Teitelbaum,
J.:—Plaintiff,
Her
Majesty
the
Queen,
is
claiming
from
the
defendant,
Dame
Andrée
Denise
Pharand
(Pharand)
the
total
sum
of
$84,759.19.
Plaintiff
is
making
the
claim
as
a
result
of
the
defendant's
failure
to
declare
the
true
value
of
automobile
parts
that
she
imported
into
Canada
in
1973,
1974
and
from
January
to
May
1975.
The
hearing
was
called
before
me
in
Montreal
on
March
18,
1986.
The
defendant
failed
to
appear
when
her
name
was
called.
The
attorney
for
plaintiff
informed
the
Court
that
he
received
a
letter
dated
March
12,
1986
from
the
law
firm
of
Chait,
Solomon
&
Associates
informing
him
that
it
was
the
intention
of
the
defendant
personally
and
of
a
company
controlled
by
her,
Apasco
Distributors
Ltd.,
to
declare
bankruptcy.
Therefore,
the
defendant
did
not
have
the
intention
to
appear
in
court
to
contest
plaintiffs
claim.
The
defendant
filed
a
written
plea
to
plaintiff’s
action
in
which
she
raised
a
number
of
important
legal
arguments.
The
defendant,
not
being
present,
failed
to
make
proof
of
any
allegations
relating
to
facts.
The
important
legal
arguments
raised
by
the
defence
are:
(1)
Plaintiff’s
claim
is
prescribed.
(2)
Defendant
was
only
acting
as
a
selling
agent
and
thus
cannot
be
considered
an
"importer".
(3)
The
fact
that
defendant
failed
to
state
the
true
value
of
the
merchandise
imported,
is
this
"fraud"
as
claimed
by
the
plaintiff.
I
believe
that
it
is
necessary
to
address
the
legal
arguments
raised
in
the
written
pleadings
of
the
defendant.
1.
Prescription
The
defendant
claims
that
plaintiff’s
claim
is
prescribed.
The
question
to
be
answered
is,
can
prescription
run
against
the
Crown
for
any
claim
it
makes
for
customs
duties
under
the
Customs
Act,
R.S.C.
1970
c.
C-40,
for
any
claim
it
makes
under
the
Excise
Tax
Act,
R.S.C.
1970,
c.
E-13
and
for
any
penalty
under
the
Customs
Act,
R.S.C.
1970,
c.
C-40.
The
Customs
Act
is
clear
as
to
the
question
of
prescription
for
claims
by
the
Crown
for
customs
duties.
Section
102
of
the
Customs
Act
states:
The
true
amount
of
customs
duties
payable
to
Her
Majesty
with
respect
to
any
goods
imported
into
Canada
or
exported
therefrom,
from
and
after
the
time
when
such
duties
should
have
been
paid
or
accounted
for,
constitutes
a
debt
due
and
payable
to
Her
Majesty,
jointly
and
severally,
from
the
owner
of
the
goods
at
the
time
of
the
importation
or
exportation
thereof,
and
from
the
importer
or
exporter
thereof,
as
the
case
may
be;
and
such
debt
may,
at
any
time,
be
recovered
with
full
costs
of
suit,
in
any
court
of
competent
jurisdiction,
and
any
goods
afterwards
imported
or
exported
by
the
owner
are
subject
to
a
lien
for
such
debt
and
may
be
withheld
from
delivery
by
customs
until
such
debt
is
paid.
R.S.
c.
58,
s.
102.
The
important
words
in
this
article
are
“at
any
time".
I
am
therefore
of
the
opinion
that
these
words
clearly
indicate
that
a
claim
by
the
Crown
for
customs
duties
cannot
be
prescribed;
the
Crown
having
the
right
“at
any
time"
to
proceed
to
collect
customs
duties
owing
to
it
as
a
result
of
a
false
declaration
as
to
the
true
value
of
the
goods
imported
into
Canada.
