|
|
(c) that the occupant does not consent to the
entry, or that entry has been refused or there
are reasonable grounds for believing that it
will be refused.
|
|
| Use of force
|
(3) An inspector executing the warrant shall
not use force unless the inspector is
accompanied by a peace officer and the use of
force is specifically authorized in the warrant.
|
|
| Certificate of
analysis
|
37. An analyst who has analysed or
examined a thing under this Act, or a sample
of it, may issue a certificate or report setting
out the results of the analysis or examination.
|
|
| Assistance to
inspectors
|
38. (1) The owner of a place inspected by an
inspector under this Act, the person in charge
of the place and every person found in the
place shall
|
|
|
|
(a) provide all reasonable assistance to
enable the inspector to carry out the
inspector's duties under this Act; and
|
|
|
|
(b) furnish the inspector with the
information that the inspector reasonably
requires for that purpose.
|
|
| Obstruction
|
(2) No person shall obstruct or hinder, or
knowingly make a false or misleading
statement to, an inspector who is carrying out
duties under this Act.
|
|
|
|
|
|
| Seizure
|
39. (1) During an inspection under this Act,
an inspector may seize any tobacco product or
other thing by means of which or in relation to
which the inspector believes on reasonable
grounds that this Act has been contravened.
|
|
| Storage and
removal
|
(2) The inspector may direct that any
tobacco product or thing seized be kept or
stored in the place where it was seized or that
it be removed to another place.
|
|
| Interference
|
(3) Unless authorized by an inspector, no
person shall remove, alter or interfere in any
way with any tobacco product or other thing
seized.
|
|
| Application
for restoration
|
40. (1) Any person from whom a tobacco
product or thing was seized may, within sixty
days after the date of seizure, apply to a
provincial court judge within whose
jurisdiction the seizure was made for an order
of restoration, if the person sends a notice
containing the prescribed information to the
Minister within the prescribed time and in the
prescribed manner.
|
|
| Order of
restoration
|
(2) The provincial court judge may order
that the tobacco product or thing be restored
immediately to the applicant if, on hearing the
application, the judge is satisfied
|
|
|
|
(a) that the applicant is entitled to
possession of the tobacco product or thing
seized; and
|
|
|
|
(b) that the tobacco product or thing seized
is not and will not be required as evidence
in any proceedings in respect of an offence
under this Act.
|
|
| Order of later
restoration
|
(3) Where, on hearing an application made
under subsection (1), the provincial court
judge is satisfied that the applicant is entitled
to possession of the tobacco product or thing
seized but is not satisfied with respect to the
matters mentioned in paragraph (2)(b), the
judge may order that the product or thing
seized be restored to the applicant
|
|
|
|
(a) on the expiration of one hundred and
eighty days after the date of the seizure if no
proceedings in respect of an offence under
this Act have been commenced before that
time; or
|
|
|
|
(b) on the final conclusion of any such
proceedings, in any other case.
|
|
| No restoration
where
forfeiture by
consent
|
(4) The provincial court judge may not
make an order under this section for
restoration of a tobacco product or thing if it
has been forfeited by consent under
subsection 41(3).
|
|
| Forfeiture
|
41. (1) Where no application has been made
under subsection 40 (1) for the restoration of
a tobacco product or thing seized under this
Act within sixty days after the date of the
seizure, or an application has been made but
on the hearing of the application no order of
restoration is made, the product or thing is
forfeited to Her Majesty and may be disposed
of as the Minister directs.
|
|
| Forfeiture on
conviction
|
(2) Where a person has been convicted of an
offence under this Act, any tobacco product or
thing seized under this Act by means of or in
respect of which the offence was committed is
forfeited to Her Majesty and may be disposed
of as the Minister directs.
|
|
| Forfeiture
with consent
|
(3) Where an inspector has seized a tobacco
product or thing and the owner or the person
in whose possession it was at the time of
seizure consents in writing to its forfeiture, the
product or thing is forfeited to Her Majesty
and may be destroyed or disposed of as the
Minister directs.
|
|
|
|
|
|
| Regulations
|
42. The Governor in Council may make
regulations
|
|
|
|
(a) respecting the powers and duties of
inspectors and analysts;
|
|
|
|
(b) respecting the taking of samples;
|
|
|
|
(c) prescribing anything that by this Part is
to be prescribed; and
|
|
|
|
(d) generally for carrying out the purposes
of this Part.
