Judgment of the Court
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:
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 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 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 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.,
Mr. Justice Ross dissented from the above judgment. After careful consideration of the case, we find that the Langille case (1) 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 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 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 to the entry of any such goods.
Mr. Justice Dorion with whom concurred Howard, Rivard and Bond JJ., in his reasons for judgment, says: And Mr. Justice St. Jacques says, at page 94 (1): The attitude of Mr. Justice Dorion and of the majority of his colleagues disclosed an apparent conflict with Rex v. Langille (2) sufficient to grant leave to appeal under 1025 Cr. C. 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 L6vis for Gasp6, 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.
Statutes and regulations cited
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- section 1025
- s. 203
- section 203