Muldoon,
J.
[TRANSLATION]:—This
is
a
claim
by
the
plaintiff
to
recover
certain
effects,
including
valuable
jewellery,
that
were
seized
by
customs
officers
at
Mirabel
Airport,
where
the
plaintiff
arrived
from
abroad
with
his
wife
on
September
25,
1982.
The
litigation
commenced
with
the
plaintiffs
statement
of
claim,
in
which
he
asserted,
in
part,
the
following
allegations:
2.
The
defendant's
employees
then
decided,
without
justification,
to
regard
all
the
plaintiff's
effects
as
smuggled
goods
and
demanded
from
him
the
sum
of
$1,867.62
in
addition
to
which
duty
was
to
be
paid
on
the
jewellery,
the
whole
as
appears
from
the
seizure
receipt
appended
hereto
as
Exhibit
P-1;
5.
On
or
about
May
9,
1983,
the
plaintiff
received
from
the
adjudications
division
a
notice
to
the
effect
that
the
Minister’s
final
decision
had
been
made
upholding
the
seizure,
the
whole
as
appears
from
the
said
notice
filed
in
support
hereof
as
Exhibit
P-4;
Exhibit
P-4
(form
K29-6/78
Registered)
dated
May
9,
1983
reads
in
part
as
follows:
Subject:
Customs
seizure
No
53212/399-T-358
Pursuant
to
the
provisions
of
section
163
of
the
Customs
Act,
the
following
decision
has
now
been
rendered
in
this
case:
that
the
goods
be
released
upon
payment
of
$9,371.90
to
be
forfeited
and
if
such
payment
is
not
made
within
30
days
that
the
goods
be
forfeited.
[signature]
Chief,
Adjudications
Division
For
the
Minister
of
National
Revenue
N.B.:
See
sections
160
to
167
of
the
Customs
Act
on
reverse.
In
defence
to
the
plaintiff’s
action,
the
Deputy
Attorney-General
of
Canada,
on
behalf
of
the
defendant,
stated
in
part
as
follows:
9.
The
plaintiff
and
his
wife
were
questioned
by
the
Customs
officer
concerning
their
acquisitions
abroad
and
declared
that
they
had
neither
received
nor
purchased
anything;
10.
The
plantiff
was
referred
for
a
secondary
examination
where
a
Customs
officer
proceeded
to
search
his
baggage;
11.
During
the
said
search,
the
Customs
officer
asked
the
plaintiff
three
times
whether
he
had
anything
to
declare,
the
plaintiff
saying
no
the
first
two
times
and
answering
the
third
time
that
he
had
goods
worth
$173.00
to
declare;
12.
At
the
time
of
the
said
search
and
after
the
plaintiff
and
his
wife
had
each
been
granted
an
exemption
of
$150.00,
goods
having
a
total
duty
paid
value
of
9,371.90
were
seized
because
they
had
not
been
declared
to
Customs
and
were
therefore
subject
to
forfeiture
to
Her
Majesty
under
the
Customs
Act;
13.
The
plaintiff
admitted
having
purchased
part
of
the
goods
abroad;
14.
In
thus
bringing
the
said
goods
into
Canada,
the
plaintiff
made
a
false
declaration,
contrary
to
the
Customs
Act,
and
attempted
to
defraud
the
Revenue
Department
by
not
paying
the
duty
payable
on
the
said
goods,
which
were
seized
as
being
forfeited
under
the
Customs
Act;
Exhibit
P-3
is
a
letter
dated
January
5,1983
to
the
plaintiff
from
one
J.
L.
Roy,
Adjudication
Division
in
Ottawa.
Two
paragraphs
are
of
particular
interest:
This
information
has
now
been
received.
It
appears
from
these
reports
that
all
the
items
of
jewellery
found
in
your
possession
are
classified
as
new,
except
the
earrings
listed
in
item
No.
1
of
the
statement
of
goods
seized.
On
the
basis
of
this
information,
your
claim
that
these
items
were
declared
orally
in
1979
cannot
be
accepted.
An
examination
of
your
passport
indicates
that
you
are
definitely
a
businessman
and
that
in
the
past
you
have
made
several
trips
abroad.
In
the
circumstances
and
in
view
of
the
fact
that
you
had
the
customs
pamphlet
“!
DECLARE”
in
your
possession,
you
were
no
doubt
aware
of
the
customs
regulations
requiring
that
all
articles
acquired
abroad
be
declared
to
customs.
Unfortunately,
neither
of
the
two
counsel
filed
a
copy
of
the
brochure
I
DECLARE
so
well
known
to
Canadian
travellers
returning
to
Canada.
Thus,
it
seems
that
the
Court
should
avoid
the
temptation
to
take
judicial
notice
of
this
famous
pamphlet,
no
copy
of
which
was
filed
with
the
Court.
However,
it
is
no
doubt
legitimate
to
assume
that
the
questions
asked
by
the
customs
officers
in
this
case
complied
with
the
criteria
set
out
in
that
departmental
publication.
It
should
be
noted
at
this
point,
as
alleged
in
the
pleadings,
that
“the
plaintiff
admitted
having
purchased
part
of
the
goods.”
During
his
testimony,
the
plaintiff
did
indeed
admit
that
items
12
to
23
of
Exhibit
P-1
were
purchased
either
by
his
wife
or
by
himself
at
the
Djibouti
or
Paris
airports
prior
to
their
arrival
at
Mirabel
on
September
25,
1982
(transcript,
pp.
30
and
56).
