TADELE WOROTA ADMASU Applicant v. THE MINISTER OF PUBLIC, 2012 FC 451

Federal Court Cour fédérale Date: 20120418 Docket: T-2022-10 Citation: 2012 FC 451 Ottawa, Ontario , April 18, 2012 PRESENT: The Honourable Mr. Justice Rennie BETWEEN: TADELE WOROTA ADMASU Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The applicant seeks judicial review of a decision of the Minister of Public Safety and Emergency Preparedness (MPSEP) refusing to grant relief from forfeiture pursuant to

section 29 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act , SC 2000, c 17 ( Act ). For the reasons that follow the application is dismissed. Facts [ 2 ] On April 2, 2009, the applicant was stopped by a Canada Border Services Agency (CBSA) officer as he was boarding a flight bound for Amsterdam and onwards to Ethiopia . The officer explained that individuals carrying currency in excess of $10,000 Canadian must report it to customs officials. According to the officer the applicant reported he did not have currency in excess of that amount.

However, a subsequent search revealed that he was carrying Canadian, US and Euro currency, with the equivalent value of $14,277.44 CDN. The officer concluded there were grounds to suspect that the currency was the proceeds of crime and therefore seized the currency. In reaching this conclusion, the officer noted: a. The applicant’s failure to report the currency; b. His deceptive behaviour and failure to hand over all currency when asked; c. His inability to explain where the money came from and what it was for;

d. His vague and contradictory explanation of his travel plans and the fact that the plane ticket was purchased by a third party theweek before; e. The fact that the amount of currency in the applicant’s possession was not in keeping with his income and savings. [3] On April 6, 2009, the applicant requested Ministerial review of the forfeiture pursuant to

section 25 of the Act. He explainedthat he had been heavily medicated due to his disability (a serious injury to his arm from a workplace accident), which explained why hehad not been more careful about the currency or able to explain its origins. Medication consistent with this explanation was uncovered inthe search, although the officer did not consider this in reaching her conclusion. He also explained that most of the money was fromfriends who asked him to carry it to their relatives in Ethiopia.

In his request for review the applicant attached medical notes togetherwith letters from his friends in Vancouver that purported to account for portions of the seized currency. [4] The adjudicator wrote to the applicant explaining the reasons for the seizure and invited him to send further information anddocumentation which would establish the legitimate origin of the seized currency.

The letter explained that he must identify the linkbetween the currency and its origins, and establish its legality. [5] Over the course of several months the applicant and the adjudicator communicated with one another as the adjudicator triedto obtain the necessary information. Despite requests for further documentation the applicant did not identify to the satisfaction of theadjudicator the legitimate source of all the currency.

The applicant also failed to provide any evidence to support his claim that some ofthe currency was from his savings. [6] The adjudicator provided a case synopsis and recommendation to the Minister’s Delegate, dated August 17, 2010. Theadjudicator summarized the history of events and found that a contravention of the Act had clearly occurred. The adjudicator reviewedthe information and documentation submitted by the applicant.

Since this information did not establish the legitimate origin of all of thecurrency, the adjudicator recommended that the seized currency be held as forfeit. [7] By letter dated November 4, 2010, the Minister’s Delegate informed the applicant of her decision that a contravention of theAct occurred and that the currency would be held as forfeit. The letter reviewed the facts and the grounds upon which the currency wasseized.

The letter also summarized the submissions made by the applicant in support of returning the seized currency. [8] The Minister’s Delegate noted that the applicant had failed to provide evidence of the legitimate origin of all the seizedcurrency. She also explained that as the applicant’s bank statements had never shown any savings and his credit line was used to themaximum, he had failed to explain how over $3000CND of the currency could have come from his savings. As a result, the Minister’sDelegate declined to return the seized currency.

Standard of Review and Issue [9] The issue raised by this application is whether the Minister’s decision is reasonable: Sellathurai v Canada (Minister ofPublic Safety and Emergency Preparedness), 2008 FCA 255 , [2008] FCJ No 1267 (CA) at para 25. [10] The standard of review is informed or framed, in part, by the statutory provision allowing the Minister to grant relief fromforfeiture. Section 29(1)(

a) of the Act does not allow for partial relief in respect of seized currency:

(1) If the Minister decides that subsection 12(1) was contravened, the Minister may, subject to the terms and conditions that the Minister may determine, (

a) decide that the currency or monetary instruments or, subject to subsection (2), an amount of money equal to their value on the day the Minister of Public Works and Government Services is informed of the decision, be returned, on payment of a penalty in the prescribed amount or without penalty; […] (

c) subject to any order made under

section 33 or 34, confirm that the currency or monetary instruments are forfeited to Her Majesty in right of Canada . 29.