|
|
|
|
|
|
|
|
|
|
| Laying of
proposed
regulations
|
42.1 (1) The Governor in Council may not
make a regulation under section 7, 14, 17, 33
or 42 unless the Minister has first laid the
proposed regulation before the House of
Commons.
|
|
| Report by
committee
|
(2) A proposed regulation that is laid before
the House of Commons is deemed to be
automatically referred to the appropriate
committee of the House, as determined by the
rules of the House, and the committee may
conduct inquiries or public hearings with
respect to the proposed regulation and report
its findings to the House.
|
|
| Making of
regulations
|
(3) The Governor in Council may make a
regulation under section 7, 14, 17, 33 or 42
only if
|
|
|
|
(a) the House of Commons has not
concurred in any report from a committee
respecting the proposed regulation within
the thirty sitting days following the day on
which the proposed regulation was laid
before the House, in which case the
regulation may only be made in the form
laid; or
|
|
|
|
(b) the House of Commons has concurred in
a report from a committee approving the
proposed regulation or an amended version
of it, in which case the Governor in Council
may only make the regulation in the form
concurred in.
|
|
| Definition of
``sitting day''
|
(4) For the purpose of this section, ``sitting
day'' means a day on which the House of
Commons sits.
|
|
|
|
|
|
|
|
|
|
| Packaging
and
promotion
offences
|
43. Every person who contravenes section
5 or 19 is guilty of an offence and liable
|
|
|
|
(a) on summary conviction, to a fine not
exceeding $100,000 or to imprisonment for
a term not exceeding one year, or to both; or
|
|
|
|
(b) on conviction on indictment, to a fine
not exceeding $300,000 or to imprisonment
for a term not exceeding two years, or to
both.
|
|
| Summary
offence
|
44. Every person who contravenes section
6, subsection 10(1) or (2), 26(1) or (2) or 31(1)
or (3), section 32 or subsection 38(1) or (2) is
guilty of an offence and liable on summary
conviction to a fine not exceeding $50,000 or
to imprisonment for a term not exceeding six
months, or to both.
|
|
| Sales to
youth,
promotions
|
45. Every person who contravenes section
8, 9, 11 or 12, or any retailer who contravenes
section 29, is guilty of an offence and liable on
summary conviction
|
|
|
|
(a) for a first offence, to a fine not exceeding
$3,000; and
|
|
|
|
(b) for a subsequent offence, to a fine not
exceeding $50,000.
|
|
| Offence by
retailer
|
46. (1) Every retailer who contravenes
subsection 15(1) or (2) is guilty of an offence
and liable on summary conviction to a fine not
exceeding $50,000.
|
|
| Offence by
manufacturer
|
(2) Every manufacturer who contravenes
subsection 15(1) or (2) or section 29 is guilty
of an offence and liable on summary
conviction to a fine not exceeding $300,000 or
to imprisonment for a term not exceeding two
years, or to both.
|
|
| General
offence
|
47. Every person who contravenes
subsection 13(1) or (2), section 20, subsection
21(1) or 22(1) or section 23 or 27 is guilty of
an offence and liable on summary conviction
to a fine not exceeding $300,000 or to
imprisonment for a term not exceeding two
years, or to both.
|
|
| Where no
other penalty
|
48. Every person who contravenes a
provision of this Act or the regulations for
which no other penalty is provided in this Act
is guilty of an offence and liable on summary
conviction to a fine not exceeding $25,000.
|
|
| Continuing
offence
|
49. A person who commits or continues an
offence under this Act on more than one day
is liable to be convicted for a separate offence
for each day on which the offence is
committed or continued.
|
|
| Offence by
director or
officer of
corporation
|
50. Where a corporation commits an
offence under this Act, any director or officer
of the corporation who authorized or
acquiesced in the offence is guilty of an
offence and liable on conviction to the penalty
provided for by this Act in respect of the
offence committed by the corporation,
whether or not the corporation has been
prosecuted.
|
|
| Limitation
period
|
51. No prosecution for a summary
conviction offence under this Act may be
instituted after two years after the time when
the subject-matter of the proceedings arose.
|
|
| Venue
|
52. A prosecution for an offence under this
Act may be instituted, heard, tried and
determined by a court in any jurisdiction in
which the accused carries on business,
regardless of where the subject-matter of the
prosecution arose.