He
described
them
as
“small
trinkets/'
“small
bits
of
jewellery/'
“little
things
for
the
children
[gifts]
rather
the
grandchildren,
little
things”
(transcript,
p.
29).
The
plaintiff
testified
(transcript,
pp.
25
and
26)
that
when
the
first
Customs
officer
asked
him
whether
he
had
anything,
the
plaintiff
replied:
“No,
I
have
trifles,
small
things
my
wife
bought,
that's
all”.
There
is
thus
no
dispute
concerning
the
above-mentioned
goods.
The
parties
admit
this
statement
by
the
plaintiff
and
the
liability
for
duty
of
items
12
to
23
referred
to
in
Exhibit
P-1.
What
can
be
said
concerning
the
rest
of
the
confiscated
goods?
In
reply
to
the
defence
filed
by
counsel
for
the
defendant,
the
plaintiff
stated:
.
He
admits
the
first
part
of
paragraph
12
up
to
“each"
and
denies
the
rest
of
the
said
paragraph
and
adds
that
almost
all
of
the
confiscated
goods
had
belonged
to
the
plaintiff
for
a
long
time
and
had
been
brought
with
him
when
he
immigrated
to
Canada
in
1979;
6.
He
admits
paragraph
13
of
the
defence
but
adds
that
it
in
no
way
justifies
the
defendant
in
seizing
all
the
plaintiff’s
personal
effects,
in
particular
his
prayer
robes
and
family
jewels;
Under
the
Settlers'
Effects
Regulations,
C.R.C.,
chapter
547:
2.
.
.
.
“goods”
means
household
and
personal
effects
imported
by
a
settler
for
his
own
use
but
not
for
use
by
him
in
a
business
or
manufacturing
establishment
or
aS
a
contractor's
outfit;
3.
Importation
by
a
settler
of
the
goods
described
in
the
schedule
is
restricted
as
therein
indicated
and
such
goods
may
only
be
imported
as
settler’s
effects
as
hand
or
checked
baggage
at
the
time
of
first
arrival
in
Canada
of
the
settler.
4.
A
settler
who
leaves
Canada
for
any
reason
is
entitled
on
his
return
to
Canada
to
benefits
of
items
of
the
Customs
Tariff
that
are
applicable
to
returning
residents
of
Canada.
Tariff
item
70505-1
states
that:
Goods,
as
defined
by
regulations
made
by
the
Minister,
imported
by
a
settler
for
his
household
or
personal
use,
if
actually
owned
by
the
settler
and
in
his
possession
and
use
before
his
removal
to
Canada,
under
such
regulations
as
the
Minister
may
prescribe
are
entirely
“free".
The
arrival
of
the
plaintiff
and
his
wife
as
immigrants
in
1979
is
a
fact
which
is
not
in
dispute
here.
When
cross-examined
by
counsel
for
the
defendant,
the
plaintiff
stated
the
following
concerning
his
experiences
upon
his
arrival
in
1979:
Q
Even
if
there
is
no
form
for
money
as
you
are
telling
me,
you
are
aware,
however,
that
there
are
forms
for
goods,
jewellery,
trinkets,
everything
you
have
bought
abroad,
you
are
aware
of
that?
A
In
1979,
when
I
arrived,
I
was
asked
about
jewellery,
I
wasn't
asked
how
much
money
have
you
brought.
Q
You
were
asked
about
jewellery?
A
Jewellery,
I
wasn't
asked
about
money.
Why
wasn't
I
asked
about
money?
I
had
money
at
the
time.
Q
When
you
were
asked
about
jewellery
in
1979,
you
told
them
.
.
.
A
Family
jewellery
I
had,
I
was
even
shown
bags
I
had,
I
had
quite
a
bit
of
jewellery.
Q
Did
you
list
it?
A
No
no,
nothing,
I
didn't
even
know
you
have
to
make
a
list
or
a
number
or
whatever
I
didn't
even
know,
it
was
only
after,
after,
only
last
year
that
we
knew
there
was
a
list
to
make.
All
our
goods,
but
never,
even
at
the
time
of
immigration,
at
the
time
of
the
inquiry
in
France,
no
one
ever
mentioned
this
to
me.
(transcript,
pp.
88
and
89)
Q
I
recall
you
once
again
to
Exhibit
P-2,
which
you
sent.
My
Lord,
I
draw
your
attention
and
that
of
Mr.
Akbaraly
to
page
5.
You
set
out
in
your
claim
of
course
the
problems
you
had
with
the
inconvenience
which
can
be
caused
by
being
searched
etc.
Now
you
say
on
page
5,
at
the
top:
“my
five
(5)
children,
apart
from
one
daughter,
are
all
emigrants
here,
the
fifth
will
be
one
soon"?
A
That's
right.
(transcript,
p
97)
Q
Fine.
What
I
am
saying
to
you
is:
“they
all
brought
their
jewellery
here.
They
risk
therefore
having
the
same
problems
as
we've
had”.
In
other
words,
are
you
maintaining
that
you
are
being
challenged
because
you
did
not
declare
your
jewellery
when
you
entered
in
1979?
A
Yes,
I
declared
my
jewellery
in
1979,
Sir.
Q
When
you
say:
“all
members
of
my
family
will
therefore
have
to
register
everything
so
they
will
not
have
any
problems
at
customs".
A
That
is
right.
Q
Am
I
to
understand
that
it’s
then,
the
fact
they
did
not,
did
not
report
them
when
they
entered
as
you
perhaps
did
in
1979
.
.
.
