Date:
20130405
Docket:
T-1405-12
Citation:
2013 FC 346
Ottawa, Ontario,
April 5, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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KANGARATNAM SATHEESAN
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Applicant
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and
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MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is the judicial review of a decision of the Appeals Division, Recourse
Directorate, Canada Border Services Agency, as delegate of the Minister of
Public Safety and Emergency Preparedness (the Minister), determining that
currency seized under the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, SC 2000, c 17 (the Act) shall be held as forfeit. This
judicial review is brought pursuant to section 18.1 of the Federal Courts
Act, RSC 1985, c F-7.
Background
[2]
Kangaratnam
Satheesan (the Applicant) was born in Sri Lanka and is a citizen of Germany. On August 12, 2010 he arrived in Canada on a flight from Germany and failed to
report that he was in possession of currency having a value exceeding CAN$10,000,
the declaration of which is required by subsection 12(1) of the Act and
subsection 2(1) of the Cross-border Currency and Monetary Instruments
Reporting Regulations SOR/2002-412. When examined by a Canada Border
Services Agency officer (CBSA officer) it was determined that he was importing
EUR15,530 and USD$24 (valued at CAN$21,754.53).
[3]
The
undeclared currency was seized by the CBSA officer in accordance with
subsection 18(1) of the Act. It was held with no terms of release,
pursuant to subsection 18(2) of the Act, as the CBSA officer had formed the
opinion that there were reasonable grounds to suspect that the undeclared
currency was or may be the proceeds of crime.
[4]
On
August 18, 2010 the Applicant, in accordance with section 25 of the Act,
requested a decision of the Minister as to whether subsection 12(1) of the Act
had been contravened. This was done by way of a Notice of Objection which
attached, but did not make reference to, what appeared to be a February 1, 2010
contract of sale of a business by the Applicant to a named buyer for a purchase
price of EUR10,000, and a bank withdrawal slip dated August 11, 2010 in the
amount of EUR2000, both written in German. In that correspondence the Applicant
stated, amongst other things, that his limited knowledge of English had
prevented him from understanding the declaration form and understanding what
amount of money he could import without declaring it.
[5]
On
October 29, 2010 an adjudicator of the Appeals Division, Recourse Directorate,
CBSA, wrote to the Applicant acknowledging his request for a decision of the
Minister as to whether subsection 12(1) of the Act had been contravened,
setting out in detail the grounds for the seizure of the undeclared currency
and attaching a copy of the Narrative Report prepared by the CBSA officer who
had examined the Applicant at his port of entry into Canada. The Applicant was
advised to provide further documentary evidence to link all of the seized funds
to the earnings from the pizza shop and that, in the absence of such sufficient
evidence, the reasons to suspect the currency is the proceeds of crime would
remain.
[6]
The
Applicant provided a lengthy response which was received by CBSA on
November 22, 2010. This stated that the purchaser of the Applicant’s
pizza shop had paid the EUR10,000 purchase price in EUR500 bills which the Applicant
kept in his apartment. It also enclosed translated English excerpts of the
purchase agreement as well as the Applicant’s turnover tax calculation for 2008
and addressed the other matters raised in the prior CBSA correspondence. The
letter also stated that the Applicant had requested an interpreter when being
examined by the CBSA officer at the port of entry but that his request had been
denied. The result of this denial being that his understanding of the
questions put to him by the officer was unclear, his explanations accordingly
confused and that the CBSA officer had interpreted them incorrectly as
contradictory. The Applicant sent a follow up letter on January 17, 2011.
