Date: 20130208
Docket: T-577-11
Citation: 2013 FC 143
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 8, 2013
PRESENT: The Honourable Mr. Justice
Boivin
BETWEEN:
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GEORGE GUILLAUME
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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 18.1 of the Federal
Courts Act, RSC 1985, c F-7, of a Minister’s decision by the Director,
Appeals Division (the Minister’s delegate), dated March 3, 2011, confirming
the forfeiture of currency seized by the Canada Border Services Agency (the CBSA)
under section 29 of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, SC 2000, c 17 [the Act].
[2]
For
the following reasons, the application for judicial review will be dismissed.
Factual background
[3]
George
Guillaume (the applicant) is originally from Grenada and has been a Canadian
citizen since 1990. The applicant and his spouse have several family members
who still live in Grenada, and the applicant has a residence and a bank account
there. The applicant lives in Montréal, where he owns a grocery store and two
(2) income properties. The applicant alleges that since 2003–2004, he, his spouse
and his cousin by marriage have been looking to buy a bus in Grenada for
transporting merchandise for his grocery store.
[4]
On
April 26, 2009, while the applicant was preparing to leave Montréal on a
flight to Grenada with a stop in Miami, he was intercepted by the American
border authorities because he had failed to report that he was carrying more
than $10,000 in currency with him. After the American authorities refused to
let him enter United States territory, he was intercepted and questioned by the
Canada Border Services Agency (CBSA), and an officer found approximately
$20,225 in Canadian funds in the applicant’s possession, as well as $270 in
American funds and $130 in East Caribbean funds. The CBSA seized the currency.
[5]
On
April 28, 2009, the applicant sent the CBSA his notice of opposition under
section 25 of the Act. On June 10, 2009, a CBSA adjudicator sent the
applicant notice of the circumstances of the seizure, under section 26 of
the Act. In this notice, the adjudicator explained to the applicant that the onus
was on him to prove that the currency seized from him came from legal sources. The
letter also mentioned that the explanations and documents provided to date
appeared to be insufficient to dispel the seizing officer’s reasonable grounds
to suspect that the funds were the proceeds of crime.
[6]
On
August 17, 2009, counsel for the applicant sent the CBSA a letter stating
that an investigation opened by the Montréal police department (SPVM) had been
closed without any charges having been brought against the applicant (Application
Record, Tab 10). Furthermore, the assets seized by the SPVM on March 24,
2009, had been returned to him pursuant to an order dated July 3, 2009.
[7]
The
CBSA sent the applicant a letter dated October 19, 2009, in which the
adjudicator stated that evidence of the return of property seized by the SPVM
was not relevant to the seizure carried out by the CBSA and that the applicant
still had not discharged his burden of eliminating any suspicion that the
monies seized by the CBSA were the proceeds of crime.
[8]
The
CBSA then sent the applicant a letter dated December 8, 2009, setting out
the grounds for the seizure, namely: (i) the applicant appeared nervous; (ii)
his answers concerning his income were vague; (iii) he stated that he did not
know any lawyers, even though he had several lawyers’ telephone numbers in his
possession; (iv) he related facts and contradicted himself; (v) he was
travelling with currency, even though he had a bank account in Grenada;
(vi) he had been implicated in a seizure in 2004; (vii) he could not
remember in what year his father died; (viii) he claimed that he had not reported
the currency because he thought it totalled less than $10,000 after conversion
but later admitted that he had not reported the money because he thought it was
illegal to import an amount equal to or greater than $10,000 into the United
States; and (ix) he could not give any details regarding the seller of the
vehicle he claimed to want to buy in Grenada (Application Record, Tab 12).
[9]
On
November 3, 2010, the applicant sent the CBSA a letter and an affidavit
supported by proof of bank withdrawals, specifically, two (2) withdrawals of
$5,000 each from the bank account of the applicant’s business in July and
November 2007 and three (3) withdrawals by the applicant’s spouse from a
Canada Savings Bonds account in February 2007 and June and
November 2008, for a total of $10,000. The applicant states that the
currency seized at the airport came from these withdrawals, which were then kept
in his personal safe at home.
