Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Stetler et al. v Ontario Flue-Cured Tobacco Growers’ Marketing Board
Stetler et al. v OFCTGMB 2002 ONAFRAAT 15
STATUTE:
Ministry of Agriculture, Food and Rural Affairs Act
HEARING:
April 10, 2002
April 25, 2002
2002-15
NEUTRAL CITATION:
2002 ONAFRAAT 15
Stetler et al. v Ontario Flue-Cured Tobacco Growers’ Marketing Board
IN THE MATTER OF THE FARM PRODUCTS MARKETING ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE, FOOD AND RURAL AFFAIRS ACT.
AND IN THE MATTER OF:
An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Wyatt Stetler, LaSalette, Ontario and 934671 Ontario Limited from a decision of the Ontario Flue-Cured Tobacco Growers’ Marketing Board dated October 23, 2001, in which it found the appellants had participated in unlawful sales of tobacco on at least three occasions and would have sold more; and in which it cancelled the total amount of basic production quota allotted to Mr. Stetler (222,104 pounds) and 934671 Ontario Limited (10,500 pounds).
Before:
Denis O’Connor, Vice Chair; Mary Field, Member; Bill Olson, Member
Appearances:
Norman Peel, counsel to appellants, Wyatt Stetler and 934671 Ontario Ltd.
Barry Bresner, counsel to the respondent, the OFCTGMB
Wyatt Stetler, appellant, also representing 934671 Ontario Ltd.
Gary Godelie, Vice Chair, OFCTGMB, respondent
Dudley Stetler, witness
Ed Ferrara, witness
DECISION OF THE TRIBUNAL
This appeal was heard in Guelph, Ontario on April 10, 2002. Mr. Wyatt Stetler and his company, 934671 Ontario Ltd., appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) from a decision of the Ontario Flue-Cured Tobacco Growers’ Marketing Board (OFCTGMB) by which it found Mr. Stetler and 934671 Ontario Ltd. had participated in illegal sales of tobacco and by which it cancelled the appellants’ basic production quota.
Statutory/Regulatory Context
Section 16 (2) of the Ministry of Agriculture, Food and Rural Affairs Act is as follows:
16(2) Subject to subsections (4) and (5), if a person is aggrieved by an order, direction,
policy, decision or regulation made under the Farm Products Marketing Act by a local board or under the Milk Act by a marketing board, that person may appeal to the Tribunal by filing with the Tribunal and sending to the local board or marketing board written notice of the appeal.
Section 9 of the Board’s General Regulations 1998-1999, made under the Farm Products Marketing Act states:
Marketing
- (1) No person shall buy or offer to buy tobacco from any person other than the local
board or a person to whom the local board has fixed and allotted a
marketing quota.
(2) No person shall buy or offer to buy tobacco in any place other than a tobacco exchange operated by the local board.
(3) No person shall sell, transfer or dispose of tobacco or offer to sell, transfer or dispose of tobacco to any person other than the local board or a licensed buyer at a tobacco exchange operated by the local board.
(4) Except as otherwise expressly provided by the local board no person shall process, pack or package any tobacco that has not been sold through the local board to a licensed buyer at a tobacco exchange operated by the local board.
(5) Without the prior consent in writing of the local board, no person shall ship or transport tobacco to any place other than a tobacco exchange operated by the local board.
Section 21 of the Board’s General Regulations 2001-2002, made under the Farm Products Marketing Act states:
Cancellation or Reduction of Quota
- The local board may cancel or reduce or refuse to increase a basic production quota or a marketing quota where the licensed producer to whom the said quota or quotas have been fixed and allotted has entered into a transaction or a series of transactions that has the effect of circumventing the provisions of these General Regulations or for any other reason that the local board deems proper.
A similar regulation was included in the 1998-1999 Board General Regulations.
Background
The Tribunal was informed that the appellants and the respondent agreed that evidence collected in a crown brief generated as the result of an Excise Tax Act investigation undertaken by the Royal Canadian Mounted Police (RCMP) could be submitted before the OFCTGMB at its hearing into this matter. The Tribunal was informed that all criminal charges against Mr. Wyatt Stetler and 934671 Ontario Ltd. had been stayed and that they would not be reactivated because the time in which they could be reactivated had elapsed.
The Issues
The issues to be determined by the Tribunal are:
Whether or not Mr. Stetler and/or 934671 Ontario Ltd. participated in the illegal sale of tobacco on any of the dates of September 13, 1998, September 20, 1998 and February 4, 1999.
