Date: 20071130
Docket: T-854-07
Citation: 2007 FC 1263
Ottawa, Ontario, November 30, 2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
HARPREET
GREWAL
Applicant
and
MANAGER
CUSTOMS PROCESSING CENTRE
ON BEHALF OF
THE SOLICITOR GENERAL OF CANADA
CANADA BORDER
SERVICE AGENCY
THE MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Harpreet
Grewal (the Applicant) seeks Judicial Review pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7 of two decisions made on March 12,
2007 by Managers of the Customs Processing Centre on behalf of the Solicitor
General of Canada, the Canada Border Services Agency (CBSA) and the Minister of
Public Safety and Emergency Preparedness (Respondents). The decisions denied
Ministerial Review of the cancellation of the Applicant’s participation in the
Fast and Secure Trade Program and the Commercial Driver Registration Program.
BACKGROUND
(i) The
Fast and Secure Trade Program
[2]
The
Fast and Secure Trade Program (FAST) is a joint Canada-United
States
initiative involving the CBSA and United States Customs and Border Protection
(CBP). Shipments for pre-approved companies, transported by approved carriers
using registered drivers, are cleared through customs and immigration in both
countries with greater speed than other shipments. Often dedicated lanes are
available at border points. FAST participants must meet the requirements of
both the CBSA and CBP.
[3]
The
FAST Application Form (number RC4317(E) Rev. 05) (the FAST Application) includes
the following:
Who qualifies?
You may qualify to participate in the
program if you are a citizen or permanent resident of the United States or Canada, age 18 or over and possess a
valid driver’s license. You must be admissible to Canada and the United States under applicable immigration laws.
However, you may not qualify if you:
■ provide false or
incomplete information on your application;
■ have been convicted of a
criminal offence;
■ have been
found in violation of customs or immigration law; or
■ fail to meet
other requirements of the FAST Commercial Driver Program.
Both countries must approve
your application. If you do not meet the requirements of both countries, your
application will be denied.
[my
emphasis]
[4]
Approved
FAST applicants receive a document entitled Commercial Driver Program
Participant’s Guide number RC4319(E) Rev. 06 (the FAST Guide). It states on
page 3 that cardholders must, inter alia, comply with all CBSA
legislation.
[5]
The
FAST Guide also has a section entitled Penalties. It reads as follows:
Penalties
CBSA and CBP officers will strictly
enforce the law.
Any time you enter Canada or the United States you are subject to compliance and enforcement checks. If
you are found in violation of any condition of the FAST program, or of any law
of Canada or the United States, officers may:
■ revoke
your FAST Commercial Driver card. If your card is revoked, you must wait 90
days before you can re apply to the FAST Commercial Driver Program;
■ seize any
undeclared goods and the vehicle you used to transport those goods;
■ issue
penalties;
■ initiate
administrative procedures; and
■ initiate
criminal prosecution.
[my
emphasis]
(ii) The
Commercial Driver Registration Program
[6]
The
Commercial Driver Registration Program (CDRP) is a Canadian CBSA programme
designed to streamline the customs clearance process for commercial freight
transporters entering Canada from the United States. The CBSA claims that
the CDRP offers efficient and effective clearance to low-risk goods handled by
pre-approved importers, carriers and commercial drivers.
[7]
The
CBSA website about the CDRP (the CDRP Website) states the following:
To qualify for CDRP, applicants must:
● Provide true and
complete information on the application;
● Be admissible to Canada under the Immigration and
Refugee Protection Act and have no criminal record which has not been
pardoned;
● Not have violated
customs or immigration laws;
● Be deemed to
be of good character, meaning that the CBSA is confident you will comply with
program obligations.
[my
emphasis]
CDRP Driver Responsibilities
As an approved CDRP
participant, you must:
● Comply
with the Customs Act and regulations, the Immigration and Refugee
Protection Act and regulations, as well as the other laws administered by
the CBSA or Citizenship and Immigration Canada;
[my
emphasis]
…
Are there penalties for
non-compliance?
