Hiebert v. Canada (Attorney General), 2003 FC 1503

Date: 20031219

Docket: T-66-02

Citation: 2003 FC 1503

Ottawa, Ontario, this 19^th day of December, 2003

Present:           The Honourable Justice James Russell                                  

BETWEEN:

                                                                 LINDA HIEBERT

                                                                                                                                                       Applicant

                                                                                 and

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of the Minister of National Revenue ("Minister"), dated December 13, 2001, ("Decision") whereby the request of Linda Hiebert ("Applicant") for remission of penalty pursuant to subsection 3.3(1) of the Customs Act, R.S.C. 1985, c. 1 (2^nd Supp.) ("Act") was refused. The Applicant also makes application for a declaration that ss. 124 and 127 of the Act are unconstitutional on the ground that the sections are arbitrary, a denial of natural justice and a violation of s. 7 of the Constitution Act, 1982.

BACKGROUND

[2]                 The Applicant purchased a business in 1990 which involved the importation of men's dress shirts from Hong Kong. In the course of operating the business, the Applicant imported articles of clothing in response to custom orders from clients in the Winnipeg area. Between 1992 and 1997, the Applicant undervalued imported shirts on 79 occasions. The value for duty of those shirts totalled $266,677.54. The amount of revenue that was unpaid as a result of the undervaluations was $68,839.19.

[3]                 On December 8, 1997, the Minister determined that the Applicant, through her brokers, had undervalued goods being imported, with the result that the Minister served a Notice of Ascertained Forfeiture ("Notice") on the Applicant under s. 124 of the Act. An ascertained forfeiture is a process whereby, if it is impractical or impossible to seize forfeited goods, a certain amount of money is demanded in lieu of seizure. In the Notice, the Applicant was requested to pay $206,517.57 in lieu of actual seizure of the goods.

[4]                 Penalties under ss. 109.1 , 109.11, or 109.2 of the Act were not assessed against the Applicant.

[5]                 In the Notice the Minister advised the Applicant that the sole manner of review available to the Applicant was an application to the Minister pursuant to s. 129 of the Act. Section 129 of the Act stipulates that a person may, within thirty days after the date of the Notice, request a decision of the Minister under s. 131. The Applicant made such a request.

[6]                 The Applicant notes that the Minister's statement on the Notice did not disclose that the Minister's powers under s. 131 of the Act in response to a s. 129 application do not include the power to review the amount of the penalty imposed under s. 124 of the Act.

[7]                 The Applicant requested several extensions of time to provide submissions for the Minister's review of his decision under s. 131 of the Act. The Applicant's submissions were finally completed on July 1, 2000.

[8]                 The Applicant, through her broker, made an application pursuant to s. 129 for reconsideration of the penalty imposed under s. 124 of the Act.

[9]                 Subsequently, in support of the application made by her broker, the solicitor for the Applicant filed representations with the Minister seeking a reconsideration of the amount of the penalty imposed on December 8, 1997.

[10]            On July 20, 2001, the Applicant was advised by the Minister that her application was dismissed.    The Minister advised the Applicant that she could appeal to the Federal Court in accordance with s. 135 of the Act.

[11]            On October 23, 2001, the Applicant, on the advise of counsel, determined that an appeal to the Federal Court under s. 135 was not available with respect to the quantum of the assessment. So the Applicant made application under ss. 3.3(1) of the Act to the Minister under the fairness policy seeking a reduction of the sum payable under the Notice dated December 8, 1997.

[12]            On December 13, 2001, the Minister's representative advised the Applicant that the Minister would not reduce the sum payable since, in the view of the Minister, an ascertained forfeiture did not constitute a penalty. This Decision is the subject of this Application. The Minister again directed the Applicant that the only appeal from his Decision lay in accordance with s. 135 of the Act to the Federal Court.

PERTINENT LEGISLATION

[13]            The relevant sections of the Canadian Bill of Rights (1960, c. 44) are as follows:

[14]            The relevant sections of the Customs Act, R.S., 1995, c. 1 (2^nd Supp.) are as follows:

ISSUES

[15]            The Applicant raises the following issues:

Whether the Minister erred in refusing to entertain the Applicant's request for fairness in accordance with subsection 3.3(1) of the Act.

