Canada Customs Detentions and Seizures

When goods are detained or prohibited under Canada Customs Tariff 9956, Revenue Canada follow procedures outlined in a document called Memorandum D9-1-1, as revised Sept. 29, 1994. You can obtain a copy of Memorandum D9-1-1 from the Prohibited Importations Directorate, tel. (613) 954-6940, fax (613) 990-8853. Write down these numbers; you will need them.

It is possible to obtain an advance ruling on particular goods from the Prohibited Importations Directorate at (613) 954-7048.

Detentions refer to occasions when goods are detained pending a determination of whether they are admissible. When a shipment is detained, you usually get a Notice of Detention, which is the top half of Form K 27. Often the title, publisher and author are listed incorrectly. The form contains no contact person, border point or return address, so contact Prohibited Importations in Ottawa and ask them where your books are and who is in charge of the case. Note that the regional office of Customs assigns its own running control number for each K 27 issued. Anything questionable or imported for educational, scientific, medical or artistic purpose is supposed to be sent to headquarters in Ottawa for review. Often books are damaged by the inspection process.

Prohibitions. When a shipment is prohibited entry, you are supposed to receive the rest of Form K 27: Part B, the Notice of Determination, which lists the prohibited goods and the reason for prohibition. You have 90 days from the date on the K27B to appeal, but sometimes you don’t receive the K 27 until that period has expired or is almost up, so be prepared to act quickly when you receive it.

Form K 27 gives you three options:

  1. You can have the goods sent back at your expense. This is quite inconvenient, because Canada Post can’t handle illegal goods. You can escort the goods personally or, more likely, have a bonded courier go to the border point and pick them up under Customs supervision. The border point may be distant, and Canada Customs doesn’t go out of its way to make it easy. You have to fill out Form E15.
  2. You can abandon them to Canada Customs.
  3. You can appeal the ruling, first with a Tariff and Values Administrator (TVA) at the customs office or regional office where the goods were imported. To appeal, you fill out Form B 2 (Request for Review, Redetermination or Reappraisal) and file it with a customs office within 90 days of the date of the determination shown on Form K 27B. Form B 2 asks for the “classification number,” which refers to the tariff classification number for the type of goods, not the “control number” on Form K 27 (which refers to the particular shipment). If you don’t know the classification number, call your nearest Canada Customs information line and ask. Instructions for filling in Form B 2 are found in an internal directive, Memorandum D11-6-1, available to importers only on request.

Don’t waste your time researching arcane case law for the benefit of the TVA; there will be time for that if it ever gets to court. Just make your argument sufficiently cogent that someone higher up the ladder will take you seriously.

Naturally, Form K 27 doesn’t say where you can get a B 2, but they’re available from any Canada Customs office, or from the Prohibited Importations Directorate. Form B 2 doesn’t leave much room for the appeal, but you can attach a longer defence as a schedule. It can be in the form of a letter or a legal argument. Oral evidence is not permitted.

Your appeal should address the reasons for classification one by one, rather than simply objecting on principle. Memorandum D9-1-1 and the Criminal Code instruct Canada Customs to consider passages in the context of the nature of the entire work. However, very often inspectors flip to one page and see something distasteful, which by law is not a reason to ban it. If you have read the entire book and are able to assess the passages in the context of character development, psychology etc., you should be able to create a strong defence. Mention if the book has been in the country for x years, if it is freely available in chain bookstores and public libraries, if reviews suggest it has artistic merit, if it is a best-seller or respected scholarly work published by a university press, or is on school or university reading lists etc. Many books are seized out of ignorance.

To appeal the TVA’s decision, file another B 2 within 90 days of the TVA’s decision. You can appeal that decision to the Deputy Minister of National Revenue, then to provincial court and finally to the Federal Court of Canada.

The Prohibited Importations Directorate is supposed to complete redeterminations within four weeks of the importation or two weeks of receiving the goods.

If you are attempting to import goods identical to ones previously prohibited at the deputy-minister level, you may be able to appeal directly to the court.

Of course, during this process your invoice will be payable. And the books may ultimately arrive in unsaleable condition.

Sometimes, Canada Customs tries to charge for storage; $7 per day was one example. We suggest you ignore these requests for money while the appeal is in process. After all, you at no time requested that Customs detain the goods.

Form K 27 is sent to the importer of record. That may be the ultimate consignee, or in the case of consolidated shipments it may be the shipper. In the latter case, the bookstore or other consignee may not know the shipment has been detained or prohibited, because the invoice is often inside the shipment.

Tips:

  • Make a real nuisance of yourself. Keep calling Prohibited Importations. Call the Deputy Minister of Revenue. Write a letter to your MP.
  • Go public. Let local media and the BPC know.
  • Talk to somebody who has been through the process.
  • Get a copy of the book. One problem with appealing is that you may not have read the book and probably don’t have a copy, which makes it hard to write a cogent defence. Often the book is readily available from major bookstore chains or libraries. In other cases, as soon as you get the K 27, order a single copy by regular mail and have it sent to a private home.
  • Always appeal. Doing the initial appeal doesn’t cost anything apart from the cost of having the goods tied up at the border while your invoice is due. You can have a lawyer help you, or do it yourself. Note though that if it gets to the courts, you should probably have a lawyer; if you can’t afford to pay a lawyer for days of work and are reasonably bright, hire one who specializes in this area to coach you for a few hours. Or look for a young lawyer who wants to make a name in this area.
  • Your international mail may be opened. However, if a letter weighs less than 30 g., Customs is supposed to write the addressee requesting permission to open and examine it.

Once you have had one book stopped, expect to have lots and lots of books stopped.