Docket: A-521-14
Citation:
2016 FCA 105
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CORAM:
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STRATAS J.A.
WEBB J.A.
GLEASON J.A.
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BETWEEN:
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STEVEN WISE
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Appellant
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And
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THE MINISTER OF
PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on April 6, 2016).
STRATAS J.A.
[1]
Mr. Wise appeals from the Judgment dated October
29, 2014 of the Federal Court (per O’Keefe J.): 2014 FC 1027. The
Federal Court dismissed Mr. Wise’s appeal of a decision of a Canada Border
Services Agency officer penalizing him $2,500 for the violation of not
declaring currency of $10,000 (Cdn.) or more when leaving Canada.
[2]
Under the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 12 and the Cross-Border
Currency and Monetary Instruments Reporting Regulations, SOR/2002-412, s.
2, a traveller leaving Canada in “actual possession”
of $10,000 (Cdn.) or more must declare the currency.
[3]
On February 14, 2009, Mr. Wise and his spouse
were leaving Canada together on a flight to St. Maartin. A Canada Border
Services Agency officer interviewed Mr. Wise and his spouse on the bridge
leading to the aircraft. Mr. Wise advised that he was carrying under $10,000
(Cdn.). However, a search of an agenda/credit card holder in Mr. Wise’s actual
possession revealed $13,820.69 (Cdn.). The officer imposed a $2,500 (Cdn.) fine
on the spot and allowed Mr. Wise to leave with the rest of the currency.
[4]
In the Federal Court, Mr. Wise submitted that he
and his spouse jointly owned the currency and so each was below the $10,000
(Cdn.) threshold. He also submitted that the defence of officially induced
error—defined in cases such as R. v. Jorgensen, [1995] 4 S.C.R. 55, 129
D.L.R. (4th) 510—was available to him.
[5]
Following a full trial, the Federal Court
rejected these submissions.
[6]
Following the governing law concerning how
legislative provisions should be interpreted (e.g., Re Rizzo &
Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193), the Federal
Court held that “actual possession” in s. 12 of
the Act (in particular, para. 12(3)(a) of the Act) means actual,
physical possession, not ownership. Mr. Wise had actual, physical possession of
the currency, which exceeded $10,000 (Cdn.).
[7]
On this point, we agree with and endorse the
Federal Court’s analysis and conclusions at paras. 17-24 of its reasons. The
text, context and purpose of s. 12 of the Act all support the conclusion that “actual possession” means actual, physical possession,
not ownership.
[8]
The Federal Court also found that the defence of
officially induced error was not available on the facts (paras. 29-30). On
appeal, this factually-suffused conclusion can only be set aside on the basis
of palpable and overriding error, namely some error that is “obvious” and “goes to the
very core of the outcome of the case”: Canada v. South Yukon Forest
Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46. Mr. Wise has not
demonstrated any such error.
[9]
On appeal of the Federal Court’s rejection of
the defence of officially induced error, Mr. Wise urges us to prefer the
customs officer’s statement on cross-examination that he could not recall what
he had said to Mr. Wise and that he could not be sure how his statements would
have been understood by Mr. Wise: see Memorandum, paras. 8 and 26. In the
hearing before us, Mr. Wise referred to multiple parts of the officer’s
testimony in support of this.
[10]
Under Jorgensen and related cases, this
falls short of making out the defence of officially induced error. Further, whatever
the officer might have said to Mr. Wise was said after the conduct contrary to
the Act and the Regulations; in no way did the officer induce the conduct. In
any event, in an appeal on a point like this, our job is not to retry the case
or reweigh the evidence but rather to assess whether there is palpable and
overriding error. Again, we are not persuaded that any such error is present.
[11]
Accordingly, we will dismiss the appeal. By
agreement, costs will be fixed at $4,000, all-inclusive.
"David Stratas"
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