R. v. Sajid

2012 BCSC 203 R. v. Sajid

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sajid, 2012 BCSC 203 Date: 20120209 Docket: 25760 Registry: Vancouver Regina v. Muhammad Iiyas Sajid Before: The Honourable Mr. Justice Willcock On appeal from: Provincial Court of British Columbia, April 27, 2011 (R. v. Sajid, Richmond Registry, File No. 54753-1) Reasons for Judgment Counsel for the Crown (Appellant): W.P. Riley Counsel for Accused (Respondent): D.J. O'Donnell Place and Date of Hearing: Vancouver, B.C. November 16, 2011 Place and Date of Judgment: Vancouver, B.C. February 9, 2012 Introduction [1] This is an appeal by the Crown from the acquittal of the respondent, Muhammad Iiyas Sajid, at trial in the Provincial Court of British Columbia on April 27, 2011. The Charge [2] Mr. Sajid was charged with failing to report the exportation of currency as required by s.12 (1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, and thereby committing an offence pursuant to s. 74 of the Act. The applicable parts of s. 12 of the Act reads as follows: 12(1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. ... (3) Currency or monetary instruments shall be reported under subsection (1) (a)

in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; ... (4) If a report is made in respect of currency or monetary instruments, the person arriving in or departing from Canada with the currency or monetary instruments shall (a) answer truthfully any questions that the officer asks with respect to the information required to be contained in the report; and (b) on request of an officer, present the currency or monetary instruments that they are carrying or transporting, unload any conveyance or part of a conveyance or baggage and open or unpack any package or container that the officer wishes to examine. [3] Section 74 of the Act reads: Every person or entity that knowingly contravenes ... subsection 12(1) or (4) ... 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; ... [4] The Cross-border Currency and Monetary Instruments Reporting Regulations, SOR/2002-412, include the following provisions: 2. (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. ...

3. Subject to subsections 4(3) and (3.1) and section 8, a report with respect to the importation or exportation of currency or monetary instruments shall (a) be made in writing; (b) contain the information referred to (i) in Schedule 1, in the case of a report made by the person described in paragraph 12(3)(a) of the Act, if that person is not transporting on behalf of an entity or other person, ... (c) contain a declaration that the statements made in the report are true, accurate and complete; and (d) be signed and dated by the person or entity described in paragraph 12(3)(a) ... of the Act.... [5] Regulations with respect to exportation reporting are set out in s. 11-15.1 of the Regulation. Section 11 provides: A report with respect to currency or monetary instruments transported by a person departing from Canada shall be submitted without delay by the person at the customs office located at the place of exportation or, if it is not open for business at the time of exportation, at the nearest customs office that is open for business at that time. [6] Schedule 1 to the Regulations requires a person described in s. 12(3)(a) of Act to disclose the type and amount of the currency being exported. Trial and Judgment [7] Mr. Sajid's trial was heard on April 27, 2011. The Crown called Mark Flagel, a Border Services Officer with the Canadian Border Service Agency at Vancouver

International Airport. He testified that on November 19, 2009 he was examining departing passengers for currency on Level 3, the departure level of Vancouver International Airport and in that capacity interviewed passengers boarding Air Canada flight 854 destined to London, England. He stopped Mr. Sajid after he had checked in at the gate and provided his boarding card to the airline agent, but before he had walked down the ramp to board the departing airplane. He identified himself as a customs officer, asked Mr. Sajid for his boarding card and passport, and advised Mr. Sajid he was checking for currency leaving the country. He informed Mr. Sajid of the obligation to report before departing if he had more than $10,000 or the equivalent of that sum in any currency. Mr. Sajid immediately acknowledged he had to report and claimed to have $10,000 or $11,000 in his possession. Seeing indications of discomfort when he questioned Mr. Sajid further, Mr. Flagel asked him to remove his coat, and checked the pockets. When he did so, Mr. Flagel located additional Canadian currency. Further searching disclosed the presence of a total of $51,380 in Canadian currency on Mr. Sajid's person. When asked why he had not reported the money as required, Mr. Sajid said his failure to do so was a mistake. [8] Mr. Flagel testified travellers are advised of the currency legislation by a sign posted at

