FINANCE AND CORPORATE RELATIONS STATUTES AMENDMENT ACT, 1995

(1)

1995 FINANCE AND CORPORATE RELATIONS STATUTES SBC CHAP. 39 AMENDMENT, 1995

FINANCE AND CORPORATE RELATIONS STATUTES

AMENDMENT ACT, 1995

CHAPTER 39

Assented to June 30, 1995

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Motor Fuel Tax Act

1. Section 13 of the Motor Fuel Tax Act, S.B.C. 1985, c. 76, is amended by adding the following subsections:

(3) A person who uses coloured fuel for a purpose not authorized by subsection (1) shall pay to the government, on or before the 15th day of the month following the month in which the fuel is used, tax equal to the difference between

(a) the tax that the person would have paid on that fuel if the fuel had not been taxed as coloured fuel, and

(b) the tax paid by the person on that fuel.

(4) The tax payable u:.der subsection (3) is in addition to any tax payable under section 5.

2. The following sections are added to Part 5:

Security from collector

29.1 (1) A collector shall, in respect of fuel that is manufactured in or imported into the Province by the collector or that is otherwise acquired by the collector for sale in the Province, pay, as security to the director, within the time required by the director, an amount equal to the tax that would be collectable if that fuel were sold to a purchaser.

(2) On application by a collector, the director may, in writing and on conditions the director considers appropriate, exempt the collector from the requirements of subsection (1) in respect of fuel where the collector satisfies the director that the fuel will not be sold to a purchaser who is liable to pay tax under this Act.

(2)

SBC CHAP. 39 FINANCE AND CORPORATE RBLATIONS STATUTES 44 ELIZ. 2 AMENDMENT, 1995

(3) The director shall refund to a collector security paid under subsection (1) on being satisfied that the fuel in respect of which security was paid

(a) was not sold and will not be sold to a purchaser, or (b) was sold by the collector to another collector.

(4) An amount that is paid by a collector as security under subsection (I) may, unless the amount is refunded under subsection (3) or section 16, be retained by the government in satisfaction of the collector's obligation to collect and remit the tax imposed by this Act on a purchaser of the fuel. (5) This section does not apply in respect of fuel for which the collector has

been exempted under section 24 (1) from the requirement to collect tax. Security from a deputy collector

29.2 (1) A deputy collector shall, in respect of fuel acquired by the deputy collector from a collector, pay, as security to that collector, an amount equal to the tax that would be collectable if that fuel were sold to a purchaser.

(2) On application by a deputy collector, the director may, in writing and on conditions the director considers appropriate, exempt the deputy collector from the requirements of subsection (1) where the deputy collector satisfies the director that the fuel in respect of which the security is payable will not be sold to a purchaser who is liable to pay tax under this Act. (3) A collector who, in respect of fuel, has paid an amount as security under

section 29.1 (1) may retain any amount received under subsection (1) of this section instead of collecting the tax imposed on the purchaser in respect of that fuel.

(4) If, under subsection (1), a deputy collector pays an amount as security in respect of fuel, and that amount is retained under subsection (3), the deputy collector is, subject to subsection (5), deemed to have satisfied the deputy collector's obligation to remit the tax that is imposed by this Act on the purchaser of the fuel.

(5) If some or all of the fuel in respect of which a deputy collector has paid security under this section is in the possession of the deputy collector at the time that a change in the rate of tax payable by a purchaser of that fuel takes effect, the deputy collector shall provide to the director an inventory of that fuel and

(a) shall, if the rate of tax increases, pay, as security to the director, within the time required by the director, an amount equal to the difference between

(3)

(i) the amount equal to the tax that would be collectable if that fuel were sold to a purchaser, and

(ii) the amount paid by the deputy collector as security in respect of that fuel, or

(b) may, if the rate of tax decreases, apply to the director for a refund in an amount equal to the difference between the amount referred to in paragraph (a) (ii) and the amount referred to in paragraph (a) (i). (6) On application under subsection (5) (b) by a deputy collector, the director

shall pay to the deputy collector an amount equal to the difference between the amount referred to in subsection (5) (a) (ii) and the amount referred to in subsection (5) (a) (i) on being satisfied that the deputy collector has not received and will not receive a refund of that amount from the collector to whom the security was paid.

