Search - contravention

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. ...