Search - contravention

If, on the hearing of an application made under subsection 32(1), the court is satisfied (a) that the applicant acquired the interest in good faith before the contravention in respect of which the seizure was made, (b) that the applicant is innocent of any complicity in the contravention of subsection 12(1) that resulted in the seizure and of any collusion in relation to that contravention, and (c) that the applicant exercised all reasonable care to ensure that any person permitted to obtain possession of the currency or monetary instruments seized would report them in accordance with subsection 12(1), the applicant is entitled to an order declaring that their interest is not affected by the seizure and declaring the nature and extent of their interest at the time of the contravention. 32. (1) En cas de saisie-confiscation effectuée en vertu de la présente partie, toute personne, autre que le saisi, qui revendique sur les espèces ou effets un droit en qualité de propriétaire peut, dans les quatre-vingt-dix jours suivant la saisie, requérir par avis écrit le tribunal de rendre l'ordonnance visée à l'article 33. (2) Le juge du tribunal saisi conformément au présent article fixe à une date postérieure d'au moins trente jours à celle de la requête l'audition de celle-ci. (3) Dans les quinze jours suivant la date ainsi fixée, le requérant signifie au président, ou à l'agent que celui-ci désigne pour l'application du présent article, un avis de la requête et de l'audition. (4) Il suffit, pour que l'avis prévu au paragraphe (3) soit considéré comme signifié, qu'il soit envoyé en recommandé au président. (5) Au présent article et aux articles 33 et 34, « tribunal » s'entend: *** 33. Après l'audition de la requête visée au paragraphe 32(1), le requérant est en droit d'obtenir une ordonnance disposant que la saisie ne porte pas atteinte à son droit et précisant la nature et l'étendue de celui-ci au moment de la contravention si le tribunal constate qu'il remplit les conditions suivantes: a) il a acquis son droit de bonne foi avant la contravention; b) il est innocent de toute complicité relativement à la contravention qui a entraîné la saisie ou de toute collusion à l'égard de la contravention; c) il a pris des précautions suffisantes concernant toute personne admise à la possession des espèces ou effets saisis pour que ceux-ci soient déclarés conformément au paragraphe 12(1). [24]            The issue here is whether the Minister had any authority to demand evidence as to a claim to lawful ownership of the funds from a person making a request under section 25 of the Act, and, if so, were the demands and actions of the Minister in the present case consistent with the requirements of procedural fairness ... One deals with contravention; the other deals with penalty and forfeit. ...

The importation of a helicopter was therefore made in contravention of sections 12, 15 and 89 of the Customs Act. [33]      The defendant notes that no duties were paid on the helicopter from the time of importation into Canada up to and including the date of seizure, and the failure to remit duties to the defendant was in contravention of sections 17, 32 and 89 of the Customs Act. ... Furthermore, since the aircraft were not exported from Canada as required in January 1996, the importation of the aircraft was therefore made in contravention of sections 12, 15 and 89 of the Customs Act. [36]      The defendant notes that no duties were paid on the aircraft from the time of importation into Canada up to and including the date of seizure, and the failure to remit duties to the defendant was in contravention of sections 17, 32 and 89 of the Customs Act. ... [49]      The defendant alleges that the plaintiffs contravened sections 15, 17, 32, 89, 122, 153(c) and 155 of the Customs Act, as stated in the seizure receipt. [50]      Section 15 imposes a duty to report goods imported in contravention to the Act. ...

The Decision Under Review [4]   The Delegate’s decision-making statement is provided in three sections. [5]   The first section under the heading “Decision- Customs Act” begins with these findings: After considering all of the circumstances, I have decided, under the provisions of section 131 of the Customs Act, that there has been a contravention of the Customs Act or the Regulations in respect of the goods that were seized. ... Contrary to the Applicant's submission, the Applicant's contravention of the Food and Drug Regulations was not the reason for the NEXUS membership cancellation, but rather it was the contravention of section 7.1 of the Customs Act, which is a proper ground to revoke the Applicant's NEXUS card under subsection 22 (1)(b) of the Presentation of Persons (2003) Regulations. ...

