Customs Act (R.S.C., 1985, c. 1 (2nd Supp.))

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, British Columbia and Prince Edward Island, Yukon 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 Province of Newfoundland and Labrador, 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.

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.

• Definition of court of appeal

  (2) In this section, court of appeal means, in the province in which an order under this section is made, the court of appeal for that province as defined in section 2 of the Criminal Code.

Marginal note:Goods or conveyance given to applicant

• 141 (1) The President, 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).

Disposal of Things Abandoned or Forfeit

Marginal note:Disposal of things abandoned or forfeit

• 142 (1) Unless the thing is spirits, specially denatured alcohol, a restricted formulation, wine, raw leaf tobacco, an excise stamp, a tobacco product or a vaping product, anything that has been abandoned to Her Majesty in right of Canada under this Act and anything the forfeiture of which is final under this Act shall

  • (a) where the Minister deems it appropriate, be exported;

  • (b) where the importation thereof is prohibited, or where the Minister considers the thing to be unsuitable for sale or of insufficient value to justify a sale, be disposed of in such manner, otherwise than by sale, as the Minister may direct; and

  • (c) in any other case, be sold by public auction or public tender or by the Minister of Public Works and Government Services pursuant to the Surplus Crown Assets Act, subject to such regulations as may be prescribed.

• Marginal note:Duties removed

  (2) Any goods that are disposed of pursuant to subsection (1) are, from the time of disposal, no longer charged with duties.

Marginal note:Dealing with abandoned or forfeited alcohol, etc.

• 142.1 (1) If spirits, specially denatured alcohol, a restricted formulation, wine, raw leaf tobacco, a tobacco product or a vaping product is abandoned or finally forfeited under this Act, the Minister may sell, destroy or otherwise deal with it.

• Marginal note:Dealing with abandoned or forfeited excise stamps

  (1.1) If an excise stamp is abandoned or finally forfeited under this Act, the Minister may destroy or otherwise deal with it.

• Marginal note:Restriction

  (2) Subject to the regulations, the sale under subsection (1) of

  • (a) spirits or specially denatured alcohol may only be to a spirits licensee;

  • (b) wine may only be to a wine licensee;

  • (c) raw leaf tobacco or a tobacco product may only be to a tobacco licensee;

  • (c.1) a vaping product may only be to a vaping product licensee; and

  • (d) a restricted formulation may only be to a licensed user.

143 to 147 [Repealed, 2001, c. 25, s. 78]

Collection of Duties on Mail

Marginal note:Definition

• 147.1 (1) In this section, Corporation means the Canada Post Corporation.

• Marginal note:Application

  (2) Subsections (3) to (13) apply to mail except as may be provided in regulations made under paragraph (14)(e).

• Marginal note:Collection agreement

  (3) The Minister and the Corporation may enter into an agreement in writing whereby the Minister authorizes the Corporation to collect, as agent of the Minister, duties in respect of mail and the Corporation agrees to collect the duties as agent of the Minister.

• Marginal note:Terms and conditions

  (4) An agreement made under subsection (3) relating to the collection of duties in respect of mail may provide for the terms and conditions under which and the period during which the Corporation is authorized to collect the duties and for other matters in relation to the administration of this Act in respect of such mail.

• Marginal note:Authorization by Corporation

  (5) The Corporation may authorize in writing any person to collect, as its agent, duties under terms and conditions consistent with those provided for in the agreement made under subsection (3) and during a period not exceeding the period provided for in that agreement.

• Marginal note:Liability to pay duties

  (6) Where the Corporation has entered into an agreement under subsection (3), the Corporation shall pay to the Receiver General, within the prescribed time and in the prescribed manner, as an amount due to Her Majesty in right of Canada in respect of mail to which the agreement applies, the greater of the duties collected by the Corporation in respect of the mail and the duties required to be collected in respect of the mail by the Corporation under the agreement, unless

  • (a) the Corporation establishes to the satisfaction of the Minister that the mail has not been delivered and that the mail

    • (i) is no longer in Canada, or

    • (ii) was destroyed;

  • (b) duties have not been collected by the Corporation in respect of the mail, the mail has not been delivered and a request for a re-determination or further re-determination has been made under subsection 60(1) in respect of the mail; or

  • (c) in any other case, duties have not been collected by the Corporation in respect of the mail, the mail has not been delivered and the period in which a request for a re-determination or further re-determination may be made under subsection 60(1) in respect of the mail has not expired.

• Marginal note:Not public money

  (7) An amount required to be paid to the Receiver General under subsection (6) shall be deemed not to be public money for the purposes of the Financial Administration Act until the amount has been so paid.

• Marginal note:Interest

  (8) Where an amount that the Corporation is required to pay under subsection (6) has not been paid within the time within which it is required to be paid under that subsection, the Corporation shall pay to the Receiver General, in addition to that amount, interest at the specified rate for the period beginning on the first day after that time and ending on the day the amount has been paid in full, calculated on the outstanding balance of the amount.

• Marginal note:Detention of mail

  (9) Any person who is authorized to collect duties in respect of mail may detain the mail until the duties thereon have been paid to the Corporation.

• Marginal note:Fees

  (10) Subject to any regulations made under subsection (14), mail is charged with prescribed fees from the time of its importation until such time as the fees are paid or as the fees are otherwise removed.

• Marginal note:Payment of fees

  (11) The importer or owner of mail that is charged with fees under subsection (10) shall pay the fees at the time of the payment of the duties on the mail.

• Marginal note:Collection of fees

  (12) Where the Corporation or an agent of the Corporation is authorized to collect duties in respect of mail, the Corporation or the agent may collect the fees with which the mail is charged under subsection (10) and may detain the mail until the fees have been paid.

• Marginal note:Fees belong to Corporation

  (13) Fees collected under subsection (12) are property of the Corporation and shall be deemed not to be public money for the purposes of the Financial Administration Act.

• Marginal note:Regulations

  (14) The Governor in Council may make regulations

  • (a) prescribing times for the purposes of subsection (6);

  • (b) prescribing the manner of payment for the purposes of subsection (6);

  • (c) prescribing fees for the purposes of subsection (10);

  • (d) prescribing mail that is not charged with fees under subsection (10) or prescribing circumstances in which mail is not charged with fees under that subsection; and

  • (e) prescribing mail to which any of subsections (3) to (13) does not apply or prescribing circumstances in which any of those subsections does not apply to mail.

Evidence

Marginal note:Proof of service by registered mail

• 148 (1) Where a notice required by this Act or a regulation is sent by registered mail, an affidavit of an officer sworn before a commissioner or other person authorized to take affidavits setting out

  • (a) that the officer has charge of the appropriate records,

  • (b) that he has knowledge of the facts in the particular case,

  • (c) that such a notice was sent by registered letter on a named day to the person to whom it was addressed (indicating such address), and

  • (d) that he identifies as exhibits attached to the affidavit the post office certificate of registration of the letter or a true copy of the relevant portion thereof and a true copy of the notice

  shall be received, in the absence of evidence to the contrary, as proof of the sending and of the notice.

• Marginal note:Proof of personal service

  (2) Where a notice required by this Act or a regulation is given by personal service, an affidavit of an officer sworn before a commissioner or other person authorized to take affidavits setting out

  • (a) that the officer has charge of the appropriate records,

  • (b) that he has knowledge of the facts in the particular case,

  • (c) that such a notice was served personally on a named day on the person to whom it was directed, and

  • (d) that he identifies as an exhibit attached to the affidavit a true copy of the notice

  shall be received, in the absence of evidence to the contrary, as proof of the personal service and of the notice.