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
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.
76. Subsection 140(1) of the Act is replaced by the following:
Marginal note:Appeal
140. (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.
Marginal note:1999, c. 17, par. 127(m)
77. Section 141 of the Act is replaced by the following:
Marginal note:Goods or conveyance given to applicant
141. (1) The Commissioner, on application by a person whose interest in a conveyance detained under subsection 97.25(2) or in goods or a conveyance seized as forfeit under this Act has been determined under section 139 or ordered under section 139.1 or 140 to be unaffected by the seizure or detention, shall direct that
(a) in the case of goods or a conveyance the forfeiture of which has become final, the goods or conveyance, as the case may be, be given to the applicant; and
(b) in the case of a conveyance detained under subsection 97.25(2), the conveyance be given to the applicant.
Marginal note:Amount paid if goods or conveyance sold
(1.1) If goods or a conveyance that is to be given to the applicant has been sold or disposed of, an amount calculated on the basis of the interest of the applicant in the goods or conveyance at the time of the contravention or use, as determined under section 139 or ordered under section 139.1 or 140, shall be paid to the applicant.
Marginal note:Limit on amount paid
(2) The total amount paid under subsection (1.1) in respect of goods or a conveyance shall, if the goods or conveyance was sold or otherwise disposed of under this Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the goods or conveyance, and, if there are no proceeds of disposition, no payment shall be made pursuant to subsection (1.1).
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