Judgments

Decision Information

Decision Content

T-2579-82
Donald Stanley Harris (Plaintiff)
v.
The Queen in right of Canada (Defendant)
Trial Division, Walsh J.—Vancouver, March 20 and 28, 1984.
Customs and excise — Forfeiture — Plaintiff importing car into Canada — Customs officer appraising car at less than price paid without asking plaintiff amount paid — Plaintiff never importing car before — Plaintiff signing completed Casual Import Entry form without reading declaration details of entry true to best of knowledge and belief — Plaintiff paying duty as calculated by customs officer — Car subse quently seized and subject to forfeiture unless net undervalua- tion and net additional duties and sales tax paid — Ss. 192 and 205 Customs Act not applying as plaintiff not smuggling nor harbouring car — S. 180 not applying as no violation of s. 18 — Whether forfeiture should stand when no mens rea — Minister's refusal to remit forfeiture made without awareness of all facts — Plaintiffs brother importing same model and year car subsequent to plaintiff and declaring same value assigned to plaintiffs car by appraiser — Brother not acting in good faith — Minister not knowing cases not identical as customs appraisal form not accompanying report forming basis for Minister's decision — Penalty reduced in more serious cases of deliberately false declarations or intent to mislead — Natural justice requiring release of car on payment of additional duty and excise tax due — Customs Act, R.S.C. 1970, c. C-40, ss. 2, 18(a),(b),(c), 46(1)(6),(4)(6),(d),(5), 150, 163(1),(2), 165, 180(1),(2)(b), 192(1)(c), 205(1),(3) — Federal Court Act, R.S.0 1970 (2nd Supp.), c. 10, s. 18.
Plaintiff seeks the return of a 1965 Corvette automobile seized for an alleged infringement of the Customs Act. He also seeks an assessment of the penalty taking into account his lack of mens rea when importing the car and relief from forfeiture and penalty. A declaratory judgment is sought, pursuant to section 18 of the Federal Court Act, that he is the lawful owner of the car and that the payment be levied for duty in accord ance with the normal rate. The plaintiff purchased the car in California for $7,500 U.S. At the time of importation the plaintiff presented all the documents that he had received in California, none of which referred to the sale price or the model year. The plaintiff had not imported cars before and was not questioned concerning the value of the car. The appraiser completed a form showing the year and model of the car, serial number, mileage and condition. The factory list price, which was substantially less than the actual price paid, was used to determine the value of the car. The plaintiff filled in his name and address on a Casual Import Entry form to which the
appraiser added the figures from her appraisal form and cal culated the duty owing. The plaintiff signed the form without reading the declaration that the particulars of the entry were true and complete to the best of his knowledge and belief, and paid the duty. Seven months later the car was seized and subject to forfeiture unless the plaintiff paid $9,286.33, being the net undervaluation of the car and the net additional duties and sales tax, within 30 days. The plaintiff objects to such forfeiture, alleging that he acted in good faith and without mens rea. When the Minister refused to remit the forfeiture, he had before him as well the case of the plaintiffs brother who had also imported a 1965 Corvette from California subsequent to the importation by the plaintiff. The plaintiffs brother, however, could not claim good faith as he had knowingly made a declaration giving the same value that the appraiser had assigned to the plaintiffs car without having undergone an appraisal at customs. The Minister did not know that the cases were not identical because the customs appraisal did not accompany the report on which he based his decision. The defendant invokes sections 180(1), 192(1)(c) and 205(1) of the Customs Act.
Held, the forfeiture should not have been made and the vehicle should be released to the plaintiff on payment of the additional customs duty and excise tax due.
Only subsection 180(1) applies to this case. Sections 192(1)(c) and 205(1) deal with smuggling. Clearly the plaintiff did not smuggle the car into Canada nor keep it for six months "without lawful excuse" since he in good faith believed that his payment of duties, established by the customs officer, was all that was due. Section 180 deals with the failure to comply with section 18 which requires a written report to the collector of all "goods" in his custody and the value thereof. The definition of "goods" includes vehicles. The only non-compliance with which the plaintiff can be charged results from his negligently signing the Casual Import Entry form containing the values placed therein by the appraiser and not volunteering to tell her that they were too low. His explanation that he assumed that her calculations represented the manner in which a vehicle was valued for customs purposes is credible and not unrealistic for a layman not accustomed to making such imports.
