Docket: T-1986-15
Citation:
2016 FC 1382
Ottawa, Ontario, December 16, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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MONTASSER SAAD
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Applicant
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and
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RECOURSE
DIRECTORATE - CANADA BORDER SERVICES AGENCY
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is a judicial review concerning the actions
taken against Mr. Saad by the Canada Border Services Agency (CBSA) at the
Rainbow Bridge on July 12, 2015. Mr. Saad claims he was not given the
opportunity to make a truthful declaration. He says the CBSA Agents he
encountered were aggressive and refused to give him the opportunity to explain
himself. The events which unfolded resulted in his vehicle being seized and a
penalty of $355.59 being assessed against him for his failure to declare a
swimming pool cover. He says it was all the result of a misunderstanding.
[2]
I believe Mr. Saad when he says this happened as
a result of a misunderstanding. A contributing factor is that Mr. Saad’s first
language is neither English nor French. However, the issue of whether Mr. Saad
contravened the Customs Act, RSC, 1985, c 1 (2nd Supp) [Customs
Act] cannot be considered on this application. The only issue is if the
penalty assessed is within the range of discretion afforded to the CBSA and if
it is reasonable. For the reasons that follow, I find that it was, and
therefore the judicial review is dismissed.
II.
Events at the Border on July 12, 2015
[3]
On his wedding anniversary on July 12, 2015, Mr.
Saad and his wife travelled to the United States to pick up a cover for their swimming
pool which they had ordered online from Walmart. They were only in the U.S. for
a couple of hours. They returned to Canada via the Rainbow Bridge. They advised
the first CBSA Officer they encountered that they had only been in the U.S. for
a couple of hours. Following this, what was, or was not, declared or said by
Mr. Saad to this Officer, is in dispute. Mr. Saad claims that he immediately
told the first Officer that he had been to the U.S. to see that side of Niagara
Falls and to pick up an order. The Officer denies that Mr. Saad declared any
goods. This Officer checked the trunk of the Saad vehicle, saw a large box, and
referred Mr. Saad and his wife for secondary examination.
[4]
At the secondary examination, the CBSA Officers
[the Secondary Officers] found a box containing the pool cover in the trunk. Mr.
Saad says that the Secondary Officers asked if he bought the pool cover that
day. He states that he tried to explain that it had previously been purchased
online. However, according to Mr. Saad, the Secondary Officers insisted that he
was lying, and threatened seizure of his vehicle and the pool cover.
[5]
At some point, a receipt in the amount of
$422.63 USD for the pool cover was provided. According to Mr. Saad, he produced
the receipt voluntarily. According to the CBSA, it was discovered after a
search of Mr. Saad’s wallet. Mr. Saad claims that he tried to explain the
situation, but the Secondary Officers were aggressive and he was told not to speak.
Mr. Saad states that at one point he asked the Secondary Officers if he could
get his medication from his car, as he suffers from serious health conditions,
but his request was refused.
[6]
The Secondary Officers seized the pool cover and
Mr. Saad’s vehicle on the basis that the pool cover had been unlawfully
imported due to his failure to report it, contrary to section 12 of the Customs
Act. Release of the vehicle and the pool cover was offered to Mr. Saad upon
payment of a penalty in the amount of $355.59. The penalty was calculated based
on 40% of the value of the pool cover plus an additional 50%. Mr. Saad paid the
penalty, and his vehicle and the pool cover were released to him.
[7]
During this process, the Secondary Officers also
seized and revoked Mr. Saad’s NEXUS card on the basis that he had violated the
terms of the NEXUS program. His wife’s NEXUS card was also seized, but
apparently it has since been returned.
[8]
Mr. Saad requested a review of these actions pursuant
to the Customs Act. On July 27, 2015, Notice of Reasons for Action were
provided to Mr. Saad by a Senior Appeals Officer. Over the following months, Mr.
Saad communicated several times with the Senior Appeals Officer regarding the
adjudication of his case. On October 27, 2015, the Senior Appeals Officer
provided a recommendation to the Minister’s delegate.
III.
Minister’s Decision
[9]
The October 29, 2015 decision of the Minister upheld
the finding of a contravention of the Customs Act and upheld the penalty
of $355.59.
[10]
The Minister accepted the version of events as provided
by the CBSA Officers. Namely, the Minister accepted that Mr. Saad initially indicated
that he had nothing to declare, and after the pool cover was discovered, he claimed
that it came from Canada. The Minister noted that the receipt for the purchase
of the cover was located during secondary examination. The pool cover was seized
because it was not reported. The Saad vehicle was also seized.
[11]
In the decision, the Minister acknowledged that Mr.
Saad has a different version of the events that transpired.
[12]
On the issue of contravening the Customs Act,
the Minister noted that “the lack of any intention to
circumvent the reporting requirements or to deceive CBSA officials is not
relevant to the determination of whether or not the obligation to report has
been contravened.” The Minister also noted that the onus is on the
importer (Mr. Saad) to declare all of the goods purchased, received, or
acquired.
[13]
The Minister concluded that Mr. Saad had been
afforded sufficient opportunity to declare the pool cover and that he failed to
do so. The finding of contravention of the Customs Act was upheld.
[14]
With respect to the penalty, the Minister concluded
that it was in accordance with the CBSA guidelines.