(7) The director shall pay to a deputy collector an amount equal to the security paid by that deputy collector under subsection (1) on being satisfied that

(a) the fuel in respect of which security was paid was not sold or will not be sold to a purchaser, and

(b) the deputy collector has not received and will not receive a refund of the security from the collector to whom it was paid.

(8) If a refund in respect of fuel is paid to a deputy collector by the director under subsection (7), the collector who sold the fuel to the deputy collector shall not grant a refund to the deputy collector or seek a refund from the government in respect of that fuel.

(9) This section does not apply to a deputy collector who has been appointed a collector under section 24 (2).

Security from retail dealer

29.3 (1) A retail dealer shall, in respect of fuel acquired by the retail dealer from a collector or deputy collector, pay, as security to that person, an amount equal to the tax that would be collectable if that fuel were sold to a purchaser.

(2) A collector or deputy collector who, in respect of fuel, has paid an amount as security under section 29.1 or 29.2 may retain any amount received under subsection (1) of this section instead of collecting the tax imposed on the purchaser in respect of that fuel.

(4)

SBC CHAP. 39 FINANCE AND CORPORATE RBLATIONS STATUTES 44 ELIZ. 2 AMENDMENT, 1995

dealer is deemed to have satisfied the retail dealer's obligation to remit the tax that is imposed by this Act on the purchaser of the fuel.

(4) The director shall pay to a retail dealer an amount equal to the security paid by that retail dealer under subsection (1) on being satisfied that

(a) the fuel in respect of which the security was paid was not sold and will not be sold to a purchaser, and

(b) the retail dealer has not received and will not receive a refund of the security from the collector or deputy collector to whom it was paid. (5) If a refund in respect of fuel is paid to a retail dealer by the director under

subsection (4), the collector or deputy collector who sold the fuel to the retail dealer shall not grant a refund to the retail dealer or seek a refund from the government in respect of that fuel.

(6) Subsection (1) does not apply in respect of fuel purchased by a retail dealer for resale to a purchaser who, by an enactment of the Province or Canada, is exempt from the tax imposed by this Act.

(7) This section does not apply to a retail dealer who has been appointed a collector under section 24 (2).

3. Section 53 (1) is amended by striking out "13," and substituting "13 (1), (2) or

(3),".

4. Section 60 (1) (c) is repealed and the following substituted:

(c) prescribing the method of payment, collection and remittance of tax on fuel or of a security and any other conditions or requirements affecting the payment, collection and remittance of tax or of a security and may prescribe different methods, conditions or requirements for different classes of persons,.

Social Service Tax Act

5. Section I (1) of the Social Service Tax Act, R.S.B.C. 1979, c. 388, is amended

(a) by adding the following definitions:

"dedicated telecommunication service" means the right, whether exercised

(5)

"dedicated telecommunication system" means a circuit, a communications

channel, a partial communications channel or any other means of sending or receiving a telecommunication that is dedicated to the exclusive use of a person as a result of that person having purchased the right to send from the Province or receive in the Province one or more telecommunications by that circuit, communications channel, partial communications channel or other means of sending or receiving a telecommunication;,

(b) by repealing the definition o/"line",

(c) in the definition of "purchase price" by striking out "and" at the end of paragraph (c), by striking out ":" and substituting ", and" at the end of paragraph (d) and by adding the following:

(e) in relation to a telecommunication service, means the total consideration paid by the purchaser for the provision of the service and for each period in respect of which an invoice for or in relation to the service is issued and includes

(i) sign-up charges, (ii) access charges, (iii) airtime charges, (iv) usage charges,

(v) service charges, and

(vi) the following charges for telecommunications provided as part of the service:

(A) in the case of a dedicated telecommunication service, all such charges;

(B) in the case of any other telecommunication service, ail such charges in respect of each telecommunication that meets at least 2 of the following criteria:

(I) the telecommunication originates in the Province; (II) the telecommum^iion is received in the Province; (III) the charge for the telecommunication is invoiced with respect to a transmitter that is ordinarily situated in the Province;,

(6)

SBC CHAP. 39 FINANCE AND CORPORATE RELATIONS STATUTES 44 ELIZ. 2 AMENDMENT, 1995

(f) a person who agrees to pay or is otherwise obliged to pay consideration for a telecommunication service

