T-3288-75
David Robert Allardice (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Halifax, November 23,
1977; Ottawa, January 24, 1978.
Customs and excise — Seizure and forfeiture — Yacht,
goods and equipment seized and released on payment of
deposit — Seized a second time, and released on payment of
larger deposit — Whether or not the goods unlawfully import
ed and subject to seizure and forfeiture — Whether or not the
second seizure was a nullity, thereby requiring the return of
the second deposit — Customs Act, R.S.C. 1970, c. C-40, ss.
2(1),(3), 177, 183, 205(1), 231(1), 237, 239, 242, 248(1),(2) —
Customs Tariff R.S.C. 1970, c. C-41, Schedule A, Tariff Item
70320-1.
This is an action for the recovery of deposits paid by plain
tiff, a Canadian citizen, following the seizures of his yacht and
goods and equipment aboard by customs officers. On June 25,
plaintiff attended the customs office in Halifax and made a
formal declaration. He returned to Dartmouth in September
when, on September 16, the R.C.M.P. seized the yacht and
certain goods on board, which were released to him on deposit.
On September 20, the R.C.M.P. seized the yacht and certain
goods and equipment which were released upon payment of a
further deposit. The Crown submits that the seizures were valid
because of false entries and declarations by the plaintiff. The
plaintiff takes the basic position that none of the goods seized
were unlawfully imported into Canada or otherwise subject to
forfeiture, and alternatively claims that the second seizure of
the yacht was a nullity, and that the deposit paid in respect of
that seizure should be returned to him. (The burden is on the
plaintiff to show the Crown had no right under the Customs
Act to carry out the forfeitures.)
Held, the action is dismissed. Under the circumstances of
this case, the customs officers were fully justified, in fact and in
law, in seizing the goods and the vessel. The expressions
"seizure" and "forfeiture" must receive the interpretation
which best protects the revenue and must not be construed so as
to render any subsequent act necessary to complete the forfeit
ure. Forfeiture is established by the commission of the offence,
and the actual seizure or seizures by customs officers are not
necessary. Once the vessel and goods were forfeited to the
Crown, the Crown had every right to exact all the duties, taxes
and penalties pertaining thereto, whatever the number of sei
zures subsequently effected by the customs officer.
R. v. Bureau [1949] S.C.R. 367, applied. Kenzik v. The
Queen [1954] Ex.C.R. 153, referred to.
ACTION.
COUNSEL:
S. Bruce Outhouse for plaintiff.
A. R. Pringle for defendant.
SOLICITORS:
Blois, Nickerson, Palmeter & Bryson, Hali-
fax, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
Dust J.: This is an action for the recovery of
the sum of $14,197.42 deposited by plaintiff fol
lowing the seizures of his yacht Rebel and goods
and equipment on board by customs officers in
Halifax on September 16 and 20, 1974.
In paragraph 19 of the statement of defence,
defendant pleaded that plaintiff's action was
barred by reason of subsection 158(2) of the Cus
toms Act' which provides that proceedings for
recovery of such deposits must be instituted within
six months. Crown counsel, however, waived that
plea at the opening of the trial.
These facts are admitted by the pleadings:
Plaintiff is a Canadian citizen, born in Vancou-
ver, British Columbia, and was at all material
times the owner of the Rebel, a vessel of British
registry. On May 19, 1974, he arrived at Dart-
mouth, Nova Scotia, on board his yacht and
reported to customs officers who came on board.
On June 25, he attended the customs office in
Halifax and made a formal declaration. He
returned to Dartmouth in September when, on
September 16, the R.C.M.P. seized certain goods
on board which were released to him on payment
of a deposit. On September 20, the R.C.M.P.
seized the Rebel and certain goods and equipment
thereon which were released upon payment of a
further deposit. (In fact the Rebel was subjected to
both seizures.)
' R.S.C. 1970, c. C-40 and amendments thereto.
Plaintiff made a written submission for the
return of his deposit but was notified that a deci
sion under section 163 of the Act had now been
rendered, that the deposit of $13,813.38 with
respect to the second seizure was to be forfeited in
its entirety and that the deposit of $730.04 follow
ing the first seizure was to be forfeited to the
extent of $385.04.
The Crown submits that the seizures were valid
because of false entries and declarations by the
plaintiff. The plaintiff takes the basic position that
none of the goods seized were unlawfully imported
into Canada, or otherwise subject to forfeiture,
and, in the alternative, claims that the second
seizure of the Rebel was a nullity and that the
deposit with respect thereto should be returned to
him.
