T-1729-75
Émilien Letarte, doing business under the name
Centro Leasing Reg'd—Location Centro Enrg.
(Plaintiff)
v.
The Queen (Defendant)
Court of Appeal, Decary J.—Montreal, February
14; Ottawa, May 11, 1978.
Customs — Seizure — Truck trailers purchased and col
lected in U.S. — Declarations made as to cargo, but not as to
trailers — Truckers unaccustomed to bringing new trailers
into Canada, and given no information by customs official that
declaration necessary — Whether or not seized trailers
declared according to Customs Act — Customs Act, R.S.C.
1970, c. C-40, s. 18.
ACTION.
COUNSEL:
Pierre Dupras for plaintiff.
J. M. Aubry for defendant.
SOLICITORS:
Gottlieb, Agard & Dupras, Montreal, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following is the English version of the
reasons for judgment rendered by
DECARY J.: The question at issue may be stated
as follows: was the object of the seizure declared
according to the provisions of section 18 of the
Customs Act, R.S.C. 1970, c. C-40, or might it
have been so declared? This way of stating the
problem does not necessarily take into account the
actions and words of the customs officers and the
truckers in order to determine whether the truck
ers did in fact declare or might have declared the
trailers before they were seized, and whether in
fact the customs officers acted as they should have
done, taking into account the ways, customs,
habits and language of the truckers, with which
they are familiar.
I believe that the facts in the case at bar should
be carefully examined in order to determine the
significance of section 18 of the Act:
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.
The object of the seizure was five trailers pur
chased in the United States and brought back to
Canada loaded with goods. Only the trailers were
seized.
The evidence showed that the truckers are men
who have no love of paperwork, and who are
primarily interested in the cargo, the cab and the
trailer for which they are responsible. The truckers
who testified established that their trade was
transporting cargo in trucks, and that it was not at
all usual for them to pick up new trailers in the
United States and bring them back to Canada.
These truckers in no way specialized in bringing
new trailers from the United States to Canada.
Their conduct and behaviour at the Rock Island
customs station demonstrate their state of mind:
they were very proud of hauling the new, alumi-
nized trailers, which must have shone under the
lights of the customs station.
It should be noted that before the customs offi
cers announced that the trailers were being seized
the truckers had, as usual, made the declarations
and completed the forms necessary to bring into
Canada the cargo picked up on the trip to the
United States. The truckers also stated, before the
seizure, that the trailers had been picked up in the
United States and that they were new. The phrase
"pick up", used by the truckers when speaking of
the trailers, had the same meaning as the same
phrase used for the cargo, and this is the meaning
it must be given in connection with the trailers,
namely, purchased and collected, and in the case
at bar, purchased and collected in the United
States.
Late in the evening or at the end of a day that
must have been very busy, namely August 1, a
date on which many vacationers were leaving or
returning, the customs officers did not choose to
help the truckers to make their written declara
tions by reminding them that these were required,
even though the truckers had already stated that
they had "picked up" (purchased and collected)
the trailers in the United States, the same as the
cargo. The truckers in the case at bar were accus
tomed to clearing cargoes through customs at
St -Hyacinthe, and after they had said that the
trailers were new and had been picked up in the
United States, it seems to me that the customs
officers should have reminded them of the written
declaration. It must not be forgotten that the
truckers were accustomed to always giving the
same meaning to their declarations, which dealt
with the entry of cargo and not the entry of new
trailers.
It seems to me unjustifiable for a customs offi
cer who is told that a trailer is new and that it was
picked up in the United States not to indicate to a
trucker, who is accustomed to transporting cargo
and not new trailers, that a written declaration is
required. This information constitutes an admis
sion of purchase in the United States and if the
truckers had been asked to complete written decla
rations they would have done so, for each of them
had in his vehicle all the necessary papers to have
the new trailers admitted into Canada without
difficulty. Instead, it was decided to seize the
trailers before such declarations could be com
pleted and apparently while carefully avoiding any
mention that they were necessary. It could not
have been better planned if it had been a trap.
I have read the cases submitted to me with great
care and I feel that each of them involved ques
tions of fact.
In the case at bar, each trucker completed a
written declaration regarding his cargo, that is the
contents of the trailer that he was pulling, and
they could have been assisted by the customs
officers after telling them, before the seizure, that
the trailers were new and had been "picked up" in
the United States. In my opinion, the statement
that the trailers had been picked up in the United
States constitutes a declaration of purchase that
could be joined to the declaration concerning the
cargo. It was then up to the customs officers to
assist the truckers in completing the necessary
forms, rather than act in such a way that the
truckers fell into a trap set either in an excess of
zeal or as a result of fatigue at the end of an
extremely busy day. In any case, the course fol
lowed by the customs officers seems to me to be
irregular, rigid and contrary to the spirit of the
Act.
The conduct of the customs officers prevented
the truckers from making written declarations for
the trailers after they had made such declarations
for the cargo, because the trailers were seized
before they could be declared in writing but after
the cargo had been declared.
Plaintiff's action is allowed and the seizure
made on or about August 1, 1974 of the 1974
Strick Van vehicles with serial numbers 191586,
191588, 191589, 191591 and 191592 is cancelled;
the decisions of the Minister of National Revenue,
Customs and Excise, dated March 7, 1975, are set
aside; the guarantee issued by the Canadian
Imperial Bank of Commerce is cancelled; plaintiff
is permitted to bring the goods in question into
Canada upon payment of the appropriate customs
duties and sales tax; the whole with costs against
defendant.
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.