A
The
last
daughter
who
came,
I
think
there
is
a
list,
we
have
a
list
of
goods
they
brought
with
her,
we
have
a
list
not
here,
it
was
done
in
Madagascar
and
then
they
brought
with,
blank
forms,
not
the
customs
forms
here,
they
were
Madagascar
forms
that
were
brought
here
and
which
were
explained
on
arrival
here
but
there
is
no
jewellery,
I
am
sure
there's
no
jewellery
because
you
cannot
put
down
jewellery
in
Madagascar,
it
is
forbidden
to
take
jewellery
out
of
Madagascar,
always
secretly,
again
I
say
to
you.
Q
Is
that
perhaps
why,
in
1979,
you
did
not
list
them
to
the
customs
officer,
those
items
of
jewellery?
A
Yes,
I
told
him,
I
showed
him,
even
the
bags
in
1979,
I
was
asked:
do
you
have
any
jewellery?
I
said,
yes,
family
jewellery.
Yes,
Sir,
I
showed
him,
I
showed
him
the
bag,
they
said
welcome
and
showed
me
the
cubicle,
the
small
immigration
offices
and
I
went
over
there.
Q
You
say
that
a
list
was
not
drawn
up?
A
No,
nothing
at
all.
Q
Does
a
form
B-8
not
mean
anything
to
you?
A
No,
no,
no.
All
my
children
who
came,
no
one
proposed.
I
asked
all
my
children,
each
time,
no
one
had
a
list,
even
the
last
one
who
came,
they
did
it
themselves
on
the
blank
paper,
there
is
no
Canada
customs
list,
it
is
blank
paper.
(transcript,
pp.
98
to
100)
Q
When
you
arrived,
Mr.
Akbaraly,
in
1979,
in
October,
I
think,
from
your
documents,
what
goods
did
you
have
in
your
possession
at
that
time?
A
My
personal
clothes
with
the
jewellery.
Q
Did
you
have
any
goods
to
follow,
other
things
that
were
coming?
A
From
Madagascar?
Q
Yes.
A
No,
I
didn't
have
any
because
we
had
sold
everything,
there
were
refrigerators
and
all,
except
clothing,
only
what
we
brought.
The
refrigerators
and
televisions,
all
that,
we
couldn't
bring
here.
What
am
I
going
to
do
with
the
costs?
Q
You
did
not
have.
A
No,
I
didn't
bring
my
furniture
and
everything,
I
sold
all
that,
I
sold
in
1982,
not
in
1979.
I
hadn't
yet
sold
in
1979,
all
my
goods
that
were
in
Madagascar,
I
repeat.
Yet
I
immigrated,
I
came
like
that
because
I
already
had
a
business
here,
in
October
I
arrived,
the
store
had
been
here
for
a
week,
I
arrived
on
the
fifth,
sixth
and
the
store
opened
on
the
first
of
October,
my
children
took
possession
of
the
store.
I
came
back
after
a
few
days
from
Madagascar,
but
all
my
goods
which
were
in
Madagascar,
I
didn't
sell
them
because
I
didn't
know
exactly
whether
or
not
I
would
stay
in
Canada.
Q
Did
you
intend
to
have
them
sent
at
you
after
that
time
in
1979?
A
No
no
no,
I
didn't
even
know
what
I
was
to
do
because
after
1979,
1980,
1981,
1982,
I
came
with
the
three
years,
it’s
only
now
we
bought
the
second
business,
the
first
business
it
was
my
son
who
went
there
but
only
in
1982
that
I
wound
up,
that
I
sold
my
store.
Q
Speak
so
the
judge
can
understand
you.
A
Excuse
me,
because
it
was
only
in
1982
that
I
sold
my
store,
in
September.
Q
Earlier
in
your
testimony,
you
said
that
in
1979,
you
arrived,
you
met
customs
officers,
you
never
filled
out
any
documents?
A
No,
I
wasn't
even
asked.
Q
And
you
were
not
asked
anything
about
the
goods
you
had?
A
No.
Q
If
you
were
not
asked
anything,
did
you
take
it
upon
yourself
to
show
them
the
jewellery?
A
No,
I
gave
what
he
asked:
do
you
have
any
jewellery?
I
said
yes,
family.
That's
all.
Q
So
he
asked
you
something?
A
That's
all
he
asked
me,
directly
about
the
jewellery,
he
didn't
ask
me
about
money
or
anything,
directly
about
the
jewellery.
Q
For
the
moment,
my
Lord,
I
have
no
further
questions
to
ask
Mr
Akbaraly.
(transcript,
pp.
101
to
104)
The
way
in
which
the
customs
officers
conducted
themselves
in
1979
concerning
the
Akbaralys’
personal
effects
is
exactly
the
same
as
described
by
their
son,
Bakir
Akbaraly,
concerning
his
own
arrival
as
a
landed
immigrant
on
May
31,
1974.
He
answered
orally,
in
a
general
way,
to
one
or
two
general
questions
(transcript,
pp.
125
to
129).
Tazime
Akbaraly,
the
daughter
of
the
plaintiff
and
his
wife,
also
testified.
She
arrived
as
an
immigrant
on
February
6,
1980.
She
responded
orally,
in
a
general
way,
to
the
general
questions
posed
by
the
officer.
Like
her
brother
and
her
parents,
she
obviously
satisfied
the
appropriate
officers"
official
curiosity,
without
having
to
fill
out
any
form
in
writing
(transcript,
pp.
158
to
162).
The
plaintiff,
his
son
Bakir
and
his
daughter
Tazime
are
credible
witnesses.
They
did
not
lie
either
at
the
customs
offices
or
in
court.
The
decisions
Glisic
v
The
Queen
(1984),
3
D.L.R.