the entry to the international departures screening area on Level 3 of the airport. The English portion of the notice on that sign (which is in both official languages) reads as follows: Are you entering or leaving Canada with $10,000 Canadian or more? This means any currency - domestic or foreign bank notes and securities such as travellers cheques, stocks and bonds, etc. If so, report to Canadian Customs. Failure to report could result in seizure and penalties. [9] Mr. Flagel testified that there is a Canada Border Services office on Level 2 of the international arrivals area of the Vancouver International Airport. There are no signs in the airport directing passengers who wish to declare the exportation of currency to the Canada Border Services offices. In cross-examination, Mr. Flagel said he has reporting forms with him when he is on duty and occasionally fills them out with passengers who report their intention to export currency. Mr. Flagel has never directed passengers within the secure international departures area at the airport to report to the Canada Border Services office on Level 2. [10] At the conclusion of Mr. Flagel's testimony, the Crown advised the Court that, if required by the defence, an officer who provides translation services was available to be called for cross-examination. The defence did not require that witness to be called by the Crown. The case

concluded with the evidence of Mr. Flagel. [11] The charges were dismissed by the trial judge on his own motion without argument from the Crown or counsel for the accused. The trial judge held: I am not going to convict on this evidence. The Crown has indicated they are not needing the next witness. I could not convict on this evidence. The accused is charged for failing to report. He has not been charged with failing to truthfully answer. [12] The trial judge found the legislation was "fraught with difficulties and fraught with dangers". The Act requires self-reporting "yet there is not a facility to report in what you would consider to be a reasonable fashion". He expressed concern that travellers are not well or clearly notified of the reporting requirement, that inspection of travellers is arbitrary, and that "the accused finds himself at court because of his decision not to answer the officer's questions in the manner in which the officer wanted them answered". The judge concluded: Mr. Sajid put himself in the situation he finds himself in; I feel no sorrow for him. He was the author of his own misfortune, but I am not going to register a conviction on the situation that is at bar. It would be unreasonable under the circumstances and it would go beyond that which is contemplated by the scheme of the [Act]. For those reasons, I am dismissing the charge. [13] The Crown

appeal is founded primarily upon the reasons for the dismissal in para. 7 of the judgment, as follows: The final comments I make are the questions that I was asking at the end. Anybody who would be subject for prosecution on the basis of the information that is provided at the airport, at a border crossing, so people can be detained and subjected to various forms of search and questioning on the basis of that information in those circumstances I think is totally unreasonable and does not enhance at all that which is contemplated by the Act. It puts Border Service officers in what I consider to be terribly uncomfortable positions of having to stop people at the edge of the plane and subject them to a form of scrutiny, out in the public, out in the open, that any other passenger would be looking at and saying, "What is that all about? Who is this person?" And if that person is released to the plane, "Who is that person getting on the plane and why were the officers talking to him?" That certainly is an uncomfortable feeling as another passenger to have. So something better has to occur and people should be notified and forms should be out for everybody to have access to, much like they have declarations when you enter the country or on a plane called an E311, and large signs requiring it and explaining exactly what happens in all forms of language so that people have got a

chance. And in this particular case I am not about to be a party to convicting somebody on this evidence. Issues on Appeal [14] The Crown says: 1) the learned trial judge erred in law, in basing the acquittal on legally irrelevant considerations; 2) the trial judge erred in law in considering Charter issues which were not raised without holding a hearing or entertaining submissions; and 3) the trial judge erred in law in ruling there was no evidence upon which a properly-instructed trier of fact could convict. Analysis Legally irrelevant considerations [15] The Crown says the trial judge relied on irrelevant factors in acquitting the accused, including language difficulties, where the trial judge found the accused did not have trouble understanding English; the legitimate source of the funds in the possession of the accused; insufficiency of notice and signage with respect to reporting requirements; and the perception that the legislation was fraught with difficulties and unfairly applied. It is true that much of the trial judge's criticism of the legislation and measures taken by the Canada Border Services Agency to enforce the legislation is irrelevant to the accused's guilt or innocence. The random questioning of departing passengers, the effect of such questioning or searches upon how certain passengers are perceived by others, and the inability of other passengers to

understand signs posted in English and French, do not bear upon the question of whether Mr. Sajid is guilty of the offence with which he has been charged. However, I cannot say the acquittal was founded upon irrelevant considerations given the learned trial judge's apparent conclusion that on the Crown's evidence it could not be said Mr. Sajid had failed to report. Charter issues [16] The trial judge did not expressly dismiss the charges as a result of concerns with respect to potential Charter breaches. To the contrary, he expressly stated that the case was decided on its facts and it was not intended as a precedent. The dismissal of the charges against Mr. Sajid was not a result of a fundamental constitutional problem with the legislation. While the perceived arbitrariness of the application of the Act was a concern to him, a Charter breach was neither alleged nor argued. From the record, in my view, the charges against Mr. Sajid cannot be said to have been dismissed on constitutional grounds. Evidence upon which a trier of fact could convict [17] It was Mr. Flagel's evidence that Mr. Sajid was detained and questioned at a point where one might conclude that he intended to exit Canada with currency in his possession in excess of $10,000 without reporting his intention to export that currency. He had entered the international departures area, checked into his flight, passed

