Yang v. Can., 2008 FC 158

Judge:Snider, J.
Court:Federal Court
Case Date:January 17, 2008
Jurisdiction:Canada (Federal)
Citations:2008 FC 158;(2008), 324 F.T.R. 22 (FC)
 
FREE EXCERPT

Yang v. Can. (2008), 324 F.T.R. 22 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. FE.027

Hui Yang (applicant) v. Minister of Public Safety (respondent)

(T-2274-06; 2008 FC 158)

Indexed As: Yang v. Canada (Minister of Public Safety)

Federal Court

Snider, J.

February 7, 2008.

Summary:

Yang went to Vancouver International Airport to board a flight to China. She failed to report that she was carrying over $20,000 (Can.), contrary to s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. A customs officer concluded that there was a reasonable suspicion that the currency in Yang's possession was the proceeds of crime and seized the money as forfeited. Yang requested a review by the Minister of Public Safety. The Minister's Delegate confirmed that the currency should remain forfeited. Yang applied for judicial review of the decision of the Minister's Delegate.

The Federal Court dismissed the application.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - Yang went to Vancouver International Airport to board a flight to China - She failed to report that she was carrying over $20,000 (Can.), contrary to s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - Customs Officer Coopman concluded that there was a reasonable suspicion that the currency in Yang's possession was the proceeds of crime and seized the money as forfeited - Yang requested a review by the Minister of Public Safety - The Minister's Delegate confirmed that the currency should remain forfeited - Yang applied for judicial review - Yang argued, inter alia, that the Minister's Delegate did not disclose two notes authored by Officer Coopman, which were sent to the Adjudicator who prepared the Case Synopsis - The Federal Court held that the nondisclosure did not result in a breach of procedural fairness - Yang was given the opportunity to file all of the evidence and arguments she wished in order to support her claim - A review of the two memorandums demonstrated that the only information that was not disclosed to Yang were the conclusions of Officer Coopman - Those conclusions relied on factual records which were known to Yang - Accordingly, the missing information would not have been of any benefit to her - See paragraphs 27 to 30.

Criminal Law - Topic 1984

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

Criminal Law - Topic 1987.1

Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - Yang went to Vancouver International Airport to board a flight to China - She failed to report that she was carrying over $20,000 (Can.), contrary to s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - A customs officer concluded that there was a reasonable suspicion that the currency in Yang's possession was the proceeds of crime and seized the money as forfeited - Yang requested a review by the Minister of Public Safety - The Minister's Delegate confirmed that the currency should remain forfeited (s. 29 of the Act) - Yang applied for judicial review - She argued, inter alia, that the Minister's Delegate imposed an impossibly high burden of proof on her - The Federal Court held that the Minister's Delegate did not impose a too high or incorrect burden on Yang - There was an evidentiary burden on an applicant in this type of situation - Yang simply failed to dispel the reasonable suspicion as to the source of the seized currency in the view of the Minister's Delegate - See paragraphs 14 to 26.

Criminal Law - Topic 1987.1

Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - Yang went to Vancouver International Airport to board a flight to China - She failed to report that she was carrying over $20,000 (Can.), contrary to s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - A customs officer concluded that there was a reasonable suspicion that the currency in Yang's possession was the proceeds of crime and seized the money as forfeited - Yang requested a review by the Minister of Public Safety - The Minister's Delegate confirmed that the currency should remain forfeited (s. 29 of the Act) - Yang applied for judicial review - Yang argued that s. 29 of the Act required the Minister's Delegate to conduct a broad inquiry and not merely determine whether there were sufficient grounds for the officer to make the initial seizure - Yang submitted that the Minister's Delegate was under an obligation to consider whether the seized currency should be returned to her based on humanitarian and compassionate considerations - The Federal Court rejected the argument - Section 29 did not require the Minister's Delegate to undertake a balancing exercise - A Minister's Delegate met his or her obligations under s. 29 when they asked the question of whether the reasonable grounds relied on by an officer still existed after all the evidence was reviewed - Yang's personal difficulties did not address the question of the source of the seized currency - The Minister's Delegate did not err by not giving weight to those submissions - The court also rejected Yang's argument that the Minister's Delegate had to take into account whether the objectives of the Act were achieved by this specific forfeiture - See paragraphs 7 to 13.

