T-3074-82
Gurbachan Seva K. Chahill (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: CHAHILL V. CANADA
Trial Division, McNair J.—Toronto, November
20, 1987; Ottawa, February 9, 1988.
Customs and excise — Customs Act — Seizure of jewellery
for unlawful importation — Burden of proof in seizures cases
— Violation of Customs Act s. 18 public welfare offence —
Defence of due diligence available — Crown relying on reverse
onus provisions of Act and leading no evidence to establish
commission of any offence under Act — Evidence establishing
unintentional importation by plaintiffs mother, innocent
possession by plaintiff— No seizure, forfeiture under s. 180(1)
except from person committing offence — No application to
person in subsequent possession unless proof that person com
mitted offence under Act.
The plaintiff immigrated from Malaysia to Canada in 1980.
On entry, she made the required declaration itemizing the
goods then in her possession and custody.
In July 1981, the RCMP went to the plaintiff's home and
seized some articles of the plaintiff's jewellery including a gold
bracelet and necklet.
This is an action for the return of these articles, based on the
allegation that no duty was payable because they were family
heirlooms which her mother had given to the plaintiff during a
visit in June and July 1981.
The Crown relied upon the reverse onus provisions of section
248 of the Customs Act. The Crown's position was that the
presence of the jewellery in Canada was legally unaccounted
for and that it was incumbent upon the plaintiff to prove due
compliance with the requirements of the Act and to prove that
the seizure was unjustifiable under any of the provisions
thereof.
Held, the action should be allowed.
In The King v. Bureau, the Supreme Court of Canada held
that the Crown is not technically limited to the Customs Act
violations specified in the initial notice of seizure given by the
Minister where there is an abundance of evidence supporting
other statutory violations of the Act that were raised and put in
issue by the pleadings.
However, the threshold burden should not be any lower in
cases where the Crown merely seizes goods for alleged viola
tions of the Act than it is in cases where the seizure is followed
by the laying of charges. It was stated by Laskin C.J. in R. v.
Shelley that the reverse onus in section 248 would be impos
sible to discharge if it were sufficient merely to state possession
and foreign origin in the indictment, as was done in this case.
Section 18, which imposes the duty to declare, creates a public
welfare offence in respect of which the defence of due diligence
is available.
In the present case, there was incontrovertible evidence that
the plaintiff's mother had with her and was wearing the gold
bracelet and necklet on her entry into Canada in June 1981.
The duty to report therefore lay upon the mother. When the
mother had passed through customs, the plaintiff was entitled
to some benefit of presumption that everything had been done
in accordance with the rules. She therefore saw no reason why
she should not accept the gifts.
The allegation that the mother failed to report was not
sufficient to justify the seizure under subsection 180(1) of the
Act. Non-compliance makes the unreported articles liable to be
seized and forfeited from the person who committed the pros
cribed act and none other. To hold otherwise would negate any
presumption of innocence within the principle of R. v. Shelley.
The Crown bore the burden of proving beyond a reasonable
doubt that the plaintiffs mother had committed the offence of
failing to report the goods contrary to section 18 of the Act.
The Crown failed to adduce any evidence thereof and instead
chose to rely on the reverse onus provisions of section 248 as
raising a presumption of guilt from the fact that the plaintiff
was unable to prove that her mother had not breached the duty
to report. This imposes an impossible burden of proof on the
plaintiff, tantamount to a presumption of guilt by inference.
The seizure cannot be justified under sections 185 and 187 of
the Act since neither unlawful importation nor non-correspond
ence of goods with the invoice have been proven.
The weight of the evidence was sufficient to establish that
there had been unintentional importation and subsequent inno
cent possession of the jewellery by the plaintiff within the
meaning of the defence of reasonable care or due diligence as
enunciated by the Supreme Court of Canada in The Queen v.
Sault Ste. Marie.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Customs Act, R.S.C. 1970, c. C-40, ss. 2(1), 18, 19,
20(a), 163, 166, 180(1), 185, 187, 192, 205(1), 248.
Federal Court Rules, C.R.C., c. 663, R. 500.
CASES JUDICIALLY CONSIDERED
APPLIED:
Marun, Tvrtko Hardy v. The Queen and Minogue, Regi-
nald James v. The Queen, [1965] 1 Ex.C.R. 280; R. v.
