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T-1729-75
Émilien Letarte, doing business under the name Centro Leasing Reg'd—Location Centro Enrg.
(Plaintiff)
v.
The Queen (Defendant)
Court of Appeal, Decary J.—Montreal, February 14; Ottawa, May 11, 1978.
Customs — Seizure — Truck trailers purchased and col lected in U.S. — Declarations made as to cargo, but not as to trailers — Truckers unaccustomed to bringing new trailers into Canada, and given no information by customs official that declaration necessary — Whether or not seized trailers declared according to Customs Act — Customs Act, R.S.C. 1970, c. C-40, s. 18.
ACTION. COUNSEL:
Pierre Dupras for plaintiff. J. M. Aubry for defendant.
SOLICITORS:
Gottlieb, Agard & Dupras, Montreal, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following is the English version of the reasons for judgment rendered by
DECARY J.: The question at issue may be stated as follows: was the object of the seizure declared according to the provisions of section 18 of the Customs Act, R.S.C. 1970, c. C-40, or might it have been so declared? This way of stating the problem does not necessarily take into account the actions and words of the customs officers and the truckers in order to determine whether the truck ers did in fact declare or might have declared the trailers before they were seized, and whether in fact the customs officers acted as they should have done, taking into account the ways, customs, habits and language of the truckers, with which they are familiar.
I believe that the facts in the case at bar should be carefully examined in order to determine the significance of section 18 of the Act:
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.
The object of the seizure was five trailers pur chased in the United States and brought back to Canada loaded with goods. Only the trailers were seized.
The evidence showed that the truckers are men who have no love of paperwork, and who are primarily interested in the cargo, the cab and the trailer for which they are responsible. The truckers who testified established that their trade was transporting cargo in trucks, and that it was not at all usual for them to pick up new trailers in the United States and bring them back to Canada. These truckers in no way specialized in bringing new trailers from the United States to Canada. Their conduct and behaviour at the Rock Island customs station demonstrate their state of mind: they were very proud of hauling the new, alumi- nized trailers, which must have shone under the lights of the customs station.
It should be noted that before the customs offi cers announced that the trailers were being seized the truckers had, as usual, made the declarations and completed the forms necessary to bring into Canada the cargo picked up on the trip to the United States. The truckers also stated, before the seizure, that the trailers had been picked up in the United States and that they were new. The phrase "pick up", used by the truckers when speaking of the trailers, had the same meaning as the same phrase used for the cargo, and this is the meaning it must be given in connection with the trailers,
namely, purchased and collected, and in the case at bar, purchased and collected in the United States.
Late in the evening or at the end of a day that must have been very busy, namely August 1, a date on which many vacationers were leaving or returning, the customs officers did not choose to help the truckers to make their written declara tions by reminding them that these were required, even though the truckers had already stated that they had "picked up" (purchased and collected) the trailers in the United States, the same as the cargo. The truckers in the case at bar were accus tomed to clearing cargoes through customs at St -Hyacinthe, and after they had said that the trailers were new and had been picked up in the United States, it seems to me that the customs officers should have reminded them of the written declaration. It must not be forgotten that the truckers were accustomed to always giving the same meaning to their declarations, which dealt with the entry of cargo and not the entry of new trailers.
It seems to me unjustifiable for a customs offi cer who is told that a trailer is new and that it was picked up in the United States not to indicate to a trucker, who is accustomed to transporting cargo and not new trailers, that a written declaration is required. This information constitutes an admis sion of purchase in the United States and if the truckers had been asked to complete written decla rations they would have done so, for each of them had in his vehicle all the necessary papers to have the new trailers admitted into Canada without difficulty. Instead, it was decided to seize the trailers before such declarations could be com pleted and apparently while carefully avoiding any mention that they were necessary. It could not have been better planned if it had been a trap.
I have read the cases submitted to me with great care and I feel that each of them involved ques tions of fact.
In the case at bar, each trucker completed a written declaration regarding his cargo, that is the contents of the trailer that he was pulling, and they could have been assisted by the customs officers after telling them, before the seizure, that the trailers were new and had been "picked up" in
the United States. In my opinion, the statement that the trailers had been picked up in the United States constitutes a declaration of purchase that could be joined to the declaration concerning the cargo. It was then up to the customs officers to assist the truckers in completing the necessary forms, rather than act in such a way that the truckers fell into a trap set either in an excess of zeal or as a result of fatigue at the end of an extremely busy day. In any case, the course fol lowed by the customs officers seems to me to be irregular, rigid and contrary to the spirit of the Act.
The conduct of the customs officers prevented the truckers from making written declarations for the trailers after they had made such declarations for the cargo, because the trailers were seized before they could be declared in writing but after the cargo had been declared.
Plaintiff's action is allowed and the seizure made on or about August 1, 1974 of the 1974 Strick Van vehicles with serial numbers 191586, 191588, 191589, 191591 and 191592 is cancelled; the decisions of the Minister of National Revenue, Customs and Excise, dated March 7, 1975, are set aside; the guarantee issued by the Canadian Imperial Bank of Commerce is cancelled; plaintiff is permitted to bring the goods in question into Canada upon payment of the appropriate customs duties and sales tax; the whole with costs against defendant.
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