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| Certain things
not to be
returned
|
264. Despite this Act, any alcohol, specially
denatured alcohol, raw leaf tobacco or
tobacco product that is seized under section
260 must not be returned to the person from
whom it was seized or any other person unless
it was seized in error.
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| Return if
security
provided
|
265. The Minister may, subject to this or
any other Act of Parliament, return anything
that has been seized under section 260 to the
person from whom it was seized, or to any
person authorized by that person, on receipt of
security with a value equal to
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(a) the value of the thing at the time of its
seizure as determined by the Minister; or
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(b) a lesser amount satisfactory to the
Minister.
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| Dealing with
things seized
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266. (1) The Minister may sell, destroy or
otherwise deal with anything seized under
section 260.
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| Restriction
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(2) Subject to the regulations, the Minister
may sell
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(a) seized spirits or specially denatured
alcohol only to a spirits licensee;
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(b) seized wine only to a wine licensee; and
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(c) seized raw leaf tobacco or a seized
tobacco product only to a tobacco licensee.
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| Payment of
compensation
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(3) If a person would be entitled to the return
of a thing if it were available to be returned,
but it is not possible to return it, the person
shall be paid
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(a) if the thing was sold, the proceeds from
the sale; and
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(b) in any other case, the value of the thing
at the time of its seizure as determined by
the Minister.
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| Forfeiture
from time of
contravention
|
267. Subject to the reviews and appeals
provided for under this Act, anything by
means of or in relation to which a
contravention under this Act was committed is
forfeit to Her Majesty from the time of the
contravention.
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| Thing no
longer forfeit
|
268. A thing in respect of which security is
received under section 265 ceases to be forfeit
from the time the security is received and the
security shall be held as forfeit instead of the
thing.
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| Review of
forfeiture
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269. The forfeiture of a thing under section
267 or any security held as forfeit instead of
the thing is final and not subject to review or
to be restrained, prohibited, removed, set
aside or otherwise dealt with except to the
extent and in the manner provided under this
Act.
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| Penalty
imposed or
seizure made
in error
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270. (1) If the Minister determines that a
penalty was imposed in error under section
254 or a thing was seized in error under section
260, the Minister may
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(a) cancel the penalty and authorize the
return of any amount of money paid with
respect to the penalty; and
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(b) authorize the release of the thing or the
return of any security received in respect of
the seizure.
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| Non-applicati
on if request
made
|
(2) Subsection (1) does not apply if a
request under section 271 has been made in
respect of the imposition of the penalty or the
seizure.
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| Request for
Minister's
decision
|
271. (1) Any person on whom a penalty is
imposed under section 254 or from whom a
thing is seized under section 260 may request
that the Minister review the imposition of the
penalty or the seizure and make a decision
under section 273.
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| Time limit for
making
request
|
(2) A request must be made within 90 days
after
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(a) the date of the service or sending of the
notice of the imposed penalty; or
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(b) in the case of a thing, the date on which
the seizure of the thing was brought to the
notice of the person from whom the thing
was seized.
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| How request
made
|
(3) A request must be made in writing
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(a) if the request is in respect of a penalty
imposed, to the office of the Agency from
which the notice of the imposed penalty is
issued; or
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(b) if the request is in respect of a seizure of
a thing, to the officer who seized the thing.
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| Burden of
proof
|
(4) The burden of proving that a request was
made lies on the person claiming that it was
made.
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| Commissioner
to provide
reasons
|
(5) On receipt of a request, the
Commissioner shall without delay provide to
the person making the request written reasons
for the seizure or the imposition of the penalty.
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| Evidence
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(6) The person making a request may
submit any evidence that the person wishes
the Minister to consider for the purposes of
making the decision within 30 days after the
date on which the written reasons were sent.
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| Form of
evidence
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(7) Evidence may be given by affidavit
sworn before a commissioner for taking oaths
or any other person authorized to take
affidavits.
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| Extension of
time by
Minister
|
272. (1) If no request for a decision under
section 271 is made within the time limited by
that section, a person may make a written
application to the Minister to extend the time
for making a request.