Shelley, [1981] 2 S.C.R. 196; 123 D.L.R. (3d) 748;
Ardekany v. Dom. of Can. Gen. Ins. Co. (1985), 67
B.C.L.R. 162 (S.C.); R. on the information of Mark
Caswell v. Corporation of City of Sault Ste. Marie,
[1978] 2 S.C.R. 1299.
DISTINGUISHED:
The King v. Bureau, [1949] S.C.R. 367; Kenzik, Ben-
jamin et al v. The Queen, [ 1954] Ex.C.R. 153; Kong et
al. v. The Queen (1984), 10 D.L.R. (4th) 226 (F.C.T.D.);
Glisic v. The Queen, [1984] 1 F.C. 797; ((1983), 3
D.L.R. (4th) 90 (T.D.), reversed [1988] 1 F.C. 731
(C.A.).
CONSIDERED:
Shaikh (Mrs. Kansar) and The Queen (1982), 4 C.E.R.
123 (F.C.T.D.).
COUNSEL:
J. David Philp for plaintiff.
Michael W. Duffy for defendant.
SOLICITORS:
Philp, Fonseca, Rumack & Gold, Toronto,
for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MCNAIR J.: The plaintiff sues for the return of
a gold bracelet and gold necklet seized by a
member of the Royal Canadian Mounted Police
purportedly acting under the authority of the Cus
toms Act, R.S.C. 1970, c. C-40. The plaintiff,
Mrs. Chahill, claims to be the lawful owner of the
said goods, free of any customs duty.
The plaintiff was married in Malaysia in 1980
and immigrated to Canada with her husband on
October 20 of that year. On entry, the plaintiff
made a declaration in the required entry form
(Exhibit P-1) itemizing the goods then in her
possession and custody. On June 6, 1981 the plain
tiffs mother arrived from Malaysia to visit her
daughter. She remained in Canada until July 14,
1981. The mother was terminally ill with cancer
and died several years later in Malaysia. On July
29, 1981 officers of the RCMP came to the plain
tiffs home and seized some articles of the plain
tiffs jewellery, including the gold bracelet and
gold necklet which she was wearing at the time.
These two last mentioned items are the subject
matter of this action. The other items were after
wards returned.
On August 17, 1981, the plaintiff received
notification from Revenue Canada advising that
the two items had been unlawfully imported into
Canada and that there was duty of $2,808.40
owing thereon. The plaintiff wrote a letter to
Revenue Canada on August 25, 1981 wherein she
stated that the bracelet and necklet were family
heirlooms which her mother had gifted to her
during her visit. On April 19, 1982, the plaintiff
was informed by a ministerial decision pursuant to
section 163 of the Customs Act that the goods
would be released on payment of $1,168.40 within
30 days from the date thereof, failing which the
goods would be forfeited.
The plaintiff's action was commenced by a
statement of claim filed on May 3, 1982. The
principal allegation is that the seized bracelet and
necklet were properly the property of the plaintiff
and that no duty or other excise tax was owing
thereon. The statement of claim further alleges
that the Minister refused to return the property to
the plaintiff, despite the fact that the plaintiff
produced sufficient evidence to the appropriate
officials to establish that there was no duty pay
able with respect to the seized items.
The defence on behalf of Her Majesty The
Queen was filed on October 28, 1983. The primary
allegation is that the plaintiff and, or alternatively,
her mother were importers of goods who had failed
to comply with the requirements of paragraph
18(b) of the Customs Act for making a report in
writing and due entry in respect thereof to the
collector or proper officer of customs at the time of
entry into Canada. It is also alleged that the
plaintiff and her mother failed to pass invoices in
respect of the said goods. By reason of such fail
ures, the goods were illegally imported and subject
to seizure and forfeiture under subsection 180(1)
of the Act.
The defence further alleges that the importation
of the goods [section 19] or the entering of the
goods inwards [paragraph 20(a)] by the plaintiff
or the plaintiff's mother rendered the goods liable
to be seized and forfeited under sections 185 and
187 of the Customs Act. The defence also alleges
that the plaintiff or her mother smuggled or
clandestinely introduced the goods into Canada
contrary to section 192 of the Act. Counsel for the
defendant abandoned the smuggling allegation at
trial, so this is no longer in issue. To complete the
array, the defendant pleads in final alternative
that the plaintiff had in her possession goods which
were unlawfully imported into Canada in or about
the month of June, 1981, thereby making them
subject to seizure and forfeiture by virtue of sub
section 205 (1) of the Customs Act.
