An Act to amend the Customs Act and to make related amendments to other Acts (S.C. 2001, c. 25)
Full Document:
Assented to 2001-10-25
R.S., c. 1 (2nd Supp.)CUSTOMS ACT
Marginal note:1995, c. 41, s. 29; 1997, c. 36, ss. 182, 183
62. Sections 109.1 and 109.11 of the Act are replaced by the following:
Marginal note:Designated provisions
109.1 (1) Every person who fails to comply with any provision of an Act or a regulation designated by the regulations made under subsection (3) is liable to a penalty of not more than twenty-five thousand dollars, as the Minister may direct.
Marginal note:Failure to comply
(2) Every person who fails to comply with any term or condition of a licence issued under this Act or the Customs Tariff or any obligation undertaken under section 4.1 is liable to a penalty of not more than twenty-five thousand dollars, as the Minister may direct.
Marginal note:Designation by regulation
(3) The Governor in Council may make regulations
(a) designating any provisions of this Act, the Customs Tariff or the Special Import Measures Act or of any regulation made under any of those Acts; and
(b) establishing short-form descriptions of the provisions designated under paragraph (a) and providing for the use of those descriptions.
Marginal note:1993, c. 25, s. 80; 1995, c. 41, s. 30
63. Section 109.3 of the Act is replaced by the following:
Marginal note:Assessment
109.3 (1) A penalty to which a person is liable under section 109.1 or 109.2 may be assessed by an officer and, if an assessment is made, an officer shall serve on the person a written notice of that assessment by sending it by registered or certified mail or delivering it to the person.
Marginal note:Limitation on assessment
(2) A person shall not be assessed penalties under both sections 109.1 and 109.2 in respect of the same contravention of this Act, the Customs Tariff or the Special Import Measures Act or the regulations made under those Acts.
Marginal note:Penalty in addition to other sanction
(3) An assessment under subsection (1) may be made in addition to a seizure under this Act or a demand for payment under section 124, in respect of the same contravention of this Act or the regulations.
Marginal note:Sufficiency of short-form description
(4) The use on a notice of assessment of a short-form description established under paragraph 109.1(3)(b) or of a description that deviates from that description without affecting its substance is sufficient for all purposes to describe the contravention.
Marginal note:1993, c. 25, s. 80
64. Section 109.5 of the Act is replaced by the following:
Marginal note:Interest on penalties
109.5 (1) Subject to subsection (2), a person on whom a notice of assessment of a penalty has been served under section 109.3 shall pay, in addition to the penalty, interest at the prescribed rate for the period beginning on the day after the notice was served on the person and ending on the day the penalty has been paid in full, calculated on the outstanding balance of the penalty.
Marginal note:Exception
(2) Interest is not payable if the penalty is paid in full by the person within thirty days after the date of the notice of assessment.
65. Section 115 of the Act is replaced by the following:
Marginal note:Copies of records
115. (1) If any record is examined or seized under this Act, the Minister, or the officer by whom it is examined or seized, may make or cause to be made one or more copies of it, and a copy purporting to be certified by the Minister or a person authorized by the Minister is admissible in evidence and has the same probative force as the original would have if it had been proved in the ordinary way.
Marginal note:Detention of records seized
(2) No record that has been seized as evidence under this Act shall be detained for a period of more than three months unless, before the expiration of that period,
(a) the person from whom it was seized agrees to its further detention for a specified period;
(b) a justice of the peace is satisfied on application that, having regard to the circumstances, its further detention for a specified period is warranted and he or she so orders; or
(c) judicial proceedings are instituted in which the seized record may be required.
66. Section 123 of the Act is replaced by the following:
Marginal note:Review of forfeiture
123. The forfeiture of goods or conveyances seized under this Act or any money or security held as forfeit in lieu of such goods or conveyances is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 127.1 and 129.
67. (1) Section 124 of the Act is amended by adding the following after subsection (4):
Marginal note:Value of exported goods
(4.1) Sections 117 and 119 and subsection (2) apply to a contravention of this Act or the regulations in respect of goods that have been or are about to be exported, except that the references to “value for duty of the goods” in those provisions are to be read as references to “value of the goods”.
Marginal note:Value of goods
(4.2) For the purposes of subsection (4.1), the expression “value of the goods” means the total of all payments made or to be made by the purchaser of the goods to or for the benefit of the vendor.
Marginal note:Value of goods set by Minister
(4.3) If the value of the goods cannot be determined under subsection (4.2), the Minister may determine that value.
(2) Section 124 of the Act is amended by adding the following after subsection (5):
Marginal note:Interest
(6) A person on whom a notice of ascertained forfeiture has been served shall pay, in addition to the amount set out in the notice, interest at the prescribed rate for the period beginning on the day after the notice was served and ending on the day the amount is paid in full, calculated on the outstanding balance. However, interest is not payable if the amount is paid in full within thirty days after the date of the notice.
Marginal note:1993, c. 25, s. 81
68. Section 127 of the Act is replaced by the following:
Marginal note:Review of ascertained forfeiture or penalty assessment
127. The debt due to Her Majesty as a result of a notice served under section 109.3 or a demand under section 124 is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 127.1 and 129.
