R. v. Maslack (D.), (1999) 139 Man.R.(2d) 304 (QB)

• Jurisdiction: Manitoba
• Court: Court of Queen's Bench of Manitoba (Canada)
• Judge: Kennedy, J.
• Citation: (1999), 139 Man.R.(2d) 304 (QB)
• Date: 21 July 1999

R. v. Maslack (D.) (1999), 139 Man.R.(2d) 304 (QB)

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. JL.034

Her Majesty The Queen v. Darren Maslack and J.M. (respondents)

(CR 97-01-18587)

Her Majesty The Queen v. J.M.

(YO 97001-18673)

Her Majesty The Queen v. Richard Kosmick, Monte Calvin Shoemaker, Orville T. Pickering and Larry Wood

(CR 96-01-17449)

Indexed As: R. v. Maslack (D.)

Manitoba Court of Queen's Bench

Kennedy, J.

July 21, 1999.

Summary:

The accused were convicted of unlawfully being in possession of cigarettes brought from neighbouring provincial jurisdictions. The penalties imposed by the trial judge were less than the penalty prescribed in the Tobacco Tax Act in some cases and in others the penalties were based on reasoning other than the strict application of the Act. The Crown appealed seeking the imposition of the legislated penalty. In other cases, the accused appealed, alleging that the penalties imposed were too harsh given their ability to pay. The appeal raised the issue of the appli­cation of s. 12 of the Charter to the sentenc­ing provisions of the Tobacco Tax Act.

The Manitoba Court of Queen's Bench held that the sentences were not so grossly disproportionate that they attracted the rem­edy of a declaration that the penalties were cruel and unusual under s. 12 of the Charter. In the result, the court allowed the Crown appeals and dismissed the accused's appeals.

Civil Rights - Topic 3836

Cruel and unusual treatment or punishment - What constitutes cruel and unusual pun­ishment - Tax statute penalties - The accused were convicted of unlawfully being in possession of cigarettes brought from neighbouring provincial jurisdictions - The penalties imposed by the trial judge were less than the penalty prescribed in the Tobacco Tax Act in some cases and in others the penalties were based on reason­ing other than the strict application of the Act - The Crown appealed seeking the imposition of the legislated penalty - In other cases, the accused appealed, alleging that the penalties imposed were too harsh given their ability to pay - At issue was the application of s. 12 of the Charter to the sentencing provisions of the Tobacco Tax Act - The Manitoba Court of Queen's Bench held that the sentences were not so grossly disproportionate that they attracted the remedy of a declaration that the pen­alties were cruel and unusual under s. 12 of the Charter.

Sales and Service Taxes - Topic 3841

Tobacco tax - Offences and penalties - General - [See Civil Rights - Topic 3836 ].

Cases Noticed:

R. v. Pickering, [1998] 1 W.W.R. 265 (Man. Prov. Ct.), refd to. [para. 8].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 40 D.L.R.(4th) 435; [1987] 5 W.W.R. 1; 58 C.R.(3d) 193; 15 B.C.L.R.(2d) 273, refd to. [para. 10].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198; 60 C.C.C.(3d) 1, refd to. [para. 11].

R. v. Guiller (1986), 48 C.R.(3d) 266 (Ont. Dist. Ct.), refd to. [para. 12].

R. v. Desjardins (F.) (1996), 182 N.B.R.(2d) 321; 463 A.P.R. 321 (C.A.), refd to. [para. 14].

R. v. Brown (B.B.), [1994] 3 S.C.R. 749; 173 N.R. 317; 97 Man.R.(2d) 169; 79 W.A.C. 169; 93 C.C.C.(3d) 97, refd to. [para. 19].

R. v. Joe (J.A.), [1994] 3 W.W.R. 1; 92 Man.R.(2d) 8; 61 W.A.C. 8 (C.A.), dist. [para. 31].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 12 [para. 7].

Tobacco Tax Act, R.S.M. 1988, c. T-80; C.C.S.M., c. T-80, sect. 26(2), sect. 26(2.1) [para. 6].

Counsel:

K.J. Tyler, for the Crown;

R. Schmalcel, for the respondents.

These appeals were heard before Kennedy, J., of the Manitoba Court of Queen's Bench, who delivered the following judgment on July 21, 1999.