In Lawson et al. v. The Queen, it was held that "The power to remit a forfeiture lies only with the Governor in Council; the Court can only order a release of the goods or declare that they remain forfeited." The Queen v. Canabec Trailers Inc. is authority for not imposing a penalty where good faith exists, although that case involved the recovery of duties plus penalty and did not deal with forfeiture. While it is doubtful whether the Court can or should interfere with an administrative deci sion of the Minister, the evidence indicates that it was made without full awareness of all the facts, namely of the appraisal made in good faith by the customs officer which the plaintiff adopted in his declaration. In much more serious cases of deliberately false declarations or intent to mislead the penalty has frequently been reduced or remitted and natural justice
requires that the full rigours of the law should not be applied to maintain the forfeiture.
CASES JUDICIALLY CONSIDERED
APPLIED:
Lawson et al. v. The Queen, [1980] 1 F.C. 767 (T.D.); Marun v. The Queen, [1965] 1 Ex.C.R. 280; His Majesty The King v. Krakowec et al., [1932] S.C.R. 134; His Majesty The King v. Bureau, [1949] S.C.R. 367; The Queen v. Sun Parlor Advertising Company, et al., [1973] F.C. 1055 (T.D.); Allardice v. The Queen, [1979] 1 F.C. 13 (T.D.); The Queen v. Canabec Trailers Inc., [1982] 1 F.C. 788 (T.D.).
COUNSEL:
G. Angelomatis for plaintiff. A. Louie for defendant.
SOLICITORS:
G. Angelomatis, Vancouver, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
WALSH J.: The plaintiff seeks the return of his 1965 Chevrolet Corvette, Serial No. VIN 194375S103181, seized on or about August 18, 1981, for alleged infringement of the provisions of the Customs and Excise Acts. He also seeks an assessment of the penalty having relation to the facts of the case, his lack of mens rea bringing the motor vehicle into Canada, and relief from forfeit ure and penalty. The matter is referred to this Court pursuant to the provisions of section 150 of the Customs Act.'
On February 17, 1982, plaintiff was informed that the said motor vehicle would be released upon payment of $9,286.33, to be forfeited and in default of such payment for 30 days that the car be forfeited. The present proceedings were institut ed on April 13, 1982, within the three-month time limit from the decision as required by subsection 150(2).
' R.S.C. 1970, c. C-40.
Relief is sought pursuant to section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10]; a declaratory judgment is sought that he is the lawful owner of the car and the payment be levied for duty in accordance with the normal rate of duty, namely 13.6%. It is contended that the decision made by the Minister of National Reve nue is punitive and arbitrary and that the amount levied by way of penalty should be reduced.
An agreed statement of facts was filed to the effect that plaintiff, on or about January 16, 1981, purchased the said car in California, paying $7,500 U.S. for it. He imported it into Canada at Canada Customs, Pacific Highway in the Province of British Columbia on or about January 18, 1981 and at that time signed a Casual Import Entry form bearing that date, which was presented to him for signature by Carol McKinley, a customs officer. He had submitted to her three docu- ments—an application for vehicle registration with the California Department of Motor Vehicles, a transfer tax receipt from the California Depart ment of Motor Vehicles, and a suspense receipt dated January 16, 1981 in regard to the said Corvette. Pursuant to the Casual Import Entry form, plaintiff paid tax duties and sales tax in the amount of $327.66. Following an investigation on July 21, 1981, plaintiff admitted to one Constable John Slattery of the Royal Canadian Mounted Police, that, as they probably knew already, he had paid $7,500 U.S. for the car. It was seized on August 18, 1981 and still remains in the custody of the Royal Canadian Mounted Police.
