Date: 20040726
Docket: T-1323-01
Citation: 2004 FC 1036
Ottawa, Ontario, the 26th day of July 2004
Present: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
JAMES MERCIER AND
CALGARY SKYDIVE CENTRE INC.
Plaintiff
- and -
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA AS REPRESENTED BY
THE MINISTER OF NATIONAL REVENUE
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1] This is an action pursuant to section 135(1) of the Act appealing the decision of the Minister. In his claim, the Plaintiff seeks a declaration that the Plaintiffs have not contravened the Customs Act, R.S.C. 1985, c. 1 (2nd Supplement) as amended (the Act). Following an investigation by Constable Michael McIntaggart of the Calgary Customs and Excise section of the Royal Canadian Mounted Police (the Customs Officer), a determination was made that the Plaintiffs had contravened the Act, by unlawfully importing into Canada parachutes and parachute accessories. A Notice of Ascertained Forfeiture (the Notice) dated June 12, 1998, pursuant to subsection 124(1) of the Act was prepared and served upon the Plaintiffs. The Minister of National Revenue (the Minister) upheld the Notice and resulting monetary demand by a decision dated May 17, 2001. The Corporate plaintiff Calgary Skydive Centre Inc. (the Company) has discontinued its action. Therefore, the issues to be determined in this proceeding are in respect of the Plaintiff, James Mercier (Mr. Mercier).
Nature of the proceedings
[2] Section 135 of the Act provides that a plaintiff may appeal the Minister's decision under section 131 of the Act by way of an action to the Federal Court. The nature of the appeal that is provided from the decision of the Minister in section 135 is discussed by Mr. Justice MacKay in Mattu v. Canada (1991), F.T.R. 45. At paragraph 27 of his reasons, Mr. Justice MacKay stated:
Section 135 of the Customs Act does not set out in any detail the requirements or the nature of the appeal that is provided from the decision of the Minister, and those matters were not argued in this appeal. My interpretation of the section is that it provides for trial de novo in the sense that the court is not limited to consideration of evidence that was before the Minister. At the same time, as in the case of appeals from other administrative decisions or decisions of quasi-judicial bodies established by statute this court will not readily vary the decision appealed from unless it is persuaded that the Minister or his agents failed to observe a principle of natural justice or failed to act within his or her statutory discretion, or that the decision is based on an error in law, or is based on a finding of fact that is perverse or capricious or without regard to the evidence before the Minister.
I accept this as the appropriate approach and applicable standard in conducting an appeal under section 135 of the Act.
The evidence
[3] The parties were content for the purpose of this appeal to adduce in evidence the affidavits already filed in a number of interlocutory proceedings in this matter, the discovery transcripts and the evidence set out in an investigation report prepared by the Customs Officer. I will accept this factual evidence in this proceeding. In addition, Mr. Mercier was cross-examined at trial on his affidavit evidence and on his evidence given on discovery by counsel for the defendant. Relevant portions of the evidence will be referred to in these reasons, including those facts and conclusions which are disputed by the parties.
Background Facts
[4] Mr. Mercier primarily relies on his affidavit sworn January 18, 2003, in support of an unsuccessful application for summary judgment on behalf of the Plaintiffs. The Defendant relies on the affidavit of the Customs Officer sworn March 12, 2003, filed in opposition to the motion for summary judgment, and on the evidence the Officer relied on in the preparation of his investigation report, which includes the following:
a) Corporate search results confirming that Mr. Mercier owned the Company;
b) A witness statement from Suzanne Smith confirming that she was with Mr. Mercier when he drove to Montana to pick up parachutes and brought them back across the border without declaring them;
c) A witness statement from Jodie Eaton confirming she was with Suzanne Smith and Mr. Mercier when they drove to Montana to pick up parachutes and brought them back across the border without declaring them;
d) A witness statement from Albert Norman Champagne confirming that he was present when, in 1989, Mr. Mercier smuggled parachute equipment into Canada;
e) A witness statement from Randy Fewchuk confirming that Mr. Mercier told him he had a warehouse in Sweetgrass, Montana, where he has parachute equipment sent and he crosses the border and smuggles the equipment back;
f) A witness statement from Don Gibson confirming that while he worked with Mercier he smuggled large quantities of skydive equipment into Canada by having it shipped to the American warehouse in Sweetgrass, Montana, and he would drive down to pick up the items and cross the border at an uncontrolled crossing;
g) Various invoices, delivered to the Customs Officer from U.S. Customs, issued by American companies for parachutes and parachute equipment to Mercier and/or the Company;
h) No customs entries were found for any of the Equipment detailed in the Invoices;
i) A statement from the Customs Officer that the only Canadian Customs entries that could be found for the Company and the various entries used by Mr. Mercier were for inexpensive parachute parts shipped directly to the Company.
