TERRY SHANNON

Decisions

TERRY SHANNON
v.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2006-059

Decision and reasons issued
Wednesday, January 30, 2008

TABLE OF CONTENTS

IN THE MATTER OF an appeal heard on October 31, 2007, 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 President of the Canada Border Services Agency, dated December 19, 2006, with respect to a request for re-determination under subsection 60(4) of the Customs Act.

BETWEEN

 

TERRY SHANNON

Appellant

AND

 

THE PRESIDENT OF THE CANADA BORDER SERVICES AGENCY

Respondent

DECISION

The appeal is dismissed.

Serge Fréchette
Serge Fréchette
Presiding Member

Hélène Nadeau
Hélène Nadeau
Secretary

Place of Hearing:

Ottawa, Ontario

Date of Hearing:

October 31, 2007
   

Tribunal Member:

Serge Fréchette, Presiding Member
   

Counsel for the Tribunal:

Alain Xatruch
   

Research Officer:

Jo-Anne Smith
   

Registrar Officer:

Danielle Lanteigne
   

Parties:

Terry Shannon, for the appellant
 

Claudine Patry, 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

BACKGROUND

1. This is an appeal pursuant to subsection 67(1) of the Customs Act 1 from a decision of the President of the Canada Border Services Agency (CBSA), dated December 19, 2006, under subsection 60(4) of the Act.

2. The issue in this appeal is whether the CBSA properly classified the knife in issue as a prohibited weapon under tariff item No. 9898.00.00 of the schedule to the Customs Tariff.2 The knife in issue is a Kershaw Ken Onion “Spec Bump” (Model 1596) knife, which is manufactured in the United States by Kai USA Ltd. of Tualatin, Oregon.

3. The knife in issue was detained by the CBSA on October 27, 2006, at the time of its importation by mail into Canada. On November 6, 2006, Mr. Terry Shannon requested a review of the CBSA’s determination regarding the admissibility of the knife in issue. On December 19, 2006, the CBSA confirmed that, in its view, the knife in issue was properly classified as a prohibited weapon under tariff item No. 9898.00.00 and was thus prohibited from importation into Canada. On March 7, 2007, Mr. Shannon filed an appeal with the Tribunal.

4. The Tribunal decided to hold a hearing by way of written submissions in accordance with rules 25 and 25.1 of the Canadian International Trade Tribunal Rules.3

5. Subsection 136(1) of the Customs Tariff reads as follows:

The importation of goods of tariff item No. 9897.00.00, 9898.00.00 or 9899.00.00 is prohibited.

L’importation des marchandises des nos tarifaires 9897.00.00, 9898.00.00 ou 9899.00.00 est interdite.

6. Tariff item No. 9898.00.00 reads, in part, as follows:

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 . . . .

Armes à feu, armes prohibées, armes à autorisation restreinte, dispositifs prohibés, munitions prohibées et éléments ou pièces conçus exclusivement pour être utilisés dans la fabrication ou l’assemblage d’armes automatiques, désignés comme « marchandises prohibées » au présent numéro tarifaire, [...]

For the purposes of this tariff item,

Pour l’application du présent numéro tarifaire :

. . . 

[...]

(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 . . . .

b) « arme à autorisation restreinte », « arme à feu à autorisation restreinte », « arme à feu prohibée », « arme automatique », « arme prohibée », « dispositif prohibé », « munitions prohibées » et « permis » s’entendent au sens du paragraphe 84(1) du Code criminel [...]

7. Subsection 84(1) of the Criminal Code 4 defines “prohibited weapon” as follows:

“prohibited weapon” means

(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or

(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;

« arme prohibée »

a) Couteau dont la lame s’ouvre automatiquement par gravité ou force centrifuge ou par pression manuelle sur un bouton, un ressort ou autre dispositif incorporé ou attaché au manche;

b) toute arme — qui n’est pas une arme à feu — désignée comme telle par règlement.

8. The CBSA filed the knife in issue as a physical exhibit. The knife in issue has a black textured-surface handle with a pocket clip and measures 12.5 cm in length when closed. The single-edged black-coloured blade measures 9.2 cm in length and features a recurve on the rear of the blade with a nearly straight section on the front of the blade. The knife incorporates Kershaw’s “Speedsafe” assisted opening system, which is described in the product literature5 as relying on a torsion bar that pressures the knife closed. By pushing forward on the blade’s thumb stud or pulling back on the “Index Open” feature, the blade begins to open against the torsion bar pressure. Partway through the opening, the bar’s torque changes direction and opens the knife the rest of the way.

9. In addition, the CBSA filed an expert report6 prepared by Mr. Kenneth Doyle of the Ottawa Police Service, as well as a DVD recording7 produced by Mr. Doyle which describes and demonstrates the operation of the knife in issue. Mr. Doyle’s qualifications as a weapons expert were not questioned by Mr. Shannon. The Tribunal accepted Mr. Doyle as an expert in prohibited weapons. Mr. Doyle reported that, in his expert opinion, the knife in issue is a prohibited weapon within the meaning of subsection 84(1) of the Criminal Code.

