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In re Excise Act & a 1970 Chrysler Automobile
Trial Division, Walsh J.—Montreal, September 25; Ottawa, September 28, 1972.
Excise—Seizure of vehicle used in committing offence— Opposition by lien-holder—Not within statute—Excise Act, R.S.C. 1970, c. E-12, s. 164.
Pursuant to section 163(1)(a) of the Excise Act, R.S.C. 1970, c. E-12, the Crown seized an automobile used by D for transporting unlawfully manufactured spirits. D was subsequently convicted of that offence. Several months after the seizure an information was filed under section 114 for condemnation of the automobile. One M then, by a proceeding entitled "contestation and revendication of effects seized", sought an order under section 164(2) that her interest as a lien-holder in the seized automobile was not affected by the seizure on the ground that she was innocent of any complicity in D's offence.
Held, M's contestation and revendication should be struck out. Section 164 gives a lien-holder no right to oppose a seizure and moreover Ms proceeding was not brought within one month of the seizure as required by section 164(2).
The King v. Krakowec [1932] S.C.R. 134, applied.
MOTION.
Yvon Brisson for the Queen.
G. Latulippe for Ghyslaine Monette.
WALSH J.—According to the declaration in the record the contents of which are admitted in the pleading entitled "contestation and revendi- cation of effects seized" (translation) the automobile in question was seized on July 22, 1971 in accordance with the provisions of sec tion 163(1)(a) of the Excise Act, R.S.C. 1970, c. E-12, as having been used by Gaston Dubois for the transportation of unlawfully manufac tured spirits. By notice dated August 3, 1971 Dubois gave notice through his attorneys to Her Majesty the Queen that he claimed and intend ed to claim the said automobile. The outcome of this claim on his behalf does not appear from the record but counsel for Her Majesty indicat ed that it was not proceeded with. He also indicated that in due course Dubois was con victed and fined in accordance with the provi sions of section 163(2) of the Act. It was not until April 4, 1972, however, that the Informa-
tion asking for the condemnation of the automobile so seized was taken under the provi sions of section 114 of the Act.
Under the provisions of the said section 114 notice of this information must be processed in the office of the registrar, clerk or prothonotary of the Court and also in the office of the collec tor or chief officer in the excise division where in the goods have been seized, and such a notice was duly posted in the office of the Court on April 12, 1972. Subsection (2) of section 114 provides that: "Where the owner or person claiming the goods or thing presents a claim to the same and gives security and com plies with all the requirements in this Act in that behalf" the Court may then hear and determine the claim but this is subject to subsection (3) which reads as follows:
114. (3) No claim on behalf of any person who has given notice of his intention to claim before the posting of such notice as aforesaid shall be admitted, unless made within one week after the posting thereof; nor shall any claim be admitted unless notice thereof has been given in writing to the collector or superior officer within one month from such seizure.
and Dubois, who had on August 3, 1971, given notice of an intention to claim the automobile, does not appear to have made his claim within one week after the posting of the notice of the information seeking condemnation of the car, and the contestation and revendication of Dame Ghyslaine Monette, while produced on May 4, 1972, that is within one month of such notice, was not made within one month from the sei zure on July 22, 1971. In any event, her claim under section 164(2) of the Act would be merely to an order that her interests be not affected by the seizure, as a lien-holder inno cent of any complicity in the offence resulting in the seizure and that she had exercised rea sonable care with respect to Dubois, the lien- giver. Furthermore, her right to make the claim is limited by section 164(1) which reads as follows:
164. (1) Whenever any horses, vehicles, vessels or other appliances have been seized as forfeited under this Act any one, (other than the person accused of an offence resulting in such seizure or person in whose possession such horses, vehicles, vessels or other appliances were seized) who claims an interest in such horses, vehicles, vessels or other
appliances as owner, mortgagee, lien-holder or holder of any like interest may within thirty days after such seizure apply to any judge of any Superior Court of a province of Canada or to a judge of the Exchequer Court for an order declaring his interest.
which again limits the right to a period of thirty days after the seizure.
The Supreme Court case of The King v. Max Krakowec et al. [1932] S.C.R. 134, which dealt with section 181 of the Excise Act (R.S.C. 1927, c. 60) which contained substantially simi lar provisions to the present section 163, and with section 124 of that Act which was the same as the present section 114, held, in part as follows:
A truck in the possession and use of its purchaser under a conditional sale agreement, by which the property in and title to it remained in the vendors until payment in full and on which a balance remained unpaid, was seized under circumstances which, as held on facts admitted, must be taken to have made it liable to forfeiture to the Crown under said s. 181. Held that it was liable to forfeiture not only as against the person in whose possession it was seized but also as against the said vendors, although the latter had no notice or knowledge of the illegal use which was being made of it.
The court is not vested under s. 124 of the Act with any discretionary power in the matter. It must decide according to law.
See also The King v. Central Railway Signal Co. Inc. [1933] S.C.R. 555 which also dealt with section 124 of the Act as it then was. It is evident that a lien-holder such as Dame Ghys- laine Monette cannot oppose the seizure by the Crown or revendicate the effects seized but that her rights must be limited to those set out in section 164. The contestation and revendication brought by Dame Ghyslaine Monette in the present proceedings could not be sustained, therefore, for two reasons:
(a) it was brought beyond the legal delays; and
(b) its conclusions ask for relief which could not be granted by the Court.
It follows that the motion for striking out this contestation and revendication by virtue of Rule 419 on the ground that it discloses no reasonable cause of defence and that it is an
abuse of the process of the Court should be granted with costs.
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