R. v. Charles (B.A.) et al., 2005 SKCA 59

• Judge: Vancise, Gerwing and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 02, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKCA 59;(2005), 262 Sask.R. 239 (CA)

R. v. Charles (B.A.) (2005), 262 Sask.R. 239 (CA);

    347 W.A.C. 239

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MY.029

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) Her Majesty The Queen, as represented by the Attorney General of Canada (respondent)

(795; 2005 SKCA 59)

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

Saskatchewan Court of Appeal

Vancise, Gerwing and Sherstobitoff, JJ.A.

May 2, 2005.

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, in a judgment reported (2004), 245 Sask.R. 35, 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. The accused sought leave to appeal on a question of law (Criminal Code, s. 839). The issues raised were (1) whether s. 3 of the Regulations and s. 95(1) of the Act required an exporter to present an export licence to a customs officer when reporting the export of goods in writing and whether the Minister was entitled to set out in a ministerial memorandum the requirements that an exporter must present a licence issued under the Regulations; (2) whether the defence of officially induced error was available; and (3) whether customs officials had a right to seize the vehicles.

The Saskatchewan Court of Appeal allowed the appeal in part. None of the accused were required to produce an export licence to comply with s. 3 of the Regulations. The group of accused who attempted to offer documentation to customs officials (other than a licence) complied with s. 3 of the Regulations and the Act. They were entitled to rely on the defence of officially induced error, as customs officials refused to accept anything but export licences, which they had no authority to demand. Since this group did not fail to report, as required, there were no grounds to seize their vehicles. This group of accused had their convictions set aside. The second group of accused, who either did not produce documentation or were not asked to do so (customs officials interested only in whether they had export licences) were entitled to a new trial to determine whether they also could rely on the defence of officially induced error. A new trial was also ordered respecting the vehicle seizures, as those convictions would also be set aside if officially induced error were established.

Criminal Law - Topic 212

General principles - Common law defences - Officially induced error of law - The Saskatchewan Court of Appeal stated that an accused pleading officially induced error must establish "1. The accused must have considered the legal consequences of his/her actions; 2. The advice given came from an appropriate official; 3. The advice received must be reasonable; 4. The advice must have been erroneous; 5. The accused must have relied on the official advice." - See paragraph 69.

Criminal Law - Topic 212

General principles - Common law defences - Officially induced error of law - Farmers were convicted of failing to report in writing goods prior to export (Reporting of Exported Goods Regulations, s. 3) and wilfully evading compliance with the Customs Act (removal of seized vehicles) - The offences followed from the illegal exportation of wheat to the U.S. as part of a massive protest against the Canadian Wheat Board - Customs officials demanded export licences only, which none of the accused possessed or produced - One group of farmers attempted to provide other documentation to comply with s. 3, but customs officials refused to accept the documents because they mistakenly believed that the farmers were required to produce export licences and officials refused to accept any other documents as satisfying the reporting requirements - The second group of farmers offered no documents - The Saskatchewan Court of Appeal held that the first group were entitled to rely on the defence of officially induced error - This group did not fail to report where they were misled by officials to believe that only export licences need be provided - There were no grounds to seize their vehicles - This group had their convictions set aside - The second group of farmers, who either did not produce documentation or were not asked to do so, were entitled to a new trial to determine whether they also could rely on the defence of officially induced error - See paragraphs 67 to 96.

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 by way of ministerial memorandum, 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 - The Saskatchewan Court of Appeal held that s. 3 and s. 95(4) of the Customs Act required an exporter to report in writing to customs officials in the prescribed form containing the prescribed information - Exporters were not required to produce an export licence - To hold otherwise would render s. 5 of the Regulations redundant - Section 95(4), which permitted the Minister to authorize the form and information on forms where goods were required to be reported in writing, did not authorize the Minister to require the production of licences or permits which were required to be produced under the Customs Act or any other Act - A Ministerial memorandum requiring production of a licence had no legal force and effect - The Minister was not delegated or granted authority to request documents outside the purview of s. 95(4) - The accused who offered documentation other than an export licence (which was all the officials would accept), were entitled to rely on the defence of officially induced error and met the reporting requirements of s. 3 - The accused who offered no documents were entitled to a new trial to determine whether they also were entitled to the defence of officially induced error - See paragraphs 23 to 66.

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. 19, footnote 9].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 25, footnote 10].

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285, refd to. [para. 26, footnote 12].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 34, footnote 14].

R. v. Duffy - see R. v. Harrison (G.A.) et al.

R. v. Harrison (G.A.) et al. (2001), 293 A.R. 142; 257 W.A.C. 142; 156 C.C.C.(3d) 386 (C.A.), dist. [para. 44].

R. v. Charles (B.A.) et al. (2004), 245 Sask.R. 35 (Q.B.), refd to. [para. 49, footnote 17].

R. v. Sawatzky (D.), [1996] M.J. No. 273 (Prov. Ct.), affd. (1997), 117 Man.R.(2d) 198 (Q.B.), refd to. [para. 55, footnote 18].

Michelin Tires Manufacturing (Canada) Ltd., Re (1976), 15 N.S.R.(2d) 150; 14 A.P.R. 150 (C.A.), refd to. [para. 62, footnote 20].

Kearns and McMurchy Inc. v. Canada et al. (2003), 236 F.T.R. 279; 2003 FCT 814 (Protho.), refd to. [para. 62, footnote 21].

R. v. Jorgensen (R.) et al., [1995] 4 S.C.R. 55; 189 N.R. 1; 87 O.A.C. 1, refd to. [para. 67, footnote 22].

R. v. Cancoil Thermal Corp. and Parkinson (1986), 14 O.A.C. 225; 52 C.R.(3d) 188 (C.A.), refd to. [para. 67, footnote 23].

Maitland Valley Conservation Authority v. Cranbrook Swine Inc. et al., [2003] O.A.C. Uned. 227; 225 D.L.R.(4th) 255 (C.A.), refd to. [para. 70, footnote 26].

R. v. Charles (B.A.) et al. (1999), 186 Sask.R. 1 (Prov. Ct.), refd to. [para. 71, footnote 27].

Statutes Noticed:

Canada Wheat Board Act, R.S.C. 1985, c. C-24, sect. 95(1), sect. 95(4) [para. 30].

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 2(1)(a), sect. 2(1)(b) [para. 35].

Customs Act Regulations (Can.), Reporting of Exported Goods Regulations, SOR/86-1001, sect. 3, sect. 5 [para. 31].

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

Counsel:

Andrew Mason, for the appellants, Rupcich, Skoretz, Sakundiak, Carpenter, Ziola, Wallin, D. Fedirko, R. Fedirko, Domeij and Mizu;

Norman Calhoun, Mark Melle, John King, Arthur Mainil, Boyd Charles, Orlin Hector and Wendy Raynard, on their own behalf;

Horst Dahlem, Q.C., for the respondent.

This appeal was heard on December 13, 2004, before Vancise, Gerwing and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal.

On May 2, 2005, Vancise, J.A., delivered the following judgment for the Court of Appeal.