If Mr. Stetler and/or 934671 Ontario Ltd. participated in the illegal sale of tobacco, is the penalty imposed by the OFCTGMB appropriate, and if not, what is the appropriate penalty?
The Evidence
The appellants and the respondent submitted written documents into evidence.
Dudley Stetler, witness
Mr. Dudley Stetler testified that he was the son of Mr. Wyatt Stetler and that he had lived in Norfolk County all his life. He introduced maps of the area, with routes followed by RCMP officers during surveillance of a cube van, marked on the maps. He explained he had driven the routes and prepared the map himself, based on a summary of evidence prepared by Mr. Norman Peel.
Mr. Dudley Stetler informed the Tribunal:
The Stetler farm was accessible from the south from Windham Road #9 via a laneway and from the north from Regional Road #9, via a field and a farm lane.
The farm was approximately 100 acres and buildings were located in the southern part of the farm. The buildings cannot be seen from Regional Road #9.
An abandoned railway ran east-to-west through the northern part of the Stetler farm. The railway had not been used for at least five years and one set of tracks had been removed.
A laneway on the abandoned part of the railway line (railway lane) ran adjacent to the remaining tracks and was accessible from several farms in the area. Several farms also had access to Regional Road #9 via farm lanes.
A cube van which RCMP officers observed entering the Stetler farm could have driven to several other farms, including farms owned by Mr. Devos, a tobacco grower who had admitted to illegal shipments of tobacco.
One of the Devos farms was located approximately 2 miles from the Stetler farm; another was located approximately 5 miles from the Stetler farm.
There were easier ways to access the Devos farm than using the railway lane.
The railway lane was not maintained, not ploughed in the winter and not lit.
He had driven on the railway lane in various vehicles. He had driven on the railway lane in winter.
He lived east of the Stetler farm in 1998-99. He believed his sister Ms. Lori Stetler was living on the Stetler farm at the time of the RCMP investigation. His father lived on the farm part of the time and in Delhi part of the time. His mother, Mrs. Janet Stetler, lived with Mr. Ronald Couke at the time.
He considered his father to be a ‘hands on’ farmer.
Wyatt Stetler, appellant
Mr. Wyatt Stetler told the Tribunal that his family had farmed in Norfolk County for at least five generations and that he had grown tobacco all his life. He told the Tribunal he had not illegally sold tobacco to Mr. Ronald Couke or anyone else on the three dates in question or at any other time.
Mr. Wyatt Stetler also testified:
He lived in Delhi most of the time in 1998-99 but came to his farm in the daytime to work. He occasionally was at the farm in the evening.
He grew tobacco in 1998 under a license from the OFCTGMB. He marketed his crop through the OFCTGMB warehouse and auction. He grew 40 or 45 acres that year. His yield was usually 2,300 – 2,400 pounds per acre.
Tobacco is sold in rounds and each producer is given a date to ship tobacco in each round. He had twelve opportunities to ship tobacco each year; six times under his name and six times under the name of 934671 Ontario Ltd..
He grew his crop and 934671 Ontario Ltd.’s crop together. Tobacco was stored in two buildings on his farm.
The RCMP seized tobacco from his farm in March 1999, during the fifth round. The amount of tobacco seized was roughly equivalent to the amount of tobacco he was still allowed to sell through the OFCTGMB that crop year, provided that he rented in marketing quota to the maximum allowed.
The tobacco seized was in bales, ready to be shipped to the OFCTGMB. He had no hand tied tobacco on his farm at that time.
He understood Mr. Couke was buying hand tied tobacco.
It was not a normal industry practice to hand tie tobacco in Ontario, but it had been done in the past.
His ex-wife Mrs. Janet Stetler owed him $2,000 as a result of a car loan he made to her in 1996.
He referred to this outstanding debt when he spoke of getting his money up front in a conversation with his daughter Ms. Lori Stetler.
He did not have any business relationship with his ex-wife or Mr. Couke in Fall, 1998. He was not on friendly terms with them.
Mrs. Janet Stetler and Mr. Couke had hinted to Ms. Lori Stetler that money could be made by selling tobacco in Quebec. He never spoke directly to Mr. Couke. He did not know how much tobacco he wanted or what price he would pay.
He did not agree to sell tobacco to Mr. Couke or Mrs. Janet Stetler. He did not sell or give away any tobacco.
There were several tobacco growers on his road. Mr. Devos had a farm on his road.
There were no signs of a break-in to his barns. The barns were not always locked.