(4th)
90
(which
admittedly
has
aspects
which
are
very
distinguishable
from
those
of
the
case
at
bar)
and
Zinati
v
Canadian
Universal
Insurance
Co
Ltd
(1985),
12
D.L.R.
(4th)
766,
show
that
the
experiences
recounted
by
the
Akbaralys
are
not
unthinkable.
As
well,
in
Kong
v
The
Queen
(1984),
10
D.L.R.
(4th)
226,
Collier,
J
quoted
the
following
passages
from
the
examination
for
discovery
of
Mrs.
Kong,
who
impressed
him
“as
a
sincere
and
credible
witness”
(at
page
232):
303.
Q
But
what
you
are
saying
is
that
you
wore
your
rings
and
you
wore
your
watch
and
no
one
asked
you
questions?
A
Yes,
no
one
asked
questions
me.
304.
Q
All
right.
A
No
one
questioned
me.
Actually
I
tried
to
tell
them
that
I
had
things
but
they
just
didn't
listen,
you
see.
Maybe
they
don't
understand,
I
don’t
know
why,
but
they
just
don't
care.
They
are
concerned
about
my
gifts
and
my
status
as
an
immigrant.
No,
what
the
Akbaralys
recounted
is
far
from
being
improbable:
their
testimony
is
truthful
and
reliable.
The
jewellery
which
the
plaintiff
took
to
Madagascar
in
1982
was
a
small
part
of
the
jewellery
the
Akbaralys
had
in
their
possession
when
they
arrived
in
Canada
in
1979
(transcript,
pp.
41,
55
and
113).
The
plaintiff
produced
photographs
(Exhibits
P-8
to
P-10)
to
support
his
testimony.
It
is
obvious
that
if
the
personal
effects
which
were
seized
in
1982
are
shown
on
the
photographs,
those
effects
(including
the
personal
jewellery)
must
have
been
in
the
Akbaralys’
possession
before
they
returned
to
Canada
in
1982.
Two
other
photographs
accompanied
the
letter
(Exhibit
P-2)
in
which
the
plaintiff
gave
notice
of
his
claim,
but
they
were
not
returned
to
him.
The
production
of
these
photographs
to
the
Department
and
the
Court
for
examination
certainly
supports
the
plaintiff’s
credibility
(transcript,
pp.
60
and
71
to
77).
A
certain
Maurice
Giroux,
a
jeweller,
gave
evidence.
Mr.
Giroux
has
extensive
experience
in
his
profession.
He
carefully
examined
the
pieces
of
jewellery
that
were
seized
from
the
plaintiff
and
his
wife
in
September
1982,
in
order
to
determine
whether
they
were
new
or
used.
His
report
is
filed
as
Exhibit
D-5.
"On
line
1"",
he
said,
"my
opinion
is
that
this
was
a
used
piece
of
jewellery.
The
rest
of
the
jewellery
seemed
new
to
me/"
It
should
be
noted
that
Mr.
Giroux,
himself
the
son
of
a
jeweller,
acquired
his
expertise
by
being
apprenticed
to
his
father,
and
also,
no
doubt,
by
his
own
efforts.
He
never
claimed
to
have
the
personal
status
of
a
graduate
in
metalloscopy,
metallography
or
metallurgy
(transcript,
pp.
221
and
222).
Such
a
formal
education
is
perhaps
not
necessary
for
purposes
of
his
testimony,
but
it
would
have
helped.
Nevertheless,
Mr.
Giroux
gave
the
opinion
that
"the
rest
of
the
jewellery
seemed
new
to
me.""
It
should
also
be
noted
that
he
never
stated
flatly
that
it
was
new.
He
said
that
the
acid
test
he
used
"has
nothing
to
do
with
the
new
or
used
character""
of
the
jewellery
of
the
plaintiff
and
his
wife
(transcript,
p.
221).
As
to
the
new
or
used
character
of
the
jewellery,
the
witness
based
his
opinion
on
whether
or
not
there
were
wear
marks.
Even
scratches
are
not
proof
that
gold
or
silver
jewellery
is
used
(transcript,
p.
223).
When
asked
of
what
traces
of
wear
consist,
Mr.
Giroux
replied:
A
Wear
marks
are
seen
using
a
magnifying
glass
or
a
microscope,
one
finds
such
wear,
where
there
is
mobility
on
the
jewellery,
either
a
ring
which
is
lightly
worn,
or
a
wear
mark
inside
the
ring,
if
I
refer
to
a
ring,
for
example,
when
the
contact
is
always
toward
the
inside
of
the
hand,
then
one
rubs
mainly
the
things
one
is
feeling
then
the
corners
are
slightly
rounded,
while
new
jewellery
may
have
scratches
but
not
wear
marks.
Q
Are
there
other
sorts
of
wear
marks?
A
No,
those
are
the
main
ones.
Q
The
main
ones.
Are
there
any
others?
A
Well,
if
we
took
for
example
a
piece
of
jewellery
which
had
struck
something
hard,
violently,
we
would
find
a
mark
greater
than
wear.
(transcript,
pp.
232
and
233)
When
cross-examined
by
counsel
for
the
plaintiff,
Mr.
Giroux
testified
as
follows:
Q
If
I
put
my
jewellery
back
in
my
jewellery
box
every
evening
and
I
decide
to
put
it
there,
and
three
months
later,
I
take
it
out
again,
will
I
have
worn
jewellery?
A
No.
(transcript,
p.
226)
Q
A
necklace
worn
around
the
neck,
I
imagine
that
the
rubbing
against
oneself
is
an
element
of
wear?