[7]
By
letter of March 30, 2011 the adjudicator requested a copy of the entire
untranslated purchase agreement for the pizza shop and went on to state that
upon initial review of the documentation that had then been submitted by the
Applicant that it did not appear to provide a complete paper trail linking the
seized funds to the proceeds of the sale of the pizza shop and that no
documentation had been provided to show the source of the seized funds which
exceeded the EUR10,000 purchase price. The adjudicator advised that to dispel
the reasons to suspect that the seized currency is the proceeds of crime that
“sufficient documentary evidence must be provided to link the entire amount of
the seized funds to a legitimate source”. The letter also stated that language
did not appear to be a contributing factor in the Applicant’s failure to
declare the seized currency or to answer the CBSA officer’s questions
concerning the currency. The Applicant was asked to provide further
documentary evidence to link the EUR10,000 of the seized funds to the sale of
the pizza shop, to show that the remaining seized funds were withdrawn from the
claimant’s savings account and the source of the funds in that account.
[8]
On
May 4, 2011 the Applicant provided the pizza shop purchase agreement and the
withdrawal receipt noting that both had previously been submitted. He stated
that the information he had previously provided should serve to establish that
he had worked hard and saved his money. As to the portion of the seized funds
not addressed by the withdrawal receipt and the sale of the pizza shop, he
stated that this came from smaller previous withdrawals from the bank and money
kept on site at the pizza shop.
[9]
By
letter of June 10, 2011 the adjudicator accepted that the Applicant appeared to
have sold his pizza shop for EUR10,000 on February 1, 2010, the bank withdrawal
for EUR2000 on August 11, 2010, and, that his tax documents showed his
income in 2008 but stated that there was “still insufficient documentary
evidence to link the seized funds to the sale of the business and the
claimant’s earnings”. Further, as no records of his living expenses had been
provided it could not be determined how much of the business sale proceeds and
his other earnings remained once those living expense were taken into account.
The Applicant was again asked to provide a complete paper trail to link the
seized funds to the sale of the pizza shop and his earnings.
[10]
The
Applicant responded by letter of July 12, 2011 providing a letter from the
purchaser of the pizza shop confirming that he had paid the purchase price of
EUR10,000 by way of twenty bills of EUR500 each.
[11]
By
letter of July 26, 2011 the adjudicator acknowledged the Applicant’s letter of
July 12, 2011 but stated that it appeared that there was still
insufficient evidence to link the seized funds to the sale of the pizza shop
and the Applicant’s earnings.
[11]
[12]
More
specifically, the funds received from the sale of the shop were less than the
amount seized and there was no documentation linking the seized funds to that
source. Further, based on the other documents submitted, the amount claimed as
earned in 2008 would have been received two years before the seizure and it
could not be confirmed that any of the seized funds came from those earnings.
The documents pertaining to the business assessment for 2008 and 2009 did not
appear to provide evidence relating to the origin of the seized funds and the
bank withdrawal slip showed an amount that was less than the amount seized and
did not provide any information as to the original source of those funds. In
addition, the Applicant’s living expenses were not accounted for in connection
with the proceeds realized from the sale of the pizza shop and his earnings.
[13]
On
October 21, 2011 the adjudicator prepared a Case Synopsis and Reasons for
Decision. This set out the evidence and submissions and recommended that the
Minister find, pursuant to subsection 27(1) of the Act, that the Applicant had
contravened subsection 12(1) of the Act by failing to report the imported
currency and that the seized funds be held a forfeit pursuant to subsection
29(1)(c).
[14]
The
Manager, Appeals Directorate, Recourse Director, CBSA, as the Minister’s
delegate (Manager), accepted the recommendations. By letter of December 7,
2011 she informed the Applicant of the Minister’s decision (the Decision). By
way of this judicial review the Applicant seeks an order setting aside the
Decision and returning the matter for redetermination.
The Decision under
Review
[15]
The
Decision states that pursuant to subsection 27 of the Act, the Manager, as
delegate for the Minister, has decided that there has been a contravention of
the Act with respect to the currency seized (subsection 12(1)) and that under
the provisions of section 29 of the Act, the seized currency shall be held as
forfeit.
