Shin v. Canada (Minister of Public Safety and Emergency Preparedness) et al., (2012) 418 F.T.R. 201 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: March 22, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 418 F.T.R. 201 (FC);2012 FC 1106

Shin v. Can. (2012), 418 F.T.R. 201 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. SE.046

Eun Kyung Shin (applicant) v. The Minister of Public Safety and Emergency Preparedness and The Attorney General of Canada (respondents)

(T-1037-11; 2012 FC 1106; 2012 CF 1106)

Indexed As: Shin v. Canada (Minister of Public Safety and Emergency Preparedness) et al.

Federal Court

O'Keefe, J.

September 21, 2012.

Summary:

The applicant did not declare a Rolex watch, which she was wearing when she arrived in Vancouver after a flight from Korea. A Canadian Border Services Agency officer seized the watch as forfeit. Pursuant to s. 131 of the Customs Act, a delegate of the Minister of Public Safety and Emergency Preparedness decided that there was a contravention of the Customs Act, and that under s. 133 of the Act the watch should be returned to the applicant upon receipt of $47,455.78, to be held as forfeit. The applicant applied for judicial review of the delegate's decision under s. 133 of the Act.

The Federal Court allowed the application and referred the matter to a different decision maker for reconsideration.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - The applicant did not declare a Rolex watch when she arrived in Vancouver after a flight from Korea - A Canadian Border Services Agency (CBSA) officer seized the watch as forfeit - Pursuant to s. 131 of the Customs Act, a delegate of the Minister of Public Safety and Emergency Preparedness decided that there was a contravention of the Customs Act, and that under s. 133 of the Act the watch should be returned to the applicant upon receipt of $47,455.78, to be held as forfeit - The delegate accepted the officer's characterization of the applicant's non-report as Level 2 - Therefore, in accordance with the CBSA's Custom Enforcement Manual, 60% was applied to the value for duty, which resulted in an amount for return of $47,455.78 - The applicant applied for judicial review of the delegate's decision under s. 133 of the Act - The applicant submitted that a strict determination based on the Manual, without allowance for exceptions, resulted in an unlawful fettering of the Minister's discretion - The Federal Court did not agree with the applicant that the Manual eliminated the flexibility required to adjust the result in individual cases - However, the court stated that "in relying on non-legally binding instruments, agencies must be careful not to apply guidelines or policy statements as if they are law" - See paragraph 70.

Customs - Topic 3121

Search and seizure - Return of seized goods - General - The applicant did not declare a Rolex watch, which she was wearing when she arrived in Vancouver after a flight from Korea - A Canadian Border Services Agency (CBSA) officer seized the watch as forfeit - The officer classified it as a Level 2 seizure because the applicant did not declare the watch and made contradictory and untrue statements regarding its importation date - Pursuant to s. 131 of the Customs Act, a delegate of the Minister of Public Safety and Emergency Preparedness decided that there was a contravention of the Customs Act, and that under s. 133 of the Act the watch should be returned to the applicant upon receipt of $47,455.78, to be held as forfeit - The delegate accepted the characterization of the applicant's non-report as Level 2 - Therefore, in accordance with the CBSA's Custom Enforcement Manual, 60% was applied to the value for duty, which resulted in an amount for return of $47,455.78 - The applicant applied for judicial review of the delegate's decision under s. 133 of the Act - The Federal Court allowed the application - The delegate's decision did not provide any analysis on whether the Level 2 determination was the appropriate level of infraction - The facts clearly lent themselves more to a Level 1 infraction than to a Level 2 infraction - For example, the failure to declare the watch was indicative of an offence of omission, rather than one of commission (Level 1) and the fact that the applicant wore the watch visibly on her wrist and had not been the subject of a previous seizure action suggested that the circumstances for a Level 2 finding were not present - The delegate merely accepted the CBSA officer's characterization of the infringement as Level 2 without further analysis or evaluation - By failing to consider whether the facts leant themselves to a Level 1 characterization, the delegate made an unreasonable finding that was not justifiable and intelligible based on the evidence before her - See paragraphs 50 to 79.

Customs - Topic 8201

Offences and penalties - Penalties - General - [See second Customs - Topic 8208 ].

Customs - Topic 8208

Offences and penalties - Penalties - Forfeiture - [See Customs - Topic 3121 ].

Customs - Topic 8208

Offences and penalties - Penalties - Forfeiture - The Federal Court stated that "The amount of money for return established under section 133 of the Customs Act differs from the penalty provided under section 109.1 of the Customs Act. ... This penalty provision is under the heading of 'Penalties and Interest', whereas the amount of money for return of goods is under the heading of 'Forfeitures'. Although both provisions are included under Part VI (enforcement) of the Customs Act, they pertain to separate issues. The amount of money required for the return of goods under section 133 is therefore distinguishable from the penalty imposed under section 109.1 of the Customs Act" - See paragraphs 55 to 56.

Cases Noticed:

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. 46].

United Parcel Service Canada Ltd. v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 384 F.T.R. 267; 2011 FC 204, refd to. [para. 47].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 48].

Wang et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 570; 2008 FC 798, refd to. [para. 49].

Nguyen v. Canada (Minister of Public Safety and Emergency Preparedness) (2009), 347 F.T.R. 283; 2009 FC 724, refd to. [para. 54].

Hiebert v. Canada (Attorney General) (2003), 243 F.T.R. 168; 2003 FC 1503, refd to. [para. 56].

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2007), 366 N.R. 301; 2007 FCA 198, refd to. [para. 70].

Statutes Noticed:

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 109(1) [para. 55]; sect. 133 [para. 1].

Counsel:

Christopher Harvey, Q.C., for the applicant;

Jan Brongers and Erica Louie, for the respondents.

Solicitors of Record:

MacKenzie Fujisawa LLP, Vancouver, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondents.

This application was heard on March 22, 2012, at Vancouver, British Columbia, before O'Keefe, J., of the Federal Court, who delivered the following decision on September 21, 2012.