Section 18 of the Customs Act provides as
follows:
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.
Subsection 180(1) deals with the consequences
of failing to comply with the requirements of
section 18, and reads as follows:
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.
Counsel for the defendant relies on the reverse
onus provisions contained in section 248 of the
Customs Act, which reads:
248. (1) In any proceedings instituted for any penalty,
punishment or forfeiture or for the recovery of any duty under
this Act, or any other law relating to the customs or to trade
and navigation, in case of any question of, or relating to the
identity, origin, importation, lading or exportation of any goods
or the payment of duties on any goods, or the compliance with
the requirements of this Act with regard to the entry of any
goods, or the doing or omission of anything by which such
penalty, punishment, forfeiture or liability for duty would be
incurred or avoided, the burden of proof lies upon the owner or
claimant of the goods or the person whose duty it was to
comply with this Act or in whose possession the goods were
found, and not upon Her Majesty or upon the person represent
ing Her Majesty.
(2) Similarly, in any proceedings instituted against Her
Majesty or any officer for the recovery of any goods seized or
money deposited under this Act or any other law, if any such
question arises, the burden of proof lies upon the claimant of
the goods seized or money deposited, and not upon Her Majes
ty or upon the person representing Her Majesty. [My
emphasis.]
Defendant's counsel submits that the effect of
this provision and the applicable case law is to
require the plaintiff to prove due compliance with
the requirements of the Customs Act with regard
to the entry of the goods and that the seizure was
unjustifiable under any of the provisions thereof.
Counsel referred to Shaikh (Mrs. Kansar) and
The Queen (1982), 4 C.E.R. 123 (F.C.T.D.)
wherein Mr. Justice Marceau, alluding to the
interaction of section 18 and subsection 180(1),
said at page 125:
A claimant adversely affected by a decision of the Minister has
no doubt the right to seek himself the intervention of the Court,
if the Minister delays or neglects to do so. His action however,
can only be seen as a means to put into effect the recourse
provided by the Act and the role of the Court with respect
thereto will remain the same as on a reference by the Minister
made in the normal manner. [My emphasis.]
The role of the Court on a reference thereto by
the Minister under former section 177 [now sec
tion 166] was clearly delineated by the Supreme
Court of Canada in The King v. Bureau, [1949]
S.C.R. 367.
In this case, the respondent's automobile and
159,600 American cigarettes were seized by cus
toms officials by reason of his failure to declare
the cigarettes upon re-entry into Canada. The
respondent was acquitted of the criminal charge of
smuggling at a trial by jury. Nonetheless, the
Minister of National Revenue determined that the
automobile and cigarettes should be forfeited
because of the illegal importation and referred the
matter to the Exchequer Court for adjudication by
trial de novo under section 177 [now section 166].
The Exchequer Court held that the smuggling
violation had not been proven and that the forfei-
ture could not be upheld by reason of any other
breaches of the Customs Act because the notice
given by the Minister to the respondent had speci
fied no other breach, apart from smuggling.
The Supreme Court held that as the evidence
established that the respondent was guilty of a
number of breaches of the Customs Act, to wit,
the failure to truly answer questions and make due
entry and to make a report in writing, any one of
which was sufficient to warrant the seizure and
forfeiture, and that neither his acquittal by a jury
on the charge of unlawfully importing nor the fact
that the evidence in the present case failed to
establish the offence of smuggling did not operate
to invalidate the seizure nor affect the right of
forfeiture. The majority of the Court was of the
opinion that a reference by the Minister to the
Court under section 177 was properly a trial de
novo for the purpose of determining upon the
evidence adduced and the issues raised by the
pleadings whether the seizure and forfeiture was
justifiable and that in deciding according to the
right of the matter the Court was not limited to
the grounds specified in the Minister's notice but
rather could consider any evidence proving other
contraventions of the Customs Act.
