Date: 20080206
Docket: T-589-07
Citation: 2008
FC 157
Ottawa,Ontario, February 6, 2008
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
VAN
PHUONG DANG
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Van
Phuong Dang seeks judicial review of a decision rendered by the respondent’s
delegate pursuant to subsection 29(c)(i) of the Proceeds of Crime and Money
Laundering and Terrorist Financing Act, S.C. 2000, c. 17 (the Act),
confirming the forfeiture of monies seized from him by an officer of the Canada
Border Services Agency (CBSA).
I. Background
[2]
On the
morning of February 1, 2006, Mr. Van Phuong Dang was at the Vancouver International Airport preparing to embark on a flight
bound for Taipei, en route to Vietnam. He was travelling with his
wife, a Vietnamese national, who had been in Canada for some time on a visitor's visa. Prior
to passing through the metal detector, the couple was approached by a CBSA
officer who explained "the currency legislation" to them,
particularly the requirement to report the export of currency having a value in
excess of CAD$10,000.
Mr. Dang and his wife allegedly stated to the officer that they did not need to
make such a report; Mr. Dang affirmed that although he was carrying some
currency on his person in a money belt, he had counted it prior to checking in
and was certain that it was not over the $10,000 limit. Upon examination, however,
the officer found that Mr. Dang was in fact carrying CAD$7,200; US$3,600; and
travellers' cheques worth US$3,500. Mr. Dang claimed that he had not realized that
he was over the limit and provided the officer with a piece of paper showing his
handwritten annotations of the amounts in his possession. However, this paper,
which notes “5CN; 3, 7 US; 2000 CN; 3,5 Travel” appeared to record a total in
excess of $10,000.
[3]
The CBSA officer
proceeded to question Mr. Dang on the provenance of the funds, his source of
revenue, his expenses and his banking habits. According to the officer, the
applicant made contradictory statements, stating variously that the money came
from an account with the Toronto Dominion Bank and that this was his only bank
account, and then admitting to having at least four or five bank accounts at
various institutions, after he was confronted with the various credit cards and
bank cards in his wallet. During questioning, Mr. Dang allegedly changed his
story numerous times, and in the end stated that he just took the cash from "Mid
Main Laundry", his business. However, he could not produce any
documentation relating to the source of either the currency or the money used
to purchase the travellers' cheques. He stated that he did not have a regular
salary and was not paid by cheque; he simply took cash from the register of
the laundry as needed because "it's a cash business". He added that
he kept no written records of currency transactions relating to the laundry. According
to Mr. Dang, the net earnings of his business were approximately $20,000 a year.
He claimed to be the sole supporter of his family. The lease for the laundry
shop was said to be about $650/month ($7,800/year), whereas his personal rent
was $800/month ($9,600/year). After questioning Mr. Dang about his business and
his expenses, the officer noted that he appeared generally unknowledgeable about
regular business practices. Mr. Dang also revealed that in fact, he had closed
the laundry business in question (no reason given) and had transferred the
balance of his corporate account, CAD$8,000, into a personal account.
[4]
Based on
several so-called "indicators" listed in her report, which include the
classification of Vietnam as "a source country for drugs and a country
known for money laundering", the officer determined that there were
reasonable grounds to suspect that the funds constituted proceeds of crime and
she accordingly effected "a Level 4 seizure", i.e., a seizure of sums
as forfeit in accordance with s. 18(2) of the Act. Several days later, on
February 15, 2006, the officer prepared her narrative report as required by s.19
of the Act.
[5]
As Mr.
Dang relates in his affidavit, although he knew that he had 90 days to contest
the seizure and the forfeiture, he wanted to act promptly. Thus, on February 8,
2006, he requested through counsel a ministerial review of the seizure and the
forfeiture pursuant to s. 25 of the Act. In said request, Mr. Dang proffered a
brief explanation as to the source of the monies seized, which were allegedly
all his with the exception of $700 ($500 + $200) entrusted to him by two
friends for delivery to relatives in Vietnam.
The business cards of both of these individuals with their phone numbers were
included, and Mr. Dang suggested that the reviewing officer contact them
directly should he wish to verify the information.
