El-Batnigi v. Canada (Minister of National Revenue), docket A-501-96

                                         Date: 19980317

                                         Docket: A-501-96

MONTRÉAL, QUEBEC, THE 17th DAY OF MARCH 1998

CORAM:      THE HONOURABLE MR. JUSTICE DENAULT

     THE HONOURABLE MADAME JUSTICE DESJARDINS

     THE HONOURABLE DEPUTY JUSTICE CHEVALIER

BETWEEN:

     MAHMOUD EL-BATNIGI

     Appellant

AND:

     MINISTER OF NATIONAL REVENUE

     Respondent

     J U D G M E N T

         The appeal is dismissed with costs.

     Pierre Denault

     J.A.

Certified true translation

Peter Douglas

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     Docket: A-501-96

CORAM:          DENAULT J.A.

             DESJARDINS J.A.

             CHEVALIER D.J.

BETWEEN

     MAHMOUD EL-BATNIGI

     Appellant

     AND

     MINISTER OF NATIONAL REVENUE

     Respondent

     Hearing held at Montréal on Tuesday, March 17, 1998

     Judgment delivered at Montréal on Tuesday, March 17, 1998

REASONS FOR JUDGMENT OF THE COURT BY:      DESJARDINS J.A.

         Date: 19980317

         Docket: A-501-96

CORAM:      DENAULT J.A.

     DESJARDINS J.A.

     CHEVALIER D.J.

BETWEEN:

     MAHMOUD EL-BATNIGI

     Appellant

AND:

     MINISTER OF NATIONAL REVENUE

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the bench at Montréal

     on Tuesday, March 17, 1998)

DESJARDINS J.A.

[1]      The appellant has not satisfied us that the Trial Judge made any error which would warrant our intervention.

[2]      It is clear that there were no criminal charges against the appellant under subsection 88.2(2) of the Excise Act¹ (the Act), so contrary to his submissions, the presumption of innocence under paragraph 11(d) of the Canadian Charter of Rights and Freedoms² and paragraph 2(f) of the Canadian Bill of Rights³ does not apply here.

[3]      To be entitled to an order that the appellant"s interest as owner of the seized vehicle was not affected, it had to be made to appear to the Trial Judge"s satisfaction that the appellant was innocent of any complicity in the offence resulting in the seizure and that he exercised all reasonable care to satisfy himself that the seized vehicle was not likely to be used contrary to the Act.

[4]      As it was not so made to appear, the Trial Judge was justified in deciding as he did.

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[5]      The appeal will accordingly be dismissed with costs.

     Alice Desjardins

     J.A.

MONTRÉAL, QUEBEC

March 17, 1998

Certified true translation

Peter Douglas

     FEDERAL COURT OF APPEAL

Date: 19980317

Docket: A-501-96

Between:

     MAHMOUD EL-BATNIGI

     Appellant

     AND:

     MINISTER OF NATIONAL REVENUE

     Respondent

    

     REASONS FOR JUDGMENT

    

     FEDERAL COURT OF APPEAL

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:          A-501-96

STYLE OF CAUSE:          MAHMOUD EL-BATNIGI

     Appellant

             AND

             MINISTER OF NATIONAL REVENUE

     Respondent

PLACE OF HEARING:          Montréal, Quebec

DATE OF HEARING:          March 17, 1998

REASONS FOR JUDGMENT OF THE COURT (THE HONOURABLE MR. JUSTICE DENAULT, THE HONOURABLE MADAME JUSTICE DESJARDINS AND THE HONOURABLE DEPUTY JUSTICE CHEVALIER)

DELIVERED FROM THE BENCH BY:      The Honourable Madame Justice Desjardins

     Dated:          March 17, 1998

APPEARANCES:

     Abdallah Hachimi          for the appellant

Josée Paquin          for the respondent

     - 2 -      A-501-96

SOLICITORS OF RECORD:

     Abdallah Hachimi          for the appellant

     Montréal, Quebec

     George Thomson          for the respondent

     Deputy Attorney General of Canada

     Ottawa, Ontario

__________________

¹ R.S.C., 1985, c. E-14, as am. by S.C. 1995, c. 36, s. 13.

² Canadian Charter of Rights and Freedoms, (Constitution Act, 1982, U.K., Part I).

³ Canadian Bill of Rights, 8-9 Elizabeth II, c. 44 (Canada).