November 10, 2010
Hamilton Spectator
CAYUGA A Toronto man who bought a bag of unmarked cigarettes from a native smoke shack in Caledonia has lost his bid to have the charge tossed out of court.
Paralegal Allison Gowling argued Wednesday the charge against Emil Kralovic should be dismissed because revenue investigators discriminate against non-aboriginal offenders when it comes to enforcing the provincial Tobacco Tax Act.
Gowling cited three issues under the Canadian Charter of Rights and Freedoms:
First, he claimed his client’s vehicle was unlawfully searched. Second, he argued his client’s ability to defend himself on the charge was hindered by the Crown’s refusal to disclose if the owners of 32 area smoke shacks held proper vender’s permits. Finally, he claimed Kralovic was denied equal treatment under the law because revenue officers targeted non-aboriginal purchasers of contraband cigarettes, but did not go after illegal venders and their aboriginal customers.
Kralovic was observed by two investigators with the Ontario Ministry of Revenue on July 13, 2009, as he left the smoke shop and placed a blue travel bag into the back seat of his vehicle. The officers followed him as he drove back to Toronto. On the way, Kralovic stopped and took his dogs for a 40-minute walk. On his return to his car, he was confronted by the officers, who conducted a search of his vehicle and seized 3,200 unmarked cigarettes.
“To me, the issue is simply this, the Tobacco Tax Act says you can’t sell, purchase or possess unmarked cigarettes without a proper vender’s permit,” said Gowling.
Gowling said he believes the law is not enforced for aboriginal offenders because of the controversy surrounding native land claims, which has raised a cry from local residents about a two-tiered justice in Caledonia.
“They don’t want to upset the natives,” Gowling said.
Justice of the peace Paul Macphail dismissed all three Charter arguments:
•Macphail found revenue officers did have authority to conduct warrantless searches under the Tobacco Tax Act. The courts have upheld this type of search as a reasonable infringement of individual rights.
•Regarding the Crown’s refusal to disclose venders’ permits for native smoke shacks, he said the defendant should have made a formal request for disclosure under the Provincial Offences Act.
•As for the equality argument, Macphail found the smoke shack owners were not the appropriate persons, in terms of discriminatory practices, to compare the treatment of Kralovic. He said the proper comparison would be with other purchasers of illicit cigarettes.
On that issue, Macphail cited the 2009 conviction of an aboriginal man who was fined $4,000 under the Tobacco Tax Act for possession of 10,000 unmarked cigarettes, among other examples.
After losing the Charter application, Emil Kralovic decided to plead guilty to possessing the contraband cigarettes. Macphail agreed to reduce the mandatory minimum fine from $1,685 to $700 because Kralovic was solely supported by a small disability pension.