Plaintiff, in testifying, explained the somewhat surprising value of the car by stating that 1965 Corvettes were of special interest to some purchas ers. As a young firefighter in Vancouver, he was certainly not a collector of vintage cars, but this model had always been one of his favourite cars, and had a particular option which he wanted. He saw an advertisement for it in the Los Angeles Times and felt that the price of $7,500 U.S. was realistic as he believed it might be worth as much as $10,000 in Canada. He intended to use it only on Sundays and special occasions. The vendor, in
California, attended to all the transfer formalities and the documentation received is not very reveal ing. He was given a receipt for the sum of $174, which is apparently a transfer tax, another docu ment called a "suspense receipt" for $99, which states on the obverse side that it is evidence of payment of fees for registration of the vehicle and must be retained until the registration card is received. It need not be displayed. A third docu ment, headed State of California Department of Motor Vehicles, addressed to whom it may con cern, merely states that he has made application for registration of the above-described vehicle and gives the engine number and tab number and his home address. A fourth document, entitled Trans fer of a Vehicle or Vessel, and what purports to be the serial number of the car, plaintiff's name as buyer and the name of the seller was mailed to him later. On the obverse of the form is a state ment "To protect yourself from possible liability resulting from the operation of the vehicle by the purchaser, immediately notify the Department of Motor Vehicles when you sell or transfer a vehicle. Such notice will also assist in preventing your being charged with traffic violations that may be incurred by the party to whom you sold or trans ferred the vehicle." It also states "You are required by law to report the sale or transfer of any vehicle or vessel registered in your name. The report is to be made to the Department of Motor Vehicles immediately after sale or transfer. For reporting purposes you may use the reverse side of this notice." There are other instructions given for completing the form. Written over this in printed writing are the words: "As of January 16, 1981" and what appears to be the signature of the vendor, and evidently his address. At the top of this notice and almost indecipherable on the photo- stat, which was all that was produced as a copy, is the word "thousand" on one side, the words "important notice", and the words "two hundred" on the other side. There is no indication whatso ever as to who wrote this in or the significance of it. Plaintiff testified that it was not he who did so and there is nothing to indicate that it has any thing to do with the value of the car. What appears somewhat extraordinary is that none of the California documents include any reference to what one might assume constituted the most important information, namely the sale price and the year of the car model.
Plaintiff testified that, on arriving at Canada Customs, he stated that he had a car to declare and was given a form to take inside. He gave all the documents which he had received in California to the lady customs appraiser there. He stated that he was not questioned as to the value of the car. The examiner stated that it was the first time she had occasion to make such a valuation. He said that he had never imported cars before and was under the impression that a car over fifteen years old was duty-free. He has since learned the requirement is twenty years. No other proof was made as to whether this is so or not.
The appraiser filled in the form showing the year and model of the car, serial number, the 53,000 miles on it and that it was in good condi tion. The next line of the form has three headings entitled respectively "Factory List Price", "Facto- ry Delivered Price" and "Bill of Sale", with an indication that the heading which is not applicable should be struck out. Actually, what was done was that the factory list price was circled and shown as $4,321; freight to point of shipment of $144 was added and $55 for power windows. California State tax of 6% in the amount of $271.20 was added for a total of $4,791.20 on which 75% depreciation was deducted for 16 years in use, bringing the final figure to $1,197.80. No further deductions were made for the condition of the car. This figure was then converted into Canadian dollars at 1.19, making the final figure of $1,425.38 and the form was signed by the apprais er "C. McKinley".
He was then given what is called a Casual Import Entry form on which he filled in his name and address. Miss McKinley then filled in all the figures taken from her appraisal form. The $50 deduction was made, being the duty-free allowance at the time, duty at 13.6% was applied to the balance of $1,375.38, amounting to $187.05 duty.
Sales tax in the amount of $140.61 was then applied to the value which had been assigned to the car plus duty, for a total amount of $327.66. All these figures were inserted by the appraiser. He then signed the form without reading the dec laration which states in part:
I declare that the particulars of this entry are true and com plete to the best of my knowledge and belief.
He paid the sum of $327.66 claimed and brought the car into Canada. He subsequently spent the sum of $4,879.02 at D.J. Corvette Repairs for repairs and renovation to it. Some six months later, in July 1981, Constable Slattery of the Royal Canadian Mounted Police interviewed him as to what he had paid for the car in Cali- fornia and he told him the truth. On August 18 the car was seized for violation of the Customs Act.
On September 23, 1981, he was sent a form from the Adjudications Director of the Customs Department in Ottawa, stating the car was seized and subject to forfeiture for having been unlawful ly imported into Canada or being goods whereon duty lawfully payable had not been paid and that pursuant to section 161 of the Customs Act he had 30 days to present any information considered appropriate. It is common ground that all notices and provisions in connection with appeals were made. On February 17, 1982, a further document was received from the Adjudications Director saying that pursuant to section 163 a decision had been rendered that the car be released on payment of $9,286.33 to be forfeited and that in default of such payment for 30 days, the car be forfeited. Section 163 provides that the Minister may refer the matter to the Court for decision and section 165 repeats this provided the owner within 30 days after being notified of the Minister's decision gives him notice in writing that such decision will not be accepted. The Minister refused to do this in a letter dated March 2, 1982, as a result of which the present proceedings were brought pursuant to subsection 150(2) on April 13, 1982, three months after the decision, the time limit provided for therein.
