. 30, the Act). In this
regard see the decisions of my colleagues in Dokaj v. Canada (Minister of
National Revenue), 2005 FC 1437, 282 F.T.R. 121, [2005] F.C.J. No. 1783
(F.C.) (QL) and Tourki v. Canada (Minister of National Revenue), 2006 FC 50, 285 F.T.R.
291, [2006] F.C.J. No. 52 (F.C.) (QL). However, as held in Dokaj, the
Applicant does not have a right of appeal in respect of a Ministerial Decision
issued under s. 29 of the Act. A judicial review is the only avenue open to an
Applicant to seek review of a Ministerial Decision that currency or monetary
instruments will be forfeited.
III. Analytical Framework
[17]
I turn to the
analytical framework that was to be applied to the decision in question. The
case at bar deals with an administrative review of an in rem property
seizure. The overarching issue is whether there are reasonable grounds to
suspect that the currency itself is proceeds of crime, not whether the person
who failed to declare the currency has committed a crime (Tourki, above
at paras. 40-45, 54-55).
[18]
In
Sellathurai v. Canada (Public Safety and Emergency Preparedness),
2007 FC 208, Justice Simpson noted that the legislation is silent regarding the
principles to be used by the Minister’s delegate in deciding whether or not to
confirm the forfeiture of the currency. She does conclude, however, that the
proper test would be for the Minister’s delegate to determine whether a
reasonable suspicion still existed, after review of all the evidence, that the
currency was proceeds of crime.
[19]
After
reviewing the relevant legal principles and jurisprudence, Justice Simpson, at
para. 71, concluded that, “evidence to support a suspicion need
not be compelling, it must simply be credible and objective”. I agree.
[20]
As
to the burden of proof on an applicant, I refer to the comments of Justice
Simpson in Sellathurai, above at paras. 72-73:
With
regard to the burden of proof on an applicant who wishes to dispel a suspicion
based on reasonable grounds, it is my view that such an applicant must adduce
evidence which proves beyond a reasonable doubt that there are no reasonable
grounds for suspicion. Only in such circumstances will the evidence be
sufficient to displace a reasonable suspicion.
I
have reached this conclusion because, if a Minister's Delegate were only
satisfied on the balance of probabilities that there were no reasonable grounds
for suspicion, it would still be open to him to suspect that forfeited currency
was proceeds of crime. The civil standard of proof does not free the mind from
all reasonable doubt and, if reasonable doubt exists, suspicion survives.
[21]
With
this framework in mind, I turn to the decisions in this case and the evidence
presented by the Applicant under s. 26(2) of the Act.
IV. The Customs Officer's Decision
[22]
The
decision to seize the currency was made by Officer Curkovic after her
interrogation of the Applicant at the Vancouver International Airport. Officer Curkovic prepared a Narrative Report
of her interaction with the Applicant on May 25, 2005 – almost immediately
after the seizure. According to the Narrative Report, the Applicant stated that
he had been employed for two years as a shoe salesman by Gyulnara Shaulova of
GEB. During that time he had been taking about 10% of every sale he made in
cash without the knowledge of his employer. The Applicant provided Officer
Curkovic with the following details regarding the theft of the Seized Currency:
[…]
When asked if he got paid by commission based on his sales or if he received a
regular salary, he stated he received a steady salary of $230 USD each week. He
stated that the only reason he was taking money from the company was because
someday he hoped to own his own business and wanted to provide a better future
for his family. When told his actions were considered an offence under the law,
Yusufov stated “yeah, I know”. He then asked if I would be telling his employer
about this. I told him that his case is private and I’m not at liberty to call
his employer. He said thank you. I then asked him if he understood why it was
not right to take money from his employer without their consent and he stated
he understood it was stealing.
