R. v. Brooks (J.) et al., 2004 NSCA 21

• Judge: Glube, C.J.N.S., Bateman and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 06, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 21;(2004), 221 N.S.R.(2d) 168 (CA)

R. v. Brooks (J.) (2004), 221 N.S.R.(2d) 168 (CA);

 697 A.P.R. 168

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. FE.042

Jason Brooks and Elson Safatli (appellants) v. Her Majesty The Queen (respondent)

(CAC 205545; 2004 NSCA 21)

Indexed As: R. v. Brooks (J.) et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Bateman and Cromwell, JJ.A.

February 6, 2004.

Summary:

Brooks was convicted under s. 78(3)(a)(ii) of the Revenue Act Regulations for selling more than five cartons of cigarettes to a consumer. Safatli was convicted under s. 40 of the Revenue Act with transporting tobacco without possession of the required documentation. The sentencing judge ordered forfeiture of the cigarettes and fined Brooks $2,000 and Safatli $1,000. The Crown appealed the sentences.

The Nova Scotia Supreme Court, in a judgment reported (2003), 215 N.S.R.(2d) 182; 675 A.P.R. 182, allowed the appeal and imposed the minimum fine of $10,000 on each accused under s. 89(2) of the Act. The accused appealed, submitting that the acts of selling and transporting did not fall under s. 89(2).

The Nova Scotia Court of Appeal allowed the appeal and restored the penalties imposed by the trial judge.

Sales and Service Taxes - Topic 3842

Tobacco tax - Offences and penalties - Contraband, possession, sales, etc. - Brooks was convicted under s. 78(3)(a)(ii) of the Revenue Act Regulations for selling more than five cartons of cigarettes - Safatli was convicted under s. 40 of the Revenue Act with transporting tobacco without possessing the required documentation - When the offences were committed, s. 89(1) of the Act provided a minimum fine of $10,000 - Before sentencing, s. 89 was amended - The accused were entitled to the benefit of any lesser punishment - The new s. 89(2) provided a greater penalty than the old s. 89(1) and applied to offences involving possession, purchase, acquisition or storage of tobacco - If the offences did not fall under s. 89(2), the new s. 89(1) applied (lesser punishment) - The sentencing judge strictly interpreted s. 89(2) to not apply to "selling" and "transporting" - Accordingly, the new s. 89(1) applied and the accused were fined of $2,000 and $1,000 respectively - The summary conviction appeal court interpreted s. 89(2) to include acts of selling and transporting and substituted the minimum fine of $10,000 for both Brooks and Safatli - The Nova Scotia Court of Appeal, applying the maxim expressio unius est exclusio alterius, restored the penalties imposed by the trial judge - The acts of selling and transporting were not included in the wording of s. 89(2).

Statutes - Topic 510

Interpretation - General principles - Strict interpretation - [See Sales and Service Taxes - Topic 3842 ].

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See Sales and Service Taxes - Topic 3842 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 6].

Statutes Noticed:

Revenue Act, S.N.S. 1995-96, c. 17, sect. 89(1), sect. 89(2) [para. 9].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 186 [para. 19]; 189 [para. 20].

Counsel:

Peter Lederman, Q.C., for the appellants;

Kenneth W.F. Fiske, Q.C., for the respondents.

This appeal was heard on January 29, 2004, at Halifax, N.S., before Glube, C.J.N.S., Bateman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On February 6, 2004, Bateman, J.A., delivered the following judgment for the Court of Appeal.