Federal Appeal


Tax

Other federal taxes

Miscellaneous

Ministerial review period only began at point that criminal charges were stayed

Return of items seized under Excise Act, 2001. Pursuant to search warrant issued under Criminal Code, RCMP seized cash and other items. Plaintiffs were charged under Excise Act, 2001 and Code, but charges were later stayed. Plaintiffs received seizure report listing items seized on basis of contravention of Act, but did not request return of money within time period. Defendant Crown did not return money because it was forfeited at time of seizure and was not subject to application under s. 490 of Code. Federal Court judge dismissed plaintiffs’ motion for summary judgment of their action for declaration that defendant was unlawfully detaining seized funds and granted defendant’s motion to summarily dismiss claim. Plaintiffs appealed. Appeal allowed in part. Plaintiffs’ motion for summary judgment was granted only to declare that 90-day period for seeking ministerial review under s. 271 of Act of seizure of funds began with date of this judgment. In these circumstances, and in respect of money only, seizure report did not trigger 90-day period. Money retained dual character as it was at heart of charges under Code, included in report, referred to in information, and central to prosecution under Act. If goods were forfeit upon seizure, all evidence except weapons and ammunition should have been subject to ministerial review, but some items were returned via process under s. 490 of Code. On these facts, ministerial review period under s. 271 of Act only began at point that criminal charges were stayed. As matter of law, goods seized in execution of search for violations of Act were forfeit on seizure, and Ministerial review period ran concurrently with criminal proceedings in respect of those seized goods.

Flaro v. Canada (2019), 2019 CarswellNat 308, 2019 FCA 30, Johanne Gauthier J.A., Donald J. Rennie J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2018), 2018 CarswellNat 650, 2018 CarswellNat 997, 2018 FC 229, 2018 CF 229, Ann Marie McDonald J. (F.C.).

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