The
same
would
apply
to
any
tax
owing
by
virtue
of
the
Excise
Tax
Act,
R.S.C.
1970,
c.
E-13.
Subsection
52(1)
of
the
Excise
Tax
Act
states:
All
taxes
or
sums
payable
under
this
Act
shall
be
recoverable
at
any
time
after
the
same
ought
to
have
been
accounted
for
and
paid,
and
all
such
taxes
and
sums
shall
be
recoverable,
and
all
rights
of
Her
Majesty
hereunder
enforced,
with
full
costs
of
suit,
as
a
debt
due
to
or
as
a
right
enforceable
by
Her
Majesty,
in
the
Exchequer
Court
of
Canada
or
in
any
other
court
of
competent
jurisdiction.
Here
again,
the
important
words
are
“‘at
any
time".
I
am
therefore
of
the
opinion
that
the
Crown
can,
at
any
time,
proceed
to
claim
excise
tax
owing
to
it
as
a
result
of
merchandise
imported
into
Canada
upon
which
such
taxes
are
due
and
have
not
been
paid
for
in
accordance
with
the
Act.
The
same
does
not
apply
for
a
penalty
which
the
Crown
may
be
entitled
to
claim
under
the
Customs
Act
R.S.C.
1970,
c.
C-40.
Section
265
of
the
Customs
Act
states:
All
seizures,
prosecutions
or
suits
for
the
recovery
or
enforcement
of
any
of
the
penalties
or
forfeitures
imposed
by
this
Act,
or
any
other
law
relating
to
the
customs,
may
be
made
or
commenced
at
any
time
within
three
years
after
the
of-
fence
was
committed,
or
the
cause
of
prosecution
or
suit
arose,
but
not
afterwards.
R.S.,
c.
58,
s.
265.
Here
it
can
be
clearly
seen
that
the
Crown
is
limited
to
a
three-year
prescription.
The
Crown
must
within
three
years,
of
its
right
to
recover
any
penalty,
commence
its
legal
proceedings
to
so
recover.
It
is
for
the
above
reason
that
the
plaintiff,
in
the
present
case,
has
only
claimed
for
a
penalty
for
1974
and
1975.
Plaintiff
commenced
its
action
in
the
Federal
Court
of
Canada
on
November
30,
1976
and
thus
could
not
go
back
beyond
November
30,
1973.
2.
Defendant
was
only
acting
as
Sales
Agent
Assuming
that
the
defendant
was
only
acting
as
a
"sales
agent”,
can
she
be
considered
as
an
importer
under
the
Customs
Act.
It
must
be
remembered
that
the
defendant,
not
being
present,
did
not
make
any
proof
of
this.
In
determining
the
question
of
whether
or
not
the
defendant
was
an
"importer”
one
must
first
look
at
the
sections
of
the
Customs
Act
relating
to
this
matter.
Paragraph
20(b)
states:
A
bill
of
entry
of
such
goods,
in
such
form
as
is
appointed
by
a
competent
authority,
fairly
written
or
printed,
or
partly
written
and
partly
printed,
and
in
duplicate,
containing
the
name
of
the
importer,
and
if
imported
by
water,
the
name
of
the
vessel
and
of
the
master,
and
of
the
place
to
which
bound,
and
of
the
place,
within
the
port,
where
the
goods
are
to
be
unladen,
and
the
description
of
the
goods,
and
the
marks
and
numbers
and
contents
of
the
packages,
and
the
place
from
which
the
goods
are
imported,
and
of
what
country
or
place
such
goods
are
the
growth,
produce
or
manufacture.
R.S.,
c.
58,
s.
20.
This
subsection
imposes
the
obligation
on
the
person
entering
any
goods
into
Canada
to,
amongst
other
items,
name
the
importer.
It
is
therefore
my
view
that
whether
the
person
in
Canada
is
a
selling
agent
or
not,
if
that
person's
name
appears
as
the
importer
then
there
exists
a
strong
presumption
as
to
who
the
importer
is.
