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Excise Act, 2001 (S.C. 2002, c. 22)

Full Document:  

Act current to 2023-01-11 and last amended on 2022-12-15. Previous Versions

PART 6Enforcement (continued)

Forfeitures (continued)

Marginal note:Review of forfeiture

 The forfeiture of a thing under section 267 or any security held as forfeit instead of the thing 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 under this Act.

Review of Imposed Penalty or Seizure

Marginal note:Penalty imposed or seizure made in error

  •  (1) If the Minister determines that a penalty was imposed in error under section 254 or a thing was seized in error under section 260, the Minister may

    • (a) cancel the penalty and authorize the return of any amount of money paid with respect to the penalty; and

    • (b) authorize the release of the thing or the return of any security received in respect of the seizure.

  • Marginal note:Non-application if request made

    (2) Subsection (1) does not apply if a request under section 271 has been made in respect of the imposition of the penalty or the seizure.

Marginal note:Request for Minister’s decision

  •  (1) Any person on whom a penalty is imposed under section 254 or from whom a thing is seized under section 260 may request that the Minister review the imposition of the penalty or the seizure and make a decision under section 273.

  • Marginal note:Time limit for making request

    (2) A request must be made within 90 days after

    • (a) the date of the service or sending of the notice of the imposed penalty; or

    • (b) in the case of a thing, the date on which the seizure of the thing was brought to the notice of the person from whom the thing was seized.

  • Marginal note:How request made

    (3) A request must be made in writing

    • (a) if the request is in respect of a penalty imposed, to the office of the Agency from which the notice of the imposed penalty is issued; or

    • (b) if the request is in respect of a seizure of a thing, to the officer who seized the thing.

  • Marginal note:Burden of proof

    (4) The burden of proving that a request was made lies on the person claiming that it was made.

  • Marginal note:Commissioner to provide reasons

    (5) On receipt of a request, the Commissioner shall without delay provide to the person making the request written reasons for the seizure or the imposition of the penalty.

  • Marginal note:Evidence

    (6) The person making a request may submit any evidence that the person wishes the Minister to consider for the purposes of making the decision within 30 days after the date on which the written reasons were sent.

  • Marginal note:Form of evidence

    (7) Evidence may be given by affidavit sworn before a commissioner for taking oaths or any other person authorized to take affidavits.

Marginal note:Extension of time by Minister

  •  (1) If no request for a decision under section 271 is made within the time limited by that section, a person may make a written application to the Minister to extend the time for making a request.

  • Marginal note:Conditions — grant of application

    (2) The Minister may extend the time for making a request under section 271 if an application under subsection (1) is made within one year after the time limit for a request and the Minister is satisfied that

    • (a) the applicant had a bona fide intention to make the request before the expiration of the time limit but was unable to do so and was unable to instruct another person to do so on the applicant’s behalf;

    • (b) the application was made as soon as circumstances permitted it to be made; and

    • (c) having regard to any reasons provided by the applicant and to the circumstances of the case, it would be just and equitable to extend the time.

  • Marginal note:Notification of decision

    (3) The Minister shall notify the applicant of the Minister’s decision regarding the application by registered or certified mail.

  • Marginal note:If application granted

    (4) If the Minister decides to extend the time, the request under section 271 is deemed to have been made on the day of the decision of the Minister regarding the application.

  • Marginal note:Decision final

    (5) A decision of the Minister under this section is final and binding and, despite any other Act of Parliament, no appeal lies from it.

Marginal note:Decision of the Minister

  •  (1) As soon after the receipt of a request under section 271 as is reasonably possible, the Minister shall review the circumstances giving rise to the imposition of the penalty or the seizure and decide whether the contravention on which the penalty or the seizure is based occurred and what action is to be taken under section 274 or 275.

  • Marginal note:Notification of decision

    (2) The Minister shall notify the person who requested the decision of the decision by registered or certified mail.

  • Marginal note:Judicial review

    (3) The Minister’s decision 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 under subsection 276(1).

Marginal note:If no contravention occurred

  •  (1) Subject to this or any other Act of Parliament, if the Minister decides under subsection 273(1) that the contravention on which a penalty or seizure is based did not occur, the Minister shall without delay

    • (a) in the case of a penalty, cancel the penalty and authorize the return of any money paid on account of it and any interest that was paid in respect of it; or

    • (b) in the case of a seizure, authorize the release of the seized thing or the return of any security taken in respect of it.

  • Marginal note:Interest on money returned

    (2) If any money is authorized to be returned to a person, there shall be paid to the person, in addition to the money returned, interest at the prescribed rate computed for the period beginning on the day after the money was paid and ending on the day on which the money is returned.

Marginal note:If contravention occurred — penalty

  •  (1) If the Minister decides under subsection 273(1) that the contravention on which a penalty is based did occur, the Minister may

    • (a) confirm the penalty;

    • (b) if the Minister believes that the penalty imposed is insufficient under the circumstances relating to the contravention, demand from the person any additional amount of money that the Minister considers sufficient to increase the penalty to an amount of not more than the maximum amount for which the person is liable for the contravention, and the additional amount is payable immediately; or

    • (c) if the Minister believes that the penalty imposed should be reduced or waived under the circumstances relating to the contravention, reduce or waive the penalty.

  • Marginal note:If contravention occurred — seizure

    (2) If the Minister decides under subsection 273(1) that the contravention on which a seizure is based did occur, the Minister may, subject to any terms and conditions that the Minister may determine,

    • (a) confirm the seizure;

    • (b) return the seized thing on receipt by the Minister of an amount of money equal

      • (i) to the value of the thing at the time of the seizure, as determined by the Minister, or

      • (ii) to a lesser amount satisfactory to the Minister;

    • (c) return any portion of any security taken in respect of the thing; or

    • (d) if the Minister considers that insufficient security was taken or if no security was received, demand any amount of money that the Minister considers sufficient in the circumstances, and the amount is payable immediately.