Marginal note:Corrective measures
127.1 (1) The Minister, or any officer designated by the Minister for the purposes of this section, may cancel a seizure made under section 110, cancel or reduce a penalty assessed under section 109.3 or an amount demanded under section 124 or refund an amount received under any of sections 117 to 119 within thirty days after the seizure, assessment or demand, if
(a) the Minister is satisfied that there was no contravention; or
(b) there was a contravention but the Minister considers that there was an error with respect to the amount assessed, collected, demanded or taken as security and that the amount should be reduced.
Marginal note:Interest
(2) If an amount is returned to a person under paragraph (1)(a), the person shall be given interest on that amount at the prescribed rate for the period beginning on the day after the amount was originally paid by that person and ending on the day it was returned.
Marginal note:1993, c. 25, s. 82
69. Subsection 129(1) of the Act is replaced by the following:
Marginal note:Request for Minister’s decision
129. (1) The following persons may, within ninety days after the date of a seizure or the service of a notice, request a decision of the Minister under section 131 by giving notice in writing, or by any other means satisfactory to the Minister, to the officer who seized the goods or conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or closest to the place from where the notice was served:
(a) any person from whom goods or a conveyance is seized under this Act;
(b) any person who owns goods or a conveyance that is seized under this Act;
(c) any person from whom money or security is received pursuant to section 117, 118 or 119 in respect of goods or a conveyance seized under this Act; or
(d) any person on whom a notice is served under section 109.3 or 124.
70. The Act is amended by adding the following after section 129:
Marginal note:Extension of time by Minister
129.1 (1) If no request for a decision of the Minister is made under section 129 within the time provided in that section, a person may apply in writing to the Minister for an extension of the time for making the request and the Minister may grant the application.
Marginal note:Reasons
(2) An application must set out the reasons why the request was not made on time.
Marginal note:Burden of proof of application
(3) The burden of proof that an application has been made under subsection (1) lies on the person claiming to have made it.
Marginal note:Notice of decision
(4) The Minister must, without delay after making a decision in respect of an application, notify the applicant in writing of the decision.
Marginal note:Conditions for granting application
(5) The application may not be granted unless
(a) it is made within one year after the expiration of the time provided in section 129; and
(b) the applicant demonstrates that
(i) within the time provided in section 129, the applicant was unable to request a decision or to instruct another person to request a decision on the applicant’s behalf or the applicant had a bona fide intention to request a decision,
(ii) it would be just and equitable to grant the application, and
(iii) the application was made as soon as circumstances permitted.
Marginal note:Extension of time by Federal Court
129.2 (1) A person may apply to the Federal Court to have their application under section 129.1 granted if
(a) the Minister dismisses that application; or
(b) ninety days have expired after the application was made and the Minister has not notified the person of a decision made in respect of it.
If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is dismissed.
Marginal note:Application process
(2) The application must be made by filing a copy of the application made under section 129.1, and any notice given in respect of it, with the Minister and the Administrator of the Court.
Marginal note:Powers of the Court
(3) The Court may grant or dismiss the application and, if it grants the application, may impose any terms that it considers just or order that the request under section 129 be deemed to have been made on the date the order was made.
Marginal note:Conditions for granting application
(4) The application may not be granted unless
(a) the application under subsection 129.1(1) was made within one year after the expiration of the time provided in section 129; and
(b) the person making the application demonstrates that
(i) within the time provided in section 129 for making a request for a decision of the Minister, the person was unable to act or to instruct another person to act in the person’s name or had a bona fide intention to request a decision,
(ii) it would be just and equitable to grant the application, and
(iii) the application was made as soon as circumstances permitted.
71. Subsection 130(3) of the Act is replaced by the following:
Marginal note:Evidence
(3) Evidence may be given under subsection (2) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.
Marginal note:1993, c. 25, s. 84
72. (1) Subsection 131(1) of the Act is amended by adding the word “or” at the end of paragraph (b) and by replacing paragraphs (c) and (d) with the following:
(c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply.
(2) Section 131 of the Act is amended by adding the following after subsection (1):
Marginal note:Exception
(1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter.
Marginal note:1993, c. 25, s. 85
73. Paragraph 132(1)(b) of the Act is replaced by the following:
(b) where, as a result of a decision made by the Minister under paragraph 131(1)(c), the Minister decides that a penalty that was assessed under section 109.3 is not justified by the facts or the law, the Minister shall forthwith cancel the assessment of the penalty and authorize the return of any money paid on account of the penalty and any interest that was paid under section 109.5 in respect of the penalty.
Marginal note:1993, c. 25, s. 86(2)
74. (1) Subsection 133(1.1) of the Act is replaced by the following:
Marginal note:Powers of Minister
(1.1) If the Minister decides under paragraph 131(1)(c) that the person failed to comply, the Minister may, subject to any terms and conditions that the Minister may determine,
(a) remit any portion of the penalty assessed under section 109.3; or
(b) demand that an additional amount be paid.