the ticketing agent, and was on the approach to the ramp when he was questioned by Mr. Flagel. I can see no basis on that evidence to suggest Mr. Sajid intended to report the export of currency prior to his departure or that he would have sought a means of doing so if he had not been stopped by Mr. Flagel. [18] Implicit in the acquittal is a finding of fact: that the Crown had not established Mr. Sajid was made aware of the reporting requirement before being informed of that obligation by the customs agent; and a finding of law: that the Crown bears the onus of establishing the accused's knowledge of the obligation to report as a constituent element of the offence. In my view an acquittal could not have been entered at the conclusion of the Crown's case unless the trial judge was of the view the law required the Crown to establish the accused's knowledge of the obligation to report. [19] In my view the Crown's appeal hinges upon whether the Act requires the Crown to establish the accused's knowledge of the reporting requirement. [20] Contravention of s. 12 (1) of the Act may lead to two adverse consequences. First, currency carried by a non-reporting traveller is subject to seizure as forfeit by a Customs official, pursuant to subsection 18(1) of the Act. Second, an individual who "knowingly" contravenes s. 12 (1) of the Act commits an offence described by s. 74 of the Act.

There is useful jurisprudence on what amounts to a breach of s. 12(1) of the Act and what must be established to sustain forfeiture, but little useful consideration of what knowledge is required to justify a conviction under s. 74. [21] In Tourki v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 50, the Federal Court found it unnecessary to engage in any analysis of the subjective intentions of the person exporting funds in violation of s. 12(1), in considering the propriety of forfeiture. The Court held (at para. 23): Mr. Tourki claims he was not aware that the law required him to declare. Although he properly admits that ignorance of the law is no excuse, he asserts that that ignorance should be considered together with the Minister's failure to adequately publicise the law and to make Customs officers readily available, as well as the failure of the security guards to alert him to his obligation, while at the same time informing Customs that he was carrying a large amount of cash. In answer to the hypothetical question, he naturally said he would have declared had he been aware of his duty. [22] The Court found, given Mr. Tourki's previous experience, he was, in fact, aware of the reporting requirement but held that it was unnecessary for the Minister to establish that knowledge or to establish the existence of a convenient method of reporting (at

paras.25-27): Part II of the Act had been proclaimed in force by publication in the Canada Gazette in January 2003. That is the only publicity required by law. The Customs officers also testified that there was a media publicity campaign and brochures were available at the airport. More particularly, there was a large sign at the entrance to the security area. Mr Tourki says he did not see that sign. Based on the evidence of officers Simard and Premont, I am satisfied on the balance of probabilities that the sign was there 5 July 2003, even though they only saw it before and after. In any event, there was no legal obligation that the sign be there. ... It is incumbent upon the traveller to report. The law imposes a self-reporting system. The traveller must search and find the Customs office. Mr. Tourki says that there was no Customs office at the airport after he went through security. That is only partially true. He could have left the security area on the departure level and gone down to the Customs office on the arrival level and then gone through security again. While a Customs kiosk in the departure area would be more user friendly, there was no legal requirement that such a kiosk be there. [Emphasis added] [23] In Zeid v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 539, another forfeiture case, de Montigny J., considered an application to

recover forfeit currency on the ground there was no deliberate or knowledgeable contravention of the reporting requirements. The Court found the plaintiff knew of or was wilfully blind to the reporting requirement and dismissed the challenge to the forfeiture. The Learned Trial Judge went on, however, to find (at paras. 50-56): I agree with the defendant that the lack of any intention to circumvent the reporting requirement or to deceive Customs officials is not relevant to the determination of whether or not the obligation to report has been contravened. The obligation found in section 12 of the PCMLTFA is not qualified by any reference to the knowledge or subjective state of mind of the traveller. ... [The jurisprudence that has interpreted analogous provisions in the Customs Act] makes it abundantly clear that a traveller's subjective intention when failing to report is irrelevant. It has been unequivocally held that such intention is not required since the system is one of voluntary reporting and because strict liability attaches to those who fail to report. Perhaps the clearest statement of this principle is that penned by Mr. Justice Pinard in He v. Canada (2000), 182 F.T.R. 85, where he stated at para. 8: In seizure proceedings such as those at bar, the onus is on the plaintiffs to establish, on a balance of probabilities, that the seizures were unlawful. The issue for

