R. v. Joshi, 2021 BCPC 123

Citation: R. v. Joshi 2021 BCPC 123 Date: 20210511 File No: 92746-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NAVNEET JOSHI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. SICOTTE Counsel for the Crown: P. Campbell Counsel for the Defendants: C. Pike Place of Hearing: Abbotsford , B.C. Date of Hearing: April 21, 2021 Date of Judgment: May 11, 2021 [ 1 ] Mr. Navneet Joshi pleaded guilty before me to the following two counts:

[1] Mr. Navneet Joshi pleaded guilty before me to the following two counts: Count 1: Navneet Joshi and Tarandeep Singh Makkar, on or about the 19th day of November, 2019, at or near Abbotsford, in theProvince of British Columbia, did unlawfully have in their possession unstamped tobacco products, to wit: chewing tobacco, contrary toSection 32(1) of the Excise Act, 2001, and did thereby commit an offence contrary to

Section 216 of the said Act. Count 2: Navneet Joshi and Tarandeep Singh Makkar, [sic] the 19th of November, 2019 at or near Abbotsford, in the Province of BritishColumbia, did unlawfully possess or keep tobacco, or possess or keep tobacco for an unlawful purpose, in contravention of the TobaccoTax Act or the regulation under that Act, contrary to Section 39(7) of the Tobacco Tax Act. Introduction [2] The two co-accused owned and operated a convenience store which could legally sell tobacco products.

Inspectors attended thestore on November 19, 2019 and found 23,383.7 grams (roughly 50 lbs) of contraband chewing tobacco which was not properly markedin accordance with the B.C. Tobacco Tax Act Regulation, the Excise Act, 2001, or the Criminal Code of Canada. [3] No Provincial or Federal taxes were remitted for these products.

Had they been sold, the Province of British Columbia wouldhave lost $8,768.39 in tax revenue. [4] Crown and Defence jointly submit that under count 1 the appropriate sentence is the minimum penalty for that count, $7015.11as calculated pursuant to s. 216(1) and (2) of the Excise Act, 2001. [5] Where counsel disagree and what I must determine is the appropriate sentence for Mr. Joshi under count 2. This requires adetermination by the court of the correct

interpretation of the phrase “… is liable to…” as well as the application of ss. 83 and 88 of theOffence Act. Positions of the Parties [6] With respect to count 2, Crown submits that s. 39(7)(

b) of the Tobacco Tax Act necessitates forfeiture of the seized tobacco aswell as two fines, one being at least $2500 and the other being $26,305.15 calculated as three times the potential tax loss to the Provinceof BC. [7] The relevant portions of s. 39(7) read as follows:

(7) A person who unlawfully possesses … tobacco …in contravention of this Act … commits an offence and is liable … (

b) on a first conviction, if the quantity of tobacco is greater than 10 000 grams of tobacco, to (

i) forfeiture of the tobacco to the government, (ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco, and (iii) a fine of at least $2,500 and not more than $25,000 or to imprisonment for not more than 2 years, or to both fine and imprisonment… [Emphasis added] [8] Defence counsel argues that just because the

section indicates that someone “is liable to” a certain punishment does not, absentmore specific language, remove the courts discretion to impose a lesser punishment. [9] Defence counsel points to the Criminal Code sections for robbery or for breaking and entering using the phrase “…and liable toimprisonment for life.” Clearly in that context the phrase “is liable to” means “at risk of” and not “must be sentenced to”.

The Law [10] Other Criminal Code sections such as s. 273 state that the offender “…is liable … to imprisonment for life and to a minimumpunishment of imprisonment for … five years.” In this context, the phrase “is liable to” is qualified by the subsequent language setting amaximum and a minimum sentence. [11] Courts across Canada have had to interpret the phrase “is liable to” numerous times and depending on the context, have come todifferent conclusions. [12] In York (Regional Municipality) v.

Winlow, (2009) 2009 ONCA 643 , 99 OR (3d) 337 the Ontario Court of Appeal hadto interpret that phrase from the Highway Traffic Act which stated in s. 128(14) that, “Every person who contravenes this

section … isliable … to a fine of $3 for each kilometre per hour … driven over the speed limit.” [13] The court ultimately found that the sentencing justice had no discretion to depart either higher or lower from the mathematicalcalculation stipulated. [14] Justice Martin, in R. v. Leclerc, 2011 YKSC 13 came to exactly the opposite conclusion with respect to s. 42(4) of the YukonHighways Act as it read at that time. Section 42(1) of that Act indicated that a person convicted of an offence under s. 24 “… is liable to afine of up to $100,000”.