Yusufov
provided clear details on how he stole the money over a period of time. He
stated that for the past 6-7 months, he would take the equivalent of 10% of
each sale in cash (the equivalent of approximately $100-$200 USD). He was asked
why the money was in $20 bills, and he stated that it was easier to take cash
in smaller denominations and mostly took $20s. He admitted that he did not
report the money because he knew he would get in trouble. […]
[23]
According
to the Narrative Report, the Applicant approached Officer Curkovic the next day
(May 24, 2005) and advised her that “he had come ‘clean’ with his employer and
wife the night before” and requested the return of his currency. This request
was refused and he was advised, again, of the appeal process.
[24]
The Narrative
Report also touches on the relationship between the Applicant and Mr. Roman
Shaulov, who was traveling with the Applicant and who also was found to have
failed to report currency of over $10,000. Officer Curkovic reports that, when
asked, the Applicant denied that Mr. Shaulov had any ties with GEB.
[25]
Finally,
there is no indication in Officer Curkovic’s report that the Applicant had
difficulty communicating in English during any part of the interrogation on May
23, 2005. It was only after the interview was finished and he was joined by Mr.
Shaulov that the Applicant stated that he needed an interpreter. The May 24,
2005 encounter with the Applicant was also in English.
[26]
Officer
Curkovic’s conclusion was as follows:
After
discussion with Supt. Boulet and consideration was given to Yusufov’s failure
to report his currency both upon import/export from Canada, and after his admission that the money was obtained
through the commission of an enterprise offence (theft), the total of $12,348
CDN was seized at Level 4 as Suspected Proceeds of Crime with no terms of
release.
V. Evidence
Submitted in Response
[27]
By letter
dated August 1, 2005, counsel for the Applicant provided further explanation
and documentation and requested that the Seized Currency be returned, subject
to paying “all necessary penalty”. The CBSA accepted these submissions as a
request for a review of the seizure and forfeiture of the Seized Currency. That
is, the Applicant requested: (a) a review of Officer Curkovic’s decision that
there had been a failure to report under s. 12(1), and (b) the return of the
Seized Currency, without forfeiture under s. 29, based on the circumstances of
the seizure. Additional submissions were made under cover letter of October 2,
2005.
[28]
The
foundation of the submissions was that the Applicant did not steal the Seized
Currency from his employer. The explanations provided by the Applicant’s U.S. attorney were supported
by an affidavit from the Applicant (submitted with the August 1, 2005
submission) and by a letter from Julia Shaulov, purporting to be the President
of GEB. This letter of Ms. Shaulov was not sworn or in affidavit form. The key
points of the evidence submitted were as follows:
• The
Applicant, who did not speak English, had requested and been refused the
services of a Russian interpreter at the time the currency was seized. Thus,
there was simply a “misunderstanding due to lack of good English on his part”.
• In his
affidavit attached to the August 1, 2005 submission, the Applicant explains
that employees of GEB are required to carry “cash with them on business trips
in order to leave deposits for lucrative deals with new factories”.
• In her
affidavit sworn on July 22, 2005, Gyulnara Shaulova, president of GEB,
confirmed that the Applicant was traveling to China to purchase a new collection of shoes and that
“there was a business necessity to carry cash with him”.
• The
information contained in the July 22, 2005 affidavit of Gyulnara Shaulova is
directly contradicted by “Julia Shaulov” (whom I assume is the same Gyulnara
Shaulova who signed the July 22, 2005 affidavit) in a letter attached to the
October 2, 2005 submission. In this later letter, Julia Shaulov states that GEB
“has no outstanding monetary disputes with Mr. Aron Yusufov”. Rather, she
explains in this letter that the Applicant keeps 10% of his sales in accordance
with company policy that compensates its employees by a salary and 10%
commission.
VI. The
Ministerial Decision
[29]
After
receiving the submissions of the Applicant and further notes from Officer
Curkovic and the customs officer who had initially been involved, the
adjudicator prepared his Synopsis and Reasons. The parties agree that the
Synopsis and Reasons form part of the reasons for the Ministerial Decision. It
is clear from reading this document that the adjudicator had considered and
read all of the evidence before him. For example, the adjudicator noted the
confession of the Applicant to Officer Curkovic as well as the apparently
conflicting stories from the employer as to the nature of the Seized Currency.
