# qasem v. m.n.r. [2009] 3 F.C.R.
A-63-08
2008 FCA 300
Minister of Public Safety and Emergency Preparedness (Appellant)
v.
Ahmad Qasem (Respondent)
Indexed as: Qasem v. M.N.R. (F.C.A.)
Federal Court of Appeal, Linden, Evans and Trudel JJ.A.—Toronto, October 6, 2008.
Customs and Excise — Proceeds of Crime (Money Laundering) and Terrorist Financing Act — Appeal from decision of Federal Court setting aside decision by Minister, pursuant to Act, s. 29, to maintain forfeiture of funds — Recent F.C.A. decisions answering issue at bar — Once respondent unable to satisfy Minister’s request for evidence money legitimately obtained, Minister entitled to decline to exercise discretion to grant relief from forfeiture — Appeal allowed.
This was an appeal from a decision of the Federal Court that set aside the decision by the Minister, pursuant to section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, to maintain the forfeiture of the respondent’s funds.
The issue was whether the applications Judge erred in allowing the application for judicial review on the ground that the Minister had imposed too high a burden on the respondent by requiring him to prove that his explanation of the source of funds was the only one possible.
Held, the appeal should be allowed.
The recent decisions in Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 2 F.C.R. 576 (F.C.A.), where the facts were materially indistinguishable from those in the present appeal, and Yang v. Canada (Minister of Public Safety), 2008 FCA 281, answered the main issue at bar. The Minister made his decision after inviting the respondent to adduce evidence that the “money was legitimately obtained”. Once the respondent was unable to satisfy the Minister’s request, the Minister was entitled to decline to exercise his discretion to grant relief from forfeiture.
statutes and regulations judicially considered
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 29.
cases judicially considered
applied:
Qasem v. M.N.R., [2008] 3 F.C.R. 385; (2008), 322 F.T.R. 47; 2008 FC 31; Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 2 F.C.R. 576; (2008), 297 D.L.R. (4th) 651; 82 Admin. L.R. (4th) 243; 2008 FCA 255; Yang v. Canada (Minister of Public Safety) (2008), 380 N.R. 387; 2008 FCA 281.
APPEAL from a decision of the Federal Court ([2008] 3 F.C.R. 385; (2008), 322 F.T.R. 47; 2008 FC 31) that set aside the decision by the Minister to maintain the forfeiture of the respondent’s funds. Appeal allowed.
appearances:
Jan E. Brongers and Marie A. Crowley for appellant.
Ahmad N. Baksh for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Ahmad N. Baksh, Toronto, for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
[1] Trudel J.A.: This is an appeal from a decision of O’Reilly J. of the Federal Court, [2008] 3 F.C.R. 385 (the applications Judge) dated January 10, 2008, that set aside the decision made by the appellant (Minister or Minister’s delegate) pursuant to section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 (the Act) to maintain the forfeiture of the respondent’s funds.
[2] The applications Judge allowed the application for judicial review on the ground that the Minister had imposed too high a burden on the respondent by requiring him to prove that his explanation of the source of funds was the only one possible and referred the matter back to another delegate for reconsideration.
[3] The appellant alleges that the applications Judge committed reviewable errors by applying the incorrect legal test when concluding as he did on the burden of proof and by failing to give deference to the Minister’s decision.
[4] Neither the applications Judge, nor the parties, when preparing their respective memoranda of facts and law, had the benefit of our Court’s decision in Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] 2 F.C.R. 576 (F.C.A.) released on September 9, 2008, a case where the facts are materially indistinguishable from those in the present appeal. We believe that this recent judgment answers the main issue at bar as well as this Court’s decision in Yang v. Canada (Minister of Public Safety), 2008 FCA 281, decided afterwards.
[5] In this case, as he had done in Sellathurai, the Minister made his decision after inviting the respondent to adduce evidence that the “money was legitimately obtained” (appeal book, Tab 8, at page 113).
[6] Once Mr. Qasem was unable to satisfy the Minister’s request, the Minister was entitled to decline to exercise his discretion to grant relief from forfeiture. Considering the facts of the present case and the decisions of our Court in Sellathurai and Yang, we find that it was reasonable for the Minister to decide as he did.
[7] The appeal should be allowed with costs in this Court, the decision of the Federal Court set aside and the application for judicial review dismissed.