Customs Act (R.S.C., 1985, c. 1 (2nd Supp.))

Marginal note:Seizure cancels notice

125 The seizure under this Act of anything in respect of which a notice is served under section 124, except as evidence alone, constitutes a cancellation of the notice where the notice and the seizure are in respect of the same contravention.

Marginal note:Limitation respecting seizure

126 Nothing in respect of which a notice is served under section 124 is, from the time the amount demanded in the notice is paid or from the time a decision of the Minister under section 131 is requested in respect of the amount demanded, subject to seizure under this Act in respect of the same contravention except as evidence alone.

Review of Seizure, Ascertained Forfeiture or Penalty Assessment

Marginal note:No review or appeal

126.1 Sections 127 to 133 do not apply to a contravention of subsection 40(3) of this Act by a person referred to in paragraph (c) of that subsection, or to a contravention of section 32.2 of this Act in circumstances to which subsection 32.2(6) of this Act applies, or to a contravention of subsection 95(1), 118(1) or (2), 121(1) or 122(1) of the Customs Tariff.

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 President 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 90 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:Report to President

128 Where goods or a conveyance has been seized under this Act, or a notice has been served under section 109.3 or 124, the officer who seized the goods or conveyance or served the notice or caused it to be served shall forthwith report the circumstances of the case to the President.

Marginal note:Request for Minister’s decision

• 129 (1) The following persons may, within 90 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 to the Minister in writing or by any other means that is satisfactory to the Minister:

  • (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.

• Marginal note:Burden of proof

  (2) The burden of proof that notice was given under subsection (1) lies on the person claiming to have given the notice.

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.

Marginal note:Notice of reasons for action

• 130 (1) Where a decision of the Minister under section 131 is requested under section 129, the President shall forthwith serve on the person who requested the decision written notice of the reasons for the seizure, or for the notice served under section 109.3 or 124, in respect of which the decision is requested.

• Marginal note:Evidence

  (2) The person on whom a notice is served under subsection (1) may, within thirty days after the notice is served, furnish such evidence in the matter as he desires to furnish.

• 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:Decision of the Minister

• 131 (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide

  • (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened;

  • (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; or

  • (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.

  • (d) [Repealed, 2001, c. 25, s. 72]

• 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:Notice of decision

  (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.

• Marginal note:Judicial review

  (3) The Minister’s decision under subsection (1) is 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 subsection 135(1).

Marginal note:Where there is no contravention

• 132 (1) Subject to this or any other Act of Parliament,

  • (a) where the Minister decides, under paragraph 131(1)(a) or (b), that there has been no contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, or, under paragraph 131(1)(b), that the conveyance referred to in that paragraph was not used in the manner described in that paragraph, the Minister shall forthwith authorize the removal from custody of the goods or conveyance or the return of any money or security taken in respect of the goods or conveyance; and

  • (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:Interest on money returned

  (2) Where any money is authorized under subsection (1) to be returned to any person, there shall be paid to that person, in addition to the money returned, interest on the money at the prescribed rate for the period beginning on the day after the day the money was paid and ending on the day the money is returned.

• (3) [Repealed, 1992, c. 28, s. 26]