(i) provided to the person for the person's own use,

(ii) provided to another recipient for that recipient's benefit or use at the person's expense, or

(iii) provided to the person on behalf of or as agent for a principal, if the telecommunication service is for the benefit or use of the principal or another person at the expense of that principal;,

(e) by repealing paragraph (d) of the definition ©/"tangible personal property", and

(f) by adding the following definitions:

"telecommunication" includes any transmission, emission or reception of signs, signals, writing, images, sound or intelligence of any nature by wire, fibre optic cable, radio, satellite or other electromagnetic or laser based system, but does not include any prescribed transmission, emission or reception or any prescribed class of transmission, emission or reception;

"telecommunication service" means the right, whether exercised or not, to send or receive one or more telecommunications by means of a transmitter that is ordinarily situated in the Province, and includes

(a) the sending or receiving of a telecommunication by means of a transmitter that is ordinarily situated in the Province, and

(b) a dedicated telecommunication service;

"transmitter" means a facility or instrument by which a purchaser of a telecommunication service may send or receive the telecommunications that may be sent or received under that service, and includes a telephone, facsimile machine, modem and television;.

Section 2 is amended

(a) in subsection (3.1) by striking out "subsections (4) and (15)" and substituting

"subsection (4)",

(b) by repealing subsections (IS) to (17), and (c) by adding the following subsection:

(7)

1995 FINANCE AND CORPORATE RELATIONS STATUTES AMENDMENT, 1995

SBC CHAP. 39

reusable, pay tax in accordance with this section at the time of making the purchase.

7. The following section is added:

Tax on the provision of telecommunication service

2.05 (1) Unless subsection (2) or (3) applies, a tax on the provision of a telecommunication service shall be paid to Her Majesty in right of the Province by a purchaser at the rate of 7% of the purchase price of the telecommunication service.

(2) Unless subsection (3) applies, a tax on the provision of a dedicated telecommunication service in the Province shall be paid to Her Majesty in right of the Province by a purchaser in accordance with subsections (4) and (5).

(3) Subject to the terms and conditions the Lieutenant Governor in Council specifies in the regulations, no tax is payable under this section in respect of

(a) telecommunication services in the form of telephone services that qualify for a residential rate, other than long distance telephone services,

(b) telecommunication services in the form of cable television services, other than cable television services described as

(i) pay television,

(ii) specialty service channels, or (iii) non-programming channels

for which there is a charge in addition to the basic cable television charge,

(c) a prescribed telecommunication service, or

(d) a telecommunication service purchased by a person who is a member of a prescribed class of persons.

(4) The tax payable under subsection (2) shall be calculated in respect of a purchase price in accordance with the following formula:

„ PxBCDxR

Tax = -—

TD

where

(8)

P = the purchase price of the dedicated telecommunication service; BCD = the portion of the distances comprising I D that falls within the

Province;

R = the rate of tax that is in effect under subsection (1) on the date that the purchase price for the dedicated telecommunication service is payable;

TD = the total of the distances, measured in a direct line, that a telecommunication may travel between transmitters connected to the system, where the distance between any 2 transmitters connected to the system is included only once in the calculation ofTD.

(5) If the purchase price for a telecommunication service is only partly payable for a dedicated telecommunication service, the commissioner may determine the portion of the purchase price that is attributable to that dedicated telecommunication service.

(6) Where a person purchases a telecommunication service for the purposes of sending from the Province or receiving in the Province a telecommunication and the telecommunication is effected in part through a dedicated telecommunication system and in part through a telecommunication system that is not a dedicated telecommunication system, the tax payable by the purchaser on the provision of that telecommunication service shall be calculated as follows:

(a) the tax payable on the portion of the purchase price that is attributable to the dedicated telecommunication system shall be calculated in accordance with subsections (4) and (5);

(b) the tax payable on the portion of the purchase price that is attributable to a telecommunication system that is not a dedicated telecommunication system shall be calculated in accordance with subsection (1).

(7) The tax payable under subsection (1) or (2) shall be paid at the earlier of (a) the time that the purchase price of the telecommunication service is

paid, and

(b) the time that the purchase price of the telecommunication service is payable.

(9)

for the purpose of taxation under this Act shall be as determined by the commissioner.

