R. v. Charles (B.A.) et al.,

• Jurisdiction: Saskatchewan
• Judge: Gerein
• Neutral Citation: 2004 SKQB 70
• Date: 26 February 2004
• Subject Matter: CRIMINAL LAW,CUSTOMS
• Court: Court of Queen's Bench of Saskatchewan (Canada)

R. v. Charles (B.A.) (2004), 245 Sask.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. MR.016

Boyd A. Charles, of Stoughton, Saskatchewan, Norman Calhoun, of Lumsden, Saskatchewan, Lyman L. Carpenter, of Wadena, Saskatchewan, Douglas L. Domeij, of Margo, Saskatchewan, Richard A. Fedirko, of Archerwill, Saskatchewan, David J. Fedirko, of Rose Valley, Saskatchewan, Orlin T. Hector, of Estevan, Saskatchewan, John D. King, of Deloraine, Manitoba, Blake P. Kotylak, of Montmarte, Saskatchewan, Dwight A. Lischka, of Lampman, Saskatchewan, Arthur A. Mainil, of Weyburn, Saskatchewan, Stephanie Mainil, of Weyburn, Saskatchewan, Mark R. Melle, of Minton, Saskatchewan, Joey A.S. Mizu, of Foam Lake, Saskatchewan, Devin J. Raynard, of Benson, Saskatchewan, Don Raynard, of Benson, Saskatchewan, Ivan Sakundiak, of Buchanan, Saskatchewan, Robbie D. Shaw, of Estevan, Saskatchewan, Sheldon D.A. Wallin, of Margo, Saskatchewan, Kerry K. Ziola, of Kelvington, Saskatchewan, Donald M. Skoretz, of Buchanan, Saskatchewan, and Gregory P. Rupcich, of Kenaston, Saskatchewan (appellants/accused) v. Her Majesty The Queen, as represented by the Attorney General of Canada (respondent/Crown)

(1999 Q.B.G. Nos. 2507, 3688 to 3696, 3701K to 3701N, 3701Q to 3701X; 2004 SKQB 70)

Indexed As: R. v. Charles (B.A.) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gerein, C.J.Q.B.

February 26, 2004.

Summary:

The accused farmers, in protest of the Canadian Wheat Board's exclusive authority to market their wheat and barley, hauled wheat and barley to the United States and sold it there. None had the required export permits. When the accused re-entered Canada, they were advised by customs officials that their vehicles were seized. The accused did not give up control of their vehicles and drove away. The accused were charged with, inter alia, failing to report in writing goods prior to export and wilfully evading compliance with the Customs Act.

The Saskatchewan Provincial Court, in a judgment reported (1999), 186 Sask.R. 1, found the accused guilty of evading compliance with the Act by failing to place in custody vehicles which had been seized and failing to report in writing goods prior to export. The court held that the Canadian Wheat Board Act was constitutionally valid notwithstanding it created a marketing scheme amounting to a monopoly; that the "buy back" procedure under the Act was not void for vagueness and did not violate s. 7 of the Charter; that the defence of officially induced error did not apply; that the Minister had authority to prescribe the form and information to be provided when reporting goods for export; and that the failure to report goods for export was a strict liability offence. The accused appealed the convictions and the fines imposed. The constitutionality of the marketing scheme was not challenged on appeal. The issues were: (1) whether s. 3 of the Reporting of Exported Goods Regulations required the production of an export licence to customs officials; (2) whether the court erred in admitting certain export evidence; (3) whether the court improperly excluded certain evidence; (4) whether the defence of officially induced error applied; (5) whether the prosecutions were an abuse of process; (6) whether certain admissions by three of the accused were invalid; and (7) whether the vehicle seizures were valid.

The Saskatchewan Court of Queen's Bench dismissed the conviction appeals. The sentence appeals were dismissed with the exception of one accused (tried separately), whose fines were reduced to match those given to the other accused.

Criminal Law - Topic 212

General principles - Common law defences - Officially induced error of law - The accused farmers, convicted of Customs Act offences, relating to the illegal exportation of wheat to the United States as part of a massive protest against the Canadian Wheat Board, pleaded officially induced error because customs officials stood by and permitted them to enter the United States without detaining their goods or vehicles - The Saskatchewan Court of Queen's Bench held that the defence did not apply where there was no erroneous legal opinion by customs officials that was reasonably relied on by the accused - The officials had no legal obligation to stop the accused from entering the United States and their passiveness did not create any defence - See paragraphs 81 to 85.

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - Farmers engaged in a massive protest against the Canadian Wheat Board's exclusive authority to export wheat and barley illegally exported wheat and barley to the United States after first advising customs officials of their intention to do so - Customs officials stood by as the farmers illegally exported the goods - The farmers submitted that subsequent charges under the Customs Act and Regulations were an abuse of process, since they were merely engaged in a peaceful demonstration - The Saskatchewan Court of Queen's Bench held that there was no abuse of process - This was not merely a peaceful demonstration - Each farmer knowingly committed an illegal act - The court stated that "reasonable members of society would expect unlawful conduct to be prosecuted rather than have it cloaked in the mantel of a demonstration" - See paragraphs 86 to 88.