Whether the Minister acted without jurisdiction, acted beyond his jurisdiction, or otherwise refused to exercise his jurisdiction, in refusing to exercise his discretion pursuant to subsection 3.3(1) of the Act.

Whether in refusing to review the matter of the penalty imposed under subsection 124 of the Act, the Minister acted in such a way as to fail to observe a principle of natural justice, procedural fairness or any other procedure that he was required by law to so observe.

Whether the imposition of the penalty by the Minister pursuant to section 124 of the Act was arbitrary, in violation of the Applicant's right to due process, and a denial of natural justice.

STANDARD OF REVIEW

[16]            The Supreme Court of Canada in 2003 SCC 19">Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at paras. 20-25 confirmed the ascendancy of the pragmatic and functional approach in the review of administrative decisions. This multi-factoral approach must be applied in order to determine the standard of review in every case where there is a review of an administrative decision-maker.    In the present application, however, I find that conclusions are the same irrespective of the standard of review applied. I will, therefore, assess each of the issues raised by the Applicant against a standard of correctness.

ANALYSIS

Did the Minister err in refusing to consider the Applicant's request for fairness under subsection 3.3(1) of the Act on the basis that an ascertained forfeiture is not a penalty?

[17]            The Minister refused to consider the Applicant's request for fairness under s. 3.3(1) of the Act on the grounds that an ascertained forfeiture does not constitute a penalty. The Applicant submits that any amount assessed by the Minister above and beyond the amount of duty otherwise payable by the Applicant constitutes a penalty because the additional amount is neither duty otherwise payable in accordance with the provisions of the Customs Tariff, or interest arising out of a non-payment of duty. The Applicant submits that any sum assessed in excess of the duty payable is a "punishment" imposed on a transgressor under the Act by the Minister.

[18]            The Respondent notes that s. 3.3(1) allows the Minister to waive or cancel a penalty otherwise payable by a person under the Act. So the only question before the Court is whether an ascertained forfeiture is a penalty under the Act. If it is not, then the Respondent asserts that the Minister properly refused to consider waiving or cancelling the ascertained forfeiture, because his discretion to waive is limited to penalties and interest payable under the Act.

[19]            The Applicant submits that this Court has stated that the imposition of an assessment pursuant to ss. 124(1) of the Act constitutes the imposition of a penalty (ACL Canada Inc. v. Canada (Minister of National Revenue) (1993), 68 F.T.R. 180 (F.C.T.D.) at 187). Hence, the Applicant argues that the additional amount assessed against the Applicant above the amount assessed under the Customs Tariff constitutes a penalty within the common and ordinary meaning of that word.

[20]            The Applicant points out that the Act does not define the term "penalty." Hence, the Court must look to the plain meaning of the word in accordance with its common usage. (Sullivan and Driedger, On The Construction of Statutes, 4^th ed. (Toronto, Butterworths, 2002) at p. 20).

[21]            The Respondent points out that goods become forfeit from the time of contravention of the Act. No act or proceeding is necessary to effect the forfeiture. Forfeiture is merely the legal, inescapable consequence of the commission of the contravention, [1935] S.C.R. 513">R. v. Mason, [1935] S.C.R. 513, He v. Canada, [2000] F.C.J. No. 93 (F.C.T.D.).

[22]            The amount of money that an officer can demand in lieu of forfeited goods may not exceed the value for duty of those goods plus the duty levied on those goods. For example, in the present case, the ascertained forfeiture could not exceed $335,516.73.

[23]            The Respondent submits that an ascertained forfeiture is final and can only be reviewed in the manner provided by s. 129. This is because Parliament clearly did not intend that a forfeiture be subject to review other than in the context of a request under s. 129.

[24]            The Respondent points out that the Act does expressly provide for penalties in ss. 109.1, 109.11 (now repealed) and 109.2. These penalties are, as the term "penalty" suggests, a financial amount assessed against a person as a punishment for violation of the Act. These penalties may be assessed in addition to a seizure of forfeited goods. It is these penalties alone that can be the subject of a review under s. 3.3(1) of the Act.