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| Conditions -
grant of
application
|
(2) The Minister may extend the time for
making a request under section 271 if an
application under subsection (1) is made
within one year after the time limit for a
request and the Minister is satisfied that
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(a) the applicant had a bona fide intention
to make the request before the expiration of
the time limit but was unable to do so and
was unable to instruct another person to do
so on the applicant's behalf;
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(b) the application was made as soon as
circumstances permitted it to be made; and
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(c) having regard to any reasons provided
by the applicant and to the circumstances of
the case, it would be just and equitable to
extend the time.
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| Notification
of decision
|
(3) The Minister shall notify the applicant
of the Minister's decision regarding the
application by registered or certified mail.
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| If application
granted
|
(4) If the Minister decides to extend the
time, the request under section 271 is deemed
to have been made on the day of the decision
of the Minister regarding the application.
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| Decision final
|
(5) A decision of the Minister under this
section is final and binding and, despite any
other Act of Parliament, no appeal lies from it.
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| Decision of
the Minister
|
273. (1) As soon after the receipt of a
request under section 271 as is reasonably
possible, the Minister shall review the
circumstances giving rise to the imposition of
the penalty or the seizure and decide whether
the contravention on which the penalty or the
seizure is based occurred and what action is to
be taken under section 274 or 275.
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| Notification
of decision
|
(2) The Minister shall notify the person who
requested the decision of the decision by
registered or certified mail.
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| Judicial
review
|
(3) The Minister's decision is not subject to
review or to be restrained, prohibited,
removed, set aside or otherwise dealt with
except to the extent and in the manner
provided under subsection 276(1).
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| If no
contravention
occurred
|
274. (1) Subject to this or any other Act of
Parliament, if the Minister decides under
subsection 273(1) that the contravention on
which a penalty or seizure is based did not
occur, the Minister shall without delay
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(a) in the case of a penalty, cancel the
penalty and authorize the return of any
money paid on account of it and any interest
that was paid in respect of it; or
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(b) in the case of a seizure, authorize the
release of the seized thing or the return of
any security taken in respect of it.
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| Interest on
money
returned
|
(2) If any money is authorized to be
returned to a person, there shall be paid to the
person, in addition to the money returned,
interest at the prescribed rate computed for the
period beginning on the day after the money
was paid and ending on the day on which the
money is returned.
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| If
contravention
occurred -
penalty
|
275. (1) If the Minister decides under
subsection 273(1) that the contravention on
which a penalty is based did occur, the
Minister may
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(b) if the Minister believes that the penalty
imposed is insufficient under the
circumstances relating to the
contravention, demand from the person any
additional amount of money that the
Minister considers sufficient to increase the
penalty to an amount of not more than the
maximum amount for which the person is
liable for the contravention, and the
additional amount is payable immediately;
or
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(c) if the Minister believes that the penalty
imposed should be reduced or waived under
the circumstances relating to the
contravention, reduce or waive the penalty.
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| If
contravention
occurred -
seizure
|
(2) If the Minister decides under subsection
273(1) that the contravention on which a
seizure is based did occur, the Minister may,
subject to any terms and conditions that the
Minister may determine,
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(b) return the seized thing on receipt by the
Minister of an amount of money equal
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(i) to the value of the thing at the time of
the seizure, as determined by the
Minister, or
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(ii) to a lesser amount satisfactory to the
Minister;
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(c) return any portion of any security taken
in respect of the thing; or
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(d) if the Minister considers that insufficient
security was taken or if no security was
received, demand any amount of money
that the Minister considers sufficient in the
circumstances, and the amount is payable
immediately.
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| Amounts
demanded by
the Minister
|
(3) Any amount of money demanded under
paragraph (1)(b) or (2)(d), from and after the
date of the notice provided under subsection
273(2), constitutes a debt due to Her Majesty
from the person who requested the decision
and that person is in default unless, within 90
days after that date, the person
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(a) pays the amount so demanded; or
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(b) if the person appeals the decision of the
Minister under section 276, gives security
satisfactory to the Minister.
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| Interest on
penalty during
appeal period
|
(4) Despite subsection 170(1), if the
decision of the Minister is appealed to the
Federal Court under section 276, no interest is
payable in respect of an amount demanded
under paragraph (1)(b) or (2)(d) for any period
before the day on which the appeal is resolved.
