2015 QCCQ 8490, 2015 QCCQ 8490

Unofficial English Translation R. c. Dumais 2015 QCCQ 8490 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Criminal and Penal Division” N° : 500-73-004001-133 DATE: September 21, 2015 ______________________________________________________________________ PRESIDING: Mr. SERGE CIMON, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ THE QUEEN Prosecutrix v.

DAVID DUMAIS Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The prosecution alleges that the accused failed to report to an officer the exportation of currency of a value equal to or greater than the prescribed amount of CAN$10,000, [1] in violation of subsection 12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act , [2] thereby committing the offence punishable on

summary conviction under subsection 74(1) of the Act. [ 2 ] The prosecution alleges that it is an absolute liability offence where the intent of the accused is irrelevant to determining guilt. [ 3 ] The accused responds that it is an offence requiring proof of culpable intent, which he did not have, since he wanted to declare the amount in his possession to the flight attendants on board the plane. ISSUES IN DISPUTE [ 4 ] Which liability scheme applies to the offence under paragraph 74(1) (

a) of the Act ? [ 5 ] If it is an intent offence, has the prosecution proved the culpable intent of the accused? BACKGROUND [ 6 ] On December 15, 2012, the accused went to Pierre Elliot Trudeau airport to catch a flight to the Dominican Republic. He arrived at the last minute and entered through the floor reserved for airlines. In a carry-on bag, he had a sum of currency greater than CAN$10,000. He went through the airport security control zone where his carry-on was scanned by the customs officials. He then went to the registration desk to present his boarding pass.

As he was walking up the boarding ramp to the plane, two officers from the Canada Border Services Agency stopped him for a checkpoint verification. [3] When questioned by the officers, he acknowledged that he had CAN$14,375 on him. He told them that he intended to declare this amount when completing the form given to travellers on the plane. Finally, a search of his carry-on revealed that he had CAN$17,269.64 with him.

ANALYSIS [ 7 ] To fight the laundering of the proceeds of crime and the financing of terrorist activities, Parliament inserted a mandatory disclosure scheme for transborder movement of currency or monetary instruments in the Act . [4] Thus, anybody wishing to export a sum of money exceeding CAN$10,000 from Canada must [5] fill out a written report [6] and submit it to the customs office located at the place of exportation. [7] [ 8 ] Moreover, an officer who notes that a person has not complied with this obligation may:

a) use his or her discretionary power and allow the person to complete his or her report ( para. 14(3) (

a) of the Act );

b) impose one of three regulatory penalties, according to applicable circumstances (subsection 18(2) of the Act and

section 18 of the Regulations ); or

c) seize as forfeit the currency or monetary instruments ( sections 18(1) and 23 of the Act ). [ 9 ] The person whose currency or monetary instruments were seized may request that the Minister review this decision (

section 25 of the Act ) or even form an appeal by bringing an action before the Federal Court (section 30 of the Act ). It is worth pointing out that the forfeiture of currency or monetary instruments is a civil collection mechanism [8] that is an action in rem where the intent of the person who failed to report or the fact that he or she committed a fault is not called into play. [9] Furthermore, it is up to the plaintiffs to establish, on a balance of probabilities, that the forfeiture was unlawful. [10] [ 10 ] Complementary to these measures, Parliament chose to create offences in the event of non-compliance with some of the provisions. Thus, subsection 74(1) of the Act provides that: 74.

(1) Every person or entity that knowingly contravenes any of sections 6, 6.1 and 9.1 to 9.3, subsection 9.4(2), sections 9.5 to 9.7, 11.1, 11.43, 11.44 and 11.6, subsections 12(1) and (4) and 36(1),

section 37, subsections 55(1) and (2),

section 57 and subsections 62(2), 63.1(2) and 64(3) or the regulations is guilty of an offence and liable (

a) on

summary conviction, to a fine of not more than $50.000 or to imprisonment for a term of not more than six months, or to both; (

b) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years, or to both. 1. The liability scheme of the offence set out under

section 74 of the Act [ 11 ] For the following reasons, the Court finds that this offence requires proof of intent. [11] [ 12 ] First, the argument submitted by the prosecution runs counter to the presumption that regulatory offences are generally strict liability offences. [12] [ 13 ] Second, there is nothing in the provision creating the offence that indicates Parliament’s clear intent to make it this type of offence. [13] Furthermore, the specificity of the terms used and the seriousness of the sentence that might be imposed weigh in favour of rejecting absolute liability. [ 14 ] To accept the prosecution’s argument would expose a person with no culpable intent to a $50,000 fine and six months’ imprisonment (if prosecuted by way of

