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| This archived statute consolidation is current to November 5, 2001 and includes changes enacted and in force by that date. For the most current information, click here. |
[Updated to May 14, 2001]
1 (1) In this Act:
"assessment" includes reassessment;
"band" has the same meaning as in the Indian Act (Canada);
"band bylaw" means a bylaw passed by a band that imposes a tax on an Indian or band purchasing tobacco on a reserve, where the tax is collected by the Province under an agreement referred to in section 43.1;
"collector" means a dealer who is appointed by the director to act as agent of the minister to collect the tax imposed by this Act;
"consumer" means, subject to subsection (2), a person who
(a) acquires tobacco in British Columbia, or
(b) in the case of a person ordinarily resident in British Columbia, or carrying on business in British Columbia, brings into British Columbia tobacco acquired outside British Columbia,
for the person's own use or consumption, or for the use or consumption by others at the person's expense, or on behalf of, or as the agent for, a principal who wishes to acquire the tobacco for use or consumption by the principal or other persons at the principal's expense;
"customs officer" means an officer as defined in section 2 of the Customs Act (Canada), R.S.C. 1970, c. C-40, who is employed at a customs office in British Columbia;
"dealer" means a person who, either at wholesale or at retail,
(a) sells or offers to sell, in British Columbia, tobacco, or
(b) keeps for sale, in British Columbia, tobacco;
"dealer's permit" means a permit issued under section 6;
"director" means the person authorized by the minister to administer this Act;
"Indian" has the same meaning as in the Indian Act (Canada);
"mistake of law" includes any mistake that is not solely a mistake of fact;
"package" includes a box, tin or other container in which tobacco is sold at retail;
"postal agent" means the Canada Post Corporation established under the Canada Post Corporation Act (Canada) and its officers, employees and agents;
"reserve" has the same meaning as in the Indian Act (Canada);
"residence" means a building or part of a building, recreation vehicle, manufactured home, trailer, tent or vessel that is actually occupied and used by the owner, lessee or tenant solely as a
(a) private dwelling,
(b) private guest room in a hotel, motel, auto court, lodging house, boarding house or club, or
(c) private summer dwelling, or private dwelling or living place used during vacation periods, or private lodge,
together with the land appurtenant to it that is essential or appropriate for the convenient use, occupation and enjoyment of a private dwelling or private summer dwelling;
"retail dealer" means a person who sells or offers for sale, in British Columbia, tobacco to a consumer;
"retail sale" means a sale of tobacco to a consumer;
"tobacco" means tobacco and tobacco products in any form in which they may be consumed, by a consumer, and includes snuff and raw leaf tobacco;
"wholesale dealer" means a person who sells or offers for sale, in British Columbia, tobacco for the purpose of resale.
(2) Despite the definition of "consumer" in subsection (1), the term "consumer" as used
(a) in the definition of "tobacco" in subsection (1), and
(b) in sections 22 (2), 27 (3), 39 (4) (d), 43 (2) (b) and 46,
includes a "consumer" as defined in section 3 (1).
2 (1) In this section:
"cigarette" includes a tobacco stick;
"tobacco stick" means a roll or tubular construction of tobacco intended for smoking, other than a cigar, that requires further preparation to be consumed.
(1.1) A consumer must, at the time of making a purchase of tobacco in the form of cigars, pay to the government a tax at the rate of 77% of the retail price of any cigar purchased by the consumer to a maximum tax of $5 per cigar.
(2) A consumer must, at the time of making a purchase of tobacco in the form of cigarettes, pay to the government a tax at the rate of 11¢ for each cigarette purchased.
(3) A consumer must, at the time of making a purchase of tobacco in a form other than cigars or cigarettes, pay to the government a tax at the rate of 11¢ for each gram of tobacco purchased.
(4) The tax payable on tobacco, other than cigars, must be calculated separately on every package.
(5) The tax payable on cigars must be calculated separately on the retail price of each cigar whether or not it is sold in a package.
(6) The tax payable under this section must be calculated to the nearest cent and, for that purpose, 1/2¢ must be counted as 1¢, and the minimum tax payable is 1¢.
(7) A retail dealer who is authorized under this Act to sell tobacco at retail
(a) is deemed to be an agent for the minister,
(b) must, at the time of sale, levy and collect the tax imposed by this Act on the consumer,
(c) subject to section 12 (3), must, in respect of tobacco purchased by the retail dealer from a collector, remit the tax to the collector on demand, and
(d) must, in respect of tobacco purchased by the retail dealer from someone other than a collector, remit the tax to the minister at the prescribed time and in the prescribed manner.
(7.1) If a person who is not authorized under this Act to sell tobacco at retail sells tobacco to a consumer and receives money in respect of the tax payable on the tobacco, that person must immediately remit that money to the minister.
(8) A collector who sells tobacco to a retail dealer
(a) is deemed to be an agent for the minister,
(b) subject to section 12 (2), must collect the tax from the retail dealer, and
(c) subject to section 11 (4), must remit the tax to the minister at the prescribed time and in the prescribed manner.
(9) A person other than a collector who sells tobacco to a retail dealer and receives money in respect of the tax payable on the tobacco must immediately remit that money to the minister.
(10) Despite subsections (9) and (11),
(a) a person is not authorized as agent for the minister to collect from a retail dealer money paid as or on account of tax unless that person is a collector, and
(b) a retail dealer who has, in respect of a retail sale, paid money to a person who is not a collector as or on account of the tax payable on the retail sale must, despite that payment, collect and remit to the minister in accordance with subsection (7) (d) the tax imposed by this Act in respect of that retail sale.
(10.1) [Repealed 1998-36-9.]
(11) Despite section 16, any money received by a dealer, other than a security received under section 12, in respect of a sale of tobacco, up to the full amount of the taxes owing, is deemed to be payment of the taxes owing by the consumer under this Act.
(12) If a person collects an amount as if it were a tax imposed under this Act, the person must remit the amount collected to the director at the same time and in the same manner as tax collected under this Act.
