Chesnel v. The King / Daigle v. The King, [1934] SCR 519

Supreme Court of Canada

Chesnel v. The King / Daigle v. The King, [1934] S.C.R. 519

Date: 1934-05-07.

Moïse Chesnel Appellant;

and

His Majesty The King Respondent.

Theophile Daigle Appellant;

and

His Majesty The King Respondent.

1934: April 26; 1934: May 7.

Present: Rinfret, Lamont, Cannon, Crocket and Hughes.

ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Criminal law—Smuggling—When offence completed—Whether the master of a vessel had an opportunity of complying with the provisions of the law—Customs Act, R.S.C., 1987, c. 42, s. 11, s. 203 (4) and s. 262.

Section 203, paragraph 4, of the Customs Act, which applies only to vessels arriving within three miks of the coast of Canada and -section 11 of the same Act, which impliedly allows the master of a vessel opportunity of complying with its conditions before being deemed to have committed the offence of smuggling, have no application under the following circumstances of this case: a vessel, on board of which were both appellants, having cleared from Lévis, opposite Quebec, for Gaspé, stopped somewhere below Rimouski to take over from a schooner a cargo of liquor and then turned back to try and land these smuggled goods at some point on the shores of the St. Lawrence, and then, to avoid capture by the ‘Government patrol, the vessel was deliberately stranded and abandoned by its crew on the shores of Beaumont, within the limits of the harbour of Quebec, several hundred miles inland.

There is no conflict between the judgment appealed from and the decision in Rex v. Langille (57 Can. Cr. Cas. 151).

Judgment of the Court of King’s Bench (Q.R. 56 КБ. 88) aff.

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APPEALS from the judgments of the Court of King’s Bench, appeal side, province of Quebec[1], upon leave to appeal granted by Crocket J., Justice of the Supreme Court of Canada, said judgments sustaining the conviction of both appellants, on their trial before H. Fortier, J.S.P. on a charge of smuggling.

Pierre Devarennes for the appellants.

Laetare Roy K.C. and Henri Bernier K.C. for the respondent.

The judgment of the Court was delivered by

Cannon J.—The appellants were convicted before the Court of Sessions of the Peace for the district of Quebec on an indictment which is translated as follows by the parties:

To have, on or about the 18th of May in the year 1932, in the waters of the St. Lawrence River, and particularly near the shores of Beaumont, in the district of Quebec, assisted or otherwise been concerned in the unshipping, the landing or removing and the importing of goods illegally imported in Canada and upon which the exigible legitimate duties had not been paid, by having under his control and his possession, on board a yacht named Marinefs Joy, an approximate quantity of 860 gallons of alcohol fraudulently imported in Canada and upon which the exigible legitimate duties had not been paid, said alcohol having an approximate value of $860, contrary to R.S.C., c, 42, s. 193, ss. 3.

A penalty of $300 or four months imprisonment was imposed on both appellants. The Court of King’s Bench of the province of Quebec dismissed their appeal. They obtained special leave to appeal to this court, under section 1025 of the Criminal Code, because the decision of the Court of King’s Bench for the province of Quebec, it was alleged, conflicted with the judgment in a like case of the Supreme Court of Nova Scotia re Rex v. Langille[2]. The facts in the latter case are as follows:

On June 18, 1928, at eight o’clock in the evening, the captain of one of the Canadian patrol boats came out of Ketch Harbour, Halifax County, and sighted a motor boat a mile off Ketch Harbour Head making towards land; the motor boat was stopped and found to contain a considerable quantity of rum in kegs. Langille was in charge of the motor boat. The motor and cargo were seized and brought to Halifax Harbour and Langille was charged of

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unlawfully smuggling into Canada goods subject to duty. The judgment of the Nova Scotia court was to the effect that despite s. 203, par. 4, of the Customs Act (s. 21 of c. 50 of the statutes of Canada passed in 1927), which declares

that the offence of smuggling should be deemed to be completely committed whenever any vessel containing goods not reported pursuant to section 11 of the Act arrives within three miles of the coast of Canada,

the offence is not complete until the master of the vessel has had an opportunity of complying with the conditions laid down in s. 11, i.e.,

of reporting to the Customs House after the vessel is anchored or moored.

Mr. Justice Ross dissented from the above judgment.

After careful consideration of the case, we find that the Langille case[3] differed from the present ones. It must be noted that subsection 4 applies when any vessel arrives within three miles of the coast or shores of Canada, i.e., enters the territorial waters of this country. This evidently covered the Nova Scotia case, as the vessel there involved was approaching from the ocean the coast or shores of Canada, was arriving and was still moving towards her destination. In the present case, the vessel was deliberately stranded by its crew, to avoid capture by the Government patrol, on the shores of Beaumont, within the limits of the harbour of Quebec, several hundred miles inland, on the river St. Lawrence. Certainly it was not then arriving within three miles of the coasts of Canada.

Moreover, by wilful stranding and the abandonment of their boat on the shore, the appellants have placed themselves in such a position that it was utterly impossible for them to arrive, anchor or moor in the harbour of Quebec and comply with the requirements of section 11. That circumstance, of their own making, cannot help them. They could not be first given the opportunity of declaring on arrival, as required by the Nova Scotia decision, because, of their own accord, they had “arrived” and landed on the Beaumont beach. It is admitted that both appellants were on board the boat and that the dutiable goods which had admittedly been smuggled or clandestinely introduced into Canada by another vessel were in

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their possession. Under section 262 of the Customs Act, this possession once proven or admitted placed on the appellants the burden of proof of all facts relating to the origin, the importation or the payment of duty or the compliance with the requirements of the Act with regard to the entry of any such goods.

Mr. Justice Dorion[4], with whom concurred Howard, Rivard and Bond JJ., in his reasons for judgment, says:

Je crois que les présomptions créées par la loi contre les accusés ont précisément pour but d’empêcher ce manège nonobstant Rex v. Langille[5], cité par l’appelant.

And Mr. Justice St. Jacques says, at page 94 (1):

Ces deux causes se distinguent nettement de celle qui a été jugée par la cour suprême de la Nouvelle-Ecosse, Rex v Langille.5

Les faits révélés par la preuve sont bien différents; et en rejetant l’appel, cette cour ne donne pas à la loi des douanes une interprétation différente de celle que lui a donnée la cour suprême de la Nouvelle-Ecosse.

The attitude of Mr. Justice Dorion and of the majority of his colleagues disclosed an apparent conflict with Rex v. Langille5 sufficient to grant leave to appeal under 1025 Cr. С. After considering the facts of the case, however, we agree with Mr. Justice St. Jacques that there is no real conflict between the two courts of appeal, as section 203, p. 4, of the Customs Act applies only to vessels arriving within three miles of the coast of Canada and could have no possible application to a vessel which, having cleared from Levis for Gaspé, stopped somewhere below Rimouski to take over from a schooner a cargo of liquor and then turned back to try and land these smuggled goods at some point on the shores of the St. Lawrence under the very inculpating circumstances disclosed by the record.

We are, therefore, unanimously of opinion that these appeals fail and should be dismissed.

Appeal dismissed.