The burden, of course, is on the plaintiff to show
that the Crown had no right, under any provision
of the Customs Act, to carry out the forfeitures.
The Crown is not limited to the reasons given by
the Minister or the grounds invoked on the cus
toms documents. The Court may declare the for-
feitures valid on any proven contravention of the
Act leading to forfeiture (vide The King v.
Bureau 2 , Kenzik v. The Queen 3 ).
When plaintiff first met the customs officers on
board the Rebel on May 19, 1974, he filled out a
vessel report for the Rebel and completed a
Canada customs entry for one bottle of liquor.
According to Officer W. F. Kavanaugh's evidence
at the trial, plaintiff stated that he had purchased
only the yacht and the liquor while abroad.
Plaintiffs explanation is that he considered
some of the items on board to be part of the vessel
and that he simply forgot to declare the other
goods later found on the Rebel.
The statement of goods seized lists the following
items:
2 [1949] S.C.R. 367.
3 [1954] Ex.C.R. 153.
On the first seizure (Exhibit 10):
1 brass "Hamilton" deckwatch
2 pair Nemrod Baleaces skin diving flippers
1 Denia skin diving mask
1 Equinaut skin diving mask
1 rubber skin diving wet suit
1 Honda gas operated generator
1 pair S N S binoculars
On the second seizure (Exhibit 11):
1 42ft. fiberglass yacht "Rebel"
1 Damcon R. T. 101 radio
1 typewriter
1 Sextant
1 Hand held distress radio
1 Zodiac rubber raft
1 Beaufort life raft
It is not inconceivable that plaintiff might have
considered some of the above items to be part of
the vessel, as they are closely related to the yacht
and used in the operation thereof. It is not
unthinkable that he might also have forgotten to
declare the other articles on board. These things
do happen. But there is a duty to declare all, and
ignorance of customs requirements, or a faulty
memory, are no excuse. However, these two
offences alone, without more, would not have led
the customs officers to impose such a severe
penalty.
As the plaintiff could not prove ownership of the
Rebel, Kavanaugh instructed him to report to the
customs office the following day. At the office, he
was requested to obtain a bill of sale to substanti
ate his purchase of the vessel. Plaintiff undertook
to obtain same from Liverpool where he had pur
chased the yacht and to wait in Halifax for the
document.
On June 10, the plaintiff accompanied by John
Rytter, a friend on board for the voyage, returned
to the customs office to declare the Rebel for entry
purposes. He was interviewed by E. T. Connolly,
the Appraisal Supervisor for the Port of Halifax.
The latter testified at the trial that he asked
plaintiff the usual questions and was informed by
him that he had been abroad for more than a year
and had not returned to Canada during that
period. Plaintiff was issued a temporary admission
Permit, as he did not yet have the requested bill of
sale.
According to Officer Connolly, the plaintiff
reported back to the customs office on June 25,
with two companions, a male and a female, and
presented a bill of sale. A B-4 Entry (entry for
settlers, summer settlers, request and returning
residents) was completed by Officer Barry Mitch-
ell and signed by the plaintiff.
Officer Mitchell testified that he would not have
completed a B-4 Entry unless he was satisfied by
the answers of the plaintiff that the latter had
purchased the yacht and other goods for personal
use while absent from Canada for a period of at
least one year. Officer Connolly was also present
on that occasion.
Tariff Item 70320 4 provides for free entry of
goods imported by certain persons including a
former resident of Canada returning after an
absence of not less than one year. It reads:
Tariff British Most- General
Items Prefer- Favoured- Tariff
ential Nation
Tariff Tariff
70320-1 Goods (not including alcoholic bever
ages, cigars, cigarettes and manu
factured tobacco) imported by a
member of the Canadian Forces or
an employee of the Canadian
Government, or by a former resi
dent of Canada returning to
Canada to resume residence there
in, and acquired by him during an
absence from Canada of not less
than one year for personal or
household use and actually owned
by him abroad and in his posses
sion and use for at least six months
prior to his return to Canada Free Free Free
The Minister may by regulation
exempt any goods or classes of goods
from the six-month ownership, pos
session and use requirement set out in
this item.
Goods entitled to entry under this
item shall be exempt from all imposts
notwithstanding the provisions of this
Act or any other Act.