3 (1) In this section, "consumer" means a person who
(a) resides, ordinarily resides or carries on business in British Columbia, and
(b) brings or sends into British Columbia, or acquires or receives delivery of in British Columbia, tobacco
(i) for the person's own consumption or use,
(ii) for the consumption or use by another person at the first person's expense, or
(iii) on behalf of or as the agent for a principal for consumption or use by the principal or by another person at the principal's expense.
(2) Unless subsection (3) or (4) applies, a consumer must immediately, at the time of bringing, sending, acquiring or receiving tobacco in British Columbia,
(a) report the matter to the director in writing,
(b) provide the director with all information that is required by the director regarding the tobacco, and
(c) pay to the government the same amount of tax that would have been payable had the tobacco been purchased in British Columbia.
(3) A consumer who is an individual must immediately, at the time of bringing, sending or receiving tobacco, other than tobacco in the form of cigars, into British Columbia through a port of entry from a place outside of Canada,
(a) report the matter to a customs officer,
(b) provide the customs officer with all information that is required by the customs officer regarding the tobacco, and
(c) pay to the government the same amount of tax that would have been payable had the tobacco been purchased in British Columbia, by paying the tax to the customs officer as agent of the government.
(4) A consumer who is an individual must immediately, at the time of receiving tobacco, other than tobacco in the form of cigars, into British Columbia by post from a place outside of Canada,
(a) provide the postal agent where the tobacco is received with all information that is required by the postal agent regarding the tobacco, and
(b) pay to the government the same amount of tax that would have been payable had the tobacco been purchased in British Columbia, by paying tax to the postal agent as an agent of the government.
(5) Subsections (3) and (4) do not apply to tobacco if no tax is payable on the tobacco under Division III of Part IX of the Excise Tax Act (Canada).
(6) If a consumer fails or refuses to comply with subsection (3) or (4), the customs officer or postal agent may detain the tobacco.
(7) Tobacco detained under subsection (6) must be dealt with as follows:
(a) if, before the end of 60 days after the start of the detention, the tax payable on the tobacco at the time of its detention and any expenses related to the detention are paid and the requirements of subsection (3) (b) or (4) (b) are met, the tobacco must be returned to the purchaser;
(b) if the tax and expenses are not paid within the time limit referred to in paragraph (a) or the requirements of subsection (3) (b) or (4) (b) are not met, the tobacco is forfeited to the government and may be disposed of as directed by the director.
4 A dealer must not advertise or hold out or state to the public or to a consumer, directly or indirectly, that the tax or any part of it imposed by this Act will be assumed or absorbed by the dealer, or that it will not be considered as an element in the price to the consumer or, if added, that it or any part of it will be refunded.
5 (1) A person must not sell or offer to sell tobacco at retail in British Columbia unless the person is authorized to sell tobacco at retail by a dealer's permit or by regulation.
(2) A person must not sell or offer to sell tobacco at wholesale in British Columbia unless the person is authorized to sell tobacco at wholesale by a dealer's permit.
(3) A person must not sell or offer to sell in British Columbia tobacco for resale to any person who is not authorized to sell tobacco by a dealer's permit or by regulation.
(4) A person must not sell or offer to sell tobacco at or from any location in British Columbia in respect of which the person's dealer's permit or the person's authorization under section 44 (2) (i) has been suspended or cancelled.
(5) Unless authorized by the director, a person must not acquire in British Columbia tobacco for resale except from a person who holds a dealer's permit to sell tobacco at wholesale.
(6) A person must not participate or acquiesce in a contravention of this section.
6 (1) The director may issue, at the director's discretion but subject to the regulations, a dealer's permit authorizing a person to sell tobacco at retail, at wholesale or at both.
(2) A dealer's permit is not transferable.
(3) A person who is issued a dealer's permit must
(a) keep the permit at the person's principal place of business in British Columbia, and
(b) present the permit for inspection when requested to do so by the director, by a person designated by the director or by a person within a class of persons designated by the director.
(4) The director may require the applicant for a dealer’s permit, as a condition of granting the permit, to deposit a bond by way of cash or other security.
(5) If the director requires that a bond be deposited under subsection (4), section 37 applies.
7 (1) If the director refuses to issue a dealer's permit, the director must provide written reasons to the applicant for the permit.
(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 44 (2) (i) for a period of up to 30 days, or
(b) suspend the person's dealer's permit or the person's authorization under section 44 (2) (i) 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 44 (2) (i), or
(b) cancel the person's dealer's permit or the person's authorization under section 44 (2) (i) in respect of a specified location.
(4) Before exercising the power under subsection (3), the director must
(a) deliver written notice of the proposed cancellation and the reasons for it to the person, and
(b) give the person an opportunity to show why the dealer's permit or authorization under section 44 (2) (i) should not be
(i) cancelled under subsection (3) (a), or
(ii) cancelled in respect of a specified location under subsection (3) (b).
(5) A person who has been refused a dealer's permit, or whose permit or authorization under section 44 (2) (i) has been suspended or cancelled, may appeal the director's decision in accordance with section 23.
8 (1) If, by an enactment of British Columbia or Canada, tobacco is exempted from tax imposed under this Act, the director may, subject to the regulations, set a limit on the quantity of that tobacco that may be purchased for resale by any dealer.
(2) The director may, under subsection (1), set limits that differ for different types of tobacco or different dealers or classes of dealers.
9 (1) Subject to an order under section 10 (3) of the Tobacco Sales Act, on receiving a certificate from the administrator under the Tobacco Sales Act, the director must, if the person has a dealer's permit or authorization under section 44 (2) (i) applicable to a location specified in the certificate,
(a) suspend the permit or authorization for the location and period specified in the certificate, and
(b) give the administrator under the Tobacco Sales Act written notice stating
(i) the fact that the suspension has been issued,
(ii) the name of the person whose permit or authorization is suspended,
(iii) the location to which the suspension applies, and
(iv) the period for which the suspension applies.