Customs - Topic 3003

Search and seizure - General - Application of search and seizure provisions (Customs Act) - Customs officials advised the accused of the seizure of their vehicles - The accused were given a seizure receipt and their vehicles were affixed with a sticker indicating seizure, but the accused refused to give up the keys and drove away - The accused were charged with wilfully evading compliance with s. 114 of the Customs Act by failing to turn over the seized vehicles - The trial judge found the accused guilty - The accused's erroneous views that they had contravened no laws (protest against Canadian Wheat Board's exclusive authority to export wheat and barley) was not a defence to their deliberate removal of the vehicles - By removing their vehicles the accused were failing to place them in the custody of the seizing officers - The Saskatchewan Court of Queen's Bench affirmed that the accused were guilty of wilfully evading compliance with the Act - See paragraphs 94 to 98.

Customs - Topic 3082

Search and seizure - Seizure - Warrantless seizure - The accused farmer's vehicles were seized when they returned to Canada after illegally exporting wheat and barley to the United States - The accused challenged the validity of the seizure because no force was used to detain the vehicles and they were allowed to take their vehicles - The Saskatchewan Court of Queen's Bench affirmed the validity of the seizures - Each accused, in protest, knowingly violated the Customs Act, making them liable to have their vehicles forfeited - Valid seizures were effected and the accused committed an offence by removing their vehicles - See paragraphs 94 to 98.

Customs - Topic 8066

Offences and penalties - Offences - General - Failure to report goods - The accused farmers, in protest of the Canadian Wheat Board's exclusive authority to market their wheat and barley, hauled wheat and barley to the United States and sold it there - The accused were charged with failing to report goods at the customs office prior to export - The reporting requirements, fixed by the Minister, included the presenting of an export licence - The accused submitted that s. 3 of the Reporting of Exported Goods Regulations did not require the production of an export licence, because (1) s. 3 did not explicitly require an export licence; (2) since no export licences were issued by the Board, the charge was grounded in an impossibility; and (3) the Crown failed to prove that the Board could have legally granted export licences - The Saskatchewan Court of Queen's Bench, in affirming guilt, rejected the submission - See paragraphs 33 to 59.

Customs - Topic 8068

Offences and penalties - Offences - General - Evading compliance with Act - [See Customs - Topic 3003 ].

Cases Noticed:

Archibald et al. v. Canada (1997), 129 F.T.R. 81; 146 D.L.R.(4th) 499 (T.D.), affd. (2000), 257 N.R. 105; 188 D.L.R.(4th) 538 (F.C.A.), refd to. [para. 8].

R. v. Harrison (G.A.) et al. (1998), 218 A.R. 188 (Q.B.), refd to. [para. 30].

R. v. Sawatzky (D.) (1997), 117 Man.R.(2d) 198 (Q.B.), dist. [para. 45].

Wood v. Leadbitter (1845), 13 M. & W. 838, refd to. [para. 48].

R. v. Sommerville, [1974] S.C.R. 387, dist. [para. 65].

R. v. Cancoil Thermal Corp. and Parkinson (1986), 14 O.A.C. 225; 52 O.R.(3d) 188 (C.A.), refd to. [para. 82].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 82].

R. v. Cranbrook Swine Inc. (2003), 170 O.A.C. 346; 225 D.L.R.(4th) 255 (C.A.), refd to. [para. 82].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 100].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 100].

Statutes Noticed:

Canadian Wheat Board Act, R.S.C. 1985, c. C-24, sect. 45 [para. 23]; sect. 46(c), sect. 46(d) [para. 24].

Canadian Wheat Board Act Regulations (Can.), Canadian Wheat Board Regulations, sect. 14 [para. 25].

Canadian Wheat Board Regulations - see Canadian Wheat Board Act Regulations (Can.).

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 2(1) [para. 39]; sect. 95(1), sect. 95(4) [para. 26]; sect. 101 [para. 74]; sect. 110(1) [para. 78].

Customs Act Regulations (Can.), Reporting of Exported Goods Regulations, SOR/86-1001, sect. 3(d) [para. 29].

Reporting of Exported Goods Regulations - see Customs Act Regulations (Can.).

Counsel:

D.G. Findlay, for the appellants, Calhoun, Hector, Kotylak and Melle;

R.S. Yaholnitsky, for the appellant, Melle;

G.D. Dufour, for the appellants, Carpenter, Ziola, Wallin, D. Fedirko, R. Fedirko and Mizu;

The appellants Charles, Domeij, King, Lischka, A. Mainil, S. Mainil, D. Raynard, D. Raynard, Sakundiak, Shaw, Skoretz and Rupcich, appeared on their own behalf;

H.H. Dahlem, Q.C., for the respondent/Crown.

These appeals were heard before Gerein, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 26, 2004.