[6]
Mr. Dang
submitted various other documents along with his request for review. With
respect to the balance of the funds, the applicant attached a photocopy of two
cheque stubs for $1984.50 and $1338 dated in December of 2005, neither of which
identifies a bank or account number; the stubs merely indicate "Cash",
with the handwritten mention "Traveller's Cheque" noted on the
photocopy. Also attached was another piece of paper dated December 30 (the year
could be either 2003 or 2005) bearing the handwritten notation "US Rate 1.309
1984.50." According to the applicant’s letter, the two cheques had been
cashed by him and the money used to purchase the seized travellers' cheques (no
specific location is mentioned).
[7]
Mr. Dang
provided three other cheque stubs for amounts totalling CAD$8,000, dated April 19-05,
Aug. 21-05 and Dec. 20-05. These purportedly relate to the Canadian currency
found in his possession. No explanation as to where this money originally came
from is given. With respect to the US
currency he was carrying, Mr. Dang stated that it was drawn from savings he kept
at home in cash for safekeeping. Finally, Mr. Dang provided four pages of bank
statements from the CIBC dating from October 27, 2000 to August 20, 2001. The
statements do not identify the account holder to which they relate, and Mr.
Dang’s letter contained no explanation as to what this evidence purports to
establish.
[8]
On March
8, 2007, the file was assigned to a CBSA adjudicator, Mr. Milne. By letter
dated March 27, 2006, Mr. Milne issued what is referred to as a "Formal
Notice of Reasons for Action" wherein he set out the basis of the seizure
and invited Mr. Dang to submit evidence relevant to the ministerial review. It
is worth noting that in his letter, the adjudicator discloses many factual
allegations which the applicant subsequently challenged during this proceeding,
for example:
i) That Mr.
Dang had insisted, when asked, that he did not have currency worth more than
CAD$10,000;
ii) That to
explain his failure to declare the sums in his possession he had produced his
own list which in fact showed more than $10,000;
iii) That
he had made contradictory statements. First, he originally said that he had
only one bank account at the Toronto Dominion Bank. He claimed that the money
represented profits from his laundry which earns approximately $20,000 a year; as
it was a cash business, he just took money from the till as needed. He said he had
no written records of transactions from his business, and then stated that he
had at least four or five bank accounts at different institutions;
iv) That
although the money ostensibly originated from his business, Mr. Dang later
stated he closed the business for no apparent reason.
[9]
Mr. Milne
also comments specifically on the documentation provided with the February 8
letter. He writes:" I have noted several slips that have been submitted on
your behalf. I note that several date back to the summer which was well before
the infraction. Kindly provide documentation establishing both the origin and
bank transactions to which you make reference."
[10]
In a fax
dated April 26, 2006, Mr. Dang (through his counsel) replied to Mr. Milne's
letter by resubmitting the documentation which was included with his February 8
letter, noting that although Mr. Milne said that he received the earlier letter,
the subsequent request for additional information and documentation as to the
source of the funds caused him to doubt that the documentation might have
become separated or lost.
[11]
With
respect to the allegations as to what transpired and what was stated during his
questioning by the CBSA officer, Mr. Dang does not offer any specific
comment. He does not deny any statement referred to in the “Reasons for Action”,
asking instead for a copy of any signed statements or any contemporaneously
made notes taken by the officer. His counsel then raises the fact that his
language skills are not well developed and that "in some ways, he was
technically right for he did have only CAD$7,200 the rest being in US currency",
implying that this could simply be an honest misunderstanding, given that Mr.
Dang was otherwise cooperative with the authorities and had no criminal record.
[12]
After
receiving this information, the adjudicator investigated the possibility of a
misunderstanding arising from the alleged lack of adequate language skills. He sought
further details from the CBSA officer.
On May 9, 2006, he wrote back to Mr. Dang with the information he had obtained in
that respect. In a nutshell, the CBSA officer was of the opinion that Mr.
Dang's comprehension of English was quite sufficient, while she recalled his
wife having more difficulty. For the officer, there was little doubt that Mr.
Dang knew what he was required to declare, considering that he had gone so far
as to mention that he had heard about the law from a friend, and that he had accordingly
counted his money to ensure he was under the limit. It was also pointed out
that had there been any issue with language, copies of the legislation were
available in Vietnamese and multi-language interpreters were on staff.
[13]
In his May
24, 2006 reply to Mr. Milne, Mr. Dang does not give his own version of what transpired
during his questioning that might have contrasted with the CBSA officer’s
account. Nor does he provide sworn evidence of his difficulty in understanding
English in general, or in understanding what he was required to declare under
the legislation.