Your acceptance in the CDRP is
a privilege.
The CBSA will periodically review your application and occasionally examine
your vehicle to ensure you are complying with CDRP requirements, as well as
customs and immigration legislation. The CBSA will strictly enforce the law.
Penalties for non-compliance may
include the following:
● Revocation
of membership privileges for CDRP participants who fail to comply with
program requirements and procedures; and
● Monetary
penalties against CSA-approved carriers who use a non-registered driver for CSA
clearance.
[my
emphasis]
(iii) The
Presentation of Persons (2003) Regulations, SOR/2003-323 (the Regulations)
[8]
The
Regulations are made pursuant to the Customs Act, R.S.C. 1985 c. 1 (2nd
Supp.) (the Act). Part II of the Regulations is entitled Presentation in
Alternative Manners and describes the situations in which FAST and CDRP
authorizations may be issued by the Minister. Section 6.2(c) says that FAST
authorization cannot be given to an applicant who has been suspended or
cancelled during the 90 days before the date of their current application.
[9]
The
Regulations also deal with the suspension and cancellation of authorizations. In
this regard section 22 reads as follows:
|
Grounds
22. (1) The Minister may suspend or
cancel an authorization if the person
(a) no longer meets the requirements for the
issuance of the authorization;
(b) has contravened the Act, the Customs
Tariff, the Export and Import Permits Act or the Special Import
Measures Act, or any regulations made under any of those Acts; or
(c) has provided information that was not true,
accurate or complete for the purposes of obtaining an authorization.
(2) [Repealed,
SOR/2006-154, s. 15]
[my emphasis]
Notice of suspension or cancellation
(3) Immediately after cancelling or
suspending an authorization of a person, the Minister shall send written
notice of, and the reasons for, the cancellation or suspension to the person
at their latest known address.
Return of authorization
(4) A person whose authorization is
cancelled or suspended shall
(a) on receiving a notice under subsection (3),
immediately and in accordance with it, return to the Minister the written
authorization and any other thing relevant to the authorization that is
specified in the notice; or
(b) on being advised of the suspension or
cancellation in person by an officer, immediately return to the officer the
written authorization and any other thing relevant to it that is specified by
the officer.
Effective date of suspension or cancellation
(5) The suspension or cancellation of an authorization becomes effective on
the earlier of the day on which an officer advises in person of the suspension
or cancellation and 15 days after the day on which notice of the suspension
or cancellation is sent.
|
Motifs
22. (1) Les
motifs de suspension ou d’annulation d’une autorisation par le ministre sont
les suivants :
a) la personne
autorisée ne remplit plus les conditions pour l’obtention de l’autorisation;
b) elle a
contrevenu à la Loi, au Tarif des douanes, à la Loi sur les
licences d’exportation et d’importation ou à la Loi sur les mesures
spéciales d’importation, ou à un règlement pris sous leur régime;
c) elle a fourni
des renseignements faux, inexacts ou incomplets en vue d’obtenir une
autorisation.
(2) [Abrogé,
DORS/2006-154, art. 15]
[je
souligne]
Avis de suspension ou d’annulation
(3) Le
ministre transmet sans délai à la personne autorisée dont il suspend ou
annule l’autorisation, à sa dernière adresse connue, un avis écrit et motivé
l’informant de la suspension ou de l’annulation.
Remise de l’autorisation écrite
(4) La
personne autorisée dont l’autorisation est suspendue ou annulée :
a) soit, sur
réception de l’avis, remet sans délai au ministre, conformément à l’avis,
l’autorisation et toute chose s’y rattachant qui est indiquée dans celui-ci;
b) soit, si elle
en est avisée en personne par un agent, remet sans délai à celui-ci
l’autorisation et toute chose s’y rattachant que précise l’agent.
