Decisions

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KEN MITIVIER
v.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2004-005

Decision and reasons issued
Wednesday, November 24, 2004

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TABLE OF CONTENTS

• DECISION OF THE TRIBUNAL
• STATEMENT OF REASONS

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IN THE MATTER OF an appeal heard on November 8, 2004, under subsection 67(1) of the Customs Act, R.S.C. 1985 (2d Supp.), c. 1;

AND IN THE MATTER OF a decision of the Commissioner of the Canada Customs and Revenue Agency dated May 3, 2004, with respect to a request for re-determination under subsection 60(4) of the Customs Act.

BETWEEN
KEN MITIVIER	Appellant
AND
THE PRESIDENT OF THE CANADA BORDER SERVICES AGENCY	Respondent

DECISION OF THE TRIBUNAL

The appeal is dismissed.

Pierre Gosselin
Pierre Gosselin
Presiding Member

Hélène Nadeau
Hélène Nadeau
Secretary

Place of Hearing:	Ottawa, Ontario
Date of Hearing:	November 8, 2004
Tribunal Member:	Pierre Gosselin, Presiding Member
Counsel for the Tribunal:	Dominique Laporte
Clerk of the Tribunal:	Margaret Fisher
Parties:	Ken Mitivier, for the appellant
	Elizabeth Kikuchi, for the respondent

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
15th Floor
Ottawa, Ontario
K1A 0G7

Telephone: (613) 993-3595
Fax: (613) 990-2439
E-mail:

STATEMENT OF REASONS

1. This is an appeal pursuant to subsection 67(1) of the Customs Act ¹ from a decision of the Commissioner of the Canada Customs and Revenue Agency (now the Canada Border Services Agency [CBSA]), dated May 3, 2004, under subsection 60(4) of the Act. The Tribunal decided to hold a hearing by way of written submissions in accordance with rule 25 of the Canadian International Trade Tribunal Rules.²

2. The issue in this appeal is whether the device in issue is properly classified under tariff item No. 9898.00.00 of the schedule to the Customs Tariff ³ as a prohibited device, as determined by the CBSA, or should be classified under tariff item No. 9503.90.00 as other toys, as claimed by Mr. Ken Mitivier.

3. Tariff item No. 9898.00.00 reads in part as follows:

9898.00.00 Firearms, prohibited weapons, restricted weapons, prohibited devices, prohibited ammunition and components or parts designed exclusively for use in the manufacture of or assembly into automatic firearms, in this tariff item referred to as prohibited goods . . .

For the purposes of this tariff item,

(b) "automatic firearm", "licence", "prohibited ammunition", "prohibited device", "prohibited firearm", prohibited weapon, restricted firearm and "restricted weapon" have the same meanings as in subsection 84(1) of the Criminal Code.

4. Subsection 84(1) of the Criminal Code ⁴ provides that a "prohibited device" includes, among other things, a replica firearm, which is defined as follows:

"replica firearm" means any device that is designed or intended to exactly resemble, or to resemble with near precision, a firearm, and that itself is not a firearm, but does not include any such device that is designed or intended to exactly resemble, or to resemble with near precision, an antique firearm.

5. The CBSA filed the device in issue as an exhibit, along with a real IMI model Desert Eagle semi-automatic pistol. It also filed a forensic laboratory report prepared by Mr. John Marshall of the Forensic Laboratory Services of the Royal Canadian Mounted Police, in which it was stated that the device in issue, a soft air pistol, was a device designed or intended to resemble with near precision an IMI model Desert Eagle semi-automatic pistol.

6. In order for the device in issue to be properly classified under tariff item No. 9898.00.00, it must meet the three conditions of the definition of "replica firearm" under subsection 84(1) of the Criminal Code: (1) it must be designed or intended to exactly resemble, or to resemble with near precision, a firearm; (2) it must not itself be a firearm;⁵ and (3) it must not be designed or intended to exactly resemble, or to resemble with near precision, an antique firearm.⁶

7. Based on the evidence on the record, and on the visual examination of the device in issue and the real IMI model Desert Eagle semi-automatic pistol, the Tribunal finds that these three conditions are met. The Tribunal is of the opinion that the device in issue is properly classified under tariff item No. 9898.00.00 as a prohibited device.

8. Therefore, the appeal is dismissed.

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1 . R.S.C. 1985 (2d Supp.), c. 1 [Act].

2 . S.O.R./91-499.

3 . S.C. 1997, c. 36.

4 . R.S.C. 1985, c. C-46.

5 . Section 2 of the Criminal Code defines "firearm" as follows:

"firearm" means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

6 . Subsection 84(1) of the Criminal Code defines "antique firearm" as follows:

"antique firearm" means

(a) any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition, or

(b) any firearm that is prescribed to be an antique firearm.