Digests

Mercier v. M.N.R.

T-1323-01

2004 FC 1036, Blanchard J.

26/7/04

20 pp.

Action pursuant to Customs Act, s. 135(1) appealing decision of Minister of National Revenue upholding notice of ascertained forfeiture--Customs Officer determining plaintiffs had contravened Act by unlawfully importing into Canada parachutes, parachute accessories--Notice of ascertained forfeiture served upon plaintiffs on June 12, 1998 under Act, s. 124(1)--As corporate plaintiff discontinuing action, issues determined in respect of individual plaintiff, director and shareholder of corporate plaintiff--S. 124(1) providing notice demanding payment may be served on person believed, on reasonable grounds, to have contravened Act, "if the goods or conveyance is not found or if the seizure thereof would be impractical"--Search warrant not sought nor effort made by defendant to seize alleged goods--Defendant arguing impractical to seize goods--Ascertained forfeiture provisions of Act allowing Minister to demand payment in respect of goods that cannot be found, cannot be practically seized-- Once issued, notice judgment for all intents, purposes-- Provision potent instrument available to Minister in administration, enforcement of Act--Extraordinary provision as usual procedure under Act contemplates seizure of offending goods--Act, s. 124(1) clear: notice may only be issued when one of two preconditions met, namely impugned goods not found, or impractical to seize goods--No evidence to support contention goods could not be found--Customs Officer advancing two reasons to justify decision seizure of goods impractical--First, alleging as smuggled goods could have ended up at different sites, difficult to obtain search warrant--Second, seizure of goods would have meant shutting down skydiving school during busiest season--Neither reason justified decision seizure of goods impractical--No attempts made to obtain search warrants--Sites at issue known to Customs Officer--One of purposes served by finding, seizing smuggled goods to ensure goods exist, within Canada--Notice not alternative recourse for defendant--For notice to be properly issued, evidence must allow one to reasonably conclude goods cannot be found, seizure impractical-- Parachutes easily identifiable, bore serial numbers, colour coded, manufacturer marked, named, branded, used in same place on routine basis--No evidence seizure of goods impractical--Defendant used notice as last-minute instrument to secure judgment on file that had remained dormant for better part of six years--Minister erred in upholding notice-- Customs Officer erred in determining seizure of goods at issue impractical--Notice not issued in compliance with Act, therefore quashed--Appeal allowed--Customs Act, R.S.C., 1985 (2nd Supp.), c. 1, ss. 124 (as am. by S.C. 1995, c. 41, s. 33; 1997, c. 36, s. 187; 2001, c. 25, s. 67), 135 (as am. by S.C. 1990, c. 8, s. 49; 2002, c. 8, s. 134).