Criminal Law - Topic 1987.1

Possession or laundering of proceeds of crime - Forfeiture - Review or appeal - Yang went to Vancouver International Airport to board a flight to China - She failed to report that she was carrying over $20,000 (Can.), contrary to s. 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act - A customs officer concluded that there was a reasonable suspicion that the currency in Yang's possession was the proceeds of crime and seized the money as forfeited - Yang requested a review by the Minister of Public Safety - The Minister's Delegate confirmed that the currency should remain forfeited (s. 29 of the Act) - Yang applied for judicial review - Yang argued, inter alia, that the Minister's Delegate did not conduct an independent review of the evidence or her submissions, but merely rubber-stamped the Case Synopsis which had been prepared for him by an Adjudicator - The Federal Court did not agree - The Minister's Delegate was entitled to rely on the Adjudicator to prepare a Case Synopsis provided the Minister's Delegate retained his full decision-making authority and did not feel bound by the Adjudicator's recommendation - The court was satisfied that the Minister's Delegate did not merely "rubber-stamp" the Case Synopsis and that he exercised his discretion and decision-making authority - See paragraphs 31 to 34.

Customs - Topic 6803

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

Cases Noticed:

Tourki v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 367 N.R. 148; 2007 FCA 186, affing. (2006), 285 F.T.R. 291; 2006 FC 50, refd to. [para. 3].

Dokaj v. Minister of National Revenue (2005), 282 F.T.R. 121; 2005 FC 1437, refd to. [para. 3].

Thérancé v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 325 F.T.R. 161; 2007 FC 136, refd to. [para. 3].

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 309 F.T.R. 114; 2007 FC 208, refd to. [para. 3].

Dag v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 318 F.T.R. 269; 2007 FC 427, refd to. [para. 3].

Yusufov v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 312 F.T.R. 122; 2007 FC 453, refd to. [para. 3].

Ondre v. Canada (Attorney General) et al. (2007), 312 F.T.R. 134; 2007 FC 454, refd to. [para. 3].

Ondre v. Canada (Minister of Public Safety and Emergency Preparedness) - see Ondre v. Canada (Attorney General) et al.

Hamam v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 314 F.T.R. 151; 2007 FC 691, refd to. [para. 3].

Tourki v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 970; 2007 FC 746, refd to. [para. 3].

Majeed v. Canada (Minister of Public Safety), [2007] F.T.R. Uned. 710; 2007 FC 1082, refd to. [para. 3].

Lyew v. Canada (Minister of Public Safety and Emergency Preparedness) (2007), 317 F.T.R. 234; 2007 FC 1117, refd to. [para. 3].

Dupre v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 770; 2007 FC 1177, refd to. [para. 20].

Qasem v. Minister of National Revenue (2008), 322 F.T.R. 47; 2008 FC 31, refd to. [para. 20].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 27].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 27].

Hersi v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 120 (T.D.), refd to. [para. 28].

Kishavarz v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 72 (T.D.), refd to. [para. 29].

Canada (Attorney General) v. P.P.G. Industries Canada Ltd. and Pilkington Brothers (Canada) Ltd., [1972] F.C.J. No. 90 (T.D.), revd. [1973] F.C. 745 (F.C.A.), revd. [1976] 2 S.C.R. 739; 7 N.R. 209, refd to. [para. 31].

Canada (Attorney General) v. Canada (Anti-dumping Tribunal) - see Canada (Attorney General) v. P.P.G. Industries Canada Ltd. and Pilkington Brothers (Canada) Ltd.

Canadian Bronze Co., CAE Metal Abrasive Division v. Deputy Minister of National Revenue for Customs and Excise, [1985] 1 F.C. 481; 57 N.R. 338 (F.C.A.), refd to. [para. 32].

CAE Metal Abrasive Division of Canadian Bronze Co. v. Canada - see Canadian Bronze Co., CAE Metal Abrasive Division v. Deputy Minister of National Revenue for Customs and Excise.

Sovereign Life Insurance Co. v. Canada (Minister of Finance), [1998] 1 F.C. 299; 135 F.T.R. 81 (T.D.), refd to. [para. 32].

Burke v. Canada Employment and Immigration Commission et al. (1994), 79 F.T.R. 148 (T.D.), refd to. [para. 32].

Statutes Noticed:

Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, sect. 29 [para. 7].

Counsel:

Glen W. Bell, for the applicant;

Jan Brongers, for the respondent.

Solicitors of Record:

Bell Lawyers, Vancouver, British Columbia, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard on January 17, 2008, at Vancouver, B.C., before Snider, J., of the Federal Court, who delivered the following decision on February 7, 2008.

To continue reading

FREE SIGN UP