[10]
In a
letter dated November 19, 2010, the CBSA adjudicator told the applicant
that, given the time that had elapsed between the withdrawals and the seizure,
she could not establish beyond any doubt a direct link between these
withdrawals and the currency seized. According to the adjudicator, given the
time that had elapsed between the withdrawals and the seizure, the amounts
withdrawn from the bank account of the applicant’s business and from his
spouse’s Canada Savings Bonds account could have been used for other purposes,
such as financing the numerous other trips abroad that the applicant had taken
in 2008 (Respondent’s Record, Tribunal Documents, Exhibit 23).
[11]
In
an affidavit dated December 2, 2010, the applicant adds that he, his
spouse and his cousin by marriage had been planning to buy a bus since
2003–2004 and had been saving up for it since that time. According to the
applicant’s affidavit, the money had been withdrawn from the bank account and
from the Canada Savings Bond account and had been kept in his personal safe so
that they would not spend it. The adjudicator acknowledged receipt of this
additional affidavit by letter dated January 11, 2011, but told the
applicant that this did not constitute new evidence and that her position
remained the same. The adjudicator completed her recommendation to the
Minister’s delegate on February 21, 2011.
[12]
In
that recommendation, the adjudicator reiterated the nine (9) grounds for
seizure that the CBSA had identified. She rejected four (4) of them, namely (i)
the applicant showed signs of nervousness; (ii) the answers concerning his
income were vague; (iii) the applicant had been implicated in a seizure in
2004; and (iv) the applicant was unable to say when his father had died. In the
adjudicator’s opinion, these grounds were either ruled out at the interview or
were deemed irrelevant to the offence or acceptable in the circumstances. The
remaining grounds for seizure were therefore the following:
a.
The applicant said he
did not know any lawyers, but he had several lawyers’ business cards in his
possession;
b.
The applicant
admitted that the RCMP had searched his business and that his currency exchange
counter had closed as a result;
c.
The applicant was
travelling with money even though he had a bank account in Grenada with a
balance of GD$84,677.19;
d.
The applicant stated
that he did not report the seized money because he thought he had less than
US$10,000 in his possession;
e.
The applicant could
not give any details regarding the purchase of the minibus in question.
[13]
On
the basis of the evidence submitted by the applicant, the adjudicator therefore
recommended that the seizure be confirmed.
Impugned decision
[14]
The
decision of the Minister’s delegate that is the subject of this application for
judicial review is dated March 3, 2011. The Minister’s delegate decided,
under section 27 of the Act, that subsection 12(1) of the Act had
been contravened. Subsection 12(1) of the Act requires that every person
report to an officer the exportation of currency of a value greater than $10,000
(when read together with sections 2 and 3 of the Cross-border Currency
and Monetary Instruments Reporting Regulations, SOR/2002-412 [the
Regulations], which set the prescribed amount at $10,000).
[15]
Under
section 29 of the Act, the Minister’s delegate also confirmed the
forfeiture of the currency seized pursuant to section 18 of the Act. The
Minister’s delegate stated that the applicant had failed to present
sufficiently detailed credible and independent evidence proving that the seized
currency came from legal sources. The Minister’s delegate submits that that the
withdrawals documented by the applicant, namely, $10,000 from his spouse’s
Canada Savings Bonds account and $10,000 from the bank account of his business,
could not be directly linked to the amount seized because they had been made in
2007 and 2008, while the CBSA seized the currency in April 2009. The
Minister’s delegate found that these withdrawals could have been made for
reasons other than the trip to Grenada and the alleged purchase of a bus.
[16]
The Minister’s
delegate also expressed doubt concerning the applicant’s explanation regarding
the purpose of his visit to Grenada, namely, to buy a bus for his cousin by
marriage with so much cash, when he the applicant already had a bank account in
Grenada.
[17]
The Minister’s
delegate concluded that the applicant’s explanations were not enough to dispel
the suspicion that the monies were the proceeds of crime. The Minister’s
delegate therefore confirmed the forfeiture of the currency.
Issues
[18]
The
issues in this case are as follows:
a.
Was the decision of
the Minister’s delegate to confirm the forfeiture of the currency reasonable on
the basis of all the evidence?
b.
Was the burden of
proof on the applicant impossible to meet?
[19]
It
is important to note that this application for judicial review deals solely
with the decision of the Minister’s delegate confirming the forfeiture of the
currency under section 29 of the Act.
Statutory provisions
[20]
The
relevant statutory provisions in this application for judicial review are
reproduced in an appendix to this judgment.