The adjudicator also noted the opinion of the Officer that there had been no
communication problems during her two hour examination of the Applicant and the
Applicant’s claim that he had been misunderstood due to language difficulties.
The Applicant’s three different explanations – as offered to Officer Curkovic,
as set out in the August 1, 2005 submission and as described in the October 2,
2005 submission – are also referred to.
[30]
Based
on his review, the recommendation adopted as the Ministerial Decision upheld
the failure to report and the forfeiture of the Seized Currency.
VII. The Standard of Review
[31]
As required in judicial
review of decisions of this nature, I must address my mind to the appropriate
standard of review of the Ministerial Decision. Two of my colleagues have
addressed the appropriate standard of review in the context of decisions
related to Ministerial decisions made under the provisions of the Act (Thérancé c. Canada (Ministre de
la sécurité publique), 2007 CF 136 and Sellathurai, above. In Thérancé,
at para. 20, Justice Beaudry, having conducted a pragmatic and functional
analysis, concluded that the Ministerial decision should be reviewed on a
standard of patent unreasonableness. In Sellathurai, at para. 60,
Justice Simpson, after a similar analysis, concluded that the reasonableness
standard of review was appropriate, except when dealing with the burden of
proof faced by an applicant who wishes to dispel “reasonable grounds to
suspect”, where she concluded that the standard of correctness should be
applied.
[32]
The
Supreme Court of Canada has clearly stated that the pragmatic and functional
approach must be undertaken by a reviewing judge "in every case where a
statute delegates power to an administrative decision-maker" (Dr. Q v.
College of Physicians and Surgeons of British Columbia, 2003 SCC 19, at
para. 21, [2003] 1 S.C.R. 226). Further, this analysis must be applied anew
with respect to each decision, and not merely each general type of decision of
a particular decision-maker under a particular legislative provision (Sketchley
v. Canada (Attorney General), 2005 FCA 404, 263
D.L.R. (4th) 113, [2005] F.C.J. No. 2056 at para. 50 (F.C.A.) (QL)). It
is the particularities of the decision at issue in a given case that will
govern the standard of review to be employed by the reviewing Court.
[33]
The
first step is to identify the particular question or questions at issue. As
discussed above, the Minister’s delegate was required to consider:
1. Was there
was a breach of natural justice when Officer Curkovic interviewed the Applicant
in English and did not provide an interpreter?
2. Was
there credible and objective evidence to support Officer Curkovic’s suspicion,
and insufficient credible and objective evidence provided by the Applicant to
dispel the suspicion?
[34]
Keeping
these questions in mind, I turn to the four elements of the pragmatic and
functional analysis.
A.
Existence of a Privative Clause
[35]
As noted
in both Thérancé and Sellathurai, the Act contains a strong
privative clause. Section 24 of the Act states that:
|
The forfeiture of currency or monetary
instruments seized under this Part is final and is not subject to review or
to be set aside or otherwise dealt with except to the extent and in the
manner provided by sections 24.1 and 25.
|
La confiscation d'espèces ou
d'effets saisis en vertu de la présente partie est définitive et n'est
susceptible de révision, de rejet ou de toute autre forme d'intervention que
dans la mesure et selon les modalités prévues aux articles 24.1 et 25.
|
[36]
There
is no statutory appeal in sections 25 to 30 of the Act from a decision to
confirm forfeiture under section 29 of the Act. Review is only available in
judicial review proceedings. In this regard, see: Tourki, above and
Ha v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 594, 150 A.C.W.S. (3d) 333, [2006]
F.C.J. No. 1123 at para. 7 (F.C.) (QL).
[37]
This
suggests a high degree of deference.
