R. v. Letourneau, 2011 ONCJ 425

Citation: R. v. Letourneau , 2011 ONCJ 425 Her Majesty the Queen v. Nubia Letourneau Provincial Offences Court, Brantford Court, File #097195 D. M. MacDonald, J.P. Heard: March 10, 2011 and April 21, 2011. Judgment: August 2, 2011 Counsel for Crown: H. Jones Agent for Defence: M. Ostroff Charge: Subsections 29(1) , 29(2) , Tobacco Tax Act , R.S.O. 1990, c. T.10 D.M. MacDonald, J.P., (Orally): ……………………………………………………………. THE TRIAL 1 .

On the first trial date of March 10, 2011, Officer Knoll, an Ontario Provincial Police (OPP) officer, testified that he was operating a marked OPP cruiser on Regional Road #18 in Brant County at approximately 10:45 p.m. on September 15, 2009. He testified that he observed a green motor vehicle parked on the shoulder of the road close to a storage unit. He testified that the motor vehicle proceeded north-bound on Regional Road #18 and he determined from a computer search of the motor vehicle’s licence plate that the driver may have been lost and may have required assistance.

He testified that when he stopped the motor vehicle and approached the driver’s side of the motor vehicle, he observed a large garbage bag in plain view that appeared to contain cigarettes. He testified that he asked the female driver for identification, and the driver provided him with a digitalized Ontario driver’s licence in the name of the defendant. He testified that the defendant was unable to provide any documentation regarding the cigarettes that were in her motor vehicle. 2 .

Following a voir dire hearing, a determination was made by the court that a conversation between the defendant and this OPP officer on the date of the incident was made voluntarily. The officer testified that he asked the defendant whether or not she had any documentation regarding the cigarettes that were in her motor vehicle, and that the defendant advised the officer that she did not have any documentation. 3 .

Officer Crozier, a second OPP officer, testified that he was advised on his police radio that Officer Knoll had made a traffic stop and since he was also in the area, he performed a U-turn on Regional Road #18 and pulled his police cruiser behind Officer Knoll’s police cruiser to see if any assistance was required. He testified that Officer Knoll advised him that no assistance was necessary, but that he still remained at the scene of the traffic stop for approximately 10-15 minutes.

When questioned, Officer Crozier testified that the location of this traffic stop was approximately 20-30 kilometres from the Six Nations Reserve. 4 . The third Crown witness was Mr. Coates, who testified that he was a senior manager in charge of the Tobacco Unit of the Ministry of National Revenue (MNR). He testified that his position permits him to authorize police officers to conduct seizures of contraband tobacco on behalf of the MNR. He testified that on the date in question he was on the duty roster to carry a pager that permits police officers to reach MNR managers.

He testified that he received a page at approximately 10:54 p.m. on the date of this incident from OPP Officer Knoll, and that the OPP officer had performed a traffic stop of a motor vehicle containing what was believed to be contraband cigarettes in garbage bags that were in plain view. Mr. Coates testified that he authorized Officer Knoll to search the motor vehicle and to seize any contraband tobacco under the Tobacco Tax Act . He testified that he searched the MNR database and determined that the

defendant had no permits to carry untaxed tobacco products. 5 . Officer Timmins testified that he was employed at the time of this incident as an investigator for the Special Investigations Branch of the MNR and that he was involved in investigating Tobacco Tax Act matters. He testified that he attended at the Brant County OPP detachment on September 22, 2009, in order to pick up garbage bags of tobacco that were seized from the defendant by the OPP.

He testified that he signed for the tobacco that was contained in four garbage bags, and transported this tobacco to a secure storage facility that was operated by the MNR. He testified that the garbage bags containing the tobacco were all tied and contained OPP property tag seals. He testified that while at the Brant OPP detachment, he also picked up other contraband tobacco, but that this tobacco had different property tag seals attached. He testified that he did not open any of the garbage bags, and just transported them to the MNR’s secure storage facility located in Oshawa. 6 .

Officer Doyle testified that he was also employed at the time of this incident as an investigator for the Special Investigations Branch of the MNR and that he was also involved in investigating Tobacco Tax Act matters. He testified that on September 25, 2009, his duties included counting the cigarettes that were in four garbage bags in the MNR’s secure storage facility. He testified that he and Officer Ross took pictures of the garbage bags and confirmed that Exhibits #2

a) and #2

b) were the pictures of these garbage bags. He testified that he observed both OPP and MNR security tags on the garbage bags before the garbage bags were opened. He testified that pictures were subsequently taken of large zip-lock bags containing cigarettes that had been in four large garbage bags, and confirmed that the cigarettes were unmarked, had brown filters, and that they contained no health warnings, which meant that the cigarettes were illegal. He testified that at the conclusion of counting, it was determined that the four garbage bags contained 34,000 cigarettes.

Officer Doyle testified that Exhibit #4 was a clear bag containing a sample of the cigarettes that he and Officer Ross counted on September 25, 2009. When questioned by the defendant’s agent, Officer Doyle testified that the garbage bags did not contain anything other than zip- lock bags containing cigarettes. When questioned regarding rags and towels, the officer testified that the garbage bags did not contain rags or towels, only bags of cigarettes. 7 . Mr. Iqbal testified for the defence.

