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Decision Information

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T-3372-77
Karen Annette Lawson and Paul Eugene Rioux (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Ottawa, February 6, 7 and 8, 1980.
Customs — Forfeiture — Pickup truck and "5th wheel" trailer forfeited at border — Trailer acquired in U.S. — Plaintiff towed trailer with Quebec dealer's plates affixed to it
— On being questioned by customs officer, plaintiff Rioux stated that trailer was acquired in Ottawa, before admitting the truth — Whether or not the forfeiture should be vacated
— Customs Act, R.S.C. 1970, c. C-40, ss. 2(1), 18, 180(1), 183(1) — Financial Administration Act, R.S.C. 1970, c. F-10, s. 17.
Plaintiffs apply to the Court to vacate a forfeiture, following the forfeiture of a pickup truck and a "5th wheel" trailer under the Customs Act. Rioux, a Canadian, had registered the truck in Quebec. Plaintiffs had intended to register the trailer, which had been acquired in New York State in the United States, in Lawson's name. Lawson was American. Since the New York licence office was closed, plaintiff Rioux fixed his set of Quebec dealer's plates to the trailer, made it look lived in and drove to the border. Rioux indicated he had little to declare, and when questioned about the trailer, lied, stating that it was Canadian and that it had been bought in Ottawa. At some point Rioux decided to tell the truth. Both vehicles were forfeited. The pickup truck was released against a cash deposit, of which all but $500 was ultimately remitted. The trailer remains forfeited in rem.
Held, the action is dismissed. The Court is bound to consider all grounds under which the evidence discloses the goods might have been forfeited. It cannot limit its consideration only to the stated grounds of forfeiture. The Court, however, is limited to a determination of whether or not the goods were, in fact and law, liable to forfeiture. The power to remit a forfeiture lies with the Governor in Council; the Court can only order a release of the goods or declare that they remain forfeited. The trailer was "goods ... in [the] charge or custody" of the plaintiffs. The obligation to make a report in writing is on the person arriving in Canada, and after indicating that he had nothing or so little to declare that he was not asked by the customs officer to make a written declaration, he cannot be heard to say he had no opportunity to do so. Likewise, he cannot be heard to say that he had no obligation to answer truthfully questions about the goods that ought to have been mentioned in such a written report. The truck and trailer were forfeited when the lies were told, contrary to section 18 of the Customs Act. The fact that he recanted his lies before the goods were declared forfeit does not matter in that forfeiture
accrues at the time and by the commission of the offence. Plaintiffs' claim for damages for loss of use and depreciation of the trailer was not supported by evidence.
R. v. Bureau [1949] S.C.R. 367, referred to. R. v. Krako- wec [1932] S.C.R. 134, referred to.
ACTION. COUNSEL:
Henri O. Saint-Jacques, Q.C. for plaintiffs. Arnold S. Fradkin for defendant.
SOLICITORS:
Saint-Jacques & Saint-Jacques, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
MAHONEY J.: This action ensues upon the for feiture of a pickup truck and a "5th wheel" trailer under the Customs Act' at the customs house at the port of entry at Cornwall, Ontario, sometime around 11:00 p.m., Monday, October 25, 1976. The plaintiff, Rioux, is a Canadian citizen and the plaintiff, Lawson, an American, who lived to gether, to the extent hereinafter detailed, "com- mon law" at all material times.
Rioux had operated a garage and used car busi ness at Kazabazua, Quebec, which he sold in September 1976. He had a house there. He also owned a farm near Plantagenet, Ontario. There was a "mobile home" residence on it. Lawson lived with him at both locations for periods running up to several months in length. She also lived with her mother and a daughter at Chittenango, New York. Rioux lived with her there for short periods.
Rioux was beneficial owner of a mobile home, licensed in Lawson's name in New York. It had been purchased from a dealer at Chittenango in
R.S.C. 1970, c. C-40.
June, 1976. They brought it into Canada twice before they took it on a trip to Florida in the summer of 1976. They had trouble with it and, after they enlisted the support of consumer protec tion authorities in New York, the dealer was required to take it back. He was unable to refund the purchase money and a deal was made whereby Rioux agreed to take $4,000 and the trailer in issue.
Rioux took the pickup truck in issue to Chit- tenango on the weekend and on Monday morning, October 25, the work of adapting it began. The truck was registered in Rioux's name in Quebec. A 5th wheel trailer is not towed by a tongue like a conventional trailer; rather, like large "semis", a plate at its front connects with a plate in the box of the truck adapted to tow it. Because of certain structural peculiarities of the truck, what should have been the work of a couple of hours took all day. The New York State licence office, some 20 miles from Chittenango, had closed before they could carry out their intention of licensing the trailer in Lawson's name. Rioux had a set of Quebec dealer's plates in his pickup. He affixed them, or one of them, to the trailer. They put some used items in the trailer to give it a lived in look and, Rioux driving the pickup, Lawson in its pas senger seat, trailer in tow, they drove to the border.