[5] It is the evidence of the Customs Officer that he was unable to locate Mr. Mercier in order to effect service of the Notice. He attests that on June 12, 1998, he delivered the Notice to Mr. Mercier and the Company, care of Brenda Marshall of Lasting Impressions, who told the Customs Officer that she accepted mail and deposits for the Company. Later in the day on June 12, 1998, Mr. Mercier telephoned the Customs Officer and confirmed that he had received the Notice. During this telephone conversation on June 12, 1998, the Customs Officer claims that he explained the Notice and appeal process to Mr. Mercier. He states that Mr. Mercier did not deny any of the allegations and asked that the Customs Officer not search the skydive site as it would cause problems and put the new owner out of business.
[6] Correspondence dated July 6, 1998, from former counsel for the Plaintiffs confirmed that the Notice was "served on James Mercier and the Calgary Skydive Centre Inc. on the 12th day of June, 1998."
[7] On the 6th day of July 1998, the Plaintiffs through their counsel requested a decision of the Minister pursuant to section 129 of the Act.
[8] Notwithstanding two written requests, the Plaintiffs did not submit any evidence nor make submissions to the Minister prior to the Minister rendering his decision. In his decision dated May 17, 2001, the Minister:
a) Decided that the Plaintiffs contravened sections 12, 17, and 32 of the Act and the Reporting of Imported Goods Regulation as set out in the Notice;
b) Decided to reduce the assessed penalty due to the delay in rendering a decision while the file was held in abeyance pending a review of the GST penalty scheme; and
c) Demanded payment of the reduced amount of $34,458.29.
[9] The following facts advanced by Mr. Mercier are not in dispute:
a) The claim documented in the investigation report of the RCMP dated June 9, 1998, shows that the investigation was commenced in November 1993;
b) No attempt was ever made by customs officials to seize any goods either before or after the issuance of the Notice;
c) There is no affidavit of service of the Notice;
d) Most invoices of product produced by the Defendant forming the basis of the allegation of smuggling disclose the method of shipping was via a bonded brokered courier.
[10] It is Mr. Mercier's evidence that he was not a director of the Company in 1993. It is also his evidence that he was not a shareholder, nor an officer, nor was he operating the business of the Company in 1994. The Defendant disputes this evidence alleging that corporate search results confirm that, at all material times, Mr. Mercier was a shareholder and a director of the Company.
[11] Mr. Mercier also takes issue with the Defendant's contention that the Notice was served on the Plaintiffs on June 12, 1998. It is Mr. Mercier's evidence that he was only served on July 6, 1998. Finally, Mr. Mercier contends that it is material to these proceedings that a notice of motion by the Plaintiffs was required in order to obtain full disclosure of the Defendant's documents. He states that it is only upon the filing of the Defendant's Supplemental Affidavit of Documents, sworn on the 16th day of September 2002, that the Plaintiffs received all of the Defendant's documents.
Issues
[12] A number of issues are raised by the parties in this appeal. I will frame the issues to be decided as follows:
i) Was the individual Plaintiff, Mr. Mercier, director of the corporate plaintiff at the material times, and consequently liable for any claim against the corporate Plaintiff?
ii) Did the Officer fail to act within his statutory discretion by serving the Notice on the Plaintiffs, and if so, did the Minister err in upholding the Notice?
iii) Was the issuance and service of the Notice statute barred?
The Legislative Framework
[13] Sections of the Act applicable to the within proceeding are reproduced in schedule "A" to these reasons.
Analysis
[14] Section 152(3)(d) provides that the burden of proof in any question relating to compliance with any of the provisions of this Act or the Regulations in respect of any goods lies on the person who is accused of an offence, and not on Her Majesty. The burden of proof therefore lies on the individual Plaintiff, Mr. Mercier.
i) Was the individual Plaintiff, Mr. Mercier, director of the corporate plaintiff at the material times, and consequently liable for any claim against the corporate Plaintiff?