(9) The tax imposed by this Act shall be calculated separately on every purchase of a telecommunication service, and shall be computed to the nearest cent, and 1/20 shall be counted as H, but where, on the same occasion or as part of one transaction, several telecommunication services are purchased, the total of the purchases shall be deemed one purchase for the purposes of this Act.

(10) For the purposes of applying the other provisions of this Act in relation to a tax imposed by this section,

(a) the receiving of a telecommunication service for consideration is deemed to be a purchase, and

(b) the provision of a telecommunication service for consideration is deemed to be a sale of tangible personal property at a retail sale, except that section 2 does not apply to a purchase of a telecommunication service.

8. Section 2.1 (5) is repealed and the following substituted:

(5) Tax imposed under this section shall be

(a) calculated separately for each payment of the lease price payable for each rental period of the lease, and

(b) paid by the earlier of

(i) the time that the lease price is paid, and (ii) the date on which the lease price is payable.

9. Section 4 is amended

(a) in subsection (1) (h.l) by adding ", other than containers in respect of which

tax is payable under section 2(18), that is" before "used for the purpose",

(b) by repealing subsection (I) (z) and (z.92), and (c) by adding the following subsections:

(10)

SBC CHAP. 39 FINANCE AND CORPORATE RELATIONS STATUTES AMENDMENT, 1995

44 ELIZ. 2

(3.3) A purchaser who purchases a telecommunication service is exempt from the tax imposed by section 2.05 on that purchase if the purchase is made for the sole purpose of selling to other persons the rights comprising that telecommunication service.

(a) in subsection (3) by striking out "2.03 or 2.04," and substituting "2.03, 2.04 or 2.05,", and

(b) by repealing subsection (5) and substituting the following:

(5) Subject to sections 2.1 (2) and 2.2 (2), tax imposed under this Act in relation to a lease price shall be collected at the time each payment of the lease price is paid or is payable, whichever is earlier.

11. Section 12 (1) is amended by striking out "sold or leased," and substituting "sold,

or leased".

12. Section 13 (1) (d) is amended by striking out "2 (1.7), (3), (12) or (17), 2.03 (4),

2.04 (3) and (8)," and substituting "2(1.7), (3) or (12), 2.03 (4), 2.04 (3) or (8), 2.05 (5) or (8),".

(a) by striking out "or taxable services" and substituting ", taxable services or

telecommunication services", and

(b) by adding the following paragraph:

(f) a telecommunication service that is taxable under section 2.05.

14. Section 33 (1.1) is amended by adding "2.05," after "2.04,".

15. Section 37 (2) is amended

(a) in paragraph (c.l) by adding "2.05," after "2.04," and (b) by adding the folio wing paragraphs:

(e.5) prescribing transmissions, emissions or receptions or classes of transmissions, emissions or receptions for the purposes of the definition of'telecommunication" in section 1 (1);

(11)

(i) prescribing telecommunication services or classes of telecommunication services for the purposes of section 2.05 (3) (c), subject to the terms and conditions the Lieutenant Governor in Council specifies, and

(ii) prescribing one or more classes of persons for the purposes of section 2.05 (3) (d), subject to the terms and conditions the Lieutenant Governor in Council specifies;.

Tobacco Tax Act

16. Section 1 of the Tobacco Tax Act, R.S.B.C. 1979, c. 404, is amended in the definition of "tobacco" by adding "and raw leaf tobacco" after "includes snuff.

17. Section 2 Is amended

(a) by adding the following subsections:

(6.1) Notwithstanding subsection (6), a dealer is not authorized as agent for the minister to collect from a retail dealer money paid as or on account of tax unless the dealer is a collector.

(6.2) Without limiting the generality of subsection (6.1), a retail dealer who has, in respect of a retail sale, paid money to a dealer who is not a collector as or on account of the tax payable on the retail sale shall, notwithstanding that payment, collect and remit to the minister in accordance with subsection (5) the tax imposed by this Act in respect of that retail sale.,

and

(b) in subsection (8) by adding "from a consumer" after "received by a dealer".

18. Section 4 is amended by adding the following subsection:

(3.1) No person shall sell or offer to sell tobacco at or from any location in the Province in respect of which the person's dealer's permit or the person's authorization under section 31 (1) (h) has been suspended or cancelled.