He never noticed any tobacco missing from his barns, but it was stored in bales and he would not necessarily have noticed if some were missing. He did have some loose tobacco stored in one barn.
He did not know Mr. Marcel Guillimette and had never spoken to him.
He knew nothing about arrangements for shipments of tobacco to Mr. Couke on February 4, 1999 or February 19, 1999.
He did not recollect what shipments he discussed with his daughter in February 1999. He did not recall what he meant when he asked his daughter if she had received any phone calls and did not know what he meant when he said she knew what he meant.
He grew grain as well as tobacco and sometimes had livestock in the winter.
He had shipped tobacco through the OFCTGMB warehouse using another grower’s shipping number. He had heard approximately 25% of growers do this when one has too much tobacco and another does not have enough to fill his quota. He had heard a member of the marketing board had been involved in this type of transaction.
He was not aware that he was not allowed to ship tobacco under another grower’s shipping number. He did not read well and had not had anyone explain all the OFCTGMB regulations to him.
He knew he needed a permit to transport tobacco.
Ed Ferrara, witness
Constable Ed Ferrara testified that he was with the Hamilton-Niagara detachment of the RCMP and that he had been with the RCMP for almost 22 years. He told the Tribunal that his detachment investigated illegal sales of tobacco as result of a request for assistance from the RCMP detachment in Joliette, Quebec. He explained that a cube van with Ontario license plates had been used to transport bales of tobacco to the residence of Mr. Marcel Guillimette in Quebec. He said Mr. Guillimette and others were cutting the tobacco into fine pieces and selling the product in plastic bags and also hand tying the tobacco and selling the tied leaf.
Constable Ferrara told the Tribunal:
His team had traced the license plates of the cube van to a rental agency and determined that it had been rented by Mr. Ronald Couke on several occasions, including dates that it was observed in use in transporting tobacco in Quebec.
Mileage records and the length of time of the rentals were consistent with a return trip to the residence of Mr. Guillimette in Mascouche, Quebec.
His team put the cube van under surveillance on September 13, 1998. The RCMP lost sight of the van at 10:10 p.m. that night. One of his colleagues saw the van turn north off Windham Road #9. Members of the Joliette detachment saw the van in Quebec the next morning and saw 70 bales of tobacco unloaded from the van.
On September 16, 1998, representatives of the OFCTGMB informed his team that the farm in the area in which the van was ‘lost’ belonged to Mr. Wyatt Stetler.
Also, on September 16, 1998 his team discovered the northern entrance to the Stetler farm.
On September 20, 1998 his team observed a cube van being driven from the rental agency to the residence of Mr. Couke. His team saw the van being driven away from the residence but lost sight of it. His team later observed the van driving south on the farm lane that led to the Stetler farm from Regional Road #9 at 11:45 p.m.. The van was seen leaving the Stetler farm through the northern route onto Regional Road #9 on September 21, 1999 at 12:10 a.m.
The total time between the van being sighted on the farm lane driving south and exiting the farm onto Regional Road #9 was 25 minutes.
His team did not see any tobacco loaded.
The van was followed to the residence of Mr. Guillimette by RCMP officers. The RCMP saw 66 bales of tobacco unloaded from the van early in the morning on September 21, 1999.
The RCMP determined there had been numerous calls between a phone at Mr. Couke’s residence and a phone at Mr. Guillimette’s residence; numerous calls between a phone in Mr. Couke’s residence and a phone at Mr. Stetler’s farm; and one phone call from Mr. Stetler’s farm to Mr. Guillimette’s residence. They did not know who made these calls.
On February 4, 1999, his team observed a van leaving the rental agency and entering Mr. Stetler’s farm from the south via the driveway. The van was observed leaving the farm by the same driveway 13 minutes later. The van was driven in tandem with another automobile both entering and exiting the farm.
RCMP officers followed the van to Mr. Guillimette’s residence and saw 85 bales of tobacco removed from the van.
He was the closest officer to the Stetler farm on February 4, 1999. He lost sight of the van after it entered the farm. It took four minutes for him to drive to his observation point and turn his car around. He did not see or hear anything to indicate that tobacco was being loaded. He saw no sign that the house was occupied. There was one outside light on at the farm. It was dark and there were buildings and trees obstructing his view. He did not get out of his car.
On March 12, 1999 the RCMP searched the Stetler farm and seized 29,609 pounds of tobacco. Some loose tobacco was left on the farm. This was hung on large racks stacked almost to the roof of a tall building. A cube van could be driven into the building. There was a forklift in the building.
