Canada (National Revenue, Customs and Excise) v. Anderson, docket T-1257-93

     T-1257-93

B E T W E E N:

     DEPUTY MINISTER OF NATIONAL REVENUE

     FOR CUSTOMS AND EXCISE

     Appellant

     - and -

     DOUGLAS ANDERSON and CREED EVANS

     Respondents

     A N D

     T-2487-93

B E T W E E N:

     DOUGLAS ANDERSON and CREED EVANS

     Appellants

     - and -

     DEPUTY MINISTER OF NATIONAL REVENUE

     FOR CUSTOMS AND EXCISE

     Respondent

     REASONS FOR DECISION

CAMPBELL J.

     Let the attached transcript of my Reasons for Decision delivered orally from the Bench in Edmonton, Alberta, the 7^th day of May, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.

                          Judge

OTTAWA

May 27, 1997

THE COURT:

By consent, the facts in these cases, T-1257-93 and T-2487-93, are those contained within paragraphs 1 to 11 of the memorandum of points to be argued by the Appellant in Court File T-1257-93. I do not intend to recite them here but incorporate them for the purposes of the legal decision which I must make.

The issue that was before the International Trade Tribunal is what is the proper tariff classification for the weapons which were attempted to be landed? Precisely the issue is whether these particular weapons were "offensive weapons" as defined in Tariff Code 9965, Schedule 7 of the Customs Tariff. In respect of that particular provision, the definition of "offensive weapons" is as follows: "Offensive weapons as defined in the Criminal Code". So there is what might be reasonably stated to be an incorporation by reference of a definition found in another statute, being the Criminal Code of Canada.

The definition has been the subject of many court cases resulting from criminal behaviour, ranging from Courts of Appeal to the Supreme Court of Canada. These cases have been propelled by offenses relating to weapons. As a consequence, the definition provision in the Criminal Code contained in Section 2 has been the subject of a fair amount of litigation.

The narrow issue is whether, in deciding whether these weapons which were attempted to be landed are "offensive weapons" and, therefore, prohibited from being landed, the judicial interpretations under the Criminal Code must be considered? The Tribunal found as follows, and this is contained within the third paragraph of page 5 of its decision:

     "In the case at hand, there is no offense connected with the definition that the Tribunal has to apply; therefore, for the purposes of tariff classification, the Tribunal cannot simply borrow the interpretations made with respect to criminal charges."

It is clear on its face that this is a statement that the Criminal Code judicial interpretations do not apply to the definition of "offensive weapon", as that term is used in Tariff Code 9965, Schedule 7 of the Customs Tariff.

I find this is an error in law. There is no borrowing here. There is a requirement in this Customs Tariff to use the Criminal Code definition. It seems to me that if you incorporate a definition from another place, in this case from the Criminal Code, you also incorporate the judicial intentions of the definition. And it also seems obvious that had the definition of "offensive weapons" in the Customs Tariff been specified in the Tariff itself, not by incorporation from the Criminal Code, that the interpretation of the definitions under the Criminal Code would only have persuasive value.

Because the definition was incorporated by reference, I find that the judicial interpretations have legal authority. Obviously, they deal with offenses, because they are under the Criminal Code. I find, therefore, that to exclude them, because in the case before the Canadian International Trade Tribunal there was no offense, is an error in interpretation.

For these reasons, I set the Order aside in the application by the Crown under file number 1257-93 and refer this matter back to the International Trade Tribunal for reconsideration.

Now, Mr. Gregory, as to how this applies to the case on which you are the Appellant, what relief do you ask, if any?

MR. GREGORY:              I do not have any submissions, sir.

THE COURT:      So for the same reasons, therefore, I set the order aside in file number T-2487-93, and refer the matter for reconsideration as well.