[15] With respect to Mr. Mercier's status as both a director and shareholder of the corporate Plaintiff, the Defendant adduced two corporate searches, including one from 2003, showing Mr. Mercier as both a director and shareholder of the corporate Plaintiff.
[16] Mr. Mercier's evidence is that he divested his interest in the Company in the latter part of 1992 and ceased to be an officer and/or shareholder in the Company at that time. In his January 18, 2003, affidavit he attested: "...I believe that the (sic) Paul Sather was the only director and the sole owner of Calgary Skydive Inc. in 1994. I believe that in 1994 Paul Sather was managing all of the equipment repairs and maintenance." Further, when he was cross-examined on his affidavit Mr. Mercier testified as follows:
Q MR. BOYD: Now, one of the plaintiffs in this action is Calgary Skydive Centre Inc. It's true that you were not a shareholder of that company in 1994, correct?
A That is correct.
Q And you were also not a director of that company in 1994, correct?
A That's correct.
Q Those statements are true for the entire year of 1994?
A That's correct.
Q And that's because you sold the company in 1993, correct?
A That's correct.
Q So from 1994 on, you were neither a director or a shareholder of that company?
A From nineteen - I'm sorry?
Q 1994 on.
A Actually, I had more - divested my interests late part of '92, and in '93 Paul Sather was running it.
Q So from the time you sold it, there on - and you sold it sometime in 1993 - you ceased to be a director or a shareholder.
A That's right.
Q Do you know exactly when you sold it?
A Paul took over sometime late '92.
Q And you were also not, from 1992, or from the date of the sale on, you were also not an officer of that company.
A No.
Q That's no, you were not an officer, correct?
A That's what I said. No.
Q Yes. Just clarifying.
A Oh, okay. I think - I may have been on some of the documentation and that, 'cause Paul hadn't paid me out yet in full, so I may have shown on Central and Corporate Registry while he was completing the purchase.
[17] At trial, Mr. Mercier essentially confirmed that this was still his evidence. No further clarification was forthcoming from Mr. Mercier on the disposition of the Company. What is clear from the evidence is that his name is listed on the corporate registry as a shareholder and director of the Company. Mr. Mercier has chosen not to provide the details of how and when he was formally removed as director of Calgary Skydive Inc. and as a result, I am not prepared to accept his vague assertions over the hard evidence of a corporate search adduced by the Defendant showing him to be the sole director and the sole voting shareholder of the corporate Plaintiff as of February 20, 2003. I therefore find that Mr. Mercier was a director and shareholder of Calgary Skydive Centre Inc. as reflected in the corporate registries at the material times. As such he must bear the legal responsibilities and liabilities of the corporate Plaintiff that flow from his position.
ii) Did the Officer fail to act within his statutory discretion by serving the Notice on the Plaintiffs, and if so, did the Minister err in upholding the Notice?
[18] Subsection 124(1) of the Act provides that a Notice demanding payment may be served on a person believed, on reasonable grounds, to have contravened the Act, "...if the goods or conveyance is not found or if the seizure thereof would be impractical...." The undisputed evidence establishes that a search warrant was not sought nor was any effort made by the Defendant to seize the alleged goods. The Defendant concedes that no warrants were sought and that no efforts were made to search for the goods at issue. There is no evidence to suggest that the impugned goods could not have been found. The Defendant essentially argues that it was impractical to seize the goods, and not that the goods could not be found. The only issue remaining, then, is to determine whether it was impractical to seize the goods.
[19] The Ascertained Forfeiture provisions of the Act allow the Minister to demand payment in respect of goods that cannot be found or cannot be practically seized. Once issued, the Notice is effectively a judgment for all intents and purposes. The amount demanded in the Notice is payable immediately on receipt of the notice and, if not paid within 30 days of the date of the notice, interest is payable on the outstanding balance at the prescribed rate. The provision is therefore a potent instrument available to the Minister in the administration and enforcement of the Act, and in my view is an extraordinary provision. It is extraordinary in the sense that the usual procedure under the Act contemplates seizure of the offending goods. The statutory pre-conditions therefore must be met for a Notice to be effective.
[20] The language of sub-section 124(1) of the Act is clear. A Notice may only be issued when one of two pre-conditions are met, namely that the impugned goods are not found, or that it is impractical to seize the said goods. With respect to the first requirement, I have already determined that there is no evidence to support the contention that the goods could not be found.
