Dupre v. Canada (Public Safety and Emergency Preparedness)

Dupre v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2007-11-13
Neutral citation
2007 FC 1177
File numbers
T-915-07
Decision Content
Date: 20071113
Docket: T-915-07
Citation: 2007 FC 1177
Ottawa, Ontario, November 13, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
KWONG CHAM SHONG DUPRE
Applicant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Ms. Dupre, failed to report her possession of $53,100 (Canadian currency) to customs officials before attempting to board a flight from Vancouver International Airport to Shanghai, China. The currency was seized as forfeit for failure to report. Ms. Dupre requested a review of the seizure. A ministerial delegate determined that there were reasonable grounds to suspect the unreported currency is proceeds of crime and confirmed the forfeiture of the unreported funds.
[2] Ms. Dupre seeks judicial review of the ministerial delegate’s decision on the basis that there were no reasonable grounds to suspect, at the time of the seizure, that the funds were proceeds of crime. Alternatively, she submits that there were no reasonable grounds to suspect, at the time of the decision, that the funds were proceeds of crime. She contends that the ministerial delegate failed to assess the totality of the evidence.
[3] For the reasons that follow, I conclude that the decision is sustainable. The ministerial delegate’s conclusion that there were reasonable and probable grounds to suspect the currency is proceeds of crime is one that was reasonably open to her. Consequently, judicial intervention is not warranted and the application for judicial review must be dismissed.
The Legislation
[4] The legislative context underlying this matter is contained in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act). Among other things, the Act has as its objective the implementation of specific measures to detect and deter money laundering and the financing of terrorist activities. There is no suggestion that the impugned funds were for the purpose of financing terrorist activities.
[5] The provisions in relation to “Reporting of Currency and Monetary Instruments” are contained in Part 2 of the Act. These provisions have been interpreted and extensively discussed in the Federal Court of Appeal and Federal Court jurisprudence and need not be repeated here. See: Tourki v. Canada, 2007 FCA 186 aff’g (2006), 285 F.T.R. 291(Tourki); Dokaj v. Canada, [2006] 2 F.C.R. 152 (F.C.) (Dokaj); Thérancé v. Canada, 2007 CF 136 (Thérancé); Sellathurai v. Canada, 2007 FC 208 (Sellathurai); Dag v. Canada, 2007 FC 427 (Dag); Yusufov v. Canada, 2007 FC 453 (Yusufov); Ondre v. Canada, 2007 FC 454 (Ondre); Hamam v. Canada, 2007 FC 691 (Hamam); Tourki v. Canada, 2007 CF 746 (Tourki 2); Majeed v. Canada, 2007 FC 1082 (Majeed); Lyew v. Minister of Public Safety, 2007 FC 1117 (Lyew). The relevant sections of the Act are attached to these reasons as Schedule “A”. At this point, suffice it to say that under subsection 12(1) of the Act, Ms. Dupre was obliged to report to Canada Customs that she was taking currency of more than $10,000 out of the country.
Facts
[6] On December 4, 2005, customs officers were conducting currency export checks in relation to the applicant’s flight to China. A currency detector dog indicated on Ms. Dupre’s body and the officer approached Ms. Dupre as she was preparing to board her flight. When the officer asked her whether she was carrying any currency on her person, Ms. Dupre stated that she had “5-2-5-0”. When the officer requested clarification, Ms. Dupre said “five thousand two hundred fifty dollars”. The customs officer asked her to step aside.
[7] A second customs officer arrived to conduct an examination. Ms. Dupre, dressed in a large winter coat, several sweaters and shirts, thick sweat pants and snow boots, was in a crouched position on the floor. She began searching through her hand luggage and removed her jacket. When she was asked to stand, the customs officer noticed a bulge in her abdomen area. When questioned, Ms. Dupre indicated that the bulge contained “5-2-5-0-0”, “fifty-two thousand, five hundred”. She then removed money from her groin area. Thereafter, she was taken to a secure area for a secondary examination.