In
the
present
case,
the
form
B-3
Canada
Customs
Import
Entry
Coding
Form
(Exhibit
P-2)
shows
the
importer
as
Apasco
Dist.
Co.
at
6334
Victoria
Ave.,
Montreal,
Quebec.
I
would
mention
at
this
time
that
it
is
admitted
in
the
plea
filed
by
the
defendant
that
she
was
carrying
on
business
personally
under
the
name
of
Apasco
Dist.
Co.
in
1973,
1974
and
1975
when
she
admitted
certain
allegations
contained
in
plaintiff's
statement
of
claim.
Furthermore,
on
the
M-A
invoice
the
name
of
Apasco
also
appears.
The
M-A
invoice
is
an
invoice
approved
by
Canadian
Customs
for
goods
sold
by
exporter
prior
to
importation
for
entry
at
Most
Favoured
Nation
Tariff
Rates.
It
is
prepared
by
the
exporter
and
shows,
amongst
other
items,
the
name
of
the
person
being
invoiced
in
Canada.
Here
again,
one
has
additional
proof
as
to
who
would
be
considered
an
"importer”
under
the
Customs
Act.
M.
A.
Prabhu,
Customs
and
Excise,
title
41,
Canadian
Encyclopedic
Digest
(Ontario)
3rd
Ed.
Carswell
Co.
1983
gives
the
following
definition
of
an
importer
at
page
41-36:
.
.
it
would
appear
to
apply
to
and
include
any
owner
or
other
person
for
the
time
being
possessed
of,
or
beneficially
interested
in,
any
goods
imported
into
the
country,
from
time
of
importation
thereof
until
due
delivery
or
discharge
from
the
custody
or
control
of
customs.
In
the
case
of
R.
v.
Singer
Mfg.
Co.,
[1965]
1
Ex.
C.R.
129,
the
appeal
to
the
Supreme
Court
of
Canada
being
rejected,
Mr.
Justice
Jackett
states
at
135-
36:
.
.
.
if
a
person
carrying
on
business
in
Canada
orders
goods
from
a
United
States
manufacturer
to
be
sent
to
him
at
his
place
of
business
in
Canada,
the
United
States
manufacturer
is
the
exporter
and
the
Canadian
businessman
is
the
importer
(
.
.
.
)
The
essential
feature
in
my
view
is
that
the
exporter
must
be
the
person
in
the
foreign
country
who
sends
the
goods
into
Canada
and
the
importer
must
be
the
person
to
whom
they
are
sent
in
Canada.
It
is
my
view
that
any
person
in
Canada
to
whom
goods
are
shipped
from
outside
Canada
or
who
purchased
the
goods
outside
Canada
and
was
himself
bringing
the
goods
into
Canada
is
an
importer
of
the
goods
and
would
be
subject
to
customs
duties
and
excise
taxes
unless
specifically
exempt
from
the
duties
and
taxes.
Therefore,
the
claim
by
the
defendant
that
she
was
not
an
importer
must
be
set
aside.
3.
Is
a
false
declaration
as
to
value,
fraud?
The
Crown
is
claiming
a
penalty
in
lieu
of
forfeiture,
the
goods
having
been
disposed
of
by
the
defendant,
in
virtue
of
paragraphs
192(1)(b)
and
(c)
of
the
Customs
Act
on
the
grounds
that
the
defendant
passed
through
customs
a
false
invoice
as
to
the
true
value
of
the
merchandise
imported
and
attempted
to
defraud
the
revenue
by
avoiding
the
payment
of
a
part
of
the
duty
on
the
goods
imported.