(2) A suspension under this section may be made without advance notice to a dealer.
10 (1) In this section, "sale in bulk" means
(a) a sale of tobacco out of the usual course of business of a dealer,
(b) a sale of substantially the entire stock of tobacco of a dealer, or
(c) a sale of an interest in the business of a dealer.
(2) A dealer must not dispose of the dealer's stock of tobacco through a sale in bulk without first obtaining a certificate in duplicate from the director that the tax collectable or payable under this Act by the dealer has been paid.
(3) A person purchasing a stock of tobacco through a sale in bulk must obtain from the dealer selling the stock the duplicate copy of the certificate provided under subsection (2).
(4) A person who fails to comply with subsection (3) is responsible for payment to the minister of the tax collectable or payable under this Act by the dealer disposing of the dealer's stock of tobacco through a sale in bulk.
11 (1) A wholesale dealer must, in respect of tobacco delivered to the wholesale dealer in British Columbia, 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 tobacco were sold to a consumer in British Columbia.
(2) On application by a wholesale dealer, the director may, in writing and on conditions the director considers appropriate, exempt the wholesale dealer from the requirements of subsection (1) if the wholesale dealer satisfies the director that the tobacco in respect of which the security is payable will not be sold at a taxable retail sale in British Columbia.
(3) The director must refund to the wholesale dealer security paid under subsection (1) if the director is 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 16, be retained by the government in satisfaction of the wholesale dealer's obligation to collect 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 must provide to the director an inventory of that tobacco and
(a) must, 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 of tax that would be collectable if that tobacco were sold to a consumer, and
(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 must 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).
12 (1) A retail dealer must, in respect of tobacco 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 British Columbia.
(2) A wholesale dealer who, in respect of tobacco, has paid an amount as security under section 11 (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 must pay to a retail dealer an amount equal to the security paid by that retail dealer under subsection (1) if the director is satisfied that
(a) the tobacco in respect of which security was paid was not sold and will not be sold to a consumer in British Columbia, 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.
(5) If a refund in respect of tobacco is paid to a retail dealer by the director under subsection (4), the wholesale dealer who sold the tobacco to the retail dealer must not grant a refund to the retail dealer or seek a refund from the government in respect of that tobacco.
(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 British Columbia or Canada, is exempt from the tax imposed by this Act.
12.1 (1) For any purpose related to the administration or enforcement of this Act or the regulations, the director or a person authorized by the director may, by demand notice, require from any person
(a) a return,
(b) any information or additional information,
(c) the production of any records, or
(d) a written statement.
(2) A demand notice under subsection (1)
(a) must be delivered to the person by personal service, registered mail, electronic mail or fax,
(b) must specify a reasonable time by which the person must comply with the demand notice, and
(c) in relation to a requirement under subsection (1) (d), may require the written statement to be made by way of affidavit or statutory declaration.
(3) A person to whom a demand notice is delivered under this section must comply with the notice within the time specified in the notice.
(4) Under this Act, an affidavit by the director, or the authorized person referred to in subsection (1), in which are stated the facts necessary to establish
(a) compliance by the director or authorized person with this section, or
(b) default by a person on whom a demand was made under this section
must be admitted as evidence in any court and is proof, in the absence of evidence to the contrary, of the facts stated.
13 A person who has custody of or control over information or records under this Act must not disclose the information or records to any other person except
(a) in the course of administering or enforcing this or another taxation Act or a band bylaw,
(b) in court proceedings relating to this or another taxation Act or a band bylaw,
(c) as provided in, or ordered under, section 39 (3), 40 (1), 99 (5) or 100 (1) of the Family Relations Act or section 8 (3) or 9 (2) of the Family Maintenance Enforcement Act,
(d) under an agreement that
(i) is between the government and another government or a band,
(ii) relates to the administration or enforcement of taxation enactments, and
(iii) provides for the disclosure of information and records to and the exchange of similar information and records with that other government or band, or
(e) for the purpose of the compilation of statistical information by the government or the government of Canada.
14 A person who collects any tax imposed under this Act is deemed to act subject to Part 10 of the Financial Administration Act but, despite any other Act, a person acting under this section is not made ineligible as a member of the Legislative Assembly.
15 The minister may make an allowance to collectors for their services in collecting and forwarding the tax to the minister, as prescribed in the regulations but, despite any other Act, a person accepting an allowance under this section is not, by accepting the allowance, made ineligible as a member of the Legislative Assembly.
16 (1) The director may, in accordance with the regulations, refund from the consolidated revenue fund to a dealer who sells tobacco a portion, determined in the prescribed manner, of the amount sent to the director in respect of taxes payable on that sale under this Act.
(2) The director may provide a refund under subsection (1) if
(a) the dealer, in accordance with this Act, remits the tax required under this Act to be levied and collected for the sale referred to in subsection (1),
(b) the purchaser subsequently fails to pay to the dealer the full amount of the consideration and tax payable on that sale, and
(c) the dealer writes off as unrealizable or uncollectable the amount owing by the purchaser.
(3) A collector may, in the prescribed manner, deduct the amount of the refund payable to the collector under this section from the amount of taxes that the collector is required to remit under this Act.
(4) If a collector who has obtained a refund under subsection (1) or made a deduction under subsection (3) recovers some or all of the amount referred to in subsection (2) (c) with respect to which the refund was paid or the deduction was made, the collector must add an amount, determined in the prescribed manner, to the tax to be paid or remitted by the collector under this Act with respect to the reporting period in which the recovery was made.
(5) If a dealer who is not a collector and who has obtained a refund under subsection (1) recovers some or all of the amount referred to in subsection (2) (c) with respect to which the refund was paid, the dealer must, promptly after that recovery, pay to the government an amount determined in the prescribed manner.