Standard of review
[21]
The
standard of review applicable to a decision made under section 29 of the
Act is reasonableness (Dag v Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FCA 95 at para 4, [2008] FCJ no 424
(QL); Yang v Canada (Minister of Public Safety and Emergency Preparedness),
2008 FCA 281 at paras 9, 12-13, [2008] FCJ no 1321 (QL) [Yang];
Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness) (FCA),
2008 FCA 255, [2009] 2 FCR 576 [Sellathurai]). The
Court must therefore defer to the Minister’s delegate’s discretion to confirm
the forfeiture of the currency and should intervene only if the decision does
not fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
Arguments
[22]
The
applicant raised several arguments.
[23]
He
submits that the Minister’s delegate relied on erroneous findings of fact and
irrelevant evidence or ignored other evidence in assessing the applicant’s
credibility and justifying the decision. The applicant further submits that,
contrary to paragraph 18.1(4)(d) of the Federal Courts Act, the
Minister’s delegate disregarded the material before him.
[24]
The
applicant submits that the Minister’s delegate erred in relying on the fact
that he stated that he did not know any lawyers despite having lawyers’
telephone numbers in his address book. He states that he had met only one of
the three lawyers in person, regarding a civil suit involving an insurance
claim. The applicant argues that in incorrectly referring to [translation] “several lawyers’ business
cards” when he only had numbers written in his address book, the adjudicator
distorted the facts, thereby undermining the applicant’s credibility in the
eyes of the Minister’s delegate.
[25]
The
applicant also states that the adjudicator erred in relying on the fact that
the applicant thought he had less than $10,000 in his possession whereas the
evidence shows that he immediately admitted that he knew that he was in
possession of more than $10,000 (as appears from the narrative report,
Application Record, Tab 5; Tribunal Documents, Exhibit 3, page 3).
The applicant argues that this is indicative of his candidness.
[26]
The
applicant also argues that the adjudicator attached undue importance to the
purpose of his carrying money to Grenada, namely, buying a minibus.
[27]
The
applicant also claims that the Minister’s delegate erred in not considering the
order to return the items seized in a search carried out on March 24,
2009. The applicant states that this piece of evidence is relevant because the
fact that he was the subject of a search in the past had been considered in the
grounds for the seizure.
[28]
The
applicant refers to Lai v Canada (Minister of Employment and Immigration),
[1992] FCJ no 906 (CA) (QL), as cited in Ratheeskumar v Canada (Minister
of Citizenship and Immigration), 2002 FCT 1232 at para 5, [2002] FCJ no 1697
(QL), to state that an adverse finding on credibility made on the basis of
misconstrued or ignored relevant evidence is unreasonable. According to the
applicant, credibility is a particularly important issue in his case. He argues
that his sworn statement is the only proof that the funds withdrawn from his
business’s bank account and his spouse’s Canada Savings Bonds account in 2007
and 2008 were put in his safe at home and used for the trip to Grenada in
April 2009. Consequently, according to the applicant, the assessment of
his credibility is crucial in this case. The applicant argues that this
assessment is not reasonable because a relevant piece of evidence was not
considered, namely, the return of the property seized by the SPVM, and because
undue importance was attached to irrelevant criteria.
[29]
The
applicant also submits that the burden of proof imposed on him by the CBSA,
that is, proving [translation] “beyond
any doubt” that the seized currency came from legitimate sources, was so high
that it was impossible to meet. The applicant submits that the Act does not
refer to such a demanding test. The applicant alleges that this is the test the
adjudicator used, as indicated in some excerpts from their correspondence.
Since this is the wrong test, the applicant argues that the decision of the Minister’s
delegate, which is based on the adjudicator’s reasons, cannot be reasonable.
[30]
As
for the respondent, he alleges that the discretionary decision of the Minister’s
delegate to confirm the forfeiture was reasonable. According to the respondent,
the evidence that the applicant presented to the adjudicator does not in any
way demonstrate where the seized currency came from, let alone whether its
sources are legitimate. The respondent relies on Tourki v Canada (Minister
of Public Safety and Emergency Preparedness), 2007 FC 746 at para 38,
[2007] FCJ no 995 (QL) [Tourki], to state that the bank documents
do not establish the source of the currency and merely show that it was in the
applicant’s possession at a given time.
