T-3372-77
Karen Annette Lawson and Paul Eugene Rioux
(Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, February 6,
7 and 8, 1980.
Customs — Forfeiture — Pickup truck and "5th wheel"
trailer forfeited at border — Trailer acquired in U.S. —
Plaintiff towed trailer with Quebec dealer's plates affixed to it
— On being questioned by customs officer, plaintiff Rioux
stated that trailer was acquired in Ottawa, before admitting
the truth — Whether or not the forfeiture should be vacated
— Customs Act, R.S.C. 1970, c. C-40, ss. 2(1), 18, 180(1),
183(1) — Financial Administration Act, R.S.C. 1970, c. F-10,
s. 17.
Plaintiffs apply to the Court to vacate a forfeiture, following
the forfeiture of a pickup truck and a "5th wheel" trailer under
the Customs Act. Rioux, a Canadian, had registered the truck
in Quebec. Plaintiffs had intended to register the trailer, which
had been acquired in New York State in the United States, in
Lawson's name. Lawson was American. Since the New York
licence office was closed, plaintiff Rioux fixed his set of Quebec
dealer's plates to the trailer, made it look lived in and drove to
the border. Rioux indicated he had little to declare, and when
questioned about the trailer, lied, stating that it was Canadian
and that it had been bought in Ottawa. At some point Rioux
decided to tell the truth. Both vehicles were forfeited. The
pickup truck was released against a cash deposit, of which all
but $500 was ultimately remitted. The trailer remains forfeited
in rem.
Held, the action is dismissed. The Court is bound to consider
all grounds under which the evidence discloses the goods might
have been forfeited. It cannot limit its consideration only to the
stated grounds of forfeiture. The Court, however, is limited to a
determination of whether or not the goods were, in fact and
law, liable to forfeiture. The power to remit a forfeiture lies
with the Governor in Council; the Court can only order a
release of the goods or declare that they remain forfeited. The
trailer was "goods ... in [the] charge or custody" of the
plaintiffs. The obligation to make a report in writing is on the
person arriving in Canada, and after indicating that he had
nothing or so little to declare that he was not asked by the
customs officer to make a written declaration, he cannot be
heard to say he had no opportunity to do so. Likewise, he
cannot be heard to say that he had no obligation to answer
truthfully questions about the goods that ought to have been
mentioned in such a written report. The truck and trailer were
forfeited when the lies were told, contrary to section 18 of the
Customs Act. The fact that he recanted his lies before the
goods were declared forfeit does not matter in that forfeiture
accrues at the time and by the commission of the offence.
Plaintiffs' claim for damages for loss of use and depreciation of
the trailer was not supported by evidence.
R. v. Bureau [1949] S.C.R. 367, referred to. R. v. Krako-
wec [1932] S.C.R. 134, referred to.
ACTION.
COUNSEL:
Henri O. Saint-Jacques, Q.C. for plaintiffs.
Arnold S. Fradkin for defendant.
SOLICITORS:
Saint-Jacques & Saint-Jacques, Ottawa, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This action ensues upon the for
feiture of a pickup truck and a "5th wheel" trailer
under the Customs Act' at the customs house at
the port of entry at Cornwall, Ontario, sometime
around 11:00 p.m., Monday, October 25, 1976.
The plaintiff, Rioux, is a Canadian citizen and the
plaintiff, Lawson, an American, who lived to
gether, to the extent hereinafter detailed, "com-
mon law" at all material times.
Rioux had operated a garage and used car busi
ness at Kazabazua, Quebec, which he sold in
September 1976. He had a house there. He also
owned a farm near Plantagenet, Ontario. There
was a "mobile home" residence on it. Lawson lived
with him at both locations for periods running up
to several months in length. She also lived with her
mother and a daughter at Chittenango, New York.
Rioux lived with her there for short periods.
Rioux was beneficial owner of a mobile home,
licensed in Lawson's name in New York. It had
been purchased from a dealer at Chittenango in
R.S.C. 1970, c. C-40.