[8] Ms. Dupre produced three letters from three individuals indicating that each person had given her $10,000 to take to China. She explained that her brother-in-law had also provided her with $10,000. A discussion ensued regarding her employment during which Ms. Dupre indicated that she had quit a beautician’s job in 2005. Because Ms. Dupre was in possession of an internet article regarding a crackdown on illegal “rub and tug” massage parlours, the officer asked whether she had worked in massage parlours. Ms. Dupre responded that she had not. Yet, in her possession were documents indicating that charges of operating a body parlour without a licence had been laid against one Mr. Venot, as an owner, and Ms. Dupre, as an operator. Also in her possession, and in her name, were two burlesque-entertainer licences from the City of Toronto, a holistic practitioner licence and Shiatsu masseuse certification. Ms. Dupre ultimately admitted to not having worked as a beautician since 2003, to being an occasional exotic dancer at various strip clubs, to being heavily in debt, and to being “poor and unemployed”. At the end of the examination, four bundles of money totalling $53,100 were seized as forfeit.
[9] Ms. Dupre was served with a notice of the circumstances of the seizure. In accordance with her right under section 25 of the Act, Ms. Dupre requested a decision from the Minister as to whether subsection 12(1) of the Act had been contravened. This request was acknowledged by Canada Border Services Agency (CBSA) and forwarded to a CBSA adjudicator in the CBSA Adjudications Division. Ms. Dupre was invited to furnish any evidence she wished to submit.
[10] Ms. Dupre forwarded correspondence and representations which included: declarations from Ms. Dupre, Messrs. Stan Giri, Pierre Venot and Daniel Dupre (her husband) and her sister. All were to the effect that funds had been provided to Ms. Dupre to take to China. In the case of the gentlemen, the funds were for an investment opportunity in China and in the case of her sister, the funds were for delivery to family members. Her husband allegedly provided additional funds to repay a loan to Ms. Dupre’s brother-in-law.
[11] Ms. Dupre submitted photographs of the Canada Immigration office at the Vancouver International Airport, a number of business documents and photocopies of her sister’s passport and birth certificate. She claimed to have misunderstood “Customer Service” to be the area where she had to declare the currency and she provided an account of her efforts to report the currency in compliance with the Act. Further, she stated that during her interviews with the various customs officials, she had advised them that she did not understand their questions because her English was poor. She indicated that she did not know why a Chinese interpreter had not been provided to assist her. Subsequent submissions included documents relating to the financial circumstances of Messrs. Venot, Giri and Dupre, her brother-in-law, Ben Y Liu, and her sister.
[12] The adjudicator received comments from the seizing officer in response to Ms. Dupre’s submissions. Among other things, the seizing officer related that Ms. Dupre was aware of the reporting requirement and that her English language skills were adequate. If language had been an issue, translators were available on site and could have been called. The seizing officer also noted that Ms. Dupre’s submissions did not address the issue of the origin of the impugned currency. Further, no financial documents had been submitted for the portion of the currency that was stated to belong to Ms. Dupre.
[13] Three further sets of submissions were tendered by Ms. Dupre between October 10th and December 5th of 2006. Final comments from the seizing officer were provided on December 17th.
[14] On January 23, 2007, the adjudicator completed a case synopsis and reasons for decision (the case synopsis). This document contained an extensive recapitulation of Ms. Dupre’s submissions and the seizing officer’s comments.
[15] The adjudicator noted that an officer need only “suspect” that the currency is proceeds of crime. She listed a number of factors supporting the officer’s decision to seize the currency. For instance, the documents on Ms. Dupre’s person at the time of seizure indicated that one of the individuals for whom she was transporting money was charged for owning a body rub parlour where Ms. Dupre had also worked and could still be occupied, given her current employment as an exotic dancer; Ms. Dupre had taken careful measures to conceal the currency in that she had sewn it into her undergarments and hidden it under her clothing; the currency was bundled in a format not normally used by financial institutions; and Ms. Dupre did not provide: consistent or helpful evidence of the legitimate sources of the funds; any evidence as to its original source; consistent explanations about the nature of the business venture; or any documents providing evidence of the proposed investment.
[16] The adjudicator concluded that there had been a contravention of the Act with respect to the amount of $47,850, but no contravention with respect to $5,250. She recommended that $5,250 be returned to Ms. Dupre pursuant to section 27 of the Act and that $47,850 be held as forfeit under section 29 of the Act. These conclusions were forwarded to the ministerial delegate as a recommendation. The ministerial delegate was also provided with the case synopsis and Ms. Dupre’s submissions.