[31]
The
respondent also notes that according to Yang, above, the applicable test
is whether the applicant can persuade the Minister’s delegate to exercise his
discretion to grant relief from forfeiture by satisfying him that the seized
funds are not proceeds of crime (citing Sellathurai, above at para 50).
[32]
Regarding
the issue of the burden of proof, the respondent acknowledges that the
adjudicator used words indicating a more onerous burden but insists that the
decision of the Minister’s delegate is independent of the adjudicator’s recommendation
and that the Minister’s delegate correctly restated the applicable test by
stating the following in his decision letter.
[33]
According
to the respondent, it was reasonable for the Minister’s delegate to conclude
that there were reasonable grounds to suspect that the currency found in the
applicant’s possession are the proceeds of crime, given his vague and
contradictory account regarding the source of the currency, as well as the
illogical nature of the decision to carry such a large amount of cash when the
applicant already had a bank account in Grenada. The respondent argues that the
applicant did not present evidence that could have satisfied the Minister’s
delegate of the funds’ legitimate origins. In light of the unproved allegations
of savings built up over the years, the vague and undocumented profits and the
statements indicating that the withdrawals dated back to 2007 and 2008, whereas
the seizure took place in 2009, the respondent submits that it was not
unreasonable to confirm the forfeiture.
Analysis
[34]
At
this stage, it is helpful to bear in mind the legislative framework applicable
to the facts of this case. The Act establishes a scheme requiring the reporting
of suspicious financial transactions and of cross-border movements of currency
and monetary instruments, as stated in subparagraph 3(a)(ii) of the
Act. Part 2 of the Act therefore provides for a currency reporting regime
under which importers and exporters of currency must make a written report to a
customs officer whenever they import or export currency of a value equal to or
greater than the prescribed amount, namely, $10,000 (subsections 12(1) and
(3) of the Act; sections 2 and 3 of the Regulations). The importation or
exportation of currency of a value equal to or greater than $10,000 is not in
itself illegal; the Act simply requires that it be reported.
[35]
If a
report is not made, the currency will be seized pursuant to subsection 18(1)
of the Act. Under subsection 18(2), the customs officer must then decide
whether there are reasonable grounds to suspect that the currency is proceeds
of crime within the meaning of subsection 462.3(1) of the Criminal Code,
RSC 1985, c C-46. If such grounds exist, the currency cannot be returned.
If there are no such suspicions, then the officer must return the currency once
a monetary penalty has been paid.
[36]
According
to sections 23 and 24 of the Act, a forfeiture is effective immediately
from the time of the contravention of subsection 12(1), is final and is
not subject to review except to the extent and in the manner provided by
sections 24.1 and 25 of the Act. Under section 25, a person may within 90
days after the date of the seizure request a decision of the Minister as to
whether subsection 12(1) was contravened. According to subsection 26(1) of
the Act, the CBSA must serve written notice of the circumstances of the seizure
on the person concerned, who has thirty (30) days to furnish any evidence
in the matter that they desire to furnish (subsection 26(2) of the Act). The
Minister then has ninety (90) days to decide whether subsection 12(1) was
contravened, that is, whether no report was made (section 27 of the Act). If
the Minister decides that subsection 12(1) was not contravened, the seized
currency is returned (section 28 of the Act). If the Minister decides that
subsection 12(1) was contravened, section 29 of the Act applies, and
the Minister may return the currency, on payment of a penalty or without
penalty; remit any penalty or portion of any penalty; or confirm that the
currency is forfeit.
[37]
Under
section 30 of the Act, a person who has challenged a seizure by requesting
a decision under section 27 as to whether there was a failure to make a
report may appeal the decision by way of an action in the Federal Court. This
action is limited to determining the validity of the decision made pursuant to
subsection 27(1), namely, whether there was indeed a contravention of
subsection 12(1), the requirement to make a report. The present case is
not such an action; it is, rather, an application for judicial review under
section 18.1 of the Federal Courts Act of the discretionary
decision of the Minister to confirm the forfeiture pursuant to section 29
of the Act. Judicial review is the only remedy available to an individual who
wishes to challenge a ministerial decision made pursuant to section 29.