The RCMP found no sign of tobacco leaves in the van after it was returned to the rental agency.
Gary Godelie, witness
Mr. Gary Godelie told the Tribunal that he was a Vice Chair of the OFCTGMB, had grown tobacco with his father and had been growing tobacco in his own name for 29 years.
Mr. Godelie testified:
It was possible to load a cube van with bales of tobacco in 13 minutes by hand or by using a forklift.
It was not possible to load tobacco in the dark, but lights in a barn may not be visible from outside. A forklift would make noise.
He did not believe it was common for tobacco growers to ship tobacco through the warehouse using another producer’s shipping number. This practice was a violation of OFCTGMB regulations, as was selling tobacco to an unlicensed buyer. The latter offence was more serious.
A grower shipping under another grower’s shipping number would not adversely affect the market. The practice would defeat the purpose of the OFCTGMB’s quota policy and rental policies.
A Quebec resident could buy tobacco through the OFCTGMB by becoming a licensed buyer or buying through a licensed buyer.
His average tobacco yield is 2475 pounds per acre.
Summations
Mr. Peel told the Tribunal that credibility was a critical issue for it to consider. Mr. Peel said Mr. Wyatt Stetler testified before the OFCTGMB and admitted that he helped another tobacco grower by shipping tobacco on his shipping number. He said that while Mr. Wyatt Stetler did violate a board regulation he had been honest about it and he asked the Tribunal not to hold it against him.
Mr. Peel noted that Mr. Dudley Stetler testified that Mr. Devos had a farm on the same road as Mr. Wyatt Stetler, whereas Constable Ferrara said the nearest one he knew of was farther away. Mr. Peel asked the Tribunal not to make a finding that one witness is incorrect.
Mr. Peel submitted that there was no evidence that tobacco was removed from the Stetler farm on September 13, 1998. He pointed out the RCMP were just beginning their investigation and that all the officers saw was a truck turning in the area of the Stetler farm and disappearing. He said it was not fair to conclude the tobacco unloaded from the truck in Quebec came from the Stetler farm. He pointed out that while it was known there was one call to Mr. Guillimette’s residence from the Stetler farm, it may have been placed by Ms. Lori Stetler, who had been discussing illegal tobacco sales. He said there was no evidence that Mr. Wyatt Stetler was involved.
Mr. Peel pointed out that on September 20, 1998, the cube van seen entering and exiting the Stetler farm could have taken the railway lane to another farm. He pointed out that no activity was seen on the Stetler farm that night or on February 4, 1999. Mr. Peel submitted that on balance there was no probability that the loads of tobacco came from the Stetler farm, with Mr. Stetler’s knowledge. He reminded the Tribunal that the amount of tobacco seized from Mr. Stetler was the amount he could legally market. He pointed out there was no hand tied tobacco in the Stetler barns and that wiretap evidence suggested there was a market in Quebec for hand tied tobacco. Mr. Peel submitted the wiretap evidence did not support a finding that tobacco unloaded in Quebec came from the Stetler farm. He said there was no doubt that Ms. Lori Stetler had tried to persuade Mr. Wyatt Stetler to sell tobacco illegally, but that he had declined.
Mr. Peel asked that, if the Tribunal did find that Mr. Stetler was responsible for illegal tobacco sales, that it use compassion and reduce the penalty imposed by the OFCTGMB. He pointed out that Mr. Devos was found to have shipped 13.5 loads of tobacco and was still in business and that penalties given by the Chicken Farmers of Ontario in similar situations were less severe than a total quota kill. He noted that there was no evidence that a huge profit could be made on illegal sales to Quebec. Mr. Peel suggested a quota reduction in the amount of 4 times the volume of tobacco found to have been shipped illegally would be appropriate. He submitted that Mr. Stetler’s business should not be destroyed as a general deterrent for others.
Mr. Bresner suggested the arguments related to the lack of hand tied tobacco in the Stetler barns and the existence of the railway lane were ‘red herrings’. He said there was only one reference to hand tied in the wiretap evidence and that it was unclear what the speaker meant by the comment. He said Constable Ferrara had testified that Mr. Guillimette was hand tying tobacco once it arrived in Quebec. Mr. Bresner suggested there was no motivation for a wrongdoer to drive down the Stetler driveway to reach a dirt path to access another farm that could be reached an easier way. As well, he said that on September 20, 1998 and February 4, 1999 there was only 25 minutes and 13 minutes respectively that the cube van was out of site of RCMP officers. He suggested there was no time to go anywhere but the Stetler farm. Mr. Bresner also said it was not unusual that the officers did not observe signs of tobacco being loaded as the evidence was that the cube van could be driven right into the Stetler barn.