17 (1) If the director is satisfied that taxes or an amount equal to taxes have been paid in error, other than an error that is a mistake of law, the director must refund from the consolidated revenue fund the amount of overpayment to the person entitled.
(2) If the director is satisfied that a collector has remitted to the director an amount as collected taxes that the collector neither collected nor was required to collect under this Act, the director must refund the amount to the collector from the consolidated revenue fund.
18 (1) In order to claim a refund under this Act, other than a refund referred to in section 43 (2) (b), a person must
(a) submit to the director an application in writing signed by the person who paid the amount claimed, and
(b) provide sufficient evidence to satisfy the director that the person who paid the amount is entitled to the refund.
(2) For the purposes of subsection (1) (a), if the person who paid the amount claimed is a corporation, the application must be signed by a director or authorized employee of the corporation.
19 (1) Despite section 16 of the Financial Administration Act,
(a) a refund of less than $10 must not be made, and
(b) a refund must not be made on a claim for a refund made more than 6 years after the date on which the amount claimed was paid.
(2) Despite the Limitation Act, an action for a refund of tax paid in error or an amount equal to tax paid in error, other than an error that is a mistake of law, must not be brought more than 6 years after the date on which the amount claimed was paid.
20 (1) A person does not have a right of action or other remedy against the government for the recovery of money paid as tax by mistake of law or as an amount equal to tax by mistake of law except by way of subsection (2) and by appeal under sections 23 and 24.
(2) A person who has paid money as tax by mistake of law or as an amount equal to tax by mistake of law may apply to the director for a refund of that money within
(a) 6 years after the money was paid, if it was paid by an individual in respect of tobacco for the personal consumption of that individual, or
(b) 6 months after the money was paid, in any other case.
(3) If the director is satisfied that a person who applies under subsection (2) has paid money as tax by mistake of law or as an amount equal to tax by mistake of law, the director must refund out of the consolidated revenue fund to the person the amount paid by mistake.
(4) This section applies also to money paid as tax by mistake of law or as an amount equal to tax by mistake of law before June 5, 1992.
21 (1) The director may appoint persons for the purposes of this section.
(2) Except as limited by subsection (4), a person appointed under subsection (1) may enter at any reasonable time the business premises occupied by a person, or the premises where the records of the person are kept, in order to
(a) determine whether this Act and the regulations are being or have been complied with,
(b) inspect, audit and examine books of account or other records, or
(c) ascertain the quantities of tobacco on hand, used or sold by the person.
(3) A person occupying premises referred to in subsection (2) must produce all books of account or other records that may be required by a person appointed under subsection (1) and must answer all questions of that person regarding the matters referred to in subsection (2).
(4) The power to enter a place under subsection (2) must not be used to enter a dwelling occupied as a residence without the consent of the occupier except under the authority of a warrant issued under subsection (5).
(5) On being satisfied by evidence on oath that there are in a place records or other things for which there are reasonable grounds to believe that they are relevant to the matters referred to in subsection (2), a justice may issue a warrant authorizing a person named in the warrant to enter the place in accordance with the warrant in order to exercise the powers referred to in subsection (2) (a) to (c).
(6) When required by the director, a dealer must provide to the director or a person appointed under subsection (1) all books of account and other records that the director considers necessary to determine whether this Act and the regulations are being or have been complied with.
(7) A person must not
(a) hinder, molest or interfere with a person doing anything that the person is authorized to do under this section, or
(b) prevent or attempt to prevent a person from doing anything that the person is authorized to do under this section.
22 (1) Subject to subsections (2.2) and (5.2), if, on the basis of an inspection, audit or examination under section 21 or on the basis of other information, it appears that a person has not complied with this Act or the regulations, the official acting under that section must calculate the tax collected or due in a manner and by a procedure the director considers adequate and expedient, and the director must assess the person for the amount of tax calculated.
(2) If it appears that an amount of tax should have been but was not paid by a consumer, the director may assess the consumer for the amount of tax payable plus interest calculated at the rate and in the manner prescribed.
(2.01) If a consumer purchases tobacco from a retail dealer who is not authorized under this Act to sell tobacco at retail and the tax payable in respect of that tobacco is not remitted to the director, the director may assess either
(a) the consumer for the amount of tax payable in respect of that tobacco, or
(b) the retail dealer for the amount of tax collected in respect of that tobacco,
but not both the consumer and the retail dealer.
(2.1) If, on the basis of an inspection, audit or examination under section 21 or from other information available to the director, it appears that a person has received a refund of tax under this Act that was in excess of the refund amount that was due to the person, the director must make an assessment against the person in an amount equal to the excess amount refunded plus interest calculated at the rate and in the manner prescribed.
(2.2) If, as a result of an inspection, audit or examination or on the basis of other information, it appears that a wholesale dealer who does not hold a dealer's permit to sell tobacco at wholesale has sold tobacco to another dealer, the director may impose a penalty against the wholesale dealer equal to the amount of tax that would be collectable if that tobacco were sold to a consumer in British Columbia, plus interest calculated at the rate and in the manner prescribed.
(2.3) If a dealer is assessed a penalty under subsection (2.2), that dealer must not be assessed under subsection (1) in respect of the same tobacco that gave rise to the assessment under subsection (2.2).
(3) In making an assessment under this section, the director must not consider or include a period greater than 6 years before the date of the first notice of assessment.
(4) Despite subsection (3), in making an assessment under this section, the director may consider and include any period, if the assessment relates to a contravention, of this Act or the regulations, involving willful default or fraud.
(5) Subject to subsection (5.2), if, as a result of an inspection, audit or examination under section 21 or on the basis of other information, it appears that an amount of tax should have been but was not collected, the director must impose a penalty against the dealer who failed to collect the tax in an amount equal to the total amount of tax that should have been collected plus interest calculated at the rate and in the manner prescribed.
(5.1) If, as a result of an inspection, audit or examination or on the basis of other information under section 21, it appears that an amount of security should have been but was not paid, the director must impose a penalty against the dealer who failed to pay the security in an amount equal to the total amount of security that should have been paid plus interest calculated at the rate and in the manner prescribed.
