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T-4447-81
Aleksandar Glisic (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Strayer J.—Toronto, October 18; Ottawa, November 7, 1983.
Customs and excise — Action for recovery of undeclared jewellery seized at Toronto International Airport on return from foreign holiday — Other pieces returned to plaintiff following objection — Plaintiff testifying jewellery acquired abroad before immigration to Canada thirteen years previous ly, carried on many holidays abroad, never declared — Belief that obliged to declare on re-entry only goods acquired during trip returned from — On each entry, plaintiff obliged to declare jewellery and so committing violation of Act s. 18 and liable to automatic s. 180 forfeiture — Three-year limitation under Act s. 265 possibly precluding forfeiture for earlier violations — Necessary interpretation of s. 18 worrisome — Declaration of all personal property carried or worn required on every entry, even if acquired in Canada and long owned — Travellers having different understanding of law — Customs officers not giving law full scope in practice but having power arbitrarily to decide which goods forfeited — Plaintiff unrepresented and no argument made as to whether ss. 18 and 180 infringe Charter s. 8 by authorizing "unreasonable sei zure" — Customs Act, R.S.C. 1970, c. C-40, ss. 18, 163, 180(1), 265 — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. II (U.K.), s. 8.
On April 7, 1980, the plaintiff returned to Canada from a holiday in Brazil. When asked by a customs officer whether he had anything to declare, he replied in the negative. Ten pieces of jewellery in his possession—four that he was wearing, and six in his luggage or clothing—were seized. Subsequently, a notice was sent to him by Revenue Canada, indicating that all ten items were subject to forfeiture because they "were smug gled or clandestinely introduced into Canada". The plaintiff submitted written objections to the forfeiture. Revenue Canada pronounced a decision pursuant to which seven of the ten pieces were restored to the plaintiff but three others were retained. The plaintiff was informed that he would have to pay $4,600 to recover the remaining three items and avert their forfeiture. He commenced this action, seeking recovery of those three pieces.
At trial, the plaintiff testified that he had acquired all ten pieces in his native Yugoslavia prior to his immigration to Canada in 1967. He further stated that he had carried the jewellery with him on many pleasure trips outside Canada between 1967 and 1980. He had not declared them on entering the country as an immigrant or at the time of any other entry, because he thought he was not obliged to do so. Thus, he made no declaration of the articles in April 1980 because he was under the impression that, on any particular re-entry, he was required to declare only those goods acquired in the course of the trip from which he was returning.
The Crown did not produce any clear evidence regarding the date or place of purchase of any of the items. (Nor did it adduce evidence explaining why seven pieces were returned to the plaintiff and three were retained.) The Crown took the position that even on the facts as asserted by the plaintiff, the plaintiff was guilty of violating section 18 of the Customs Act, with respect to the jewellery, on every occasion when he entered Canada with that jewellery, including the occasion of his immigration. He was, the Crown contended, obliged to declare the jewellery in each of those instances, and each failure to so declare made the jewellery subject to forfeiture under section 180.
Held, the action is dismissed.
The interpretation of the law advocated by the Crown is correct. Even if the pieces of jewellery had previously been in Canada, section 18 still required the plaintiff to declare them when he returned them to this country. Accordingly, each failure to declare the pieces did amount to a violation of that provision. The Crown has conceded that the limitation imposed by section 265 of the Act might preclude forfeiture in respect of any failure which preceded April 7, 1980 by more than the allotted three years; however, even if section 265 did have this effect, it would not prevent a forfeiture for the violation which was committed on April 7, 1980. Therefore, given that a violation did occur on that date, and given that such a violation automatically results in forfeiture, the forfeiture in the instant case was justified.
While this construction of section 18 is unavoidable, it is also a cause for some concern. Paragraph 18(b) says that a person arriving in Canada must report "all goods in his charge or custody". Read literally, this not only entails the conclusions set forth above, but also requires that a person entering or re-enter ing Canada declare every item of personal property which he is carrying or wearing; and it follows that a failure to declare any one of those articles exposes the article to seizure and forfeit ure. The obligation to declare is not confined to goods acquired abroad, let alone to goods acquired on the particular foreign trip from which the entrant is returning. Instead, it encom passes items which a Canadian acquired in Canada and has owned all his life. Few if any travellers understand the legal requirements to be so comprehensive, and fortunately, in administering the law, customs officers do not treat it as having such broad scope. However, since the Act does employ sweep ing language, it effectively gives the Minister and the customs officers the power arbitrarily to decide which goods are to be forfeited for failure to declare.