[15]
Finally, the Minister outlined the options available
to Mr. Saad to appeal the decision. To appeal against the finding pursuant to
section 131, that he contravened the Customs Act, Mr. Saad must file an action
in the Federal Court. Whereas, an appeal of the penalty decision made pursuant
to section 133 may be done by way of an application for judicial review
to the Federal Court.
[16]
The option Mr. Saad chose was to file an
application for judicial review pursuant to section 133 of the Customs Act.
IV.
Issues
[17]
Mr. Saad raises a number of issues which I have
framed as follows:
A.
Can this court review the finding that Mr. Saad contravened
the Customs Act?
B.
Was the penalty assessed against him reasonable?
V.
Analysis
A.
Can this court review the finding that Mr. Saad
contravened the Customs Act?
[18]
In his submissions, Mr. Saad explained that he
is an honest person and that the events that happened on July 15, 2015 are the result
of a misunderstanding. He says that each time he tried to offer an explanation
to the CBSA Officers, he was cut off and told he had already committed an
offence. The desire to clear his name is what drove Mr. Saad to undertake the various
administrative appeals and it is what drove him to file this application for
judicial review.
[19]
However, unfortunately for Mr. Saad, he has
chosen the wrong option. As noted above, in response to the Minister’s decision,
Mr. Saad had two options. His first option was to file an action against
the Minister regarding the finding that he breached the Customs Act. He
did not take this option. The other option was to file a judicial review application
against the penalty imposed. This is the option he chose. Therefore, the only
issue for consideration on this judicial review application is the penalty assessed
against him by the CBSA.
[20]
Again, the issue of contravention of the Customs
Act can only be challenged by way of an action (Pounall v. Canada (Border
Services Agency), 2013 FC 1260 at para 15).
[21]
Because the contravention of the Customs Act
cannot be considered on this application, I will not address any arguments made
by Mr. Saad on whether any contravention in fact occurred.
B.
Was the penalty assessed against him reasonable?
[22]
The majority of Mr. Saad’s submissions dispute
the version of events accepted by the Minister. Mr. Saad claims that he was not
asked whether he had any goods to declare. This is contradicted by the CBSA Officers’
reports.
[23]
However, this factual dispute is largely irrelevant
because of the operation of section 12 of the Customs Act which imposes
a positive obligation on Mr. Saad to report. This obligation to report exists
regardless of whether he was asked if he was bringing anything with him. Section
12 requires that all imported goods are to be reported to the CBSA at the time
of entry (Prue v. Canada (Public Safety & Emergency Preparedness),
2010 FC 1234, rev’d on other grounds 2012 FCA 108).
[24]
What this means for Mr. Saad is that an honest
mistake or a misunderstanding is no defence. The fact that Mr. Saad did not
intend to contravene the Customs Act is irrelevant in assessing whether
or not a seizure and penalty is valid.
[25]
As the court in Trites v. Canada (Public
Safety and Emergency Preparedness), 2011 FC 1365 at para 18, stated:
[18] The Customs Act
depends, for its effective operation, on voluntary reporting and strict
liability attaches to those that fail to report: Prue v Canada (Public
Safety and Emergency Preparedness), 2010 FC 1234. The lack of intention is
thus irrelevant in assessing whether or not a seizure and penalty is valid. The
violation occurs when there is a failure to report.
[26]
With respect to the amount of the penalty,
because it is within the discretion of the CBSA, this court will only consider if
it is reasonable (United Parcel Service Canada Ltd. V. Canada (Public Safety
and Emergency Preparedness), 2011 FC 204 at paras 43, 45, and Thomas v.
Canada (Public Safety and Emergency Preparedness), 2011 FC 734 at para 26).
[27]
As well, this court will not interfere if the discretion
was properly exercised and if the decision falls within the range of possible
outcomes (Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47).
[28]
Section 117 of the Customs Act authorizes
an Officer to offer a traveller an amount payable for the release of goods and
conveyance from seizure. This amount may equal up to the aggregate of the value
for duty of the goods and the amount of any duties levied. Based on the Enforcement
Manual, the calculation of the terms of release depends on two factors: (1) the
group that the commodity falls into and (2) the level of infraction. The
Enforcement Manual states that Level 2 “applies to
violations where the circumstances demonstrate an active attempt by the
importer to contravene the Customs Act.” Specifically, under the heading
of “Non-Report and Inaccurate Information”, the
Enforcement Manual states that Level 2 is applied when the circumstances are
the same as for Level 1, but “inaccurate information is
given concerning the goods following their discovery”.
[29]
Here the penalty was assessed at Level 2 because,
according to the CBSA, not only was there an active attempt to contravene the
law, but Mr. Saad provided inaccurate information concerning the pool cover
following its discovery. Further, the CBSA submits that the amount charged for
the return of the pool cover and release of the vehicle (40% of the value of
the pool cover plus an additional 50%) is reasonable because it is within the
range allowed by the Customs Act.
[30]
Mr. Saad did not identify any material fact
relevant to the penalty decision which the Minister misapprehended. I also note
that this was not the maximum penalty that could have been assessed against Mr.
Saad under the Customs Act.
[31]
Considering the provisions of the Customs Act
and the applicable guidelines, the penalty prescribed is justifiable and is
within the limits of the discretion afforded to the CBSA in subsections 117(1)
and 133(4) of the Customs Act, it is therefore reasonable.
[32]
The judicial review is dismissed. I decline to
award costs.
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