(5.2) If a dealer is assessed a penalty under subsection (5.1), that dealer must not be assessed under subsection (1) or (5) in respect of the same tobacco that gave rise to the assessment under subsection (5.1).
(6) In imposing a penalty under subsection (5), the director must not consider a period greater than 3 years, all or part of which may be before April 6, 1982.
(7) Evidence that an assessment has been made under subsection (1), (2) or (2.1), or that a penalty has been imposed under subsection (5), is proof in the absence of evidence to the contrary that the amount stated in the assessment or imposed as a penalty is due and owing.
(7.1) Proof that a dealer has acquired tobacco is proof in the absence of evidence to the contrary that the dealer has sold that tobacco in British Columbia, and has collected an amount at least equal to the tax payable by the consumer in respect of that tobacco.
(8) A person assessed under subsection (1) or (2.1) may appeal the assessment in accordance with section 23.
(9) A person who has paid an amount imposed under subsection (5) may, in a court of competent jurisdiction, sue the person who was liable to pay the tax in order to recover the amount imposed under subsection (5), and any amounts recovered in the action may be retained by the plaintiff as compensation for the amount paid under subsection (5).
23 (1) If a person disputes
(a) an assessment made under section 22 (1) or (2),
(b) a penalty or interest imposed under section 22 (5) or 35,
(c) a decision of the director under section 6 to refuse to issue a dealer's permit,
(d) a decision of the director under section 7 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 44 (2) (i),
(e) a decision of the director to refuse an exemption under section 11 (2),
(f) a decision of the director respecting a refund under section 11 (3), 12 (4), 16, 17 or 20 (3), or
(g) a limit set by the director under section 8,
the person may personally or by the person's agent, within 90 days after the date on the notice of the assessment, penalty, interest or decision, serve notice of appeal on the minister.
(2) If a person disputes a seizure made under section 51, the person may personally or by the person's agent, within 90 days after the date identified as the date of the seizure in the receipt provided under section 51 (4), serve notice of appeal on the minister.
(3) The notice of appeal must be in writing and must be addressed to the Minister of Finance and Corporate Relations at Victoria.
(4) The notice must set out clearly the reasons for the appeal and all facts relative to it.
(5) On receiving the notice of appeal, the minister must
(a) consider the matter,
(b) affirm, amend or change the assessment, decision, estimate, interest charge, penalty or the nature of the assessment or, in the case of a seizure referred to in subsection (2), determine whether the person from whom the tobacco was seized was entitled to possess that tobacco, and
(c) promptly notify the appellant in writing of the result of the appeal.
24 (1) A decision of the minister under section 23 (5) may be appealed to the Supreme Court by way of an originating application.
(1.1) An appeal under this section is a new hearing that is not limited to the evidence and issues that were before the minister.
(2) The Rules of Court relating to originating applications apply, but Rule 49 does not apply.
(3) A petition must be filed in the court registry within 90 days after the date on the minister's notification of decision.
(4) Within 14 days after the filing of the petition under subsection (3), the petition must be served on the government in accordance with section 8 of the Crown Proceeding Act and the government must be designated "Her Majesty the Queen in right of the Province of British Columbia".
(5) The court may dismiss the appeal, allow the appeal, vary the decision from which the appeal is made or refer the decision back to the director for reconsideration.
(6) An appeal lies from a decision of the court to the Court of Appeal with leave of a justice of the Court of Appeal.
25 An assessment made or penalty imposed by the director under section 22 must not be varied or disallowed because of any irregularity, informality, omission or error on the part of any person in the observation of any directory provision up to the date of the issuing of the notice of assessment or imposition of a penalty under section 22.
26 (1) Neither the giving of a notice of appeal by a person, nor a delay in the hearing of the appeal
(a) affects the due date, interest, penalties or any liability for payment provided under this Act in respect of any taxes or penalties due and payable or that have been collected on behalf of the government that are the subject matter of the appeal, or
(b) delays the collection of those taxes or penalties.
(2) If a decision of the director or the minister is set aside or the amount of an assessment or penalty is reduced on appeal, the director must refund from the consolidated revenue fund
(a) the amount or excess amount paid, and
(b) any additional interest or penalty imposed and paid.
27 (1) The consumer is and remains liable for the tax imposed under this Act until the tax has been paid to a dealer.
(2) If a dealer fails to collect the tax imposed under this Act, the dealer must immediately notify the director.
(3) The consumer may be sued for the amount of the tax imposed under this Act in any court of competent jurisdiction, but action against the consumer under this section does not affect the liability of the dealer under this Act for failure to collect the tax.
(4) Despite section 2 (7.1) and (11),
(a) a person is not authorized as agent for the minister to collect from a consumer money paid as or on account of tax unless that person is authorized under this Act to sell tobacco at retail, and
(b) a consumer who has purchased tobacco from a person referred to in paragraph (a) must immediately report the purchase in writing to the minister and remit to the minister the tax imposed by this Act in respect of that purchase.
28 (1) A person who collects an amount of tax, or an amount as if it were tax under this Act, is deemed to hold the amount in trust for the government and for the payment of the amount to the government in the manner and at the time required under this Act and the regulations.
(2) Until an amount of tax or an amount collected as if it were tax referred to in subsection (1) is paid, the unpaid amount forms a lien and charge on the entire assets of the person who collected it, or the person’s estate in the hands of any trustee, and has priority over all other claims of any person.
29 (1) Before taking proceedings for the recovery of an amount owing under this Act, the director must give to the person who owes the amount notice of the director’s intention to enforce payment.
(2) Failure to give notice under subsection (1) does not affect the validity of proceedings taken for the recovery of an amount owing under this Act.
30 The amount of taxes that are due and payable under this Act, or that have been collected on behalf of the government, may be recovered by action in any court of competent jurisdiction as for a debt due to the government, and the court may make an order as to the costs of the action in favour of or against the government.