[16]
The
reasons stated in the Decision recite the CBSA officer’s initial grounds for
seizing the currency and suspecting that it was the proceeds of crime as
originally recorded the Narrative Report. These included that:
• The Applicant and his
sister both left Sri Lanka as refugees at a time when Tamil Tigers were also
fleeing Sri Lanka;
• The Applicant had
travelled from Germany to Canada after travelling to Sri Lanka a month earlier;
• He could not explain
how he could afford tickets to visit both Sri Lanka and Canada;
• He gave conflicting
stories regarding the purpose of his trip and provided limited details about
his visit;
• He gave conflicting
stories regarding the person meeting him at the airport;
• He was evasive and
nervous when asked about the Tamil Tigers;
• The seized currency
was not wrapped and the notes were not all facing the same way, indicating it
was not obtained from a bank;
• The currency had not been reported to
German customs;
• There were
discrepancies in his story regarding travel, employment and the source of the
funds;
• He had difficulty
explaining how the currency came into his possession and had no documents
proving its origin;
• His business practice
of dealing in cash and using multiple banks suggests an attempt to avoid the
banks’ reporting requirements;
• He gave contradictory
statements concerning the reason he was going to give his sister the money;
• He could not provide
information about his personal finances; and
• He was not aware of
the amount of currency in his possession and did not express concern about its
seizure.
[17]
The
reasons then describe the Applicant’s submissions in requesting the appeal and
responds to each in turn. With respect to his assertion that he did not
understand English well enough to understand the declaration form requirements,
the Manager states that the CBSA officer had specifically stated in her report
that there was no language problem. The CBSA officer had asked if the
Applicant fully understood everything on the declaration card and that the
Applicant stated that he did and that he knew how to properly declare.
Further, the Manager indicated that if the Applicant did not understand the
questions on the declaration card or the questions being asked by the CBSA
officer, then it was incumbent upon him to bring that to the CBSA officer’s
attention, at the time, so that any necessary assistance could have been
provided. The Manager concluded that language was not a contributing factor in
the Applicant’s failure to report the currency in his possession.
[18]
As
to the seized funds, while the Applicant submitted that the seized funds came
from the sale of his pizza shop and other business earnings, the Manager was
not satisfied that the evidence the Applicant had submitted established the
legitimate origins of the currency. The sales agreement indicated the pizza
shop sold for EUR10,000 on February 1, 2010. However, those funds were less
than the amount seized even when combined with the EUR2,000 personal withdrawal
confirmed by receipt. There was no documentary evidence linking the proceeds
from the sale to the seized funds.
[19]
The
Applicant’s business tax return for 2008 showed that his business generated
EUR200,171 in revenue. The Manager pointed out that these earnings were
received two years prior to the date of seizure and there was no documentary
evidence linking the proceeds of the business to the seized funds. The
withdrawal receipt for EUR2000 similarly did not provide any information
regarding the original source of those withdrawn funds. Further, no
documentation had been provided to demonstrate the Applicant’s current living
expenses. As a result, the Manager was unable to determine how much of the
seized funds came from the suggested legitimate origin after the Applicant’s
living expenses had been taken into consideration. Given this, the Minister
declined to exercise his discretion to release the funds from forfeiture.
Issues
[20]
The
Applicant submits that there was a failure of natural justice as an interpreter
was not provided to the Applicant when one was requested at the port of entry,
and, that the Minister failed to reasonably exercise his section 29 discretion
with respect to forfeiture.
[21]
I
would rephrase the issues as follows:
a. What
is the appropriate standard of review?
b. Was
there a breach of procedural fairness?
c. Did
the Minister’s delegate err in determining the funds as forfeit?
Positions of the
Parties
The Applicant
[22]
The
Applicant submits that he speaks English with difficulty and that he requested
a German interpreter several times when he was being interviewed by the CBSA
officer at the port of entry. Because he was not provided with an interpreter
when he requested one and because his command of English was insufficient to
effectively communicate answers to questions put to him by the CBSA officer and
because negative inferences were drawn from the alleged inconsistencies in the
Applicant’s answers, there was a breach of procedural fairness amounting to a
reviewable error.