(1) S’il décide qu’il y a eu contravention au paragraphe 12(1), le ministre peut, aux conditions qu’il fixe :

a) soit restituer les espèces ou effets ou, sous réserve du paragraphe (2), la valeur de ceux-ci à la date où le ministre des Travaux publics et des Services gouvernementaux est informé de la décision, sur réception de la pénalité réglementaire ou sans pénalité; […]

c) soit confirmer la confiscation des espèces ou effets au profit de Sa Majesté du chef du Canada, sous réserve de toute ordonnance rendue en application des articles 33 ou 34. [ 11 ] Section 29(1)(

b) stands in contrast to section 29(1)( a ), which allows for partial relief in respect of a penalty: 29. (1) […] (

b) decide that any penalty or portion of any penalty that was paid under subsection 18(2) be remitted; or […] 29. (1) […]

b) soit restituer tout ou

partie de la pénalité versée en application du paragraphe 18(2); […] [ 12 ] The applicant suggests that since he provided evidence of the legitimate origin of some of the currency, that portion should be returned to him. As the respondent submits, the Act does not contemplate return of a portion of the seized currency. Section 29(1) (

a) states that the Minister may decide “that the currency or monetary instruments…be returned” or “confirm that the currency or monetary instruments are forfeited”. In contrast, that section 29(1)(

b) permits the Minister to remit “any penalty or portion of any penalty ” [emphasis added]. [ 13 ] The Minister’s decision is, therefore, an all or nothing proposition. There is no middle ground of partial relief from forfeiture. The reasonableness of the decision must be considered in the light of this statutory constraint. Analysis [ 14 ] Most of the applicant’s submissions to the Court relate to the treatment he received by the CBSA officers when the currency was seized at the airport.

As to the central question as to whether the Minister’s decision was unreasonable, the applicant reiterates his allegation that the currency was given to him by friends to deliver to their relatives upon arrival in Ethiopia . The applicant also notes that while the adjudicator accepted that $5000 CND of the currency had a legitimate origin, none of the currency was returned to him. [ 15 ] The discretion to return seized currency under

section 29 only arises once the Minister has concluded that a contravention of

section 12 of the Act has occurred. Therefore, as the Federal Court of Appeal stated in Sellathurai at para 34 : “the starting point for

the exercise of the Minister's discretion is that the forfeited currency…is, for all legal purposes, property of the Crown”. [16] The Act does not stipulate the factors that the Minister must consider in exercising his discretion. Given the objectives of theAct and the provisions governing forfeiture, it is evident that the applicant must persuade the Minister that the currency is not theproceeds of crime.

As stated in Sellathurai at para 50: The only issue is whether the applicant can persuade the Minister to exercise his discretion to grant relief from forfeiture by satisfyinghim that the seized funds are not proceeds of crime. Without precluding the possibility that the Minister can be satisfied on this issue inother ways, the obvious approach is to show that the funds come from a legitimate source. That is what the Minister requested in thiscase, and when Mr.

Sellathurai was unable to satisfy him on the issue, the Minister was entitled to decline to exercise his discretion togrant relief from forfeiture. [17] The Court of Appeal also emphasized, at para 53, that there may be various approaches to this exercise of discretion, but solong as the discretion was reasonably exercised, there is no basis to intervene: see Yang v Canada (Minister of Public Safety andEmergency Preparedness), 2008 FCA 281 , [2008] FCJ No 1321 (CA); Qasem v Canada (Minister of Public Safety andEmergency Preparedness), [2008] FCJ No 1489 (CA) for applications of this principle. [18] In light of the principles articulated by the Federal Court of Appeal I find that the Minister’s decision in this case isreasonable.

As the respondent submits, the applicant was unable to satisfy the Minister that the currency had a legitimate source andtherefore it was open to the Minister to decline to exercise his discretion to grant relief from forfeiture. [19] The adjudicator made it clear to the applicant what was required of him. He had to identify the source of all the currency andprovide evidence to link the currency to its legitimate origin (for example, income from employment). It was insufficient to supply onlystatements from the individuals or to substantiate the source of only portions of the currency.

While evidence was provided in respect of$7,200 USD and $1,200 CND, the origin of all funds was not explained to the satisfaction of the Minister. In this regard, it must beremembered that $9,908 USD, $1,500 CND and €150 EUR was seized. The refusal to give relief from forfeiture was, in circumstancessuch as this where a significant percentage of the funds could not be explained, reasonable. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review be and is hereby dismissed. "Donald J.

Rennie" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2022-10 STYLE OF CAUSE: TADELE WOROTA ADMASU v MINISTER OF PUBLIC SAFETY AND EMERGENCY

PREPAREDNESS PLACE OF HEARING: Vancouver , BC DATE OF HEARING: April 2, 2012 REASONS FOR JUDGMENT AND JUDGMENT: RENNIE J. DATED: April 18, 2012 APPEARANCES : Mr. Tadele Worota Admasu FOR THE APPLICANT Ms. Sarah-Dawn Norris FOR THE RESPONDENT SOLICITORS OF RECORD : FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Vancouver, BC FOR THE RESPONDENT