[17] By correspondence dated April 24, 2007, the ministerial delegate informed Ms. Dupre that there had been a contravention of subsection 12(1) of the Act. More specifically, the ministerial delegate determined, pursuant to section 27, that with respect to $5,250, there had been no contravention and that “under section 28 of the [Act], the seized currency in the amount of $5.250 be returned to the appellant”. Pursuant to section 27, there had been a contravention in relation to $47,850 and “under the provisions of section 29 of the [Act], I am authorizing that the seized currency in the amount of $47,850 be held as forfeit”. In her reasons, the ministerial delegate identified the following factors:
• Ms. Dupre had failed to report the currency despite having many opportunities to do so;
• she attempted to conceal the currency;
• she was transporting a large amount of currency over an international border;
• the money was not bundled in accordance with normal banking procedures;
• Ms. Dupre was unaware of the amount of money she possessed;
• there were discrepancies in the amounts of money provided by other parties;
• usually such a large amount of money would be wired or transferred to a company in this type of business venture;
• there were no supporting documents to prove the money was destined for the business in China;
• a legitimate business would keep a record of funds for tax purposes and such documents were absent in this case;
• Ms. Dupre possessed documents indicating several bank accounts and credit and debit cards for other individuals;
• she was uncooperative during the second examination.
It is the ministerial delegate’s decision of April 24th that is the subject of this application for judicial review.
The Standard of Review
[18] The respondent submits that the applicable standard of review is that of patent unreasonableness. The applicant is content to rely on the respondent’s submissions in this respect. There is divergence in the jurisprudence as to the standard of review to be applied to a decision pursuant to section 29 of the Act. The standard of patent unreasonableness has been applied (Thérancé; Yusufov; Ondre; Hamam; Tourki 2) as has the standard of reasonableness (Sellathurai and Dag). Justice Phelan recently commented in Lyew that the distinction in the cases turns on the facts and issues in each case and particularly the extent to which the expertise of the decision-maker is utilized.
[19] In this case, as in the others, there is a strong privative clause in section 24 of the Act. This factor favours deference.
[20] As for expertise, the ministerial delegate concluded that Ms. Dupre had failed to provide a reasonable explanation as to the source of the impugned funds. Although credibility was an issue, the principal basis underlying the determination was the question regarding the source of the funds. Thus, the assessment required an analysis of the evidence relative to the legal threshold prescribed by the Act, an area where the decision-maker has greater expertise than the court. This factor also favours deference.
[21] The purpose of the Act, in part and for present purposes, is to detect and deter money laundering. To achieve this objective, the currency reporting scheme requires importers and exporters of currency to report to customs officials when they are importing or exporting currency or monetary instruments in excess of $10,000. As Madam Justice Simpson stated in Sellathuai, Parliament has mandated serious sanctions, including forfeiture, in the event that there are reasonable grounds to suspect that the undeclared currency is proceeds of crime. Parliament has balanced the private and public interests in enacting the legislation. The role of the ministerial delegate is narrow and is confined to determining whether, on the facts of a particular case, forfeiture should be confirmed. This does not suggest a deferential approach. Justice Simpson’s reasoning has been generally adopted by my colleagues and I endorse it and accept it as my own.
[22] Regarding the nature of the question, it is one of mixed fact and law because it requires the ministerial delegate to assess whether the evidence discloses reasonable grounds to suspect that the currency is proceeds of crime. The “legal” threshold is prescribed by the Act. This factor militates in favour of some deference.
[23] In balancing these factors, I arrive at a standard of review of reasonableness.
Analysis
Reasonable Grounds to Suspect at the Time of Seizure
[24] Ms. Dupre claims that she made a full declaration to the dog-handling customs officer and made every attempt to make a full disclosure. She was hampered from doing so by the lack of signage at the Vancouver International Airport and became confused between “Customer Service” and “Customs Service”. Additionally, her English skills were poor. She clarified her original declaration of “5-2-5-0” to fifty-two thousand, five hundred dollars. She was hindered by a difficulty expressing numbers in English. At the time, she had no motive to misstate the amount of money in her possession or to state the specific amount of $5,250 over any other amount under $10,000.
[25] In substance, this argument constitutes a request to review the issue of contravention of the Act. Such review – whether there was a contravention under subsection 12(1) of the Act – is made pursuant to section 27 of the Act. There exists a section 27 decision in this case. Ms. Dupre has a statutory right of appeal available to her in relation to the section 27 determination. If she wishes to contest the contravention finding, she must do so under the appeal process contained in section 30 of the Act: Dokaj, Tourki. I have no jurisdiction, on judicial review, to deal with the matter of contravention. The appropriate procedure to be followed in this regard was clearly enunciated in the ministerial delegate’s correspondence of April 24, 2007. Ms. Dupre cannot succeed on this front.