10. Mr. Shannon submitted that the knife in issue is not a prohibited weapon as defined in the Criminal Code because it can only be opened by first overcoming the torsion bar’s resistance which holds the blade in a closed position. In his view, this suggests that the blade cannot be opened by centrifugal force. Mr. Shannon also submitted that identical knives are available for sale in stores in Canada. He argued that the public availability of the knife in issue in Canada is proof that the CBSA has made a determination that the knife does not fall under tariff item No. 9898.00.00. Mr. Shannon also argued that the return option offered by the CBSA (i.e. the option to return or export the goods back to the sender) is not readily available due to difficulties in obtaining specific information from the CBSA regarding the process to be followed and that, in the event the appeal is dismissed, the Tribunal should order the CBSA to make the return option readily available to him and others who are in a similar position.

11. The CBSA submitted that the knife in issue is a prohibited weapon within the meaning of subsection 84(1) of the Criminal Code because it has a blade that opens automatically by centrifugal force through a flick of the wrist. The CBSA argued that the knife in issue opens in an identical manner as the knife in issue in the Tribunal’s decision in Wayne Ericksen v. Commissioner of the Canada Customs and Revenue Agency 8 where it was found that the knife was properly classified under tariff item No. 9898.00.00. The CBSA also submitted that, while the knife in issue can be opened by pushing on the thumb stud or pulling back on the “Index Open” feature (i.e. the release lever), this does not negate the fact that it can also be opened in one flicking motion, through the application of centrifugal force. Regarding Mr. Shannon’s argument to the effect that identical knives are available for sale in stores in Canada, the CBSA referred to the Tribunal’s decision in Ericksen where it was held that this submission did not constitute a basis upon which the Tribunal could classify goods.

ANALYSIS

12. In order to determine whether the knife in issue is properly classified under tariff item No. 9898.00.00, the Tribunal must determine if it meets the definition of “prohibited weapon” under subsection 84(1) of the Criminal Code. To be considered prohibited, a weapon must either be (1) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or (2) any weapon, other than a firearm, that is prescribed to be a prohibited weapon.

13. Based on a careful examination of the evidence, the Tribunal is convinced that the knife in issue is a knife with a blade that opens automatically by centrifugal force. Indeed, the demonstration and narration given by Mr. Doyle in the DVD recording confirmed that, when held in the hand, a simple and brisk outwardly flick of the wrist releases the blade from the handle into the fully ejected and locked position, making the knife in issue ready for use. Moreover, Mr. Doyle’s demonstration and the Tribunal’s own examination of the knife in issue made it abundantly clear that the torsion bar’s initial resistance, which serves to hold the blade in a closed position, could be overcome with a quick flick of the wrist. The Tribunal is of the view that this action is automatic and accomplished through the use of what is commonly known as centrifugal force, thereby meeting the definition of “prohibited weapon” under subsection 84(1) of the Criminal Code.

14. Accordingly, the Tribunal finds that the knife in issue is properly classified as a prohibited weapon under tariff item No. 9898.00.00 and, as such, is prohibited from importation into Canada under subsection 136(1) of the Customs Tariff.

15. With respect to the argument that identical knives are available for sale in stores in Canada, the Tribunal refers to its decisions in Ericksen and Romain L. Klaasen v. President of the Canada Border Services Agency 9 where the Tribunal stated that it is “. . . not a court of equity and must apply the law as it is . . .”10 and that “. . . any previous shipments . . . not intercepted by the CBSA or its predecessors is irrelevant. The administrative action, or inaction, of the CBSA cannot change the law . . . .”11

16. The other argument raised by Mr. Shannon centred upon the disposal of the knife in issue. As previously stated in Catherine Roozen v. Deputy M.N.R. 12 and Charles Leung v. Deputy M.N.R.,13 the Tribunal does not have the jurisdiction to deal with the question of the disposal of the goods. Should Mr. Shannon wish to pursue this issue, it is a matter to be dealt with by the CBSA or the courts.

DECISION

17. For the foregoing reasons, the appeal is dismissed.

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

2 . S.C. 1997, c. 36.

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

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

5 . Respondent’s brief, Tabs 2, 11; appellant’s reply brief, attachment.

6 . Tribunal Exhibit AP-2006-059-14A.

7 . Tribunal Exhibit AP-2006-059-14B.

8 . (3 January 2002), AP-2000-059 (CITT) [Ericksen].

9 . (18 October 2005), AP-2004-007 (CITT) [Klaasen].

10 . Ericksen at 3.

11 . Klaasen at 2.

12 . (1 March 1999), AP-96-057 (CITT).

13 . (27 February 2002), AP-99-080 (CITT).