[25]            The Respondent notes that, in ss. 127 and 127.1 of the Act, notices of ascertained forfeiture under s. 124 are distinguished from penalties assessed under ss. 109.1, 109.11 and 109.2, thus indicating Parliament's intention that the amounts be considered different in nature. According to the Respondent, because a forfeiture does not amount to a penalty but is, rather, the legal, inescapable consequence of the commission of a contravention, the Minister was correct in refusing to apply s. 3.3(1) of the Act to the Applicant's ascertained forfeiture.

[26]            The Applicant submits that the Minister has wrongfully declined jurisdiction in refusing to consider the request for fairness under ss. 3.3(1) and has fettered his discretion through an erroneous interpretation of the application of ss. 3.3(1).    (Berthier v. Canada (Minister of Labour) (2000), 190 F.T.R. 149 (F.C.T.D.), Stark v. Canada (Minister of National Revenue) (1997), 213 N.R. 75 (F.C.A.).

[27]            With respect, I must disagree with the Applicant on this issue. The intentions of Parliament are clear in the wording and the scheme of the Act. Section 127 distinguishes clearly between an "amount demanded under s. 124" (i.e. on an ascertained forfeiture) and penalties described in other sections of the Act.

[28]            The Act also provides a distinct way of dealing with ascertained forfeiture amounts in the event that there is a dispute over contravention or quantums. This is done by way of ss. 129, 131 and 133. Section 133 clearly gives the Minister the power to adjust any amount assessed by way of ascertained forfeiture.

[29]            In the context of the scheme provided by the Act for dealing with penalties and other payment, the common usage and dictionary meanings of the term "penalty" are not particularly helpful as a means of gauging Parliamentary intent. Here, the statutory scheme and context yield a more cogent answer.

[30]            The Applicant has suggested that MacKay J. in ACL Canada Inc., supra, came to a different conclusion and decided that a forfeiture (or sum substituted therefore) was indeed a penalty. But, upon review of that case, I am convinced that MacKay J. did not make such a finding. The distinction was not before him in that case and his use of the word "penalty" did not occur within the context of ss.3.3(1) of the Act.

[31]            From this I conclude it was Parliament's intent to deal with sums assessed under the ascertained forfeiture procedure by way of ss. 129, 131 and 133 of the Act and not by way of s. 3.3(1).

[32]            The Minister committed no reviewable error in informing the Applicant to this effect.

[33]            For the same reasons, I find that the Minister did not act without jurisdiction, act beyond his jurisdiction, or otherwise refuse to exercise his jurisdiction under ss. 3.3(1) of the Act in relation to the Applicant's request.

Did the Minister err in refusing to review the matter of the penalty imposed under section 124 of the Act by failing to observe a principle of natural justice, procedural fairness or any other procedure that he was required by law to observe?

[34]            The Applicant submits that, since imposition of the penalty pursuant to s. 124 is itself an arbitrary act, in the absence of any rights of appeal therefrom, the refusal of the Minister to reconsider his decision in response to the application made by the Applicant pursuant to ss. 3.3(1) of the Act denied the Applicant the opportunity to be heard both with respect to the initial imposition of the penalty and with respect to any reconsideration of that decision.

[35]            Accordingly, the Applicant submits that, when the Minister refused to carry out a reconsideration of the imposition of the penalty in this case, the Minister failed to observe natural justice, procedural fairness, or any other procedure that he was required by law to observe.

[36]            The Respondent submits that the Applicant's argument in this regard is essentially that the Minister arbitrarily assessed a penalty under s. 124, and then refused to reconsider that penalty under ss. 3.3(1). The Respondent notes that the Applicant's suggestion is that she was not given the right to participate in the making of the administrative decision, both in respect of the initial imposition of the ascertained forfeiture, and any reconsideration of that action. However, the Respondent takes the position that this matter is not before me on this Application, which deals with the ss. 3.3(1) decision only, and that the Applicant's assertions in this regard are incorrect.

[37]            Although the ascertained forfeiture is not under review, the Respondent points out that it was not imposed in an arbitrary manner. The ascertained forfeiture took the place of an actual forfeiture of goods. Those goods were forfeit simply by virtue of their undervaluation.

