Reasons
for the Ascertained Forfeiture
May 25, 2001
Canada Customs and Revenue Agency
Registered
Andrew M. McMechan
S.E. 16-1-29, Box 87
Pierson, Manitoba
R0M 1S0
Dear Mr. McMechan:
Subject: CS-23956/I-WG-1509
December 10, 1996
John Deere Farm Tractor
This refers to correspondence dated December 10, 1996, from Mr. Leonard
Tallieur, of Walsh, Micay & Company, which enclosed a payment of
$5,000 against ascertained forfeiture I-WG-1509, and is further to your
recent telephone conversations with officials from this Division.
The Adjudications Division of the Canada Customs and Revenue Agency has
a mandate to conduct a full and impartial review of the decision taken by
the investigator who made the assessment. Accordingly, please accept
this correspondence as the written Reasons for the Ascertained
Forfeiture. If you have any additional information to submit concerning
this matter please do so within 30 days. If you have no comments to
provide, please advise us so that we may render your decision as
expeditiously as possible. In any event, whether or not you provide representation
in this matter, you may be assured that your case will be given priority
and decided quickly.
According to the reports prepared by the investigating agency (Winnipeg
Investigations Division), the ascertained forfeiture was compiled with
respect to four alleged contraventions of the Customs Act. These incidents
were reported as having occurred on March 3, 1996, and were initially
documented under seizure files 523-132/CS-5072 - $2,000, 523-133/CS-5071 -
$200, 523-134 - $2,000 and 523-204 - $800. Full payment of $5,000.00
with respect to the seizures was received under the ascertained forfeiture
and is the subject of this file (CS-23956).
The above seizures and encompassing ascertained forfeiture were made
because the said conveyance (a John Deere farm tractor) was used in the
unlawful export of barley from Canada and because the conveyance was
removed from a Customs office without having been released by an officer.
Specifically, on March 3, 1996, at approximately 11:25am, you were seen
by Canada Customs officials at Lyleton, Manitoba, proceeding south into
the United States driving a farm tractor and hauling a wagon. It was
subsequently determined that you had exported from Canada a shipment of
approximately 50 bushels of barley without reporting it in writing to
Canada Customs and without presentation of a valid Canadian Wheat Board
Export Licence. On your return to Canada at approximately 15:28 pm
that same day, you were advised that your farm tractor was under seizure
for unlawfully exporting barley (523-132/CS-5072). Instead of
leaving your tractor at Customs, you left the port at approximately 16:04
pm without authority from Customs and prior to the authorized release of
the tractor (523-133/CS-5071). Subsequently, at approximately 18:24
pm you exported a second shipment of approximately 1200 bushels of barley
to the United States without report to Canada Customs and without
presentation of the applicable export licence. In this regard,
seizure 523-134 was issued against the tractor in question for its use in
the unlawful export of the second shipment. At approximately 19:00
pm the same day you returned to Canada after exporting the second shipment
and again unlawfully removed the tractor from Customs resulting in seizure
523-204 being issued. The receipts for the latter two seizures were
not given to you in light of your actions at the time.
I should explain that the Canadian Wheat Board Act and Regulations
requires that an exporter of wheat and barley obtain an export licence
from the Canadian Wheat Board before such grain may be exported from
Canada. For Customs purposes, the requirement to obtain an export
licence means that wheat and barley is controlled/regulated by an Act of
Parliament. Subsection 95(1) of the Customs Act and section 3 of the
Regulations Respecting the Reporting of Exported Goods require that goods
be reported in writing prior to export. It is also noted that
section 10 of the those regulations does not exempt goods which are
controlled/regulated by the Customs Act or any Act of Parliament from the
requirement to be reported in writing. Also, section 5 of the
regulations stats that an exporter is required to provide to the chief
Customs officer copies of any export licences required under the Customs
Act or any Act of Parliament on or before the day of exportation of the
goods.
It should be noted that Customs D-Memorandum 19-3-2, paragraph 8, which
is available to the public, outlines the form and information satisfactory
to the Department for an exporter of wheat and barley to fulfill its
obligation to report in writing. In this regard, the exporter must
provide Customs, prop to export of the grain, two copies of the bill of
lading or scale ticket, identifying the quantity and the grade and protein
level of the shipment and two copies of the Canadian Wheat Board licence.
I should also explain that under section 122 of the Customs Act, goods
which are not reported, in contravention of the Customs Act or
regulations, become automatically subject to forfeiture from the time of
the contravention and thus may be seized pursuant to section 110 of the
Customs Act. Subsections 110(1)(a) and (b) of the Customs Act allows
for the seizure of goods or a vehicle where an officer believes on
reasonable grounds that this Act or the regulations have been
contravened. In addition, section 31 of the Customs Act states that
"no goods (this include conveyances by de4finition) shall be removed
from a Customs office, ..., by any person other than an officer in the
performance of his duties under this of any Act of Parliament unless the
goods have been released by an officer." On the occasion that
you removed the tractor from the Customs port after it had been seized and
you were advised not to do so, you were in contravention of the Customs
Act.
Subsection 118(a) of the Customs Act allows for the return of a
conveyance seized for an amount equal to its value or such lesser amount
as the Minster may direct. In this regard, you were assessed $2,000
for each time you used the tractor to unlawfully export barley from Canada
and $1,000 ($200 + $800) for the unlawful removals of the tractor
from he Customs port prior to its authorized release. The
foregoing amounts being subject to forfeiture, were demanded under section
124 of the Customs Act for which full payment has been received.
It is noted that the contents of your appeal dated March 25, 1996, were
addressed in departmental correspondence dated May 30, 1996 (copies
attached for your information).
The Adjudications Division is committed to making the Customs redress
process as transparent as possible. To this end, Adjudications would
like to offer you, on request, a copy of the investigator's Narrative
Report. This report may assist you in responding more adequately to
the allegations made by the enforcement agency. If you wish to
receive a copy of the investigator's Narrative Report, please inform me in
writing within 30 days of this correspondence.
All additional information should be forwarded, within 30 days from the
date of mailing of this correspondence, to the Canada Customs and Revenue
Agency, Adjudications Division, 25 Nicholas Street, 20th Floor, Ottawa,
Ontario, K1A 0L5, referring to our file number. I can assure you
that all documents and information received will by duly considered at the
time of final decision. You will be notified by registered mail as
soon as a decision is made.
I trust that the above is satisfactory.
Yours truly,
Don Pestaluky
Adjudicator
Adjudications Division, Appeals Branch
For Commissioner of the Canada Customs and Revenue Agency
Tel. No.: (613) 941-6156
Fax No.: (613) 952-2432
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