[14]
Rather, he
takes the position that it is unfair of the adjudicator to present him with new
information each time he corresponds with him, as he cannot in such
circumstances be expected to properly and fully respond. Again, he repeated his
request for signed statements or contemporaneous notes taken by the CBSA officer. He also
sought a copy of any written record of the questioning and seizure relied upon
by the adjudicator in his comments. The letter concludes by stating that
regardless of exactly what was said by Mr. Dang, "it is clear that the
gist of his conversation was that he was co-operative and showed them the money
he was keeping in an obvious place, a waist safe. His lack of any criminal
record and the fact that he has been a successful small businessman for a
number of years coupled with the fact that he has some documentation to support
his explanation … must lead you to the conclusion that these monies are not the
proceeds of crime nor from any drug enterprise."
[15]
Mr. Milne
responded on May 30, 2006, stating that he was not at liberty to give a copy of
the officer's narrative at this stage, but that it could be obtained by way of
a request under the Access to Information and Privacy Act. He asked the
applicant to advise him immediately upon submission of such a request.
[16]
On August
15, 2006, adjudicator Milne completed his case synopsis recommending that the
seizure and forfeiture be confirmed. The whole file, including among other
things the CBSA officer's report, all correspondence with the applicant, as
well as e-mails exchanged with the CBSA officer, was forwarded to Mr. Proceviat,
the Minister’s delegate (Manager of the Adjudications Division of the CBSA Recourse
Directorate), for final decision.
[17]
After
reviewing the file, the delegate issued his decision on December 22, 2006. As
is typically the case, the decision letter is brief. Mr. Proceviat notes in the
first paragraph, under the title "Reasons": (i) that it is unusual
for individuals to carry cash in the amount seized; (ii) that the applicant's
business earned only approximately $20,000 a year; (iii) that he had stated he
kept no written account of his business transactions and expenses; and (iv)
that the money was ostensibly drawn from the business’ cash, yet the business
had ceased operation. The paragraph concludes with the remark that “[t]he explanation
regarding the origin of the currency lacks a readily traceable history.”
[18]
Furthermore,
the delegate notes in another paragraph that in light of the amount of cash
actually found, the manner of its transportation, and the circumstances
surrounding the case, “reasonable suspicion that the funds are proceeds of crime
exists.”
[19]
In the
affidavit included in his application record, Mr. Dang says that he was not
aware at the time of seizure of the $10,000 limit, and that the first paragraph
in the reasons of the decision does not accurately set out the statements he made
to the customs official. He also asserts that he was given no opportunity to respond
to these comments despite his counsel's request for a copy of any statement
allegedly made by him. Otherwise, Mr. Dang does not give any further
information with respect to his former business or the exact amount it earned
gross or net. We still do not know when and for how long this business operated
or when it closed, and whether he took his "savings" out of the gross
revenues as opposed to the net amount referred to in the officer's report and
in the decision. We do not know what his language skills are and apart from the
bare statement in respect of the $10,000 limit (see above), precisely which information
conveyed by the officer in her report and emails was inaccurate or false. Nor
do we know in what respect the information referred to in the first part of the
decision letter (see paragraph 17 above) is inaccurate. There is no sworn
evidence confirming the source of the funds, or detailing how or where the
travellers' cheques were acquired.
[20]
The
applicant did not seek a copy of the file before the decision-maker pursuant to
Rule 307. Nor did he seek to file an additional affidavit upon receipt of Mr.
Proceviat’s affidavit and the file before him, indicating what if any "new"
information contained in the narrative report or the e-mails before Mr.
Proceviat, and not reflected in Mr. Milne's correspondence, was inaccurate or
false.
[21]
The
absence of such evidence with respect to those issues is noted here because, in
his written and oral arguments, the applicant attacks the sufficiency and
reliability of the information relied upon by the decision-maker and also
raises an issue of procedural fairness.
[22]
With
respect to procedural fairness, the applicant essentially says:
… [T]he Minister's delegate had ample
time to request additional specific information from the Applicant if what had
been provided was insufficient. The Applicant submits that placing the onus on
him to supply sufficient documentation, yet not requiring the Minister's
delegate to indicate to the Applicant whether that burden has been met or not
or what additional information is required, puts the Applicant in an impossible
position of not being informed, until it is too late to provide additional
information as to whether the Applicant has met the burden of proof.
