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The Queen (Plaintiff) v.
Sun Parlor Advertising Company, Warren Parr and Adelaide Benton (Defendants)
Trial Division, Urie J.—Windsor, October 16; Ottawa, October 22, 1973.
Customs—Failure to report imported goods to customs officer—Automatic forfeiture—Customs Act, R.S.C. 1970, c. C-40, secs. 180, 205.
On several occasions between 1968 and 1970 defendants imported certain photographic supplies from the United States at Windsor, Ontario, by automobile. On no occasion did they make a written report respecting the imported goods to a customs officer and on each occasion they were permitted to pass without paying duty. The goods were in fact dutiable.
Held, while the goods were not "smuggled or clandestine ly introduced into Canada" within the meaning of section 192 of the Customs Act, R.S.C. 1970, c. C-40, an automatic forfeiture of the goods occurred under section 180 for failure to make a written report of the goods to a customs officer and under section 205 for having possession of goods unlawfully imported.
The King v. Bureau [1949] S.C.R. 367; Marun and Minogue v. The Queen [1965] 1 Ex.C.R. 280, referred to.
ACTION. COUNSEL:
Paul Evraire for plaintiff. J. G. Quinn for defendants.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Bondy, Kirwin & Associates, Windsor, for defendants.
URIE J.—This is a claim on behalf of the plaintiff to recover the sum of $2122.03 from the defendants pursuant to the provisions of the Customs Act, being the duty paid value of goods imported by the defendants from the United States during the period 1 August 1969 to 20 November 1970 and for a further sum of $199.14 representing the duty payable on goods imported by the defendants from the United
States during the period 26 June 1968 to 30 July 1969.
The parties filed an Agreed Statement of Facts, a summary of which will concisely set forth the issues.
The defendants, Warren Parr and Adelaide Benton, were, at all material times from June 26, 1968 to November 20, 1970, partners in Sun Parlor Advertising Company, a printing enter prise licensed as a manufacturer under the Excise Tax Act and carrying on business in the City of Windsor in the Province of Ontario. On October 2, 1964 the defendant Warren Parr, on behalf of Sun Parlor Advertising Company, wrote to the Department of National Revenue, Customs and Excise Division, requesting a ruling as to whether or not offset printing plates, both metal and paper, and chemicals for these plates and sheet film were allowed to enter Canada from the United States duty free. An acknowledgement of the receipt of this letter was given by the Department on October 16, 1964 and on October 23, 1964 J. B. Finn, on behalf of the Department, wrote to the defend ant, Sun Parlor Advertising Company, to the attention of the defendant Parr, in part as follows:
In order to advise you definitely in this matter the Depart ment will require descriptive literature published by the manufacturer concerning the nature and function of the offset printing plates and the sheet film. With respect to the chemicals the Department will require literature in which their components are identified. In the absence of such literature the Department will require clearly identified sam ples of the chemicals which you propose to import.
On January 6, 1965 Mr. Parr replied to Mr. Finn's letter as follows:
Concerning your letter of October 23, 1964, we are sending you requested literature and information which was request ed by you at that time.
Enclosed please find descriptive literature published by the manufacturer concerning the nature and function of offset printing plates and sheet film.
Enclosed you will find samples of various newspapers and school books which we propose to do from the materials listed above.
If you need additional information concerning the tariff classification of these plates, chemicals, and films, please let us know.
A form letter acknowledging Mr. Parr's letter of January 6, 1965 was sent to the defendants. All parties agree that these letters were despatched and received. However, on Febru- ary 19, 1965, Mr. Finn wrote to Sun Parlor Advertising Company to the attention of Mr. Parr the following letter which Mr. Parr denies ever having received:
This is further to the Department's interim reply of January 12, 1965 referring to your letter of January 6th concerning the tariff classification of offset printing plates, chemicals and films which you propose to import for use in the production of various articles of printed matter.
