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

Full Document:  

Act current to 2019-06-20 and last amended on 2019-06-17. Previous Versions

PART VIEnforcement (continued)

Forfeitures (continued)

Review of Seizure, Ascertained Forfeiture or Penalty Assessment (continued)

 [Repealed, 1998, c. 19, s. 263]

Marginal note:Federal Court

  •  (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant.

  • Marginal note:Ordinary action

    (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions.

  • R.S., 1985, c. 1 (2nd Supp.), s. 135
  • 1990, c. 8, s. 49
  • 2002, c. 8, s. 134

Marginal note:Restoration of goods pending appeal

 Where an appeal is taken by the Crown from any judgment that orders the Crown to give or return anything that has been seized under this Act to any person, the execution of the judgment shall not be suspended if the person to whom the goods are ordered given or returned gives such security to the Crown as the court that rendered the judgment, or a judge thereof, considers sufficient to ensure delivery of the goods or the full value thereof to the Crown if the judgment so appealed is reversed.

Marginal note:Service of notices

 The service of the President’s notice under section 130 or the notice of the Minister’s decision under section 131 is sufficient if it is sent by registered mail addressed to the person on whom it is to be served at his latest known address.

  • R.S., 1985, c. 1 (2nd Supp.), s. 137
  • 1999, c. 17, s. 127
  • 2005, c. 38, s. 85

Third Party Claims

Marginal note:Third party claims

  •  (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 to the Minister in writing or by any other means that is satisfactory to the Minister.

  • 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.

  • R.S., 1985, c. 1 (2nd Supp.), s. 138
  • 1992, c. 1, s. 62, c. 51, s. 45
  • 1998, c. 30, s. 14
  • 1999, c. 3, s. 60, c. 17, s. 127
  • 2001, c. 25, s. 75
  • 2014, c. 20, s. 174
  • 2015, c. 3, s. 62(F)

Marginal note:Decision of Minister

 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.

  • R.S., 1985, c. 1 (2nd Supp.), s. 139
  • 2001, c. 25, s. 75

Marginal note:Order

  •  (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, British Columbia and Prince Edward Island, Yukon 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 Province of Newfoundland and Labrador, 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.

  • 2001, c. 25, s. 75
  • 2002, c. 7, s. 272
  • 2009, c. 10, s. 14(F)
  • 2015, c. 3, s. 63

Marginal note:Appeal

  •  (1) A person who makes an application under section 139.1 or the Crown may appeal to the court of appeal from an order made under that section and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the court of appeal from orders or judgments of a court.

  • Definition of court of appeal

    (2) In this section, court of appeal means, in the province in which an order under this section is made, the court of appeal for that province as defined in section 2 of the Criminal Code.

  • R.S., 1985, c. 1 (2nd Supp.), s. 140
  • 2001, c. 25, s. 76
 
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