Mamnuni v. Canada (Minister of Public Safety and Emergency Preparedness), (2011) 392 F.T.R. 59 (FC)

• Judge: Crampton, J.
• Court: Federal Court (Canada)
• Case Date: June 01, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 392 F.T.R. 59 (FC);2011 FC 736

Mamnuni v. Can. (2011), 392 F.T.R. 59 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.072

Abbas Mamnuni (applicant) v. The Minister of Public Safety and Emergency Preparedness (respondent)

(T-1515-10; 2011 FC 736)

Indexed As: Mamnuni v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Crampton, J.

June 22, 2011.

Summary:

Mamnuni had passed through the standard security check and was waiting for his flight to China. He was approached by a Canada Border Services Agency (CBSA) officer conducting currency export checks. The officer seized currency worth approximately $53,000 from Mamnuni, who sought ministerial review under s. 25 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Following a CBSA adjudicator's recommendation, the minister's delegate found that there had been a contravention of s. 12(1) of the Act and that the seized currency would remain forfeited. Mamnuni applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - Mamnuni had passed through the standard security check and was waiting for his flight to China - He was approached by a Canada Border Services Agency (CBSA) officer conducting currency export checks - The officer seized currency worth approximately $53,000 from Mamnuni, who sought ministerial review under s. 25 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - Following a CBSA adjudicator's recommendation, the minister's delegate found that there had been a contravention of s. 12(1) of the Act and that the seized currency would remain forfeiting - The Federal Court dismissed Mamnuni's application for judicial review - The court rejected Mamnuni's assertion that there had been a breach of natural justice when the CBSA sought a legal opinion and failed to disclose either that or the adjudicator's case synopsis and failed to give him an opportunity to participate in the decision-making process - The legal opinion and case synopsis were protected by solicitor-client privilege - Even if they should have been disclosed, Mamnuni was not prejudiced by the failure to do so - The essence of the legal opinion was that "oral declarations" did not constitute reports for the purposes of s. 12(1) - The focus of the minister's delegate was on whether she was satisfied that the seized currency was not proceeds of crime - Mamnuni had numerous opportunities to address that issue - The fact that he had failed to satisfy the minister's delegate did not mean that his procedural fairness rights were violated - See paragraphs 72 to 83.

Criminal Law - Topic 1984

Offences against property - Possession or laundering of proceeds of crime - Evidence and proof - Mamnuni had passed through the standard security check and was waiting for his flight to China - He was approached by a Canada Border Services Agency (CBSA) officer conducting currency export checks - The officer seized currency worth approximately $53,000 from Mamnuni, who sought ministerial review under s. 25 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - Following a CBSA adjudicator's recommendation, the minister's delegate found that there had been a contravention of s. 12(1) of the Act and that the seized currency would remain forfeited - Mamnuni sought judicial review - Noting that the adjudicator had stated that Mamuni's evidence regarding his explanation for the currency's origin had to "establish that no other reasonable explanation is possible" and "eliminate any doubts" and that the burden of proof had been stated in these same terms in the recommendation to the minister's delegate, Mamnuni asserted that the minister's delegate had erred in law by imposing a burden of proof that was too high - The Federal Court disagreed - The minister's delegate had not merely "rubber-stamped" the adjudicator's recommendations, but rather exercised her own discretion and decision-making authority - She concluded that "the documentation did not demonstrate the legal origin of the seized currency" and that the explanations and evidence "did not remove the suspicion that the currency was proceeds of crime" - The application was dismissed - See paragraphs 35 to 46.

Criminal Law - Topic 1984

Offences against property - Possession or laundering of proceeds of crime - Evidence and proof - [See Administrative Law - Topic 608 ].

Criminal Law - Topic 1987

Offences against property - Possession or laundering of proceeds of crime - Forfeiture order - [See first Criminal Law - Topic 1984 ].

Criminal Law - Topic 1987.1

Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - [See Administrative Law - Topic 608 and first Criminal Law - Topic 1984 ].

Customs - Topic 6803

Exports - General - Currency (incl. requirement of reporting amounts over $10,000) - Mamnuni had passed through the standard security check and was waiting for his flight to China - He was approached by a Canada Border Services Agency (CBSA) officer conducting currency export checks - The officer seized currency worth approximately $53,000 from Mamnuni, who sought ministerial review under s. 25 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - Following a CBSA adjudicator's recommendation, the minister's delegate found that there had been a contravention of s. 12(1) of the Act and that the seized currency would remain forfeited - The Federal Court dismissed Mamnuni's application for judicial review - The court rejected Mamnuni's assertion that the CBSA officer had an obligation to consider exercising discretion in Mamnuni's favour under s. 14 of the Act because Mamnuni had made an "oral declaration" regarding the currency to the officer - The discretion contemplated by s. 14(1) was no longer available once a person had passed through security and had not yet indicated that he or she had currency or monetary instruments to report - To find otherwise would seriously undermine the Act's objectives - Even if s. 14(1) could be said to continue to operate and if Mamnuni's claim of making an oral declaration was true, additional relevant considerations made it reasonable and appropriate for the officer to have failed to consider s. 14(1) and for the minister's delegate to have failed to consider the relevance of that failure - See paragraphs 51 to 71.

Evidence - Topic 4238

Witnesses - Privilege - Lawyer-client communications - Documents prepared in contemplation of litigation - [See Administrative Law - Topic 608 ].

Cases Noticed:

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 382 N.R. 2; 2008 FCA 255, refd to. [para. 32].

Yang v. Canada (Minister of Public Safety) (2008), 380 N.R. 387; 2008 FCA 281, refd to. [para. 32].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 32].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 33].

Celgene Corp. v. Canada (Attorney General) (2011), 410 N.R. 127; 2011 SCC 1, refd to. [para. 33].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 33].

Yusufov v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 312 F.T.R. 122; 2007 FC 453, refd to. [para. 36].

Qasem v. Minister of National Revenue (2008), 322 F.T.R. 47; 2008 FC 31, refd to. [para. 36].

Yang v. Canada (Minister of Public Safety) (2008), 324 F.T.R. 22; 2008 FC 158, refd to. [para. 38].

Dupre v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 770; 2007 FC 1177, refd to. [para. 53].

Dokaj v. Minister of National Revenue (2005), 282 F.T.R. 121; 2005 FC 1437, refd to. [para. 53].

Tourki v. Canada (Minister of Public Safety and Emergency Preparedness) (2006), 285 F.T.R. 291; 2006 FC 50, refd to. [para. 53].

Ondre v. Canada (Attorney General) (2007), 312 F.T.R. 134; 2007 FC 454, refd to. [para. 53].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 58].

Pritchard v. Human Rights Commission (Ont.) et al., [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1, refd to. [para. 75].

Maax Bath Inc. v. Almag Aluminum Inc. et al. (2009), 392 N.R. 219; 2009 FCA 204, refd to. [para. 75].

Dag v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 318 F.T.R. 269; 2007 FC 427, refd to. [para. 80].

Statutes Noticed:

Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, sect. 14 [Appendix A].

Counsel:

Ali M. Amini, for the applicant;

Christopher Parke, for the respondent.

Solicitors of Record:

Ali M. Amini, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on June 1, 2011, by Crampton, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on June 22, 2011.