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
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.
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