RITCHIE,
J.:—This
is
a
proceeding
in
rem
commenced
by
an
information
exhibited
on
behalf
of
Her
Majesty
by
the
Deputy
Attorney
General
of
Canada
claiming
to
have
condemned
as
forfeited
to
the
Crown
a
1954
Ford
one-ton
truck,
serial
number
FCES3BHR17627,
model
number
F350,
seized
by
Royal
Canadian
Mounted
Police
offi
rs
on
November
12,
1954.
The
seizure
was
made
under
Section
163(3)
of
the
Excise
Act,
R.S.C.
1952,
c.
99,
as
amended
by
Section
6
of
R.S.C.
1952,
e.
319.
The
relevant
parts
of
Section
163
read
as
follows:
1
‘163.
(1)
Everyone,
whether
the
owner
thereof
or
not,
who,
without
lawful
excuse,
the
proof
whereof
shall
be
upon
the
person
accused,
sells
or
offers
for
sale
or
purchases
or
has
in
his
possession
any
spirits
(a)
unlawfully
manufactured,
is
guilty
of
an
indictable
offence.
(3)
All
spirits
referred
to
in
subsection
(1)
wheresoever
they
are
found,
and
all
horses
and
vehicles,
vessels
and
other
appliances
that
have
been
or
are
being
used
for
the
purpose
of
transporting
the
spirits
so
manufactured,
imported,
removed,
disposed
of,
diverted,
or
in
or
upon
which
the
same
are
found,
shall
be
forfeited
to
the
Crown,
and
may
be
seized
and
detained
by
any
officer
and
be
dealt
with
accordingly.”
One
Joe
Zarowney,
a
farmer
residing
at
Poplar
Bluff
in
the
Province
of
Saskatchewan,
has
filed
a
statement
of
claim
seeking
the
dismissal
of
the
information
and
the
return
of
the
truck
to
him.
While
the
evidence
established
that
the
truck
had
been
licensed
in
the
name
of
Carl
Zarowney
in
order
to
facilitate
his
obtaining
delivery
at
the
factory
and
driving
it
to
Saskatchewan
I
am
satisfied
that
Joe
Zarowney,
subject
to
the
lien
of
an
unpaid
conditional
sale
agreement,
was
the
real
owner
of
the
truck.
Carl
Zarowney
is
a
son
of
Joe
Zarowney.
At
the
trial
the
claimant
admitted
that
at
the
time
of
the
seizure
three
one-gallon
jugs
of
unlawfully
manufactured
spirits
were
found
in
the
truck.
The
relevant
parts
of
Section
114
of
the
Excise
Act,
pursuant
to
which
the
claimant
has
filed
his
statement
of
claim,
are
subsections
(1)
and
(2),
which
read
as
follows:
4
‘114.
(1)
So
soon
as
an
information
has
been
filed
in
any
court
for
the
condemnation
of
any
goods
or
thing
seized
under
this
Act,
notice
thereof
shall
be
posted
up
in
the
office
of
the
registrar,
clerk
or
prothonotary
of
the
court,
and
also
in
the
office
of
the
collector
or
chief
officer
in
the
excise
division
wherein
the
goods
have
been
seized
or
thing
has
been
seized
as
aforesaid.
(2)
Where
the
owner
or
person
claiming
the
goods
or
thing
presents
a
claim
to
the
same
and
gives
security
and
complies
with
all
the
requirements
in
this
Act
in
that
behalf,
the
said
court,
at
its
sitting
next
after
the
said
notice
has
been
so
posted
during
one
month
may
hear
and
determine
any
claim
that
has
been
duly
made
and
filed
in
the
meantime,
and
release
or
condemn
such
goods
or
thing,
as
the
case
requires;
other-
wise
the
same
shall,
after
the
expiration
of
such
month,
be
deemed
to
be
condemned
as
aforesaid,
and
may
be
sold
without
any
formal
condemnation
thereof.’’
On
November
12,
1954,
the
day
on
which
the
truck
was
seized,
Joe
Zarowney
instructed
his
son
Carl
to
take
the
truck
to
Benito
and
obtain
a
quantity
of
electric
light
bulbs,
groceries
and
other
supplies
for
use
at
a
gathering
in
celebration
of
the
marriage
of
one
of
the
other
children
of
Joe
Zarowney.
Both
father
and
son
testified
at
the
trial
that
Carl
Zarowney
had
not
been
instructed
to
procure
any
intoxicating
liquor.