[38]
The
issue to be considered in cases of decisions of the Minister confirming a
forfeiture of currency under section 29 of the Act was clearly identified
by the Federal Court of Appeal in Sellathurai, above at paras 36,
49 and 50:
[36] It seems to me to follow from this that the effect of the customs
officer’s conclusion that he or she had reasonable grounds to suspect that the
seized currency was proceeds of crime is spent once the breach of section 12
is confirmed by the Minister. The forfeiture is complete and the currency
is property of the Crown. The only question remaining for determination
under section 29 is whether the Minister will exercise his discretion to grant
relief from forfeiture, either by returning the funds themselves or by
returning the statutory penalty paid to secure the release of the funds.
. . .
[49] Where the Minister repeatedly asks for proof that the seized currency
has a legitimate source, as he did in this case, it is a fair conclusion that
he made his decision on the basis of the applicant’s evidence on that issue.
The underlying logic is unassailable. If the currency can be shown to have a
legitimate source, then it cannot be proceeds of crime.
[50] If, on the other hand, the Minister is not satisfied that the
seized currency comes from a legitimate source, it does not mean that the funds
are proceeds of crime. It simply means that the Minister has not been satisfied
that they are not proceeds of crime. The distinction is important because
it goes directly to the nature of the decision which the Minister is asked to
make under section 29 which, as noted earlier in these reasons, is an
application for relief from forfeiture. The issue is not whether the
Minister can show reasonable grounds to suspect that the seized funds are
proceeds of crime. The only issue is whether the applicant can persuade the
Minister to exercise his discretion to grant relief from forfeiture by
satisfying him that the seized funds are not proceeds of crime. Without
precluding the possibility that the Minister can be satisfied on this issue in
other ways, the obvious approach is to show that the funds come from a
legitimate source. . . .
(Emphasis added.)
[39]
It
is therefore clear that the burden is on the applicant to prove to the Minister’s
delegate that the currency is not from illegal sources and not on the Minister’s
delegate to prove that there are reasonable grounds to suspect that the
currency is in fact proceeds of crime (see also Sidhu v Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 911 at para 39,
[2010] FCJ no 1114 (QL)). It is also important to note that the Minister’s
decision under section 29 is not a reassessment of the CBSA officer’s
decision to make the seizure (Sellathurai, above, and Mamnuni v
Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 736
at para 43, [2011] FCJ no 1108 (QL) [Mamnuni]). Once the
Minister’s delegate confirms that section 12 of the Act has been
contravened, the officer’s finding regarding reasonable grounds to suspect that
the currency is proceeds of crime is moot, and the forfeiture is fully
effected. The Court must therefore determine whether it was reasonable for the
Minister’s delegate to not be satisfied that the funds came from legitimate
sources.
[40]
In
the present case, the applicant was unable to satisfy the Minister’s delegate that
the seized funds were not proceeds of crime. He submitted documentary evidence
showing withdrawals totalling $20,000 in 2007 and 2008 but no evidence
demonstrating the legitimate origins of these funds, despite the repeated
requests of the adjudicators who dealt with his request before making a
recommendation to the Minister’s delegate.
[41]
The
applicant’s evidence was insufficient to satisfy the Minister’s delegate that
the money did indeed come from legitimate sources. In Tourki, above, the
Court stated at paragraph 38 that “the various bank documents provided by
the affiants did not in any way establish the origin of the currency. They only
establish possession at a certain time”. Furthermore, in Kang v Canada
(Minister of Public Safety and Emergency Preparedness), 2011 FC 798 at para 40,
[2011] FCJ no 1006 (QL), the Court stated as follows:
[40] I do not accept the applicant’s argument that he is being held to an
impossible standard of proof. The evidence submitted by the applicant does not
establish the lawful origin of the funds. Although the bank withdrawals of the
applicant’s uncle and cousin were amounts that could, theoretically, provide
for loans to the applicant, there is nothing in the record, apart from their
statements, to link those sums of money to that which was ultimately seized at
the airport in Calgary. . . .
[42]
In
the present case, the withdrawals were made more than a year before the
currency was seized. The Minister’s delegate therefore concluded that this
evidence is insufficient to connect said withdrawals to the currency seized at
the airport. This is a reasonable conclusion. In Majeed v Canada (Minister
of Public Safety), 2007 FC 1082 at para 64, [2007] FCJ no 1394
(QL), the Court stated the following regarding a seizure that had taken place
in 2005:
[64] Finally, Mr. Majeed claims that some of the funds came from his
personal savings. Mr. Majeed evidently had a bank account in this country,
but was unable to produce banking records reflecting his account as a source of
the funds. The banking records that he did produce were for the period between
2000 and 2001, and thus the concern of the Minister’s delegate with respect to
the probative value of this documentation was entirely reasonable.
