A person who is subject to an ascertained forfeiture under the Customs Act may not avail himself of the right against self-incrimination guaranteed by section 11(c) of the Canadian Charter of Rights and Freedoms since that person is not charged with an offence

Administrative law – Charter of Rights – Self-incrimination in administrative proceedings

Normand Martineau v. Minister of National Revenue, [2004] S.C.J. 58, Supreme Court of Canada, December 16, 2004, McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

In June 1996, a customs officer demanded that the appellant pay $315,458, the deemed value of goods that were allegedly attempted to be illegally exported by the appellant. This set in motion a process known as “ascertained forfeiture.” The appellant subsequently exercised the recourse provided for in section 129 of the Customs Act requesting a review of the customs officer’s decision. The decision was upheld.

In September 2001, the appellant appealed the respondent’s decision by way of an action pursuant to section 135 of the Customs Act. The respondent subsequently filed a notice of motion for the purposes of examining the appellant for discovery pursuant to Rule 236(2) of the Federal Court Rules. The appellant contested the motion on the ground that it would violate his right against self-incrimination under section 11(c) of the Charter. The issue was therefore whether the appellant may in the course of an action under section 135 of the Customs Act, avail himself of the right against self-incrimination guaranteed by section 11(c) of the Charter.

The Court noted that a distinction must be drawn between penal proceedings and administrative proceedings. Only penal proceedings attract the application of section 11 of the Charter. In this case, the fact that the actions of the appellant could potentially result in a criminal prosecution did not in itself mean that a Notice of Ascertained Forfeiture could properly be characterized as a penal proceeding. The appropriate test was the nature of the proceedings, not the nature of the Act. The Court reviewed the procedure under the Customs Act and held that it had little in common with penal proceedings: no one was charged in the context of an ascertained forfeiture; no information was laid against anyone; no one was arrested; no one was summonsed to appear before a Court of criminal jurisdiction; and no criminal record would result from the proceedings. As such, the Notice of Ascertained Forfeiture was not penal in nature but rather an administrative measure intended to provide a timely and effective means of enforcing the Customs Act. Nor did the Notice of Ascertained Forfeiture have the appearance nor the distinctive characteristics of a sanction intended to redress a wrong done to society. Thus, the Notice of Ascertained Forfeiture did not lead to penal consequences for the appellant. He therefore could not be characterized as a person charged with an offence within the meaning of section 11(c) of the Charter and therefore could not benefit from its protection in this case.

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