Section 42(2) indicated that a conviction under s.16 makes the offender “. . . liable to a fine of up to $10,000”.Section 42(3) indicated that a first conviction under s. 30(2) renders the offender “liable … to a fine of $100”. [Emphasis added] [15] Within that context then, Justice Martin had to interpret s. 42(4) of the Act with read at that time, “Any person convicted of an

offence under a provision of this Act … for which a penalty is not otherwise provided is liable to a fine of $500 …” [16] Despite the absence in s. 42(4) of the qualifying words “up to”, Justice Martin stated the following at paragraph 13: [13] While the wording in s. 42(4) is the same as s. 42(3) ("is liable to"), and different from ss. 42(1) and (2) ("is liable to a fine up to")that one factor does not persuade me that the legislature intended a fixed fine in all cases caught by s. 42(4). Normally different wordsare intended to mean different things: sometimes however, they are just mishaps in drafting.

If the use of the same words was the only,or indeed the primary, consideration in statutory

interpretation then the Crown's position may have merit. However, the words "is liableto" contain ambiguity. Further, context and purpose are important considerations. It is the structure of s. 42(3) that underpins theargument that its gradations are mandatory. While the wording in s. 42(4) is the same as s. 42(3), it is the structure and nature of thatprovision that points in entirely the opposite direction. Subsection 42(4) sets out the penalty regime for all offences not specificallymentioned in s. 42, and its residual category is large and diverse. The catch-all nature of this penalty provision suggests that discretion insentencing was thought to be appropriate. [17] What is the proper

interpretation of the phrase “is liable to” in s. 39(7) of the Tobacco Tax Act? [18] In R. v. Abbott, 2008 BCCA 198 at para. 28 Madam Justice Kirkpatrick for the court wrote: [28] The Supreme Court of Canada stated in Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at 41, that"statutory

interpretation cannot be founded on the wording of the legislation alone", citing Elmer Driedger in Construction of Statutes, 2ded. (Toronto: Butterworths, 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. That direction is consistent with s. 8 of the

Interpretation Act, R.S.B.C. 1996, c. 238, which provides that, "[e]very enactment must beconstrued as being remedial, and must be given such fair, large and liberal construction and

interpretation as best ensures the attainmentof its objects." [19] For the reasons that follow, I find that the language in s. 39(7) of the Tobacco Tax Act is clear and unambiguous granting thesentencing court discretion only with respect to the range of fines set out in s. (b)(iii). [20] First, the precise language in s. 39(7) itself supports this

interpretation. The legislature chose in s. (b)(iii) to state, “… a fine of atleast $2 500 and not more than $25 000…” This is exact language setting a minimum and a maximum sentence. [21] In s. (b)(ii) after “is liable … to” the language chosen is “…a fine equal to 3 times the tax that would have been due on the retailsale of the tobacco,” The legislature again chose very precise language in stating, “a fine equal to”. A phrase such as “up to” or “nogreater than” would clearly indicate a discretion given to the sentencing court to reduce the amount of that fine. [22] In York v.

Winlow the Ontario Court of Appeal stated in para. 36: [36] On the other hand, some contend that the words "is liable . . . to" mean "exposed to", but give the court discretion to impose asmaller fine.

If the legislature had intended to remove the sentencing judge's discretion, it would have used words such as "is liable . . . toa fine equal to $3 for each kilometre per hour that the motor vehicle was driven over the speed limit", or simply declared that "the fineshall be $3". [Emphasis added] [23] The use of the phrase “a fine equal to” leaves no discretion to the sentencing judge. [24] Further, the language in s. 39(7) is conjunctive. The use of the word “and” at the end of s. (b)(ii) makes that clear.

In York v.Winlow the court stated at para. 33: Justices of the peace and provincial court judges belong to tribunals created by statute. Therefore, their jurisdiction to impose a penalty islimited by their authorizing legislation. Neither has any inherent power. The governing principle, now well established, is that justices ofthe peace and provincial court judges have only the powers expressly or impliedly granted to them by the legislature: see R. v. 974649Ontario Inc., 2001 SCC 81 , [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, at p. 589 S.C.R. See, also, s. 17(1) of the Justices of thePeace Act, R.S.O. 1990 c.

J.4. A corollary of [page346] this principle is that although sentencing judges ordinarily have a discretion toexercise, the legislature can limit that discretion or eliminate it altogether: see R. v. Wu, 2003 SCC 73 , [2003] 3 S.C.R. 530,[2003] S.C.J. No. 78. [25] Subject to the exception in the Offence Act that I will address later, I find that the legislature was clear in removing the discretionof the court under s. 39(7) except as clearly articulated in s. (b)(iii). [26] I am further supported in this

interpretation by the broader principles applicable to the Tobacco Tax Act. I agree with CrownCounsel that the purposes of this legislation are to provide revenue to the Province and to discourage unhealthy tobacco consumption. [27] At paragraph 32 of R v. Abbott the Court of Appeal made clear that “The sentencing principles applicable to public welfareoffences are generally seen to be denunciation and deterrence.” [28] Further, in that same paragraph, the Court quoted Justice Linden from p. 570 in R. v.