[23]
He then
challenges the decision on its merits, saying that it is unreasonable. In his
memorandum he raises many arguments in that respect. At the hearing, his
counsel focused on those which he agreed were the only ones the Court need
focus on.
One could sum them up as follows:
(i) The
poor quality of the evidence before him (for example, there were no transcripts
of the interview or contemporaneous notes; the narrative report was dated
several days after the event; the e-mail sent in May, almost three months after
the event, is unclear as to whether the officer refers to explanations
generally given or actually remembers what she said to Mr. Dang; there are
differences between the e-mail and the narrative report) did not allow the
delegate to conclude that Mr. Dang deliberately made a false statement with
respect to the money he was carrying. Nor did it enable him to conclude that Mr.
Dang had made inconsistent statements, especially considering that the style
and difference in the questions put to him might account for the differences in
his answers, especially having regard for his poor language skills.
(ii) The
manner in which Mr. Dang transported his money was not suspicious, given that
his money belt was not hidden and that he readily presented it to the CBSA
officer when specifically asked to do so.
(iii) There
was nothing inconsistent in the explanation given, as Mr. Dang provided an
historical explanation as to the source of his cash, and never intended to represent
that the business was operational at the time he made the statement.
(iv) There
is nothing suspicious about the fact that he had more than one bank account.
Although such behaviour is consistent with money laundering, it is also consistent
with the law abiding activities of many Canadians.
(v) The
amount of money carried is not sufficient to justify any negative conclusion,
given that it was only $5000 over the legal limit. It is arbitrary to use this
as a ground of suspicion.
(vi) It is
understood the evidence was that $20,000 was the net revenue as opposed to the
gross revenue of the business, and there was no evidence before the delegate as
to how long it took Mr. Dang to accumulate his $15,000 based on such net
earnings. The delegate has no special expertise in business practices, and furthermore,
nothing indicates that he has any special expertise in respect of what
constitutes reasonable grounds to suspect that money constitutes proceeds of
crime.
(vii) Finally,
Vietnam is no more a country reputed
for drug and money laundering than any other country in the world.
[24]
There is
no need to proceed to a pragmatic and functional analysis on a question of
procedural fairness, as it was pointed out by the Federal Court of Appeal in Sketchley
v. Canada, 2005 F.C.J. No. 2056, at paragraph 53. Normally, the Court will
intervene if there has been a breach of the delegate's duty of fairness.
[25]
With
respect to the merits of the decision as a whole, the parties do not agree on
the applicable standard of review. For the applicant, the Court should
intervene if the decision is unreasonable, whereas the respondent urges the
Court to adopt the standard of patent unreasonableness.
[26]
In my
recent decision in Nguyen c. le Ministre de la Sécurité publique de la
protection civile, 2007 CF 1286, I discussed the contradictory case law on
this issue, and settled on the standard of reasonableness simpliciter on
the basis of a pragmatic and functional analysis.
[27]
I believe
this is the standard that should be applied in the present case. That said, the
question is not determinative here, as in light of the reasons that follow, the
Court has concluded that the decision is not unreasonable, let alone patently
unreasonable.
[28]
The
legislative scheme provided for in the Act (see Annex A) has been the subject
of numerous comments in many recent decisions (see Nguyen at para. 20).
It is unnecessary to add to the summary recently included in the Federal Court
of Appeal decision in Tourki v. Canada (Minister of Public safety and Emergency
Preparedness, [2007] F.C.J. No. 685 at paras. 23 to 31, but it
is useful to recall, as it was affirmed by the Federal Court of Appeal, that
the reporting requirement is the cornerstone of the statutory regime for monitoring
cross-border movements of currency and monetary instruments.
[29]
It is also
useful to remember that the forfeiture of currency seized is a civil in rem
mechanism that focuses on the seized currency and not on the person who failed
to declare (the applicant). Pursuant to subsection 29(1)(c), the Minister's
delegate may in his discretion confirm the forfeiture if he has reasonable
grounds to suspect that the currency or the money seized constitutes proceeds
of crime. His role is to take a fresh look at this issue and consider all of
the evidence before him. This is not limited to the reasons set out in the CBSA
officer's narrative report but includes whatever evidence and comments the
applicant has seen fit to provide. As for the evidentiary threshold implied in
the phrase “reasonable grounds to suspect,” it was described in the Supreme
Court of Canada decision in R v. Monney, [1999] 1 S.C.R. 652 at para.