Rinfret C.J., in alluding to the de novo import of
section 177 [now section 166], said at pages
378-379:
In my opinion, that section authorizes the Exchequer Court to
explore the whole subject matter and the circumstances
referred to it—not to say anything of the fact that, in the
present case, that is precisely what was done in the evidence
submitted to that Court, to which the respondent made no
objection. In the circumstances it was fully within the power of
the Exchequer Court to declare the seizure and forfeiture valid
upon all the contraventions of the Act which were allegedly
proven in the case. [My emphasis.]
The learned Chief Justice made this earlier
statement at pages 376-377:
Without hesitation, I am of opinion that not only has the
respondent not succeeded in proving that he had a lawful
excuse to have in his possession the goods ... and that he was
entitled to recover the goods and the automobile which were
seized, but the evidence on behalf of the Crown is conclusive
that the respondent violated the Customs Act and that the
cigarettes and the automobile were properly and legally seized
and declared forfeited.
The respondent may truly be said to have violated almost all
the sections of the Act applying in the circumstances which
have been established in evidence.
Kellock and Estey JJ., were both of the view
that the reference proceedings by trial de novo
were not limited by the terms of the initial seizure
notice given by the Minister but rather were
dependent upon all the evidence adduced in estab
lishing other violations of the Customs Act in
justification of the seizure and forfeiture. The
evidence here consisted of the affidavits and other
documents tendered by the Minister to the Court,
together with a transcript of the evidence of the
jury trial on the criminal charge of smuggling. Mr.
Justice Estey said in light of this at page 391:
It is, with great respect, the issues raised by the parties through
their pleadings and not the terms of the notice under sec. 172
that determine the issues before the Exchequer Court.
Counsel for the defendant submits that the
Bureau principle, coupled with the reverse onus
provisions of section 248, impose on the plaintiff
the burden of proving that the Crown has no right
under any provision of the Customs Act to retain
the seized goods with the result that the Crown
does not have to call any evidence, citing Kenzik,
Benjamin et al v. The Queen, [1954] Ex.C.R. 153.
In this case, the Court applied Bureau in holding
that the Minister was not bound by the reasons
given in the initial notice of seizure. In both
Kenzik and Bureau there was ample evidence to
support a finding of other statutory violations
clearly identifiable by the pleadings and beyond
those initially specified in the notice of seizure.
In my opinion, the ratio of The King v. Bureau,
supra, is that the Crown is not technically limited
to the Customs Act violations specified in the
initial notice of seizure given by the Minister,
where there is an abundance of evidence clearly
supporting other statutory violations of the Act
that were raised and put in issue by the pleadings
between the parties. As I see it, the Crown is
limited in this case to those violations of the
Customs Act which are alleged in its defence as
justification for the seizure and forfeiture of the
subject goods. Not surprisingly, the Crown elected
to call no evidence in support of such seizure and
forfeiture.
The duty required by the Customs Act of per
sons bringing goods into Canada was stated by
Cattanach, J., in Marun, Tvrtko Hardy v. The
Queen and Minogue, Reginald James v. The
Queen, [1965] 1 Ex.C.R. 280, at page 292 as
follows:
...there is a threefold obligation on any person bringing goods
into Canada, (1) to report the goods to Customs, (2) to make
due entry of them, and (3) to pay the taxes.
It is well settled that "forfeiture shall accrue at
the time and by the commission of the offence, in
respect of which the penalty or forfeiture is
imposed": see The King v. Bureau, supra, at page
377. Counsel for the Crown also cited Kong et al.
v. The Queen (1984), 10 D.L.R. (4th) 226
(F.C.T.D.), and Glisic v. The Queen, [[1984] 1
F.C. 797; (1983), 3 D.L.R. (4th) 90, [reversed on
appeal on other grounds, [1988] 1 F.C. 731
(C.A.)] as authority for the proposition that every
person entering goods in Canada is mandatorily
required to make an unsolicited written report or
declaration at customs in respect thereof, failing
which the goods are automatically forfeited to the
Crown and become liable to seizure as Crown
property at any place and at any time thereafter,
subject to any statutory limitations. Taken literal
ly, this submission means that every undeclared
good brought by a person into Canada becomes
automatically forfeited to the Crown and liable to
subsequent seizure, regardless of otherwise inno
cent possession and the bona fides of any subse
quent transactions pertaining thereto. The draconi
an implications of this relatively unknown duty on
the part of Canadian travellers has been fully
discussed in other cases: see particularly Kong et
al. v. The Queen and Glisic v. The Queen, supra.
