T-1781-83
Fadleabasy Akbaraly (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Muldoon J.—Montreal, October
16, 1984; Ottawa, September 27, 1985.
Customs and excise — Seizure of goods for failure to report
— Plaintiff arriving from trip abroad — Customs officer
asking "Have you anything to declare?" — Plaintiff confused
by question, failed to report some of goods — Court, consider
ing Glisic v. The Queen and Kong v. The Queen as to effect of
Act s. 18, finding question misleading and illegal and plaintiff
not to blame for failure to report — Customs officers must
give warning in accordance with duty to report imposed by Act
s. 18, namely "You must declare (or you are required to
declare) all effects in your charge or custody" — Rule "igno-
rantia juris non excusat" not applicable as applies to criminal
law only — Seizure set aside — Customs Act, R.S.C. 1970, c.
C-40, s. 18 — Criminal Code, R.S.C. 1970, c. C-34, s. 19 —
National Defence Act, R.S.C. 1970, c. N-4, s. 128 — Federal
Court Rules, C.R.C., c. 663, R. 337(2),(3),(4), Form 14.
Constitutional law — Charter of Rights — Criminal process
— Search or seizure — Seizure of undeclared goods —
Customs officer's question "Have you anything to declare?"
misleading and illegal — Seizure unreasonable under Charter
s. 8 — Act s. 18 inoperative with regard to plaintiffs claim —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982,
c. 11 (U.K.), s. 8 — Customs Act, R.S.C. 1970, c. C-40, s. 18.
CASES JUDICIALLY CONSIDERED
APPLIED:
Glisic v. The Queen, [1984] 1 F.C. 797; 3 D.L.R. (4th)
90 (T.D.); Kong et al. v. The Queen (1984), 10 D.L.R.
(4th) 226 (F.C.T.D.).
COUNSEL:
Mario Lebrun for plaintiff.
André Rhéaume for defendant.
SOLICITORS:
Guy & Gilbert, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
MULDOON J.:
EDITOR'S NOTE
The Editor has decided to report this 23 page
judgment as abridged. The decision is of impor
tance in view of its practical implications for cus
toms procedure. His Lordship has held that it is
misleading and illegal for the customs inspector to
put the question: "Have you anything to declare?"
Considering the relevant statutory provisions,
customs officials should give travellers the follow
ing warning: "You must declare all the effects of
which you have the responsibility or custody."
There follows a digest of the omitted portion of
the judgment.
This is an action for the recovery of jewellery
seized by customs officers at Mirabel airport. The
case for the Crown was that the plaintiff and his
spouse had been questioned concerning their
foreign acquisitions and answered that they had
neither received nor purchased anything. They
were referred to the secondary inspectors who
asked plaintiff some three times whether he had
anything to declare. The plaintiff replied in the
negative twice but at the third asking admitted
having merchandise to declare to a value of
$173.00. The plaintiff's bagage was searched and
goods having a total value of $9,371.90 were
seized. It was accordingly argued that the plaintiff
had made a false declaration in an attempt to
avoid payment of duty and that the goods had
been properly confiscated under the Act.
The plaintiff did admit having purchased certain
of the goods but says that he told the primary
customs inspector that he had some small items.
The plaintiff maintains that almost all of the goods
seized had belonged to him for a long time and
had been brought with him when he immigrated to
Canada in 1979. The plaintiff testified that at the
time of his original arrival in Canada he had not
made a list of his jewellery. His Lordship made
reference to the experiences with customs offi
cials of other travellers as recounted in reported
cases. These suggested that the story given by
the plaintiff was not unbelievable.
Evidence was given by a jeweler. He had exam
ined the seized jewellery in order to determine
whether it was new or used. His opinion was that
it was new since signs of wear were absent. But
the plaintiff gave evidence that the jewellery was
seldom worn. His Lordship then reviewed the
testimony given by the customs officials who had
interviewed the plaintiff on the occasion in
question.
In his oral argument, counsel for the defendant
invoked section 18 of the Customs Act, R.S.C.
1970, c. C-40. The relevant parts of that section
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 ... and of the quantities and values of such
goods ...;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.
This provision of the Act has attracted much
jurisprudence over the years. There is, inter alia,
the recent decision of Strayer J. of this Court in
Glisic v. The Queen, [1984] 1 F.C. 797; 3 D.L.R.
(4th) 90. The judge is reported at pages 802 and
803 F.C.; 93 and 94 D.L.R., as follows:
I said that I came to this conclusion "reluctantly" because,
regardless of the relative merits in this particular case, I am
concerned about the implications of section 18. Taken literally,
it means that a person entering or re-entering Canada should
declare every item of personal property he carries or is wearing
on his person including, presumably, his underclothes. If he
fails to do so then, by the combined operation of sections 18
and 180 of the Customs Act, any or all of these items which are
not declared are subject to seizure and ultimately to forfeiture
to the Crown. This is because section 18 requires reporting of
"all goods in his charge or custody". It is not confined to all
goods acquired abroad or all goods acquired on this trip. I think
I can take judicial notice of the fact that few if any travellers
understand this to be the law nor is it so administered by
Revenue Canada. If a person such as the plaintiff were to bring
in goods with him upon immigrating to Canada, and were to
use them for many years in Canada and carry them back and
forth across the border on trips outside Canada, it would indeed
come as a surprise if after many such crossings without difficul
ty he were challenged by a customs officer with respect to such
articles. Yet it is the position of the Crown that under section
18 a customs officer may so challenge the re-entry of such
goods to Canada and where no declaration has been made with
respect to them, such goods are subject to forfeiture. I agree
that section 18 must be interpreted in this way, but I feel
obliged to observe that it could equally be interpreted to
authorize the seizure and forfeiture of anything which a
Canadian had acquired in Canada, owned all his life, and
carried abroad with him on a holiday should he fail to declare it
upon his re-entry to Canada. That the law is not administered
in this way is a tribute to the good sense of the customs officers,
but it does leave in their hands and those of the Minister an
arbitrary power of decision as to what goods are to be forfeited
for non-declaration.