Based on the information provided I may advise that offset printing plates are dutiable according to the component material of chief value or the finish thereon. If the compo nent material is aluminum tariff item 354 applies at 221% ad valorem.
Blank Lithographic film imported for use in the production of printing plates is dutiable under tariff item 187 at 20% ad valorem.
In order to advise you concerning the tariff classification of the chemicals to which you refer the Department will require samples, in the condition as imported, along with copies of the labels affixed to the containers in which the chemicals are imported.
The above-mentioned rates of duty are those applicable under the Most-Favoured-Nation Tariff.
You are, no doubt, familiar with the application of sales tax.
Both Mr. Parr and Mrs. Benton further stated that no further correspondence was directed to the Department by either of them on behalf of the defendant Sun Parlor Advertising Company nor did they receive any further correspondence from the Department.
During the period from June 26, 1968 to November 20, 1970 the defendant Parr admit ted having imported from the United States photographic supplies having a duty paid value of $3656.97. The actual value of the goods was $3201.85, the balance of the duty paid value being the duty imposed of $455.12. The parties agree that at the time of importation the defend ant Parr did not make a written report to the collector or proper officer at the custom-house of all the goods in the vehicle and of the quanti-
ties and values of such goods, nor did he make due entry of the said goods in accordance with the requirements of section 18 of the Customs Act. Neither did he deliver to the collector or other proper officer at the port of entry an invoice or a bill of entry for such goods as required by section 20 of the Customs Act, nor did he pay any duty in respect of the said goods as required by section 22 of the said Act.
None of the goods imported were warehoused but were used by the defendant Sun Parlor Advertising Company for the most part in pro ducing books to be shipped back to the United States for the Detroit police and firemen. Ulti mately Sun Parlor Advertising Company received from the Department of National Revenue a letter of demand for payment of the duty paid value of the goods in question in the sum of $3656.97 followed after the requisite time lapse by a notice of seizure. The defendant Sun Parlor Advertising Company objected to the seizure following which a ministerial deci sion was given to Sun Parlor Advertising Com pany confirming the decision and the defendant Sun Parlor Advertising Company, through its solicitors, subsequently notified the Department of non-acceptance thereof.
The defendant Benton testified that on August 5, 1964, she brought in from the United States in her automobile what was described as "photo base paper" having a value of $42.82 and was given an appraisal note by a customs officer at the Port of Windsor showing that there was no duty payable with respect thereto. The defendant Parr in his testimony stated that he wrote the letters to the Department of National Revenue after the importation of the goods by Mrs. Benton above referred to because some printers in Windsor had had trouble in importing photographic material for the printing trade and others had not. However, he stated that he never received a definite ruling in reply to his inquiry from the departmental officials in Ottawa and admitted that he had not made any further inquiries except through the local office at Windsor. During the period in question, namely between June 26, 1968 and November 20, 1970, Mr. Parr admitted the importations referred to in the Exhibits to the
Agreed Statement of Facts but stated that on each occasion he had brought the goods in the back seat of his Renault automobile, had been questioned by a uniformed customs officer at either the Windsor bridge or tunnel from Detroit, had advised that official that the ma terial was "stuff for an American book" and when asked if it was going back to the United States, he answered in the affirmative and in each of 31 cases was permitted to pass without filing any written material or paying any duty. The material he was bringing in was bulky, was plainly visible in the back seat of his car and in each case had attached thereto a packing slip listing the contents of the boxes. The packing slip did not set forth the value of the individual items contained in the boxes and, he states, was never examined by the customs official. The importations were used in the production of books for use by the Detroit police and firemen.
The goods were ordered from a supplier in Detroit and the invoice was sent by that supplier to the defendant Sun Parlor Advertising Com pany at its Windsor address. The goods them selves were delivered to the Detroit Eagles Lodge, of which Mr. Parr was a member, and he would pick the goods up when he attended meetings of the Lodge, usually on Wednesday or Saturday nights. The importations, therefore, would generally take place between the hours of 11.00 p.m. and 12.00 midnight. He admitted that he had never sent samples of the importa tions to the Department of National Revenue at Ottawa as requested by Mr. Finn although he believes that he sent a piece of photo based paper to him.