[23]
The
Applicant further argues the Minster’s discretion pursuant to section 29 of the
Act was not exercised reasonably. In Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255, [2008] FCJ No 1267,
the only evidence before the Minister was unverifiable affidavits. In
contrast, in this case the Applicant provided verifiable documents including the
sale agreement for the pizza shop for EUR10,000; a bank receipt showing a
withdrawal of EUR2,000; and, a business tax return showing business revenue of
EUR200,171.
[24]
To
the Applicant, the Minister was asking for the impossible by insisting on
documentary evidence linking the proceeds from the sale of the pizza shop to
the seized funds and was therefore unreasonable. It was a cash sale, there is
no direct documentary evidence and the Applicant provided reasonably sufficient
corroborating documents.
[25]
The
Applicant points out that only EUR3,530 is not accounted for after the pizza
shop sale agreement and bank withdrawal are considered, a mere 2.5% of the
Applicant’s 2008 business revenues. Further, it is reasonable to assume the
EUR2,000 personal withdrawal and the undocumented EUR3,530 came from his
business proceeds. Given the submitted documentation, the Applicant submits
that it was not reasonable for the Minister to conclude that he has not been
satisfied that the seized funds are not proceeds of crime.
[26]
The
Applicant also argues that the Decision is undermined by innuendo linking the
Applicant to the Tamil Tigers with no evidence to substantiate the allegation. The
Minister’s observations and conclusions linking the Applicant to the Tamil
Tigers are unreasonable.
The Respondent
[27]
The
Respondent emphasizes there is no issue here of whether there was a failure to
declare the currency and resultant breach of section 12 of the Act. Any
contestation of that finding must be by way of an appeal under section 27 of
the Act. This judicial review is only concerned with the Minister’s decision
under section 29 to keep the currency as forfeit.
[28]
The
Respondent submits there was no request for or need of an interpreter by the
Applicant when he was being interviewed by the CBSA officer at the port of
entry. The record establishes that the Applicant told the CBSA officer that he
understood the declaration and that he had signed the card himself, and, in his
subsequent submissions he did not deny making those statements. The officer’s
notes state that the Applicant “had good command of the English language and
had no difficulty understanding the questions”. This is confirmed by the
Narrative Report which is indicative of a lengthy conversation with the
Applicant who was able to express himself clearly and in detail in response to
the questions asked of him.
[29]
The
Respondent points out that in his initial communication to the CBSA, dated
August 18, 2010, the Applicant states that he had a limited
understanding of English but makes no mention of a refusal to provide
translation. This allegation arose only after the Respondent indicated in
correspondence of October 29, 2010 that the Applicant understood the questions
put to him and should have requested assistance if it was needed. Even if an
interpreter had been provided, it would not have changed the outcome of the
examination given the Applicant’s itinerary, social background, false
declaration and behaviour.
[30]
The
Respondent denies that there was an association inferred between the Applicant
and the Tamil Tigers. The Respondent submits that the record shows that the
Applicant denied an association personally with the Tamil Tigers and was
questioned as to whether his family sympathised with them even if he did not.
His reaction to this topic would have been the same with a translator.
[31]
The
Respondent submits that the Decision was reasonable because the three submitted
documents did not establish a legitimate source of the seized funds. Funds
from the sale of the business a year earlier are not linked by virtue of the
sale contract alone to the seized currency. No document linked any income
earned in 2008 to the seized currency. The withdrawal receipt was for an
amount that was less than the difference between the amount seized and the
pizza shop sale proceeds and there was no document to confirm the legitimate
origin of the withdrawn funds. The onus is on the Applicant to persuade the
Minister that the funds are not the proceeds of crime (Sellathurai,
above; Lau v Canada (Minister of Public Safety and Emergency Preparedness),
2012 FC 788, [2012] FCJ No 813) which the Applicant could have done by
providing documents normally credible or authoritative enough to connect
currency to a legitimate source, such as bank account balances, export
declarations from German customs, or wrappers from the bank but declined to do.
