Denault,
J
[TRANSLATION]:—The
plaintiff
is
claiming
from
the
defendant
the
sum
of
$4,384.42
representing
the
amount
of
the
penalty
that
was
imposed
on
it
for
having
imported
goods
whose
value
was
misrepresented,
pursuant
to
the
provisions
of
the
Customs
Act.
The
facts
are
simple
and
are
not
in
dispute.
The
plaintiff
established,
and
these
facts
are
admitted,
moreover,
that
the
defendant
operated
an
ornament
importing
business.
The
evidence
revealed
certain
variations
in
the
procedure
but
established
that
in
substance
the
exporter
submitted
invoices
showing
different
amounts.
One,
the
commercial
invoice,
showed
the
true
price
for
the
transaction.
The
other,
the
customs
invoice
(M-A),
gave
a
discount
usually
of
10
per
cent
off
the
price
shown
on
the
commercial
invoice.
This
so-called
customs
invoice
showing
a
price
lower
than
the
actual
price
was
used
as
a
basis
for
the
customs
declaration
(B-3).
The
invoice
used
for
clearing
customs
thus
included
a
discount
that
was
not
found
on
the
commercial
invoice.
The
scheme
was
discovered
on
May
16,
1978
and
a
seizure
was
immediately
made
on
the
goods
in
transit.
An
investigation
was
subsequently
conducted
and
the
result
was
an
additional
assessment
of
$12,013.92,
$7,629.50
of
which
represented
customs
charges,
sales
tax
and
excise
tax.
The
balance
of
$4,384.42
represented
the
fine
imposed
under
the
Act,
pursuant
to
the
decision
by
the
Minister
under
section
163.
The
defendant,
whose
president
gave
evidence,
admitted
that
the
amounts
claimed
were
owing
and
they
were
duly
paid.
Only
the
fine
was
disputed
and,
it
should
be
mentioned
in
passing,
the
plaintiff
agreed
to
reduce
it
to
$4,377,
waiving
the
sum
of
$7.42
on
one
of
the
numerous
invoices
(No
29)
and
documents
filed
in
support
of
the
action.
The
president
of
the
company
explained
that
the
competition
in
this
type
of
business
was
particularly
fierce
and
that
he
had
to
find
ways
of
cutting
costs.
He
had
met
his
American
exporters
himself
and
asked
to
be
given
the
same
treatment
they
gave
their
domestic
market
for
sales
involving
large
quantities
of
goods
(a
trade
discount),
interpreting
liberally
a
clause
in
the
customs
declaration
form
which
we
shall
discuss
later.
The
exporters
apparently
agreed
and
had
the
customs
invoice
show
the
trade
discount
given
to
such
customers
on
the
domestic
market,
without
actually
giving
it
to
the
defendant,
which
imported
only
small
quantities
of
goods.
The
defendant’s
president
admitted
that
he
had
never
received
such
discounts.
Furthermore,
while
recognizing
that
the
amount
of
the
fine
was
$4,377,
he
disputed
his
obligation
to
pay
it,
arguing
that
he
had
acted
in
good
faith.
The
competition,
he
said,
was
stiff,
and
the
company
never
intended
to
defraud
Canadian
customs
but
simply
wished
to
take
advantage
of
an
ambiguity
in
clause
7(a)
of
the
customs
declaration
form
(M-A),
which
reads
as
follows:
I,
the
undersigned,
do
hereby
certify
as
follows:
7.
That
the
said
fair
market
value
is
without
(a)
any
discount
or
deduction
not
shown,
allowed
and
deducted
on
invoices
covering
sales
for
home
consumption
in
the
country
of
export
in
the
ordinary
course
of
trade;
The
Department
felt
that
the
importation
of
goods
where
there
were
price
differences
between
the
commercial
invoice
and
the
one
used
for
customs
purposes
was
an
irregularity
under
the
Act
and
revised
the
assessment.
The
defendant
paid
the
amount
and
the
issue
is
whether
the
fine
imposed
is
founded
in
law
or
whether
the
defendant
was
justified
in
refusing
to
pay
it.
Section
192(1)
of
the
Customs
Act
provides
that
192.
(1)
If
any
person
(b)
makes
out
or
passes
or
attempts
to
pass
through
the
custom-house,
any
false,
forged
or
fraudulent
invoice
of
any
goods
of
whatever
value;
or
such
goods
if
found
shall
be
seized
and
forfeited,
or
if
not
found
but
the
value
thereof
has
been
ascertained,
the
person
so
offending
shall
forfeit
the
value
thereof
as
ascertained
.
.
.
(2)
Every
such
person
shall,
in
addition
to
any
other
penalty
to
which
he
is
subject
for
any
such
offence,
(a)
forfeit
a
sum
equal
to
the
value
of
such
goods,
which
sum
may
be
recovered
in
any
court
of
competent
jurisdiction;
The
Minister,
pursuant
to
section
163
of
the
said
Act,
set
the
fine
in
the
amount
mentioned
above.
Section
102
provides
that
this
amount
may
be
claimed
from
the
importer
or
owner
of
the
goods,
among
others.