[21] As for the second pre-condition, the Defendant's position is that the Customs Officer was in full compliance with the provisions of section 124 of the Act and was justified in serving the Notice on the Plaintiffs. The Defendant contends that the seizure of the said goods was impractical. Obtaining a search warrant and searching the Company premises would have meant shutting the jump school during its busiest season, namely the summer months. The Defendant argues that search and seizure of alleged smuggled goods is an involved procedure necessitating time for the proper identification of the goods, and would have been very disruptive to the skydiving school. This would have caused significant hardship to the Company and thus decided that the search and seizure of the goods would have been impractical for this reason. The Defendant also contends that since Mr. Mercier was a shareholder and director of various companies involved in the skydiving business, it was possible that the alleged smuggled goods could have ended up at any one of these sites. As a result, it is the Defendant's position that it would have been difficult to obtain a search warrant. These are also the factors identified by the Customs Officer in his decision not to attempt to obtain a warrant. He rightly determined, according to the Defendant, that the seizure of the alleged smuggled goods would have been impractical and that the Notice procedure was designed for such a circumstance.
[22] Mr. Mercier argues that the evidence does not support a finding that the seizure of the goods was impractical. It is argued that impracticality cannot be justified on the basis that the seizure may affect the viability of the enterprise using the smuggled goods in its business operations. He asserts that when it became evident that mere weeks were left under the limitation provisions, the Defendant used the Notice because he did not have the time to proceed under any other avenue. It is argued that this is not a proper use of the Notice provision of the Act. Mr. Mercier argues that the issuance of the Notice had nothing to do with the inability to seize the goods by reason of impracticality but rather had everything to do with taking action before the expiration of the statutory limitation period, which was about to expire. The parachutes were easily identifiable, had serial numbers, were colour coded, manufacturer marked, named, branded and used in the same place on a routine basis. It was not impractical to seize such materials.
[23] Mr. Mercier further argues that it is unfair to ask him to disprove a contravention of the Act so long after the events in question. He contends that the goods alleged to have been smuggled should have been seized or, at the very least, an effort should have been made to obtain a warrant for their seizure and a search conducted before resorting to the issuance of the Notice.
[24] In my view, the reasons advanced in argument by the Defendant with respect to the impracticality of the seizure fall short of what is contemplated in the legislation. A Notice may be served where goods or conveyances in respect of which the Act has been contravened cannot be found or cannot practically be seized.
[25] The Customs Officer essentially advances two reasons to justify his decision that the seizure of the goods is impractical. First, that it was possible that the alleged smuggled goods could have ended up at different sites and, as a result, it would have been difficult to obtain a search warrant. Second, that seizure of the goods would have meant shutting down the skydiving school during its busiest season. This would have been very disruptive to the skydiving school.
[26] In my view, neither of these reasons justify the Customs Officer's decision that the seizure of the goods was impractical. In the circumstances, there is simply no merit to the first proposition advanced by the Customs Officer. No attempts were made to obtain search warrants and the sites at issue were known to the Customs Officer. The alleged difficulties advanced by him are speculative at best and do not justify impracticality of seizure of the impugned goods.
[27] The second proposition that seizure of the goods would have been impractical because it would have negatively affected the skydiving school is equally without merit. The Customs Officer had reasonable grounds to believe that the goods at issue were smuggled. Therefore, I have difficulty understanding how one could justify not seizing the goods, on the basis that seizure would be impractical because it may have affected the viability of the enterprise, the very enterprise using goods alleged to have been smuggled in the conduct of its business operations. In the circumstances and in the context of proceedings under the Act, such teneous reasoning fails to explain or justify how seizure was impractical.
[28] One of the purposes served by finding and seizing smuggled goods is to ensure that the goods exist and are indeed within Canada. The goods are then clearly identified and the person alleged to have contravened the Act can know specifically which goods are in issue. Once this is established, the Act specifically deals with proof of the foreign origin once the goods have been found in Canada [ss.152(2)]. The focus of various provisions of the Act in respect of smuggled goods is on finding and seizing the goods in Canada. Section 125 the Act specifically provides that the Notice is automatically cancelled upon seizure of the goods in respect of which the Notice was served.
