VOL. VI.] EXCHEQUER COURT REPORTS: 169 . o FRANK H. TYRRELL ..CLAIMANT; 1898 • I AND Nov. 3. HER MAJESTY THE QUEEN DEFENDANT. Customs law —Reference---The Customs Act, secs. 182, 183—Minister's decision—Appeal—Practice. • Where a claim has been referred to the Exchequer Court under'sec. 182 of The Customs Act, the proceeding thereon, as regulated• bÿ the provisions of sec, 183 of the 'Act, is<not in the nature of an appeal from (he decision of the Minister ; and the eo:ur,t has power to. hear, . consider and determine the matter upon the evidence adduced before . it, whether the same hâs.been beforè the • Minister or not. ' THIS was a reference of a claim for property seized for an alleged infraction of The Custom& Act. • The facts of the case are stated in the reasons,for judgment. The case was heard at St. : John, N.B., on October. • 27th, 28th and .29th, and November 1st, 2nd and 3rd, 1898. W. Pugsley Q.C. and, J. M,. Stevens for the claimant ; A. G. Earle. and .E. H. McAlpine for the defendant. • At the conclusion of the argiaihent; judgment .was delivered by • • THE JUDGE OF THE EXCH'Q,UER'COURT This case comes before the court-upon a reference by the Controller of Customs exercising- the power-of the Minister of Customs given by the: i82nd• sectiôn of "The Customs Act," which_provides as follows :— t' .If the owner or -claimant of =a•thing seized • or de- "tained, or the person alleged-to have- incurred' thé ".Penalty, does '-not, within thirty days •after- being notified -Of -the Minister's decision,, give' him notice
170 EXCHEQUER COURT REPORTS. [VOL. VI. 1898 " in writing that such decision will not be accepted, TrRBELL " the Minister may refer the matter to the court." ,1, H v E . Then section 183 provides that the " court shall hear QUEEN. " and consider such matter upon the papers and evi- R...son. " dente referred, and upon any further evidence which Jud g ment. " the owner or claiment of the thing seized or detained, " or the person alleged to have incurred the penalty } " or the Crown, produces, under the direction of the " court, and shall decide according to the right of the " matter." It will be observed in regard to this section that the case may not be, and in practice is not usually, decided upon the same evidence as that before the Minister, because the parties have leave to adduce new evidence. The proceeding is not in the nature of an appeal from the decision of the Minister, the court having to deal with the matter upon the evidence before it whether such evidence had been before the Minister or Controller or not. Now, coming to the facts of this case, it appears that a seizure was made on the 15th of January, 1893, of a gray mare with harness, robes and pung attached, of the probable value of $250 duty paid, for an infraction of the revenue laws of the Dominion of Canada, that is for having been engaged by Frank H. Tyrrell to convey smuggled goods from Milltown to St. Stephen at different times. The circumstances which led to the seizure are given by the seizing officer as follows " I personally saw Wm. Tyrrell driving and in posses-" lion of said mare now under seizure conveying " smuggled whiskey from Milltown to Frank H. " Tyrrell's place of business at St. Stephen's, and while " so engaged I called upon said William Tyrrell to stop " said team in the Queen's name, which he refused to " do, and spirited said mare to the United States." This apparently sets forth the grounds or reasons for the seizure ; and upon this we have the following recoil"-
VOL. VI.] 1 XCHEQUER COURT REPORTS. 171' mendation made by the Assistant Commissioner of . 1898 Customs to the Minister for the forfeiture of the articles TY ËLL seized: "No evidence having . been submitted by or T 1 a 4 m on behalf of the party , from whom the seizure was QuEm. " made in rebuttal of the charge,—the undersigned Reason. " would respectfully recommend that the seizure be Jnafaaent. " confirmed and the property seized' having become " forfeited to the Crown remain so forfeited and be " dealt with accordingly, and as the mare seized is " now a source of increasing expense for her keep, it is recommended that the collector at St. Stephen be " authorized • to sell the animal immediately." Then on April 7th, 1893, this recommendation was approved by the Controller of Customs. Now, in the' first place, there is no evidence or contention that the harness, robes or pung were ever used in committing an offence against the Customs Laws, and the claimant is clearly ' entitled to judgment in respect of these articles. With respect to the gray • mare it is ,in evidence, and I find that it was on one or two occasions used to convey whiskey from Millto%ivn,, New Brunswick, to Saint • Stephen in the same province,•but there is no evidence to justify the conclusion that such whiskey had - been smuggled into Canada. ,On the contrary the fair conclusion to be 'drawn from the evidence' is that, the whiskey in question was not smuggled, and I so find. It will be observed, however, that while the offence for the commission of which the articles in question in this case were seized and forfeited is stated to be the conveyance of smuggled goods - from Milltown to Saint Stephen, both places, being within the Province, in the notice to the claimant of the Minister's decision it is stated " that the horse, harness and robes were con- " demned for an infraction of the Customs Laws . for " having been - used to convey smuggled goods into " Canada," and some evidence has been adduced to
172 EXCHEQUER COURT REPORTS. [VOL.. VI. 1898 support a condemnation of the goods for that offence. TYE LL That evidence is not, it seems to me, sufficient to ti. warrant the seizure or condemnation of the mare. THE QUEEN Without discrediting, to the extent I am asked to do $ten. so, Mr. Bonness, the officer who made the seizure, and on or judgment. whose testimony this branch of the Crown's case rests, it is clear that under the circumstances detailed by him he may be mistaken as to the gray horse he saw being the one now in question, and in any event there is no satisfactory evidence that the one he saw was being used to convey goods into Canada contrary to law. This issue of fact also I find in favour of the claimant and against the Crown. If the goods seized were now in the possession of the Crown there would be judgment that they be restored to the claimant, with costs ; but as they have been sold by the Crown, there will be judgment for the claimant for the value thereof, which I assess at three hundred and ten dollars ($310.00), and for his costs of the action. Judgment accordingly. Solicitor for claimant : W. Pugsley. Solicitor for defendant : E. H. McAlpine.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.