[38]            A review of whether the goods should have been forfeit did, in fact, occur. The Respondent notes that the Applicant took 2½ years to complete her submissions in this regard, and she was assisted by counsel throughout the process. Her submissions contained letters of reference, the transcript of the sentencing hearing for the Applicant on her criminal charge, the Applicant's background, and various other documents. The July 20, 2001, letter containing the Minister's decision on that question indicates that the material provided by the Applicant was reviewed. The Respondent submits that, as a result, the Applicant had ample opportunity to participate in the making of the decision and in fact took part in that decision.

[39]            The Respondent contends that, in suggesting that the imposition of the ascertained forfeiture was arbitrary, and that as a result the failure to reconsider it under ss. 3.3(1) violates concepts of natural justice and procedural fairness, the Applicant is asking this Court to ignore the fact that the imposition of the ascertained forfeiture was indeed the subject of review by the Minister when the Applicant's submissions were considered.

[40]            Additionally, the Respondent points out that, at the time the Minister issued his decision under s. 131 of the Act, he also issued a demand for payment under s. 133. Section 133 allows the Minister to consider whether too much or too little money was taken from the Applicant, once he has decided that a contravention has taken place. The amount of money that can be demanded of a person is limited to the duty value of the goods plus the duty levied thereon. The Respondent submits that this is the same limitation that appears in s. 124 of the Act.

[41]            The Respondent notes that the s. 133 demand is contained in the Minister's July 20, 2001 letter, which also indicates that the documentation provided by the Applicant was reviewed.

[42]            Therefore, the Respondent submits that the Applicant cannot now complain that the ascertained forfeiture was arbitrary and not subject to any review. Both the fact of the forfeiture and the amount of money demanded in lieu of seizure of the goods were reviewed by the Minister in the context of his s. 131 decision and s. 133 demand.

[43]        The Applicant, who was assisted by counsel, chose not to seek judicial review of the s. 133 demand and neither the ascertained forfeiture, the Minister's s. 131 decision, nor the Minister's demand under s. 133 are under review as part of this Application.      

[44]            Once again, I have to agree with the Respondent in this regard. The Applicant's motion contains a request that ss. 124 and 127 of the Act be declared unconstitutional on the ground that the sections are arbitrary, a denial of natural justice and a contravention of s. 7 of The Constitution Act, 1982. But the only decision of the Minister this court is asked to review is the one "dated December 13, 2001 whereby the Applicant's request for remission of penalty pursuant to subsection 3.3(1) of The Customs Act was refused." I do not have before me either evidence or argument on other decisions that have been made in relation to the Applicant.

[45]            The Applicant's real argument here is that she feels she was misled by the Minister's correspondence into following procedures that prevented a decision ever being made on the quantum aspect of the ascertained forfeiture. Her complaint was never that she had not contravened the Act; she merely wanted to question and have reconsidered the amount of the assessment. She communicated this to the Minister and, following the several decisions, she was notified about her rights of review under the Act. However, she feels she was misled because the procedures for review that the Minister brought to her attention could not lead to a reconsideration of the amount of the assessment, which was the only matter of concern to her.

[46]            On the Notice, the Minister advised the Applicant that the sole manner of review available to her was an application under s. 129 of the Act. She was not advised that the Minister's powers under s. 131 of the Act did not allow the amount to be assessed.

[47]            Consequently, when, through her broker, she made an application under s. 129 for reconsideration of the sum assessed under s. 124, her application was dismissed by the Minister who then advised her that an appeal lay to the Federal Court in accordance with s. 135 of the Act. What the Minister did not tell her was that such an appeal could not yield a review of the quantum of the assessment because the jurisprudence of the court associated with that section has concluded that a review of quantum is not available.

[48]            This is why, at the end of the day, the Applicant concluded she had to apply to the Minister under ss. 3.3(1) of the Act, with a request that the fairness policy under that section be exercised over the sum assessed by ascertained forfeiture.

[49]            I am certainly sympathetic to the Applicant's sense of frustration in this regard. But her lack of understanding concerning the appropriate procedure to follow cannot be laid at the feet of the Minister and I do not find the Minister's notices to the Applicant misleading in this regard.

[50]            There is no evidence before me that the Applicant's submissions and documentation on the quantum issue were not considered by the Minister as part of the s. 131 application and the s. 133 determination of what sum the Applicant should pay. In fact, the decision of July 20, 2001 contains a demand under s. 133 and specifically informs the Applicant that the review undertaken by the Minister "was based on the documentation you provided as well as the official Agency reports."