Therefore, the Minister’s Decision was reasonable.
Standard
of Review
[32]
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard (see
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[33]
In
Sellathurai, above, the Court of Appeal indicated the standard of review
of the Minister’s decisions is reasonableness (at paragraph 25). This approach
was followed by this Court in Lau, above at paragraph 29.
[34]
In
reviewing a Minister’s decision on the standard of reasonableness, the Court
should not intervene unless the decision is not transparent, justifiable, and
intelligible and within the range of acceptable outcomes based on the evidence
before it (see Dunsmuir, above, at paragraph 4). It is not up to a
reviewing court to substitute its own view of a preferable outcome, nor is it
the function of the reviewing court to reweigh the evidence (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
at paragraph 59).
[35]
It
is well-established that on the content of procedural fairness, no deference is
owed to a tribunal (Khosa, above, at paragraph 43).
Was there a
breach of procedural fairness?
[36]
While
no deference is owed to tribunals on the content of the duty of fairness, the
procedural fairness claim in this case turns on a factual dispute: whether or
not the Applicant requested an interpreter. The Respondent denies that a
request for an interpreter was made. It does not appear to dispute that if the
Applicant did in fact request an interpreter and was denied one, then the duty
of fairness would have been violated. This Court is therefore not called upon
to determine the content of the duty of fairness.
[37]
Since
the dispute is a purely a factual matter, this Court owes deference to the
decision-maker entrusted by Parliament to that task, in this case the CBSA
Manager as the Minister’s delegate (Khosa, above, at paragraph 46). Simply
because the factual finding is relevant to a procedural fairness dispute does
not mean that the Court becomes a finder of fact where a reviewing a tribunal
that has already considered the issue.
[38]
Here
the Manager concluded that language was not a contributing factor in the failure
to report the currency i.e. the contravention of subsection 12(1), which
contravention she then determines, pursuant to section 27, has occurred. The
Manager stated in her reasons that if the Applicant did not understand the
questions asked on the declaration card or by the CBSA officer at the port of
entry then it was incumbent upon him to have brought this to the CBSA officer’s
attention, at that time, so that any necessary assistance could be provided.
The Manager’s implicit finding of fact is, therefore, that the Applicant did
not request an interpreter.
[39]
In
reaching these conclusions the Manager relied on the Narrative Report of the
CBSA officer. This is a detailed seven page report made on the day that the
Applicant entered Canada. This states, in part:
Upon his arrival at my counter, SATHEESAN was asked
if the bag and belongings he was travelling with were his, if he packed them
himself, and if he knew the contents of the bags. SATHEESAN answered yes to all
three individual questions. SATHEESAN was asked if there was anything sharp or
dangerous in the bag, to which he replied that there was not. SATHEESAN was
asked if his bag left Germany with him, SATHEESAN replied yes, SATHEESAN was
asked if the E311 card in my hand was his declaration card, he replied yes. He
was asked if he fully understood everything on that card. SATHEESAN replied
that he had, and knew how to declare properly. An explanation of the
examination process was given to SATHEESAN. SATHEESAN did not have any
questions.
SATHEESAN had good command of the English language,
and had no difficulty listening, understanding and answering questions in
English.
[40]
The
Narrative Report then proceeds, for the next six pages, to describe the verbal
examination of the Applicant that followed and the Applicant’s responses to the
many questions put to him.
[41]
The
Applicant submits that he requested both water and an interpreter. The
Narrative Report confirms that the Applicant did ask for a glass of water. The
CBSA Officer recorded that she told him that she would get it for him but that
it was important that he answer her questions. She then asked her question
again. There is no indication as to whether or not she provided the requested
water. The Narrative Report makes no reference to a request for an
interpreter.
