Date: 20141215

Docket: T-1573-13

Citation: 2014 FC 1216

Ottawa, Ontario, December 15, 2014

PRESENT:    The Honourable Mr. Justice O'Reilly

JUDGMENT AND REASONS

I.                   Overview

[1]               In 2012, Mr Gabriel Lillethun arrived at Pearson International Airport with $20,000 USD in cash hidden in his clothing and luggage. He was travelling from Brazil by way of Panama City. At Customs, he declared that he was not importing currency worth $10,000 or more. An officer of the Canadian Border Services Agency (CBSA) searched Mr Lillethun’s belongings and found numerous bundles of $100 USD bills. The officer asked Mr Lillethun how many bundles he had. Mr Lillethun said he did not know.

[2]               The officer concluded that there were reasonable grounds to suspect that the funds may have been the proceeds of crime and seized them. Mr Lillethun requested a Ministerial review of the seizure and over the course of several months provided many documents to the CBSA, attempting to corroborate his claim that the funds came from sales of electronic equipment and cameras, and were not the proceeds of crime. He said he had failed to declare the funds because he was concerned about the potential tax consequences of disclosing unreported income, and the possible loss of income-based disability benefits for his son.

[3]               A CBSA adjudicator reviewed Mr Lillethun’s documentation and found that it failed to show a link between the recorded transactions and the funds Mr Lillethun attempted to bring into Canada. The adjudicator gave Mr Lillethun a number of opportunities to provide better evidence of the source of the funds but, in the end, she recommended to a delegate of the Minister of Public Safety and Emergency Preparedness that Mr Lillethun be found to have contravened the obligation to disclose the imported currency and that the funds be held as forfeit (Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, ss 12, 29 – see Annex for provisions cited).

[4]               The Minister’s delegate agreed, and refused to exercise her discretion to return the funds or to impose a fine in lieu of forfeiture.

[5]               Mr Lillethun maintains that the Minister’s delegate unreasonably confirmed the seizure of his money. In particular, he contends that there was absolutely no evidence that he was engaged in any unlawful conduct or that the funds were connected in any way to crime. Rather, the evidence he provided clearly showed, he says, that he had an active business buying and selling electronic equipment and cameras. He asks me to order the Minister’s delegate to reconsider the seizure, or to remit some portion of the seized funds to him.

[6]               I see no basis for concluding that the Minister’s delegate’s decision was unreasonable. The evidence Mr Lillethun provided simply did not connect particular transactions with the funds in question. It showed that he was buying and selling goods, but the source of the $20,000 he attempted to import was never identified. Therefore, I must dismiss this application for judicial review.

[7]               The sole issue is whether the Minister’s delegate’s decision was unreasonable.

A.                The Minister’s Delegate’s Decision

[8]               The delegate found that Mr Lillethun had not provided any valid reason for failing to report the currency in his possession. Further, the evidence Mr Lillethun provided, while showing transactions involving the purchase and sale of goods, did not establish a link between those transactions and the seized funds.

[9]               In addition, given that Mr Lillethun had concealed the money in various locations, there were additional grounds for believing that the source of the funds was not legitimate.

[10]           In the circumstances, the delegate declined to exercise his discretion to return the forfeited funds.

B.                 Was the Minister’s delegate’s decision unreasonable?

[11]           Mr Lillethun submits that the delegate failed to give adequate consideration to the evidence showing that the funds derived from his business of buying and selling equipment.

[12]           I disagree.

[13]           The burden rested on Mr Lillethun to show that the funds were not the proceeds of crime by establishing a legitimate source of the funds (Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255, at paras 49-50). This puts Mr Lillethun in an unfortunate situation. While he was able to show that he was involved in buying and selling equipment, his evidence fell short of showing the actual source of the funds he had tried to import.

[14]           Accordingly, I cannot conclude that the Minister’s delegate’s decision was unreasonable on the evidence.

II.                Conclusion and Disposition

[15]           Mr Lillethun was unable to show that the funds he brought into Canada had a legitimate source. Therefore, I cannot conclude that the decision to order the forfeiture of the funds was unreasonable. Accordingly, I would dismiss this application for judicial review, with costs.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed, with costs.

“James W. O’Reilly”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: