Excise Act (R.S.C., 1985, c. E-14)

Marginal note:Search warrant

74 Any justice of the peace may grant to any collector or other officer, or any person acting under or by direction of a collector, on affidavit made before him, stating reasonable grounds to the satisfaction of the justice for the issuing thereof, a search warrant under which the collector, officer or person may, at any hour between sunrise and sunset, enter into and search any house, building or place mentioned in the search warrant as being one in which it has been made to appear by affidavit that there is reasonable cause to suppose that an unlicensed still, worm, mash-tub, cooler, fermenting-tun, press, cutting-knife, mill or other vessel or implement is unlawfully in use or possession, or in respect of which the provisions of this Act are otherwise contravened.

Marginal note:Arrest without warrant

75 Any officer or person having the powers of an officer of excise may arrest without warrant any one found committing any offence declared by this Act to be an indictable offence, or declared by the Criminal Code to be an indictable offence, whenever that offence arises out of or is connected with the performance of duties in the administration of this Act.

Marginal note:Storage of goods seized

76 Any article or commodity seized as forfeited under this Act or any Act relating to excise may, at the option of the seizing officer, be kept or stored in the building or place where it was seized until it is condemned or ordered to be restored to any claimant, and as long as the article or commodity is under seizure, the building or place in which it is so kept or stored shall be held to be in the sole custody of the officer, or other person appointed for that purpose by the seizing officer or by any superior officer, or the article or commodity may, by direction of the seizing officer or superior officer, be removed to be kept in any other place.

Marginal note:Collector or officer may examine on oath

77 Where any person does, or permits to be done, anything in or about any premises subject to excise that, in the opinion of any officer, is intended or likely to mislead the officer in the discharge of his duty, or to prevent him from ascertaining the true quantity of the products of the business therein carried on, that person or any other person who is supposed to have any knowledge of the facts may be examined on oath by any collector or other superior officer.

78 [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 190]

Marginal note:Others to assist officers

79 All justices of the peace, mayors, bailiffs, constables, all persons serving under Her Majesty by commission, warrant or otherwise and all other persons whomever shall aid and assist, and they are hereby respectively required to aid and assist, every officer in the due execution of any act or thing authorized, required or enjoined by this Act or any other Act.

80 and 81 [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 190]

Protection of Officers

Marginal note:Action against officers

• 82 (1) No writ shall be issued against, nor any process served on, any officer for any thing done or purporting to be done, in the exercise of his duty as an officer until one month after notice in writing has been served on him, in which notice shall be clearly and explicitly stated the cause of action, the name and place of residence of the person who intends to bring the action and the name of his attorney, solicitor or agent.

• Marginal note:Evidence

  (2) No evidence of any cause of action shall be produced except of such cause of action as is contained in the notice referred to in subsection (1), and no verdict or judgment shall be given for the plaintiff, unless he proves on the trial that the notice was given, in default of which proof the defendant is entitled to a verdict or judgment and costs.

Marginal note:Limitation of time for action

• 83 (1) Every action referred to in subsection 82(1) shall be brought within three months after the cause thereof arose and shall be laid and tried in the place or district where the acts complained of were committed.

• Marginal note:Defendant’s plea

  (2) The defendant may plead the general issue and give the special matter in evidence.

• Marginal note:Costs

  (3) If the plaintiff in an action is non-suited or discontinues the action, or if, on demurrer or otherwise, judgment is given against the plaintiff, the defendant shall recover costs and have such remedy for the costs as any defendant has in other cases where costs are given.

Marginal note:Officer may tender amends

84 Any officer or person against whom any action is brought under this Act on account of anything done, or purporting to be done, under the authority of this Act, may, within one month after the notice referred to in subsection 82(1) has been served, tender amends to the person complaining or his agent and plead the tender in bar or answer to the action, together with other pleas or defences, and if the court or jury, as the case may be, finds the amends sufficient, a judgment or verdict shall be given for the defendant, and in that case, or if the plaintiff is non-suited or discontinues his action, or judgment is given for the defendant on demurrer or otherwise, the defendant is entitled to the like costs as he would have been entitled to in case he had pleaded the general issue only, but the defendant may, by leave of the court in which the action is brought, at any time before issue is joined, pay money into court as in other actions.

Marginal note:If defendants acted on probable cause

85 If, in any action under this Act, the court or judge before whom the action is tried certifies that the defendant or defendants in the action acted on probable cause, the plaintiff in the action is not entitled to more than twenty cents damages or to any costs of suit.

Marginal note:Probable cause in actions to enforce seizures

• 86 (1) Where any information or suit is brought to trial or determined on account of any seizure or entry made under this Act and a verdict is found or decision or judgment is given for the claimant, and the court or judge before whom the cause has been tried certifies that there was probable cause for the seizure or entry, the claimant is not entitled to any costs of suit nor is the person who made the seizure or entry liable to any action, indictment or other suit or prosecution on account of the seizure or entry.

• Marginal note:Probable cause in proceedings against seizing officer

  (2) Where any action, indictment or other suit or prosecution is brought to trial against any person on account of the seizure or entry referred to in subsection (1), in which a verdict or judgment is given against the defendant, the plaintiff, if probable cause is certified, besides the thing seized, if a seizure, or the value thereof, is not entitled to more than twenty cents damages or to any costs of suit, nor shall the defendant in the prosecution in that case be fined more than ten cents.

Offences and Punishment

Marginal note:Not posting licence

87 Every manufacturer who neglects or refuses to keep his licence posted up in a conspicuous place in his manufactory shall incur a fine not exceeding fifty dollars for the first offence and one hundred dollars for each subsequent offence.

Marginal note:Goods and apparatus forfeited if no licence

• 88 (1) Any of the following things, namely,

  • (a) all grain, malt, raw tobacco and other material in stock,

  • (b) all engines, machinery, utensils, worms, stills, mash-tubs, fermenting-tuns, tobacco presses or knives,

  • (c) all tools or materials suitable for the making of stills, worms, rectifying or similar apparatus, and

  • (d) all spirits, malt, beer, tobacco, cigars and other manufactured articles,

  that are at any time found in any place or premises where anything is being done that is subject to excise, and for which a licence is required under this Act, but in respect of which no licence has been issued, shall be seized by any officer having a knowledge thereof and be forfeited to the Crown, and may either be destroyed when and where found or removed to a place for safe-keeping, in the discretion of the seizing officer.

• Marginal note:Horses, vehicles, etc.

  (2) All horses, vehicles, vessels and other appliances that have been or are being used for the purpose of transporting in contravention of this Act or the regulations, or in or on which are found any goods subject to excise, or any materials or apparatus used or to be used in contravention of this Act or the regulations in the production of any goods subject to excise and all such goods, materials or apparatus may likewise be seized as forfeited by the seizing officer and may be dealt with in the manner described in subsection (1).

Marginal note:Notification of seizure

88.1 Where an officer has evidence that a person may be entitled to make an application under subsection 88.2(1) in respect of a horse, vehicle, vessel or other appliance seized as forfeited under this Act, the officer shall take such measures as are reasonable to ensure that notification of the seizure is sent to that person at the person’s last known address.

Marginal note:Person who claims interest in things seized

• 88.2 (1) If a horse, vehicle, vessel or other appliance has been seized as forfeited under this Act, any person, other than the person accused of an offence resulting in the seizure or person in whose possession the horse, vehicle, vessel or other appliance was seized, who claims an interest in the horse, vehicle, vessel or other appliance as owner, mortgagee, hypothecary creditor or holder of a lien or other like interest may, within thirty days after the seizure, apply to any judge of any superior court of a province or to a judge of the Federal Court for an order declaring the claimant’s interest.

• Marginal note:Conditions

  (2) Where, after such notice to the Minister as the judge referred to in subsection (1) may require, it is made to appear to the satisfaction of the judge

  • (a) that the claimant is innocent of any complicity in the offence resulting in the seizure or of any collusion with the offender in relation thereto, and

  • (b) that the claimant exercised all reasonable care in respect of the person permitted to obtain the possession of the horse, vehicle, vessel or other appliance to satisfy the claimant that it was not likely to be used contrary to this Act or, if a mortgagee, hypothecary creditor or holder of a lien or other like interest, that before becoming the mortgagee, hypothecary creditor or holder of the lien or other interest the claimant exercised such care with respect to the mortgagor, hypothecary debtor or person from whom the lien or interest was acquired,

  the claimant is entitled to an order that the claimant’s interest is not affected by the seizure.