In the case at bar, no argument was made concerning the application of section 8 of the Charter, which affords protection against "unreasonable search or seizure". Nor, considering its facts, is this a fitting case in which to determine whether sections 18 and 180 authorize an "unreasonable seizure": for one thing, it is probable that all relevant elements of the forfeiture pre-date the Charter's coming into force. Nonethe less, the issue might properly arise in other cases involving these sections of the Customs Act.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
His Majesty The King v. Bureau, [1949] S.C.R. 367; Nader v. The Queen, [1973] F.C. 898 (T.D.); The Queen v. Sun Parlor Advertising Company, et al., [1973] F.C. 1055 (T.D.); Marun v. The Queen, [1965] 1 Ex.C.R. 280; Shaikh v. Her Majesty the Queen (1982), 4 C.E.R. 123
(F.C.T.D.).
COUNSEL:
M. W. Duffy for defendant.
APPEARANCE:
Aleksandar Glisic on his own behalf. SOLICITOR:
Deputy Attorney General of Canada for defendant.
PLAINTIFF ON HIS OWN BEHALF: Aleksandar Glisic, Toronto.
The following are the reasons for judgment rendered in English by
STRAYER J.: This is an action for the recovery of three pieces of gold jewellery of the value of $5,000, which were seized from the plaintiff by customs officers at Toronto International Airport on April 7, 1980. The plaintiff was then returning from a holiday in Brazil. When the plaintiff arrived in the customs area he was wearing four pieces of jewellery, two rings and two chains. When asked by the customs and immigration offi cer at the "primary line" whether he had anything to declare, he answered in the negative. This offi cer, apparently noting the four items of jewellery being worn, gave the plaintiff a specially encoded card which he then presented to other officers before departure from the customs area. The card was encoded so as to indicate that an examination
of luggage, etc., was indicated, and the plaintiff was referred to Mr. Couffin, a customs officer in the "secondary line". I will not go into all the details, but in essence Mr. Couffin examined the plaintiff's luggage, then examined the four visible pieces of jewellery, and then examined the con tents of the plaintiff's clothing. Six more pieces of gold jewellery were found and all ten items were held by the customs officers. Subsequently a notice dated June 11, 1980 was sent to the plaintiff by Revenue Canada indicating that all ten items were subject to forfeiture for the reason that "the said goods were smuggled or clandestinely introduced into Canada". The plaintiff submitted written objections to the forfeiture and on June 4, 1981 Revenue Canada, on behalf of the Minister of National Revenue, gave its decision in writing under section 163 of the Customs Act [R.S.C. 1970, c. C-40]. By this decision, seven of the ten items of jewellery were returned to the plaintiff, while three items—two rings and a bracelet—were retained. The notice indicated that the plaintiff could obtain the release of these items on payment of some $4,600 and failing such payment within thirty days, the three items would be forfeited. The plaintiff subsequently commenced this action.
The plaintiff in his testimony said that he had acquired all of these ten items of gold jewellery in Yugoslavia prior to his immigration to Canada from that country in 1967. He said that he had owned it ever since and had customarily carried it with him on his many pleasure trips outside of Canada between 1967 and 1980. When he went to Brazil in March, 1980, he therefore took all this jewellery with him. He said that he had never declared it on any occasion when entering Canada, even when he came in as an immigrant in 1967, and he thought it unnecessary to do so. He only thought it necessary, upon returning to Canada from a trip abroad, to declare goods which had been acquired on that trip and since he had had this jewellery for at least thirteen years prior to 1980, he did not declare it.
The defendant did not produce any clear evi dence as to the place or date of purchase of any of this jewellery. Nor did it adduce evidence as to why seven of the ten items were returned to the plaintiff while the three in question here were retained. In his evidence the customs officer, Mr.
Couffin, did testify that he found in the plaintiff's possession twelve small leather bags of a kind normally used for carrying jewellery. Nine of these had the name of a jewellery store in Rio de Janeiro while three had no identification. Four business cards of jewellers were also found in his luggage: two from the same store in Rio de Janeiro, one from a store in Rochester, New York, and one from a store in Toronto. Instead of seeking to establish the origin of the jewellery, the Crown contented itself with relying on the plaintiff's own evidence that he had acquired the jewellery in Yugoslavia prior to his first arrival in Canada, and that he had brought it across the border when immigrating and when returning to Canada on numerous occasions, including that of April 7, 1980, without ever declaring it. It is the position of the Crown that on each of these occasions, includ ing that of April 7, 1980, the plaintiff was in violation of section 18 of the Customs Act. Section 18 provides:
18. Every person in charge of a vehicle arriving in Canada, other than a railway carriage, and every person arriving in Canada on foot or otherwise, shall
(b) before unloading or in any manner disposing thereof, make a report in writing to the collector or proper officer at such custom-house or station of all goods in his charge or custody ...