19. Section 4.2 is amended

(a) by repealing subsections (2) and (3) and substituting the following:

(2) If satisfied that a person has not complied with this Act or the regulations, the director may, without advance notice to the person,

(a) suspend the person's dealer's permit or the person's authorization under section 31 (1) (h) for a period of up to 30 days, or

(12)

(b) suspend the person's dealer's permit or the person's authorization under section 31 (1) (h) in respect of a specified location for a period of up to 30 days.

(3) If satisfied that a person has not complied with this Act or the regulations, the director may

(a) cancel the person's dealer's permit or the person's authorization under section 31(1) (h), or

(b) cancel the person's dealer's permit or the person's authorization under section 31 (1) (h) in respect of a specified location.,

(b) in subsection (4) by adding "under subsection (3) (a) or cancelled in respect of

a specified location under subsection (3) (b)" after "not be cancelled", and

(c) in subsections (4) and (5) by adding "under section 31 (1) (h)" after

"authorization".

20. Section 5.1 (3) is repealed and the following substituted:

(3) The director shall refund to the wholesale dealer security paid under subsection (1) on being satisfied that the tobacco in respect of which the security was paid

(a) was not sold and will not be sold to a consumer, or

(b) was sold by the wholesale dealer to a person who holds a dealer's permit authorizing the person to sell tobacco at wholesale.

(4) Subject to subsection (5), an amount that is paid by a wholesale dealer as security under subsection (1) may, unless the amount is refunded under subsection (3) or section 8.01, be retained by Her Majesty in right of the Province in satisfaction of the wholesale dealer's obligation to colle n and remit the tax imposed by this Act on a consumer of the tobacco.

(5) If some or all of the tobacco in respect of which a wholesale dealer has paid security to the director under this section is in the possession of the wholesale dealer at the time that a change in the rate of tax payable by a consumer of that tobacco takes effect, the wholesale dealer shall provide to the director an inventory of that tobacco and

(a) shall, if the rate of tax increases, pay, as security to the director, within the time required by the director, an amount equal to the difference between

(i) the amount equal to the tax that would be collectable if that tobacco were sold to a consumer, and

440

(13)

(ii) the amount paid by the wholesale dealer as security in respect of that tobacco, or

(b) may, if the rate of tax decreases, apply to the director for a refund in an amount equal to the difference between the amount referred to in paragraph (a) (ii) and the amount referred to in paragraph (a) (i). (6) On application under subsection (5) (b) by a wholesale dealer, the director

shall pay to the wholesale dealer an amount equal to the difference between the amount referred to in subsection (5) (a) (ii) and the amount referred to in subsection (5) (a) (i).

21. The following section is added:

Security to wholesale dealer

5.2 (1) A retail dealer shall, in respect of tobarco acquired by that retail dealer from a person who holds a dealer's permit authorizing the person to sell tobacco at wholesale, pay, as security to that person, an amount equal to the tax that would be collectable if that tobacco were sold to a consumer in the Province.

(2) A wholesale dealer who, in respect of tobacco, has paid an amount as security under section 5.1 (1) may retain any amount received under subsection (1) of this section instead of collecting the tax imposed on the consumer in respect of that tobacco.

(3) If, under subsection (1), a retail dealer pays an amount as security in respect of tobacco, and that amount is retained under subsection (2), the retail dealer is deemed to have satisfied the retail dealer's obligation to remit the tax that is imposed by this Act on the consumer of the tobacco. (4) The director shall pay to a retail dealer an amount equal to the security

paid by that retail dealer under subsection (1) on being satisfied that (a) the tobacco in respect of which security was paid was not sold and

will not be sold to a consumer in the Province, and

(b) the retail dealer has not received and will not receive a refund of the security from the wholesale dealer to whom it was paid.

(14)

(6) Subsection (1) does not apply in respect of tobacco purchased by a retail dealer for resale to a consumer who, by an enactment of the Province or Canada, is exempt from the tax imposed by this Act.