31 (1) If default is made in the payment of any taxes that are due and payable under this Act, or that have been collected on behalf of the government, or any part of them, the director may issue a certificate stating the amount due, the amount remaining unpaid, including interest and penalties, and the name of the person by whom it is payable.
(2) The director may file the certificate issued under subsection (1) with any district registrar of the Supreme Court and, when filed, the certificate has the same effect, and all proceedings may be taken on it, as if it were a judgment of the court for the recovery of a debt of the amount stated in the certificate against the person named in it.
32 (1) In this section, "taxpayer" includes a collector and a dealer.
(2) If the director knows or suspects that a person is or is about to become indebted or liable to make a payment to a taxpayer, the director may demand that that person pay to the director on account of the taxpayer's liability under this Act all or part of the money otherwise payable to the taxpayer.
(3) Without limiting subsection (2), if the director knows or suspects that a person is about to advance money to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by a taxpayer, the director may demand that that person pay to the director on account of the taxpayer's liability under this Act the money that would otherwise be so advanced or paid.
(3.1) A demand under this section may be served by
(a) personal service,
(b) registered mail, or
(c) electronic mail or fax.
(4) If under this section the director demands that a person pay to the director, on account of the liability under this Act of a taxpayer, money otherwise payable by that person to the taxpayer as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the demand
(a) applies to all of those payments to be made by the person to the taxpayer until the liability under this Act is satisfied, and
(b) operates to require payments to the director out of each payment of the amount stipulated by the director in the demand.
(5) Money or a beneficial interest in money in a savings institution
(a) on deposit to the credit of a taxpayer at the time a demand is served, or
(b) deposited to the credit of a taxpayer after a demand is served,
is money for which the savings institution is indebted to the taxpayer within the meaning of this section, but money on deposit or deposited to the credit of a taxpayer as described in paragraph (a) or (b) does not include money on deposit or deposited to the credit of a taxpayer in his or her capacity as a trustee.
(6) A demand under this section continues in effect until
(a) the demand is satisfied, or
(b) 90 days after the demand is served,
whichever is earlier.
(7) Despite subsection (6), if a demand is made in respect of a periodic payment referred to in subsection (4), the demand continues in effect until it is satisfied unless no periodic payment is made or is liable to be made within 90 days after the demand is served, in which case the demand ceases to have effect on the expiration of that period.
(7.1) Money demanded from a person by the director under this section becomes payable
(a) as soon as the person is served with the demand, if the person is indebted or liable to make a payment to the taxpayer at the time the demand is served, or
(b) as soon as the person becomes indebted or liable to make a payment to the taxpayer, in any other case.
(8) A person who fails to comply with a demand under subsection (2) or (4) is liable to pay to the government an amount equal to the amount that the person was required under subsection (2) or (4), as the case may be, to pay to the director.
(9) A person who fails to comply with a demand under subsection (3) is liable to pay to the government an amount equal to the lesser of
(a) the aggregate of the money advanced or paid, and
(b) the amount that the person was required under subsection (3) to pay to the director.
(10) The receipt of the director for money paid under this section is a good and sufficient discharge of the original liability to the extent of the payment.
(11) Money paid by any person to the director in compliance with a demand under this section is deemed to have been paid by that person to the taxpayer.
(12) If a person carries on business under a name or style other than the person's own name, the demand under subsection (2), (3) or (4) may be addressed to the name or style under which the person carries on business and, in the case of personal service, is deemed to have been validly served if it was left with an adult person employed at the place of business of the addressee.
(13) If persons carry on business in partnership, the demand under subsection (2), (3) or (4) may be addressed to the partnership name and, in the case of personal service, is deemed to have been validly served if it was served on one of the partners or left with an adult person employed at the place of business of the partnership.
33 If a dealer sells or offers to sell tobacco in British Columbia and is not authorized under this Act to do so, the minister may apply to the Supreme Court for an injunction ordering the dealer to cease selling or offering to sell tobacco until the dealer's obligations under this Act are fulfilled and the dealer pays the costs of the application.
34 (1) The powers conferred by this Act for the recovery of taxes or money collected as taxes by action in court and by filing a certificate may be exercised separately, concurrently or cumulatively.
(2) The liability of a person for the payment of any tax under this Act, or the liability to remit taxes collected, is not affected in any way by the fact that a fine or penalty has been imposed on, or paid by, the person in respect of any contravention of this Act.
35 (1) In addition to any other penalty, the director may,
(a) if he or she is satisfied that a person willfully failed to remit tax collected as required by this Act or the regulations, assess against the person a penalty equal to 100% of the amount not remitted,
(b) if he or she is satisfied that a person evaded the payment of tax by willfully making a false or deceptive statement or by willful default or fraud, assess against the person a penalty equal to 25% of the amount evaded, or
(c) in any case, other than a case referred to in paragraph (a) or (b), if he or she is satisfied that a person failed to remit or pay any tax as required by this Act or the regulations, assess against the person a penalty equal to 10% of the amount not remitted or paid.
(2) The director may, at any time,
(a) whether or not he or she has assessed a penalty under subsection (1), and
(b) in respect of any period during which tax under this Act or the regulations ought to have been remitted or paid,
assess, on the amount of taxes not remitted or paid as required under this Act or the regulations, interest calculated at the rate and in the manner prescribed.
(3) The penalty and interest under this section form part of the lien provided for in section 28.
36 (1) In this section, "proceeding" means
(a) an action for the recovery of taxes under section 30,
(b) the filing of a certificate under section 31, and
(c) the making of a demand under section 32.
(2) A proceeding may be commenced at any time within 7 years after the date on which liability arose for payment of the taxes claimed in the proceeding.
(3) A proceeding that relates to a contravention of this Act or the regulations and that involves willful default or fraud may be commenced at any time, despite subsection (2) and even though at any time before March 15, 1985, recovery of the taxes under the law then in force was statute barred.
