Court Information
Date: December 13, 2018
Information No.: 1211-998-18-850-00
Ontario Court of Justice
Location: Milton, Ontario
Parties
Her Majesty the Queen
v.
Minh H. Tran
Before the Court
The Honourable Justice D.A. Harris
Thursday, December 13, 2018
Appearances
- L. Muler – Counsel for the Crown
- M. Macchia – Provincial Prosecutor
- D. Trayling – Counsel for the Ministry of Finance
- M. Tran – In Person
Reasons for Sentence
HARRIS, J: (Orally)
Minh Ling Tran pled guilty to possession, purchase or receipt of unmarked cigarettes for purpose of sale, contrary to Section 29(1) of the Tobacco Act. This is a Provincial Offence.
Mr. Tran is before me today to be sentenced. Crown Counsel suggested that the appropriate sentence would be a fine of $29,819.00, plus probation for 15 months. Counsel for Mr. Tran suggested that I impose a suspended sentence and place him on probation for two years.
I find that a suspended sentence is the appropriate sentence here.
Facts
The facts put before me are that on January 30, 2018, Mr. Tran drove from his home in Toronto to the Six Nations Grand River Reserve. Six Nations Police observed certain activity that led them to notify the Ontario Provincial Police, who stopped Mr. Tran's motor vehicle on Highway 403, in Burlington, on his way home.
One hundred and eighty-one thousand (181,000) unmarked cigarettes were seized. Mr. Tran had no permits with respect to these cigarettes.
That is the offence that Mr. Tran pled guilty to. I was also informed and to take into account the fact that the following day Mr. Tran repeated these acts. The only difference is that on this occasion the police seized 139,000 unmarked cigarettes for which he had no permits.
Crown Counsel chose not to proceed with this charge, but I am to take these facts into account in determining the appropriate sentence.
Statutory Framework
I will summarize the effect of the Tobacco Act to simply state that it establishes a minimum fine of $89,959.25 for possession of 181,000 unmarked cigarettes for the purpose of sale. I note that the minimum fine would have been considerably higher had the Crown proceeded with the second charge involving the further 139,000 unmarked cigarettes. There is no maximum fine for this offence. The sentencing provisions also allow imprisonment for up to two years.
Section 59(2) of the Provincial Offences Act provides that, "Although the provision that creates the penalty for an offence prescribes a minimum fine wherein the opinion of the Court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interest of justice, the Court may impose a fine that is less than the minimum or suspend the sentence".
I also note the provisions of Section 72 of the Provincial Offences Act, which established that where a defendant is convicted of an offence in a proceeding commenced by information, and the proceedings before me were commenced by information, I can either suspend the passing of sentence and direct that the defendant comply with conditions prescribed in a probation order, or I can fine the defendant and, in addition, direct that he comply with the conditions prescribed in a probation order.
Background Information
I was provided with certain background information regarding Mr. Tran. He is 57-years-old. He is a Canadian citizen. He arrived in Canada in 1993. He is separated from his spouse. He has a 24-year-old son who attends school in Montreal. He was previously employed, but has become unemployed as a result of the loss of vision in his right eye. This is due to cataracts and possibly glaucoma. He is scheduled to have the cataracts removed. He receives Employment Insurance of $590.00.
He had been sending money to his sister in Vietnam. She became ill last year. She was diagnosed as having cancer. Surgery was performed. She is still receiving radiation.
With respect to the offence, Mr. Tran was a delivery man. He received a small payment for this. He explained that he repeated the act two days in a row because he had committed to two days and was worried that having lost the first load there might be consequences. As it turned out he was right, there are tremendous consequences, just not of the kind he expected.
His finances are meagre. Any wages have been garnished by the Minister of Finance. He was assessed administrative penalties of $161,310.26, representing the taxes that should have been paid on this many cigarettes. As a result, his bank account has been frozen. He cannot even access his EI payments. He has had to move into a cousin's apartment. He does own two vehicles; these are a 2005 Uplander and a 2007 Dodge Caravan. I was not told the values of those vehicles, but I think I can take notice they are not going to cover the $161,000.00 he owes the Government.
I received all of this information through counsel for Mr. Tran. None of it was disputed by Crown Counsel. In fact, Crown Counsel indicated that she was not opposed to a reduction in the fine. She agreed that Section 59 is applicable, but with respect to the need for general and specific deterrence, she suggested that I reduce the fine to an amount equal to the taxes avoided, being $29,819.00, and also place Mr. Tran on probation.
Relevant Case Law
It is just a coincidence, but since the last date when sentencing did not take place, the Ontario Court of Appeal released a decision of Regina v. Henry of Pelham Inc., found at 2018 ONCA 999; [2018] O.J. No. 6434.
I note that at paragraph 39 of that decision, the Court stated: "Minimum fines apply without regard to the circumstances of individual offenders or the circumstances surrounding the commission of particular offences and so necessarily risk overinclusion. They reflect a legislative judgment that nothing less than the minimum fine is sufficient to achieve deterrence in light of the nature of the offence committed".