49, as being less stringent, though included in, the standard based on the
existence of “reasonable and probable grounds to believe.” Moreover, as it was also
noted by the Supreme Court of Canada in R. v. Jacques, [1996] 3 S.C.R.
312 at para. 25 and in Monney, above, at para. 50, factors considered by
the delegate to support his conclusion must not be evaluated in isolation. It
is the cumulative effect of the various indicia considered by the
decision-maker that must be considered.
[30]
With this
in mind, it is also useful to recall the explanation of the reasonableness
standard of judicial review as it was set out by the Supreme Court of Canada in
New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 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 (see Southam, at 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).
[31]
Having
carefully reviewed the e-mail from the CBSA officer, the narrative report and
the correspondence exchanged between Mr. Milne and the applicant's solicitor,
and considering particularly the absence of any denial or specific comments in
respect of inaccuracies in the facts disclosed to Mr. Dang, the Court is
satisfied that the Minister could reasonably infer that the CBSA officer's
recollection of the event, and her narrative report, fairly represented what
went on during the questioning and seizure. Accordingly, the Court disagrees
with the applicant’s contention that there was no basis upon which the
Minister’s delegate could conclude that he contradicted himself during his
questioning. With regard to the applicant’s argument that there is nothing readily
suspicious in the transportation of a sum only somewhat in excess of $10 000
CDA, at no time did the applicant provide any explanation to the Court as to
why he would not or could not simply wire the sums in question to Vietnam. Furthermore,
in the absence of any explanation offered by the applicant, it was not
arbitrary for the Minister’s delegate to view with suspicion his use of
multiple bank accounts, given his apparently modest revenue. Needless to say,
it is not for the Court to substitute its appreciation of the evidence to that
of the delegate.
[32]
Even
without holding the applicant to the burden of proof discussed in Sellathurai
v. Canada (MPSEP), [2007] F.C.J. No. 2008 at para. 79, it is clear that by
abstaining to point out and provide more cogent evidence or, at least,
information in respect of his business (e.g., how long it operated, how long it
took him to put aside the money, what if anything he had misunderstood during
the interview, why given his rather limited means he had many bank accounts and
had failed to disclose this when first asked about it) Mr. Dang was taking the
risk that the delegate might make a finding against his interest. (Qasem
v. Canada (Minister of National
Revenue), [2008]
F.C.J. No. 33, at paragraph 18)
[33]
With
respect to the applicant's comments that the delegate had no grounds to
conclude that the source of his funds lacked traceable history, given the lack
of details provided by the applicant and the cryptic, totally unsatisfactory
nature of the documentation he did provide, the Court has no hesitation in concluding
that the Minister's delegate’s conclusion in this regard was open to him.
[34]
As noted
in Sellathurai, above, customs officers as well as adjudicators and
Minister's delegates receive particular training in order to help them detect
suspicious indicia. Having reviewed the affidavit of Mr. Proceviat, the Court
is satisfied that he also possessed experience and training adequate to make
the determination he made.
[35]
After a
probing examination and despite the many flaws raised by the applicant, the
Court is satisfied that Minister’s conclusion that there were reasonable
grounds to suspect that the seized money was the proceeds of crime is supported
by “tenable explanations.”
[36]
With
respect to the applicant’s allegation of a breach of procedural fairness, the
adjudicator very clearly indicated in his “Notice of Reasons for Action” that
the documentation and information provided by the applicant was insufficient.
Given that nothing more was subsequently provided, there was certainly no need
for the adjudicator to make any additional requests. Whether or not the
delegate had any positive obligation to seek additional information, in this
case he did so. Thus there was no breach.
[37]
The Court
does not accept that the applicant was in an impossible position. On the
contrary, it was his failure to seize the many opportunities afforded him that
is responsible for his plight. As noted, even after being provided with
the factual information relating to the interview which was before the
decision-maker, the applicant failed to provide cogent evidence of what more he
could have said, or what other documentation he could have provided, which
might have altered the outcome of the ministerial review.
[38]
Although
the Court has sympathy for the applicant, it must hold that the decision contains
no reviewable error. The application is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the
application is dismissed.