Carl
Zarowney
was
emphatic
and
unshaken
in
his
testimony
that
he
had
no
liquor
in
his
possession
at
any
time
that
day
and
had
no
knowledge
that
liquor
was
on
the
truck
until
told
by
Kluk
immediately
before
the
seizure.
While
in
Benito
making
his
purchases,
Carl
Zarowney
met
his
cousin
Fred
Kluk
and
agreed
to
drive
him
to
the
Zarowney
home
so
that
he
would
be
there
for
the
wedding
celebration.
The
two
had
lunch
at
the
Kluk
home,
which
was
on
the
route
between
Benito
and
the
Zarowney
residence.
During
lunch
Carl
Zarowney
noticed
Fred
Kluk
leave
the
house
for
a
short
while
but
thought
nothing
of
it.
After
lunch
Carl
Zarowney
and
Fred
Kluk
proceeded
on
their
way.
At
a
point
on
the
road
Kluk
noticed
a
Royal
Canadian
Mounted
Police
patrol
car
parked
so
as
to
observe
oncoming
traffic.
On
noticing
the
patrol
car,
Kluk
immediately
told
Carl
Zarowney
to
stop
as
he
(Kluk)
had
unlawfully
manufactured
liquor
in
the
truck.
As
soon
as
the
truck
came
to
a
stop
Fred
Kluk
seized
jugs
from
the
open
box
body
of
the
truck
and
attempted
to
dispose
of
them.
Kluk’s
attempt
to
dispose
of
the
jugs
attracted
the
attention
of
the
officers
in
the
patrol
car
who
closed
in
on
the
truck.
Kluk
ran
for
the
woods.
The
R.C.M.P.
officers
caught
Kluk,
found
illicit
spirits
in
the
truck
and
promptly
informed
Carl
Zarowney
the
truck
was
seized
and
forfeited
to
Her
Majesty.
Carl
Zarowney
did
not
join
in
the
attempt
to
get
rid
of
the
illicit
spirits
but
remained
at
the
steering
wheel
until
one
of
the
officers
told
him
to
get
out
of
the
truck.
Following
the
seizure,
the
claimant’s
solicitor,
on
December
6,
1954,
addressed
to
the
Department
of
Justice
a
letter
(Exhibit
B)
advising
that
Joe
Zarowney
was
the
owner
of
the
truck,
asking
that
it
be
released,
and
requesting
that
in
any
event
the
letter
be
considered
as
a
claim
to
the
truck
on
behalf
of
Joe
Zarowney.
The
claim
so
made
is
acknowledged
by
paragraph
3
of
the
information
filed
herein.
On
December
14,
1954
(Exhibit
C)
the
Assistant
Deputy
Minister
of
Justice
acknowledged
the
letter
written
by
the
claimant’s
solicitor
under
date
of
December
6,
1954
and
advised
it
had
been
referred
to
the
Department
of
National
Revenue.
Under
date
of
February
14,
1955,
the
claimant’s
solicitor
addressed
a
letter
(Exhibit
D)
to
the
Department
of
National
Revenue
reviewing
the
circumstances
leading
to
the
seizure
and
asking
that
the
truck
be
released.
The
Deputy
Minister
of
National
Revenue
on
March
2,
1955
(Exhibit
E)
acknowledged
the
February
14,
1955,
letter
from
the
claimant’s
solicitor,
advised
(a)
that
on
the
basis
of
the
evidence
before
the
Department
there
was
no
authority
under
the
Excise
Act
whereby
the
truck
could
be
released
;
(b)
that
special
consideration
as
an
act
of
executive
clemency
could
hardly
be
expected
in
view
of
the
attempt
of
Carl
Zarowney
and
Kluk
to
destroy
the
evidence
and
their
refusal
to
give
any
information
as
to
the
source
of
the
alcohol
;
(c)
that
in
view
of
the
claim
under
Section
115
the
Department
would
be
obliged
to
refer
the
matter
to
the
Department
of
Justice
with
a
request
that
it
be
brought
before
the
Exchequer
Court
and
a
judgment
of
forfeiture
sought;
and
(d)
that
substantial
costs
would
be
awarded
against
the
claimant
if
the
judgment
was
unfavourable
to
him
and
so
to
allow
further
time
for
consideration
no
reference
to
the
Department
of
Justice
would
be
made
until
April
2,
1955.
At
the
trial
the
Crown
presented
no
evidence
that
Carl
Zarowney
had
attempted
to
destroy
the
illicit
spirits
or
refused
to
give
any
information
as
to
the
source
from
which
the
alcohol
was
obtained.