Any goods imported under this
item which are sold or otherwise dis
posed of within twelve months after
importation are subject to the duties
and taxes otherwise prescribed.
Officer Connolly was adamant in his recollec
tion that the plaintiff did say he had not returned
to Canada during the past year and that he had
lived on board the Rebel during that period. As it
4 R.S.C. 1970, c. C-41, Schedule A.
turns out, it was admitted by both parties at the
opening of the trial that plaintiff did return to
Canada between April 17, 1973 and May 19,
1974, for a total of at least 63 days, and that his
sojourn outside the country during that period was
of less than one year. In his answer to pre-trial
interrogatories plaintiff stated that he made four
separate trips to Canada during that specific
period.
It is argued by his counsel that "plaintiff never
claimed the benefit of the tariff item (Item 70320)
and probably never even knew that it existed, at
least in specific terms". Also, that "plaintiff
merely answered the questions put to him by the
Customs Officers and based on those answers the
Customs Officers took it upon themselves to
invoke the tariff item".
These explanations do not really impeach the
credibility of the customs officers whose evidence I
accept as being truthful, forthright disinterested,
and supported by the documents in evidence and
the sequence of events. Moreover, plaintiff was not
recalled to rebut their testimony in that regard.
Neither of his two companions testified in support
of his position. They are both on the West Coast
and counsel for the plaintiff intimates that the
expense and inconvenience involved in their
attendance far outweigh every possible benefit to
be gained by their evidence. That may very well be
an accurate assessment of the situation.
Plaintiff objected at the trial to the admission of
a letter dated December 30, 1974, from Officer
Connolly to another customs officer reporting the
events of the seizures of the Rebel on the ground
that the report was made some six months after
the event. I then reserved my decision. After con
sulting the authorities, perusing the document and
reflecting on the matter, I have come to the con
clusion that the letter should not be admitted
because it lacks the requisite contemporaneity, it
might be considered as self-serving, and it is not
really part of the res gestae. In any event, the
witness showed a clear and solid recollection of the
events and did not need the document to refresh
his memory at the trial.
The plaintiff cruised up the St. Lawrence to
Montreal during the summer months and returned
to Dartmouth, when on September 16, 1974,
R.C.M.P. Corporal B. E. Robinson of the Customs
and Excise Division effected the first seizure of the
undeclared items found on board. On September
20, he carried out a second seizure. He testified
that the second seizure resulted from the informa
tion freshly obtained that the plaintiff had in fact
been back to Canada during the year and that he
considered plaintiff's entry of June 25, 1974, a
false entry.
The following sections of the Act are pertinent:
177. If after the master of any vessel has made his report
inwards, any goods are found on board such vessel or landed
therefrom that have not been reported, such goods shall be
seized and forfeited, unless it appears that there was no fraudu
lent intention, in which case, the master shall be allowed to
amend his report.
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.
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.
231. (1) All goods shipped or unshipped, imported or
exported, carried or conveyed, contrary to this Act or to any
regulation, and all goods or vehicles, and all vessels, with
regard to which the requirements of this Act or any regulation
have not been complied with, or with respect to which any
attempt has been made to violate the provisions of this Act or
any regulation, are liable to forfeiture.
237. If any entry passed by any customhouse is false in any
particular to the knowledge of any person connected with the
making thereof, all the packages and goods included or pre
tended to be included, or which ought to have been included in
such entry, shall be seized and forfeited.
239. Any person required by this Act, or by any other law,
to answer questions put to him by any officer, who refuses to
answer or does not truly answer such questions, shall, in
addition to any other penalty or punishment to which he is
liable, incur a penalty of four hundred dollars.
242. Every person who, without the permission of the officer
or person who seized the same or of some competent au
thority, whether pretending to be the owner or not, either
secretly or openly, and whether with or without force or
violence, takes or carries away any goods, vessel, vehicle or
other thing which have been seized or detained on suspicion, as
forfeited under this Act, before the same have been declared by
competent authority to have been seized without due cause,
shall be deemed to have stolen such goods, being the property
of Her Majesty, and is guilty of theft.
248. (1) In any proceedings instituted for any penalty, pun
ishment 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 such 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
Majesty or upon the person representing Her Majesty.
Under the circumstances the customs officers
were fully justified, in fact and in law, in seizing
the goods and the vessel.
There now remains plaintiff's alternate position,
that the second seizure of the Rebel was a nullity.
