Federal Appeal

Criminal Law

Proceeds of crime

“Actual possession” in Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.), means actual, physical possession, not ownership

Appellant plaintiff and wife were catching flight to Caribbean when intercepted by Canada Border Services Agency officer. Appellant told officer they did not have cash in amount of CAD$10,000 or more. Search revealed that appellant was carrying $13,820.99. Officer seized funds and penalized appellant $2,500 before letting him leave with balance of funds. Appellant believed that he did not need to declare money since he and wife jointly owned it. Minister of Public Safety and Emergency Preparedness’s delegate affirmed officer’s decision that s. 12(1) of Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Can.) had been violated and penalty was appropriate. Appellant appealed from decision. Federal Court found that “actual possession” meant possession, not ownership, and also dismissed defence of officially induced error. Federal Court dismissed appeal. Appellant appealed from Federal Court decision. Appeal dismissed. Pursuant to Act and s. 2 of Cross-border Currency and Monetary Instruments Reporting Regulations (Can.) traveller leaving Canada in “actual possession” of CAD$10,000 or more must declare currency. “Actual possession” in Act, in particular s. 12(3)(a) of Act meant actual, physical possession, not ownership. Appellant had actual, physical possession of currency, which exceeded CAD$10,000. Furthermore, factually-suffused conclusion could only be set aside on basis of palpable error, namely that error was “obvious” and “went to very core of outcome of case” which was not case here.

Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 6, 2016, F.C.A., David Stratas J.A., Webb J.A., and Gleason J.A., A-521-14) Decision at 246 A.C.W.S. (3d) 380 was affirmed. 265 A.C.W.S. (3d) 379.

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