The
only
relevant
part
of
Section
115
of
the
Excise
Act,
under
which
the
claimant
first
gave
notice
that
the
truck
was
his,
is
subsection
(1)
and
reads
as
follows:
“115.
(1)
All
vehicles,
vessels,
goods
and
other
things
seized
as
forfeited
under
this
Act
or
any
other
Act
relating
to
excise,
or
to
trade
or
navigation,
shall
be
deemed
and
taken
to
be
condemned,
and
may
be
dealt
with
accordingly,
unless
the
person
from
whom
they
were
seized,
or
the
owner
thereof,
within
one
month
from
the
day
of
seizure,
gives
notice
in
writing
to
the
seizing
officer,
or
to
the
collector
in
the
excise
division
in
which
such
goods
were
seized,
that
he
claims
or
intends
to
claim
the
same.’’
Joe
Zarowney
impressed
me
as
an
honest,
hard-working
person.
That
Joe
Zarowney
has
some
standing
in
the
community
in
which
he
resides
is
evidenced
by
his
having
held
the
office
of
Reeve
for
a
period
of
four
years.
The
evidence
of
Joe
Zarowney
and
Carl
Zarowney
was
not
contradicted.
At
the
conclusion
of
the
trial
the
claimant
sought
an
order
extending
the
time
in
which
he
was
entitled
to
proceed
under
Section
164
of
the
Excise
Act,
which
provides
that
whenever
any
vehicle
has
been
seized
as
forfeited
anyone
(other
than
the
person
accused
of
an
offence
resulting
in
such
seizure
or
person
in
whose
possession
such
vehicle
was
seized)
who
claims
an
interest
in
such
vehicle
may,
within
thirty
days
after
such
seizure,
apply
to
any
judge
of
any
Superior
Court
of
any
province
or
to
a
judge
of
the
Exchequer
Court
for
an
order
declaring
his
interest.
If
the
judge
is
satisfied
that
the
claimant
(a)
is
innocent
of
any
complicity
in
the
offence
resulting
in
such
seizure
or
of
any
collusion
with
the
offender
in
relation
thereto
;
and
(b)
exercised
all
reasonable
care
in
respect
of
the
person
permitted
to
obtain
the
possession
of
such
vehicle
to
satisfy
himself
that
they
were
not
likely
to
be
used
contrary
to
the
provisions
of
the
Act
he
may
order
that
the
claimant’s
interest
be
not
affected
by
such
seizure.
The
limitation
of
thirty
days
within
which
an
application
may
be
made
under
Section
164
is
statutory.
There
is
no
statutory
provision
permitting
the
Section
164
limitation
of
time
to
be
enlarged.
I
therefore
have
no
jurisdiction
to
grant
the
order
the
claimant
now
seeks.
Were
I
dealing
with
an
application
under
Section
164
of
the
Excise
Act
I
would
have
no
hesitation
in
ordering
that
the
claimant
’s
interest
be
not
affected
by
the
seizure.
The
situation
is
different,
however,
when
considering
a
claim
under
Sections
114
and
115
under
which
the
claimant
has
chosen
to
proceed.
The
statutory
enactment
must
be
adhered
to.
Sections
114
and
115
confer
on
the
Court
no
discretionary
power
such
as
is
contained
in
Section
164.
I
must
release
or
condemn
the
truck
‘‘as
the
case
requires’’.
The
words
of
Section
163(3)
of
the
Excise
Act
are
unequivocal.
The
fact
that
the
use
of
the
truck
for
the
purpose
of
transporting
unlawfully
manufactured
spirits
was
without
the
consent
or
knowledge
of
the
owner
or
of
the
driver
of
the
truck
cannot
affect
the
application
or
effect
of
Section
163(3)
of
the
statute.
Condemnation
is
mandatory.
There
is
no
room
for
doubt
as
to
the
meaning
of
the
words,
‘‘all
vehicles
that
have
been
used
for
the
purpose
of
transporting
the
spirits
so
manufactured
shall
be
forfeited
to
the
Crown’’.
An
extract
from
the
judgment
of
Rinfret,
J.,
as
he
then
was,
in
The
King
v.
Krakowec,
[1932]
S.C.R.
134,
at
page
141
is
particularly
appropriate
to
the
circumstances
of
this
case.
When
the
Krakowec
judgment
was
delivered
no
provision
such
as
contained
in
the
present
Section
164
was
included
in
the
Excise
Act.
There
was,
however,
a
section
similar
to
the
present
Section
163(3).
The
extract
from
the
judgment
is
lengthy
but
so
appropriate
that
I
will
quote
it
in
full.
