Actual possession restricted to physical possession

Federal court | Customs and Excise Offences

GENERAL

Actual possession restricted to physical possession

Plaintiff and wife were catching flight to St. Martin when they were stopped by Canadian Border Services Agency officer. They told officer they did not have cash in amount of $10,000 CAD or more. Search revealed that plaintiff was carrying currency worth $13,820.69 CAD. Officer seized funds and penalized plaintiff $2,500 before letting him leave with balance of funds. Plaintiff believed that he did not need to report money since he and his wife jointly owned it. Plaintiff appealed. Minister’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. Plaintiff appealed. Appeal dismissed. Term “actual possession” in s. 12 of Act did not imply ownership. Word “actual” excluded constructive possession and restricted meaning of phrase to physical possession. Plaintiff held money and wife could only access funds if he handed them to her so only he had actual possession of funds and had to report funds pursuant to s. 12(3)(a) of Act. There was no reason to depart from plain language of s. 12(3)(a) and read into it exception for joint owners travelling together. Section 12(1) of Act was strict liability offence and plaintiff’s subjective intention was not relevant. Plaintiff did not make any attempt to clarify how much money he could carry given he was travelling with wife. Officer did not give advice to plaintiff.
Wise v. Canada (Minister of Public Safety and Emergency Preparedness) (Oct. 29, 2014, F.C., John A. O’Keefe J., File No. T-145-10) 117 W.C.B. (2d) 261.

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