Hoffmann-La Roche Ltd. (No.2) (1980), (ON SC), 56 C.C.C. (2d) 563 where he considered the appropriate fine and stated: [….] The amount must be substantial and significant so that it will not be viewed as merely a licence for illegality, nor as a mere slap onthe wrist. The amount must be one that would be felt by this defendant. It should also serve as a warning to others who might be minded

to engage in similar criminal activity that it will be costly for them to do so even if they do not succeed in their illegal aims. [ 29 ] Based on the clear meaning of s. 39(7)(

b) of the Tobacco Tax Act , I agree with Crown Counsel that the minimum fine I can impose on Mr. Joshi under that

section is $28,805.15 absent any consideration of the Offence Act provisions. The Offence Act [ 30 ] Defence counsel argues that the Offence Act , [ RSBC 1996]

Chapter 338 in s. 83 provides the court with significant discretion regarding the amount of the fine payable under the Tobacco Tax Act . That

section reads in part as follows: 83

(1) If an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the justice who convicts a person who commits the offence.

(2) If an enactment prescribes punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the justice who convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment. [ 31 ] While s. 83, in both ss. 1 and 2 is only applicable “…subject to the limitations prescribed in the enactment…”, defence counsel argues that the phrase, “…but no punishment is a minimum punishment unless it is declared to be a minimum punishment” only applies in s. 39(7) of the Tobacco Tax Act to s. (b)(iii) and the language “…a fine of at least $2500…”. [ 32 ] That may well be the case, but that does not ultimately assist me as I find that there are limitations in s. 39(7)(

b) of the Tobacco Tax Act that restrict my discretion with respect to sentence. The existence of those limitations renders s. 83 ineffectual in this situation. [ 33 ] Defence counsel finally took the position that the court could rely on s. 88 of the Offence Act to reduce the prescribed fines due to Mr. Joshi’s limited financial abilities. [ 34 ]

Section 88 reads as follows: 88

(1) Despite any other

section of this Act or any other Act, in determining the fine to be imposed on conviction, the justice must consider the means and ability of the defendant to pay the fine, and, if the justice is of the opinion that the defendant is unable to pay the amount of the fine that the justice would otherwise impose, the justice may impose a fine in a lesser amount that the justice considers appropriate.

(2) If a minimum fine is established under the Motor Vehicle Act for contravention of a provision of that Act, a justice must not impose under subsection (1) a fine of less than the minimum established. [ 35 ] In R. v. 0715475 B.C. Ltd., 2008 BCSC 581 Madam Justice Koenigsberg addressed the proper

interpretation of ss. 83 and 88 of the Offence Act in 2 appeals from decisions where Judicial Justices imposed fines lower than the statutory minimums established in bylaws. [ 36 ] At para. 16 she referred to a principle of statutory

interpretation mentioned in earlier cases: While it is a fundamental principle that the Court should attempt to interpret apparently conflicting legislation in a manner which permits effect to be given to both pieces of legislation, the Court cannot give an

interpretation which does violence to what appears to be the plain meaning of the words in the paramount legislation. [ 37 ] Madam Justice Koenigsberg found that based on the wording in s. 88(1) of the Offence Act , the sentencing justice has discretion to sentence an offender to something less than a minimum punishment established in a by-law provided that the justice properly considers the offenders means and ability to pay the fine and concludes that the offender would be unable to pay a higher amount. [ 38 ] I note that the Legislature in s. 88(2) of the Offence Act refers only to fines under the Motor Vehicle Act as being specifically excluded from a Justice’s ability to impose anything less than the minimum.

Implicit in this exclusion is the ability of a Justice to do so under other Provincial legislation including the Tobacco Tax Act . [ 39 ] In R. v. Gurham , [1998] B.C.J. No. 3291 Hayes J. confirmed that s. 88(1) was applicable to minimum sentences under other Provincial legislation in addition to by-laws. Circumstances of the Offender [ 40 ] Mr. Joshi is 33 years old. He came to Canada from India in 2010 on a student visa and attended the University of the Fraser Valley. While studying there he met Tarandeep Makkar, the co-accused on the Information before the court. Mr.

Joshi has worked in a gas station and then as a technician installing security equipment. [ 41 ] In 2016, Mr. Joshi and Mr. Makkar formed a partnership and opened a small convenience store, TJ’s. Mr. Joshi’s income from his work at that store is his only income. In 2017 he married and became a Canadian Citizen in 2019. He and his wife had a child in April 2020. His wife currently has no income as she is a stay-at-home mother. [ 42 ] Mr. Joshi’s 2019 Notice of Assessment from the Canada Revenue Agency was provided to me showing that his net income that year was approximately $30,700. Counsel advised me that Mr.

