COURT OF APPEAL FOR ONTARIO
LASKIN, ROSENBERG AND GOUDGE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
David M. Gibson for the appellants
Respondent
- and -
DUC TIEN PHAM and PHU LOC NGUYEN
Marie Comiskey for the respondent
Appellants
Heard: April 4, 2002
On appeal from the dismissal of the appeal by Justice Peter G. Jarvis of the Superior Court of Justice dated August 17, 2000.
[1] Section 240 of the Excise Act, R.S.C. 1985, c.E-14 (as amended) provides a minimum fine for possession of contraband tobacco. The quantum of the minimum fine is determined by the amount of contraband tobacco possessed.
[2] On December 20, 1999, the appellants were found guilty of possessing 1,200 kilograms of contraband tobacco. They were each sentenced to the minimum fine which the trial judge calculated to be $154,000. On August 17, 2000, the Summary Conviction Appeal Court upheld this sentence.
[3] In this court, the sole issue raised by the appellants is whether the minimum fine provisions of s. 240 of the Excise Act constitute cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms.
[4] For the reasons that follow, I would answer this question in the negative.
[5] I would therefore grant leave to appeal but dismiss the appeal.
THE BACKGROUND
[6] On February 12, 1998, the appellants were driving a rented cube van near Kenora, Ontario on their way from Montreal to Vancouver. They were stopped by the Ontario Provincial Police who searched the vehicle and discovered that their cargo was 1,200 kilograms of fine manufactured tobacco. It was contained in 50 identical unmarked cardboard boxes, each containing 120 plastic bags holding 200 grams of the tobacco. None of the tobacco had excise stampage, in violation of the provisions of the Excise Act.
[7] While the trial judge made no explicit findings about the appellants’ actual roles or involvement in the illegal smuggling operation, the parties filed an agreed statement of facts in this court drawn from the appellants’ evidence regarding the offence. That statement described the appellants’ involvement in these terms:
While working at his family’s restaurant, the appellant Pham, made the acquaintance of a regular customer, whom he knew only as Danny. Pham knew that Danny was a businessman who did not seem to work but, nonetheless, had a great deal of money. Danny asked Pham to drive a cube van filled with illegal tobacco from Montreal to Vancouver. In return, Danny agreed to pay all expenses related to the trip. Danny told Pham to tell people that he was simply going on vacation.
Danny instructed Pham to rent a Ryder truck to carry the contraband. To this end, Pham used his credit card to rent a van. Pham also purchased 60 cartons that would ultimately contain the illegal tobacco.
Danny also instructed Pham to purchase a cellular phone. Danny told Pham that someone would call Pham on his cellular phone once he reached Kamloops B.C., although Pham was not himself required to let anyone know that he had reached this destination.
Pham asked his best friend, the appellant Nguyen, to accompany him on his cross-country trip. Nguyen testified that he became aware that they would be transporting illegal tobacco two or three days before they departed Montreal.
7 . Before leaving Montreal, Pham gave over the van along with the empty boxes to Danny. Danny then returned the van with the boxes having been filled with illegal tobacco. Pham and Nguyen then left Montreal for Vancouver.
- [8] The appellants were charged under s. 240(1) of the Excise Act, which inter alia creates the offence of the possession of contraband manufactured tobacco. Where the offence is punishable on summary conviction, the section sets a minimum fine, namely the greater of $500 or $0.11 multiplied by the number of grams of manufactured tobacco possessed. In its relevant part, the section reads as follows:
- (1) Subject to subsections (2) and (3), every person who sells or offers for sale or has in the person’s possession any manufactured tobacco or cigars, whether manufactured in or imported into Canada, not put up in packages and stamped with tobacco stamps or cigar stamps in accordance with this Act and the departmental regulations,
(b) is guilty of an offence punishable on summary conviction and liable to
(i) a fine of not less than the amount determined under subsection (1.1) and not more than the lesser of $500,000 and the amount determined under subsection (1.2), or
(ii) both the fine described in subparagraph (i) and imprisonment for a term not exceeding two years.
(1.1) The amount determined under this subsection for an offence under subsection (1) in relation to manufactured tobacco or cigars is the greater of
(a) the total of
(iii) $0.11 multiplied by the number of grams of manufactured tobacco, if any, other than cigarettes or tobacco sticks, to which the offence relates …
[9] The appellants were convicted at trial in the Ontario Court of Justice. In sentencing them, the trial judge dismissed their argument that the minimum fine provisions of s. 240 constitute cruel and unusual punishment. While he found that the circumstances of both appellants made the payment of the minimum fine almost impossible, he concluded that the test of gross disproportionality described in appellate jurisprudence, particularly R. v. McDonald (1998), 1998 13327 (ON CA), 127 C.C.C. (3d) 57 (Ont. C.A.), was simply not met. He then imposed the minimum fine required by s. 240(1). He calculated the fine at $154,000 for each appellant. As the Crown points out, the amounts involved would seem rather to yield a minimum fine of $132,000. The trial judge then went on to allow two years for payment and in default two years in jail.