He testified that he was a passenger in the defendant’s motor vehicle at the time of the traffic stop on September 15, 2009. He testified that at this time, he and the defendant were both employed by an internet telephone provider and that they had been making sales calls at businesses located in the City of Brantford and on the Six Nations Reserve. He was not able to remember any of the names of these businesses. He testified that after they had left the Six Nations Reserve, they noticed garbage bags containing rags and towels on the side of the road.

He testified that the female driver, the defendant, stopped the defendant’s motor vehicle and both he and the defendant put the garbage bags into the defendant’s motor vehicle, because they believed that they could sell these items. He testified that he was in the habit of stopping to retrieve things left on the side of the road if he believed that they were valuable. He testified that he personally placed two bags into the defendant’s motor vehicle and the defendant did the same.

He testified that although he and the defendant did not open both bags that they placed in the defendant’s motor vehicle, the two garbage bags that he and the defendant did open contained rags and towels. He testified that he observed a police cruiser turn on emergency lights and confirmed that a traffic stop was made by a police officer. He testified that the officer shone a flashlight into the defendant’s motor vehicle and the officer demanded that the driver and passenger produce identity documents, which Mr. Iqbal was unable to do.

He testified that when the police officer gained access to the defendant’s motor vehicle, the police officer removed towels and rags from the garbage bags, and then the police officer asked the defendant if she had permits to transport cigarettes. 8 . When questioned as to whether he had attended an earlier attempt to conduct a trial regarding this defendant on November 23, 2010, Mr. Iqbal confirmed that he had been present in court.

He testified that he could not remember if he had been asked if he would be a witness for the defence, nor could he remember if an order excluding witnesses had been issued, nor could he remember passing notes to the defendant, nor could he remember if the defendant had advised the court that the passenger who had been travelling with her in her motor vehicle on September 15, 2009, was not available on November 23, 2010, because he was in Pakistan. 9 . The trial resumed on April 21, 2011.

The defendant testified that while driving her motor vehicle on September 15, 2009, she observed a motor vehicle travelling very close behind her and the headlights from this motor vehicle were so bright that she pulled over to the side of the road. She testified that she then observed two police cruisers in the area. She also testified that she looked at a map to try to determine where she was. She testified that while stopped on the side of the road close to a storage facility, her male passenger observed garbage bags nearby which appeared to contain rags or towels.

She testified that these bags were heavy and she and her passenger put the garbage bags into her motor vehicle. She testified that a short time later she and her motor vehicle were stopped by a police officer, who indicated that he stopped to inquire if she needed help. She testified that the police officer then demanded identification and documents from her. She testified that the officer also demanded to look at the contents of the garbage bags that had been picked up from the side of the road, and when the officer removed towels from the bag, he found cigarettes underneath the towels. 10 .

The defendant testified that someone who looked like Mr. Iqbal may have been in court on November 23, 2010, on the date of the first attempt to conduct this trial. She testified that she was unable to remember anything else regarding Mr. Iqbal from November 23, 2010. She testified that she and Mr. Iqbal had been making sales calls at a number of business locations in the Brantford area on September 15, 2009, but like Mr. Iqbal, was unable to recall any of the names of businesses that they had visited.

11. Officer Knoll was recalled as a rebuttal witness for the Crown. He testified that Mr. Iqbal had been in court on November 23, 2010,and that he had observed Mr. Iqbal passing notes to the defendant in court after the trial had commenced that day. He testified that thedefendant advised the court that there would be no witnesses that day, as the passenger who had been with her on September 15, 2009,was in Pakistan. He testified that contrary to Mr.

Iqbal’s testimony on March 10, 2011, he did not request any identification from Mr.Iqbal on the date of the traffic stop on September 15, 2009, and that there was no detailed information regarding Mr. Iqbal in theofficer’s notes from the traffic stop, although the officer did confirm that Mr. Iqbal was a passenger in the defendant’s motor vehicle atthe time of the traffic stop on September 15, 2009. He testified that he did not search the defendant’s motor vehicle prior to receivingauthorization by telephone from an official with the MNR.

He once again testified that the cigarettes were in plain view in the rear of thedefendant’s motor vehicle, that he had observed the cigarettes in one of the garbage bags located in the rear compartment of thedefendant’s motor vehicle when he shone his flashlight into this compartment, and that there were only cigarettes in the garbage bags, nottowels or rags. He testified that when he first approached the defendant’s motor vehicle on September 15, 2009, he inquired as towhether or not the defendant required assistance as she may have been lost.

He added that he was also suspicious because there had beenrecent break-ins in the vicinity, and that he had initially observed the defendant’s motor vehicle parked in close proximity to storageunits. 12. The defendant’s agent argued that the evidence obtained by the police during their investigation should be excluded, as thedefendant’s rights had been denied under the Canadian Charter of Rights and Freedoms. He argued that the court should stay the chargeagainst the defendant, pursuant to the 1993 Ontario Court of Appeal case of R. v. Simpson, (ON CA), 12 O.R. (3d)182.