Reasonable Grounds to Suspect at the Time of Decision
[26] Ms. Dupre contends that her submissions and documentation were sufficient to dispel any suspicion that the currency she carried was proceeds of crime. She notes specifically:
• She did not avoid opportunities to report the currency. Rather, she sought to make a report and was “impeded” from so doing. In any event, the failure to report does not constitute a reasonable suspicion that the money is proceeds of crime;
• She did not conceal the money; it was in heavy clothing that was necessary, given the cold weather, for protection;
• Carrying a large sum of money over an international border is legal when reported and should not form the basis of a reasonable suspicion;
• A lack of detail was the result of her poor English skills and the officer “mixing” some of her own currency with the money around her waist;
• To say that money for business purposes would normally be transferred or wired is not an objective conclusion. Moreover, the language used by the officer acknowledges that this is not a hard and fast rule;
• She is not a business person and it was easier to carry the money. Because this is a legitimate means of transferring money, no negative inference should be drawn, particularly where not all of the money is destined for a business purpose;
• She provided documentary evidence of the company in China including a letter of intent. The officer sought further evidence of a joint venture. Such evidence could have been provided only when the company received cash payments from the investors;
• The absence of any records for tax purposes is understandable since the investment monies were never delivered to China;
• A number of letters, including statutory declarations from two individuals, were provided to demonstrate that the money was for investment purposes;
• She did not have the opportunity to address the ministerial delegate’s concern about her possession of documents indicating bank accounts and credit and debit cards of others because this concern only appeared in the final decision;
• She was not uncooperative during the second examination.
[27] Ms. Dupre claims that the ministerial delegate has created an impossible burden whereby she could dispel the reasonable grounds to suspect only by demonstrating that the money in her possession was not derived from any crimes. Further, she points to “inconsistencies” between the seizing officer’s handwritten notes and her narrative report.
[28] Distilled, most of these criticisms come within three categories. The allegations regarding efforts to report, the concealment of the currency and poor English skills relate to the issue of contravention. As noted above, the contravention determination must be challenged by way of an appeal. However, to the extent that these factors may have contributed to the ministerial delegate’s conclusion of reasonable grounds to suspect the $47,850 constitute proceeds of crime, some further observations are in order.
[29] First, although Ms. Dupre suggests that she attempted to report the currency and was unable to locate the Customs Office, she failed to approach an officer to make her declaration when she could have done so. Second, Ms. Dupre attempted to conceal her work history. Further, her declared income was less than $20,000 in 2004 and she claimed to have no income in 2005. Notwithstanding, she claimed that some of the money belonged to her. Third, the ministerial delegate acknowledged that the weather was cold but considered that Ms. Dupre was nonetheless overdressed. Moreover, the money was sewn into her undergarments. Fourth, the seizing officer indicated that Ms. Dupre’s English skills were adequate and that interpreters were on site, if required. The officer did not see the need for an interpreter nor did Ms. Dupre request one. In any event, Ms. Dupre has had ample opportunity to explain any omissions and inconsistencies through her submissions.
[30] The allegations regarding the legality of transporting reported currency over international borders are not disputed. Notably, however, Ms. Dupre’s account of the event is totally at odds with the observations of the seizing officer and the notes and narrative that were prepared contemporaneously with the incident. Ms. Dupre’s submissions exhibit a total disregard for the fact that she did not report the funds before being apprehended. Further, she fails to acknowledge the various inconsistencies in her own evidence and she does not appear to recognize that the origin of the funds remains a problem.
[31] Most of the remaining contentions relate to the Chinese investment to which the bulk of the currency was ostensibly destined. Ms. Dupre relies heavily on the statutory declarations from Messrs. Giri and Venot to establish that the money was for the purpose of an investment. At this point, it is important to recognize that while the destination of the money was of concern, it was the source of the money which presented the more significant problem. The declarations do not establish the source of the funds allegedly provided by the individuals. Generally, they state simply that the individuals furnished specific sums of money to Ms. Dupre. In the case of those individuals who claimed to have sufficient means to have provided the currency, the information did not demonstrate the lawful origin of the funds in question.
