Ottawa, Ontario, November 16, 2006
PRESENT: The Honourable Barry Strayer
BETWEEN:
and
THE MINISTER OF CANADA CUSTOMS
AND REVENUE AGENCY
CUSTOMS BORDER SERVICES AGENCY
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an appeal under section 135 of the Customs Act (Act), R.S., 1985, c. 1 (2nd Supp.), from a decision made on behalf of the Minister under section 131 of that Act. The decision is set out in a letter of August 9, 2005 and it is to the effect that the amount of $628.44 paid by the Plaintiff, Bruce Ross, for the return of goods and a conveyance is to be held by the Minister as forfeit.
Facts
[2] The Plaintiffs and witnesses for the Defendant tell conflicting stories as to what happened at the Canada Border Services Agency (CBSA) post at Lyleton, Manitoba on Sunday, September 5, 2004. I will put aside the discrepancies in their accounts as to the times at which various events occurred as I do not think, except as otherwise indicated, that the times were significant.
[3] The Plaintiffs approached this border post from the United States that morning, having spent over 48 hours in the United States and having stayed in Minot, North Dakota. They say they arrived early, shortly after the border post opened, so that they could drive from there to Antler, Saskatchewan, to their home in time to attend church that morning. Their version of events is as follows. The sole border officer at the post, Customs Inspector Bowe (Bowe), came out of the office and approached their truck on the passenger side. The Plaintiff Linda Ross was driving the truck and the Plaintiff Bruce Ross was sitting on the passenger side. Bowe addressed only Bruce Ross and asked him what goods he had acquired in the United States. He replied that he had not added up the receipts because he did not have a calculator. Bowe ordered him to add them up in his head. He had a variety of receipts, some of them for food and lodging in the United States and he sorted the receipts as he tried to calculate in his own head the total value of goods acquired. He stated the total to be of a value of $550.00 (U.S.). Bowe then ordered him to come into the office with his receipts. He asked Bowe if his wife, Linda Ross, should also come in. Bowe ordered her to stay in the truck. (Bruce Ross admitted he did not in connection with this exchange say that his wife also had a declaration to make: see transcript, page 26, and she testified she said nothing at this time: see transcript pages 37-38.) Bowe and the Plaintiff, Bruce Ross, went into the office with all of his receipts. Bowe examined them and sorted out some receipts from the pile of food receipts that should have been in the goods receipts. Bowe totalled the value of goods represented by the receipts to be $614.00 (U.S.) and then converted that amount into Canadian dollars for a total of $796.55 (CAD). Bowe proceeded to prepare the “Casual Goods Account Document” (Exhibit D-2) which shows that Bruce Ross was given credit for an exemption of $200.00 because of a 48-hour absence, that the first overage of $300.00 was charged to him solely on the basis of unpaid Goods and Services Tax (G.S.T.), and the remaining $96.55 attracted duty of $6.76, making a total owing by him of $27.76 (CAD) which he paid. In the meantime, Bowe had been checking in the computer. Bowe said she wanted to keep the receipts for the moment and proceeded with him outside where she wanted to inspect the truck. She proceeded to do so and found a number of articles which were not included in the receipts. The Plaintiffs say that these articles were left in plain view on the back seat with their appropriate receipts. Bowe then took the articles she had found and accompanied the Plaintiffs into the office. According to Linda Ross, at this point, she said she had a declaration to make of these goods found by Bowe in the truck. Another Customs Inspector, Customs Inspector Friesen (Friesen), arrived from another border post and after some delay the Plaintiffs were told that the goods that had not been declared by Bruce Ross initially and which had subsequently been found in the truck, would be forfeited together with the truck. They were then advised that to have the goods and the truck released they would have to pay $628.44. They reluctantly paid and eventually left. It is the recovery of that payment of $628.44, whose forfeit was confirmed by the Minister’s letter of August 9, 2005, which is the subject of this action on appeal from that decision.
[4] Bowe tells a rather different story. She says that when the Plaintiffs arrived she approached the truck and, as is her normal practice, addressed both of them asking about their citizenship, their place of residence, how long they had been absent from Canada, the total value of goods they had in the vehicle acquired by them in the United States, whether they had any firearms, and whether they had any repairs made to the vehicle while out of Canada. Bruce Ross said that he did not know the total value acquired because he had not added up the receipts. She then asked him to add up the receipts in respect of goods acquired. Among the receipts he had were some for food which he purportedly sorted out with the help of Linda Ross, and he came up with the total of $550.00 (U.S.) as the value of goods acquired. At no time during this exchange did Linda Ross mention that she also had goods to be declared. Bowe asked Bruce Ross to come into the office. He asked Bowe if his wife should come in and she said it was not necessary. Bowe then re-examined the receipts, sorted them again, and added them up reaching a higher total value. Bowe then explained to Bruce Ross as she prepared the “Casual Goods Accounting Document” that the total value of goods for which he had produced receipts was $796.55 (CAD). Bowe explained that she would deal with this as follows: she would treat Linda Ross as having goods worth $200.00 and would use Mrs. Ross’ exemption of $200.00 to reduce the total value of goods acquired by them to $596.55. From that amount there would be a deduction of $200.00 for his exemption; a further $300.00 would be entitled to a “beneficial overage rate” consisting mainly of unpaid G.S.T.; and that the remaining $96.55 would attract a tax of $6.76. (It will be noted that the sums thus accounted for in the “Casual Goods Accounting Document” total $596.55, being $200.00 less than the total of his declared goods which would be consistent with the other $200.00 having being covered by the use of Linda Ross’ exemption.)