“The
section,
it
will
be
noticed,
sets
out
no
qualification
as
to
ownership
of
the
‘horses
and
vehicles,
vessels
and
other
appliances
which
have
been
or
are
being
used’.
On
the
contrary,
it
says
that
all
such
horses,
vehicles,
etc.,
‘shall
be
forfeited
to
the
Crown,
and
shall
be
dealt
with
accordingly’.
Upon
the
bare
words
of
the
enactment
it
must,
therefore,
follow
that
any
vehicles
used
for
the
purpose
of
removing
spirits
unlawfully
manufactured
or
imported
is
subject
to
the
forfeiture
therein
described,
unless
something
be
found
in
the
context
or
in
the
general
scope
of
the
Act
to
justify
a
departure
from
the
well
known
rule
that
the
intention
of
the
legislature
must
be
determined
from
the
words
it
has
selected
to
express
it.
Here
we
find
nothing
of
the
kind
in
the
context
or
in
the
subject-matter
of
the
statute.
The
learned
trial
judge
observed
that,
when
dealing
with
penalties,
the
expression
‘whether
the
owner
thereof
or
not’
is
used
in
the
section,
while
it
is
not
there
when
the
section
comes
to
deal
with
the
forfeiture.
But
the
explanation
is
that
it
was
necessary,
in
order
to
avoid
doubt,
to
insert
the
expression
in
the
one
case,
while
it
was
not
in
the
other.
In
the
first
part
of
the
section,
mere
possession
is
the
mischief
aimed
at
by
the
legislature.
Now,
possession
may
be
possession
by
the
owner,
or
it
may
be
possession
in
the
name
of
or
for
another
;
and
it
was,
of
course,
essential,
in
the
premises,
to
specify
that
‘possession’
alone
would
be
sufficient
to
incur
the
penalty,
‘whether’
the
person
found
in
‘
possession’
of
the
spirits
was
‘the
owner
thereof
or
not’.
It
was
not
so,
however,
in
that
part
of
the
section
dealing
with
the
forfeiture
of
vehicles,
and
the
other
appliances
mentioned.
It
may
be
a
question
whether,
the
legislature
having
once
said
that
the
penalty
was
incurred
by
the
mere
possessor,
whether
owner
or
not,
the
expression
does
not
ipso
facto
extend
to
the
whole
section
without
the
necessity
of
its
being
repeated.
It
is
sufficient
to
say
that,
in
the
provision
respected
forfeiture,
the
object
in
view
is
the
connection
between
the
vehicles
and
the
spirits
unlawfully
manufactured
or
imported.
The
point
is
that
the
vehicles
‘have
been
used
or
are
being
used
for
the
purpose
of
removing
the
same
’
;
and
it
is
immaterial
to
whom
the
vehicles
belong.
In
the
words
of
Sedgwick,
J.,
in
The
Ship
‘Frederick
Gerring
Jr.’
v.
The
Queen
(1897),
27
Can.
S.C.R.
271,
at
285,
‘
In
the
enforcement
of
fiscal
law,
of
statutes
passed
for
the
protection
of
the
revenue
or
of
public
property,
such
provisions
are
as
necessary
as
they
are
universal,
and
neither
ignorance
of
law,
nor,
as
a
general
rule,
ignorance
of
fact,
will
prevent
a
forfeiture
when
the
proceeding
is
against
the
thing
offending,
whether
it
be
the
smuggled
goods
or
the
purloined
fish,
or
the
vehicle
or
vessel,
the
instrument
or
abettor
of
the
offence.’
That
the
proceeding
is
under
the
Excise
Act,
‘a
proceeding
against
the
thing’,
that
is,
in
the
nature
of
a
proceeding
in
rem,
is
apparent
throughout
the
Act
(Sees.
79,
83,
121,
124,
125,
131,
etc.),
but
is
nowhere
more
evident
than
in
see.
125,
under
which
‘all
vehicles,
vessels,
goods
and
other
things
seized
as
forfeited
.
..
shall
be
deemed
and
taken
to
be
condemned
and
may
be
dealt
with
accordingly,
unless
the
person
from
whom
they
were
seized,
or
the
owner
thereof,
.
.
.
gives
notice
.
.
.
that
he
claims
or
intends
to
claim
the
same.’
As
will
be
noticed,
the
automatic
condemnation
is
against
the
thing
seized.
Moreover,
the
right
to
object
is
given
both
to
the
owner
and
‘the
person
from
whom
(it
was)
seized’—a
right
quite
incompatible,
if
forfeiture
resulted
only
in
cases
where
the
owner
was
also
the
offender.
