The Customs Act (the “Act”) requires all persons arriving in Canada to report their imported goods brought into Canada. Accordingly, travellers arriving in Canada can expect to be investigated by the Canadian Border Services Agency (“CBSA”) who has been mandated to detect and apprehend violators of the Act. CBSA officers are vested with broad search and seizure powers.
Those in contravention of the Act may face enforcement actions including seizures, ascertained forfeitures, penalties and even potentially criminal smuggling charges!
On the civil side of things, CBSA’s enforcement actions can usually be challenged by acting timely and taking prudent steps such as, by engaging an experienced professional!
Background
As part of its border management and enforcement, the CBSA processes around 100 million travelers annually (through over 1,200 domestic and international entry points). Given the high risk of border infractions, the CBSA officers have been vested with broad legislative powers allowing them to question travellers, search and seize any undeclared or inadmissible goods, and initiate appropriate enforcement actions.
In recent years, CBSA has been extremely vigilant about unlawful importation of certain classes of goods, as for example, either undeclared, under-valued or out-right smuggled jewellery items. In the past few years, jewellery appears to account for approximately 3,500 seizures per year: see CBSA’s annual seizure disclosure information.
In addition to these seizures, other penalties and sanctions can generally follow, including revocation of NEXUS cards, and an automatic referral to secondary screening every time the traveller crosses any Canadian border (which generally lasts for about 6 years). For frequent travellers this aspect of a seizure is often the most problematic consequence!
Beware of Self-Representation: Saleem Case
In a recent seizure case, Saleem v. Canada, Mr. Saleem (a cross-border truck driver) was found in possession of jewellery sets at the border which he failed to declare upon arrival. This led to a seizure and penalties, which Mr. Saleem decided to try and appeal on his own (i.e., without professional assistance). His objective appears to have been to avoid the mandatory “secondary screening” which made his life as a cross-border trucker quite difficult.
Mr. Saleem contested CBSA’s enforcement action by filing a Request for Review advancing the argument that his jewellery has been lawfully imported in the past. Unfortunately, he failed to demonstrate that duties were paid on the original importation, and was found to be a violator of the Act. The Minister therefore upheld CBSA’s enforcement action.
Dissatisfied with the outcome, Mr. Saleem subsequently filed a judicial review application requesting a waiver of CBSA’s enforcement action – including the secondary screening requirement.
Mr. Saleem was ultimately unsuccessful, with the Federal Court pointing out that referrals to secondary examinations as a result of past contraventions were not sanctions, penalties, or legal consequences which could be subject of a Judicial Review application (Mr. Saleem ought to have appealed the Minister’s decision under section 135of the Act).
Take Away
The clear take-away is that even for minor customs infractions, professional assistance is usually required whenever an importer wishes to appeal the enforcement action, or the results of the enforcement action.
The good news is most of CBSA’s enforcement actions can be appealed – albeit under very tight timelines!Travellers who face these kinds of problems should almost immediately seek legal advice and challenge any unreasonable enforcement actions!
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