“Johanne
Gauthier”
Annex
A
Proceeds of Crime
(Money Laundering) and Terrorist Financing Act,
S.C. 2000, c. 17
Currency and
monetary instruments
12. (1) Every person or entity referred to in subsection (3) shall report to
an officer, in accordance with the regulations, the importation or exportation
of currency or monetary instruments of a value equal to or greater than the
prescribed amount.
***
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.
***
19.1 If an officer
decides to exercise powers under subsection 18(1), the officer shall record in
writing reasons for the decision.
***
24. 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.
2000, c. 17, s. 24; 2006, c. 12, s. 14.
Corrective measures
24.1 (1) The Minister, or any officer delegated by the President
for the purposes of this section, may, within 30 days after a seizure made
under subsection 18(1) or an assessment of a penalty referred to in subsection
18(2),
(a) cancel the
seizure, or cancel or refund the penalty, if the Minister is satisfied that
there was no contravention; or
(b) reduce the
penalty or refund the excess amount of the penalty collected if there was a
contravention but the Minister considers that there was an error with respect
to the penalty assessed or collected, and that the penalty should be reduced.
***
Request for
Minister's decision
25. A person from whom currency or monetary instruments were seized under
section 18, or the lawful owner of the currency or monetary instruments, may
within 90 days after the date of the seizure request a decision of the Minister
as to whether subsection 12(1) was contravened, by giving notice in writing to
the officer who seized the currency or monetary instruments or to an officer at
the customs office closest to the place where the seizure took place.
***
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.
***
Appeal to Federal Court
30. (1) A person
who requests a decision of the Minister under section 27 may, within 90 days
after being notified of the decision, appeal the
decision by way of an action in the Federal Court in which the person is the
plaintiff and the Minister is the defendant.
* * *
Loi
sur le recyclage des produits de la criminalité et le financement des activités
terroristes, L.R. 2000, ch. 17
Déclaration
12. (1) Les personnes ou entités visées au paragraphe (3) sont tenues de
déclarer à l'agent, conformément aux règlements, l'importation ou l'exportation
des espèces ou effets d'une valeur égale ou supérieure au montant
réglementaire.
***
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.
***
19.1 L’agent
qui décide d’exercer les attributions conférées par le paragraphe 18(1) est
tenu de consigner par écrit les motifs à l’appui de sa décision.
***
24. La
saisie-confiscation d’espèces ou d’effets effectuée 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.
2000, ch. 17, art. 24; 2006, ch.
12, art. 14.
Mesures de redressement
24.1 (1) Le ministre ou l’agent que le président délègue pour l’application du présent
article peut, dans les trente jours suivant la saisie effectuée en vertu du
paragraphe 18(1) ou l’établissement de la pénalité réglementaire visée au
paragraphe 18(2) :
a) si le ministre est convaincu qu’aucune infraction n’a été commise,
annuler la saisie, ou annuler ou rembourser la pénalité;
b) s’il y a eu infraction mais que le ministre est d’avis qu’une erreur a
été commise concernant la somme établie ou versée et que celle-ci doit être
réduite, réduire la pénalité ou rembourser le trop-perçu.
***
Demande de révision
25. La personne entre les mains de qui ont été saisis des espèces ou effets
en vertu de l'article 18 ou leur propriétaire légitime peut, dans les
quatre-vingt-dix jours suivant la saisie, demander au ministre de décider s'il
y a eu contravention au paragraphe 12(1) en donnant un avis écrit à l'agent qui
les a saisis ou à un agent du bureau de douane le plus proche du lieu de la
saisie.
***
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).
***
Cour fédérale
30. (1)
La personne qui a demandé que soit rendue une
décision en vertu de l’article 27 peut, dans les quatre-vingt-dix jours suivant
la communication de cette décision, en appeler par voie d’action à la Cour
fédérale à titre de demandeur, le ministre étant le défendeur.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-589-07
STYLE OF CAUSE: VAN
PHUONG DANG v. MPSEP
PLACE OF
HEARING: Vancouver, BC
DATE OF
HEARING: January
29, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: GAUTHIER J.
DATED: February
6, 2008
APPEARANCES:
|
Mr. Lewis
Spencer
|
FOR THE APPLICANT
|
|
Ms. Jan
Brongers
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Derpak White
Spencer LLP
Vancouver, BC
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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