(c) then and there truly answer all such questions respecting the articles mentioned in paragraph (b) as the collector or proper officer requires of him and make due entry thereof as required by law.
Thus it is the position of the Crown that, even accepting the evidence of the plaintiff that he owned this jewellery since at least 1967, he should have declared it when he first arrived in Canada and on every subsequent occasion when he returned to Canada with it in his possession including April 7, 1980. A failure to do so makes his goods subject to forfeiture by virtue of subsec tion 180(1) which reads:
180. (1) Where the person in charge or custody of any article mentioned in paragraph 18(b) has failed to comply with any of the requirements of section 18, all the articles mentioned in paragraph (b) of that section in the charge or custody of such person shall be forfeited and may be seized and dealt with accordingly.
In fairness, Crown counsel also referred to sec tion 265 of the Act which provides that "All seizures ... for the ... enforcement of any of the penalties or forfeitures imposed by this Act ...
may be made or commenced at any time within three years after the offence was committed, or the cause of prosecution or suit arose, but not after wards." If one assumed that this is applicable to an automatic forfeiture such as section 180 pro vides, counsel conceded that it might now preclude forfeiture based on failure to declare the jewellery upon entry to Canada in 1967 and the following ten years, but it would not preclude forfeiture for reason of failure to declare with respect to any entry during the three years prior to and including April 7, 1980.
I have somewhat reluctantly come to the conclu sion that the position of the Crown in this matter is correct in law and that the plaintiff's action cannot succeed. The automatic nature of forfeiture, for failure to declare under section 18, is well established.' Failure to declare the goods as required by section 18 is not excused by the fact that the goods had previously been in Canada prior to their removal therefrom and were returned to Canada on the occasion of the failure to declare. 2 Even if section 265 would preclude a forfeiture for any violation of section 18 which occurred more than three years before the actual seizure on April 7, 1980, the events of April 7 themselves constitut ed such a violation and therefore justified the forfeiture.
I said that I came to this conclusion "reluctant- ly" because, regardless of the relative merits in this particular case, I am concerned about the implications of section 18. Taken literally, it means that a person entering or re-entering Canada should declare every item of personal property he carries or is wearing on his person including, presumably, his underclothes. If he fails to do so then, by the combined operation of sec tions 18 and 180 of the Customs Act, any or all of these items which are not declared are subject to seizure and ultimately to forfeiture to the Crown. This is because section 18 requires reporting of "all goods in his charge or custody". It is not
' See: His Majesty The King v. Bureau, [1949] S.C.R. 367; Nader v. The Queen, [1973] F.C. 898 (T.D.); and The Queen v. Sun Parlor Advertising Company, et al., [1973] F.C. 1055 (T.D.).
2 See: Marun v. The Queen, [1965] 1 Ex.C.R. 280; Shaikh v. Her Majesty the Queen (1982), 4 C.E.R. 123 (F.C.T.D.).
confined to all goods acquired abroad or all goods acquired on this trip. I think I can take judicial notice of the fact that few if any travellers under stand this to be the law nor is it so administered by Revenue Canada. If a person such as the plaintiff were to bring in goods with him upon immigrating to Canada, and were to use them for many years in Canada and carry them back and forth across the border on trips outside Canada, it would indeed come as a surprise if after many such crossings without difficulty he were challenged by a customs officer with respect to such articles. Yet it is the position of the Crown that under section 18 a customs officer may so challenge the re-entry of such goods to Canada and where no declaration has been made with respect to them, such goods are subject to forfeiture. I agree that section 18 must be interpreted in this way, but I feel obliged to observe that it could equally be interpreted to authorize the seizure and forfeiture of anything which a Canadian had acquired in Canada, owned all his life, and carried abroad with him on a holiday should he fail to declare it upon his re entry to Canada. That the law is not administered in this way is a tribute to the good sense of the customs officers, but it does leave in their hands and those of the Minister an arbitrary power of decision as to what goods are to be forfeited for non-declaration.
Section 8 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)], guarantees "the right to be secure against unreasonable search or seizure". The plaintiff in the present case was unrepresented by counsel and the possible application of section 8 was not raised in argument. Nor do I think this an appropriate case, on the facts, for a court to determine whether sections 18 and 180 of the Customs Act authorize an "unreasonable seizure". For example, it is probable that all relevant ele ments of the forfeiture pre-date the entry into force of the Charter. But that is not to say that the issue could not properly arise in other cases where these sections are invoked.
ORDER
It is hereby ordered that the action be dismissed with costs.
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