Mr. Parr said, however, that on a number of occasions to support his position with the cus toms officer at the port of entry that the goods in his car were duty free, he produced the appraisal note (Exhibit D) which was obtained by Mrs. Benton on August 5, 1964.
An importer of goods from a foreign country has three obligations under the Customs Act:
(a) to declare the goods in the manner pre scribed by section 18 of the Act,
(b) to enter the goods in the manner pre scribed by sections 20, 21 and 51 of the Act, and
(c) unless the goods are warehoused, to pay duty on the imported goods as required by section 22 of the Act.
The applicable sections read 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 respect ing the articles mentioned in paragraph (b) as the collector or proper officer requires of him and make due entry thereof as required by law.
20. The person entering any goods inwards shall deliver to the collector or other proper officer
(a) an invoice of such goods showing the place and date of purchase and the name or the style of the firm or person from whom the goods were purchased, and a full descrip tion thereof in detail, giving the quantity and value of each kind of goods so imported; and
(b) a bill of entry of such goods, in such form as is appointed by a competent authority, fairly written or printed, or partly written and partly printed, and in dupli cate, containing the name of the importer, and if imported by water, the name of the vessel and of the master, and of the place to which bound, and of the place, within the port, where the goods are to be unladen, and the descrip tion of the goods, and the marks and numbers and con tents of the packages, and the place from which the goods are imported, and of what country or place such goods are the growth, produce or manufacture.
21. The quantity and value of any goods shall always be stated in the bill of entry thereof, although such goods are not subject to duty, and the invoice thereof shall be pro duced to the collector.
22. (1) Unless the goods are to be warehoused in the manner provided by this Act, the importer shall, at the time of entry,
(a) pay or cause to be so paid, all duties upon all goods entered inwards; or
(b) in the case of goods entered in accordance with the terms and conditions prescribed by regulations made under subsection (3), present in respect of the duties upon such goods a bond, note or other document as prescribed by such regulations;
and the collector or other proper officer shall, immediately thereupon, grant his warrant for the unlading of such goods, and grant a permit for the conveyance of such goods further into Canada, if so required by the importer.
Counsel for the plaintiff argued that since the defendant Parr admitted that he did not comply with any of the sections in any of the 31 impor tations at issue in that he did not make a report in writing to the collector at the custom-house, did not deliver to the collector invoices or bills of lading and did not pay duties, the goods were, therefore, unlawfully imported and were automatically forfeited under section 180 or 192 or 205 of the Act. Counsel pointed out that the burden of proof that they are not so liable lies upon the importer by virtue of section 248 of the Act.
The above mentioned sections read 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.
(2) If the articles so forfeited or any of them are not found, the owner at the time of importation and the import er, and every other person who has been in any way connected with the unlawful importation of such articles shall forfeit a sum equal to the value of the articles, and whether such articles are found or not ... .
192. (1) If any person
(a) smuggles or clandestinely introduces into Canada any goods subject to duty under the value for duty of two hundred dollars;
(b) makes out or passes or attempts to pass through the custom-house, any false, forged or fraudulent invoice of any goods of whatever value; or
(c) in any way attempts to defraud the revenue by avoid ing the payment of the duty or any part of the duty on any goods of whatever value;
such goods if found shall be seized and forfeited, or if not found but the value thereof has been ascertained, the person so offending shall forfeit the value thereof as ascertained, such forfeiture to be without power of remission in cases of offences under paragraph (a).
205. (1) If any person whether the owner or not, without lawful excuse, the proof of which shall be on the person accused, has in possession, harbours, keeps, conceals, pur chases, sells or exchanges any goods unlawfully imported into Canada, whether such goods are dutiable or not, or whereon the duties lawfully payable have not been paid, such goods, if found, shall be seized and forfeited without power of remission, and, if such goods are not found, the person so offending shall forfeit the value thereof without power of remission.