On cross-examination plaintiff was asked why he paid the sum of $327.66 claimed if he was under the belief that a car over 15 years old would enter Canada duty-free. He replied that he never gave any thought to it and merely paid the sum demanded. He fully cooperated with the customs officer, even showing her that the serial number could be found under the dashboard. He does not recall telling her that it was a 1965 car although this appears on the appraisal sheet. He stated that he believes that the serial number of the car will disclose its year to someone who has the proper code book. He subsequently received from Cali- fornia in the mail another form which, of course, he did not have with him to clear the car through customs, which does show the model as being 1965, and the sum of $174 paid as fees for the registration, as previously indicated on the tempo rary receipt. Again no value is shown for the car.
Another form from customs entitled "Statement of Goods Seized" was eventually received and signed by him, indicating how the amount now claimed is calculated. It commences by showing a valuation of $7,500 U.S. for the car being the "true value", converts this to Canadian funds deducting the $50 duty-free allowance, resulting in duty of $1,207 and sales tax of $970.38 being claimed. From this is deducted the declared values and the duty of $187.05 and sales tax of $140.62 resulting from same, showing an undervaluation of $7,499.62 Can., net additional duties of $1,019.95 and sales tax of $766.76, being due. Instead of merely claiming these amounts, however, the net undervalued amount of the car of $7,499.62 is added, making the total $9,286.33. Plaintiff is quite prepared to pay the additional duties of $1,019.95 and sales tax of $766.76 but objects to the penalty of forfeiture of the car unless the undervalued amount of it of $7,499.62 is also paid, alleging that he acted in complete good faith throughout and with a total absence of mens rea.
Carol McKinley, the appraiser, also testified and substantially corroborated plaintiff's evidence.
She appears to have acted with complete propriety, although she has no recollection whatsoever of plaintiff or this particular appraisal three years ago. She stated that he would have been given a yellow card by the primary officer when he said that he had a declaration to make. She would then ask for the bill of sale of the car. The only respect in which her evidence differed from plaintiffs is that she had in fact appraised cars before. She conceded she does not recall doing one in which there was no bill of sale showing the price. She stated quite frankly, however, that she does not know why the heading "Bill of Sale" even appears on the appraisal form as it is not customary to go by this. They have a book showing the factory list price for all cars. She is under the impression that serial numbers will, by their sequence, indicate the year of manufacture of the car even though the actual number 65 does not appear anywhere in the serial number of the subject car. She believes, therefore, she got the model from this book and she certainly obtained the factory list price, freight and addition for power windows from it. 75 per cent is the maximum depreciation allowed no matter how old the car is. No further allowance was made for the condition of the car since it appeared to be in the normal condition which might be expected for a sixteen-year-old car. When questioned as to what would happen if there were a bill of sale showing a much greater price than that indicated in the book, then she said the appraiser would, of course, use the price shown in the bill of sale. Normally, the bill of sale is not used. The reason for this is obvious as it might be fraudulent, as frequently happens in importations to show a price less than what was actually paid. As already indicated there was nothing in any of the documents received by plaintiff from the vendor or the State of California when he bought the car which indicated the price paid. She stated that the regulation book used merely shows the factory list price at the time the car was bought and of course makes no provision for any increase in value which might occur thereafter in the event of the car becoming a collector's item or vintage car, so the customs appraisers do not take this into consideration.
The only discrepancy between her evidence and that of plaintiff is easily explained as she stated
that it may have been the first appraisal she had made of a car for which a bill of sale showing the price was not produced. It would appear that plaintiff may have misunderstood her as saying that she had never made such an appraisal before. She stated that when the papers were sent to her for examination in preparation for giving evidence, her appraisal form was not attached to the Casual Import Entry form on which she had transcribed the figures and which was, of course, signed by plaintiff. Her appraisal form should have been attached. In his examination for discovery Sgt. Gordon Cameron White of the R.C.M.P., at that time a corporal, admitted that he also did not have a copy of the appraisal and was not aware that it had been done other than what Harris had told him. This is a most important point as will be seen later. There is also a discrepancy, although of considerably less significance, in the fact that plaintiff's copy of the Casual Import Entry form does not show the year or model of the car whereas the original copy does. As plaintiffs copy is a carbon, this must have been added later. The witness stated that the addition was not in her writing.
