Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255

• Judge: Nadon, Pelletier and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 17, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FCA 255;(2008), 382 N.R. 2 (FCA)

Sellathurai v. Can. (2008), 382 N.R. 2 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. OC.018

Gowrkumaran Sellathurai (appellant) v. Minister of Public Safety and Emergency Preparedness (Solicitor General of Canada)

(respondent)

(A-148-07; 2008 FCA 255)

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

Federal Court of Appeal

Nadon, Pelletier and Ryer, JJ.A.

September 9, 2008.

Summary:

A customs officer seized approximately $123,000 from Sellathurai as he was about to depart for Sri Lanka from Pearson International Airport. The funds were seized and forfeited because Sellathurai failed to declare the funds as required by s. 12 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and there were reasonable grounds to suspect that the funds were proceeds of crime or were to be used in the funding of terrorism. Sellathurai requested a ministerial review of the customs officer's decision. The Minister's delegate confirmed the forfeiture of the funds under s. 29(1)(c) of the Act. Sellathurai applied for judicial review.

The Federal Court, in a decision reported at 309 F.T.R. 114 dismissed the application. Sellathurai appealed.

The Federal Court of Appeal dismissed the appeal.

Criminal Law - Topic 1984

Offences against property - Possession or laundering of proceeds of crime - Evidence and proof - [See first Criminal Law - Topic 1987.1 ].

Criminal Law - Topic 1987.1

Offences against property - Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - A customs officer seized approximately $123,000 from Sellathurai as he was about to depart for Sri Lanka from Pearson International Airport - The funds were seized and forfeited because Sellathurai failed to declare the funds as required by s. 12 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and there were reasonable grounds to suspect that the funds were proceeds of crime or were to be used in the funding of terrorism - Sellathurai requested a ministerial review - The Minister's delegate confirmed the forfeiture of the funds under s. 29(1)(c) of the Act - The Minister's delegate found that the evidence provided by Sellathurai did not substantiate the origin of the currency and a reasonable suspicion still existed - Sellathurai unsuccessfully applied for judicial review - The application judge concluded that while the Minister's delegate required proof in excess of proof beyond a reasonable doubt, the error was not material because Sellathurai's evidence fell below the standard of proof beyond a reasonable doubt - Sellathurai appealed - He argued that the appropriate standard of proof required to dispel reasonable suspicion lay between the civil standard of proof and the criminal standard of proof beyond a reasonable doubt - The Federal Court of Appeal dismissed the appeal - Pelletier, J.A., stated "What standard of proof must the applicant meet in order to satisfy the Minister that the seized funds are not proceeds of crime? In my view, this question is resolved by the issue of standard of review. The Minister's decision under section 29 is reviewable on a standard of reasonableness. It follows that if the Minister's conclusion as to the legitimacy of the source of the funds is reasonable, having regard to the evidence in the record before him, then his decision is not reviewable. Similarly, if the Minister's conclusion is unreasonable, then the decision is reviewable and the Court should intervene. It is neither necessary nor useful to attempt to define in advance the nature and kind of proof which the applicant must put before the Minister" - See paragraph 51.

Criminal Law - Topic 1987.1

Offences against property - Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - A customs officer seized approximately $123,000 from Sellathurai as he was about to depart for Sri Lanka from Pearson International Airport - The funds were seized and forfeited because Sellathurai failed to declare the funds as required by s. 12 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and there were reasonable grounds to suspect that the funds were proceeds of crime or were to be used in the funding of terrorism - Sellathurai requested a ministerial review - The Minister's delegate confirmed the forfeiture of the funds under s. 29(1)(c) of the Act - The Minister's delegate found that the evidence provided by Sellathurai was not verifiable and did not substantiate the origin of the currency and a reasonable suspicion still existed - Sellathurai applied for judicial review - The application was dismissed - Sellathurai appealed - The Federal Court of Appeal dismissed the appeal - Pelletier, J.A., stated "The nature of the discretion to be exercised by the Minister under section 29 is whether to relieve an applicant, whose breach of section 12 he has just confirmed, from the consequences of that breach. The Minister's discretion must be exercised within the framework of the Act and the objectives which Parliament sought to achieve by that legislation. Within that framework, there may be various approaches to the exercise of the Minister's discretion but so long as the discretion is exercised reasonably, the courts will not interfere" - The Minister asked Sellathurai to demonstrate that the seized funds came from a legitimate source - The Minister concluded that the evidence provided by Sellathurai did not satisfy him that the funds came from a legitimate source - In those circumstances, it was not unreasonable of the Minister to decline to exercise his discretion so as to grant relief from forfeiture - See paragraph 53.