He provided written submissions to the court, which put forward the argument that the officer’s “hunch” that the defendant was lostled to the traffic stop, and as this hunch proved to be incorrect, the subsequent discovery of the cigarettes should not have taken place.The Crown argued that no evidence of such a hunch had been presented to the court, and that the officer did not take steps to commencehis investigation into the cigarettes until he had observed them in plain sight in the rear of the defendant’s motor vehicle.

The Crown alsoargued that the officer had not searched the defendant’s motor vehicle until he had obtained the proper authorization by telephone froman official of the MNR. In addition, the defendant testified that she had looked at a map in her motor vehicle to determine where she was,just prior to this traffic stop. The Crown also argued that a secondary reason for the traffic stop was provided by one of the officers, whotestified that break-ins had recently taken place in the area, and he may have been suspicious of the defendant’s motor vehicle when heobserved it parked in the vicinity of a storage unit.

THE LAW

Section 29 of the Tobacco Tax Act, R.S.O. 1990, c. T.10 (as amended) states as follows: 29.

(1) No person shall, unless permitted under this Act or the regulations to do so, possess, purchase or receive any quantity ofunmarked cigarettes or unmarked fine cut tobacco for the purpose of sale. 2011, c. 15, s. 39 (12).

(2) No person shall, unless permitted under this Act or the regulations to do so, possess any quantity of unmarked cigarettes orunmarked fine cut tobacco. 2011, c. 15, s. 39 (12). THE DECISION 14. I am satisfied that the defendant had approximately 34,000 cigarettes in her possession when stopped by an OPP officer onSeptember 15, 2009, and that no evidence has been presented to the court that the defendant was a person permitted under the provisionsof the Tobacco Tax Act to have these cigarettes in her possession.

I believe that the proper chain of custody regarding the cigarettes hasbeen followed, from the seizure by Officer Knoll following the authorization by Mr. Coates of the MNR, to the storage of the sealedgarbage bags containing the cigarettes at the Brant OPP detachment, to the transportation of the cigarettes from Brant County to theMNR secure storage facility in Oshawa, and to the storage and then counting of the cigarettes by MNR Officers Doyle and Ross. 15.

The defendant and her witness would have the court believe that garbage bags containing rags and towels have somehow magicallybeen transformed into illegal cigarettes at the side of the road in Brant County on September 15, 2009. They have argued that when fourgarbage bags were retrieved by them from the side of the road, they contained rags and towels, but when stopped by an OPP officer avery short time later, the rags and towels had somehow turned into illegal cigarettes.

There are certainly Biblical references of waterbeing transformed into wine (see Gospel of John 2:1-11) and of children’s fairy-stories of copper being transformed into gold (seeMaster and His Pupil by Joseph Jacobs). However, I can only conclude that the rags and towels transformed to cigarettes story has beenfabricated by the defendant and Mr. Iqbal in order to delay the inevitable conviction that will follow from possessing illegal cigarettesalmost two years ago in September 2009.

16. If the court were to make a finding as set out in the Supreme Court of Canada case of R. v. W.(D.), (SCC), [1991] 1S.C.R. 742, regarding credibility, I would find that very little of the testimony of the defendant or her male passenger could be consideredto be credible. Alternatively, I found that the testimony of the OPP officers and the MNR officers to be credible regarding the traffic stop,the seizure of the contraband tobacco, the transportation of the tobacco to the Brant County OPP detachment and the later transportation,followed by the actual counting at the Oshawa MNR secure facility. 17. Under this

section of the Tobacco Tax Act, the Crown does not have to prove such elements as to where the tobacco was purchased,although evidence was provided by the defendant and her male passenger that they had spent several hours visiting businesses on the SixNations Reserve, where they may have purchased contraband tobacco. Neither is the Crown required to prove that the defendantintended to sell the tobacco, nor that she was transporting the tobacco for a third party, nor even that she intended to keep it for personaluse.

The only requirement is that the Crown must prove beyond a reasonable doubt that on the date in question, the defendant was inpossession of the illegal tobacco. 18. I reject the motion from the defence that the evidence should be excluded and that the charge should be stayed.

I find that the OPPofficer acted on more than a mere hunch in performing the traffic stop, and that he based his decision to lay the charge against thedefendant only after obtaining the required authorization from the MNR, and this was only done after the OPP officer had observed inplain sight what he believed to be contraband tobacco in the rear of the defendant’s motor vehicle.

The OPP officer gave two convincingarguments regarding the traffic stop: that he believed that the driver of the motor vehicle may have required assistance; and that thedefendant’s motor vehicle was parked at night close to a storage facility in an area where there had been reported incidents of break-ins. 19. I find that the Crown has met the burden of proving all of the essential elements of this offence beyond a reasonable doubt. Itherefore find the defendant guilty of the offence and a conviction will be registered against her. Released: August 2, 2011 Signed: “Justice of the Peace Dan M. MacDonald”