A
Less
than
the
wear
of
rings.
Q
Less
than
the
wear
of
rings?
A
That’s
right.
Q
Earrings,
their
rubbing
against
the
skin,
when
they
swing,
can
that
be
an
element
of
wear?
A
Less
than
rings
as
well.
Q
But
if
one
wears
them
once
or
twice,
or
occasionally,
an
earring
or
necklaces
there
is
less
wear
therefore
it
is
less
easy
to
say
whether
they
are
used
or
new?
A
If
the
jewellery
is
worn
infrequently,
obviously
the
less
it
is
worn,
the
less
it
shows.
(transcript,
pp.
233
and
234)
According
to
the
plaintiff's
testimony,
under
cross-examination,
he
and
his
wife
did
not
wear
their
jewellery
every
day.
For
example:
Q
You
said
earlier
that
it
was
dangerous
to
go
to
Madagascar
with
valuable
effects?
A
That’s
right.
Q
But
you
explain
how,
how
you
took
with
you,
as
you
claim,
these
things
to
go
to
Madagascar?
A
On
holidays,
for
weddings,
my
wife
wears
them,
we
do
not
wear
them
in
the
house,
we
wear
them
in
the
car
when
we
go
into
church.
There,
only,
we
wear
this
jewellery,
in
the
reception
room
or
wherever,
and
then
when
we
come
out
there
we
take
it
off
and
we
put
it
right
back
in
the
bag,
we
get
back
into
the
car,
one
cannot
even
bring
glasses,
you
can
ask
people.
They
kill
you
for
glasses,
you’re
wearing
glasses,
the
guy
arrives,
he
pulls
them
off,
he
sells
them
for
a
dollar
($1)
for
two
dollars
($2)
these
glasses.
You
can
ask
the
Quebec
government
agent
who
travels
to
Madagascar,
he
knows
what
goes
on
in
Madagascar.
.
.
.
(transcript,
pp.
95
and
96)
Furthermore,
when
they
immigrated
in
1979,
the
jewellery
was
at
all
times
in
a
bag
(transcript,
p.
113).
Once
again,
when
they
arrived
in
1982,
the
part
of
the
same
jewellery
which
they
had
with
them
was
in
Mrs.
Akbaraly’s
bag
(transcript,
pp.
23
and
24).
It
is
quite
possible
to
reconcile
Mr.
Giroux’s
testimony
with
that
of
the
plaintiff.
According
to
Mr.
Giroux,
the
jewellery
appeared
to
be
new,
but
he
admitted
that
the
less
it
is
worn
by
someone,
the
less
it
appears
used.
On
a
preponderance
of
the
evidence,
it
must
be
accepted
as
a
finding
of
fact
that
the
Akbaralys’
jewellery
was
only
rarely
worn
personally
by
them
—
generally
it
stays
in
its
bag.
This
finding
is
entirely
compatible
with
the
plaintiffs
assertion
that
his
jewellery,
which
was
seized
in
1982,
was
always
part
of
the
same
jewellery
which
he
brought
to
Canada
in
1979.
Jean-Guy
Charbonneau,
a
customs
officer,
was
on
duty
at
Mirabel
airport
on
September
25,
1982.
He
was
on
the
primary
line.
He
questioned
the
Akbaralys,
in
his
usual
manner,
by
asking
them
"whether
they
had
bought
or
received
anything
during
their
trip.
They
both
replied
that
they
had
not
bought
anything
at
all.”
(transcript,
p.
167)
This
testimony
must
not
be
entirely
accurate,
because
not
only
the
plaintiff’s
testimony,
on
several
occasions,
but
also
the
pleadings
of
the
parties
establish
that
"the
plaintiff
admitted
having
purchased
part
of
the
goods
abroad”’.
(This
is
paragraph
13,
supra,
of
the
defence,
confirmed
in
paragraph
6
of
the
plaintiffs
reply.
The
pleadings
themselves
are
not
specific
concerning
the
exact
amount
in
which
the
plaintiff
made
this
declaration,
but
there
is
no
doubt
that
he
made
it
and
that
his
declaration
was
adequate
for
customs
purposes.)
The
precise
question
asked
by
Mr.
Charbonneau
was:
"did
you
receive
or
purchase
anything
during
your
trip?"
He
never
asked:
"have
you
anything
to
declare?"
(transcript,
p.
173).
This
is
fine
so
far.
The
question
is
direct
and
entirely
legal.
The
plaintiffs
affirmative
reply
avoids
any
suspicion
that
the
small
trinkets
and
so
on
"were
smuggled
or
clandestinely
introduced
into
Canada",
as
alleged
in
Exhibit
P-11.
These
are
items
12
to
23
mentioned
in
Exhibit
P-1.
As
well,
on
September
25,
1982,
Marcel
Mousseau
was
on
duty
at
Mirabel
"as
a
secondary
customs
officer
at
that
time",
according
to
his
testimony.
It
was
in
fact
a
certain
customs
officer
Médéros
who
conducted
the
search
of
the
Akbaralys'
baggage.
Mr.
Médéros
did
not
testify
at
the
trial.
However,
Mr.
Mousseau
gave
evidence,
having
been
present
at
all
times
with
Mr.
Médéros
as
a
witnessing
officer.
Mr.
Mousseau
testified
as
follows:
Q
Do
you
yourself
remember,
in
the
search
room,
having
asked
Mr
Akbaraly
questions,
whether
he
had
anything
to
declare?
A
No,
I
was
a
witnessing
officer,
I
was
taking
notes
only,
the
questions
were
asked
by
Mr
Médéros.
