[2013] 2 F.C.R. D-12
Customs and Excise
Customs Act
Motion pursuant to Federal Courts Rules, SOR/98-106, r. 220(1) for preliminary determination of question of law stemming from action, application pertaining to seizure of plaintiffs’ vehicles by Canada Border Services Agency (CBSA) under Customs Act, R.S.C., 1985 (2nd Supp.), c. 1—CBSA enforcing reporting requirement for Cornwall point of entry (POE) by seizing vehicles not reporting to POE in accordance with Customs Act, ss. 110, 122—Vehicles released after specified amount paid by owners—Main issue whether vehicles protected from seizure by virtue of Indian Act, R.S.C., 1985, c. I-5, s. 89—Whether seizure violating 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. 8 also at issue—Customs Act provisions at issue constituting civil proceedings—Case not meeting basic threshold to engage Charter, s. 8—Indian Act, s. 89 protection not extending to seizures at issue under Customs Act—Concept of “ordinary civil process” in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 (Mitchell) not as broad as plaintiffs suggesting—Dual protections in Indian Act, ss. 87, 89 described in Mitchell as exemptions from taxation, distraint respectively—CBSA’s use of civil remedies provided for in Customs Act to enforce border legislation not fitting within scope of Indian Act, s. 89—Purpose of seizure regime under Customs Act to maintain effectiveness of customs requirements—Enforcement of POE requirement successful in maintaining effectiveness—Use of civil remedy to achieve goal of maintaining border security preferable to intrusive enforcement mechanisms suggested by plaintiffs—Seizures effected under Customs Act beyond scope of protections in Indian Act, s. 89, conveyances at issue not exempt from seizure—Manager of Appeals Division of Recourse Directorate of CBSA having authority to make decisions under Customs Act, ss. 129–133—Motion dismissed.
Mohawk Council of Akwesasne v. Canada (Public Safety and Emergency Preparedness) (T-859-12, 2012 FC 1442, Near J., judgment dated December 6, 2012, 26 pp.)