  • Marginal note:Amounts demanded by the Minister

    (3) Any amount of money demanded under paragraph (1)(b) or (2)(d), from and after the date of the notice provided under subsection 273(2), constitutes a debt due to Her Majesty from the person who requested the decision and that person is in default unless, within 90 days after that date, the person

    • (a) pays the amount so demanded; or

    • (b) if the person appeals the decision of the Minister under section 276, gives security satisfactory to the Minister.

  • Marginal note:Interest on penalty during appeal period

    (4) Despite subsection 170(1), if the decision of the Minister is appealed to the Federal Court under section 276, no interest is payable in respect of an amount demanded under paragraph (1)(b) or (2)(d) for any period before the day on which the appeal is resolved.

  • Marginal note:Forfeiture ceases

    (5) If the Minister returns a seized thing or security taken in respect of a seized thing under subsection (2), the thing or the security ceases to be forfeit.

Marginal note:Federal Court

  •  (1) A person who requests a decision of the Minister under section 271 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant.

  • Marginal note:Ordinary action

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

  • 2002, c. 22, ss. 276, 410

Marginal note:Restoration of things seized pending appeal

 If an appeal is taken by the Crown from a judgment that orders the Crown to give or return to a person anything that has been seized under section 260, the execution of the judgment shall not be suspended if the person to whom the thing is ordered given or returned gives any security to the Crown that the court that rendered the judgment considers sufficient to ensure delivery of the thing or the full value of the thing to the Crown if the judgment so appealed is reversed.

Third Party Claims

Marginal note:Third party may claim interest in seized or forfeited thing

  •  (1) On application by a person, other than a person who is entitled to make a request under section 271, who is an owner of, or who holds a security or property interest in, a thing seized under section 260 or forfeited under section 267, the Minister may declare

    • (a) that the applicant’s interest in the thing is not affected by the seizure or forfeiture of the thing; and

    • (b) the nature and extent of that interest at the time of the contravention on which the seizure or forfeiture is based.

  • Marginal note:Conditions for declaration

    (2) A declaration referred to in subsection (1) shall not be made unless

    • (a) a request under section 271 has not been made in respect of the seizure of the thing or, if a request was made, the seizure has been confirmed by the Minister under paragraph 275(2)(a); and

    • (b) the Minister is satisfied that the applicant

      • (i) acquired in good faith the interest in the seized thing before the contravention occurred,

      • (ii) is innocent of any complicity and of any collusion in respect of the contravention, and

      • (iii) exercised all reasonable care to satisfy themselves that any person likely to have possession of the thing was not likely to use it in connection with a contravention of this Act.

  • Marginal note:Manner and time limit for making application

    (3) An application must be submitted in writing,

    • (a) in the case of a seizure, within 90 days after the date of the seizure of the thing, to the officer who made the seizure; or

    • (b) in any other case, within 90 days after the date on which the person became aware of the contravention on which the forfeiture is based, to the Minister.

  • Marginal note:Burden of proof

    (4) The burden of proving that an application was submitted lies on the person claiming that it was submitted.

  • Marginal note:Evidence

    (5) An applicant may submit any evidence that they wish the Minister to consider for the purposes of the application within 30 days after the date of the request.

  • Marginal note:Form of evidence

    (6) Evidence may be given by affidavit sworn before a commissioner for taking oaths or any other person authorized to take affidavits.

  • Marginal note:Notification of decision

    (7) The Minister shall notify the applicant of the Minister’s decision regarding the application under subsection (1) by registered or certified mail.

Marginal note:Extension of time by Minister

  •  (1) If no application for a declaration under section 278 is made within the time limited by that section, a person may apply in writing to the Minister to extend the time for making an application under that section.

  • Marginal note:Conditions — grant of application

    (2) The Minister may extend the time for making an application under section 278 if an application under subsection (1) is made within one year after the time limit for the application under section 278 and the Minister is satisfied that

    • (a) the applicant had a bona fide intention to apply under section 278 before the expiration of the time limit but was unable to do so and was unable to instruct another person to do so on the applicant’s behalf;

    • (b) the application under subsection (1) was made as soon as circumstances permitted it to be made; and

    • (c) having regard to any reasons provided by the applicant and to the circumstances of the case, it would be just and equitable to extend the time.

  • Marginal note:Notification of decision

    (3) The Minister shall notify the applicant of the Minister’s decision regarding the application under subsection (1) by registered or certified mail.

  • Marginal note:If application granted

    (4) If the Minister decides to extend the time, the application under section 278 is deemed to have been made on the day of the decision of the Minister regarding the application under subsection (1).

  • Marginal note:Decision final

    (5) A decision of the Minister under this section is final and binding and, despite any other Act of Parliament, no appeal lies from it.

Marginal note:Application to court

  •  (1) If the Minister decides not to make a declaration under subsection 278(1) or the applicant is not satisfied with the declaration made, the applicant may, within 90 days after the date of the decision or declaration, apply by notice in writing to a superior court of competent jurisdiction for an order under section 281.

  • Marginal note:Date of hearing

    (2) The court to which an application is made under this section shall fix a day for the hearing of the application that is not less than 30 days after the date of the filing of the application.

  • Marginal note:Notice to Commissioner

    (3) An applicant shall serve notice of the application and of the hearing on the Commissioner, or an officer designated by the Commissioner for the purposes of this section, not later than 15 days after the day on which the date for the hearing of the application is fixed.

  • Marginal note:Service of notice

    (4) The service of a notice is sufficient if it is sent by registered or certified mail addressed to the Commissioner.

 
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