Customs - Topic 6803

Exports - General - Currency (incl. requirement of reporting amounts over $10,000) - [See second Criminal Law - Topic 1987.1 ].

Cases Noticed:

R. v. Pilarinos (D.) et al., [2001] B.C.T.C. 1690; 2001 BCSC 1690, refd to. [para. 22].

Dag v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 377 N.R. 212; 70 Admin. L.R.(4th) 214; 2008 FCA 95, refd to. [paras. 25, 107].

Dag v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 318 F.T.R. 269; 2007 FC 427, affd. (2008), 377 N.R. 212; 2008 FCA 95, refd to. [para. 26].

Dupre v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 770; 2007 FC 1177, refd to. [para. 26].

Hamam v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 314 F.T.R. 151; 2007 FC 691, refd to. [para. 26].

Yang v. Canada (Minister of Public Safety) (2008), 324 F.T.R. 22; 2008 FC 158, refd to. [para. 26].

Lyew v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 317 F.T.R. 234; 2007 FC 1117, refd to. [para. 26].

Dang v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.T.R. Uned. 600; 2008 FC 157, refd to. [para. 26].

Ondre v. Canada (Attorney General) (2007), 312 F.T.R. 134; 2007 FC 454, refd to. [para. 26].

Yusufov v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 312 F.T.R. 122; 2007 FC 453, refd to. [para. 26].

Majeed v. Canada (Minister of Public Safety), [2007] F.T.R. Uned. 710; 2007 FC 1082, refd to. [para. 26].

Qasem v. Minister of National Revenue (2008), 322 F.T.R. 47; 2008 FC 31, refd to. [para. 26].

Tourki v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 367 N.R. 148; 284 D.L.R.(4th) 356; 2007 FCA 186, refd to. [paras. 32, 92].

Canada v. Central Railway Signal Co., [1933] S.C.R. 555, refd to. [para. 34].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 38].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 39].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 39].

Simmonds v. Minister of National Revenue (2006), 289 F.T.R. 15; 2006 FC 130, refd to. [para. 46].

Kalra v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 512; 29 Imm. L.R.(3d) 208; 2003 FC 941, refd to. [para. 47].

Yue v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 440; 2006 FC 717, refd to. [para. 47].

Bin Abdullah v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 700; 2006 FC 1185, refd to. [para. 47].

Molson Breweries, A Partnership v. Labatt (John) Ltd. et al., [2000] 3 F.C. 145; 252 N.R. 91 (F.C.A.), refd to. [para. 104].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 106].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 112].

R. v. Shah, [1992] B.C.J. No. 2716 (Prov. Ct.), refd to. [para. 119].

R. v. Clymore (C.R.) et al., [1992] B.C.T.C. Uned. 812; 74 C.C.C.(3d) 217 (S.C.), refd to. [para. 119].

R. v. Hicks, [2000] B.C.J. No. 2653 (Prov. Ct.), refd to. [para. 119].

Statutes Noticed:

Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, sect. 12, sect. 18 [para. 4]; sect. 23 [para. 30]; sect. 24 [para. 31]; sect. 25 [para. 6]; sect. 29(1) [para. 33]; sect. 30(1) [para. 6].

Counsel:

Louis P. Strezos, for the appellant;

Jan Brongers, for the respondent.

Solicitors of Record:

Louis P. Strezos, Toronto, Ontario, for the appellant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on June 17, 2008, at Toronto, Ontario, before Nadon, Pelletier and Ryer, JJ.A., of the Federal Court of Appeal. The judgment of the Federal Court of Appeal was delivered on September 9, 2008, including the following opinions:

Pelletier, J.A. (Nadon, J.A., concurring) - see paragraphs 1 to 54;

Ryer, J.A. - see paragraphs 55 to 131.