[2013] 3 F.C.R. D-3
Customs and Excise
Appeal from Federal Court decision (2012 FC 723) rejecting judicial review on basis not having jurisdiction to review determination that Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 12 breached since appellant not proceeding by way of action as required by s. 30—When boarding international flight, appellant asked by Canada Border Services Agency (CBSA) whether carrying $10 000 or more in cash—Appellant declaring that while carrying cash, having less than $10 000—In fact, appellant carrying US$9 800, C$335, i.e. more than $10 000 after exchange rate applied—Funds seized by CBSA, becoming forfeit to Crown as provided by Act, s. 23—Under Act, s. 25, decision that person breaching s. 12 by failing to declare possession of $10 000 or more in cash may be contested by seeking determination by respondent, which in turn may be challenged by commencement of action—In response to appellant’s request for ministerial determination, respondent determining that s. 12 in fact breached (section 27 decision), confirming forfeiture of funds to Crown (section 29 decision)—Appellant challenging both determinations by way of judicial review, not action—Federal Court finding evidence appellant providing to respondent’s delegate insufficient to establish that funds coming from legitimate source—Appellant contesting, in particular, exchange rate used by CBSA—Federal Court correctly determining that legality of section 27 decision not properly before it in application for judicial review—Parliament specifically providing that attacks on correctness of decision as to whether s. 12 breached must be commenced by way of action—While Federal Court having discretion to ensure that no proceeding rejected because commenced by wrong originating document (Federal Courts Rules, SOR/98-106, r. 57), that discretion subject to opening words of Rules, r. 63 directing Court to respect Parliament’s choice as to form of originating document in particular case—Therefore, respondent’s delegate’s decision declining to grant appellant relief from forfeiture under Act, s. 29 constituting only decision properly before Federal Court—Based on evidence before respondent’s delegate, decision thereof that not satisfied funds coming from legitimate source reasonable—Appellant submitting to respondent’s delegate that U.S. money seized coming from inheritance from American relative; that money used by appellant, daughter in common business—Daughter making statutory declaration of having given undetermined amount of U.S. funds to appellant—Federal Court correct in finding that respondent not acting unreasonably by failing to give evidence intended effect—Person holding undocumented funds in which legitimacy thereof having to be established not advancing cause by presenting evidence of undocumented funds in hands of another—Undocumented herein meaning funds which cannot be accounted for by financial or other records which individual expected to maintain when operating business—In context of issues sought to be addressed by Act, such as money laundering, financing of terrorism, government entitled to ask for reasonable explanation of source of currency in excess of prescribed limit found on persons leaving Canada—Appellant’s explanations unverifiable, amounting to no explanation at all—Thus, Federal Court entitled to find that respondent’s delegate’s decision reasonable—Self-serving afterthe-fact explanations not having same probative value as documents prepared prior to seizure by third parties in normal course of financial transactions—In present case, daughter’s statutory declaration imprecise, unverifiable—Appeal dismissed.
Docherty v. Canada (Public Safety and Emergency Preparedness) (A-323-12, 2013 FCA 89, Pelletier J.A., judgment dated March 27, 2013, 9 p.)