[5] Bowe says she then checked Bruce Ross’ name in the computer and found he had two previous incidents of failing to declare goods at the border. She decided to search the truck whereupon she found the other undeclared goods, some of which were readily visible and some of which were not. As she found certain items Bruce Ross said he must have overlooked them and said several times that he was not trying to smuggle. Bowe took the undeclared goods and accompanied the Plaintiffs into the office. Only then did Linda Ross declare these additional goods. Friesen arrived at about this time. His evidence corroborates what Bowe said happened thereafter, including some rude comments by both Plaintiffs.
Analysis
[6] I respectfully agree with Justice Andrew MacKay where he stated in Mattu v. Canada (1991) , 45 F.T.R. 190 that the grounds for review of this kind of administrative decision should be those normally applied to judicial review even though this appeal is in the form of an action. With contemporary preoccupation with the standard of review and the functional and pragmatic approach, however, it is perhaps more difficult now to define the proper role of the Court in such an appeal. The issues here are essentially issues of fact: the law is clear that all goods must be declared at the border and that they can be forfeited if they are not. The essence of the Plaintiffs’ case is that they were prevented from complying with the Act by the actions of Bowe. Assuming for the moment that this could be a defence to failure to declare goods, by virtue of para. 153(3)(d) of the Act the burden of proof relating to the compliance with any of the provisions of the Act in respect of any goods lies on the Plaintiffs. The issue is essentially one of fact and since this appeal is by way of a de novo trial in the presence of witnesses, a situation which does not apply to the review by the Minister when he makes his decision under section 131, the Court is really in a better position to find the facts than was the Minister. I therefore conclude that I owe little deference to the Minister’s findings: the standard of review of findings of fact here is correctness.
[7] Having said that, I find several problems with the evidence of the Plaintiffs. They have stated on several occasions, both to the Customs Officers and to the Court, that they were in a hurry to get through customs to get to church in their home town that Sunday morning. Yet they approached the border without having totalled their purchases, seemingly wanting to leave this to the Customs Officer who, as is probably typically the case, was alone on duty and obliged to deal with other vehicles arriving at the border. The receipts for goods later found in the truck and which Linda Ross says she wanted to declare, were still in the bags with the goods in the back of the vehicle. She was thus completely unprepared to make a declaration if that was intended. Bruce Ross regarded it as “arrogance” that Bowe should ask him to do the additions of his items in his head. I can perhaps take judicial notice of the fact that anyone returning to Canada by airplane is obliged to fill out a form with exactly this information, and to do so in the airplane or in the terminal without benefit of calculator before ever presenting himself and his goods to a Customs Officer. While the Plaintiffs insist that Bowe addressed only Bruce Ross in the truck and would not allow Linda Ross to come into the office, my assessment of her would not lead me to believe that she would hesitate to speak up at some point to mention that she had goods to declare as well. It should have been apparent to Bruce Ross when the Casual Goods Accounting Document was prepared, dealing with a total of only $596.55, that on the understanding that Linda Ross had nothing further to declare her exemption of $200.00 was being used to reduce the total of then-declared goods of $796.55. After Bruce Ross had paid the $27.76 owing on his goods and he and Bowe had returned to the truck, Bowe then found a number of articles not covered by his declaration. According to Bowe, and I accept her version, Bruce Ross had various explanations for these goods not having been declared. There was an undeclared picture on the back seat of the truck which had no receipt. Bruce Ross said he had overlooked that item and found the receipt. Bowe then found a man’s jacket which had not been declared. Bruce Ross said that this was a mistake and that he was not trying to smuggle. It was only when they proceeded back into the office with Linda Ross that she for the first time said that she had not been allowed to make a declaration of these goods. It would have been open to Bruce Ross, when the Customs Inspector first found these undeclared goods, to explain that they were not his but his wife’s and that is why he had not declared them. He did not do so. Further, it appears to me that some 3 to 3.5 hours elapsed between the time that the Rosses arrived at the border and Linda Ross announced that she wanted to make a declaration. Having seen and heard the witnesses, I do not believe that the Plaintiffs have met the burden of proof that they were prevented from reporting the goods not declared by Bruce Ross. I will therefore dismiss the action.
[8] I might add that the Plaintiffs on several occasions complained about the rudeness of the conduct of the Customs Inspectors. This consisted, in their view, of being told emphatically what to do and not to do. But both Customs Inspectors, particularly Bowe who was with them for a much longer period, testified as to insulting, personal, and sometimes crude comments made by one or both of the Plaintiffs. I noticed that neither of the Plaintiffs contradicted this evidence although they had the opportunity to do so as I invited them to give rebuttal evidence if they wished. Bowe testified that she was becoming increasingly concerned about their behaviour and began calling neighbouring border posts to request assistance. It was only after Friesen arrived that she was prepared to confront the Plaintiffs with the announcement that the goods and the truck would be forfeited. I do not regard the Plaintiffs’ conduct as the demeanour of persons earnestly wishing to comply expeditiously with the law.
Disposition
[9] The action will therefore be dismissed with costs.
JUDGMENT
THIS COURT ADJUDGES that the action be dismissed with costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1970-05
STYLE OF CAUSE: BRUCE AND LINDA ROSS v.
MINISTER OF CANADA DUSTOMS AND REVENUE AGENCY et al
DATE OF HEARING: October 13 2006
APPEARANCES:
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Bruce and Linda Ross
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Mr. Don Klaassen
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FOR THE DEFENDANT |
SOLICITORS OF RECORD:
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(not applicable)
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FOR THE PLAINTIFFS |
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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