[10] In the Summary Conviction Appeal Court, the appellants did not challenge their convictions but pressed only the s. 12 argument. Jarvis J. reached the same conclusion as the trial judge, and on much the same basis. Thus the matter reaches this court.
ANALYSIS
[11] In R. v. McDonald, supra, Rosenberg J.A. ably elucidated the analysis used to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter. He set out the core of that analysis in these terms at p. 84:
[68] The test for whether a punishment is cruel and unusual is whether it is grossly disproportionate to what would have been appropriate. The punishment must be so excessive as to outrage standards of decency.
[12] Rosenberg J.A. reiterated the admonition of the Supreme Court of Canada in Steel v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385 at p. 1417 that it will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate as to offend s. 12.
[13] He then went on to outline the factors for the court to consider in assessing whether the punishment is grossly disproportionate, as developed in the two leading cases of R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045 and R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485. These factors include the gravity of the offence, the personal characteristics of the offender, the particular circumstances of the case, whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, whether there exists valid alternatives to the punishment imposed and, to some extent, whether a comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. While each factor need not be considered in every case, they are helpful guidelines in the gross disproportionality assessment that is required.
[14] Three provincial appellate courts have assessed s. 240(1) of the Excise Act against s. 12 of the Charter and found that its minimum fine provisions do not constitute cruel and unusual punishment. See R. v. Zachary, [1996] A.Q. No. 2970 (Que. C.A.); R. v. Desjardins (1996) 1996 4709 (NB CA), 182 N.B.R. (2nd) 321 (N.B. C.A.) and R. v. MacFarlane, 1997 4581 (PE SCAD), [1997] P.E.I.J. No. 116 (P.E.I. C.A.). I agree with their conclusion. In my view, the appellants cannot meet the onus on them of demonstrating that the minimum fine provisions rise to the level of gross disproportionality.
[15] Section 240 of the Excise Act seeks to combat smuggling by prohibiting possession and sale of contraband tobacco. Tobacco smuggling is a serious offence. It damages the legitimate commercial interests of those who sell tobacco on which proper duties have been paid and it results in significant revenue loss to the federal government.
[16] In this case, we have a serious crime with an impressive quantity of contraband. The particular circumstances demonstrate that the appellants were responsible for moving a very large shipment of contraband across the country from one major city to another. They clearly played an important role in a major criminal operation. The fact that one appellant learned of his task just shortly before he undertook it does not significantly diminish his role as a necessary link in the distribution chain.
[17] Nor is the appellants’ apparent inability to pay the fine of much weight in the s. 12 analysis. Indeed in R. v. Desjardins, supra, at p. 338 Bastarache J.A. (as he then was) said that this factor is immaterial to the analysis in light of the obvious illegal profits to be derived from such an operation. Although the fines represent a very substantial financial liability for the appellants, any impact on the s. 12 analysis is attenuated by their right under s. 734.3 of the Criminal Code to apply for an extension of time beyond the two-year period imposed by the trial judge. Moreover, while the term of imprisonment which the trial judge elected to impose in default of payment is not, strictly speaking, a part of a minimum fine provision, s. 734.7 of the Code attenuates its impact as well by permitting a warrant for committal to be issued only where the offender has refused to pay the fine without reasonable excuse.
[18] Thus, given the gravity of the offence, the appellants have shown nothing about their personal characteristics or the particular circumstances of their crime to render the fine required to be imposed grossly disproportionate to what would have been appropriate.
[19] In my view, however, the most important consideration in the s. 12 analysis is the direct connection between the quantity of the illegal substance possessed and the size of the fine. Those who possess larger quantities are clearly players in larger criminal enterprises with larger illegal profits for whom larger minimum fines are rationally founded. The use of this factor, which is both objective and reasonable, to regulate the size of the minimum fine ensures that the punishment will not be grossly disproportionate.
[20] To hypothesize that the accused may be merely the “mules” but not the “brains” of the criminal operation simply suggests not that the minimum fine is grossly disproportionate, but that the brains should receive more than the minimum fine.
[21] In sum, to paraphrase Bastarache J.A. in R. v. Desjardins, supra, at p. 337, Parliament’s decision to try to deter smuggling of contraband tobacco by establishing proportionality between their illegal profits and the amount of the fine imposed is a legislative scheme that is not apt to outrage the public conscience.
[22] I would therefore grant leave and allow the appeal but only to amend the amount of the fines by reducing them to $132,000 in each case. In all other respects the sentences remain as imposed at trial.
Released: July 2, 2002 “JL”
“S.T. Goudge J.A.”
“I agree John Laskin J.A.”
“I agree M. Rosenberg J.A.”
