Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), (2007) 309 F.T.R. 114 (FC)

• Judge: Simpson, J.
• Court: Federal Court (Canada)
• Case Date: November 15, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 309 F.T.R. 114 (FC);2007 FC 208

Sellathurai v. Can. (2007), 309 F.T.R. 114 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. MR.010

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

(T-155-06; 2007 FC 208)

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

Federal Court

Simpson, J.

February 23, 2007.

Summary:

The applicant arrived at Pearson Airport in Toronto to board a flight to Paris. He did not report that he was transporting currency in excess of $10,000 CAD. $123,000 CAD and $435 USD were seized from the applicant and forfeited pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The forfeited currency consisted of the sums that the applicant declared, $4,000 CAD and $400 USD, and the amounts he did not declare, $119,000 CAD and $35 USD. A delegate of the Minister of Public Safety and Emergency Preparedness confirmed the forfeiture of the undeclared currency under s. 29(1)(c) of the Act. The applicant applied for judicial review of the decision.

The Federal Court dismissed the application.

Criminal Law - Topic 1984

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

Criminal Law - Topic 1987.1

Offences against property - Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - The applicant arrived at Pearson Airport in Toronto to board a flight to Paris - He did not report that he was transporting currency in excess of $10,000 CAD - $123,000 CAD and $435 USD were seized from the applicant and forfeited pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - The forfeited currency consisted of the sums that the applicant declared, $4,000 CAD and $400 USD, and the amounts he did not declare, $119,000 CAD and $35 USD - A delegate of the Minister of Public Safety and Emergency Preparedness confirmed the forfeiture of the undeclared currency under s. 29(1)(c) of the Act - The Minister's delegate concluded that there were reasonable grounds to suspect that the undeclared currency was proceeds of crime - The applicant applied for judicial review - The Federal Court applied the pragmatic and functional analysis to determine the applicable standard of review - The court concluded that "in this case, primarily because relative expertise does not actually play a significant role, I will review the decision using a reasonableness standard except when dealing with the burden of proof faced by an applicant who wishes to dispel 'reasonable grounds to suspect'. On that issue, correctness will be the standard of review" - See paragraphs 46 to 60.

Criminal Law - Topic 1987.1

Offences against property - Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - The applicant arrived at Pearson Airport in Toronto to board a flight to Paris - He did not report that he was transporting currency in excess of $10,000 CAD - $123,000 CAD and $435 USD were seized from the applicant and forfeited pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - The forfeited currency consisted of sums that the applicant declared, $4,000 CAD and $400 USD, and amounts he did not declare, $119,000 CAD and $35 USD - A delegate of the Minister of Public Safety and Emergency Preparedness confirmed the forfeiture of the undeclared currency under s. 29(1)(c) of the Act - The applicant applied for judicial review, arguing that the Minister's delegate improperly reversed the burden of proof - The Federal Court dismissed the application - The impugned decision stated the correct test, i.e., whether a reasonable suspicion still existed to suspect that the currency or monetary instruments were proceeds of crime or funds for use in financing terrorist activities - However, an adjudicator who had prepared a "Synopsis and Reasons" which were relied on by the Minister's delegate, appeared to have thought that, to dispel reasonable grounds for suspicion, an applicant had to prove an innocent explanation beyond all doubt - The adjudicator's requirement of proof beyond all doubt was an error in law because proof beyond a reasonable doubt was sufficient to defeat reasonable grounds for suspicion - However, the error was not material where the applicant had not met the correct standard - See paragraphs 63 to 77.

Criminal Law - Topic 1987.1

Offences against property - Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - The applicant arrived at Pearson Airport in Toronto to board a flight to Paris - He did not report that he was transporting currency in excess of $10,000 CAD - $123,000 CAD and $435 USD were seized from the applicant and forfeited pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - The forfeited currency consisted of the sums that the applicant declared, $4,000 CAD and $400 USD, and the amounts he did not declare, $119,000 CAD and $35 USD - A delegate of the Minister of Public Safety and Emergency Preparedness confirmed the forfeiture of the undeclared currency under s. 29(1)(c) of the Act - The applicant applied for judicial review, arguing that the decision should be set aside because it was contradictory in that the declared currency was returned even though the evidence relating to its origin did not differ from that relating to the origin of the undeclared currency - The Federal Court rejected the argument - Under s. 28 of the Act, the Minister's delegate was obliged to return the declared currency once he concluded that it had been reported - That was so whether or not he still had reasonable grounds to suspect that it was proceeds of crime - The return of the declared currency did not undermine the decision - See paragraphs 78 to 79.

Customs - Topic 6803

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

Cases Noticed:

Martirossian v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2001] F.T.R. Uned. 712; 2001 FCT 1119, refd to. [para. 44].

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. 46].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 46].

Tourki v. Canada (Minister of Public Safety and Emergency Preparedness) (2006), 285 F.T.R. 291 (F.C.), refd to. [para. 47].

Ha v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2006), 292 F.T.R. 287 (F.C.), refd to. [para. 47].

Thérancé v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 325 F.T.R. 161; 2007 FC 136, dist. [para. 51].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 52].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48, refd to. [para. 66].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229, refd to. [para. 67].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 68].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 70].

Canadian Cable Television Assoc. v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626; 129 N.R. 296 (F.C.A.), refd to. [para. 76].

Statutes Noticed:

Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, sect. 29(1)(c) [para. 24].

Counsel:

Louis P. Strezos, for the applicant;

Jan Brongers, for the respondent.

Solicitors of Record:

Louis P. Strezos & Associates, Toronto, Ontario, for the applicant;

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

This application was heard on November 15, 2006, at Toronto, Ontario, before Simpson, J., of the Federal Court, who delivered the following decision on February 23, 2007.