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 representing Her Majesty.
Plaintiff's counsel also argued that the goods were smuggled or clandestinely introduced into Canada and forfeiture therefore automatically occurred under section 192. The word "smug- gle" is defined in the Shorter Oxford Dictionary as
To convey (goods) clandestinely into (or out of) a country or district, in order to avoid payment of legal duties, or in contravention of some enactment; to bring in, over, etc. in this way.
The element of secrecy or concealment import ed by the use of the word "clandestinely" both in the definition and in the section leads me to the conclusion that section 192 is not applicable in this case. The defendant testified that in each of the instances at issue he brought the goods into Canada in the back seat of his small Renault automobile in the full view of any cus toms inspector or anyone else who cared to look. His testimony in this regard was in no way contradicted and no other evidence was adduced suggesting that the goods were import ed in any other way. The Fotorama plates were frequently 251" x 36" in size and the sheets of
"photo based paper" known under the trade name "Ortho" were sometimes of a 20" x 24" size. These, with other imported materials, were contained in sealed boxes to protect them from the light which boxes, therefore, must have been highly visible to any inspecting officer reasonably careful in carrying out his duties. One can imagine that in one or two of the thirty-one importations the boxes might not have been observed by such an inspecting offi cer but it is difficult to conceive of their not being seen on each occasion. I do not think, therefore, that the goods were introduced into Canada by smuggling or clandestinely as con templated by section 192 of the Act and the forfeiture that follows the unlawful entry, if any, does not arise under this section.
I must here, however, take note of the fact that the Deputy Minister in his notice dated July 20, 1973, (Exhibit 40 in the Agreed Statement of Facts) stated that the charges for infractions of the Customs Laws by the defendant Sun Parlor Advertising Company were "that the goods listed in Schedule 'A' were smuggled or clandestinely introduced into Canada". Since I find that the goods were not smuggled nor clandestinely introduced to Canada is the for feiture thus void?
The question was considered in a different set of circumstances in The King v. Bureau [1949] S.C.R. 367. At page 378 Rinfret C.J., stated:
Nor, with respect, do I agree with the learned President ([1948] Ex.C.R. 257) that in the Exchequer Court of Canada the case had to be decided exclusively on the reasons given by the Minister when he ordered the seizure and forfeiture of the cigarettes and automobile. Under Section 177 [now S.163], dealing with the reference by the Minister to the Court, the Court is directed to hear and consider such matter upon the papers and evidence referred and upon any further evidence which, under the direction of the Court, the owner or claimant of the thing seized or detained, or the person alleged to have incurred the penalty, or the Crown, produces, "and the court shall decide according to the right of the matter". 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.
On the basis of the above authority then, I am of the opinion that I am not limited to the finding of the Deputy Minister as disclosed in his Notice of Forfeiture and am entitled to examination of all of the evidence adduced at the trial of this action to determine whether or not forfeiture follows any unlawful entry under either section 180 or 205 of the Act.
There seems to be no doubt whatsoever that the defendant Parr failed to comply with many of the requirements of sections 18, 20, 21 and 22 of the Act but it was argued by his counsel that since, according to his testimony which is uncontradicted, he did attend at the custom- house on each of the 31 occasions and made an oral declaration following which he was informed that the goods were not dutiable and that he might pass, that he had in fact complied with the spirit, if not with the letter, of those sections. He relies, firstly, on the fact that the defendant Mrs. Benton, in 1964, received an appraisal note indicating that goods of a like nature were not dutiable which appraisal note was, according to the defendant Parr, produced by him on several occasions to the inspecting officer at the port of entry and that the inspect ing officer merely followed the precedent creat ed by the 1964 entry in permitting the goods through duty free. Secondly, he relies on Marun and Minogue v. The Queen [1965] 1 Ex.C.R. 280 as authority for the proposition that where a practice is adopted by customs officials in permitting goods to enter Canada without being declared in the manner contemplated by the Customs Act but by oral declaration alone then since oral declarations had been made in each importation made by the defendant Parr, the entries were not unlawful and there is no man datory forfeiture under section 180(1) and (2) or section 205(1).