Application de la suspension ou de l’annulation
(5) La suspension ou l’annulation de
l’autorisation s’applique quinze jours après l’envoi de l’avis ou, s’il est
antérieur, le jour où un agent en avise en personne la personne autorisée.
|
[10]
Finally
section 23 provides for a review. It reads:
|
23. A
person whose application for an authorization is rejected or whose
authorization is suspended or cancelled may request a review of the decision
by sending written notice of their request to the Minister within 30 days
after the day on which the application was rejected or the cancellation or
suspension becomes effective.
|
23. La personne dont la demande
d’autorisation est refusée ou dont l’autorisation est suspendue ou annulée
peut demander la révision de la décision en transmettant un avis écrit au
ministre dans les trente jours suivant le jour du refus ou celui où
s’applique la suspension ou l’annulation.
|
THE APPLICANT’S
EXPERIENCE
[11]
The
Applicant held membership cards for both programs. They entitled him to access
alternative and speedy inspections for customs and immigration purposes. The
cards gave special privileges and were issued on the basis, inter alia,
that the Applicant would abide by the Act.
[12]
On
January 24, 2007, the Applicant violated section 12 of the Act. After a
day trip to the United States, he failed to report a 1.14 litre bottle
of scotch which he had hidden in his pants (the Violation). The irony is that
both parties acknowledge that, had he declared the liquor, no duty or taxes
would have been payable.
[13]
Following
considerable resistance by the Applicant, a Customs Officer seized the bottle
and fined the Applicant $1000 under the Act (the Seizure). In addition, the officer
confiscated the Applicant’s FAST card. The officer also gave the Applicant a
copy of the Narrative Report he prepared about the Seizure. In my view, it
served as reasons which explained both the Violation and the Seizure.
[14]
The
Applicant had a right to appeal the Violation and the Seizure under the Act but
he chose not to do so and paid the fine.
[15]
By
letters dated January 30, 2007 from security officers writing on behalf of
FAST and CDRP, the Applicant was advised that his memberships in both programs
had been revoked because he had “…been found in violation of customs law…” (the
Cancellations). It appears, based on computer records, that both cards were
cancelled on January 30, 2007. The Respondents’ affidavit which was sworn
by Mary Louise Bozanich on July 12, 2007 (the Respondents’ Affidavit)
indicates that these cancellations were “automatic”. The letters also advised the
Applicant that he could request a review of the Cancellations by writing to the
CBSA within thirty days.
[16]
On
January 31, 2007, the Applicant used his CDRP card at Canada Customs on a
return trip from the United States. At that time, a customs
officer confiscated his CDRP card.
[17]
On
February 7, the Applicant sought review of both Cancellations saying that
the Violation was unintentional, that inability to communicate was a factor and
that the cancellations were disproportionate to the infraction. The Applicant
noted that this was his first violation, and that his livelihood as a truck
driver and ability to support his family depended on his membership in the FAST
and CDRP programs.
[18]
On
March 6, 2007, the Review Committee of six Customs Officers and Managers
met to consider the Applicant’s requests for reviews of the Cancellations. When
considering his case, the Committee used a one-page document entitled a “FAST\CDRP
Pending Refusal Worksheet” (the Worksheet). However, the section of the
Worksheet which was relevant and which dealt with Customs Violations was not
completed. It read:
CUSTOMS
VIOLATIONS [Circle & Check One]
|
Approve
|
Reject
|
Refer to
Review Committee
|
|
|
Applicant
does not have a Customs Seizure within the last three years
|
|
|
Applicants
with Customs Seizure in the last three years eligible if
|
|
|
→
Customs infraction is a Level 1 seizure action where the Value of the
Non-contraband goods is less than or equal to $200 CAD
|
|
|
→
Quantity of alcohol that is less than or equal to 2L Liquor; 2L Wine; 4 Doz.