the Court is simply whether the goods...were, in fact and law, liable to forfeiture. The Act creates a voluntary reporting legislative framework in which importers must accurately declare all goods, must accurately account for the quantity and value of the goods, and must pay the duty and taxes attracted by all goods imported. (...) Therefore, the Act is contravened when an incorrect declaration is made by or on behalf of an importer. Furthermore, the source of that error is irrelevant. The importer is liable for having failed to meet the obligation to accurately account for the goods which, from the time of the contravention, are forfeit to the Crown. A lack of intention on the part of the importer to evade duty and taxes is irrelevant in a seizure proceeding. Neither the lack of intent to mislead Customs, nor the presence of an inadvertent error in reporting goods, affects the validity of a seizure. There is all the more reason to come to that conclusion in the context of the PCMLTFA, the objectives of which are of the utmost importance. The reporting regime is a key tool to combat money laundering and the financing of terrorist activities. Lack of knowledge would not only be difficult to verify, but it could easily undermine the policy underlying the PCMLTFA. If the PCMLTFA is to be effective, severe sanctions must be visited upon all those who fail to report in accordance

with section 12, irrespective of their circumstances. This is indeed the conclusion reached by my colleagues in the only two cases that have dealt with this issue so far. In Tourki v. Canada (Minister of Public Safety and Emergency Preparedness), (2006 FC 50; aff'd on a different point at 2007 FCA 186), Justice Harrington rejected Mr. Tourki's argument that his lack of awareness of the obligation to declare would warrant overturning the Minister's decision that he had contravened subsection 12(1). Similarly, Justice Kelen recognized the irrelevance of the traveller's subjective intention when failing to report cross-border currency, further to a motion for summary judgment brought by the Minister in respect of a section 30 PCMLTFA statutory appeal: Hoang v. Canada (Minister of National Revenue), 2006 FC 182. I strongly agree with their reasoning and conclusion. [Emphasis added] [24] While the last highlighted passage is a clear finding that establishing a breach of s. 12(1) of the Act does not require proof of the traveller's knowledge of the reporting requirement (and that to require knowledge of the reporting requirement would frustrate the intentions of Parliament), the first highlighted passage stresses the fact there is no reference to knowledge of the reporting requirement in s. 12 or the forfeiture provisions. In contrast, there is reference to the accused's knowledge in

the offence provision: s. 74. [25] In R. v. Fathie, 2011 BCPC 13, the accused was charged with an offence contrary to the provisions of s. 74 of the Act in circumstances very similar to those in the case at bar. The accused took the witness stand in his own defence. He testified he knew he had to report, always intended to do so, expected to see a customs officer at the gate and, if he had not been approached by Mr. Flagel, would have inquired at the airline desk where he should report (despite the fact that on the evidence he appeared to have passed the airline desk or any other checkpoint prior to boarding). The Learned Trial Judge held the case turned upon whether he believed the evidence of the accused with regard to his intentions. After considering Tourki, he held (at para.17): This case [Tourki] can, however, be distinguished from the case before me in that Mr. Tourki said he was not aware of the obligation to report and he was in fact in the aircraft on the tarmac when apprehended. In the case before me, Mr. Fathie did in fact report the amount he was taking out of the country to Mr. Flagel at the first opportunity that was offered to him, and I am satisfied that he always intended to do so. In the circumstances, I find that he did not commit the offence charged and find him not guilty. [26] Fathie may be said to stand for the proposition a person may establish an intention to report as a defence. That is not equivalent to saying that no conviction will lie unless the Crown proves the accused was aware of the reporting requirement. [27] In my view, the offence provisions here resemble those considered in R.v. Jorgensen, [1994] 4 S.C.R.