While defendant invokes sections 180(1), 192(1)(c) and 205(1) of the Customs Act, it appears to me that it is only subsection 180(1) which could be applied to the facts of this case. Paragraph 192(1)(c) comes under the heading "Smuggling" and reads as follows:
192. (1) If any person
(c) in any way attempts to defraud the revenue by avoiding 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).
Subsection (3) provides for penalty and prosecu tion as an indictable offence of every one who smuggles or clandestinely introduces into Canada any goods subject to duty of the value for duty of two hundred dollars or over.
Subsection 205(1) is also under the same head ing dealing with a person harbouring, without lawful excuse, any goods unlawfully imported into Canada when the duties lawfully payable have not been paid. Again, subsection (3) provides for a penalty and prosecution as an indictable offence. Whether or not the proper duties were paid, it is clear that plaintiff did not smuggle the car into Canada nor keep it for six months therein "with- out lawful excuse" since he in good faith believed that his payment of duties, the amount of which had been established by the appraisal of the cus toms officer, was all that was due.
Subsection 180(1) reads 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.
Section 18, to which reference is made, reads 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 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.
Even in section 180, paragraph (2)(b) provides for conviction as an indictable offence for "unlawful importation" as well as to a penalty amounting to the value of the articles.
This section does not deal with smuggling but with failure to comply with the requirements of section 18, which is a different matter. While section 18 is clumsily worded in that the reference in paragraph (b) to "all goods in his charge or custody or in the vehicle and of the fittings, fur-
nishings and appurtenances of the vehicle" might appear to exclude the vehicle itself, the definition of "goods" in section 2 includes vehicles and in practice there is no doubt that imported automo biles must be declared.
Plaintiff complied with paragraph (a) by making a declaration and complied with the letter of paragraph (b) by making a written report of the value of the car (as determined by the officer making the appraisal, which was not however the true value). He also complied with paragraph (c) by answering any questions which were asked of him by the collector and making due entry. In fact he was not asked any questions as to the value of the car. The collector does not remember him at all. He denies that he was so questioned. The collector partially confirms this by stating that she would get the value from the book indicating the factory list price in 1965 then deducting deprecia tion. The only non-compliance with which plaintiff can be charged results from his negligently signing the Casual Import Entry form containing the fig ures of value placed therein by the appraiser, and not volunteering to tell her that this valuation was far too low, as he had paid $7,500 U.S. for it. His explanation that he assumed that her calculations represented the manner in which a vehicle was valued for customs purposes and accepted them, is credible and not unrealistic for a layman not accustomed to making such imports. It can even be argued that the declaration that the particulars of the entry are true and complete to the best of his knowledge and belief is not false, since the Casual Import Entry form does not have a heading indicating the price paid for the vehicle but only the valuation placed by the appraiser under the heading "Value for Duty".
While plaintiff contends that section 180 requires existence of mens rea, not to be implied in the same way as in sections 192(1)(c) and 205(1), I hesitate to go that far in interpreting subsection
(1) of section 180. While it is true that subsection
(2) imposing a penalty of a sum equal to the value of the articles imported, refers to "unlawful impor tation" it may be that failure to declare and pay customs duties and sales tax on the actual value of
the goods itself constitutes an "unlawful importa tion" even in the absence of mens rea, the making of any statements or production of any documents intended to mislead the appraiser.
The right of customs appraiser to re-appraise the value of the vehicle found in paragraph 46(2)(b) of the Act within two years in any case where he deems it advisable, goes further than paragraph (4)(b) which gives the Deputy Minister the right to re-appraise the value at any time if the importer has made any misrepresentation or com mitted any fraud in making the entry of those goods. As I have pointed out, I do not think any misrepresentation or fraud was made by plaintiff. Paragraph (4)(d), however, gives the Deputy Min ister power to do so within two years of the date of entry in any other case where it is deemed advis able. When this is done subsection (5) provides that the importer shall pay any additional duties or taxes payable.
