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Excise Act, 2001 (S.C. 2002, c. 22)

Full Document:  

Act current to 2019-08-28 and last amended on 2019-06-21. Previous Versions

PART 6Enforcement (continued)

Review of Imposed Penalty or Seizure (continued)

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.

Marginal note:Order

 An applicant under section 280 is entitled to an order declaring that their interest in a seized or forfeited thing is not affected by the seizure or forfeiture and declaring the nature and extent of that interest at the time of the contravention on which the seizure or forfeiture is based if, on the hearing of an application made under section 280, the court is satisfied that the applicant

  • (a) acquired in good faith the interest in the thing before the contravention occurred;

  • (b) is innocent of any complicity and of any collusion in respect of the contravention; and

  • (c) 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:Appeal

 An applicant or the Crown may appeal an order made under section 281 to a court having appellate jurisdiction in other cases decided by the court that made the order and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court.

Marginal note:Delivery to applicant

  •  (1) If an applicant’s interest in a seized thing is established under section 278, 281 or 282, the Minister shall, on the request of the applicant, direct that

    • (a) the thing be given to the applicant; or

    • (b) an amount calculated on the basis of the interest of the applicant in the thing as established be paid to the applicant.

  • Marginal note:Limit on amount paid

    (2) The total amount paid under paragraph (1)(b) in respect of a thing shall, if it 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 thing and, if there are no proceeds of a disposition of a thing under this Act, no payment shall be made under that paragraph in respect of the thing.

 
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