[42]
In
his August 18, 2010 Notice of Objection the Applicant stated that he did not
know English well enough to allow him to understand the declaration form
clearly and that he was unsure of the amount of money he was permitted to import
without declaring it. In his letter of November 22, 2010 the Applicant,
for the first time, asserted that he had asked for an interpreter but that this
had been denied by the CBSA officer on the basis that the Applicant’s English
was sufficient.
[43]
The
Manager did not accept the Applicant’s submission that he had asked for and
been denied an interpreter. She preferred and accepted the evidence of the
CBSA officer and, based on that evidence, concluded that language was not a
contributing factor in the Applicant’s failure to report the importation of the
seized currency. She also accepted as fact that the Applicant had a good
command of the English language and had no difficulty listening to,
understanding and answering questions in English as stated in the Narrative
Report.
[44]
As
discussed above, the Manager is entitled to considerable deference from a
reviewing court on factual findings (Khosa, above at paragraph 46). I
see no reason to disturb her implicit finding that there was no request for an
interpreter as it is transparent, justifiable and intelligible and is not
outside the range of reasonable outcomes based on the evidence on the record
before her.
[45]
Since
he has not successfully impugned that factual finding, the Applicant has no
basis to argue that there was a breach of procedural fairness amounting to a
reviewable error.
Did the
Minister’s delegate err in keeping the funds as forfeit?
[46]
In
Sellathurai, above, funds were seized and forfeited because Mr.
Sellathurai failed to declare them to a customs officer as he was required to
do by section 12 of the Act. It was conceded that, at the time of the seizure,
there were reasonable grounds to suspect that the funds were proceeds of crime
or were to be used in the funding of terrorism. The issue before the Federal
Court of Appeal was whether the Minister properly exercised his discretion in
refusing to return the funds to Mr. Sellathurai.
[47]
There
the Court of Appeal described what is at issue in a judicial review of a
section 29 decision of the Minister:
[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. That is what the Minister requested in this case, and when
Mr. Sellathurai was unable to satisfy him on the issue, the Minister was
entitled to decline to exercise his discretion to grant relief from forfeiture.
[48]
The
Court of Appeal also held that there is no standard of proof in section 29
decisions separate from the standard of review of reasonableness:
[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.
[49]
In
this case, the Minister followed the approach described in Sellathurai,
above, by repeatedly asking for documentary proof of a legitimate source of the
seized funds. Therefore, here the question is whether it was reasonable for
the Minister to conclude, based on the evidence before him, that he was not
satisfied as to the legitimate source of the funds.
[50]
While
in Sellathurai, above, the only evidence tendered was unverifiable
affidavits, in my view in this case it was also reasonable for the Minister to
conclude that the documents submitted by the Applicant were insufficient to
establish the legitimacy of the funds. The only funds for which a direct and
potentially legitimate source was identified were those realized from the sale
of the pizza shop. However, there is no certainty that the twenty EUR500 bills
seized were, in fact, the proceeds of the sale of that enterprise. That is,
there is no linkage of that cash to that transaction. Further, in the absence
of other financial documents showing the Applicant’s spending in the
intervening two years, it was reasonable for the Minister to decline to assume
the entire EUR10,000 was preserved intact as urged by the Applicant.
[51]
The
Minister also asked repeatedly for documentation linking the EUR2000 that the
Applicant withdrew from his bank account to a legitimate source. The bank
withdrawal does not indicate the initial source of the EUR2000, that is,
whether it was from the 2008 revenue from the pizza shop or otherwise. This is
something that records from the same bank would presumably have disclosed and
which could have been provided by the Applicant. The Applicant also declined
to produce any records that might have shown that the earnings from his
business have sustained him since 2008 and were the legitimate source of the
EUR2000 that he withdrew from his personal account.
[52]
As
to the income tax records, these show that the business earned money, but do
not show how the seized money is connected to those earnings. In short, the
Applicant failed to establish a link between the seized funds and a legitimate
source of same.
