Date: 19971115
Docket: T-2057-95
Winnipeg, Manitoba, Monday, this 15th day of December, 1997
PRESENT: THE HONOURABLE MR. JUSTICE ROTHSTEIN
BETWEEN:
IN THE MATTER pursuant to section 88(2) of the Excise Act,
R.S.C. 1985, c. E-14
- and -
IN THE MATTER of a 1991 Chevrolet Lumina bearing vehicle
identification number 2G1WL51T9M9156680 with a Manitoba
licence plate number 631 AGG.
JUDGMENT
UPON hearing the evidence of the plaintiff, Albert Bardarson, by way of three witnesses, and upon hearing the evidence of the defendant, Her Majesty the Queen, by way of four witnesses;
This Court doth order and adjudge that the 1991 Chevrolet Lumina bearing vehicle identification number 2G1WL51T9M9156680 with Manitoba licence plate number 631 AGG is condemned and forfeited to Her Majesty the Queen, and that the plaintiff will pay to the defendant $500.00 in costs.
"Marshall E. Rothstein"
Judge
Date: 19971216
Docket: T-2057-95
BETWEEN:
IN THE MATTER PURSUANT TO s.88(2) of the Excise Act,
R.S.C. 1985, c.E14
- and -
IN THE MATTER of a 1991 Chevrolet Lumina bearing vehicle
identification number 2G1WL51T9M9156680 with a Manitoba
licence plate number 631 AGG.
Heard at Winnipeg, Manitoba, December 15, 1997
Judgment delivered at Winnipeg, Manitoba, December 16, 1997
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.
Date: 19971216
Docket: T-2057-95
BETWEEN:
| IN THE MATTER PURSUANT TO s.88(2) of the Excise Act, |
R.S.C. 1985, c.E14
- and -
IN THE MATTER of a 1991 Chevrolet Lumina bearing vehicle
identification number 2G1WL51T9M9156680 with a Manitoba
licence plate number 631 AGG.
REASONS FOR JUDGMENT
ROTHSTEIN, J.
[1] This is an application that a 1991 Chevrolet Lumina automobile not be condemned for seizure under subsection 88(2) of the Excise Act. The relevant portions of section 88 are as follows:
| 88(1) Any of the following things, namely, |
| (a) . . . new tobacco. . . |
| . . . |
| (d) . . . tobacco. . . |
| that are at any time found in any place or premises where anything is being done that is subject to excise, and for which a licence is required under this Act, but in respect of which no licence has been issued, shall be seized by any officer having a knowledge thereof and be forfeited to the Crown . . . |
| 88(2) All . . vehicles . . that have been or are being used for the purpose of transporting in contravention of this Act or the regulations, or in or on which are found any goods subject to excise, . . . may likewise be seized as forfeited by the seizing officer and may be dealt with in the manner described in |
| subsection (1). |
[2] The only question is whether the applicant's vehicle was involved in the transportation of unlicenced tobacco. The applicant does not dispute that he was arrested carrying garbage bags of unlicenced tobacco near his automobile. However, the applicant says that the vehicle was not involved in the transporting of the tobacco. He says the tobacco was located against a fence near the parking lot where he parked and that he and his son's girlfriend were merely carrying it from the fence location to the adjacent premises. Shortly after his arrest, the applicant told police that he obtained the contraband tobacco from a native person in St. Vital who had a rusty car. He also admitted saying to his son's girlfriend when they were both arrested that he would "take the rap for it". Later he told a detective that the tobacco belonged to his son, that he just got caught in the middle and that he should never have gotten involved. In court he said the story he gave to the police after he was arrested about obtaining the tobacco in St. Vital from a native with a rusty car was not true.
[3] The applicant admits that he opened the trunk of his car but he said it was not to unload the tobacco. Instead he says he just assumed that his son's girlfriend had something to pick up. It was not the tobacco because when he was caught he was carrying it away from the car and towards the residence. The applicant's story that he was just carrying the tobacco from the fence location near his car to the premises is incongruous. It makes much more sense that the story he gave to the police after he was arrested about obtaining the tobacco in St. Vital is what really happened.
[4] I need go no further. The applicant's story is not credible. I'm satisfied the vehicle in question was used in the transportation of unlicenced tobacco and that it is subject to condemnation under subsection 88(2) of the Excise Act.
[5] The application is dismissed. Her Majesty the Queen is entitled to costs in the sum of $500.00 inclusive of disbursements.
"Marshall E. Rothstein"
Judge
Winnipeg, Manitoba
December 16, 1997
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2057-95
STYLE OF CAUSE: IN THE MATTER PURSUANT TO s.88(2) of the Excise Act, R.S.C. 1985, c.E14
- and -
IN THE MATTER of a 1991 Chevrolet Lumina bearing vehicle identification number 2G1WL51T9M9156680 with a Manitoba licence plate number 631 AGG.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: December 15, 1997
REASONS FOR JUDGMENT
OF THE COURT: ROTHSTEIN J.
DATED: December 16, 1997
APPEARANCES:
Elia C. Arraf for the Plaintiff (Albert Bardarson)
Duncan Fraser for the Defendant
Dept. of Justice
310 - 301 Broadway
Winnipeg, Manitoba
SOLICITORS OF RECORD:
Meighen Haddad & Co. for the Plaintiff (Albert Bardarson)
541 Broadway Avenue
P.O. Box 1300
Killarney, Manitoba
R0K 1G0
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada for the Defendant
FEDERAL COURT OF TRIAL
Date: 19971216
Docket: T-2057-95
BETWEEN:
IN THE MATTER PURSUANT TO s.88(2) of the Excise Act, R.S.C. 1985, c.E14
- and -
IN THE MATTER of a 1991 Chevrolet Lumina bearing vehicle identification number 2G1WL51T9M9156680 with a Manitoba
licence plate number 631 AGG.
REASONS FOR JUDGMENT