Q
Do
you
remember
whether
Mr
Médéros,
who
was
with
you,
asked
whether
he
had
anything
to
declare?
A
Mr
Médéros
asked
questions.
Q
Do
you
remember
the
answers?
A
Vaguely,
after
two
years
and
some
months,
two
years
and
a
few
days,
it
would
be
difficult
to
say
word
for
word,
I
would
have
to
look
at
the
report.
Q
Do
you
remember
whether
the
people
had
declared
or
not
declared
anything?
A
They
had
not
declared.
(transcript,
p.
185)
Q
Therefore
you
were
a
witnessing
officer
in
the
events
surrounding
the
search
of
the
goods
of
Mr
and
Mrs
Akbaraly?
A
Correct.
Q
You
said
earlier,
during
the
examination,
that
Mr
Médéros
did
what
he
had
to
do,
I
noted
because
I
put
it
in
quotation
marks,
what
he
had
to
do,
in
speaking
of
Mr
Déméros
[sic].
What
did
he
have
to
do,
Mr
Déméros
[sic]?
A
If
he
found
any
documentation,
invoices,
those
things
and
the
goods
not
declared
that's
his
job,
it
was
to
seize,
that’s
what
I
meant,
if
that’s
what
I
said,
that
was
his
job,
it’s
if
people
don’t
declare
and
you
find
something
that
isn't
declared,
you
seize
it
or
give
them
the
benefit
of
the
doubt
like
three
hundred
dollars
($300),
as
was
done,
and
seize
the
difference.
Q
I
would
like
to
return
once
again,
and
my
Lord,
I
am
referring
to
the
forced
statements
by
Mr
and
Mrs
Akbaraly,
Exhibit
D-3,
you
say,
you
said
during
examination-in-chief,
that
you
had
granted
an
exemption
privilege
of
one
hundred
and
fifty
dollars
($150)
to
Mr
and
Mrs
Akbaraly?
A
That's
right.
Q
And
you
said
that
you
used
your
discretionary
power
to
do
so?
A
Correct.
Q
Is
that
a
discretion
which
you,
the
customs
officers,
have
or
is
it
a
requirement
that
you
have
to
give
a
deduction
of
one
hundred
and
fifty
dollars
($150)?
A
It’s
a
discretion,
that’s
right,
if
the
officer
decides
to
seize
what
is
not
declared,
he
can
seize
everything.
(transcript,
pp.
193
to
195)
Q
You
are
not
able
to
tell
the
Court
whether
in
fact
this
precise
question:
did
you
receive
or
purchase
any
goods
abroad
was
asked?
A
By
Mr
Médéros?
Q
Yes.
A
No,
I
can’t
prove
that
he
asked
it
or
didn't
ask
it.
Q
I
am
referring,
my
Lord,
to
the
document:
search
room
report
and
you
said
Mr
Mousseau,
earlier
in
your
examination,
you
referred
to
a
statement
which
Mr
Akbaraly
would
have
written.
A
Mr
Akbaraly
would
have
spoken.
I
am
the
one
who
wrote.
Q
You
are
the
one
who
wrote
it?
A
I
am
the
one
who
wrote
it.
Q
It
was
made
at
what
point
in
the
search?
Because
if
we
refer
to
the
document,
the
search
lasted
approximately
three
and
a
half
hours.
A
You
want
the
exact
time?
I
couldn't
give
it
to
you
but
I
can
tell
you
approximately
when:
it
was
almost
at
the
end,
when
the
suitcases
were
all
empty
and
the
material
was
set
out
on
the
counters
and
he
noticed
that
we
had
found
goods
which
had
not
been
declared.
That's
when
he
made
.
.
.
Q
When
he
made
this
statement,
was
he
speaking
of
all
the
goods
that
were
laid
out
like
that
on
the
tables,
or
was
he
referring
to
certain
goods
only?
A
I
could
not
tell
you.
As
well,
I,
you're
asking
me
the
question,
once
again,
for
me
it
was
for
the
goods
seized.
Q
So
he
repented
somewhat
when
he
saw
that
everything
was
opened,
to
say
to
you
like
that:
my
God,
when
one
makes
a
mistake,
one
has
to
pay
for
it?
That’s
the
impression
you
had
finally?
A
That's
right.
(transcript,
pp.
203
and
204)
Q
You're
saying
that
you
asked
him,
not
you,
Mr
Médéros,
in
your
small
room:
have
you
any
effects
that
you
bought
or
received
abroad?
A
No,
i
am
not
saying
that,
you're
asking
me
a
question.
I
saw
on
the
cards,
on
the
documentation
that
it
was
“nil”.
When
it’s
“nil”,
nothing
has
been
declared.
I
didn't
say
that
Mr
Médéros
had
asked
the
question.
I
saw
on
the
card
from
primary
that
it
was
marked
“nil”.
If
it’s
marked
“‘nil’,
it’s
because
nothing
was
declared.
(transcript,
p.
213)
Mr.
Mousseau’s
testimony
confirms
that
of
the
plaintiff,
who
testified
as
follows:
Q
So
when
you
say:
“I
have
nothing
to
declare”
you
were
still
asked
a
question:
have
you
anything
to
declare?
A
Yes,
I've
already
said:
I
had
trinkets,
small
.
.
.
items
of
jewellery,
small
things
we
bought
for
the
children.
Q
Is
it
not
true
that
you
finally
declared
that
you
had
nothing
to
declare
other
than
your
trinkets?
A
Yes,
that
is
all,
just
the
trinkets.