Beer.
|
|
|
→
Quantity of tobacco that is less than or equal to 400 Cigarettes; 800 Grams
of Tobacco; 800 Tobacco Sticks (does not include cigars)
|
|
|
Other:
|
|
|
|
|
[my emphasis]
[19]
The
document ended as follows:
REGIONAL
REVIEW COMMITTEE [Circle One]
|
Approve
|
|
Refer to
Review Committee
|
|
Comments
|
May
re-apply Jan 24, 2010 (handwritten)
|
|
|
|
|
Signed by Date
Mar 6/07 (handwritten)
(two members of the Review Committee
signed)
[20]
The
Review Committee’s decisions were communicated to the Applicant’s lawyer in two
letters dated March 12, 2007 (the Review Decisions).
[21]
The
body of the letter dealing with FAST read:
We have received and reviewed your
request dated 2007/02/16, submitted on behalf of your client, for the
re-consideration of their application to participate in the Free and Secure
Trade (FAST) Program.
Our findings of the circumstances
surrounding your client’s file do not allow us to revise this decision at this
time. Due to the nature and timeframe of the customs seizure your client
will be eligible to re-apply for FAST 2010/01/24.
(the FAST Decision)
[my emphasis]
[22]
The
body of the letter dealing with the CDRP read:
We have reviewed your request of
2007/02/16, submitted on behalf of your client for the reconsideration of their
application to participate in the Commercial Driver Registration Program (CDRP).
Due to the nature and timeframe of the
customs seizure, we are unable to reverse our decision at this time. However, your
client can re-apply to participate in the CDRP once 90 days have passed since
the date of notification of denial.
(the CDRP Decision)
[my emphasis]
Standard of Review
[23]
The
Review Committee was not asked to consider whether the Violation occurred and
whether the Seizure was lawful. Rather, it was asked to consider whether the Cancellations
were the appropriate penalty in the circumstances.
[24]
Both
parties submitted that correctness is the appropriate standard of review for
the Review Decisions. However, I was not persuaded by their submissions given
that the issue was the appropriate penalty.
[25]
I
will therefore consider the four factors to be taken into account in a pragmatic
and functional analysis:
(i) Absence
of Privative Clause
[26]
The
Act does not include a privative clause and there is no right of appeal from a
decision on penalty. These facts produce a neutral result. However, decisions of
the Review Committee are subject to judicial review. For that reason, this
factor suggests less deference.
(ii) Expertise
[27]
A
decision about the appropriate penalty is driven by the facts of a particular
case. A Review Committee would not likely have more expertise than the Court in
assessing the severity of a violation. This suggests less deference.
(iii) Statutory
Purpose
[28]
The
penalty imposed can reasonably be expected to have a deterrent effect both on
the driver who is directly affected and on the wider trucking community. As
well, the interests of Canadian businesses who need efficient cross-border
transportation and the Canadian public’s interest in safety and national
security must be considered in deciding whether to suspend or cancel FAST and
CDRP cards. In my view, this factor suggests greater deference.
(iv) The
Nature of the Problem
[29]
The
penalty to be imposed once a violation has occurred is a matter of discretion
in that section 22 of the Regulations provides that the Minister “may” cancel
or suspend an authorization (i.e. FAST or CDRP) if the Act is violated.
In my view, this factor favours a deferential approach.
[30]
For
these reasons, I have concluded that the standard of review is reasonableness.
In other words, do the Review Decisions withstand a somewhat probing analysis?
In my view they do not for the following reasons.
(i) The
Regulations were breached
[31]
The
Regulations make it clear in subsection 22(1) that the initial suspension or
cancellation of a FAST or CDRP card is a discretionary decision. However, the
Respondents’ Affidavit states in paragraph 8 that:
Since the Applicant violated the Act, the
CBSA automatically cancelled his participation in all Alternative
Inspection Programs, which include FAST and CDRP…
[my emphasis]
[32]
This
passage indicates that no discretion was exercised to determine whether a
cancellation or a suspension was the appropriate penalty. It is clear that the
Regulations intend an applicant to have the benefit of an initial discretionary
decision about whether to cancel or to suspend his privileges and, if suspension
is chosen, consideration should be given to its length.