June, 1976. They brought it into Canada twice
before they took it on a trip to Florida in the
summer of 1976. They had trouble with it and,
after they enlisted the support of consumer protec
tion authorities in New York, the dealer was
required to take it back. He was unable to refund
the purchase money and a deal was made whereby
Rioux agreed to take $4,000 and the trailer in
issue.
Rioux took the pickup truck in issue to Chit-
tenango on the weekend and on Monday morning,
October 25, the work of adapting it began. The
truck was registered in Rioux's name in Quebec. A
5th wheel trailer is not towed by a tongue like a
conventional trailer; rather, like large "semis", a
plate at its front connects with a plate in the box of
the truck adapted to tow it. Because of certain
structural peculiarities of the truck, what should
have been the work of a couple of hours took all
day. The New York State licence office, some 20
miles from Chittenango, had closed before they
could carry out their intention of licensing the
trailer in Lawson's name. Rioux had a set of
Quebec dealer's plates in his pickup. He affixed
them, or one of them, to the trailer. They put some
used items in the trailer to give it a lived in look
and, Rioux driving the pickup, Lawson in its pas
senger seat, trailer in tow, they drove to the
border.
Having sold his business, Rioux intended to
retire with Lawson to Emporia, Virginia, a com
munity he frequently passed through in passing
between Canada and Florida. Its location was
convenient as roughly halfway between the other
places where they wanted to spend time in retire
ment, the Ottawa area and Chittenango, in the
north, and Florida, in the south. Rioux wanted to
buy a small farm there and had looked at proper
ties. He was anxious to get back to Emporia and
make a purchase. Rioux did, in fact, buy a four-
acre farm near Emporia November 19, 1976. He
sold it June 30, 1978, after returning to live in
Ottawa. Lawson still lives at Emporia. They no
longer live together.
The plaintiffs intended, in returning to Canada
on October 25, merely to pick up their personal
effects at Plantagenet and Kazabazua and to pro
ceed immediately to Emporia. They meant to
spend only a day or two in Canada.
They stopped at Canadian customs. An officer
approached the driver's side of the pickup and
spoke to Rioux. Lawson remained silent at all
material times. Whatever the precise course of the
conversation, Rioux did not indicate that Lawson
was not a Canadian. Perhaps the question was not
put directly. He was asked if he had anything to
declare. He indicated only a box of cigars in the
truck's cab. He was asked about the trailer. He
said it was Canadian. He was asked where he
bought it and he answered: Ottawa, at Travel-Mor
on Bank Street. He was asked for its registration.
He did not have it. The officer asked to inspect the
trailer. The plaintiffs both got out of the truck.
Rioux's testimony is confused as to just when he
decided to tell the truth. Perhaps he started before
the officer entered the trailer. Perhaps it was not
until the officer found the manufacturer's certifi
cate of origin. In my view of the law, it really does
not matter. When Lawson got out of the truck she
was ushered to the customs house. She had, in her
purse, the New York registration application
which had been completed by the dealer.
Both vehicles were forfeited. The pickup truck
was released against a cash deposit whereof all but
$500 was ultimately remitted. The trailer remains
forfeited in rem.
Rioux's credibility is dubious. His story is,
nevertheless, corroborated in its most material par
ticulars by his transparent stupidity. If, indeed, he
had been trying to smuggle or clandestinely
introduce a brand new trailer into Canada, he
chose a peculiarly inept way to do it. If that had
been the object, I cannot conceive that he would
not have stuck to the original plan, taken advan
tage of Lawson's American citizenship and resi
dence, and waited until the next day to try to get
the trailer into Canada with a New York licence.
It had worked twice with the mobile home. I
believe that he was simply in a hurry to get in and
out of Canada and on with his retirement plans.