Q
On
the
second
to
last
page
of
your
statement,
Mr
Akbaraly,
you
write:
“so
I
am
hereby
asking
to
pay
the
customs
and
seizure
duties
on
the
new
articles
which
I
also
brought”?
A
That
is
right,
the
small
trinkets.
(transcript,
p.
48)
In
his
oral
argument,
counsel
for
the
defendant
invoked
section
18
of
the
Customs
Act,
R.S.C.
1970,
c.
C-40.
The
relevant
parts
of
that
section
read
as
follows:
18.
Every
person
in
charge
of
a
vehicle
arriving
in
Canada,
other
than
a
railway
Carriage,
and
every
person
arriving
in
Canada
on
foot
or
otherwise,
shall
(a)
come
to
the
custom-house
nearest
to
the
point
at
which
he
arrived
in
Canada,
or
to
the
station
of
the
officer
nearest
to
such
point
if
that
station
is
nearer
thereto
than
a
custom-house;
(b)
before
unloading
or
in
any
manner
disposing
thereof,
make
a
report
in
writing
to
the
collecter
or
proper
officer
at
such
custom-house
or
station
of
all
goods
in
his
charge
or
custody
.
.
.
and
of
the
quantities
and
values
of
such
goods;
and
(c)
then
and
there
truly
answer
all
such
questions
respecting
the
articles
mentioned
in
paragraph
(b)
as
the
collector
or
proper
officer
requires
of
him
and
make
due
entry
thereof
as
required
by
law.
This
provision
of
the
Act
has
attracted
much
jurisprudence
over
the
years.
There
is,
inter
alia,
the
recent
decision
of
Strayer,
J.
of
this
Court
in
Glisic
v.
The
Queen,
cited
above.
The
judge
is
reported
at
pages
93
and
94
(D.L.R.),
as
follows:
I
said
that
I
came
to
this
conclusion
“reluctantly”
because,
regardless
of
the
relative
merits
in
this
particular
case,
I
am
concerned
about
the
implications
of
s
18.
Taken
literally,
it
means
that
a
person
entering
or
re-entering
Canada
should
declare
every
item
of
personal
property
he
carries
or
is
wearing
on
his
person
including,
presumably,
his
underclothes.
If
he
fails
to
do
so
then,
by
the
combined
operation
of
ss
18
and
180
of
the
Customs
Act,
any
or
all
of
these
items
which
are
not
declared
are
subject
to
seizure
and
ultimately
to
forfeiture
to
the
Crown.
This
is
because
s
18
requires
reporting
of
“all
goods
in
his
charge
or
custody”.
It
is
not
confined
to
all
goods
acquired
abroad
or
all
goods
acquired
on
this
trip.
I
think
I
can
take
judicial
notice
of
the
fact
that
few
if
any
travellers
understand
this
to
be
the
law
nor
is
it
so
administered
by
Revenue
Canada.
If
a
person
such
as
the
plaintiff
were
to
bring
in
goods
with
him
upon
immigrating
to
Canada,
and
were
to
use
them
for
many
years
in
Canada
and
carry
them
back
and
forth
across
the
border
on
trips
outside
Canada,
it
would
indeed
come
as
a
surprise
if
after
many
such
crossings
without
difficulty
he
were
challenged
by
a
customs
officer
with
respect
to
such
articles.
Yet
it
is
the
position
of
the
Crown
that
under
s
18
a
customs
officer
may
so
challenge
the
re-entry
of
such
goods
to
Canada
and
where
no
declaration
has
been
made
with
respect
to
them,
such
goods
are
subject
to
forfeiture.
I
agree
that
s
18
must
be
interpreted
in
this
way,
but
I
feel
obliged
to
observe
that
it
could
equally
be
interpreted
to
authorize
the
seizure
and
forfeiture
of
anything
which
a
Canadian
had
acquired
in
Canada,
owned
all
his
life,
and
carried
abroad
with
him
on
a
holiday
should
he
fail
to
declare
it
upon
his
re-entry
to
Canada.
That
the
law
is
not
administered
in
this
way
is
a
tribute
to
the
good
sense
of
the
customs
officers,
but
it
does
leave
in
their
hands
and
that
of
the
Minister
an
arbitrary
power
of
decision
as
to
what
goods
are
to
be
forfeited
for
non-declaration.
Section
8
of
the
Canadian
Charter
of
Rights
and
Freedoms
guarantees
“the
right
to
be
secure
against
unreasonable
search
or
seizure”.
The
plaintiff
in
the
present
case
was
unrepresented
by
counsel
and
the
possible
application
of
s
8
was
not
raised
in
argument.
Nor
do
I
think
this
an
appropriate
case,
on
the
facts,
for
a
court
to
determine
whether
ss
18
and
180
of
the
Customs
Act
authorize
an
"unreasonable
seizure”.
For
example,
it
is
probable
that
all
relevant
elements
of
the
forfeiture
pre-date
the
entry
into
force
of
the
Charter.
But
that
is
not
to
say
that
the
issue
could
not
properly
arise
in
other
cases
where
these
sections
are
invoked.
In
Kong
v.
The
Queen,
also
cited
above,
Collier,
J.
of
this
Court,
citing
those
words
of
Strayer,
J.,
stated
the
following
(at
237,
D.L.R.):
I
agree
with
my
colleague’s
legal
conclusions
and
with
his
comments.
I
add
an
observation
I
have
made
during
the
hearing
of
this
and
other
similar
cases;
if
the
law
were
complied
with,
and
applied
literally,
border
crossing
line-ups,
of
persons
arriving
in
Canada
from
the
United
States,
could
conceivably
stretch
from
the
Canadian
to
the
Mexican
border.