55. The Criminal Code provisions there considered made it an offence to distribute obscene material or to knowingly sell obscene material. The Supreme Court of Canada (at para. 75) held the distinction between the offences could be said to reflect Parliament's intention to avoid conviction of many persons who do not possess a blameworthy mind state. In addressing the effect of the use of the word "knowingly" in one provision and its exclusion in the other, the Court held: (at para.64) It is a general rule of statutory construction that when the term "knowingly" is used in a criminal statute, it applies to all elements of the actus reus. In R. v. Rees, [1956] S.C.R. 640, this Court considered whether, on a charge of contributing to the delinquency of a child under the age of 18, honest belief that the child was over the age was a defence. The majority held that in accordance with the rule of statutory construction to which I have referred, the term "knowingly" must be applied to all elements of the offence and in particular to the age of the child. Cartwright J., at p. 652, cited with approval a statement from Glanville Williams: In his book on Criminal Law (1953) at pages 131 and 133, Mr. Glanville Williams says:__ It is a general rule of construction of the word "knowingly" in a Statute that it applies to all the elements of the actus reus . . . The sound principle of

construction is to say that the requirement of knowledge, once introduced into the offence, governs the whole, unless Parliament has expressly provided to the contrary. In my opinion these passages are supported by the authorities collected by the learned author at the pages mentioned and correctly state the general rule. [28] And, further (at para. 76): I therefore conclude that in using the word "knowingly" in s. 163(2) Parliament did not intend to restrict its meaning. In all the circumstances it would make little sense to conclude that Parliament required proof of knowledge but limited the requirement to proof of the aspect of the actus reus that is perfectly lawful. Although, as a constitutional imperative, a blameworthy mental element need not extend to all aspects of the actus reus, Parliament can choose to legislate beyond minimum constitutional limits. In my view, in choosing the term "knowingly", it has done so in this case. [29] The Court then examined the principal cases, including R. v. Cameron, [1966] 2 O.R. 777 (CA), and concluded that an accused could be found to have knowingly sold pornography if he knew of the subject matter of the material sold, whether or not he considered the work pornographic. The Court, at para. 78 of Jorgensen, cited with approval, from the judgement of Aylesworth J.A. in Cameron : "Knowingly" does not require that appellant should

possess the legal knowledge of whether or not the drawings were obscene; it is sufficient if she knew the subject-matter and caused the drawings to be publicly exhibited. [Emphasis in original] [30] The Court in Jorgensen, at para 97, drew a distinction between knowledge of the actus reus and knowledge of the law: This is not, of course, to suggest that a retailer must know that the materials being sold were obscene in law. If the retailer says he viewed the films and saw the particular spanking or noticed the underlying degradation but thought that it was harmless and inoffensive, this will not provide a defence. The retailer will not be immune from charges merely because he or she does not know how the law defines obscenity. Nor will a retailer be immune from conviction because he or she is unaware that there are any laws against selling obscene material. This would amount to the defence of mistake of law and it is well established that ignorance of the law is no defence. What is required is that the Crown prove beyond a reasonable doubt the retailer's knowledge that the materials being sold have the qualities or contain the specific scenes which render such materials obscene in law. [Emphasis added] [31] The case is authority for the proposition that the term "knowingly" in s. 74 applies to all aspects of the actus reus. It is also authority for the proposition that

generally the Crown is not obliged to prove knowledge of the law or that the accused possess the legal knowledge sufficient to determine whether an act constitutes an offence under the law. [32] In order to be convicted of an offence under this section, an accused must know that he has currency in his possession, he must know that the value of the currency exceeds $10,000 Canadian, and he must know that he is leaving the country without having reported. These are questions of fact. To say that an accused does not know he is required to report the export of currency under the Act, amounts to an assertion of ignorance of the law. That will afford no defence to the charge, even where the Act requires the Crown to establish the accused "knowingly" failed to report. (knowledge requirements in other offence provisions have been similarly interpreted; see for example R. v. Dalley [1957] O.J. No. 40 (CA); R. v. Richardson 34 O.R. (2d) 348 (Div. Ct.), aff'd 39 O.R. (2d) 438; and R. v. Stucky, 2009 ONCA 151) [33] I am of the view the trial judge erred in law in finding the evidence insufficient to establish Mr. Sajid knowingly failed to report the exportation of currency. The fact the accused identified himself as a person required to make a report when he was questioned is not a defence to the charge that he failed to report without delay at the place of exportation. It may have been

open to the trial judge to convict the accused on the evidence that he was stopped after he had passed any point at which he might reasonably have been expected to report his intention to export currency. It was open to the Crown to argue an offence had been committed at the time the Border Services agent asked Mr. Sajid whether he was an individual required to make a report. [34] For those reasons, I allow the Crown's appeal, set aside the acquittal, and order a new trial. "P. Willcock J." The Honourable Mr. Justice P. Willcock