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| Forfeiture
ceases
|
(5) If the Minister returns a seized thing or
security taken in respect of a seized thing
under subsection (2), the thing or the security
ceases to be forfeit.
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| Federal Court
|
276. (1) A person who requests a decision of
the Minister under section 271 may, within 90
days after being notified of the decision,
appeal the decision by way of an action in the
Federal Court in which the person is the
plaintiff and the Minister is the defendant.
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| Ordinary
action
|
(2) The Federal Court Act and the rules
made under it that are applicable to ordinary
actions apply to actions instituted under
subsection (1), except as varied by special
rules made in respect of those actions.
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| Restoration of
things seized
pending
appeal
|
277. If an appeal is taken by the Crown from
a judgment that orders the Crown to give or
return to a person anything that has been
seized under section 260, the execution of the
judgment shall not be suspended if the person
to whom the thing is ordered given or returned
gives any security to the Crown that the court
that rendered the judgment considers
sufficient to ensure delivery of the thing or the
full value of the thing to the Crown if the
judgment so appealed is reversed.
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| Third party
may claim
interest in
seized or
forfeited thing
|
278. (1) On application by a person, other
than a person who is entitled to make a request
under section 271, who is an owner of, or who
holds a security or property interest in, a thing
seized under section 260 or forfeited under
section 267, the Minister may declare
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(a) that the applicant's interest in the thing
is not affected by the seizure or forfeiture of
the thing; and
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(b) the nature and extent of that interest at
the time of the contravention on which the
seizure or forfeiture is based.
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| Conditions for
declaration
|
(2) A declaration referred to in subsection
(1) shall not be made unless
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(a) a request under section 271 has not been
made in respect of the seizure of the thing
or, if a request was made, the seizure has
been confirmed by the Minister under
paragraph 275(2)(a); and
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(b) the Minister is satisfied that the
applicant
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(i) acquired in good faith the interest in
the seized thing before the contravention
occurred,
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(ii) is innocent of any complicity and of
any collusion in respect of the
contravention, and
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(iii) exercised all reasonable care to
satisfy themselves that any person likely
to have possession of the thing was not
likely to use it in connection with a
contravention of this Act.
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| Manner and
time limit for
making
application
|
(3) An application must be submitted in
writing,
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|
(a) in the case of a seizure, within 90 days
after the date of the seizure of the thing, to
the officer who made the seizure; or
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|
(b) in any other case, within 90 days after
the date on which the person became aware
of the contravention on which the forfeiture
is based, to the Minister.
|
|
| Burden of
proof
|
(4) The burden of proving that an
application was submitted lies on the person
claiming that it was submitted.
|
|
| Evidence
|
(5) An applicant may submit any evidence
that they wish the Minister to consider for the
purposes of the application within 30 days
after the date of the request.
|
|
| Form of
evidence
|
(6) Evidence may be given by affidavit
sworn before a commissioner for taking oaths
or any other person authorized to take
affidavits.
|
|
| Notification
of decision
|
(7) The Minister shall notify the applicant
of the Minister's decision regarding the
application under subsection (1) by registered
or certified mail.
|
|
| Extension of
time by
Minister
|
279. (1) If no application for a declaration
under section 278 is made within the time
limited by that section, a person may apply in
writing to the Minister to extend the time for
making an application under that section.
|
|
| Conditions -
grant of
application
|
(2) The Minister may extend the time for
making an application under section 278 if an
application under subsection (1) is made
within one year after the time limit for the
application under section 278 and the Minister
is satisfied that
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|
(a) the applicant had a bona fide intention
to apply under section 278 before the
expiration of the time limit but was unable
to do so and was unable to instruct another
person to do so on the applicant's behalf;
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|
(b) the application under subsection (1) was
made as soon as circumstances permitted it
to be made; and
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|
(c) having regard to any reasons provided
by the applicant and to the circumstances of
the case, it would be just and equitable to
extend the time.
|
|
| Notification
of decision
|
(3) The Minister shall notify the applicant
of the Minister's decision regarding the
application under subsection (1) by registered
or certified mail.
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