|
|
| Exception
need not be
pleaded
|
53. (1) No exception, exemption, excuse or
qualification prescribed by law is required to
be set out or negatived, as the case may be, in
an information or indictment for an offence
under this Act or under section 463, 464 or 465
of the Criminal Code in respect of an offence
under this Act.
|
|
| Proof of
exemption
|
(2) In a prosecution for an offence referred
to in subsection (1), the burden of proving that
an exception, exemption, excuse or
qualification prescribed by law operates in
favour of the accused is on the accused and the
prosecutor is not required, except by way of
rebuttal, to prove that it does not operate in
favour of the accused, whether or not it is set
out in the information or indictment.
|
|
| Offence by
employee or
agent
|
54. In a prosecution for an offence under
this Act, it is sufficient proof of the offence to
establish that it was committed by an
employee or agent of the accused, whether or
not the employee or agent is identified or has
been prosecuted for the offence, unless the
accused establishes that the offence was
committed without the knowledge or consent
of the accused or that the accused and that the
accused exercised all due diligence to prevent
its commission.
|
|
| Certified
copies and
extracts
|
55. In a prosecution for an offence under
this Act, a copy of any written or electronic
information obtained during an inspection
under this Act and certified by the inspector to
be a true copy is admissible in evidence and is,
in the absence of evidence to the contrary,
proof of its contents.
|
|
| Certificate or
report of
analyst as
proof
|
56. (1) Subject to subsections (2) and (3), a
certificate or report purporting to be signed by
an analyst stating that the analyst has analysed
anything to which this Act applies and stating
the results of the analysis, is admissible in
evidence in any prosecution for an offence
under this Act without proof of the signature
or official character of the person appearing to
have signed the certificate or report.
|
|
| Notice
|
(2) The certificate or report may not be
received in evidence unless the party
intending to produce it has, before the trial,
given the party against whom it is intended to
be produced reasonable notice of that
intention together with a copy of the
certificate or report.
|
|
| Attendance of
analyst
|
(3) The party against whom the certificate
or report is produced may, with leave of the
court, require the attendance of the analyst for
the purpose of cross-examination.
|
|
| Evidentiary
presumptions
|
57. In a prosecution for a contravention of
this Act,
|
|
|
|
(a) information on a package indicating that
it contains a tobacco product is, in the
absence of evidence to the contrary, proof
that the package contains a tobacco
product; and
|
|
|
|
(b) a name or address on a package
purporting to be the name or address of the
person by whom the tobacco product was
manufactured is, in the absence of evidence
to the contrary, proof that it was
manufactured by that person.
|
|
| Additional
fine
|
58. If an offender has been convicted of an
offence under this Act and the court is satisfied
that as a result of the commission of the
offence the offender acquired any monetary
benefits or that monetary benefits accrued to
the offender, the court may order the offender
to pay, despite the maximum amount of any
fine that may otherwise be imposed under this
Act, an additional fine in an amount equal to
the court's estimation of the amount of those
monetary benefits.
|
|
| Orders of
court
|
59. When the court is sentencing an
offender who has been convicted of an offence
under this Act, in addition to any other
punishment that may be imposed, the court
may, having regard to the nature of the offence
and the circumstances surrounding its
commission, make an order having any or all
of the following effects:
|
|
|
|
(a) prohibiting the offender from doing any
act or engaging in any activity that is likely
to result in the continuation or repetition of
the offence;
|
|
|
|
(b) prohibiting the offender from selling
tobacco products for a period of not more
than one year, in the case of a subsequent
offence under section 8, 9, 11, 12 or 29;
|
|
|
|
(c) directing the offender to publish, in the
manner directed by the court, the facts
relating to the commission of the offence;
|
|
|
|
(d) directing the offender to post any bond
or pay any amount of money into court that
will ensure compliance with an order made
pursuant to this section;
|
|
|
|
(e) directing the offender to compensate the
Minister, in whole or in part, for the cost of
any remedial or preventive action taken by
or caused to be taken on behalf of the
Minister as a result of the act or omission
that constituted the offence; and
|
|
|
|
(f) directing the offender to pay an amount
for the purposes of conducting research into
any matters relating to tobacco products
that the court considers appropriate.
|
|