We
agree
that,
when
the
meaning
of
a
statute
is
doubtful
or
ambiguous,
the
courts
should
not,
unless
otherwise
compelled
to
do
so,
give
it
that
interpretation
which
might
lead
to
unjust
consequences;
but
even
penal
statutes
must
not
be
construed
so
as
to
narrow
the
words
of
the
statute
to
the
exclusion
of
cases
which
those
words,
in
their
ordinary
acceptation
would
comprehend
(Dyke
v.
Elliott;
The
‘Gauntlett
9
(1872),
L.R.
4
P.C.
184,
at
191)
;
and
it
is
surely
not
for
the
judge
so
to
mould
a
statute
as
to
make
it
agree
with
his
own
conception
of
justice
(Craies
on
Statute
Law,
3rd
ed.,
pp.
86,
444).
Adverting
to
the
particular
case
before
us,
it
is
not
assuming
too
much
to
say
that
it
must
have
been
known
to
the
legislature,
when
it
passed
the
Excise
Act,
that
a
great
many
drivers
of
motor
vehicles
are
not
the
owners
thereof,
but
possess
and
operate
them
subject
to
conditional
sale
agreements,
and
if
sec.
181
was
meant
to
apply
only
to
vehicles
driven
by
the
owners
thereof,
it
is
obvious
with
what
ease
the
provision
respecting
forfeiture
could
be
evaded.
Whether
such
a
thing
exists
as
what
is
referred
to
by
Lord
Cairns
(in
Partington
v.
Attorney-General
(1869),
L.R.
4
H.L.
100,
at
122)
as
the
‘equitable
construction’
of
a
statute,
we
cannot
see
that
this
is
a
case
for
its
application,
and
we
find
no
reason
why
we
should
not
simply
adhere
to
the
words
of
the
enactment.
It
is
not
for
the
court
to
say
if,
in
some
cases,—such
as,
for
example,
when
the
vehiclie
utilized
was
stolen
from
its
owner—
the
forfeiture
may
effect
a
hardship.
Such
cases
are
specially
provided
for
in
subs.
2
of
sec.
133
of
the
Excise
Act.
The
power
to
deal
with
them
is
thereby
expressly
vested
in
the
Governor
in
Council,
thus
leaving
full
play
to
the
operation
of
see.
91
of
the
Consolidated
Revenue
and
Audit
Act
(ce.
178
of
R.S.C.,
1927),
for
the
remission
of
forfeitures.
We
are
unable
to
agree
with
the
decision
in
Le
Roi
v.
Messervier
(1928),
Q.R.
34
K.L.
n.s.
436,
already
referred
to,
that
the
discretionary
power
is
also
vested
in
the
court
under
sec.
124
of
the
Act.
In
our
view,
that
section
means
nothing
more
than
this:
After
the
vehicles,
vessels,
goods
and
other
things
have
been
seized
as
forfeited
under
sec.
181,
the
person
from
whom
they
were
seized,
or
the
owner
thereof,
may
prevent
the
automatic
condemnation
of
the
said
vehicles,
etc.,
by
giving
notice
as
provided
for
in
sec.
125
‘that
he
claims
or
intends
to
claim
the
same’;
whereupon,
an
information
for
the
condemnation
of
the
vehicles,
etc.,
having
been
filed
(as
was
done
in
this
case),
the
court
may
hear
and
determine
the
claim
made
by
the
person
from
whom
they
were
seized
or
from
the
owner,
and
the
court
may
release
or
condemn
the
vehicles,
etc.,
as
the
case
requires,
1.e.,
according
as
they
come
or
not
under
the
provisions
of
the
Act.
The
court
thereunder
is
vested
with
no
discretion,
it
must
decide
according
to
law.”
As
my
brother
Cameron
did
under
somewhat
similar
circumstances
in
Mayberry
v.
The
King,
[1950]
Ex.
C.R.
402,
I
must
apply
the
words
of
the
statute
and
order
the
condemnation
of
the
truck.
There
will
be
judgment
declaring
condemnation
of
the
truck
as
forfeited
to
the
Crown.
The
costs
of
the
application
must
be
borne
by
the
claimant.
The
claimant
also
claimed
compensation
for
loss
of
use
of
his
truck.
That
claim
will
be
dismissed
but
without
costs.
While
the
condemnation
may
be
a
great
hardship
to
the
claimant,
the
way
is
open
to
him
to
apply
for
consideration
under
Section
22
of
the
Financial
Administration
Act,
chapter
116,
R.S.
1952.
Judgment
accordingly.
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