B. Relative Expertise
[38]
The decision
in issue was made by a Minister’s delegate who holds the position of “manager”
in the Adjudications Division of the CBSA’s Recourse Directorate. Although
there was no evidence before me, in this case, as to the specific training
received by persons in this position, Justice Simpson commented in Sellathurai,
at para. 49, that managers and adjudicators receive training from RCMP and
Department of Justice specialists and that they are guided in their work by an
RCMP document entitled “Integrated Proceeds of Crime Investigator Indicator
List”. I do not believe that this would be disputed by the Applicant. Thus, it
appears to me that, when the question is one that requires some knowledge and
expertise related to the nature of the evidence that led a customs officer to
suspect that the funds were the proceeds of crime, the expertise of the
Minister’s delegate would be superior to that of the Court. However, if the
question is one that requires the delegate to determine the burden of proof or
to assess whether procedural fairness was afforded to an applicant, the Court
is in as good a position as the Minister’s delegate and less deference would be
owed.
[39]
In
this case, it is arguable that the first question in issue as to whether there
was a breach of fairness does not require any specialized knowledge by the
Minister’s delegate. Although answering this question required the Minister’s
delegate to weigh competing versions of whether the Applicant spoke English,
the delegate was not required to consider the background nature of the alleged
criminal suspicion. On this question, I would not see the Minister’s delegate
as having any more expertise than the Court. This suggests less deference to
the Minister’s delegate.
[40]
However,
the situation is different on the question of whether there was objective and
credible evidence to support the suspicion and whether the Applicant produced
credible and objective evidence to remove that suspicion. Answering this
question required more of the Minister’s delegate. The delegate was required to
assess the strength or credibility of the evidence on both sides of the issue
as to matters that relate to the possible commission of a crime and the common
practices of persons who are engaged in smuggling or other illegal cross-border
actions. The examination and weighing of the evidence, on this question, involves
matters that are within the expertise of the Minister’s delegate and call for significant
deference.
C. The Purpose of the Act and of Section 29
[41]
The general
purpose of this part of the Act is to detect and deter money laundering and
terrorist financing by requiring the reporting of cross-border currency
movement (see the Act, s. 3). Part 2 of the Act (containing sections 12 to 39)
sets out the reporting scheme. Parliament has mandated serious sanctions in the
event that there is a failure to report, including full forfeiture of currency
and monetary instruments when there are reasonable grounds to suspect that the
unreported currency or monetary instruments are the proceeds of crime. Section
29 sets out the final step in a seizure and allows the Minister’s delegate to
determine whether, on the facts of each particular case, a seizure should be
maintained. While the Act has a broad public purpose, the decision of the
Minister’s delegate is limited to the facts before the delegate and is
applicable only to the currency or monetary instruments seized in an individual
case. Thus, at the s. 29 level, the decision is not polycentric. This does not
suggest a higher level of deference.
D.
The Nature of the Question – Law or Fact
[42]
The
question of whether or not the factual record before the Minister’s delegate
discloses reasonable grounds to suspect that the Seized Currency is proceeds of
crime is a question of mixed fact and law. However, once the delegate applies
the correct burden of proof to the evidence before him, the decision is
entirely fact driven. This suggests a higher level of deference.
[43]
In
conclusion, having weighed all of the factors, I am satisfied that the
Minister’s decision on whether the evidence demonstrates that there had been a
breach of natural justice is reviewable on a standard of reasonableness simpliciter.
The decision must stand up to a somewhat probing examination (Canada
(Director of Investigation and Research Competition Act) v. Southam Inc.,
[1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at 19, 209 N.R. 20)). The question of
whether there was credible and objective evidence is reviewable on a standard
of patent unreasonableness. On this standard, a decision should only be set
aside if it is clearly irrational or evidently not in accordance with reason (Law
Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para.
52).
VIII. Application
of the Standard of Review to the Issues and the Ministerial Decision
[44]
I
turn now to the issues in this case.
A. Alleged breach of natural justice
[45]
On the issue
of whether there was a breach of natural justice, I am satisfied that it was
reasonable for the Minister’s delegate to prefer the evidence of Officer
Curkovic and to accept that there was no language issue.
[46]
Officer
Curkovic, in contrast to all of the parties providing evidence for the
Applicant, provided her report contemporaneously with the seizure event and had
no interest in the Seized Currency. In her Narrative Report, Officer Curkovic
provided many details around the alleged theft of the funds as they were told
to her by the Applicant. A second – and unofficial – meeting with the Applicant
took place on the second day, apparently with no language difficulties. If the
Applicant’s claim not to understand English is to be preferred, one must
conclude that Officer Curkovic fabricated the Narrative Report almost in its
entirety. That is simply implausible.
