Her Majesty the Queen v. McDonough, 2014 ONCA 197

Her Majesty the Queen v. McDonough

[Indexed as: R. v. McDonough]

Ontario Reports

Court of Appeal for Ontario,

Sharpe, Gillese and Rouleau JJ.A.

March 14, 2014

120 O.R. (3d) 172 | 2014 ONCA 197

Case Summary

Criminal law — Customs — Administrative process under Customs Act not having to be exhausted before criminal charges under Act are laid — Appellant properly convicted of making false or deceptive statement and evading or attempting to evade compliance with report of goods provisions under Act after importing illegal car by describing its components as parts and dividing shipment into two stages — Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).

The appellant imported a car that was illegal to import into Canada by describing its components as parts and dividing the shipment into two stages. He was convicted of making false or deceptive statements and evading or attempting to evade compliance with report of goods provisions contrary to the Customs Act. He applied for leave to appeal.

Held, the application should be dismissed.

There is no requirement that the administrative provisions under the Act must be followed or concluded before criminal charges can be brought. The provisions of the Act on which the appellant relied, dealing with classification, levy of duties and appraisal of transaction value, did not relate to the essence of the charges on which he was convicted. There was no merit to the application. [page173]

Statutes referred to

Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), ss. 20(1), 48(1) [as am.], 58(2), 160 [as am.]

APPEAL from the order of G.M. Miller J., [2012] O.J. No. 2875, 2012 ONSC 3712 (S.C.J.) dismissing a summary conviction appeal from the conviction entered by S.R. Clark J., [2011] O.J. No. 6537 (C.J.).

Douglas McDonough, in person.

Marie Comiskey, for respondent.

1Endorsement BY THE COURT: -- The appellant was convicted of one count of making false or deceptive statements and one count of evading or attempting to evade compliance with report of goods provisions contrary to the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 160. The charges arose from the importation of an exotic car that was illegal to import into Canada because of safety standards. The appellant arranged for the importation by describing the components of a single car as parts and dividing the shipment into two stages.

2The appellant raises a number of grounds of appeal, all of which relate to the provisions of the Customs Act relating to the procedures to be followed with respect to classification and appraisal of goods imported and determination of applicable tariffs. He argues, first, that the administrative process under the Customs Act must be exhausted before criminal charges are laid; and second, he relies on a number of sections of the Customs Act, in particular, ss. 20(1), 48(1) and 58(2), which deal specifically with classification, levy of duties and appraisal of transaction value. He alleges that as those provisions were not invoked, the charges were not validly brought.

3The appellant's arguments were thoroughly considered and rejected by both the trial judge and the summary conviction appeal judge.

4In our view, there is no basis in law for the proposition that the administrative provisions under the Customs Act must be followed or concluded before any criminal charges for deceptive conduct can be brought. The provisions of the Customs Act dealing with classification, levy of duties and appraisal of transaction value simply do not relate to the essence of the charges on which the appellant was convicted, namely, making false statements and committing evasion under the Customs Act.

5The trial judge found that the appellant had taken elaborate steps to organize separate shipments in order to deceive customs officials as to what was being imported and that [page174] he made false statements to customs officials that parts in the second shipment were meant for his own vehicle. There was ample evidence to support those findings.

6In our view, there is no merit to the application for leave to appeal, which we dismiss.