37 (1) The director may require a dealer to deposit with the director a bond by way of cash or other security satisfactory to the director.
(2) The amount of the bond must be determined by the director, but must not be greater than an amount equal to 6 times the tax, or the estimated tax, that would normally be collected by the dealer each month under this Act.
(3) If a dealer, who has deposited a bond under subsection (1), fails to collect or remit tax or pay security in accordance with this Act, the director, after giving written notice to the dealer, may apply all or part of the bond to the amount that should have been collected, remitted or paid by the dealer and to the interest due on that amount under this Act.
(4) If there is a change in circumstances after a bond is provided under subsection (1) or section 6 (4), the director may vary the amount of the bond required, to a maximum of 6 times the estimated tax that would normally be collected under this Act by the dealer each month.
38 If a corporation is guilty of an offence against this Act and if an officer, director, employee or agent of the corporation directed, authorized, assented to, acquiesced or participated in the commission of the offence, that person is a party to and guilty of the offence, but that liability does not affect the liability of the corporation for the penalties provided for that offence.
39 (1) Subject to subsections (2), (3) and (4), a person who contravenes section 27, 49 or 58 (1), (2), (3), (4) or (5) commits an offence and is liable
(a) on a first conviction, to a fine of at least $500 and not more than $1 000 or to a term of imprisonment of at least one month and not more than 3 months, or to both fine and imprisonment, and
(b) on a subsequent conviction for the same or another provision of this Act, to a fine of at least $500 and not more than $2 000 or to a term of imprisonment of at least 3 months and not more than 6 months, or to both fine and imprisonment.
(2) A dealer who fails to collect taxes as required by this Act commits an offence and is liable on conviction to a fine equal to the amount of the tax that should have been collected, including arrears, penalties and interest, as determined under subsection (10) and, in addition, is liable on conviction to
(a) a fine of at least $200 and not more than $2 000,
(b) a term of imprisonment of at least 3 months and not more than 6 months, or
(c) both the fine and imprisonment set out in paragraphs (a) and (b).
(3) A retail dealer commits an offence if the retail dealer
(a) sells tobacco that he or she caused to be brought into British Columbia, and
(b) fails
(i) to report to the minister as required by the regulations within the prescribed time, or
(ii) to remit the tax at the time and in the manner prescribed.
(4) A person who does any of the following commits an offence:
(a) contravenes section 5;
(b) makes or participates in, assents to or acquiesces in the making of a false or deceptive statement in a return, certificate or form required to be made or filed under this Act or the regulations;
(c) in order to evade remittance of tax collected by the person, destroys, alters, mutilates, conceals or otherwise disposes of a record or book of accounts of a dealer;
(d) in a record or book of accounts of a dealer or consumer, makes or assents to or acquiesces in the making of a false or deceptive entry, or omits or assents to or acquiesces in the omission to enter a material particular;
(d.1) refuses to produce records or books of account or hinders or molests or interferes with an inspection, audit or examination or prevents or attempts to prevent a person from carrying out an inspection, audit or examination under this Act;
(e) willfully, in any manner, fails to comply with this Act or the regulations;
(f) willfully, in any manner, evades or attempts to evade compliance with this Act or the regulations, or remittance or payment of taxes required by this Act or the regulations;
(g) conspires with any person to do anything described in paragraphs (b) to (f).
(5) A person who commits an offence under subsection (3) or (4) is liable
(a) to a fine of not more than $25 000 or to imprisonment for not more than 2 years or to both fine and imprisonment, and
(b) in addition, to a fine equal to the amount of any tax not collected, remitted or paid, including any penalties and interest, as determined under subsection (10).
(6) A person who contravenes section 13 commits an offence and is liable to a fine of not more than $2 000.
(7) A person who unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose, in contravention of this Act or the regulations, commits an offence and is liable
(a) on a first conviction, if the quantity of tobacco is 10 000 grams of tobacco or less, to
(i) forfeiture of the tobacco to the government, and
(ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco,
(b) on a first conviction, if the quantity of tobacco is greater than 10 000 grams of tobacco, to
(i) forfeiture of the tobacco to the government,
(ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco, and
(iii) a fine of at least $2 500 and not more than $25 000 or to imprisonment for not more than 2 years, or to both fine and imprisonment, or
(c) on a subsequent conviction for the same offence under this subsection, to
(i) forfeiture of the tobacco to the government,
(ii) a fine equal to 3 times the tax that would have been due on the retail sale of the tobacco, and
(iii) a fine of at least $10 000 and not more than $50 000 or to imprisonment for not more than 2 years, or to both fine and imprisonment.
(8) For the purpose of subsection (7), if one of 2 or more persons, with the knowledge and acquiescence of the rest, has tobacco in the person's possession, the tobacco is, in the absence of evidence to the contrary, considered to be in the possession of each and all of them.
(9) A person who contravenes section 58 (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.
(10) The director must determine the amount of the tax referred to in subsections (2) and (5) (b) from information available to the director, and must issue a certificate as to the amount.
(11) In any prosecution under this section, a certificate signed or purported to be signed by the director stating the amount of tax that should have been collected, remitted or paid is evidence of the amount of the tax that should have been collected, remitted or paid, and conclusive evidence of the authority of the person giving or making the certificate without proof of appointment or signature.
(12) Any information or complaint in respect of an offence under this Act may be for one or more than one offence, and no information, complaint, warrant, conviction or other proceeding in a prosecution under this Act is objectionable or insufficient by reason of the fact that it related to 2 or more offences.
(13) Nothing in this section, or the enforcement of a penalty under this section, suspends or affects any remedy for the recovery of any tax or amount payable under this Act.
(14) Fines collected under this Act must be paid to the minister on behalf of the government and must be paid into the consolidated revenue fund.
40 (1) In any prosecution for failure to pay the tax or to collect or forward the tax, the onus of proving the tax was paid, collected or forwarded, as the case may be, to the director, is on the defendant.