Mr. Bresner told the Tribunal that Mr. Wyatt Stetler was not being altruistic by shipping tobacco under another grower’s shipping number. He said Mr. Stetler would be paid for this. He pointed out the OFCTGMB regulates the sale of tobacco and allows up to 20% of base quota to be rented in to allow for fluctuations in yields. He said unlawful transfers cannot be regulated and a circumvention of the regulatory scheme is not done for noble purposes.
Mr. Bresner said that the wiretap evidence must be read in its entirety. He said it was clear that Mr. Wyatt Stetler sold Mr. Couke tobacco and intended to keep selling him tobacco but ‘stiffed’ him on February 19, 1999 because he wanted to be paid up front. He submitted that Mr. Couke did not know his conversation was being taped and had no reason to lie to Ms. Lori Stetler about a past transaction. He also said it was reasonable that Mr. Couke would be angry with Mr. Stetler if he had ‘stiffed’ him. Mr. Bresner also suggested that Mr. Wyatt Stetler was unnaturally guarded in a telephone conversation with his daughter.
Mr. Bresner told the Tribunal that the OFCTGMB had no doubt that the February 4, 1999 shipment of tobacco was from the Stetler farm and that, on the balance of probabilities, it was likely the source of the tobacco shipped on September 13, 1998 and September 20, 1998. He acknowledged that there were breaks in the continuity of the RCMP surveillance on those dates.
Mr. Bresner said tobacco is unique in that it is the most highly regulated of legal agricultural products. He said it was clear from the OFCTGMB’s General Regulations that the cornerstone of the regulatory system is that tobacco must be sold through the OFCTGMB in accordance with quota allotments. He submitted that private sales of tobacco were unfair to buyers as all buyers did not all have access to that product. He said these private sales were unfair to growers as their quota is devalued by this practice. He submitted that black market tobacco does have value. Mr. Bresner said that on the few occasions when the OFCTGMB has caught growers violating its regulation that tobacco must be sold through the board, it has dealt with them harshly. He said the Tribunal has generally upheld these penalties. He referenced several cases to support this submission. Mr. Bresner said the Devos situation was different as the RCMP had no direct evidence against him, as he had confessed his guilt, and as he had admitted to additional illegal shipments of tobacco that were not known to the RCMP or the OFCTGMB.
Mr. Bresner told the Tribunal that quota is the granting of a privilege and that it is not the property of tobacco growers. He submitted that canceling quota is not taking away a right; rather it is taking away a privilege that has been misused. He said the OFCTGMB must be fair but submitted that it had been fair to Mr. Stetler. He said that the OFCTGMB had found that Mr. Stetler had illegally shipped tobacco on at least three occasions, but that there were probably more if the shipments under other growers’ shipping numbers were considered. He said the OFCTGMB found Mr. Stetler to be defiant and argumentative. Mr. Bresner said the OFCTGMB had considered the need for deterrence, the gravity of the offence, Mr. Stetler’s lack of contrition, Mr. Stetler’s acknowledgement of past infractions and penalties in other cases before determining the penalty. He suggested that consideration should also be given to whether Mr. Stetler could be trusted to abide by the regulations in the future. He suggested that it was unlikely that Mr. Stetler did not understand that he could not sell tobacco to other growers, given his years in the industry. He asked the Tribunal to uphold the OFCTGMB’s penalty. He pointed out that the OFCTGMB had allowed Mr. Stetler to market the tobacco he grew in 2001. Mr. Bresner submitted that it is wrong to have a template for penalties and that it was fairer for each case to be considered individually, taking guidance from the past.
Mr. Peel submitted that it was not fair to say that because there were other cases where the OFCTGMB cancelled all of a grower’s quota that it was fair to do so in this instance. He submitted that the Tribunal should consider the gravity of the offense, the gravity of the grower’s involvement and the impact on the grower. He told the Tribunal that growing tobacco was Mr. Stetler’s life. He said that at worst Mr. Stetler had three loads of illegal tobacco shipments.
Mr. Peel objected to Mr. Bresner’s characterization of some of the evidence as ‘red herrings’. He said it was a fact that there is a route to the Devos farm from the Stetler farm and he reminded the Tribunal that it had heard no evidence as to how far a cube van could be driven in 25 minutes. He also submitted there was no evidence that Mr. Stetler was aware of tobacco being shipped off his farm on February 4, 1999.