[29] A Notice is not an alternative recourse for the Defendant. For a Notice to be properly issued, there must be evidence which would allow one to reasonably conclude that the goods cannot be found or that their seizure is impractical. I have determined, earlier in these reasons, that there is no evidence to allow me to reasonably conclude that the goods or conveyance could not be found. I also find that the evidence in this case does not support a finding that the seizure of the goods was impractical. The parachutes were easily identifiable, bore serial numbers, were colour coded, manufacturer marked, named, branded and used in the same place on a routine basis. It has not been shown that seizure of the goods was impractical. The evidence rather supports an inference that subsection 124(1) was used in this case because it was convenient to do so, as time was running out with respect to the limitation period provided for in section 113 of the Act. In effect, I find that the Defendant used the Notice as a last minute instrument to secure a judgment on a file that had remained dormant for the better part of six years. The legislation does not, in my view, contemplate such a use for Notices.
[30] I conclude that the Minister erred in upholding the Notice. The evidence does not support a finding that the seizure of the goods was impractical. I find, therefore, that the Customs Officer erred in determining that the seizure of the goods at issue would be impractical. By doing so, he failed to act within his statutory discretion by serving the Notice on the Plaintiffs. The Notice was not issued in compliance with the Act and is consequently quashed.
iii) Was the issuance and service of the Notice statute barred?
[31] Mr. Mercier advances two preliminary arguments with respect to the Notice. First, he contends that personal service of the Notice was not effected and the affidavit of service was not filed as required by the Act. Second, he contends that the Notice is statute-barred, since it was served outside the six year limitation period provided for in the Act.
[32] Since my conclusion set out in paragraph 30 of these reasons is determinative of this action, it will not be necessary to decide the final issue. I will nevertheless make the following observation with respect to service of the Notice.
[33] Notwithstanding the evidence of the Customs Officer attesting to the fact that Mr. Mercier had called him on July 12, 1998, confirming that he had received a copy of the Notice from Brenda Marshall, it is arguable that this may not be sufficient to meet the service requirements on the Plaintiffs as prescribed by the Act.
Conclusion
[34] Fort he above reasons the appeal will be allowed.
JUDGMENT
THIS COURT ADJUDGES that:
1. The appeal is allowed.
2. The Notice of Ascertained Forfeiture is quashed.
3. The Plaintiff, Mr. Mercier, is awarded costs.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: James Mercier et el. v. Her Majesty the Queen et al.
STYLE OF CAUSE: T-1323-01
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: April 29, 2004
REASONS FOR JUDGMENT BY: BLANCHARD, J.
DATED: July 26, 2004
APPEARANCES BY:
Mr. Robert C. Burgener For the Plaintiff
Mr. John Gibb-Carsley For the Defendant
SOLICITORS OF RECORD:
Mr. Robert C. Burgener For the Plaintiff
300 - 10209 -97 Street
Edmonton, Alberta T5J 0L6
Morris Rosenberg For the Defendant
Deputy Attorney General of Canada
Edmonton, Alberta T5J 3Y4
SCHEDULE "A"
| 17. (1) Imported goods are charged with duties thereon from the time of importation thereof until such time as the duties are paid or the charge is otherwise removed.
(2) Subject to this Act, the rates of duties on imported goods shall be the rates applicable to the goods at the time they are accounted for under subsection 32(1), (2) or (5).
(3) Whenever the importer of goods that have been released or any person authorized pursuant to paragraph 32(6)(a) to account for goods becomes liable under this Act to pay duties thereon, the owner of the goods at the time of release becomes jointly and severally liable, with the importer or person authorized, to pay the duties. |
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17. (1) Les marchandises importées sont passibles de droits à compter de leur importation jusqu'à paiement ou suppression des droits.
(2) Sous réserve des autres dispositions de la présente loi, le taux des droits payables sur les marchandises importées est celui qui leur est applicable au moment où elles font l'objet de la déclaration en détail ou provisoire prévue aux paragraphes 32(1), (2) ou (5).