[32] In any event, even if the declarations are taken at face value, the ministerial delegate relied upon other factors to conclude that there were reasonable grounds to suspect that the currency is proceeds of crime.
[33] The ministerial delegate did not suggest that the alleged investment could be conducted only by wire transfer. The question as to why the payment was not by way of cheque or money order was legitimate. As for the “seizure” preventing the company in China from issuing any record or receipt of contract, the ministerial delegate simply found that it was unlikely that an international company would enter into a business venture without any documentation prior to the receipt of monies.
[34] The documents regarding the company in China did not address the origin of the funds. Additionally, the record contains a number of inconsistencies regarding the nature of that business. At the second examination, Ms. Dupre stated that she had no idea about the investment for which the money was destined. Subsequently, she explained that the investment was for an internet business. Later documents, tendered with submissions, indicate that the company is a powder company. Further, the amounts that her husband and associates intended to invest were identical to the amounts that Ms. Dupre ostensibly was transporting for family members, a fact that was rightly regarded as suspicious. Despite repeated references throughout the record regarding the significance of the source of the money (disclosed to Ms. Dupre), the issue of source was not adequately addressed.
[35] This leaves two remaining contentions. Both can be disposed of summarily. In relation to the accounts and cards, Ms. Dupre was well aware of the credit and debit cards belonging to other persons in her possession. It was open to her to explain why she held them at any time. The invitation to submit any evidence that she wished was open-ended. The allegation of inconsistencies between the seizing officer’s notes and narrative is nothing other than an exercise in minutia. For instance, it is inconsequential whether the officer noticed the bulge around Ms. Dupre’s waist before or after Ms. Dupre pointed to her waist.
[36] It is important to recall that this is an administrative proceeding in rem. It concerns only the forfeited currency and whether there were reasonable grounds to suspect that it is proceeds of crime. The jurisprudence of this Court establishes that focus on the source of the currency is appropriate.
[37] Reasonable grounds to suspect is a lesser but included standard of reasonable and probable grounds to believe: R. v. Monney, [1999] 1 S.C.R. 652. In my view, in the circumstances, there was ample reason to suspect that the currency in Ms. Dupre’s possession is proceeds of crime. Ms. Dupre created that suspicion by her conduct at the time of the seizure.
[38] The onus then shifted to Ms. Dupre to dispel the suspicion. To accomplish that end, she had to persuade the ministerial delegate as to the lawful source of the funds. The imposition of this requirement is logical given that Ms. Dupre is best–placed to explain the origin of the currency that was in her possession. She simply failed to meet that onus.
[39] There is no merit to the allegation that Ms. Dupre’s various submissions were not considered. They were considered but, in the final analysis, they were found to be unpersuasive and most were rejected.
[40] The ministerial delegate’s decision withstands the scrutiny of a somewhat probing examination. It is not my function to re-weigh the evidence. Accordingly, there is no basis for my intervention.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed with costs.
“Carolyn Layden-Stevenson”
Judge
SCHEDULE “A”
to the
Reasons for Oder and Order dated November 13, 2007
in
KWONG CHAM SHONG DUPRE
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
T-915-07
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17
2. The definitions in this section apply in this Act.
"authorized person"
«personne autorisée »
"authorized person" means a person who is authorized under subsection 45(2).
"Centre"
«Centre »
"Centre" means the Financial Transactions and Reports Analysis Centre of Canada established by section 41.
"client"
«client »
"client" means a person or an entity that engages in a financial transaction or activity with a person or an entity referred to in section 5, and includes a person or an entity on whose behalf the person or the entity that engages in the transaction or activity is acting.
"Commissioner" [Repealed, 2005, c. 38, s. 124]
"courier"
«messager »
"courier" means a courier as defined by regulation.
"customs office"
«bureau de douane »
"customs office" has the same meaning as in subsection 2(1) of the Customs Act.
"entity"
«entité »
"entity" means a body corporate, a trust, a partnership, a fund or an unincorporated association or organization.
"legal counsel"
«conseiller juridique »
"legal counsel" means, in the Province of Quebec, an advocate or a notary and, in any other province, a barrister or solicitor.
"mail"
«envois » ou
«courrier »
"mail" has the same meaning as in subsection 2(1) of the Canada Post Corporation Act.
"Minister"
«ministre »
"Minister" means, in relation to sections 24.1 to 39, the Minister of Public Safety and Emergency Preparedness and, in relation to any other provision of this Act, the Minister of Finance.
