An ascertained forfeiture is a monetary penalty levied by the
Canada Border Services Agency ("CBSA") when a CBSA
officer believes on reasonable grounds that a person has imported
goods into Canada illegally (or without reporting the goods). An
ascertained forfeiture occurs when the goods cannot actually be
seized (because the good cannot be located or seizing the good is
impracticable).I am often asked "What steps do the
CBSA take when making an ascertained forfeiture?" I
was recently reminded of Justice Morris Fish's words in a
Supreme Court of Canada decision (Martineau v Canada (Minister of National
Revenue), 2004 SCC 81 at paragraphs 41-44):
41. First, under s. 124 of the [Customs Act], a customs officer
must have reasonable grounds to believe that a provision of the
[Customs Act] has been contravened. Once this precondition has been
met, and once it has been established that it would be difficult to
seize the goods and conveyances related to the customs offence, the
officer may demand that the offender pay an amount of money equal
to the value of the goods.
42. Second, the person to whom a notice of ascertained
forfeiture applies has 90 days to ask the Minister to review the
customs officer's decision (s. 129(1)(d) of the [Customs Act]).
The Minister then serves notice of the reasons in support of the
imposed sanction (s. 130(1) of the [Customs Act]). Within 30 days
after notice of the reasons is served, the alleged offender may
make submissions and give evidence, in writing, to the Minister
(ss. 130(2) and 130(3) of the [Customs Act]).
43. Third, the Minister decides whether the ascertained
forfeiture is valid (s. 131 of the [Customs Act]). This decision
"is not subject to review or to be . . . otherwise dealt with
except to the extent and in the manner provided by subsection
135(1)" (s. 131(3) of the [Customs Act]).
44. Fourth, and finally, the person who requested the
Minister's decision may, within 90 days after being notified of
the decision, appeal by way of an action in the Federal Court (s.
135(1) of the [Customs Act]).
I could not have summarized it better.
Justice Fish goes on to explain what are the ramifications of an
45. This process thus has little in common with penal
proceedings. No one is charged in the context of an ascertained
forfeiture. No information is laid against anyone. No one is
arrested. No one is summoned to appear before a court of criminal
jurisdiction. No criminal record will result from the proceedings.
At worst, once the administrative proceeding is complete and all
appeals are exhausted, if the notice of ascertained forfeiture is
upheld and the person liable to pay still refuses to do so, he or
she risks being forced to pay by way of a civil action.
Justice Fish recently retired from the Supreme Court of Canada.
I like the simplicity of his words.
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While that agreement mandated export measures on Canadian softwood lumber exports destined for the United States, it also protected those lumber exports from the potential imposition of onerous import measures by the U.S.
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