The Findings
The Tribunal concluded that the tobacco crops of Mr. Wyatt Stetler and 934671 Ontario Ltd. were grown together on the Stetler farm and that it is not possible to differentiate between the actions of Mr. Stetler and 934671 Ontario Ltd..
The Tribunal finds there is insufficient evidence to determine that, on the balance of probabilities, the source of the tobacco shipment of September 13, 1998 was the Stetler farm.
The Tribunal finds that shipments of tobacco were made from the Stetler farm to the residence of Mr. Guillimette on September 20, 1998 and February 4, 1999. The Tribunal finds that it is credible that the cube van could be loaded in the times it was seen entering and exiting the Stetler farm on these dates. The Tribunal finds Mr. Dudley Stetler to be a credible witness, but finds it is implausible that the cube van would have been driven to any other farm to pick up tobacco on these two dates. The Tribunal finds Constable Ferrara to be a credible witness, despite the discrepancy between his testimony and Mr. Dudley Stetler’s testimony as to the location of the nearest Devos farm. The Tribunal believes it is possible that Constable Ferrara was not aware of the farm described by Mr. Stetler. The Tribunal believes it is possible that the RCMP officers could not see or hear signs of tobacco being loaded from their vantage points, if the cube van was loaded inside the barn. The Tribunal has no doubt that in 13 minutes the cube van was out of sight of the RCMP on the Feb 4, 1999 it was not possible for the cube van to have been driven farther than the Stetler farm.
The issue of Mr. Wyatt Stetler selling tobacco through the OFCTGMB warehouse under other growers’ shipping numbers was not a factor in assessing his credibility. The Tribunal appreciates that he was honest about these activities, which did violate an OFCTGMB regulation. The Tribunal did not find Mr. Stetler’s testimony that his comments recorded by the RCMP with regard to up front money were references to an unpaid car loan to be credible. The Tribunal notes that Mr. Stetler could not recall many other details related to the conversation taped by the RCMP.
The Tribunal accepts the evidence of Constable Ferrara that the tobacco shipped to Quebec was delivered in bales. The Tribunal could not determine whether the bales were comprised of hand tied tobacco, loose tobacco or some combination of both. However, this did not figure in its
tied tobacco, loose tobacco or some combination of both. However, this did no figure in its decision, as the Tribunal could also not determine whether or not Mr. Couke was indicating that tobacco would be hand tied in Ontario in a conversation recorded by the RCMP. The Tribunal finds that, on balance, the wiretap evidence supports the finding that tobacco was shipped to Quebec from the Stetler farm on September 20, 1998 and February 4, 1999.
The wiretap evidence suggests that Mr. Wyatt Stetler was aware that tobacco was being shipped from his farm to Mr. Guillimette. As well, the Tribunal does not believe that it is likely that over 85 bales of tobacco could be removed from the Stetler farm without Mr. Stetler realizing it was missing. It was clear to the Tribunal that Mr. Stetler knew what was going on, even if he did not participate in loading the tobacco himself.
The Tribunal does not consider tobacco to be significantly different from other supply managed agricultural commodities. In general terms, a disregard for regulations related to the control of a supply managed product is not to be condoned. The Tribunal agrees with the submission of Mr. Bresner that the illegal sale of tobacco is a very serious infraction. The Tribunal finds that Mr. Stetler chose to undertake illegal sales of tobacco and it feels he should have been aware of the consequences given that he has been active in the tobacco industry for many years. The Tribunal feels Mr. Stetler knew he was in a highly regulated industry and as a licensed producer he knew or ought to have known he has responsibility for his crop and the marketing of such and that the penalty must be severe for those breaking the rules. The Tribunal finds the penalties that the OFCTGMB gave Mr. Stetler and 934671 Ontario Ltd. are appropriate and the Tribunal is not inclined to vary them.
Decision and Reasons
After due consideration of the evidence filed and submissions made, the Tribunal decided to deny the appeals of Wyatt Stetler and 934671 Ontario Ltd.. The reasons for this decision are:
The Tribunal finds that the evidence supported a finding that tobacco was shipped from the Stetler farm to Mr. Guillimette on two occasions and that Mr. Stetler was aware of these shipments.
The penalty assessed by the OFCTGMB is appropriate given the severity of the infraction and is consistent with penalties assessed for similar infractions in the past.
Dated at Toronto, Ontario the 25th day of April, 2002.