summary conviction) or $500,000 and five years’ imprisonment (if prosecuted by indictment). [14] [ 15 ] Moreover, the case law filed by the prosecution to support its argument that it is an absolute liability offence is of no use and must be distinguished because it concerns either

section 135 of the Customs Act [15] or

section 30 of the Act . [16] [ 16 ] Furthermore, although the Act is regulatory in nature, [17] because Parliament used the word “knowingly” in the provision creating the offence, it clearly expressed its will that the prosecution be required to prove the intent of an accused [18] who fails to report currency or monetary instruments. [19] [ 17 ] In short, to obtain a conviction, the prosecution must prove, beyond a reasonable doubt, that the accused knew: (1) that he or she was in possession of currency or monetary instruments; (2) that the currency or monetary instruments were of a value equal to or greater than CAN$10,000; and (3) that he or she was leaving the country without having reported them. [20] [ 18 ] The prosecution does not, however, have to demonstrate that an accused knew that he or she had an obligation to report the currency or monetary instruments, or that he knew the law. [21] Ultimately, it comes down to the facts and each case will turn on its own circumstances. 2.

Has the prosecution proved that the accused had intent? [ 19 ] The parties acknowledge that the outcome of the case depends on the credibility of the accused. When analyzing credibility, the role of the Court is not to choose between two versions. It must determine whether, in light of the evidence, it is left with a reasonable doubt as to the guilt of the accused.

The Supreme Court of Canada has outlined the approach to take when faced with contradictory evidence: first, if the Court believes the deposition of the accused it must acquit; second, if after having taken into consideration all of the evidence, the Court does not believe the testimony of the accused, but the defence nonetheless raises a reasonable doubt, it must acquit; third, if the testimony of the accused does not raise a reasonable doubt in its mind, the Court must examine all the evidence and determine whether the prosecution has proved the guilt of the accused beyond any reasonable doubt. [22] [ 20 ] The Court points out that credibility is assessed according to several factors, such as the consistency and detail of the testimony, its coherence, the Court’s understanding, the witness’s memory, the likelihood of the remarks, a lack of hesitation or reluctance, a lack of contradiction, and the witness’s attitude, behaviour and sincerity. [ 21 ] In this case, the possession and value of the currency are admitted.

That said, the Court does not believe the accused and considers it highly unlikely that he always intended to report the money when completing the form given to travellers on the plane. It is well-known that there are no customs offices on planes and that flight attendants are not customs officers.

[ 22 ] To accept such a statement from one who travels frequently by plane would be tantamount to recognizing that ignorance of the law is a valid defence.

The law, however, is clear: everyone transporting currency or monetary instruments of value equal or greater than $10,000 must report it in writing, without delay, by going to the customs office in the country of exportation. [23] [ 23 ] Moreover, later in his testimony, the accused changed his version and stated that the flight attendants hand out not one but two forms, about twenty minutes after take-off: one form for the Dominican Republic and one for Canada.

The accused thereby implies that he wanted to report the “exportation” of his currency or monetary instruments while the plane was flying over the Atlantic Ocean or when he “returned” to Canada, one week later. This version is completely unbelievable. [ 24 ] It is just as unlikely that the accused would have kept his silence before the customs officers at the security checkpoint, that he would not have asked the person to whom he gave his boarding pass any questions, or that he would not have made any inquiries at the airline desk.

By acting this way, the accused displayed wilful ignorance. [24] [ 25 ] In light of the facts adduced, the Court is convinced beyond any reasonable doubt that the accused had the intention of leaving Canada without reporting his currency or monetary instruments.

FOR ALL THESE REASONS, THE COURT: FINDS the accused guilty of the offence alleged against him; WILL HEAR submissions on sentencing at 9:30, on December 10, 2015, in room 5.08 of the Montreal Courthouse. __________________________________ Serge Cimon, Presiding Justice of the Peace Mtre Trang Dai NGUYEN Crown prosecutor Mtre Pierre JOYAL For the accused Date of hearing: April 17, 2015