Clarke,
C.J.N.S.:—The
appellant
appeals
from
his
conviction
for
a
violation
of
the
Excise
Act,
R.S.C.
1970,
c.
E-12,
subs.
246(1),
(now
section
240
of
the
Excise
Act,
R.S.C.
1985,
c.
E-14).
He
was
charged
that
at
Glace
Bay
on
or
about
March
9,
1988,
not
being
a
licensed
tobacco
manufacturer,
he
unlawfully
had
in
his
possession
a
quantity
of
manufactured
tobacco,
namely,
plastic
containers
of
fine
cut
tobacco,
not
put
up
in
bags
and
stamped
in
accordance
with
the
provisions
of
section
246
of
the
Excise
Act.
His
Honour,
Judge
LaVatte
found
the
appellant
guilty
of
the
offence
and
fined
him
$100
plus
$3
costs.
On
March
8,
1988,
Constable
Seaman
of
the
R.C.M.P.,
acting
under
the
authority
of
a
search
warrant,
searched
the
premises
of
the
appellant
known
as
Jack’s
Place,
being
a
convenience
store
in
Glace
Bay.
He
seized
three
tubs
of
fine
cut
tobacco
which
were
on
a
counter
with
other
tobacco
products
offered
for
sale.
He
also
seized
an
additional
83
plastic
containers
of
fine
cut
tobacco
which
he
found
in
cardboard
boxes
in
a
storage
area
not
far
removed
from
the
first
three
tubs.
None
of
the
86
were
put
up
in
packages
and
stamped
as
required
by
the
Excise
Act.
The
appellant
gave
a
statement
to
the
police
which
was
admitted
in
evidence
at
his
trial.
He
claimed
that
he
had
recently
purchased
the
inventory
of
another
convenience
store
in
town
and
these
containers
of
fine
cut
were
included
in
the
bulk
purchase.
He
said
some
of
the
tubs
were
already
priced
at
$8.99
and
he
"put
them
on
the
shelf
for
sale
at
the
same
price”.
He
further
said
that
he
was
aware
that
packages
of
cigarettes
must
bear
a
stamp
showing
the
duty
was
paid
that
he
had
no
such
knowledge
about
"tobacco".
Section
246
of
the
Excise
Act
provides,
(1)
Except
as
herein
specifically
provided,
every
one
who
sells
or
offers
for
sale,
or,
not
being
a
licensed
tobacco
or
cigar
manufacturer,
has
in
his
possession
any
kind
of
manufactured
tobacco
or
cigars,
not
put
up
in
packages
and
stamped
in
accordance
with
this
Act,
is
guilty
of
an
indictable
offence
and
shall
incur
a
penalty
not
exceeding
five
hundred
dollars
and
not
less
than
fifty
dollars.
(2)
Any
tobacco
or
cigars
so
found,
that
are
not
put
up
in
packages
and
stamped
as
herein
provided
shall
be
forfeited
to
the
Crown,
and
shall
be
seized
by
any
officer
and
dealt
with
accordingly.
(3)
Every
one
who
sells
or
offers
for
sale
any
manufactured
tobacco
or
cigars
otherwise
than
in
or
from
the
original
package
bearing
thereon
the
proper
revenue
stamps,
whether
or
not
the
proper
duty
has
been
paid
on
such
tobacco
or
cigars,
is
guilty
of
an
offence
and
is
liable
to
a
penalty
of
not
less
than
ten
dollars
and
not
exceeding
fifty
dollars
and
for
a
second
offence
to
a
penalty
of
fifty
dollars.
(4)
It
shall
be
deemed
an
offence
under
subsection
(3)
for
anyone
to
distribute
gratis
tobacco
or
cigarettes
for
advertising
purposes
otherwise
than
in
packages
stamped
as
herein
provided.
The
trial
judge
found
on
the
evidence
that
the
appellant
knew
the
plastic
containers
contained
tobacco
and
that
the
appellant
was
offering
them
for
sale.
He
further
found
that
the
tubs
or
containers
were
not
properly
packaged
and
stamped
as
required
by
the
Excise
Act.
Judge
LaVatte
found
the
appellant
was
in
possession
and
on
all
the
circumstances
violated
section
246.
The
principal
ground
of
appeal
is
that
the
trial
judge
erred
in
law
in
deciding
that
the
appellant
knew
that
the
containers
of
tobacco
were
not
packaged
and
stamped
in
accordance
with
the
Act.
The
appellant
manually
handled
the
fine
cut
tobacco,
he
knew
what
it
was
and
he
exercised
control
over
it
in
his
premises.
He
knew
the
Excise
Act
requirements
for
cigarettes.
The
finding
of
the
trial
judge
that
the
appellant
knew
that
the
fine
cut
tobacco
was
neither
packaged
nor
stamped
was
a
finding
of
fact
and
one
that
was
reasonable
under
the
circumstances.
There
was
sufficient
evidence
before
Judge
LaVatte
from
which
he
could
conclude
that
the
appellant
had
both
knowledge
of
and
physical
control
over
the
subject
matter
to
satisfy
the
definition
of
possession
contained
in
section
2.
The
comment
of
the
trial
judge
to
which
objection
has
been
taken
appears
to
be
his
observation
that
the
appellant
may
not
have
known
that
the
state
of
the
tobacco
violated
the
Excise
Act
at
the
time
of
his
purchase.
However,
it
is
apparent
from
the
judgment
that
in
considering
the
evidence
following
the
bulk
purchase,
Judge
LaVatte
was
not
in
error
in
determining
that
the
appellant
had
possession
of
the
fine
cut
tobacco
and
was
selling
it
or
offering
it
for
sale
in
a
manner
contrary
to
section
246
of
the
Excise
Act.
Leave
to
appeal
is
granted.
The
appeal
is
dismissed.
Appeal
dismissed.
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