[51]            The Applicant was always at liberty to seek legal advice on the significance of the information and decisions obtained for the Minister. The fact that she failed to appreciate fully the scheme of the Act in so far as it applied to her situation does not assist her present application to have the Minister's ss. 3.3(1) decision reviewed, and it does not amount to a failure to observe natural justice, procedural fairness or the legal procedure on the part of the Minister.

Was the imposition of the penalty by the Minister pursuant to section 124 of the Act arbitrary, in violation of the Applicant's right to due process, and a denial of natural justice?

[52]        The Applicant argues that the Act does not provide for any mechanism whereby the recipient of a notice of ascertained forfeiture can challenge the calculation of the amount of duty payable or any additional amount assessed under ss. 124(2) or 124(4) of the Act. The Applicant submits that this means that the Minister's determination could be excessive and result in the Crown acquiring monies to which it is not entitled.

[53]        The Applicant submits that this renders the Minister's determination arbitrary because, if the amount of duty payable or the value of goods is calculated erroneously, any person in receipt of a Notice of Ascertained Forfeiture has no means under the Act to ensure that the amount payable is lawful.

[54]            The Applicant further submits that the Minister's power to determine the amount in accordance with ss. 124(1) of the Act is arbitrary insofar as the Minister can impose whatever amount he or she wishes as a penalty without recourse to any provision of the Act or applicable regulations as to the quantum involved.

[55]            The Applicant takes the position that s.127 of the Act precludes any appeal other than as prescribed by s. 129 of the Act and s. 129 does not allow for any appeal from the determination of the Minister as to the amount imposed under s. 124.

[56]            The Applicant submits that an appeal under s. 129 of the Act is addressed by the Minister under s. 131, which permits the Minister to review whether a contravention of the Act has occurred, but does not provide any discretion with respect to the quantum of the amounts demanded pursuant to s. 124 (ACL Canada Inc., supra, at 197 and 199).

[57]        The Respondent's position is that there is no arbitrariness involved. Once there is a contravention of the Act, the goods are forfeit and, instead of seizing goods, the Minister may issue an ascertained forfeiture, which amount must not exceed the value for duty of the goods plus the duty payable thereon. Whether the goods are indeed forfeit is the subject of Ministerial review under s. 131. In conjunction with that review, the Minister considers whether too much or too little money has been taken in respect of an ascertained forfeiture. In this case, the s. 131 and s. 133 decisions of the Minister were made after consideration of the Applicant's extensive submissions.

[58]            The Respondent points out that, in fact, s. 133 of the Act provides a mechanism for the Minister to ensure that there was no error in calculation. Furthermore, in case there is any lingering concern, the Respondent points out that recent amendments to the Act provide for a review of the calculation of any amount assessed, collected, demanded or taken.

[59]            The Applicant submits that, since an appeal under s. 131 cannot provide any redress to a party seeking a consideration of a penalty as to quantum, the imposition of that penalty in the absence of statutory or regulatory review is in and of itself arbitrary. Additionally, the Applicant contends that the power to impose a penalty, the quantum of which can be determined unilaterally by the Minister without any rights of appeal, violates the "due process" provisions of the Canadian Bill of Rights.

[60]            Relying upon [1970] S.C.R. 282">R. v. Drybones, [1970] S.C.R. 282 at 294, the Applicant further submits that the courts have held that the statutory provisions that violate the Bill of Rights are subject to the following consequences:

s. 2 is intended to mean and does mean that if a law of Canada cannot be "sensibly construed and applied" so that it does not abrogate, abridge or infringe one of the rights and freedoms recognized and declared by the Bill, then such law is inoperative "unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights"

[61]            The majority judgement of the Supreme Court of Canada in [1970] S.C.R. 282">Drybones, supra, was built on a foundation of significantly different circumstances than those present in the case before me. [1970] S.C.R. 282">Drybones, supra, was based on the principle that an individual is denied equality before the law if it is made an offence punishable at law, on the basis of his/her race, for a person to do something which his/her fellow Canadians are free to do without having committed any offence or having been made subject to any penalty. At issue in [1970] S.C.R. 282">Drybones, supra, was s. 94(b) of the Indian Act, which was found to be a provision that created such an offence. In Drybones, supra, it was held the s. 94(b) of the Indian Act could only be construed in such manner that its application would operate so as to abrogate, abridge or infringe one of the rights declared and recognized by the Canadian Bill of Rights. Section 94(b) of the Indian Act was therefore found to be inoperative.

