On June 7, 2019, Canada’s Federal Court of Appeal (FCA) confirmed in Chen v. Minister of Public Safety and Emergency Preparedness, 2019 FCA 170, that the Canada Border Services Agency (“CBSA”) cannot seize goods that were imported more than 6 years ago (even if the duties were not paid). In Chen, the FCA considered an appeal of a judicial review application heard by the Federal Court of Canada.
On March 26, 2016, Wen-Tong Chen and Chin Yun Huang Chen (the “Appellants”) were stopped by the CBSA when they returned from the United States and the CBSA officer noticed two rings worn by Mrs. Chen. She did not declare the rings on her E311 declaration Card and could not show that she had previously declared the rings. The two rings were seized by the CBSA and returned after payment of terms of release.
The Appellants appealed the seizure and the CBSA Recourse Directorate refunded the terms of release for one of the rings, but not both. The CBSA Recourse Directorate accepted that the first ring was acquired by Mrs. Chen while visiting her daughter in New York in November 2009, as a gift for herself from her husband. Therefore, the seizure occurred well beyond the limitation period of six years.
Section 113 of the Customs Act provides as follows:
“No seizure may be made under this Act or notice sent under section 124 more than six years after the contravention or use in respect of which such seizure is made or notice is sent.”
Since Mrs. Chen first imported the first ring in November 2009, the limitation period expired in November 2015. Therefore, the CBSA could not seize the ring in March 2016. The CBSA Recourse Directorate determined that there was not justification to seize the first ring and refunded the amount received as terms of release for that ring.
However, the CBSA Recourse Directorate did not receive similar information about the second ring and, therefore, upheld the seizure of that ring.
The Appellants filed a judicial review of the CBSA Recourse Directorate decision to not refund the terms of release for the second ring. That judicial review was not successful. The appeal was also not successful.
This is an important FCA decision because many travelers do not realize that there is a six year limitation period. The CBSA regularly stops travelers and asks about designer purses, designer luggage, jewelry, watches, clothing and apparel, and other items. Often the CBSA seizes goods if the traveler cannot prove that the goods were purchased in Canada or were previously declared to the CBSA.
if goods were purchased or imported more than 6 year ago (and you have kept the receipts or have proof (e.g. photos)), this could be an absolute defense to the seizure and you can clear your customs record.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at firstname.lastname@example.org.