He misused the Quebec dealer's plates and, there
by, violated and proposed to violate the highway
traffic laws of a number of jurisdictions. He was
entirely prepared to break the law and to lie to
advance his interests as he saw them. I do not,
however, think that he intended to smuggle the
trailer into Canada. I doubt that he considered the
customs implications of what he was doing at all.
Rather, he devised a scheme to avoid getting
apprehended in his violation of the highway traffic
laws which was necessary to permit him to keep to
his schedule. He got caught up in his own lies.
Unfortunately for the plaintiffs, the same conse
quence of forfeiture flows from the failure to
comply with the requirements of section 18 of the
Customs Act as from actual smuggling or attempt
ing to smuggle.
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
(a) come to the custom-house nearest to the point at which
he arrived in Canada, or to the station of the officer nearest
to such point if that station is nearer thereto than a
custom-house;
(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 or in the vehicle and of the fittings, furnishings and
appurtenances of the vehicle and any animals drawing it and
their harness and tackle, and of the quantities and values of
such goods, fittings, furnishings, appurtenances, harness and
tackle; and
(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.
In considering an application to vacate a forfeit
ure, the Court is bound to consider all grounds
under which the evidence discloses the goods
might have been forfeited. It cannot limit its con-
sideration only to the stated grounds of forfeiture. 2
The Court is, however, limited to a determination
of whether or not the goods were, in fact and law,
liable to forfeiture. 3 The power to remit a forfeit
ure lies with the Governor in Council;° the Court
can only order a release of the goods or declare
that they remain forfeited.
The trailer was "goods ... in [the] charge or
custody" of the plaintiffs. Counsel made much of
the fact that they were given no opportunity to
"make a report in writing" as stipulated in para
graph 18(b) and argues that, in the absence of
such a written report, the requirement of para
graph 18(c) to "then and there truly answer"
questions about the trailer put by the officer never
came into play. This aspect of the factual situation
is not to be distinguished from that considered in
The King v. Bureau. The obligation to make a
report in writing is on the person arriving in
Canada. Having indicated that he has nothing to
declare, or so little that the customs officer does
not ask him to make a written declaration, he
cannot be heard to say he had no opportunity to do
so. Likewise, he cannot be heard to say that he had
no obligation to answer truthfully questions about
the goods that ought to have been mentioned in
such a written report.
The trailer was forfeited pursuant to subsection
180(1).
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.
The truck was forfeited pursuant to subsection
183(1).
183. (1) All vessels, with the guns, tackle, apparel and
furniture thereof, and all vehicles, harness, tackle, horses and
cattle made use of in the importation or unshipping or landing
or removal or subsequent transportation of any goods liable to
forfeiture under this Act, shall be seized and forfeited.
2 The King v. Bureau [ 1949] S.C.R. 367 at 385, 387 and
391.
3 The King v. Krakowec [ 1932] S.C.R. 134 at 143.
4 Financial Administration Act, R.S.C. 1970, c. F-10, s. 17.
The defendant might, but does not need to, rely on
subsection 231(1).
Evidence was led with a view to establishing
that Rioux had recanted his lies and told the truth
about the trailer before goods were declared for
feited. That is true, in that he had probably told
the truth before the forfeiture was announced. A
good deal of confusion exists as to whether he told
the truth before the officer discovered it; none of
that matters. The Act provides:
2. (1) In this Act, or in any other law relating to the
customs,
"seized and forfeited", "liable to forfeiture" or "subject to
forfeiture", or any other expression that might of itself imply
that some act subsequent to the commission of the offence is
necessary to work the forfeiture, shall not be construed as
rendering any such subsequent act necessary, but the forfeit
ure shall accrue at the time and by the commission of the
offence, in respect of which the penalty of forfeiture is
imposed;
In law, the truck and trailer were forfeited when
the lies were told.
In addition to declarations that there had been
no valid forfeiture of the truck and trailer, the
plaintiffs sought damages for loss of use and
depreciation of the trailer. Absolutely no evidence
was led in support of that relief. It must be denied
for that reason as well as others.
JUDGMENT
The action is dismissed with costs.
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