[62]            In Bear v. Canada (Attorney General), [2003] F.C.J. No. 96 (F.C.A.) (Application for leave to appeal dismissed by the Supreme Court of Canada [2003] S.C.C.A. No. 115) the Federal Court of Appeal noted, in relation to paragraph 1(5) of the Bill of Rights, the limited applicability of [1970] S.C.R. 282">Drybones, supra, to questions of equality in the administration of the law. As Strayer, J.A. held for the Court:

39.       With respect, I believe that the Supreme Court jurisprudence following [1970] S.C.R. 282">Drybones adequately demonstrated that paragraph 1(b) did not either explicitly or implicitly guarantee equal benefit of the law. In [1974] S.C.R. 1349">A.G. of Canada v. Lavell, [1974] S.C.R. 1349 it was stated, in a judgment supported by the majority of the Court, that paragraph 1(b) did not "invoke the egalitarian concept exemplified by the 14th Amendment of the U.S. Constitution ..." but guaranteed only "equality in the administration or application of the law by the law enforcement authorities and the ordinary courts of the land". ([1974] S.C.R. 1349">Lavell at 1365-66). Thus [1970] S.C.R. 282">Drybones was explained as prohibiting the creation of offences for a category of persons defined by race for which other persons could not be brought before the courts. The Court likened this guarantee to the traditional concept of the "rule of law" which in its traditional sense has been taken to mean that everyone, whether citizen or ruler, is subject to the law and the courts. In [1979] 1 S.C.R. 183">Bliss v. A.G. of Canada, [1979] 1 S.C.R. 183 the Supreme Court declined to apply paragraph 1(b) so as to invalidate certain provisions of the Unemployment Insurance Act which gave some benefits to one class of women but not to others. The Court distinguished the situation in [1970] S.C.R. 282">Drybones, involving the imposition of a penalty on one racial group which was not imposed on anyone else, from the situation in [1979] 1 S.C.R. 183">Bliss involving entitlement to benefits. It was not prepared to find a guarantee in paragraph 1(b) of equal benefit of the law. It was indeed against this jurisprudential background that subsection 15(1) of the Charter was drafted with the addition of "equality under the law" and "equal protection" and "equal benefit of the law". (See the discussion of this in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 170). In the post-Charter era when an attempt was made to invoke paragraph 1(b) of the Bill of Rights in respect of legislation differentiating among federally-appointed judges with respect to pension contributions, the Supreme Court declined to revisit this issue. In The Queen v. Beauregard, [1986] 2 S.C.R. 56 at 90 Dickson C.J. after reviewing the jurisprudence on "equality before the law" under paragraph 1(b) of the Bill of Rights and noting the narrow interpretation which had been given to it, concluded as follows:

I believe the day has passed when it might have been appropriate to re-evaluate those concerns and to reassess the direction this Court has taken in interpreting that document.

40.       I must therefore with respect disagree with the applications judge in his conclusion that the failure to extend CPP entitlement to the respondent was a denial of equality before the law within the meaning of paragraph 1(b) of the Bill of Rights. There was nothing here involving a difference in administration or enforcement of the law in respect of the respondent as compared to other Canadian workers in a manner analogous to the situation in [1970] S.C.R. 282">Drybones. I believe it is fair to conclude from the jurisprudential history that it was not until the adoption of the Charter, and the coming into force of subsection 15(1) thereof in 1985, that a political will to guarantee equality under the law and equal benefit of the law was given constitutional effect.

[63]            I also note the recent Supreme Court of Canada decision in Authorson v. Canada (Attorney General), [2003] S.C.J. No. 40 where Major J. delivered the judgement for the Court:

5.       Do the due process protections of the Bill of Rights guard against the expropriation of property by passage of valid legislation? Although s. 1(a) of the Bill of Rights confers certain procedural protections - and may also confer certain substantive protections - I have concluded the answer is no.