  (2)  If, in the opinion of the peace officer or a person appointed by the board, the vehicle or combination of vehicles or the cargo being carried on such a vehicle is found to be unfit for transportation or dangerous to passengers or the public or for any other reason results in a contravention of this Act or the regulations, he may:   (a) order the driver or the owner of the vehicle to take any steps that are necessary to eliminate the contravention; and   (b) order that the vehicle be removed from the highway until compliance with this Act and the regulations is established ... Nevertheless, given the totality of the circumstances, it does appear that the officer was more interested in looking for evidence of criminal activity than for contraventions of commercial trucking regulations.  ... In the same vein, s. 63(5) of the H&TA provides that if a police officer “has reasonable grounds to believe that a vehicle is being operated in contravention” of regulatory requirements, he may conduct a warrantless search of “the vehicle for evidence of an offence” and “seize anything that may be evidence of an offence”.  ...

Moreover, the administration and enforcement of the Act was entrusted to the same customs officials charged with the administration and enforcement of the Customs Act. [15]            For example, both statutes allow an individual, from whom goods are seized by a customs official for contravention of the statute in question, to request a ministerial decision as to whether a contravention occurred. ... One deals with contravention; the other deals with penalty and forfeit. ... It is unreasonable to suggest that the Minister could choose not to render any decision under section 133 of the Customs Act after finding that a contravention had occurred. ...

In no case may a legal person set up juridical personality against a person in good faith if it is set up to dissemble fraud, abuse of right or contravention of a rule of public order. [13]          Despite the efforts of counsel for the Department of National Revenue to persuade me to the contrary, it seems clear in this case that the objector did nothing which could be interpreted as amounting to fraud. [14]          He created a company and that company even paid source deductions, as appears in Exhibit O-1, but it appears that a balance of some $1,300 remained at the end of 1997, which for reasons that were not clear increased to $4,803.37, and the sum claimed now exceeds $5,000. [15]          Counsel for the Department argued that the situation in the case at bar is comparable to that of the parties involved in Deputy Minister of Revenue of Quebec v. ... Caporicci. 3 Vallerand J.A. said in para. 12:      [TRANSLATION]     ... we are dealing here with the classic remedy of a creditor frustrated by the collapse of its debtor, an artificial person whose administrators he then wrongly seeks to sue personally... [20]          Subsequently, at para. 14:           [TRANSLATION]     ... the judgment, after noting the critically important activity of CaporicciSr., states that he is the alter ego of the artificial persons managed by him; but the judgment goes on:               In order to sue directors who are shareholders, there must be proof of fraud, abuse of right or a contravention of legislation of public order.      ...

  [26]            By letter dated December 4, 2009 the Minister communicated his decision that there was a contravention under the Act and the Customs Regulations and that the Replacement Penalties assessed under contravention C358 were justified.  ...   [48]            The CBSA Master Penalty Document provides that for Contravention C358 the maximum penalty that can be imposed is the greater of $3,000 or 20% of the value for duty on a third and subsequent occurrence of the contravention. ... It is the Respondent’s position that one NPA may contain many contraventions, and it is each contravention or penalty and not the NPA itself that is subject to the statutory maximum ...

The contravention of the Act occurs when an incorrect declaration is made on behalf of an importer and the source of the error is irrelevant. ... In my view, Parliament has insulated from appeal the penalty imposed in the event there is found to be a contravention of the Act. ... A seizure proceeding is a proceeding in rem against the items themselves which are seized as forfeit under the Act from the time of the contravention of the Act. ...

First, pursuant to s 131, the Minister will review and make a finding with respect to whether there was a contravention of the Act.  ... Thus, while the decision made pursuant to s 133 is dependent upon the determination that there has been a contravention, it relates only to the penalty imposed in respect of the contravention.  ... Accordingly, a determination made pursuant s. 133 of the Act may often be dependent on a finding of a contravention of the Act.  ...

A careful reading of the Notice of Application, the affidavit and the applicant’s memorandum reveals that the application for judicial review in this case is indeed on the validity of the contravention and not the validity of the seizure. [24] The first paragraph of the Notice of Application confirms that the application for judicial review is for a decision [translation] “finding the applicant guilty of a contravention under section 131 of the Customs Act ”. ... Célestin’s application for judicial review seeks to challenge the ground of contravention, namely the decision finding that he contravened section 12 of the Customs Act, rendered pursuant to section 131 of the Customs Act, and considering that he initiated his recourse with an application for judicial review and not an action, the Court must decline jurisdiction and dismiss the application. ... The Minister’s Delegate is exclusively responsible for validating or denying the contravention and the seizure order. ...