I note that in Regina v. Nguyen, [2009] O.J. No. 5946, Justice Bigelow, of the Ontario Court of Justice, pointed out in paragraph 3, that there are very real purposes for the Tobacco Act. "The sale of unmarked cigarettes without paying taxes on them, undermines the Provincial Government's attempt to reduce tobacco consumption in Ontario, and the health problems which result from that consumption."
I note further, going back to the Court of Appeal decision in Regina v. Henry of Pelham Inc., at paragraph 41:
"The strictures of a minimum fine regime are to some extent mitigated by the exercise of prosecutorial discretion. Just as in the criminal law context, a Prosecutor may choose between pursuing a charge by summary conviction or indictment, in the regulatory context a Prosecutor may choose between pursuing a charge by means of the ticketing procedure under Part I, or by laying an Information under Part III of the POA, which gives rise to the possibility of larger and, in some cases, minimum fines. However, once the decision is made to prosecute under Part III, the applicable minimum fine must be imposed on conviction, unless relief is warranted under Section 59(2)."
I note that in this case, Crown Counsel did exercise discretion in choosing to proceed with respect to one charge only.
Finally, with respect to the Henry of Pelham Inc. case, I note that at paragraph 63, the decision summarizes the discussion of how Section 59(2) should be applied. The Court stated the following:
Minimum fines establish sentencing floors that apply regardless of ordinary sentencing principles. The imposition of fines above the minimum threshold is governed by ordinary sentencing principles as well as any principles set out in the relevant legislation.
Section 59(2) of the POA vests a discretionary authority in trial judges to provide relief from minimum fines and exceptional circumstances. The burden is on those seeking the grant of relief to establish that relief is warranted based on the relevant considerations.
Section 59(2) applies exceptionally. It will be an unusual case in which the imposition of a minimum fine may be considered "unduly oppressive" or "otherwise not in the interest of justice".
Whether a minimum fine is unduly oppressive, usually will depend on consideration of personal hardship. The bar for relief is set very high. Mere difficulty in paying a minimum fine is inadequate to justify discretionary relief.
Whether a minimum fine is otherwise not in the interest of justice, involves consideration of not only the interests of an individual offender, but also the interests of the community protected by the relevant public wealth or legislation.
The discretion under Section 59(2) cannot be exercised arbitrarily. Trial judges must explain their reasons for invoking Section 59(2) and, in particular, must demonstrate both that the circumstances are exceptional and that it would be unduly oppressive or otherwise not in the interest of justice to apply the minimum fine.
Analysis and Reasons for Sentence
I am satisfied that the circumstances here are exceptional. I am satisfied that the minimum fine will be unduly oppressive and I note that it is not enough to be oppressive, it has to be unduly oppressive. I am also satisfied that it would not be in the interest of justice.
Finally, I note that in that final regard, I do not have to find both. I have only to find that one of those preconditions exist here.
In reaching my conclusion, I note there is no need for further specific deterrence for Mr. Tran. This venture on his part has cost him dearly already. Further, he was not the primary actor here, he was simply employed to pick up and deliver the cigarettes for that person, whomever that person might be. So, the financial costs to Mr. Tran have greatly exceeded the financial benefit that he was expecting to receive here.
Further, he has no assets now, and in light of the administrative/civil assessments against him, he is unlikely to be able to pay anything towards a fine for a long time to come.
I am satisfied that any like-minded individuals who would not be deterred by the financial consequences that befell Mr. Tran would not likely be deterred by a further fine, however large either.
Finally, I am satisfied that not only the minimum fine, but also the alternate fine of $29,819.00, proposed by Crown Counsel, would not be in the interest of justice.
Sentence
Please stand, Mr. Tran. For all of the above reasons, I sentence Mr. Tran as follows:
Sentence is suspended. Mr. Tran is placed on probation for a period of two years. He will be subject to the Statutory terms that he not commit the same or any related offence, or any offence under a Statute of Canada or Ontario, or any other Province of Canada that is punishable by imprisonment. He will appear before the Court as and when required, and he will notify the Court of any change in address. In addition, he will not attend within the County of Brant or Haldimand County, except for travelling through them on Highway 403.
I will note that I have chosen those two counties because they encompass the area of and immediately around Six Nations Grand River Reserve.
Mr. Tran, do you understand the terms of the probation?
INTERPRETER: Can I have the name of the two Counties again, Your Honour?
THE COURT: You will get them in writing, but they are Brant and Haldimand. Do you understand the terms, sir?
INTERPRETER: Yes, Your Honour.
THE COURT: Can you live up to them?
INTERPRETER: Yes, Your Honour.
THE COURT: Do you understand that if you do not, if you breach any of the terms you could be charged with an offence, contrary to the Provincial Offences Act?
INTERPRETER: Yes, Your Honour.
WHEREUPON THIS MATTER CONCLUDES