[53]
I
am also unable to accept the Applicant’s argument that the Minister asked for
the impossible and, therefore, that the Decision is unreasonable. The onus is
on the Applicant to persuade the Minister to exercise his discretion to grant
relief from forfeiture by satisfying him that the seized funds are not the
proceeds of crime. The Respondent argued that the Minister sought the
impossible as, in the case of the cash sale, little short of an uninterrupted,
documented serial number trail of the EUR500 bills from the time they were
received as payment for the pizza shop to the time of the seizure would suffice
to link the cash to a legitimate source. At first glance, this argument
appears to have some merit. However, when viewed in the context of the very
nominal documentation that the Applicant was prepared to provide in response to
the Minister’s repeated requests, as compared to the records that would
normally and therefore reasonably be assumed to exist with respect to business
and personal financial transactions, and considering the objects of the Act as
described in section 3 (see also Lau, above at paragraph 35), I do not
think the Minister’s request was unreasonable.
[54]
Because
the Applicant did not provide sufficient evidence to satisfy the Minister that
the seized funds are not the proceeds of crime, the Minister reasonably
declined to exercise his discretion to grant relief from forfeiture under
section 29. The Decision is not reviewable.
[55]
The
Applicant also argues that the Decision is undermined by “innuendo” linking the
Applicant to the Tamil Tigers and that the Minister’s observations and
conclusions in that regard are unreasonable. Some of the comments in the
record relating the applicant’s Tamil ethnicity, viewed in isolation, do give
me pause. For example, to find it suspicious that the Applicant fled Sri Lanka at the same time as members of the Tamil Tigers is questionable given that the
Applicant was a child at the time and there was a civil war in that country
that caused many to flee. Similarly, to suspect the Applicant of illegal
activity on the basis that he was visiting a Scarborough neighbourhood “known
to be sympathetic to the Tamil Tigers” could be viewed as stereotyping. It
also seems reasonable to expect any person being questioned in an airport in
relation to terrorism to react in a nervous fashion.
[56]
Here,
however, these matters are not relevant because only the Minister’s decision
made pursuant to section 29 is at issue. There is no really question that the
Applicant failed to declare the importation of funds exceeding CAN$10,000.
But, because the funds were then seized as forfeit pursuant to subsection 18(1)
and were not returned because the CBSA officer had reasonable grounds to suspect
that the currency was the proceeds of crime pursuant to subsection 18(2), the
only way for the Applicant to challenge the section 18 seizure was to make a
section 25 request for a decision of the Minister as to whether subsection
12(1) was contravened. If the Minister decided that it was, which he did, then
pursuant to subsection 29(1) he may exercise his discretion to provide relief
from forfeiture (see Sidhu v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 911).
[57]
As
stated in Sellathurai, above:
[34] The Minister is only called upon to
exercise his discretion under section 29 where he concludes, pursuant to a
request made under section 25, that there has in fact been a breach of section
12. Consequently, the starting point for the exercise of the Minister's
discretion is that the forfeited currency, which is now in the hands of the
Minister of Public Works pursuant to section 22, is, for all legal purposes,
property of the Crown: see Canada v. Central Railway Signal Co., [1933]
S.C.R. 555 at p. 557-558, where the following appears:
[…]
[…]
[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.
(Emphasis added)
[58]
Thus,
those factors are not relevant. They did not play a role in the determination
of the legitimacy of the funds under section 29. In the Decision, the
reference to the Tamil Tigers is made only as a part of the rationale for the
initial seizure. The portion of the Decision dealing with section 29 is
concerned with the documentary evidence provided by the Applicant in an effort
to establish the legitimate origins of the seized currency, as described
above. In any event, in its submissions the Respondent stated that there was
no association inferred between the Applicant himself and the Tamil Tigers.
[59]
As
the question of the partial return of the funds was not before the Minister it
cannot be considered for the first time on judicial review.
[60]
The
Minister’s Decision was transparent, justifiable, intelligible and within the
range of acceptable outcomes. The application should therefore be dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed. No question of general importance for certification has been
proposed and none arises.
“Cecily Y. Strickland”
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