(3) Dès que l'importateur de marchandises dédouanées ou quiconque est autorisé à déclarer des marchandises en détail conformément à l'alinéa 32(6)a) devient redevable, en vertu de la présente loi, des droits afférents, la personne qui est propriétaire des marchandises au moment du dédouanement devient solidaire du paiement des droits. |
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| 113. No seizure may be made under this Act or notice sent under section 124 more than six years after the contravention or use in respect of which such seizure is made or notice is sent. |
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113. Il ne peut être procédé aux saisies prévues par la présente loi ni à l'envoi des avis prévus à l'article 124 plus de six ans après l'infraction ou l'utilisation passible de saisie ou susceptible de donner lieu à l'envoi. |
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| 124. (1) Where an officer believes on reasonable grounds that a person has contravened any of the provisions of this Act or the regulations in respect of any goods or conveyance, the officer may, if the goods or conveyance is not found or if the seizure thereof would be impractical, serve a written notice on that person demanding payment of
(a) an amount of money determined under subsection (2) or (3), as the case may be; or
(b) such lesser amount as the Minister may direct.
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124. (1) L'agent qui croit, pour des motifs raisonnables, à une infraction à la présente loi ou à ses règlements du fait de marchandises ou de moyens de transport peut, si on ne les trouve pas ou si leur saisie est problématique, réclamer par avis écrit au contrevenant_:
a) soit le paiement du montant déterminé conformément au paragraphe (2) ou (3), selon le cas;
b) soit le paiement du montant inférieur ordonné par le ministre.
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| 127. The debt due to Her Majesty as a result of a notice served under section 109.3 or a demand under section 124 is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 127.1 and 129.
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127. La créance de Sa Majesté résultant d'un avis signifié en vertu de l'article 109.3 ou d'une réclamation effectuée en vertu de l'article 124 est définitive et n'est susceptible de révision, de restriction, d'interdiction, d'annulation, de rejet ou de toute autre forme d'intervention que dans la mesure et selon les modalités prévues aux articles 127.1 et 129.
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| 129. (1) The following persons may, within ninety days after the date of a seizure or the service of a notice, request a decision of the Minister under section 131 by giving notice in writing, or by any other means satisfactory to the Minister, to the officer who seized the goods or conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or closest to the place from where the notice was served:
(a) any person from whom goods or a conveyance is seized under this Act;
(b) any person who owns goods or a conveyance that is seized under this Act;
(c) any person from whom money or security is received pursuant to section 117, 118 or 119 in respect of goods or a conveyance seized under this Act; or
(d) any person on whom a notice is served under section 109.3 or 124.
(2) The burden of proof that notice was given under subsection (1) lies on the person claiming to have given the notice.
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129. (1) Les personnes ci-après peuvent, dans les quatre-vingt-dix jours suivant la saisie ou la signification de l'avis, en s'adressant par écrit, ou par tout autre moyen que le ministre juge indiqué, à l'agent qui a saisi les biens ou les moyens de transport ou a signifié ou fait signifier l'avis, ou à un agent du bureau de douane le plus proche du lieu de la saisie ou de la signification, présenter une demande en vue de faire rendre au ministre la décision prévue à l'article 131_:
a) celles entre les mains de qui ont été saisis des marchandises ou des moyens de transport en vertu de la présente loi;
b) celles à qui appartiennent les marchandises ou les moyens de transport saisis en vertu de la présente loi;
c) celles de qui ont été reçus les montants ou garanties prévus à l'article 117, 118 ou 119 concernant des marchandises ou des moyens de transport saisis en vertu de la présente loi;
d) celles à qui a été signifié l'avis prévu aux articles 109.3 ou 124.
(2) Il incombe à la personne qui prétend avoir présenté la demande visée au paragraphe (1) de prouver qu'elle l'a présentée. |
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| 130. (1) Where a decision of the Minister under section 131 is requested pursuant to section 129, the Deputy Minister shall forthwith serve on the person who requested the decision written notice of the reasons for the seizure, or for the notice served under section 124, in respect of which the decision is requested.
(2) The person on whom a notice is served under subsection (1) may, within thirty days after the notice is served, furnish such evidence in the matter as he desires to furnish.
(3) Evidence may be given pursuant to subsection (2) by affidavit made before any justice of the peace, commissioner for taking oaths or notary public.
Section 130 was amended by S.C. 1993, c. 25, s. 83, the section now reads as follows: 130. (1) Where a decision of the Minister under section 131 is requested under section 129, the Deputy Minister shall forthwith serve on the person who requested the decision written notice of the reasons for the seizure, or for the notice served under section 109.3 or 124, in respect of which the decision is requested. |
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130. (1) Le sous-ministre signifie sans délai par écrit à la personne qui a présenté la demande visée à l'article 129 un avis des motifs de la saisie, ou des motifs de l'avis prévu à l'article 124, à l'origine de la demande.