Section 163 provides that after notification of seizure or detention is given to the owner pursuant to section 161, and objection is taken by the owner, a report is made by the Deputy Minister or such other officer as the Minister may designate and the Minister may thereupon either give his deci sion in the matter respecting the seizure, detention, penalty or forfeiture and the terms, if any, upon which the thing seized or detained may be released or the penalty or forfeiture remitted or may refer the matter to the Court for decision. Subsection (2) provides that he may authorize a Deputy Min ister or other officer deemed expedient to exercise these powers. It is by no means uncommon for the Minister to release, on terms of payment of the customs duty and excise taxes due, the goods seized and remit the penalty or forfeiture. Not only was that not done in the present case but by letter of March 2, 1982 to the Chief of the West ern Adjudications Directorate stated that the Min ister would not use section 165 of the Customs Act to refer notice of non-acceptance to the Court as "these cases are not ones he would so refer". The reference to "these cases" in the plural, the head- note including customs seizure 49539 against
Daryl S. Harris, provide the clue as to why the drastic step of forfeiture was maintained in this case despite the apparent good faith of plaintiff. While it is idle to speculate what the Minister's motives may have been, there was another action brought in this Court by Daryl S. Harris under number T-2580-82 to be heard immediately fol lowing the present action. The said Daryl S. Harris, brother of the present plaintiff, had subse quently imported an identical 1965 Corvette from California and had made a declaration giving the identical value which the appraiser had given for plaintiff's car in the present case. In the case of the said Daryl S. Harris, there had been no appraisal at customs. The lack of an appraisal is a very significant difference from the present case, so that in completing his Casual Import Entry form he had knowingly submitted a value considerably less than what he paid for the car and therefore could not claim good faith as in the case of the present plaintiff. He recognized this and following the conclusion of the hearing in the present case, withdrew his action to set aside the forfeiture of his car. The two cases are not identical, therefore, but the Minister did not know this in declaring the forfeiture of plaintiff's car, to be released only upon payment of $9,286.33. The Minister was not aware of this distinction because, either by design or inadvertently, the appraisal made by Miss McKinley had been mislaid and was neither in her possession nor in the possession of Corporal White, who made the report on which the decision was based. He himself admitted in his examination for discovery that standard policy on undervaluations imposes the penalty of forfeiture, without taking any mitigating factors into consideration. He stated that he, and everyone else in his section, always followed this policy since he has no discre tion in the matter. That is no doubt so at his level but in view of his not having a copy of the apprais al or even being aware that it had been done, as he also admitted, the most pertinent part of the infor mation was missing in the report he made.
While it would undoubtedly only be at a higher level that discretion as to remitting the forfeiture would be exercised, the decision should certainly have been made only with full awareness of all the facts.
That now brings us to the question as to what, if anything, the Court can do in the matter. In the case of Lawson et al. v. The Queen, 2 Mahoney J. stated at pages 771-772:
In considering an application to vacate a forfeiture, the Court is bound to consider all grounds under which the evidence dis closes the goods might have been forfeited. It cannot limit its consideration only to the stated grounds of forfeiture. The Court is, however, 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.
In that case dealing with forfeiture of a truck and a trailer a definitely false statement had been made to the effect that the trailer had been bought in Ottawa. Both vehicles were forfeited. Eventual ly the truck was released against a cash deposit of which all but $500 was ultimately remitted, while the trailer remained in forfeit. The Court found that Rioux had recanted and probably told the truth before the forfeiture was announced. Refer ence was made at page 773 to section 2 of the Act which reads as follows:
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;
The judgment then concludes [at page 773]:
In law, the truck and trailer were forfeited when the lies were told.
It is of interest to note that the words at the time of the commission "of the offence" apparent ly introduces the element of mens rea unless
2 [1980] 1 F.C. 767 (T.D.).
"offence" is given a very broad interpretation so as to include a wrong declaration made in good faith.
A similar finding was made by Cattanach J. in the case of Marun v. The Queen, 3 dealing with the importation of diamonds, in which he stated 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.
It is interesting to note, however, that at page 292 Cattanach J. states, with reference to sections 18 and following of the Act:
Accordingly there is a threefold obligation on any person bringing goods into Canada, (1) to report the goods to Cus toms, (2) to make due entry of them, and (3) to pay the taxes. None of these obligations were carried out by the suppliant Marun ... .
That is certainly not the situation here.