In my view, these cases are distinguishable by the
fact that the person alleged to have perpetrated the
breach of section 18 was the person who brought
in the goods.
It becomes necessary to consider the nature of
"offences" under the Customs Act and the burden
of proof on the Crown, if any, as between those
cases where the Crown merely seizes the goods for
alleged violations of the Act, as in the present case,
and those where goods are seized followed by the
laying of charges with respect thereto. In my view,
the threshold burden should not be any lower in
the former case than in the latter. In each case, the
Crown is alleging a commission of an offence or
violation of the Act as justification for the seizure
of goods. I find some support for this conclusion in
the definitions contained in subsection 2(1) of the
Act for the words "seized and forfeited", "liable to
forfeiture" or "subject to forfeiture" and, more
particularly, the concluding words thereof, which
read:
2. (1) ...
but the forfeiture shall accrue at the time and by the commis
sion of the offence, in respect of which the penalty of forfeiture
is imposed; [My emphasis.]
In R. v. Shelley, [1981] 2 S.C.R. 196; 123
D.L.R. (3d) 748 an accused was charged under
section 205 of the Customs Act with having in his
possession, without lawful excuse, goods unlawful
ly imported into Canada having a dutiable value of
$200 or more. The Crown proved possession of the
goods in the accused and established the dutiable
value of $200 or more. To prove that the goods
were unlawfully imported, the Crown relied on
subsection 248(1) of the Act which provided, inter
alia, that where any question arose as to identity,
origin or importation of the goods, the burden of
proof lay upon the person possessing them. The
evidence showed that the goods had their origin
outside of Canada, but the accused maintained
that he had purchased them in Canada at an
undervalue. As the foreign origin and the purchase
at undervalue would not support the inference of
unlawful importation, the Crown relied on subsec
tion 248(1). The Saskatchewan Court of Appeal
allowed the respondent's appeal from his convic
tion at trial. A majority of the Supreme Court of
Canada dismissed the Crown's appeal on the
ground that the Crown must put in evidence as a
minimum requirement of proof the facts upon
which the accused may reasonably be required to
discharge the reverse onus of showing on balance
of probabilities the lawfulness of the importation
and, having failed to do so, the reverse onus provi
sions of subsection 248 (1) did not apply.
Chief Justice Laskin, writing for the majority,
said in this regard at pages 203 S.C.R.; 753
D.L.R.:
The simple statement in the indictment of the possession of
goods of foreign origin is not sufficient to support the discharge
of the evidential burden upon the Crown so as to require the
accused to meet it by an answer on a balance of probabilities.
As I have said, the reverse onus under s. 248 would be
impossible to discharge if it were sufficient simply to state
possession and foreign origin in the indictment.
The learned Chief Justice prefaced this with the
following statement at pages 202-203 S.C.R.; 752-
753 D.L.R.:
It is evident to me in this case that there is on the record no
rational or necessary connection between the fact proved, i.e.
possession of goods of foreign origin, and the conclusion of
unlawful importation which the accused under s. 248(1) must,
to avoid conviction, disprove. At what remove the particular
goods were imported is unknown. If the Crown is to have the
benefit of the reverse onus provisions of s. 248(1) it must at
least, in addition to proving foreign origin and possession of the
goods, show some knowledge or means of knowledge of the
circumstances of importation on the part of the accused which
would enable him to show, if that be the fact, that they were
lawfully imported. To require less could leave the accused with
an impossible burden of proof and would amount to an irrebut-
table presumption of guilt against him, depriving him of the
right to be presumed innocent under s. 2(f) of the Canadian
Bill of Rights.
I turn now to consider the nature of the offence
on which the Crown primarily relies, namely, the
breach of section 18 of the Customs Act. As
previously indicated, the primary submission is
that the plaintiff was in possession of two items of
jewellery of foreign origin which did not conform
to the entry form signed by her on October 20,
1980 and for which no other written report or
declaration had been shown to exist as required by
section 18 of the Act. Absent the latter, the goods
are said to have been forfeited automatically to the
Crown under subsection 180(1) and liable to be
seized accordingly.