(2) La personne visée au paragraphe (1) dispose de trente jours à compter de la signification de l'avis pour produire tous moyens de preuve à l'appui de ses prétentions.
(3) Les moyens de preuve visés au paragraphe (2) peuvent être produits par déclaration sous serment devant un juge de paix, un commissaire aux serments ou un notaire.
Article 130 tel qu'amendé par L.C. 1993, c. 25, s. 83 se lit comme suit : 130. (1) Le sous-ministre signifie sand délai par écrit à la personne qui a présenté la demande visée à l'article 129 un avis des motifs de la saisie, ou des motifs de l'avis prévu aux articles 109.3 our 124, à l'origine de la demande
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| 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court - Trial Division in which that person is the plaintiff and the Minister is the defendant.
(2) The Federal Court Act and the Federal Court Rules applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions.
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135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l'article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d'action devant la Section de première instance de la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.
(2) La Loi sur la Cours fédérale et les Règles de la Cour fédérale applicables aux actions ordinaires s'appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions.
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| 148.(2) Where a notice required by this Act or a regulation is given by personal service, an affidavit of an officer sworn before a commissioner or other person authorized to take affidavits setting out
(a) that the officer has charge of the appropriate records, (b) that he has knowledge of the facts in the particular case, (c) that such a notice was served personally on a named day on the person to whom it was directed, and (d) that he identifies as an exhibit attached to the affidavit a true copy of the notice shall be received, in the absence of evidence to the contrary, as proof of the personal service and of the notice.
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148.(2) En cas de signification à personne d'un document - avis ou préavis - prévu par la présente loi ou ses règlements, fait foi, sauf preuve contraire, de la signification et de l'avis l'affidavit souscrit par l'agent devant un commissaire ou autre personne autorisée à recevoir les affidavits et où il est énoncé_:
a) qu'il a la charge de ce genre de documents;
b) qu'il a connaissance des faits de l'espèce;
c) que le document a été signifié au destinataire en personne à la date indiquée;
d) qu'il reconnaît comme pièce jointe à l'affidavit la copie conforme du document.
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| 152. (1) In any proceeding under this Act relating to the importation or exportation of goods, the burden of proof of the importation or exportation of the goods lies on Her Majesty.
(2) For the purpose of subsection (1), proof of the foreign origin of goods is, in the absence of evidence to the contrary, proof of the importation of the goods. (3) Subject to subsection (4), in any proceeding under this Act, the burden of proof in any question relating to
(a) the identity or origin of any goods, (b) the manner, time or place of importation or exportation of any goods, (c) the payment of duties on any goods, or (d) the compliance with any of the provisions of this Act or the regulations in respect of any goods lies on the person, other than Her Majesty, who is a party to the proceeding or the person who is accused of an offence, and not on Her Majesty.
(4) In any prosecution under this Act, the burden of proof in any question relating to the matters referred to in paragraphs (3)(a) to (d) lies on the person who is accused of an offence, and not on Her Majesty, only if the Crown has established that the facts or circumstances concerned are within the knowledge of the accused or are or were within his means to know.
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152. (1) Dans toute procédure engagée sous le régime de la présente loi en matière d'importation ou d'exportation de marchandises, la charge de prouver l'importation ou l'exportation incombe à Sa Majesté.
(2) Pour l'application du paragraphe (1), la preuve de l'origine étrangère des marchandises constitue, sauf preuve contraire, celle de leur importation.
(3) Sous réserve du paragraphe (4), dans toute procédure engagée sous le régime de la présente loi, la charge de la preuve incombe, non à Sa Majesté, mais à l'autre partie à la procédure ou à l'inculpé pour toute question relative, pour ce qui est de marchandises_:
a) à leur identité ou origine; b) au mode, moment ou lieu de leur importation ou exportation; c) au paiement des droits afférents; d) à l'observation, à leur égard, de la présente loi ou de ses règlements.
(4) Dans toute poursuite engagée sous le régime de la présente loi, la charge de la preuve incombe, pour toute question visée aux alinéas (3)a) à d), non à Sa Majesté, mais au prévenu, à condition toutefois que la Couronne ait établi que les faits ou circonstances en cause sont connus de l'inculpé ou que celui-ci est ou était en mesure de les connaître. |
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