The
Act
also
provides
that
in
any
proceedings
instituted
for
any
penalty,
the
burden
of
proof
lies
upon
the
owner
(section
248).
In
order
to
discharge
the
burden
of
proof,
the
defendant
called
only
the
president
of
the
company,
whose
testimony
was
summarized
earlier.
It
did
not
see
fit
to
call
any
of
its
numerous
suppliers
as
witnesses
to
establish
the
veracity
of
the
facts
it
was
putting
forward.
Not
only
does
the
Act
impose
the
burden
of
proof
on
it
but
as
well
section
247
provides
that
proof
of
the
existence
of
invoices
in
which
the
goods
are
shown
at
different
prices
“is
prima
facie
evidence
that
the
invoice
.
.
.
was
intended
to
be
fraudulently
used
for
customs
purposes
In
the
case
at
bar
the
defendant
admitted
through
its
president
that
it
had
in
no
way
received
the
discount
shown
in
the
invoices
it
used
for
clearing
customs.
It
must
therefore
be
concluded
that
the
sole
purpose
of
the
scheme
was
to
pay
lower
customs
charges.
Certainly
the
company
wished
to
reduce
its
expenses
in
order
to
remain
competitive.
The
means
used
was
illegal,
however,
and
led
to
the
imposition
of
an
additional
assessment
and
a
fine.
When
called
upon
to
decide
a
similar
case,
Addy,
J
made
the
following
remarks,
which
are
relevant
to
the
case
at
bar.
In
R
v
Mondev
Corporation
Limited
(T-866-72),
he
said
the
following,
at
page
8:
Under
section
248
of
the
Customs
Act,
the
onus
is
clearly
on
the
importer
or
claimant
and
not
on
the
Crown
to
prove
that
the
provisions
of
the
Act
have
been
complied
with.
The
severity
with
which
these
provisions
have
been
applied
against
the
subject,
when
the
Crown
is
asserting
a
right
or
alleging
an
offence
under
the
Customs
Act,
has
been
clearly
illustrated
in
a
whole
line
of
cases,
eg:
Daigle
v
The
King;
Chesnel
v
The
King
;
Cardinal
v
The
King;
Spencer
Brothers
v
The
King;
Rex
v
Baig;
Weiss
v
The
King;
Re
Rex
v
McKenzie;
Rex
v
Legge;
The
King
v
Doull;
Jacobs
v
The
King;
Regina
v
Manningham;
The
King
v
Bureau;
and
Marum
v
The
Queen;
Minogue
v
The
Queen
Although
it
seems
that
the
onus
provisions
of
section
248
might
very
well
have
the
effect
of
only
establishing
an
easily
rebuttable
prima
facie
case
in
favour
of
the
Crown
(refer
Rex
v
Legge,
supra)
yet,
there
must
be
some
reasonably
acceptable
proof
furnished
by
the
importer
or
accused
to
rebut
that
prima
facie
case.
In
considering
the
meaning
of
the
words
“to
make
out
a
false
invoice”
in
the
context
of
section
192
of
the
Customs
Act
one
must
consider
the
general
character
of
the
words
creating
other
offences
in
the
same
section.
All
of
these
words
imply
something
fraudulent,
something
furtive
or
an
intention
to
deprive
the
Crown
of
revenue.
From
the
fraudulent
element
contained
in
all
of
these
expressions,
it
appears
that
Parliament
intended
the
word
“false”
to
include
an
element
of
blameworthy
intention
and
did
not
intend
the
word
to
be
merely
synonymous
of
“incorrect”
or
“erroneous.”
It
would
seem
therefore
that,
in
order
to
result
in
forfeiture
under
section
192,
there
must
exist
an
intention
on
the
part
of
a
person
to
deprive
the
Crown
of
some
duty.
Altogether
apart
from
section
248
of
the
Act,
which
related
to
onus,
the
intention
required
in
section
192
would
normally
be
implied
by
the
mere
fact
that
the
declaration
as
to
value
was
not
a
true
one,
if
no
evidence
were
led
by
the
Defendant
which
would
tend
to
contradict
or
negate
any
wilful
or
improper
conduct
or
intention
on
the
part
of
the
person
importing
the
goods.
Even
if
proof
of
good
faith
or
of
an
innocent
intent
would
exempt
a
person
from
the
operation
of
section
192,
it
seems
clear
to
me
that,
once
undervaluation
for
duty
purposes
has
been
established,
the
Defendant
would
be
obliged
to
adduce
some
credible
evidence
of
good
faith
and
of
lack
of
blameworthy
conduct
on
its
part.
In
Silvio
Vona
(T-3792-78)
and
Kay
Silver
Inc
(T-4570-77),
Walsh,
J
came
to
a
similar
conclusion
on
similar
facts.
It
must
therefore
be
concluded
that
the
defendant
has
not
discharged
its
burden
of
proof
and
it
must
therefore
be
ordered
to
pay.
For
these
reasons
the
Court
orders
the
defendant
to
pay
the
plaintiff
the
sum
of
$4,377
and
costs.
Order
accordingly.
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