Plaintiff claims that if the first seizure of Sep-
tember 16 was valid, then the forfeiture must be
deemed to have occurred on June 25, 1974, by
virtue of the definition of "forfeiture" and "sei-
zure" in subsection 2(1) of the Act which provides
that forfeiture is deemed to have occurred at the
time of the offence. He alleges therefore that the
property vested in the Crown on that date. On
October 8, 1974, in order to obtain the release of
the Rebel plaintiff paid a deposit of $145 with
respect to the first seizure and a further deposit of
$13,241.38 with respect to the second seizure.
(Other amounts were paid to secure the release of
the other goods.)
On July 7, 1975, by ministerial decision, the
$145 deposit on the first vessel seizure was
returned, but the larger amount for the second
seizure was held to be forfeited.
Learned counsel for plaintiff argues that on
September 20, 1974, the Rebel was already the
property of the Crown and could not be further
seized or subjected to double forfeiture under the
Act. Remission already having been effected of the
deposit on the first seizure, counsel alleges that the
Minister ought now to reimburse the second depos
it since the second seizure is a nullity.
The Crown submits that it was not until after
the first seizure of September 16, or more precisely
on September 20, that Corporal Robinson definite
ly learned about plaintiff's trips to Canada. On
that date he obtained a statement from him. On
the first seizure the yacht was only subjected to a
vessel penalty of $145 for having transported the
goods. When further information indicated unlaw
ful entry of the vessel per se, the vessel was then
seized and subjected to the full volume of duty
$4,634.72, tax $4,543.94, and penalty $4,634.72.
Learned counsel for the Crown relies on The
King v. Bureau (supra) wherein Bureau did not
declare at the U.S.-Canada border 159,000 Ameri-
can cigarettes in his automobile. The automobile
was allowed to go through on that rainy night, but
seized later. The Supreme Court of Canada
referred to the definition of seizure and forfeiture
in subsection 2(1) of the Act. Rinfret C.J., said at
page 377:
Referring again to subsection (o) of section 2, the words
"seized and forfeited", "liable to forfeiture" or "subject to
forfeiture", or any other expression which 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 forfeiture
shall accrue at the time and by the commission of the offence,
in respect of which the penalty or forfeiture is imposed. There
fore, in acting as he did, the respondent made himself liable to
the seizure and forfeiture of the cigarettes and the automobile,
even if he had not subsequently got beyond the Customs Office
in possession of these goods.
The case stands as further authority for the
proposition that forfeiture occurs at the time of the
offence, but it does not support the contention that
goods may be subjected to double seizure:
Bureau's automobile was seized only once.
The Rebel was first seized under section 183,
"vessel used in conveying" and the second time
under section 205, "keeping goods unlawfully
imported". The exact date of remission is uncer
tain, the earliest possible date being September 23,
1974, when the amount of the deposit was set. But
it is clear that the vessel was not yet released from
the first seizure when the second one was applied.
I was not provided with any jurisprudence on
"double seizure" and I have not been able to find
any precedent in the matter. Recourse must there
fore be had to the Customs Act itself.
The purpose of the Act, obviously, is not to
facilitate the entry of foreign goods into Canada.
Its true intent is twofold: to protect the Canadian
industry and to raise revenue. Subsection 2(3)
prescribes a liberal construction for the protection
of revenue. It reads:
2....
(3) All the expressions and provisions of this Act, or of any
law relating to the customs, shall receive such fair and liberal
construction and interpretation as will best ensure the protec
tion of the revenue and the attainment of the purpose for which
this Act or such law was made, according to its true intent,
meaning and spirit.
The definition of "seizure" and "forfeiture" pro
vided in subsection 2(1) reads:
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;
Those expressions must receive the interpreta
tion which best protects the revenue and must not
be construed so as to render any subsequent act
necessary to complete the forfeiture. In other
words, as stated before, forfeiture is established by
the commission of the offence, and the actual
seizure or seizures by customs officers are not
necessary. Once the vessel and goods were forfeit
ed to the Crown, the Crown had every right to
exact all the duties, taxes and penalties pertaining
thereto, whatever the number of seizures subse
quently effected by customs officers.
Moreover, section 248 provides that in any pro
ceedings for the recovery of any goods seized or
money deposited, the burden of proof lies upon the
claimant of the goods seized or money deposited,
and not upon Her Majesty.
I must therefore dismiss the action with costs.
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.