R. v. Belliveau (B.E.) and Losier (C.C.), (1985) 61 N.B.R.(2d) 223 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 10, 1985
• Jurisdiction: New Brunswick
• Citations: (1985), 61 N.B.R.(2d) 223 (TD)

R. v. Belliveau (B.E.) (1985), 61 N.B.R.(2d) 223 (TD);

    61 R.N.-B.(2e) 223; 158 A.P.R. 223

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R. v. Belliveau and Losier

(F/CR/11/84)

Indexed As: R. v. Belliveau (B.E.) and Losier (C.C.)

Répertorié: R. v. Belliveau (B.E.) and Losier (C.C.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

February 25, 1985.

Summary:

Résumé:

The accused were charged with having possession of cigarettes in a quantity exceeding that prescribed by Regulation 163 of the Tobacco Tax Act, which constituted an offence under s. 2.2(1) of the Act.

The New Brunswick Provincial Court, in a judgment reported (1985), 57 N.B.R.(2d) 286; 148 A.P.R. 286, acquitted the accused. The court held that s. 2.2(1) was inoperable because it was too vague and that ss. 2.2(2) to 2.2(13) and s. 18(2) were either ultra vires or unenforceable. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appeal. The court held that none of the provisions of the Act or the Regulations were vague or uncertain; the tax and prohibition against possession of large quantities were expressed in clear and unambiguous terms and were intra vires the provincial legislature. However, the court held that the search and seizure provisions of ss. 2.2(3) and 2.2(4) of the Act violated the right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights and Freedoms and were therefore of no force and effect pursuant to s. 52 of the Constitution Act. The court held that the evidence obtained pursuant to the search was inadmissible as bringing the administration of justice into disrepute.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure de fined - Sections 2.2(3) and 2.2(4) of the Tobacco Tax Act authorized the search and seizure of tobacco without warrant where there were reasonable and probable grounds to believe that an offence had been committed under the Act - The New Brunswick Court of Queen's Bench, Trial Division, held that ss. 2.2(3) and 2.2(4) violated the right to be secure against unreasonable search and seizure under s. 8 of the Charter of Rights and Freedoms, and were therefore of no force and effect pursuant to s. 52 of the Constitution Act - See paragraphs 24 to 35.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Sections 2.2(3) and 2.2(4) of the Tobacco Tax Act authorized the search and seizure of tobacco without warrant - The New Brunswick Court of Queen's Bench, Trial Division, held that ss. 2.2(3) and 2.2(4) violated s. 8 of the Charter of Rights and Freedoms and were therefore of no force and effect pursuant to s. 52 of the Constitution Act - The court, pursuant to s. 24(2) of the Charter, excluded the evidence obtained by the search, because its admission would bring the administration of justice into disrepute - See paragraphs 36.

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Bring the administration of justice into disrepute - Sections 2.2(3) and 2.2(4) of the Tobacco Tax Act authorized the search and seizure of tobacco without warrant - The New Brunswick Court of Queen's Bench, Trial Division, held that ss. 2.2(3) and 2.2(4) violated s. 8 of the Charter of Rights and Freedoms and were therefore of no force and effect pursuant to s. 52 of the Constitution Act - The court, pursuant to s. 24(2) of the Charter, excluded the evidence obtained by the search, because its admission would bring the administration of justice into disrepute - See paragraph 36.

Sales and Service Taxes - Topic 2288

Tobacco tax - Validity of taxing statute - The New Brunswick Provincial Court held that s. 2.2(1) of the Tobacco Tax Act was inoperable because it was too vague and that ss. 2.2(2) to 2.2(13) and s. 18(2) were either ultra vires or unenforceable - The New Brunswick Court of Queen's Bench, Trial Division, on appeal, held that none of the provisions of the Act or the Regulations were vague or uncertain; the tax and prohibition against possession of large quantities were expressed in clear and unambiguous terms and were intra vires the provincial legislature - The court held that the search and seizure provisions of ss. 2.2(3) and 2.2(4) were of no force and effect, because they violated s. 8 of the Charter of Rights and Freedoms - See paragraphs 18 to 23.

Cases Noticed:

Compania General de Tobacos de Filipinos v. Collector of Internal Revenue (1904), 275 U.S. 87, refd to. [para. 19].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97 (S.C.C.), appld. [para. 26].

R. v. Strongquill (1979), 43 C.C.C.(2d) 232 (Sask. Q.B.), refd to. [para. 39].

R. v. MacDougall (1981), 44 N.S.R.(2d) 447; 83 A.P.R. 447, refd to. [para. 41].

R. v. Wright (1981), 37 N.B.R.(2d) 381; 97 A.P.R. 381, folld. [para. 41].

Statutes Noticed:

Tobacco Tax Act, R.S.N.B. 1973, c. T-7, as amended, sect. 1, sect. 2.2(1), sect. 2.2(2), sect. 2.2(3), sect. 2.2(4), sect. 3, sect. 4, sect. 7, sect. 18(1), sect. 18(2), sect. 22(1) [para. 5].

Tobacco Tax Act Regulations, Reg. 63-163, sect. 6A(1) [para. 6]; sect. 9, sect. 10 [para. 7].

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 25].

Constitution Act, sect. 52 [para. 35].

Authors and Works Noticed:

Carter, A.N., and Drummie, J.H., Trends in New Brunswick Legislation Affecting the Executive and Governmental Agencies (1943), 21 Can. Bar Rev. 810 [para. 21].

Counsel:

J.T. Keith McCormick, for the appellant;

No one for the respondents.

This appeal was heard on January 10, 1985, at Fredericton, New Brunswick, before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on February 25, 1985.