I do not agree that the above mentioned case is authority for the proposition cited because, as Cattanach J. pointed out, while it is quite true that travellers returning to Canada are not
required to declare in writing, but only verbally, a great many articles such as clothing and jewel lery being worn, their suitcases and the like goods, acquired in Canada, it is for the very practical reason that every person of necessity must have most of these items and they are not subject to tax or duty in any event. In the case at bar I am not dealing with goods acquired in Canada., The matter at issue involves goods acquired in the United States being brought into Canada by Canadian citizens. It has not been established to my satisfaction that any customs official is empowered to waive compliance with obligations imposed by the Customs Act upon an importer of goods acquired out of the coun try nor that if he does improperly so waive that an importer is relieved of those obligations and from the consequences of his failure to comply therewith. In fact, by implication the defendant Parr has acknowledged that he recognized that there might be duty payable in that he wrote to the Department in 1964 requesting a ruling thereon. Moreover, in his examination for dis covery he stated that having received no further reply from the officials in Ottawa, he pursued the matter with the Port of Windsor officials and was told that his importations were duty free, although he had no recollection of whom the official was who so advised him. Thus, I conclude that Mr. Parr was aware, to some extent at least, of his obligations under the Customs Act and, therefore, ought to have ensured that he fully complied with such obligations.
I share the opinion of Cattanach J. that the provisions of sections 180 and 205 are manda tory and forfeiture occurs automatically upon unlawful importation of goods by virtue of sec tion 2(1) of the Customs Act, the relevant por tion of which reads as follows:
"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 neces sary, but the forfeiture shall accrue at the time and by the commission of the offence, in respect of which the penal ty of forfeiture is imposed;
Unlawful importation arises through the defendants' failure to comply with the provi-
sions of section 18(b) of the Act and, therefore, under section 180(1) the goods are forfeited, and by virtue of section 2(1) such forfeiture takes place at the time of the commission of the offence. Cattanach J. said in the Marun case (supra) at page 295:
The forfeiture is not brought about by any act of the Customs officials or officers of the Department, but it is the legal unescapable consequence of the unlawful importation of the goods by the suppliant, Marun. The goods thereupon became the property of the Crown and no act by any officer of the Crown can undo that forfeiture.
The provisions appear harsh but they are, in my opinion, clear and unambiguous and while I have some sympathy for the defendants it is clear that their failure to declare and enter the imported goods as required by sections 18, 20, 21 and 22, at least until they had obtained the anticipated favourable ruling which they had requested, has caused their misfortune. Since the imported goods cannot be found, having been used in the production of the printed ma terial which the defendant Parr said was returned to the United States, I must apply the provisions of section 180(2) and I find that the plaintiff is entitled to judgment against the defendants in the sum of $2122.03. This is less than the total duty paid value of the goods imported during the period in question, namely June 26, 1968 to November 20, 1970, the total of which was $3656.97. The reason for the lesser forfeiture is due to the fact that under section 265 of the Act only those unlawful importations made within three years from the date of commencement of the action are subject to forfeiture, the total of which was not disput ed and was in the said sum of $2,122.03. Since there is no such time limitation in respect of payment of duty, the plaintiff is also entitled to a judgment for the duty payable on importations made between June 26, 1968 and July 30, 1969 in the sum of $199.14.
In my view the customs officials both at the Port of Windsor and at the Department of National Revenue, Customs & Excise in Ottawa, were negligent in the discharge of their duties in permitting the defendants to enter goods into Canada over a relatively long period
of time without being properly declared and without payment of duty and in failing to give them the ruling which they requested in 1964. For this reason the plaintiff will not be entitled to costs.
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