(a) by repealing subsection (I) (b.I) and substituting the following:

(b.l) a decision of the director under section 4.1 to refuse to issue a dealer's permit,

(b.2) a decision of the director under section 4.2 to suspend or cancel, or to suspend or cancel in respect of a specified location, the person's dealer's permit or the person's authorization under section 31(1) (h)„

(b) by adding the following subsection:

(1.1) If a person disputes a seizure effected under section 37.1, the person may personally or by the person's agent, withiii 90 days after the date identified as the date of the seizure in the receipt provided under section 37.1 (4). serve notice of appeal on the minister., and

(c) in subsection (4) (a) by adding "or, in the case of a seizure referred fo in subsection (1.1), determine whether the person from whom the tobacco was seized was entitled to possess that tobacco" after "the appeal is made".

(a) in subsection (1.1) by striking out "44" and by substituting "44 (1), (2), (3),

(4) or (5)", and

(b) by adding the following subsection:

(2.6) A person who contravenes section 44 (7) commits an offence and is liable to a fine of not more than $50 000 or to a term of imprisonment of not more than 2 years or to both fine and imprisonment.

19!

26.

24. Section 28 (3) is amended by adding "who is authorized to sell tobacco by a

dealer's permit or by regulation" after "dealer".

25. Section 31 (I) is amended

(a) in paragraph (b) by adding "and of any payment of a security" after "of the

tax", and

442

(15)

(b) by adding the following paragraph:

(1) prescribing the maximum quantity of tobacco that, if found by an official within the meaning of section 37.1, may be seized by that official under that section.

26. Section 34 is amended by striking out "a peace officer may," and substituting "and

where a peace officer has reasonable and probable grounds to believe that it is impracticable to obtain a warrant, the peace officer may,".

27. The following section i* added:

Seizure by official

37.1 (1) In this section "official" means a person appointed by the director under section 8.5 for the purposes of that section.

(2) An official who finds tobacco while conducting an inspection, audit or examination under section 8.5 may seize and remove that tobacco and the packages in which it is kept if

(a) the quantity of the tobacco found by the official is not more than the prescribed quantity, and

(b) the tobacco

(i) does not bear the mark or stamp specified in the regulations, (ii) bears a mark or stamp specified by an enactment of a

jurisdiction other than the Province,

(iii) was marked or stamped by a person not authorized by the director to mark or stamp tobacco, or

(iv) is held for sale at retail in the Province by a person who is not authorized, by a dealer's pern Jt or by regulation as required by section 4 (1), to sell tobacco at retail.

(3) For the purposes of subsection (?) (b) (iv), a person who hoids a quantity of tobacco in excess of 5 cartons of cigarettes is deemed, in the absence of evidence to the contrary, to hold the tobacco for sale at retail in the Province.

(4) An official who seizes and removes tobacco under subsection (2) shall provide a receipt for the tobacco to the psrson from whom the tobacco is seized.

(16)

SBC CHAP. 39 FINANCE AND CORPORATE RELATIONS STATUTES AMENDMENT, 1995

44 ELIZ. 2

(a) the quantity of tobacco seized and the location from which it was seized,

(b) the name of the person from whom the tobacco was seized, the reason for the seizure and the date of the seizure, and

(c) the name of the official who seized the tobacco. (6) Tobacco seized under this section

(a) is forfeited to the Crown,

(b) may be destroyed by the director after the director is satisfied that the tobacco is no longer required for the puiposes of an investigation or a proceeding, and

(c) shall not give rise to an offence and shall not be tendered as evidence in a prosecution for an offence.

(7) Where, as a result of an appeal under section 10 or 11, it is determined by the minister or the couit, as the case may be, that the appellant was entitled, in accordance with this Act, to possession of the tobacco seized under this section, the director must, at the director's option,

(a) return the tobacco to the person, or

(b) pay to the person out of the consolidated revenue fund an amcin.t equal to the wholesale cost of the tobacco at the time of its seizure. (8) A person to whom tobacco is returned or money is paid under subsection

(7) is not entitled to compensation for any losses, costs or damages suffered or incurred by the person directly or indirectly as a result of the seizure or the appeal.