Section
248
of
the
Customs
Act
states:
(1)
In
any
proceedings
instituted
for
any
penalty,
punishment
or
forfeiture
or
for
the
recovery
of
any
duty
under
this
Act,
or
any
other
law
relating
to
the
customs
or
to
trade
and
navigation,
in
case
of
any
question
of,
or
relating
to
the
identity,
origin,
importation,
lading
or
exportation
of
any
goods
or
the
payment
of
duties
on
any
goods,
or
the
compliance
with
the
requirements
of
this
Act
with
regard
to
the
entry
of
any
goods,
or
the
doing
or
omission
of
anything
by
which
such
penalty,
punishment,
forfeiture
or
liability
for
duty
would
be
incurred
or
avoided,
the
burden
of
proof
lies
upon
the
owner
or
claimant
of
the
goods
or
the
person
whose
duty
it
was
to
comply
with
this
Act
or
in
whose
possession
the
goods
were
found,
and
not
upon
Her
Majesty
or
upon
the
person
representing
Her
Majesty.
(2)
Similarly,
in
any
proceedings
instituted
against
Her
Majesty
or
any
officer
for
the
recovery
of
any
goods
seized
or
money
deposited
under
this
Act
or
any
other
such
law,
if
any
such
question
arises,
the
burden
of
proof
lies
upon
the
claimant
of
the
goods
seized
or
money
deposited,
and
not
upon
Her
Majesty
or
upon
the
person
representing
Her
Majesty.
R.S.
c.
58,
s.
248.
The
onus
is
clearly
on
the
importer,
the
defendant
herein,
to
prove
that
the
provisions
of
the
Act
have
been
complied
with.
Unless
this
has
been
done,
fraudulent
behaviour
on
the
part
of
the
importer
can
be
presumed.
Mr.
Justice
Addy
in
the
case
of
The
Queen
v.
Mondev
Corp.
Ltd.,
33
C.P.R.
(2d)
193
at
199
states:
In
considering
the
meaning
of
the
words
“to
make
out
a
false
invoice”
(in
the
present
case
the
words
would
be
“avoiding
the
payment
of
any
part
of
the
duty”)
in
the
context
of
Section
192
of
the
Customs
Act
one
must
consider
the
general
character
of
the
words
creating
other
offences
in
the
same
section.
All
of
these
words
imply
something
fraudulent,
something
furtive
or
an
intention
to
deprive
the
Crown
of
revenue.
From
the
fraudulent
element
contained
in
all
of
these
expressions,
it
appears
that
Parliament
intended
the
word
“false”
to
include
an
element
of
blameworthy
intention
and
did
not
intend
the
word
to
be
merely
synonymous
of
“incorrect”
or
“erroneous”
.
.
.
”
Altogether
apart
from
s
248
of
the
Act,
which
relates
to
onus,
the
intention
required
by
s
192
would
normally
be
implied
by
the
mere
fact
that
the
declaration
as
to
value
was
not
a
true
one,
if
no
evidence
were
led
by
the
Defendant
which
would
tend
to
contradict
or
negate
any
wilful
or
improper
conduct
or
intention
on
the
part
of
the
person
importing
the
goods.
From
the
above,
once
the
Crown
has
proven
that
a
defendant
had
failed
to
comply
with
the
provision
of
the
Act
by
making
a
statement
to
avoid
the
payment
of
duties
or
by
making
a
statement
to
avoid
part
of
the
payment
of
duties,
fraud
is
presumed
but
may
be
rebutted
by
the
defendant.
The
plaintiff
has
filed
into
the
record
numerous
exhibits
which
clearly
prove
that
the
defendant
knew
that
the
values
shown
on
the
M-A
invoices
were
false.
This
was
proven
by
the
fact
that
the
defendant
paid
to
her
supplier
sums
for
merchandise
much
higher
than
what
was
declared
on
the
M-A
invoice.
The
defendant,
not
being
present,
did
not
contradict
any
of
plaintiffs
proof.
Thus
I
have
ordered
that
the
defendant
pay
to
the
plaintiff
the
sum
of
$59,089.71
representing
customs
duties
and
taxes
due
but
not
paid
and
a
further
sum
of
$25,669.48
as
penalty
for
a
total
sum
of
$84,759.19
together
with
interest
and
costs.
Order
accordingly.
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