In an old Supreme Court of Canada case of His Majesty The King v. Krakowec et al., 4 the Court states at page 143:
It is not for the court to say if, in some cases,—such as, for example, when the vehicle utilized was stolen from its owner— the forfeiture may effect a hardship. Such cases are specially provided for in subs. 2 of sec. 133 of the Excise Act. The power to deal with them is thereby expressly vested in the Governor in Council, thus leaving full play to the operation of sec. 91 of the Consolidated Revenue and Audit Act (c. 178 of R.S.C. (1927)), for the remission of forfeitures. *
In the case of His Majesty The King v. Bureau' an automobile was forfeited when the owner on entering Canada declared only a rifle he had in his possession and neglected to declare a very large quantity of cigarettes. The judgment of Rinfret C.J. stated at page 377:
3 [1965] 1 Ex.C.R. 280.
4 [1932] S.C.R. 134.
5 [1949] S.C.R. 367.
* The sections referred to were, of course, those in effect at
the time of the judgment.
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 more recent case of The Queen v. Sun Parlor Advertising Company, et al. 6 perhaps resembles more closely the present case in that Parr was, apparently in good faith, importing film into Canada on 31 occasions in the belief that it was not dutiable based on an appraisal notice given by a customs officer on a previous occasion so indicating. Urie J. found that goods were not introduced into Canada by smuggling or clandes tinely but, nevertheless, the requirements of sec tions 18, 20, 21 and 22 of the Act, were not complied with. Parr made an oral declaration on each of the 31 occasions and was allowed to pass with the goods in question.
At pages 1065-1066, Urie J. states:
Unlawful importation arises through the defendants' failure to comply with the provisions 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.
The results of a finding to this effect by Cat- tanach J. in the Marun case (supra) were referred to. In the present case, however, there was no non-compliance with paragraph 18(b).
Reference was also made to the case of Allard- ice v. The Queen' in which Dubé J. states at page 23 in reference to the definition "seizure" and "forfeiture" in section 2 of the Act:
Those expressions 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 forfeiture. In other words, as stated before, forfeiture is established by the commission of the offence, and the actual seizure or seizures by
6 [1973] F.C. 1055 (T.D.).
7 [1979] 1 F.C. 13 (T.D.).
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 seizures subsequently effected by customs officers.
In the case of The Queen v. Canabec Trailers Inc., 8 Marceau J. in a case involving making a false declaration in connection with nine trailers, as a result of the owner's belief that refrigeration units installed in them were not dutiable, refused to impose any penalty other than the duty payable on the total purchase price including the refrigera tion units installed in the trailers. He stated at page 791:
On the other hand, the claim for a penalty appears to me to be without foundation. The defendant, through the testimony of its manager at the time, has proved to my satisfaction that its declarations were not made for the purpose of misleading or avoiding the payment of duty. On the contrary, the defendant acted in good faith, in my view, its error in interpreting the scope of the exemption being quite understandable, as indicated by the fact that it has been made by certain customs officers themselves.
This is authority for not imposing a penalty where good faith exists, but it must be pointed out that it was rendered in an action taken by The Queen to recover duties plus penalty and did not deal with forfeiture of the vehicles in question.
Applying this jurisprudence to the present case, there is no doubt that it was proper to re-assess the customs duties and excise tax payable on the basis of a valuation of $7,500 U.S. for the car. It is also true that if the car was properly forfeited at the time of entry as a result of non-payment of what can now be considered as the correct amount of duties payable, the Minister cannot remit this forfeiture himself. The question which arises, how ever, is whether the car can properly be considered as forfeited in the first instance in the absence of any mens rea by plaintiff who was induced by the appraiser into signing the Casual Import Entry form including figures inserted therein by her by following the normal procedure, rather than by any inducement by him or misleading or false information given by him which resulted in these figures. In much more serious cases of deliberately
8 [1982] 1 F.C. 788 (T.D.).
false declarations or intent to mislead the penalty has frequently been reduced or remitted and natu ral justice would seem to require that the full rigours of the law should not be applied to main tain the forfeiture in this case.
While it is doubtful whether the Court can or should interfere with an administrative decision of the Minister, the evidence in this case indicates that it was made without full awareness of the facts, namely of the appraisal made in good faith by the customs appraiser, which plaintiff adopted in his declaration.
In accordance with the conclusion of Mahoney J. in the Lawson case (supra) that the Court cannot remit a forfeiture but can only order a release of the goods or declare that they remain forfeited, I find that on the facts of this case the forfeiture should not have been made and order the release of the motor vehicle to plaintiff on payment of the amount of additional customs duty and excise tax due in the amount of $1,786.71, without 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.