6.       The Bill of Rights allows the deprivation of the enjoyment of property only through due process of law. At issue in this appeal is the validity of a federal statute that purportedly extinguished the claims of disabled veterans to interest on their governmentally administered pensions.

...

10.       The Bill of Rights is a federal statute that renders inoperative federal legislation inconsistent with its protections. It protects rights that existed when the Bill of Rights was enacted, in 1960. If Parliament wishes to circumvent the protections of the Bill of Rights, it must do so explicitly by stating that the legislation in question operates notwithstanding the Bill of Rights. In legislating the bar against claims for interest, Parliament did not explicitly enact this "notwithstanding" clause. As a result, the issue in this appeal is whether the due process rights respecting property that existed in 1960 and were entrenched by the Bill of Rights permit the Crown to deny its liability for the missing interest based on validly enacted legislation.

11.       What protections for property are provided by due process?

12.       Due process does not require that the veterans receive notice and a hearing before Parliament prior to the passage of expropriative legislation. As unfortunate as it is for the respondent, long-standing parliamentary tradition has never required that procedure.

13.       Does due process in this case require an individual hearing before a tribunal? If the effect of legislation requires a hearing or adjudication then that must conform to Canadian jurisprudence demanding a fair hearing. But that is not what was legislated. Here, there is no dispute that if the law is operative, the veterans' rights to damages for the lost interest are extinguished.

14.       Does the Bill of Rights require that Parliament give just compensation to the veterans? The governmental expropriation of property without compensation is discouraged by our common law tradition, but it is allowed when Parliament uses clear and unambiguous language to do so.

15.       The Department of Veterans Affairs Act, s. 5.1(4) takes a property claim from a vulnerable group, in disregard of the Crown's fiduciary duty to disabled veterans. However, that taking is within the power of Parliament. The appeal has to be allowed.

[64]            The Applicant submits that the power of the Minister to unilaterally determine the quantum of monies pursuant to s. 124 of the Act without any right of appeal violates the Applicant's right to the enjoyment of her property and the right not to be "deprived thereof except by due process of law" in accordance with the Bill of Rights.

[65]            The Respondent contends that there is no violation of the Bill of Rights by virtue of the nature of ascertained forfeiture under the Act. First of all, the ascertained forfeiture is not a penalty but is the legal, inescapable consequence of the commission of a contravention. The Respondent further submits that there are two stages at which the question of whether goods are forfeit is considered, namely the s. 131 decision and the appeal that is allowed therefrom via s. 135. The s. 133 demand is a decision for which judicial review can be sought before this Court.    (ACL Canada Inc., supra)).

[66]            The Respondent contends, therefore, that the imposition of an ascertained forfeiture does not deprive the Applicant of her right to enjoyment of property and the right not to be deprived thereof except by due process of law.

[67]            I am of the opinion that the imposition of a demand by the Minister pursuant to s. 124 of the Act is not arbitrary and, in this case, was not in violation of the Applicant's right to due process. No denial of natural justice took place. The ascertained forfeiture procedure is long-standing, it is equally applicable to everyone who contravenes the Act and, in the provisions of the Act that deal with the consequences of ascertained forfeiture, Parliament has provided both limitations and a scheme of due process that does not run foul of the Bill of Rights and is not arbitrary.

[68]            Even if these matters were directly before me in this application, and this is dubious because only the Minister's 3.3(1) Decision is being reviewed, I am satisfied that the Applicant's rights have not been arbitrarily contravened in the case at bar.

                                                  ORDER

THIS COURT ORDERS that:

1.          The application for judicial review is dismissed.

2.          The Respondent shall have costs of the application.

                  "James Russell"                 

J.F.C.

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-66-02

STYLE OF CAUSE: LINDA HIEBERT v. ATTORNEY GENERAL OF

CANADA

PLACE OF HEARING:                                   WINNIPEG

DATE OF HEARING:                                     SEPTEMBER 24, 2003

REASONS FOR ORDER AND ORDER : RUSSELL, J.

DATED:                      DECEMBER 19, 2003

APPEARANCES:

BARBARA SHIELDS                                                     FOR THE APPLICANT

TRACEY TELFORD                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

AIKINS, MACAULAY & THORVALDSON             FOR THE APPLICANT

WINNIPEG, MB

MORRIS ROSENBERG                                                 FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA