T-4447-81
Aleksandar Glisic (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Strayer J.—Toronto, October 18;
Ottawa, November 7, 1983.
Customs and excise — Action for recovery of undeclared
jewellery seized at Toronto International Airport on return
from foreign holiday — Other pieces returned to plaintiff
following objection — Plaintiff testifying jewellery acquired
abroad before immigration to Canada thirteen years previous
ly, carried on many holidays abroad, never declared — Belief
that obliged to declare on re-entry only goods acquired during
trip returned from — On each entry, plaintiff obliged to
declare jewellery and so committing violation of Act s. 18 and
liable to automatic s. 180 forfeiture — Three-year limitation
under Act s. 265 possibly precluding forfeiture for earlier
violations — Necessary interpretation of s. 18 worrisome —
Declaration of all personal property carried or worn required
on every entry, even if acquired in Canada and long owned —
Travellers having different understanding of law — Customs
officers not giving law full scope in practice but having power
arbitrarily to decide which goods forfeited — Plaintiff
unrepresented and no argument made as to whether ss. 18 and
180 infringe Charter s. 8 by authorizing "unreasonable sei
zure" — Customs Act, R.S.C. 1970, c. C-40, ss. 18, 163,
180(1), 265 — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. II (U.K.), s. 8.
On April 7, 1980, the plaintiff returned to Canada from a
holiday in Brazil. When asked by a customs officer whether he
had anything to declare, he replied in the negative. Ten pieces
of jewellery in his possession—four that he was wearing, and
six in his luggage or clothing—were seized. Subsequently, a
notice was sent to him by Revenue Canada, indicating that all
ten items were subject to forfeiture because they "were smug
gled or clandestinely introduced into Canada". The plaintiff
submitted written objections to the forfeiture. Revenue Canada
pronounced a decision pursuant to which seven of the ten pieces
were restored to the plaintiff but three others were retained.
The plaintiff was informed that he would have to pay $4,600 to
recover the remaining three items and avert their forfeiture. He
commenced this action, seeking recovery of those three pieces.
At trial, the plaintiff testified that he had acquired all ten
pieces in his native Yugoslavia prior to his immigration to
Canada in 1967. He further stated that he had carried the
jewellery with him on many pleasure trips outside Canada
between 1967 and 1980. He had not declared them on entering
the country as an immigrant or at the time of any other entry,
because he thought he was not obliged to do so. Thus, he made
no declaration of the articles in April 1980 because he was
under the impression that, on any particular re-entry, he was
required to declare only those goods acquired in the course of
the trip from which he was returning.
The Crown did not produce any clear evidence regarding the
date or place of purchase of any of the items. (Nor did it
adduce evidence explaining why seven pieces were returned to
the plaintiff and three were retained.) The Crown took the
position that even on the facts as asserted by the plaintiff, the
plaintiff was guilty of violating section 18 of the Customs Act,
with respect to the jewellery, on every occasion when he entered
Canada with that jewellery, including the occasion of his
immigration. He was, the Crown contended, obliged to declare
the jewellery in each of those instances, and each failure to so
declare made the jewellery subject to forfeiture under section
180.
Held, the action is dismissed.
The interpretation of the law advocated by the Crown is
correct. Even if the pieces of jewellery had previously been in
Canada, section 18 still required the plaintiff to declare them
when he returned them to this country. Accordingly, each
failure to declare the pieces did amount to a violation of that
provision. The Crown has conceded that the limitation imposed
by section 265 of the Act might preclude forfeiture in respect of
any failure which preceded April 7, 1980 by more than the
allotted three years; however, even if section 265 did have this
effect, it would not prevent a forfeiture for the violation which
was committed on April 7, 1980. Therefore, given that a
violation did occur on that date, and given that such a violation
automatically results in forfeiture, the forfeiture in the instant
case was justified.
While this construction of section 18 is unavoidable, it is also
a cause for some concern. Paragraph 18(b) says that a person
arriving in Canada must report "all goods in his charge or
custody". Read literally, this not only entails the conclusions set
forth above, but also requires that a person entering or re-enter
ing Canada declare every item of personal property which he is
carrying or wearing; and it follows that a failure to declare any
one of those articles exposes the article to seizure and forfeit
ure. The obligation to declare is not confined to goods acquired
abroad, let alone to goods acquired on the particular foreign
trip from which the entrant is returning. Instead, it encom
passes items which a Canadian acquired in Canada and has
owned all his life. Few if any travellers understand the legal
requirements to be so comprehensive, and fortunately, in
administering the law, customs officers do not treat it as having
such broad scope. However, since the Act does employ sweep
ing language, it effectively gives the Minister and the customs
officers the power arbitrarily to decide which goods are to be
forfeited for failure to declare.
In the case at bar, no argument was made concerning the
application of section 8 of the Charter, which affords protection
against "unreasonable search or seizure". Nor, considering its
facts, is this a fitting case in which to determine whether
sections 18 and 180 authorize an "unreasonable seizure": for
one thing, it is probable that all relevant elements of the
forfeiture pre-date the Charter's coming into force. Nonethe
less, the issue might properly arise in other cases involving these
sections of the Customs Act.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
His Majesty The King v. Bureau, [1949] S.C.R. 367;
Nader v. The Queen, [1973] F.C. 898 (T.D.); The Queen
v. Sun Parlor Advertising Company, et al., [1973] F.C.
1055 (T.D.); Marun v. The Queen, [1965] 1 Ex.C.R. 280;
Shaikh v. Her Majesty the Queen (1982), 4 C.E.R. 123
(F.C.T.D.).
COUNSEL:
M. W. Duffy for defendant.
APPEARANCE:
Aleksandar Glisic on his own behalf.
SOLICITOR:
Deputy Attorney General of Canada for
defendant.
PLAINTIFF ON HIS OWN BEHALF:
Aleksandar Glisic, Toronto.
The following are the reasons for judgment
rendered in English by
STRAYER J.: This is an action for the recovery
of three pieces of gold jewellery of the value of
$5,000, which were seized from the plaintiff by
customs officers at Toronto International Airport
on April 7, 1980. The plaintiff was then returning
from a holiday in Brazil. When the plaintiff
arrived in the customs area he was wearing four
pieces of jewellery, two rings and two chains.
When asked by the customs and immigration offi
cer at the "primary line" whether he had anything
to declare, he answered in the negative. This offi
cer, apparently noting the four items of jewellery
being worn, gave the plaintiff a specially encoded
card which he then presented to other officers
before departure from the customs area. The card
was encoded so as to indicate that an examination
of luggage, etc., was indicated, and the plaintiff
was referred to Mr. Couffin, a customs officer in
the "secondary line". I will not go into all the
details, but in essence Mr. Couffin examined the
plaintiff's luggage, then examined the four visible
pieces of jewellery, and then examined the con
tents of the plaintiff's clothing. Six more pieces of
gold jewellery were found and all ten items were
held by the customs officers. Subsequently a notice
dated June 11, 1980 was sent to the plaintiff by
Revenue Canada indicating that all ten items were
subject to forfeiture for the reason that "the said
goods were smuggled or clandestinely introduced
into Canada". The plaintiff submitted written
objections to the forfeiture and on June 4, 1981
Revenue Canada, on behalf of the Minister of
National Revenue, gave its decision in writing
under section 163 of the Customs Act [R.S.C.
1970, c. C-40]. By this decision, seven of the ten
items of jewellery were returned to the plaintiff,
while three items—two rings and a bracelet—were
retained. The notice indicated that the plaintiff
could obtain the release of these items on payment
of some $4,600 and failing such payment within
thirty days, the three items would be forfeited. The
plaintiff subsequently commenced this action.
The plaintiff in his testimony said that he had
acquired all of these ten items of gold jewellery in
Yugoslavia prior to his immigration to Canada
from that country in 1967. He said that he had
owned it ever since and had customarily carried it
with him on his many pleasure trips outside of
Canada between 1967 and 1980. When he went to
Brazil in March, 1980, he therefore took all this
jewellery with him. He said that he had never
declared it on any occasion when entering Canada,
even when he came in as an immigrant in 1967,
and he thought it unnecessary to do so. He only
thought it necessary, upon returning to Canada
from a trip abroad, to declare goods which had
been acquired on that trip and since he had had
this jewellery for at least thirteen years prior to
1980, he did not declare it.
The defendant did not produce any clear evi
dence as to the place or date of purchase of any of
this jewellery. Nor did it adduce evidence as to
why seven of the ten items were returned to the
plaintiff while the three in question here were
retained. In his evidence the customs officer, Mr.
Couffin, did testify that he found in the plaintiff's
possession twelve small leather bags of a kind
normally used for carrying jewellery. Nine of these
had the name of a jewellery store in Rio de Janeiro
while three had no identification. Four business
cards of jewellers were also found in his luggage:
two from the same store in Rio de Janeiro, one
from a store in Rochester, New York, and one
from a store in Toronto. Instead of seeking to
establish the origin of the jewellery, the Crown
contented itself with relying on the plaintiff's own
evidence that he had acquired the jewellery in
Yugoslavia prior to his first arrival in Canada, and
that he had brought it across the border when
immigrating and when returning to Canada on
numerous occasions, including that of April 7,
1980, without ever declaring it. It is the position of
the Crown that on each of these occasions, includ
ing that of April 7, 1980, the plaintiff was in
violation of section 18 of the Customs Act. Section
18 provides:
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
(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 ...
(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.
Thus it is the position of the Crown that, even
accepting the evidence of the plaintiff that he
owned this jewellery since at least 1967, he should
have declared it when he first arrived in Canada
and on every subsequent occasion when he
returned to Canada with it in his possession
including April 7, 1980. A failure to do so makes
his goods subject to forfeiture by virtue of subsec
tion 180(1) which reads:
180. (1) Where the person in charge or custody of any article
mentioned in paragraph 18(b) has failed to comply with any of
the requirements of section 18, all the articles mentioned in
paragraph (b) of that section in the charge or custody of such
person shall be forfeited and may be seized and dealt with
accordingly.
In fairness, Crown counsel also referred to sec
tion 265 of the Act which provides that "All
seizures ... for the ... enforcement of any of the
penalties or forfeitures imposed by this Act ...
may be made or commenced at any time within
three years after the offence was committed, or the
cause of prosecution or suit arose, but not after
wards." If one assumed that this is applicable to
an automatic forfeiture such as section 180 pro
vides, counsel conceded that it might now preclude
forfeiture based on failure to declare the jewellery
upon entry to Canada in 1967 and the following
ten years, but it would not preclude forfeiture for
reason of failure to declare with respect to any
entry during the three years prior to and including
April 7, 1980.
I have somewhat reluctantly come to the conclu
sion that the position of the Crown in this matter is
correct in law and that the plaintiff's action cannot
succeed. The automatic nature of forfeiture, for
failure to declare under section 18, is well
established.' Failure to declare the goods as
required by section 18 is not excused by the fact
that the goods had previously been in Canada prior
to their removal therefrom and were returned to
Canada on the occasion of the failure to declare. 2
Even if section 265 would preclude a forfeiture for
any violation of section 18 which occurred more
than three years before the actual seizure on April
7, 1980, the events of April 7 themselves constitut
ed such a violation and therefore justified the
forfeiture.
I said that I came to this conclusion "reluctant-
ly" 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 sec
tions 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
' See: His Majesty The King v. Bureau, [1949] S.C.R. 367;
Nader v. The Queen, [1973] F.C. 898 (T.D.); and The Queen v.
Sun Parlor Advertising Company, et al., [1973] F.C. 1055
(T.D.).
2 See: Marun v. The Queen, [1965] 1 Ex.C.R. 280; Shaikh v.
Her Majesty the Queen (1982), 4 C.E.R. 123 (F.C.T.D.).
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 under
stand 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 difficulty 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, Schedule 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 probable that all relevant ele
ments 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.
ORDER
It is hereby ordered that the action be dismissed
with costs.
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