It
is
obvious
that
the
customs
officers,
at
Vancouver
or
at
Mirabel
—
or
anywhere
in
Canada
—
are
the
proper
officers
of
the
Crown.
They
are
responsible
for
enforcing
the
Act,
at
least
initially.
They
are
responsible
for
all
the
necessary
documentation,
namely
forms
B-3,
B-8,
K9
A,
and
so
on.
If
the
defendant
wishes
to
rely
on
a
strict
application
of
section
18
of
the
Act,
who
then
authorized
the
proper
officers
to
carry
out
a
less
than
strict
application?
When
the
customs
officer
asked
the
plaintiff
whether
he
had
purchased
or
received
anything
abroad,
the
plaintiff
replied
in
the
affirmative.
But
when
the
customs
officers
asked
the
question:
“have
you
anything
to
declare”,
they
were
asking
a
misleading
and
illegal
question.
There
is
no
question;
there
is
nothing
optional.
As
Strayer,
J.
and
Collier,
J.
held,
a
person
entering
from
abroad
has
no
option,
since
he
must
declare
“all
goods
in
his
charge
or
custody”.
Whether
or
not
the
traveller
(the
plaintiff
here)
makes
a
declaration
determines
whether
his
“goods”
can
be
characterized
as
“smuggled
or
clandestinely
introduced
into
Canada”.
If
the
traveller
truthfully
declares
all
his
normal
traveller’s
effects,
including
any
effects
purchased
or
received,
and
if
he
has
nothing
prohibited,
his
“goods”
are
therefore
not
smuggled.
It
is
obvious
that
in
the
case
at
bar
the
plaintiff,
after
replying
in
the
affirmative
to
the
question
concerning
what
had
been
bought
or
received,
found
the
second
question
“have
you
anything
to
declare?”
confusing
and
misleading.
With
regard
to
this
question,
the
plaintiff
testified:
“I
don’t
know
what
to
declare.”
(transcript,
p.
80)
A
strict
application
of
the
Act
would
require
the
proper
officers
not
to
ask
travellers
any
misleading
and,
in
any
case,
illegal
questions.
In
order
to
obtain
a
legal
answer
from
the
traveller,
they
must
put
forward
a
legal
proposition,
namely:
“you
must
declare
(or
you
are
required
to
declare)
all
effects
in
your
charge
or
custody”
regardless
of
their
discretion
to
allow
up
to
$150
per
person.
In
the
case
at
bar,
the
officer
Médéros
misled
the
plaintiff
and
it
was
this
same
officer
who
caused
the
plaintiff’s
“goods”
to
be
regarded
as
smuggled.
This
was
not
the
plaintiff’s
fault.
He
acted
in
this
way
owing
to
the
erroneous
application
of
the
Act.
It
must
be
said,
on
the
customs
officers’
behalf
only,
that
this
has
long
been
their
practice.
After
all,
it
is
not
difficult
to
imagine
why
the
plaintiff
said
“when
one
makes
a
mistake,
one
must
pay,”
that
which
Mr.
Mousseau
wrote
on
the
back
of
Exhibit
D-4.
The
rule
of
criminal
law
ignorantia
juris
non
excusât
is
not
applicable
against
the
plaintiff
in
the
case
at
bar.
As
Glanville
Williams
has
stated
in
his
Textbook
of
Criminal
Law
(Stevens
&
Sons,
London,
1978),
at
page
410,
the
most
important
limitation
of
the
rule
is
that
it
applies
only
to
criminal
law.
Moreover,
it
should
be
noted
that
Parliament
did
not
append
to
section
18
of
the
Customs
Act
a
provision
similar
to
section
19
of
the
Criminal
Code
or
section
128
of
the
National
Defence
Act.
The
plaintiff
is
not
appearing
as
an
accused.
It
is
not
an
offence
to
be
misled
by
an
illegal
question
posed
by
a
customs
officer.
The
Canadian
Charter
of
Rights
and
Freedoms
came
into
force
prior
to
September
25,
1982.
Section
8
of
the
Charter
guarantees:
"the
right
to
be
secure
against
unreasonable
search
or
seizure/'
in
the
case
at
bar
the
seizure
of
the
plaintiff's
goods
was
clearly
unreasonable.
Section
18
of
the
Customs
Act
is
declared
inoperative
with
regard
to
the
plaintiff's
claim.
For
all
these
reasons,
the
plaintiff’s
claim
must
be
allowed
with
costs.
Customs
seizure
339T358
is
set
aside
and
the
defendant
must
restore
freely
to
the
plaintiff
the
goods
seized,
except
items
12
to
23
of
Exhibit
P-1.
The
said
items
are
subject
to
the
normal
duty
since
the
plaintiff
declared
them
when
he
arrived
on
September
25,
1982.
Under
the
provisions
of
Rule
337(2),
counsel
for
the
plaintiff
may
prepare
a
draft
of
an
appropriate
judgment
to
implement
the
Court's
conclusion.
If
possible,
the
said
counsel
shall
obtain
the
consent
of
counsel
for
the
Crown
on
the
wording,
if
not
the
content,
of
the
judgment,
always
following
Form
14.
Counsel
for
the
plaintiff
may
then
follow
the
provisions
of
paragraphs
(3)
and
(4)
of
Rule
337.
If
there
are
any
problems,
the
respective
counsel
are
free
to
approach
the
Court
in
order
to
resolve
them.
judgment
for
the
plaintiff.
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