If an additional amount is demanded, the total of the amount assessed and the additional amount may not exceed the maximum penalty that could be assessed under section 109.3.
Marginal note:1993, c. 25, s. 86(3)
(2) Subsection 133(7) of the Act is replaced by the following:
Marginal note:Interest
(7) If an amount of money is demanded under paragraph (1)(c) or (1.1)(b), the person to whom the demand is made shall pay the amount demanded together with interest at the prescribed rate for the period beginning on the day after the notice is served under subsection 131(2) and ending on the day the amount has been paid in full, calculated on the outstanding balance of the amount. However, interest is not payable if the amount demanded is paid in full within thirty days after the notice is served.
Marginal note:1992, c. 1, s. 62, c. 51, s. 45; 1998, c. 30, par. 14(e); 1999, c. 3, s. 60, c. 17, par. 127(l)
75. Sections 138 and 139 of the Act are replaced by the following:
Marginal note:Third party claims
138. (1) If goods or a conveyance is seized as forfeit under this Act or if a conveyance is detained under subsection 97.25(2), any person, other than the person in whose possession it was when seized or detained, who claims an interest in it as owner, mortgagee, hypothecary creditor, lien-holder or holder of any like interest may, within ninety days after the seizure or detention, apply for a decision by the Minister under section 139.
Marginal note:Application procedure
(2) A person may apply for a decision by giving notice in writing to the officer who seized or detained the goods or conveyance or to an officer at the customs office closest to the place where the seizure or detention took place.
Marginal note:Burden of proof of application
(3) The burden of proof that an application has been made under subsection (1) lies on the person claiming to have made it.
Marginal note:Provision of evidence
(4) A person who applies under subsection (1) must provide evidence that relates to their interest in the seized or detained goods or conveyance and any other evidence requested by the Minister in respect of that interest.
Marginal note:Manner of giving evidence
(5) Evidence may be given under subsection (4) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.
Marginal note:Late applications
(6) The Minister may accept an application made within one year after the expiration of the ninety days referred to in subsection (1) by a person who has not claimed an interest in the seized or detained goods or conveyance within those ninety days.
Marginal note:Conditions for late applications
(7) When making an application under subsection (6), the person must demonstrate to the Minister that
(a) within the time provided in subsection (1) for making an application the person
(i) was unable to act or to instruct another person to act in the person’s name, or
(ii) had a bona fide intention to apply under that subsection;
(b) it would be just and equitable to grant the application; and
(c) the application was made as soon as circumstances permitted.
Marginal note:Decision of Minister
139. The Minister must decide an application made under section 138 without delay and, if the Minister is satisfied that the following conditions are met, must make a determination that the applicant’s interest in the goods or conveyance is not affected by the seizure or detention and as to the nature and extent of the applicant’s interest at the time of the contravention or use:
(a) the applicant acquired the interest in good faith before the contravention or use;
(b) the applicant is innocent of any complicity or collusion in the contravention or use; and
(c) the applicant exercised all reasonable care in respect of any person permitted to obtain possession of the goods or conveyance in order to satisfy the applicant that it was not likely to be used in a contravention or, if the applicant is a mortgagee, hypothecary creditor or lien-holder, the applicant exercised that care in relation to the mortgagor, hypothecary debtor or lien-giver.
Marginal note:Order
139.1 (1) A person who makes an application under section 138 may, within ninety days after being notified of the decision, apply for an order under this section by giving notice in writing to the court.
Meaning of “court”
(2) In this section, “court” means
(a) in the Province of Ontario, the Superior Court of Justice;
(b) in the Province of Quebec, the Superior Court;
(c) in the Provinces of Nova Scotia and British Columbia, the Yukon Territory and the Northwest Territories, the Supreme Court;
(d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench;
(e) in the Provinces of Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court; and
(f) in Nunavut, the Nunavut Court of Justice.
Marginal note:Date of hearing
(3) A judge of the court must fix a day, not less than thirty days after the application has been made, for the hearing of the application.
Marginal note:Notice to Minister
(4) The applicant, no later than fifteen days before the day fixed for the hearing, must serve notice of the application and of the hearing on the Minister, or an officer designated by the Minister for the purposes of this section.
Marginal note:Service by registered mail
(5) Service of the notice is sufficient if it is sent by registered mail addressed to the Minister.
Marginal note:Order
(6) The applicant is entitled to an order declaring that the applicant’s interest is not affected by the seizure or detention and declaring the nature and extent of the applicant’s interest at the time of the contravention or use if, on the hearing of the application, the court is satisfied that the applicant
(a) acquired the interest in good faith prior to the contravention or use;
(b) is innocent of any complicity or collusion in the contravention or use; and
(c) exercised all reasonable care in respect of any person permitted to obtain possession of the goods or conveyance in order to satisfy the applicant that it was not likely to be used in a contravention or, if the applicant is a mortgagee, hypothecary creditor or lien-holder, that the applicant exercised that care in relation to the mortgagor, hypothecary debtor or lien-giver.
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