Digests

Hiebert v. Canada (Attorney General)

T-66-02

2003 FC 1503, Russell J.

19/12/03

32 pp.

Judicial review of M.N.R.'s decision refusing request for remission of penalty pursuant to Customs Act, (Act), s. 3.3(1)--Applicant also seeking declaration Act, ss. 124 and 127 unconstitutional on grounds arbitrary, denial of justice and violation of Charter of Rights, s. 7--Minister determined applicant undervaluing imported goods--Served Notice of Ascertained Forfeiture on applicant demanding payment in lieu of seizure--Minister subsequently dismissed request for review of decision--Also refused to consider applicant's request for fairness under Act, s. 3.3(1) on basis ascertained forfeiture not penalty--Intentions of Parliament clear in wording and scheme of Act--S. 127 distinguishes clearly between "amount demanded under s. 124" (i.e. on ascertained forfeiture) and penalties described in other sections of Act-- Act also providing distinct way of dealing with ascertained forfeiture amounts in event dispute over contravention or quantums in ss. 129, 131 and 133--S. 133 clearly giving Minister power to adjust any amount assessed by way of ascertained forfeiture--In context of scheme provided by Act for dealing with penalties and other payment, common usage and dictionary meanings of term "penalty" not particularly helpful as means of gauging Parliament's intent--Here, statutory scheme and context yield more cogent answer-- Parliament's intent to deal with sums assessed under ascertained forfeiture procedure by way of ss. 129, 131 and 133 and not by way of s. 3.3(1)--Minister committed no error in so informing applicant--Whether Minister erred in refusing to review matter of penalty imposed under s. 124 by failing to observe principle of natural justice, procedural fairness or any other procedure required by law to observe--Motion contains request ss. 124 and 127 be declared unconstitutional on ground sections arbitrary, denial of justice and contravention of Charter, s. 7--But only decision Court asked to review that of Minister "dated December 13, 2001 whereby applicant's request for remission of penalty pursuant to s. 3.3(1) of The Customs Act was refused"--No evidence or argument on other decisions made in relation to applicant before Court-- Applicant's real argument that feels misled by Minister's correspondence into following procedures preventing decision ever being made on quantum aspect of ascertained forfeiture--Notice advising applicant sole manner of review available application under Act, s. 129--Applicant not advised Minister's powers under Act, s. 131 not allowing amount to be assessed--Consequently, application under s. 129 for reconsideration of sum assessed under s. 124 dismissed by Minister who then advised applicant appeal lay to Federal Court in accordance with s. 135--Minister did not tell applicant that such appeal could not yield review of quantum of assessment because case law associated with s. 135 concluded review of quantum not available--Applicant therefore concluded she had to apply to Minister under s. 3.3(1), with request fairness policy thereunder be exercised over sum assessed by ascertained forfeiture--Applicant's lack of understanding concerning appropriate procedure cannot be laid at feet of Minister--Minister's notices not misleading-- No evidence applicant's submissions and documentation on quantum issue not considered by Minister as part of s. 131 application and s. 133 determination of sum applicant should pay--In fact, July 20, 2001 decision containing demand under s. 133 and specifically informing applicant review undertaken by Minister "was based on the documentation you provided as well as the official Agency reports"--Finally, whether imposition of penalty by Minister pursuant to s. 124 arbitrary, in violation of applicant's right to due process, and denial of natural justice--Imposition of demand by Minister pursuant to s. 124 neither arbitrary nor in violation of applicant's right to due process--No denial of natural justice--Ascertained forfeiture procedure long-standing, equally applicable to everyone contravening Act and, in provisions of Act dealing with consequences of ascertained forfeiture, Parliament provided both limitations and scheme of due process not running foul of Canadian Bill of Rights and not arbitrary-- Even if these matters directly before Court in this application, and this was dubious because only Minister's 3.3(1) decision reviewed, applicant's rights not arbitrarily contravened-- Application dismissed--Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, ss. 3.3(1) (as am. by S.C. 2001, c. 25, s. 3), 124 (as am. by S.C. 1997, c. 36, s. 187; 2001, c. 25, s. 67), 127 (as am. idem, s. 68), 129 (as am. by S.C. 1993, c. 25, s. 84; 2001, c. 17, s. 129), 131 (as am. by S.C. 1993, c. 25, s. 84; 2001, c. 25, s. 72), 133 (as am. by S.C. 1992, c. 28, s. 27; 1993, c. 25, s. 86; 1997, c. 36, s. 189; 2001, c. 25, s. 74), 135 (as am. by S.C. 1990, c. 8, s. 49; 2002, c. 8, s. 134)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7--Canadian Bill of Rights 1960, c. 44.