Joshi’s 2020 taxes have not been completed as yet but, due to the COVID-19 pandemic, Mr. Joshi expects his income will be slightly lower for 2020. [ 43 ] Mr. Joshi and his wife own two vehicles, a 2007 Toyota Corolla and a 2017 Toyota RAV4. They also own a 971 square foot apartment in Abbotsford. Their payments for the vehicles and the apartment add up to approximately $18,400 per year. This leaves Mr. Joshi with approximately $12,300 per year for all his other expenses.

[ 44 ] He will of course also now have to pay the fine of $7015.11 under count 1 on the Information. [ 45 ] In considering the “means and ability” of Mr. Joshi to pay the fines, I would have preferred to have had more detailed financial information such as the amount of equity in the apartment owned by Mr. Joshi and his wife. However, on the information provided to me, I am satisfied that under s. 88(1) of the Offence Act , Mr. Joshi would be unable to pay the fine on count 2 of $28,805.15 within any reasonable amount of time. [ 46 ] What then is the appropriate sentence for Mr.

Joshi? [ 47 ] Specific and general deterrence as well as denunciation are the primary sentencing objectives for this offence. Mr. Joshi has no criminal history. The Information was sworn on December 15, 2020. This is an early guilty plea. Mr. Joshi has accepted responsibility and saved the state the cost of proving the offences. His counsel advises me that Mr. Joshi is remorseful and ashamed of his actions. I accept that as accurate. Defence counsel further points out that Mr. Joshi was licensed to sell tobacco products in the convenience store so it’s not aggravating that he was selling unhealthy products.

Crown Counsel, however, points out that it is not only statutorily aggravating that Mr. Joshi had over 10 kilograms of contraband tobacco for sale, but he was aware of the licensing and labelling requirements imposed for health reasons and he chose to ignore those. I find that Mr. Joshi’s moral culpability is moderate with respect to these offences. [ 48 ] Defence counsel provided me with the case of R. v. Elshebiny, 2015 ABPC 164 where Judge Henderson considered several related sentencing decisions where courts had sentenced offenders to something significantly less than the mandatory minimum fines.

Judge Henderson also went on to consider the totality principle when several fines are imposed at once. He stated at paragraphs 68 and 69: [68] In R. v. Tschetter 2012 ABPC 167 , Judge LeGrandeur described this principle in the following way at paragraph 32: “The totality principle must be considered by the Court whether the multiple sentences imposed are imprisonment or are dealt with by way of fines, ( Ruby et al, Sentencing , supra at para.2.57), which is the disposition suggested by Crown and Defence in the matters before this Court at this time.

Paragraph 11.8 of Ruby et al, Sentencing , supra describes how to deal with such circumstances as follows: The fine must be sufficiently substantial to warn others that illegal activities will not be tolerated, and the amount of the fine will take into consideration the seriousness of the offence and ordinary sentencing principles.

On the other hand, where a number of similar offences are charged and dealt with by fines, although concurrent penalties are not possible in the case of fines, the fines ought to be adjusted so that the total punishment for all similar offences is not in excess of the maximum penalty for any one of the offences, and the total amount is not beyond the means of the offender.” [69] As a result, when imposing fines in relation to the two counts to which the Offender has entered pleas of guilty it is necessary to consider whether the total of the fines is unduly harsh.

If it is then the fines must be adjusted to avoid such a consequence. [ 49 ] I do consider the totality principle in imposed fines on Mr. Joshi. The offences in counts 1 and 2, while not covered by the Kienapple principle, are closely related. [ 50 ] I also consider the objectives of this legislation and I intend the fines imposed to be significant enough to send a message not only to Mr. Joshi, but also to others who are already engaged in or are considering getting involved in similar behaviour. [ 51 ] When I consider the facts of this case together with the circumstances of Mr.

Joshi, and I weigh the aggravating and mitigating factors, I conclude that on count 1, there will be a fine of $7015.11. On count 2, I order that the tobacco seized from Mr. Joshi at the convenience store be forfeited to the Provincial government. I suspect that this action alone may cost Mr. Joshi and his business partner a not insignificant amount. Also on count 2 I fine Mr. Joshi $2500. The victim fine surcharge will also apply. I give Mr.

Joshi until December 31, 2022 to pay the fines. [ 52 ] I’ll waive the requirement for defence counsel’s signature on the forfeiture order. _________________________________ The Honourable Judge C.D. Sicotte Provincial Court of British Columbia