"money laundering offence"
«infraction de recyclage des produits de la criminalité »
"money laundering offence" means an offence under subsection 462.31(1) of the Criminal Code.
"officer"
«agent »
"officer" has the same meaning as in subsection 2(1) of the Customs Act.
"person"
«personne »
"person" means an individual.
"prescribed" «Version anglaise seulement »
"prescribed" means prescribed by regulations made by the Governor in Council.
"President"
«président »
"President" means the President of the Canada Border Services Agency appointed under subsection 7(1) of the Canada Border Services Agency Act.
"terrorist activity"
«activité terroriste »
"terrorist activity" has the same meaning as in subsection 83.01(1) of the Criminal Code.
"terrorist activity financing offence"
«infraction de financement des activités terroristes »
"terrorist activity financing offence" means an offence under section 83.02, 83.03 or 83.04 of the Criminal Code or an offence under section 83.12 of the Criminal Code arising out of a contravention of section 83.08 of that Act.
"threats to the security of Canada"
«menaces envers la sécurité du Canada »
"threats to the security of Canada" has the same meaning as in section 2 of the Canadian Security Intelligence Service Act.
12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount.
(2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met.
(3) Currency or monetary instruments shall be reported under subsection (1)
(a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance;
(b) in the case of currency or monetary instruments imported into Canada by courier or as mail, by the exporter of the currency or monetary instruments or, on receiving notice under subsection 14(2), by the importer;
(c) in the case of currency or monetary instruments exported from Canada by courier or as mail, by the exporter of the currency or monetary instruments;
(d) in the case of currency or monetary instruments, other than those referred to in paragraph (a) or imported or exported as mail, that are on board a conveyance arriving in or departing from Canada, by the person in charge of the conveyance; and
(e) in any other case, by the person on whose behalf the currency or monetary instruments are imported or exported.
(4) If a report is made in respect of currency or monetary instruments, the person arriving in or departing from Canada with the currency or monetary instruments shall
(a) answer truthfully any questions that the officer asks with respect to the information required to be contained in the report; and
(b) on request of an officer, present the currency or monetary instruments that they are carrying or transporting, unload any conveyance or part of a conveyance or baggage and open or unpack any package or container that the officer wishes to examine.
(5) Officers shall send the reports they receive under subsection (1) to the Centre.
13. A person or an entity that is required to report currency or monetary instruments may, at any time before they are retained under subsection 14(1) or forfeited as a result of a contravention of subsection 12(1), decide not to proceed further with importing or exporting them.
14. (1) Subject to subsections (2) to (5), if a person or an entity indicates to an officer that they have currency or monetary instruments to report under subsection 12(1) but the report has not yet been completed, the officer may, after giving notice in the prescribed manner to the person or entity, retain the currency or monetary instruments for the prescribed period.
(2) In the case of currency or monetary instruments imported or exported by courier or as mail, the officer shall, within the prescribed period, give the notice to the exporter if the exporter’s address is known, or, if the exporter’s address is not known, to the importer.
(3) Currency or monetary instruments may no longer be retained under subsection (1) if, during the period referred to in that subsection,
(a) the officer is satisfied that the currency or monetary instruments have been reported under subsection 12(1); or
(b) the importer or exporter of the currency or monetary instruments advises the officer that they have decided not to proceed further with importing or exporting them.
(4) The notice referred to in subsection (1) must state
(a) the period for which the currency or monetary instruments may be retained;
(b) that if, within that period, the currency or monetary instruments are reported under subsection 12(1) or the importer or exporter decides not to proceed further with importing or exporting them, they may no longer be retained; and
(c) that currency or monetary instruments retained at the end of that period are forfeited to Her Majesty in right of Canada at that time.
(5) Currency or monetary instruments that are retained by an officer under subsection (1) are forfeited to Her Majesty in right of Canada at the end of the period referred to in that subsection, and the officer shall send any incomplete report in respect of the forfeited currency or monetary instruments made under subsection 12(1) to the Centre.
15. (1) An officer may search
(a) any person who has arrived in Canada, within a reasonable time after their arrival in Canada,
(b) any person who is about to leave Canada, at any time before their departure, or
(c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after they leave the area,
if the officer suspects on reasonable grounds that the person has secreted on or about their person currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection.