Having sold his business, Rioux intended to retire with Lawson to Emporia, Virginia, a com munity he frequently passed through in passing between Canada and Florida. Its location was convenient as roughly halfway between the other places where they wanted to spend time in retire ment, the Ottawa area and Chittenango, in the north, and Florida, in the south. Rioux wanted to buy a small farm there and had looked at proper ties. He was anxious to get back to Emporia and make a purchase. Rioux did, in fact, buy a four- acre farm near Emporia November 19, 1976. He sold it June 30, 1978, after returning to live in
Ottawa. Lawson still lives at Emporia. They no longer live together.
The plaintiffs intended, in returning to Canada on October 25, merely to pick up their personal effects at Plantagenet and Kazabazua and to pro ceed immediately to Emporia. They meant to spend only a day or two in Canada.
They stopped at Canadian customs. An officer approached the driver's side of the pickup and spoke to Rioux. Lawson remained silent at all material times. Whatever the precise course of the conversation, Rioux did not indicate that Lawson was not a Canadian. Perhaps the question was not put directly. He was asked if he had anything to declare. He indicated only a box of cigars in the truck's cab. He was asked about the trailer. He said it was Canadian. He was asked where he bought it and he answered: Ottawa, at Travel-Mor on Bank Street. He was asked for its registration. He did not have it. The officer asked to inspect the trailer. The plaintiffs both got out of the truck.
Rioux's testimony is confused as to just when he decided to tell the truth. Perhaps he started before the officer entered the trailer. Perhaps it was not until the officer found the manufacturer's certifi cate of origin. In my view of the law, it really does not matter. When Lawson got out of the truck she was ushered to the customs house. She had, in her purse, the New York registration application which had been completed by the dealer.
Both vehicles were forfeited. The pickup truck was released against a cash deposit whereof all but $500 was ultimately remitted. The trailer remains forfeited in rem.
Rioux's credibility is dubious. His story is, nevertheless, corroborated in its most material par ticulars by his transparent stupidity. If, indeed, he had been trying to smuggle or clandestinely introduce a brand new trailer into Canada, he chose a peculiarly inept way to do it. If that had
been the object, I cannot conceive that he would not have stuck to the original plan, taken advan tage of Lawson's American citizenship and resi dence, and waited until the next day to try to get the trailer into Canada with a New York licence. It had worked twice with the mobile home. I believe that he was simply in a hurry to get in and out of Canada and on with his retirement plans. He misused the Quebec dealer's plates and, there by, violated and proposed to violate the highway traffic laws of a number of jurisdictions. He was entirely prepared to break the law and to lie to advance his interests as he saw them. I do not, however, think that he intended to smuggle the trailer into Canada. I doubt that he considered the customs implications of what he was doing at all. Rather, he devised a scheme to avoid getting apprehended in his violation of the highway traffic laws which was necessary to permit him to keep to his schedule. He got caught up in his own lies.
Unfortunately for the plaintiffs, the same conse quence of forfeiture flows from the failure to comply with the requirements of section 18 of the Customs Act as from actual smuggling or attempt ing to smuggle.
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.
In considering an application to vacate a forfeit ure, the Court is bound to consider all grounds under which the evidence discloses the goods might have been forfeited. It cannot limit its con-
sideration only to the stated grounds of forfeiture. 2 The Court is, however, limited to a determination of whether or not the goods were, in fact and law, liable to forfeiture. 3 The power to remit a forfeit ure lies with the Governor in Council;° the Court can only order a release of the goods or declare that they remain forfeited.
The trailer was "goods ... in [the] charge or custody" of the plaintiffs. Counsel made much of the fact that they were given no opportunity to "make a report in writing" as stipulated in para graph 18(b) and argues that, in the absence of such a written report, the requirement of para graph 18(c) to "then and there truly answer" questions about the trailer put by the officer never came into play. This aspect of the factual situation is not to be distinguished from that considered in The King v. Bureau. The obligation to make a report in writing is on the person arriving in Canada. Having indicated that he has nothing to declare, or so little that the customs officer does not ask him to make a written declaration, he cannot be heard to say he had no opportunity to do so. Likewise, he cannot be heard to say that he had no obligation to answer truthfully questions about the goods that ought to have been mentioned in such a written report.
The trailer was forfeited pursuant to subsection 180(1).
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.
The truck was forfeited pursuant to subsection 183(1).
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.
2 The King v. Bureau [ 1949] S.C.R. 367 at 385, 387 and 391.
3 The King v. Krakowec [ 1932] S.C.R. 134 at 143.
4 Financial Administration Act, R.S.C. 1970, c. F-10, s. 17.
The defendant might, but does not need to, rely on subsection 231(1).
Evidence was led with a view to establishing that Rioux had recanted his lies and told the truth about the trailer before goods were declared for feited. That is true, in that he had probably told the truth before the forfeiture was announced. A good deal of confusion exists as to whether he told the truth before the officer discovered it; none of that matters. The Act provides:
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;
In law, the truck and trailer were forfeited when the lies were told.
In addition to declarations that there had been no valid forfeiture of the truck and trailer, the plaintiffs sought damages for loss of use and depreciation of the trailer. Absolutely no evidence was led in support of that relief. It must be denied for that reason as well as others.
JUDGMENT
The action is dismissed with costs.
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