In my opinion, section 18 of the Customs Act
imposes a public welfare offence in respect of
which the defence of due diligence is available: see
Ardekany v. Dom. of Can. Gen. Ins. Co. (1985),
67 B.C.L.R. 162 (S.C.).
R. on the information of Mark Caswell v. Cor
poration of City of Sault Ste. Marie, [1978] 2
S.C.R. 1299 is noteworthy for its categorization of
statutory offences into the three categories of mens
rea offences, public welfare or strict liability
offences, and offences of absolute liability. An
essential element of all three offences is that the
Crown is required to prove the doing of a prohib
ited or proscribed act. The Court characterized the
offence of pollution as a public welfare or strict
liability offence for which the defence of reason
able care or due diligence was available. In the
result, the court dismissed the appeal and cross-
appeal and directed a new trial because of the
insufficiency of evidence with respect to the
defence of due diligence.
Mr. Justice Dickson [as he then was] defined
this defence at page 1326:
This involves consideration of what a reasonable man would
have done in the circumstances. The defence will be available if
the accused reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent, or if
he took all reasonable steps to avoid the particular event. [My
emphasis.]
He went on to state at page 1328:
Proof of the prohibited act prima facie imports the offence,
but the accused may avoid liability by proving that he took
reasonable care.
Finally, the learned Judge proceeded to deline
ate the respective standards of proof at page 1325:
While the prosecution must prove beyond a reasonable doubt
that the defendant committed the prohibited act, the defendant
must only establish on the balance of probabilities that he has a
defence of reasonable care.
The postulate of the defendant's whole case, as
it seems to me, is that the onus rests entirely on the
plaintiff of proving that the jewellery in question
was lawfully imported into Canada by herself or
her mother and that the mere alleging of the
proscribed statutory violations in the Crown's
pleading is sufficient to discharge the evidential
burden of proof of unlawful importation.
The question that arises with respect to section
18 of the Customs Act is simply this: On whom did
the duty lie to make a written report or due entry
thereunder with respect to the seized and forfeited
items of jewellery?
The evidence is incontrovertible that the plain
tiff's mother had with her and was wearing the
gold bracelet and gold necklet at the time of her
arrival in Canada on June 6, 1981. It follows that
any duty to make written report or due entry with
respect to these items of jewellery lay upon the
mother. I accept the plaintiff's evidence that her
mother was delivered to the arrival area at the
airport in a wheelchair, after having been sepa
rately interviewed by a customs official and passed
through customs. I also accept the evidence of the
plaintiff that her mother had a slight understand
ing of spoken English but was totally unable to
converse in that language. The plaintiff was left
with the distinct impression that her mother had
been regularly passed through customs and was
entitled in consequence to some benefit of pre
sumption that everything had been done rightly
and according to rule.
The evidence also establishes that the plaintiff
duly completed the casual import entry form item
izing her personal effects and jewellery when she
arrived in Canada on October 20, 1980. The plain
tiff declared that the particulars of this entry were
true and complete to the best of her knowledge
and belief. The plaintiff testified under cross-
examination that she did not list the two pieces of
subject jewellery on the form because they were
not with her at the time. I consider this to be a
reasonable explanation and find that the casual
import entry form constituted a sufficient report in
writing by the plaintiff to customs officials, as
required by paragraph 18(b) of the Act. I also find
that the plaintiff then and there truly answered all
such questions with respect to the articles men
tioned in the form as were required of her and that
she made due entry thereof in accordance with
paragraph 18(c). Consequently, I am satisfied on
the evidence that there was no failure on the part
of the plaintiff herself to comply with the require
ments of section 18 of the Customs Act.
What of the defence allegation that the mother
committed the offence of failing to make written
report or due entry of the subject goods, thereby
triggering the application of subsection 180(1) of
the Act? Subsection 180(1) employs the words
"the" and "such" in reference to the person in
charge or custody of "any article mentioned in
paragraph 18(b)" as being the one required to
make a report in writing or due entry in respect
thereof. Failure to do so makes the particular
article liable to be seized and forfeited from the
person who committed the proscribed act and none
other. Must the sins of omission of the mother, if
any, necessarily be visited upon the daughter by
virtue of subsection 180(1) of the Act? I think not.