(a) by repealing subsection (J),

444

(b) in subsection (2) by striking out "owner or other person entitled to it" and substituting "person, if any, lawfully entitled to have possession of it", (c) by repealing subsection (3) and substituting the following:

(3) After giving the persons claiming to be entitled to the tobacco a reasonable opportunity to satisfy the requirements for the tobacco's return under subsection (2), the director may sell or cause to be sold, or dispose of in any manner other men by sale, all or part of the tobacco detained under section 38 , and

(17)

(d) by repealing subsections (5) and (6) and substituting the following:

(5) Subject to section 41 (2), tobacco thac was seized under section 37 (1), any packages in which it is kept that were also seized and any money or security held in lieu under subsection (4) of this section

(a) are forfeited to the Crown if a conviction is obtained for an offence referred to in section 27 (2.4) or (2.6) in relation to the tobacco, or (b) must, in any other case, be retained until dealt with in accordance

with subsections (5.1) to (6).

(5.1) A person who claims to be the person lawfully entitled to possession of tobacco seized under section 37 (1), other than a person entitled to make an application to the Supreme Court under section 41, may apply to a justice, on at least 10 clear days' notice to the Attorney General, for an order that the tobacco be returned to the applicant if

(a) at least 6 months has expired since the date of the seizure and no proceeding in respect of the tobacco has beep, initiated, or

(b) a proceeding, including all available appeals, in respect of an offence alleged under section 27 (2.4) or (2.6) in relation to the tobacco has been concluded and no conviction has been obtained.

(5.2) An application under subsection (5.1) must be brought

(a) under subsection (5.1) (a), within 12 months after the date of the seizure, and

(o) undor subsection (5.1) (b), within 30 days after the conclusion of the proceeding referred to in that subsection.

(5.3) On an application under subsection (5.1), the justice shall

(a) order the tobacco forfeited to the Crown if the justice is satisfied that the tobacco

(i) does not bear the mark or stamp specified in the regulations, (ii) bears a mark or stamp specified by an enactment of a

jurisdiction other than the Province, or

(iii) was marked or stamped by a person not authorized by the director to mark or stamp tobacco, or

(b) if the justice is satisfied that the tobacco is not tobacco referred to in paragraph (a), that the applicant is lawfully entitled to possession of the tobacco and that it is no longer reasonably necessary to retain the tobacco, order that

1

(18)

(ii) the applicant be paid an amount equal to the wholesale cost of the tobacco at the time of its seizure.

(5.4) A person aggrieved by an order made under subsection (5.3) may appeal from the order to the Supreme Court and for the appeal sections 93 to 104 of the Offence Act apply.

(5.5) If an application is not brought under subsection (5.1) within the time required by subsection (5.2), the tobacco is forfeited to the Crown. (5.6) Any money or security held by the director under subsection (4) in lieu of

tobacco seized under section 37(1) must be returned to the owner of the tobacco or to any other person entitled to the money or security if

(a) at least 6 months has expired since the date of the seizure and no investigation or proceeding in respect of the tobacco has been initiated, or

(b) a proceeding, including all available appeals, in respect of an offence alleged under section 27 (2.4) or (2.6) in relation to the tobacco has been concluded and no conviction has been obtained.

(5.7) A person to whom tobacco is reiurned, money is paid or security is returned under subsection (5.3) or (5.6) is not entitled to compensation f c any losses, costs or damages suffered or incurred by the person directly or indirectly as a result of the seizure, the provision of security or an application made under this section.

(5.8) In the event of a conflict between this section and section 19 of the Offence

Act, this section prevails.

(6) Money payable under subsection (5.3) (b) (ii) shall be paid out of the consolidated revenue fund.

(a) in subsection (4) by striking out "unless that person is a dealer or a common

carrier under contract to a dealer." and substituting "unless that person is a dealer who is authorized to sell tobacco by a dealer's permit or by regulation or is a common carrier under contract to such a dealer.", and

(b) by adding the following subsections:

(19)

outside of the Province, selis or offers to sell tobacco or keeps tobacco for sale, either at wholesale or retail.

(6) Subsection (5) does not apply if the tobacco, packages, cartons or cases are sold or distributed to a person who holds a dealer's permit.

(7) No person shall, without first receiving the written authotization of the director to do so, mark or stamp an indicium on tobacco or on any package, carton or case.

Commencement

30. (1) Sections 1,3, 17 (a), 24 and 29 (a) are deemed to hive come into force on

April 1,1989 and are retroactive to the extent necessar) to give them effect on and after that date.

(2) Sections 8 and 10 (b) come into force August 1, 1995.