ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-1804

DATE: 2014/01/20

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MOHAMMED SHAKIR
Appellant

Linda Bianchi, for the Crown

H. John Kalina, for the Appellant

HEARD: November 26, 2013
(in Brockville)

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

On Appeal from the Decision of the Honourable Justice C.D. Anderson of the
Ontario Court of Justice on November 14, 2012 at Brockville, Ontario

MINNEMA J.

[1] Mohammed Shakir was tried on November 14, 2012, pursuant to the Customs Act, R.S.C., c. 1 (2nd Supp.), with making a false statement (section 153(a)), evading duties (section 153(c)), and smuggling (section 159).

[2] The court below found that there was ample evidence beyond a reasonable doubt to support all of the charges. However, referring to R. v. Kienapple, [1975] 1 S.C.R. 729 (precluding multiple convictions), the former two charges were stayed and Mr. Shakir was found guilty of smuggling.

Position of the Appellant

[3] Mr. Shakir submits per his factum “that the trial judge committed an error in law because the facts of the case did not constitute as an offence of smuggling, misrepresentation or evading customs.” He further submits that “the trial judge erred in finding the necessary elements of the offences of which the appellant was convicted of.” In argument he relied on the following position. The offence is smuggling because duties have not been paid. This case involved a vehicle and the evidence was that you cannot pay the duties if you do not have legal title to the vehicle. Mr. Shakir did not have the vehicle registered in his name, and as such was not able to pay the duties even if he wanted to. He therefore asserts that he could not have been evading those duties. He submits that a finding of guilt in these circumstances constitutes an error in law.

Facts

[4] The facts are not in dispute. Mr. Shakir located a car that he wanted to buy in New York State. He could not do so because he was not a New York State resident. He therefore paid for the vehicle and placed title of it in the name of friend who lives in New York State. It is clear that while the friend held the legal title, Mr. Shakir was the beneficial owner. There was a waiting period before title could be transferred to him.

[5] Mr. Shakir obtained a letter from his friend saying that he was allowed to drive the vehicle, and he attempted to enter Canada with it. When asked the usual question by a Canadian Border Services Officer about whether he had made purchases or received goods, Mr. Shakir only declared $380 worth of purchases. He did not disclose that he had in fact paid $67,000 for the vehicle on that trip five days earlier. The Officer noted the New York State license plates. Mr. Shakir, relying on the letter, said that he was driving a friend’s car with authorization.

[6] The Officer sent Mr. Shakir for a secondary inspection. In the course of that investigation and subsequent interviews, the above details regarding the purchase of the vehicle became known. Mr. Shakir was evasive and misleading in this process, maintaining, until confronted with evidence to the contrary, that it was his friend’s car. He added that he intended to return the vehicle to his friend in New York in two weeks, and that he may decide to buy it from him at a later date. He had the spare keys with him. The vehicle was seized and Mr. Shakir was charged.

[7] Several Canadian Border Services Officers testified at the trial. It was noted that, had he properly declared his ownership, Mr. Shakir would not have been able to pay the duties chargeable and import the vehicle that day without the legal title.

Law Regarding the Appeal

[8] This is a “proceeding” for which Part XXVII of the Criminal Code, R.S.C. Chap. C-46, applies (see section 785). Mr. Shakir brings his appeal pursuant to s. 813(a)(i) regarding the conviction. Pursuant to s. 822(1), I am directed to s. 686(1)(a) of the Code which indicates that I may allow the appeal if I am of the opinion that “(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice.”

Analysis

[9] There is no doubt that the facts support the offense of making false statements. However, as noted, the conviction was only registered under the smuggling charge which reads as follows:

159 Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament.

[10] The elements of the charge for our purposes are (1) smuggling or attempting to smuggle and (2) goods subject to duties.

[11] The appellant takes no issue with the definition of ‘smuggling’ as it applies to this case, identified by the court below as “importing … articles without paying the duties chargeable.”

[12] ‘Importing’ means to bring something in from abroad. Section 12(1)(a) of the Customs Act requires imported goods in this situation to be declared by the person in “actual possession” of the goods.

[13] Regarding what constitutes ‘possession’, the appellant relied for the appeal on the following passage from Ready John Inc. v. Canada (Department of Public Works and Government Services), 2004 FCA 222 at paras. 44 and 45, as quoted in Abdelseed v. Canada Border Service Agency, 2013 FC 581 at para. 50:

When used in legal contexts in connection with chattels, the core meaning of possession is the physical control of a thing and often, but not necessarily, exclusive control. Thus, Black’s Law Dictionary, 7th ed. (St. Paul: West Group, 1999) defines “possession” as: “The fact of having property in one’s power”; … “The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.”

Whether a person is in possession of property may depend upon the kind of property over which possession is claimed and on the particular legal context in which the determination must be made. Thus, while physical control lies at the core meaning of possession, a person who has the practical means of controlling something and preventing others from interfering with it may have possession of it …

[14] The appellant argued that as the beneficial owner without legal title he did not have ‘control’ of the vehicle as required in that passage. He maintained that he did not have the level of control that would have allowed him to pay duties at the time, and therefore he was not in ‘possession’ of the vehicle. However, as can be seen from the Ready John Inc. passage, the level of control needed to be in possession of a chattel is not exclusive control, and physical control lies at the core meaning of possession. The appellant also relied for the appeal on Abdelseed, supra, where the accused was the only passenger on a bus that was being driven by an employee of the owner. The accused was interested in purchasing the bus but had not yet done so. He was found not to be in actual possession of the vehicle as “[p]hysical control was in the hands of … the driver” (para. 51). Here of course the reverse is true. Mr. Shakir had (1) purchased the vehicle and (2) was the driver exercising physical control over it at the time of its entry into Canada. I cannot see how either of the above cases helps the appellant argue that he was not in possession of the vehicle.

[15] Smuggling is a full mens rea offence (R. v. Rieger, 2004 NBPC 3). Having previously imported a vehicle in the proper way, Mr. Shakir was directly aware that doing so is subject to duties. His misleading the Officers and concealing his purchase was evidence of an intention to avoid those duties.

[16] Lastly, I cannot accept the general argument that Mr. Shakir cannot be guilty of evading duties because, without legal title, he was unable to pay those duties right then even if he wanted to. The charge of ‘evading’ was stayed, and this argument is contrary to the above analyses regarding the smuggling conviction. Further, Mr. Shakir knew from past experience that vehicles are “goods subject to duties”, the second element of the smuggling charge.

Decision

[17] I can find no error by the trial judge. There were no factual issues in dispute and he applied the proper test and made the proper succinct analysis in my view. Specifically, I am of the opinion that the verdict was reasonable, that the verdict was supported by the evidence, that there was no error of law, and that there has not been a miscarriage of justice.

[18] The appeal is dismissed.

Mr. Justice Timothy Minnema

Date: January 20, 2014

COURT FILE NO.: CR-11-1804

DATE: 2014/01/20

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

– and –

Mohammed Shakir
Appellant

REASONS FOR DECISION
ON SUMMARY CONVICTION APPEAL

Minnema J.

Released: January 20, 2014