To hold that the section reaches out to include a
person, like the plaintiff, into whose hands the
goods have subsequently passed, without proof of
the commission of any offence under the Act by
that person, would be to ignore the plain and
literal meaning of the words of the statute in
context of its scheme. Moreover, the interpretation
sought by the Crown would negate any presump
tion of innocence within the principle of R. v.
Shelley, supra.
In my opinion, the defendant had the burden of
proving beyond reasonable doubt that the plantiff's
mother had committed the offence of failing to
make written report or due entry in respect of the
seized goods within the meaning of section 18 of
the Customs Act. The defendant failed to adduce
any evidence of the commission of an offence by
the mother, measured by whatever standard.
Instead, the defendant chose to rely on the reverse
onus provisions of section 248 as raising a pre
sumption of guilt from the mere fact that the
plaintiff was unable to produce evidence of the
making of a written report or due entry in respect
of the goods by her mother. In my view, this
imposes an impossible burden of proof on the
plaintiff and is tantamount to a presumption of
guilt by inference, contrary to the principle of R. v.
Shelley, supra. Furthermore, to paraphrase the
words of Mr. Justice Dickson in Sault Ste. Marie,
it would clearly violate "the principle that punish
ment should in general not be inflicted on those
without fault".
I must now consider the two remaining submis
sions of the defendant.
The first is the allegation that the unlawful
importation or entering inwards of the goods by
the plaintiff or her mother renders them liable to
seizure under sections 185 and 187 of the Customs
Act. Sections 185 and 187 read:
185. If any goods are unlawfully imported on the person or as
baggage, or among the baggage of any one arriving in Canada,
on foot or otherwise, such goods shall be seized and forfeited.
187. If any goods entered or attempted to be passed through
the customs are found that do not correspond with the goods
described in the invoice or entry, such goods may be seized and
forfeited.
I believe the uncontradicted evidence of the
plaintiff that she was not an importer of the goods
in question and did not cause them to be entered or
passed through customs. Her evidence also satis
fies me as to why the seized goods did not corre
spond with her casual entry import form. As for
the mother, I see no evidence importing the
offences of unlawful importation on her part. In
my opinion, the gravamen of the offence was not
established with the result that sections 185 and
187 of the Customs Act do not avail to support the
seizure and forfeiture.
Finally, the defendant pleads and relies on sec
tion 205 of the Act. It seems to me that this
section automatically falls to the ground once the
Crown elected to abandon the allegation of smug
gling. Even if that is not the case, it is my view
that section 205 creates a mens rea offence requir
ing the laying of a charge against the person
accused of its violation and thus has no application
to the circumstances of the present case.
In the result, I am of the opinion that the
defendant's failure to lead evidence to establish the
commission of an offence under any of the sections
of the Customs Act pleaded and relied on, must be
seen as being fatal to the seizure and forfeiture of
the subject goods. In any event, I consider that the
weight of evidence is amply sufficient to establish
that there was unintentional importation and sub
sequent innocent possession of the subject goods by
the plaintiff within the meaning of the defence of
reasonable care or due diligence as enunciated by
the Supreme Court of Canada in the case of The
Queen v. Sault Ste. Marie, supra. The plaintiff
therefore succeeds in her action and the defence
fails.
Counsel for the plaintiff moved at the conclu
sion of the trial that the statement of claim be
amended to include a claim that the plaintiff be
entitled to redeem the forfeited goods upon pay
ment of the sum of $1,168.40 assessed by the
Minister. Counsel for the defendant naturally
opposed the amendment sought. After hearing
extensive argument from counsel on the point, I
granted an amendment by adding a new paragraph
(b) in the relief sought portion of the statement of
claim after paragraph (a) thereof, to the following
effect:
(b) Alternatively, damages in lieu thereof.
Counsel were agreed that any assessment of
damages flowing from the defendant's inability to
return the seized items of jewellery consequent
upon a determination that the defendant was liable
to return the same to the plaintiff, would be made
the subject of a reference under Rule 500 [Federal
Court Rules, C.R.C., c. 663].
For the foregoing reasons, there will be judg
ment in favour of the plaintiff for the return by the
defendant to the plaintiff of the goods described in
the statement of claim and for damages in lieu
thereof in the event of the defendant's inability or
failure to return the said goods. The plaintiff shall
be entitled to recover against the defendant her
costs of action to be taxed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.