(2) An officer who is about to search a person under this section shall, on the person’s request, without delay take the person before the senior officer at the place where the search is to take place.
(3) A senior officer before whom a person is taken under subsection (2) shall, if the senior officer believes there are no reasonable grounds for suspicion under subsection (1), discharge the person or, if the senior officer believes otherwise, direct that the person be searched.
(4) No person shall be searched under this section by a person who is not of the same sex, and if there is no officer of the same sex at the place where the search is to take place, an officer may authorize any suitable person of the same sex to perform the search.
16. (1) An officer may, in order to determine whether there are, on or about a conveyance, currency or monetary instruments of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, stop, board and search the conveyance, examine anything in or on it and open or cause to be opened any package or container in or on it and direct that the conveyance be moved to a customs office or other suitable place for the search, examination or opening.
(2) An officer may, in order to determine whether there are, in baggage, currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, search the baggage, examine anything in it and open or cause to be opened any package or container in it and direct that the baggage be moved to a customs office or other suitable place for the search, examination or opening.
17. (1) An officer may examine any mail that is being imported or exported and open or cause to be opened any such mail that the officer suspects on reasonable grounds contains currency or monetary instruments of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1).
(2) An officer may not open or cause to be opened any mail that weighs 30 grams or less unless the person to whom it is addressed consents or the person who sent it consents or has completed and attached to the mail a label in accordance with article 116 of the Detailed Regulations of the Universal Postal Convention.
(3) An officer may cause mail that weighs 30 grams or less to be opened in the officer’s presence by the person to whom it is addressed, the person who sent it or a person authorized by either of those persons.
18. (1) If an officer believes on reasonable grounds that subsection 12(1) has been contravened, the officer may seize as forfeit the currency or monetary instruments.
(2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities.
(3) An officer who seizes currency or monetary instruments under subsection (1) shall
(a) if they were not imported or exported as mail, give the person from whom they were seized written notice of the seizure and of the right to review and appeal set out in sections 25 and 30;
(b) if they were imported or exported as mail and the address of the exporter is known, give the exporter written notice of the seizure and of the right to review and appeal set out in sections 25 and 30; and
(c) take the measures that are reasonable in the circumstances to give notice of the seizure to any person whom the officer believes on reasonable grounds is entitled to make an application under section 32 in respect of the currency or monetary instruments.
(4) The service of a notice under paragraph (3)(b) is sufficient if it is sent by registered mail addressed to the exporter.
19. An officer may call on other persons to assist the officer in exercising any power of search, seizure or retention that the officer is authorized under this Part to exercise, and any person so called on is authorized to exercise the power.
19.1 If an officer decides to exercise powers under subsection 18(1), the officer shall record in writing reasons for the decision.
20. If the currency or monetary instruments have been seized under section 18, the officer who seized them shall without delay report the circumstances of the seizure to the President and to the Centre.
21. (1) On request of an officer, any mail that is being sent from a place in Canada to a place in a foreign country and that contains or is suspected to contain currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) shall be submitted by the Canada Post Corporation to an officer.
(2) All mail that is submitted to an officer under this section remains, for the purposes of the Canada Post Corporation Act, in the course of post unless it is retained or seized under this Part.
(3) If mail is retained or seized under this Part, notice of the retention or seizure shall be given in writing to the Canada Post Corporation within 60 days after the retention or seizure unless the mail has, before the expiry of that period, been returned to the Corporation.
(4) An officer shall deal with all mail submitted to the officer under this section in accordance with the laws relating to customs and this Part and, subject to those laws and this Part, shall return it to the Canada Post Corporation.
(5) Any non-mailable matter found by an officer in mail made available to the officer under this section shall be dealt with in accordance with the regulations made under the Canada Post Corporation Act.
22. (1) An officer who retains currency or monetary instruments forfeited under subsection 14(5) shall send the currency or monetary instruments to the Minister of Public Works and Government Services.
(2) An officer who seizes currency or monetary instruments or is paid a penalty under subsection 18(2) shall send the currency or monetary instruments or the penalty, as the case may be, to the Minister of Public Works and Government Services.
Forfeiture
23. Subject to subsection 18(2) and sections 25 to 31, currency or monetary instruments seized as forfeit under subsection 18(1) are forfeited to Her Majesty in right of Canada from the time of the contravention of subsection 12(1) in respect of which they were seized, and no