[33]
In
this case, the Applicant was deprived of the benefit of a first discretionary
decision. In my view, the failure to follow the requirements of the Regulations
meant that the Cancellations were unlawful. In effect there were no decisions
for the Review Committee to consider. It was therefore acting without
jurisdiction when it made the Review Decisions.
(ii) No
Reasons were given for the Review Decisions
[34]
The
Applicant was not told why the Review Committee denied him suspensions and was
provided with no explanation for the prohibition on applying for FAST before
January 24, 2010. Given that these decisions affected his livelihood, an explanation
for the harsh result was required (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 25).
(iii) The
Conditions Imposed in the Review Decisions were not lawful
[35]
Respondents’
counsel confirmed that there is no legislative or regulatory authority for the
imposition of the three-year ban on the Applicant’s ability to reapply for FAST.
As noted above, the only restriction is found in paragraph 6(2)(c) of the
Regulations. It prohibits reapplications for FAST for ninety days. Further,
there is no provision in the Regulations which justifies any bar to reapplication
for CDRP. Thus, the 90-day restriction imposed on the Applicant’s reapplication
was improper.
[36]
I
have additional concerns about the Review Committee’s process and the
confiscation of the Applicant’s FAST card which I feel is important to express
in obiter.
(i) The
Review Decisions may not have been reasonable
[37]
The
Worksheet suggests that the Review Committee did not consider the fact that the
Worksheet indicates that applicants for FAST and CDRP are eligible for the
programs if the quantity of alcohol seized in the three previous years is less
than 2 litres. This is because seizures of such small amounts are not considered
significant (see paragraph 18 above). In this case, the size of the Applicant’s
bottle was only 1.14 litres. For this reason, it may be that the Violation in
this case is not a bar to membership in FAST or CDRP.
(ii) Discretion
may not have been exercised
[38]
The
Review Decisions may not have involved an exercise of discretion. The use of a
worksheet with “Pending Refusal” in the title suggests that the outcome was
predetermined and the fact that the Worksheet was not completed also suggests
that discretion was not exercised as required.
(iii) Confiscation
of the FAST card was improper
[39]
The
Customs Officer had no authority to confiscate the FAST card at the border on
January 24, 2007 because, as of that date, the Applicant’s FAST
privileges had not been cancelled. Subsection 22(4)(b) of the Regulations only
empowers an officer to ask for custody of cancelled or suspended cards and they
had not been cancelled on January 24th. Cancellation did not occur
until January 30, 2007.
THE APPROPRIATE ORDER
[40]
Normally
on a successful application for judicial review, an order would be made
requiring reconsideration of the decision under review. However, this case
poses a special problem because the Cancellations which were under review by
the Review Committee are nullities. This means that there is no penalty to be
reconsidered by the Review Committee.
[41]
For
this reason, I have ordered that the process start anew with an initial
discretionary consideration of penalties under subsection 22(1) of the
Regulations. Thereafter, if the Applicant wishes to seek a review of those
decisions under section 23 of the Regulations, it will be open to him to do so.
JUDGMENT
UPON reviewing the
material filed and hearing the submissions of counsel for both parties in Toronto on Tuesday,
August 28, 2007;
THIS COURT
ORDERS AND ADJUDGES that for the
reasons given above:
1.
The
Review Decisions and the Cancellations are hereby quashed.
2.
The
Minister is to exercise discretion under subsection 22(1) through a delegate
who has not previously worked on the Applicant’s file. That person is to decide
whether suspensions or cancellations of FAST and CDRP are the appropriate
response to the Violation and reasons are to be provided for the decisions.
3.
The
Minister’s decisions are to be mailed to the Applicant’s counsel by registered
mail on or before Friday, January 24, 2008.
4.
Pending
release of the decisions described in point 3, the Applicant’s FAST and CDRP
privileges are to be considered suspended.
Since costs
were not sought, there will be no order as to costs.
“Sandra
J. Simpson”
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