[47]
The
Minister's delegate’s determination that there was no language difficulty
withstands a somewhat probing examination.
B. Suspicion that the Seized Currency
was the proceeds of crime
[48]
After
reviewing the evidence, the Minister’s delegate concluded that there were
reasonable grounds to conclude that the Seized Currency had been stolen by the
Applicant. Although the Minister’s delegate did not use these exact words, I
interpret the decision as one where the Minister’s delegate was not satisfied that the Applicant had
adduced evidence which proves beyond a reasonable doubt that there are no
reasonable grounds for suspicion.
[49]
In my view, it
was not patently unreasonable (or even unreasonable) for the Minister to reach
this conclusion and to confirm the forfeiture of the Seized Currency. The
Minister had credible and objective evidence to support a reasonable suspicion
that the currency seized was proceeds of crime. The detailed Narrative Report
of Officer Curkovic consists, in my view, of a credible story of how the
Applicant came to be in possession of the Seized Currency. This version of
events is told by an objective third party – Officer Curkovic – who has nothing
to gain from inventing this elaborate tale. As I described earlier in these
reasons, the Narrative Report indicated that the Applicant did not declare the
currency upon his arrival at the Vancouver International Airport nor was he
going to declare the currency upon his departure. The Narrative Report
indicates that the Applicant explained candidly and spontaneously to Officer
Curkovic that he obtained the currency from taking portions of shoe sales that
he made, i.e. 10% of each sale in cash, unbeknownst to his employer. The Narrative
Report indicates that the Applicant admitted that he knew his actions were
considered an offence under the law. Further, the Narrative Report indicates
that on May 24, 2005, the Applicant approached Officer Curkovic and told her
that he had come “clean” with his employer and wife the night before.
[50]
As
to the Applicant’s submissions, he provided inconsistent explanations of why
the Seized Currency was not proceeds of crime. In the August 1, 2005 submission,
the Applicant’s U.S. attorney explained that the currency the
Applicant had with him on May 23, 2005, was for business purposes. She
explained that it was necessary for him to carry the currency since he needed
to leave deposits for shoe orders on behalf of his employer. This explanation
was reiterated in the affidavit of Gyulnara Shaulova, the president of GEB. The
Applicant attested that he did not know that he needed to declare the currency
in Canada and that he answered that he had $9,800 not realizing that the
currency would be more than $10,000 CAN. He also attested that he carried the
currency in order to leave deposits for lucrative deals with new shoe
factories. The story changed, however, in the October 2, 2005 submission, when
the U.S. attorney and
the company president stated that the Seized Currency consisted of the Applicant’s
10% commission from sales.
[51]
Once
again, I note that the statements by the employer were not from a disinterested
third party. In contrast, if the Seized Currency had been stolen, the employer
had a serious interest in a release of the funds. It is difficult to understand
why the employer came up with two completely different versions of the source
of the funds, unless there is a third untold story (such as a theft). This
seriously undermines the credibility of the submissions of the Applicant.
[52]
On
this record, it was not patently unreasonable for Minister’s delegate to prefer
the evidence of Officer Curkovic. Her evidence was consistent and supported the
initial story that the Seized Currency was stolen from the employer. With his
appreciation of the role of customs officers and the nature of stories told by
persons about the source of funds, the Minister’s delegate was in an excellent
position to determine the credibility of the evidence.
[53]
Given
that the Minister’s delegate was not acting patently unreasonably in preferring
the evidence from Officer Curkovic on the issue of credibility and was not
acting unreasonably in dismissing arguments that there was a “language issue”,
it follows that I should not overturn the Ministerial decision in this case.
[54]
For
these reasons, the application will be dismissed with costs to the Respondent.
ORDER
THIS COURT ORDERS that the application for
judicial review is dismissed with costs to the Respondent.
"Judith
A. Snider"
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