Section 8 of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982, Shedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] guarantees "the right to be
secure against unreasonable search or seizure". The plaintiff in
the present case was unrepresented by counsel and the possible
application of section 8 was not raised in argument. Nor do I
think this an appropriate case, on the facts, for a court to
determine whether sections 18 and 180 of the Customs Act
authorize an "unreasonable seizure". For example, it is prob
able that all relevant elements of the forfeiture pre-date the
entry into force of the Charter. But that is not to say that the
issue could not properly arise in other cases where these
sections are invoked.
In Kong et al. v. The Queen (1984), 10 D.L.R.
(4th) 226, Collier J. of this Court, citing those
words of Strayer J.,' stated the following (at page
237):
I agree with my colleague's legal conclusions and with his
comments. I add an observation I have made during the
hearing of this and other similar cases: if the law were complied
with, and applied, literally, border crossing line-ups, of persons
arriving in Canada from the United States, could conceivably
stretch from the Canadian to the Mexican border.
It is obvious that the customs officers, at Van-
couver or at Mirabel—or anywhere in Canada—
are the proper officers of the Crown. They are
responsible for enforcing the Act, at least initially.
They are responsible for all the necessary docu
mentation, namely forms B-3, B8, K9 3/4, and so
on. If the defendant wishes to rely on a strict
application of section 18 of the Act, who then
authorized the proper officers to carry out a less
than strict application?
When the customs officer asked the plaintiff
whether he had purchased or received anything
abroad, the plaintiff replied in the affirmative. But
when the customs officers asked the question:
"Have you anything to declare?", they were
asking a misleading and illegal question. There is
no question; there is nothing optional. As Strayer
J. and Collier J. held, a person entering from
abroad has no option, since he must declare "all
goods in his charge or custody".
Whether or not the traveller (the plaintiff here)
makes a declaration determines whether his
"goods" can be characterized as "smuggled or
clandestinely introduced into Canada". If the trav
eller truthfully declares all his normal traveller's
effects, including any effects purchased or
received, and if he has nothing prohibited, his
"goods" are therefore not smuggled.
It is obvious that in the case at bar the plaintiff,
after replying in the affirmative to the question
concerning what had been bought or received,
found the second question "Have you anything to
declare?" confusing and misleading. With regard
to this question, the plaintiff testified: "I don't
know what to declare" (transcript, page 80).
A strict application of the Act requires the
proper officers not to ask travellers any misleading
and, in any case, illegal questions. In order to
obtain a legal answer from the traveller, they must
put forward a legal proposition, namely: "You
must declare (or you are required to declare) all
effects in your charge or custody", regardless of
their discretion to allow up to $150 per person.
In the case at bar, the officer Médéros misled
the plaintiff and it was this same officer who
caused the plaintiffs "goods" to be regarded as
smuggled. This was not the plaintiffs fault. He
acted in this way owing to the erroneous applica
tion of the Act. It must be said, on the customs
officers' behalf only, that this has long been their
practice.
After all, it is not difficult to imagine why the
plaintiff said "When one makes a mistake, one
must pay", that which Mr. Mousseau wrote on the
back of Exhibit D-4.
The rule of criminal law ignorantia juris non
excusat is not applicable against the plaintiff in
the case at bar. As Glanville Williams has stated
in his Textbook of Criminal Law (Stevens &
Sons, London, 1978), at page 410, the most impor
tant limitation of the rule is that it applies only to
criminal law. Moreover, it should be noted that
Parliament did not append to section 18 of the
Customs Act a provision similar to section 19 of
the Criminal Code [R.S.C. 1970, c. C-34] or
section 128 of the National Defence Act [R.S.C.
1970, c. N-4]. The plaintiff is not appearing as an
accused. It is not an offence to be misled by an
illegal question posed by a customs officer.
The Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
came into force prior to September 25, 1982.
Section 8 of the Charter guarantees:
8.... the right to be secure against unreasonable search or
seizure. [Emphasis is mine.]
In the case at bar the seizure of the plaintiff's
goods was clearly unreasonable. Section 18 of the
Customs Act is declared inoperative with regard to
the plaintiff's claim.
For all these reasons, the plaintiff's claim must
be allowed with costs. Customs seizure 339T358 is
set aside and the defendant must restore freely to
the plaintiff the goods seized, except items 12 to
23 of Exhibit P-1. The said items are subject to the
normal duty since the plaintiff declared them
when he arrived on September 25, 1982.
Under the provisions of Rule 337(2) [Federal
Court Rules, C.R.C., c. 663], counsel for the
plaintiff may prepare a draft of an appropriate
judgment to implement the Court's conclusion. If
possible, the said counsel shall obtain the consent
of counsel for the Crown on the wording, if not the
content, of the judgment, always following Form
14. Counsel for the plaintiff may then follow the
provisions of paragraphs (3) and (4) of Rule 337.
If there are any problems, the respective counsel
are free to approach the Court in order to resolve
them.
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.