[43]
Evidence
of a bank withdrawal was also deemed to be insufficient in the following cases:
Ukaj v Canada (Minister of Public Safety and Emergency Preparedness),
2012 FC 1047 at paras 12-14, [2012] FCJ no 1144 (QL), and Chaplin v
Canada (Minister of Public Safety and Emergency Preparedness), 2012 FC 130
at paras 11 and 25, [2012] FCJ no 162 (QL).
[44]
The
Court notes the distinction made in Sellathurai, above at para 50, where
it is clearly stated that the Minister’s delegate does not have the burden of
proving that there are reasonable grounds to suspect that the seized funds are
proceeds of crime. Although it was inaccurate to say that the bus was to be
bought for the applicant’s cousin, or that the applicant was in possession of [translation] “lawyers’ business cards”
when he had actually had telephone numbers noted in his address book, it is
nonetheless true that the applicant was travelling with cash when he had a bank
account in Grenada, that he was unable to give any details concerning the
purchase of the bus and, above all, that he failed to report this money to the
border authorities. This omission imposed on him the burden of satisfying the Minister’s
delegate that the currency came from legal sources, which he did not succeed in
doing. Given the evidence that was subsequently submitted, it was open to the Minister’s
delegate to conclude that he was not satisfied as to the legitimacy of the
currency’s origins. As stated above, and in light of the time between the
withdrawals and seizure of the currency in April 2009, it was reasonable
to conclude that the documentary evidence provided was not necessarily
connected with the currency seized by the CBSA. In view of the limited evidence
on record, the Court is of the opinion that it was not unreasonable for the Minister’s
delegate to confirm the forfeiture. The confirmation of the seizure fell within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law (Dunsmuir).
[45]
As
regards the burden of proof, although it has been established that the
adjudicator’s choice of words in certain items of correspondence was
unfortunate, for example, [translation] “provide
relevant documentation dispelling any doubt that the sum in question comes from
proceeds of crime” (Respondent’s Record, Vol 1, Tabs 13, 16 and 23), the
Minister’s delegate correctly restated the test in his decision letter: “You
had to demonstrate in sufficient details and with enough credible, reliable and
independent evidence that the seized funds came from a legitimate source to the
extent that no other reasonable explanation was possible” (Application Record,
Tab 2, p 2).
[46]
Furthermore,
it is important to bear in mind that in Sellathurai, above, the Federal
Court of Appeal stated the following concerning the burden of proof, at paragraphs 51
and 52:
[51] This leads to the question which was argued at length before us. What
standard of proof must the applicant meet in order to satisfy the Minister that
the seized funds are not proceeds of crime? In my view, this question is
resolved by the issue of standard of review. The Minister’s decision under
section 29 is reviewable on a standard of reasonableness. It follows that
if the Minister’s conclusion as to the legitimacy of the source of the funds is
reasonable, having regard to the evidence in the record before him, then his
decision is not reviewable. Similarly, if the Minister’s conclusion is
unreasonable, then the decision is reviewable and the Court should intervene.
It is neither necessary nor useful to attempt to define in advance the nature
and kind of proof which the applicant must put before the Minister.
[52] On the facts of
this case, Mr. Sellathurai put before the Minister evidence which was
essentially unverifiable. It was not unreasonable for the Minister to decline
to accept this evidence at face value. . . . As a result, I
see no basis for intervening and I would dismiss the appeal.
[Citations
omitted]
[47]
In
the present case, the documents supplied by the applicant were not
unverifiable, but they were insufficient to link the seized currency to a
legitimate source, the withdrawals having been made more than a year before the
seizure. The Court finds that, considering all of the evidence (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708; Smith v Alliance Pipeline Ltd, 2011 SCC
7, [2011] 1 S.C.R. 160; Construction Labour Relations v Driver Iron Inc.,
2012 SCC 65, [2012] SCJ no 65), it is reasonable that the Minister’s
delegate was not satisfied that the currency seized at the airport came from
legitimate sources, given the insufficiency of the evidence submitted by the
applicant. The intervention of this Court is unwarranted (Dunsmuir).
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that the application for judicial review be dismissed with costs.
“Richard Boivin”
Certified true translation
Michael Palles
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