In re Excise Act & a 1970 Chrysler Automobile
Trial Division, Walsh J.—Montreal, September
25; Ottawa, September 28, 1972.
Excise—Seizure of vehicle used in committing offence—
Opposition by lien-holder—Not within statute—Excise Act,
R.S.C. 1970, c. E-12, s. 164.
Pursuant to section 163(1)(a) of the Excise Act, R.S.C.
1970, c. E-12, the Crown seized an automobile used by D
for transporting unlawfully manufactured spirits. D was
subsequently convicted of that offence. Several months
after the seizure an information was filed under section 114
for condemnation of the automobile. One M then, by a
proceeding entitled "contestation and revendication of
effects seized", sought an order under section 164(2) that
her interest as a lien-holder in the seized automobile was
not affected by the seizure on the ground that she was
innocent of any complicity in D's offence.
Held, M's contestation and revendication should be
struck out. Section 164 gives a lien-holder no right to
oppose a seizure and moreover Ms proceeding was not
brought within one month of the seizure as required by
section 164(2).
The King v. Krakowec [1932] S.C.R. 134, applied.
MOTION.
Yvon Brisson for the Queen.
G. Latulippe for Ghyslaine Monette.
WALSH J.—According to the declaration in
the record the contents of which are admitted in
the pleading entitled "contestation and revendi-
cation of effects seized" (translation) the
automobile in question was seized on July 22,
1971 in accordance with the provisions of sec
tion 163(1)(a) of the Excise Act, R.S.C. 1970, c.
E-12, as having been used by Gaston Dubois
for the transportation of unlawfully manufac
tured spirits. By notice dated August 3, 1971
Dubois gave notice through his attorneys to Her
Majesty the Queen that he claimed and intend
ed to claim the said automobile. The outcome of
this claim on his behalf does not appear from
the record but counsel for Her Majesty indicat
ed that it was not proceeded with. He also
indicated that in due course Dubois was con
victed and fined in accordance with the provi
sions of section 163(2) of the Act. It was not
until April 4, 1972, however, that the Informa-
tion asking for the condemnation of the
automobile so seized was taken under the provi
sions of section 114 of the Act.
Under the provisions of the said section 114
notice of this information must be processed in
the office of the registrar, clerk or prothonotary
of the Court and also in the office of the collec
tor or chief officer in the excise division where
in the goods have been seized, and such a
notice was duly posted in the office of the
Court on April 12, 1972. Subsection (2) of
section 114 provides that: "Where the owner or
person claiming the goods or thing presents a
claim to the same and gives security and com
plies with all the requirements in this Act in that
behalf" the Court may then hear and determine
the claim but this is subject to subsection (3)
which reads as follows:
114. (3) No claim on behalf of any person who has given
notice of his intention to claim before the posting of such
notice as aforesaid shall be admitted, unless made within
one week after the posting thereof; nor shall any claim be
admitted unless notice thereof has been given in writing to
the collector or superior officer within one month from such
seizure.
and Dubois, who had on August 3, 1971, given
notice of an intention to claim the automobile,
does not appear to have made his claim within
one week after the posting of the notice of the
information seeking condemnation of the car,
and the contestation and revendication of Dame
Ghyslaine Monette, while produced on May 4,
1972, that is within one month of such notice,
was not made within one month from the sei
zure on July 22, 1971. In any event, her claim
under section 164(2) of the Act would be
merely to an order that her interests be not
affected by the seizure, as a lien-holder inno
cent of any complicity in the offence resulting
in the seizure and that she had exercised rea
sonable care with respect to Dubois, the lien-
giver. Furthermore, her right to make the claim
is limited by section 164(1) which reads as
follows:
164. (1) Whenever any horses, vehicles, vessels or other
appliances have been seized as forfeited under this Act any
one, (other than the person accused of an offence resulting
in such seizure or person in whose possession such horses,
vehicles, vessels or other appliances were seized) who
claims an interest in such horses, vehicles, vessels or other
appliances as owner, mortgagee, lien-holder or holder of
any like interest may within thirty days after such seizure
apply to any judge of any Superior Court of a province of
Canada or to a judge of the Exchequer Court for an order
declaring his interest.
which again limits the right to a period of thirty
days after the seizure.
The Supreme Court case of The King v. Max
Krakowec et al. [1932] S.C.R. 134, which dealt
with section 181 of the Excise Act (R.S.C.
1927, c. 60) which contained substantially simi
lar provisions to the present section 163, and
with section 124 of that Act which was the
same as the present section 114, held, in part as
follows:
A truck in the possession and use of its purchaser under a
conditional sale agreement, by which the property in and
title to it remained in the vendors until payment in full and
on which a balance remained unpaid, was seized under
circumstances which, as held on facts admitted, must be
taken to have made it liable to forfeiture to the Crown
under said s. 181. Held that it was liable to forfeiture not
only as against the person in whose possession it was seized
but also as against the said vendors, although the latter had
no notice or knowledge of the illegal use which was being
made of it.
The court is not vested under s. 124 of the Act with any
discretionary power in the matter. It must decide according
to law.
See also The King v. Central Railway Signal Co.
Inc. [1933] S.C.R. 555 which also dealt with
section 124 of the Act as it then was. It is
evident that a lien-holder such as Dame Ghys-
laine Monette cannot oppose the seizure by the
Crown or revendicate the effects seized but that
her rights must be limited to those set out in
section 164. The contestation and revendication
brought by Dame Ghyslaine Monette in the
present proceedings could not be sustained,
therefore, for two reasons:
(a) it was brought beyond the legal delays;
and
(b) its conclusions ask for relief which could
not be granted by the Court.
It follows that the motion for striking out this
contestation and revendication by virtue of
Rule 419 on the ground that it discloses no
reasonable cause of defence and that it is an
abuse of the process of the Court should be
granted with 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.