(2) In a prosecution brought against a person who is a dealer, the person's application form for a dealer's permit is evidence that the person charged is a dealer, and the person's completed return form is evidence that the person charged collected tax.
(3) In a prosecution under section 39 (7) and for the purposes of sections 47 and 48, the possession or keeping of more than 1 000 grams of tobacco, by a person other than a dealer who is authorized to sell tobacco by a dealer’s permit or by regulation is, in the absence of evidence to the contrary, prima facie evidence that the person unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose.
(4) In a prosecution under section 39 (7) and for the purposes of sections 47 and 48, the possession or keeping of more than 1 000 grams of tobacco that does not bear the prescribed mark or stamp, is, in the absence of evidence to the contrary, prima facie evidence that the person unlawfully possesses or keeps tobacco, or possesses or keeps tobacco for an unlawful purpose.
41 Section 5 of the Offence Act does not apply to this Act or the regulations.
42 Any information or complaint in respect of an offence against this Act must be laid or made within 6 years of the time when the matter of the information or complaint arose, except that in the case of fraud no limitation applies.
43 (1) The minister, on behalf of the government, may enter into an agreement with the government of Canada respecting the administration and enforcement of this Act by customs officers and postal agents in relation to tobacco referred to in section 3.
(2) An agreement under subsection (1) may do the following:
(a) authorize payment from the consolidated revenue fund of a fee to be paid to or, despite section 14 (1) of the Financial Administration Act, retained by the government of Canada for its services under the agreement;
(b) authorize the government of Canada to make refunds to consumers of amounts considered by a customs officer or postal agent to be refundable under section 17 if the requirements of section 18 are met, which amount must then be offset by the government of Canada from tax collected under the agreement or repaid to the government of Canada from the consolidated revenue fund;
(c) authorize the government of Canada to enter into an agreement with the Canada Post Corporation respecting the administration and enforcement of this Act by postal agents.
(3) A customs officer or postal agent acting under an agreement under this section is an agent of the government for the purposes of this Act and sections 14 and 28 to 31 do not apply to the customs officer or postal agent.
(4) An action or proceeding must not be brought against a customs officer or postal agent referred to in subsection (3) for anything done or omitted to be done in good faith by the customs officer or postal agent
(a) in the performance or intended performance of any duty under this Act, the regulations or an agreement under this section, or
(b) in the exercise or intended exercise of any power under this Act, the regulations or an agreement under this section.
(5) Subsection (4) does not absolve the government from vicarious liability because of an act or omission for which the government would have been liable had that subsection not been in force.
43.1 (1) In this section, "band tobacco tax" means a tax imposed by a bylaw passed by a band that is payable by a consumer of tobacco products who is exempt under the Indian Act (Canada) from paying the tax imposed by this Act.
(2) The Minister of Finance and Corporate Relations may enter into a tax collection agreement on behalf of the government with a band that has imposed a band tobacco tax.
(3) An agreement under subsection (2) must include provision for the director, as agent for the band, to collect the band tobacco tax, and may include provision for a commission, fee or charge to be paid to the government for the services of the director.
(4) Despite the Financial Administration Act, band tobacco tax that is collected for a band by the director under an agreement entered into under subsection (2) must be paid into the consolidated revenue fund.
(5) The Minister of Finance and Corporate Relations, out of the consolidated revenue fund,
(a) must pay to the band money that, under the tax collection agreement, is payable to the band,
(b) if required or permitted to do so under the tax collection agreement, may advance money to the band in anticipation of the collection of band tobacco tax under the agreement, and
(c) if required or permitted to do so under the tax collection agreement, may make payments to the band based on estimates of band tobacco tax collected.
44 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing forms and records to be used or kept for the purpose of this Act or the regulations;
(b) prescribing the method of collection and remittance of the tax and of any payment of a security, and any other conditions or requirements affecting the collection and remittance, and prescribing different methods, conditions or requirements for different classes of persons;
(c) prescribing the remuneration to be paid to collectors;
(d) respecting agreements between the minister or the director and the persons who collect the tax imposed by this Act, and providing for their use;
(e) defining any expression used but not defined in this Act or the regulations;
(f) exempting certain tobaccos, dealers or purchasers from all or any part of this Act or the regulations;
(g) respecting anything considered by the Lieutenant Governor in Council to be necessary or advisable respecting the limits set or that may be set by the director under section 8, including, without limitation, prescribing the factors that the director is to consider and the procedure that the director is to follow when setting limits under section 8;
(h) establishing classes of dealer's permits and prescribing different requirements, limits and conditions for each class of dealer's permits;
(i) prescribing classes of persons as persons authorized to sell tobacco at retail, subject to a suspension or cancellation under section 7, and establishing limits or conditions on this authorization;
(j) prescribing limits on the quantity of tobacco that may be sold to or purchased by a person at a single retail sale or at retail sales during a specified period, including the power to establish different limits for different circumstances, different types of tobacco or different dealers, consumers, or classes of dealers and consumers;
(k) establishing a marking system for identifying tobacco that is to be sold to persons who are required to pay tax under this Act and identifying tobacco that is to be sold to persons whose purchase of tobacco is exempt from tax, and establishing circumstances, in relation to the marking system, under which a person may possess, purchase, sell, transport or store tobacco;
(l) respecting anything considered by the Lieutenant Governor in Council to be necessary or advisable to carry out the intent and purpose of an agreement under section 43;
(m) prescribing a rate of interest or the manner in which a rate of interest is to be determined for the purpose of section 54 (15);
(n) prescribing the maximum quantity of tobacco that, if found by an official within the meaning of section 51, may be seized by that official under that section;
(o) prescribing interest rates and the manner of calculating interest for the purposes of this Act;
(p) establishing circumstances in which sections 40 (4), 51 (2) and 54 (8) (a) do not apply to a prescribed category of persons.
(3) The maximum or minimum penalties that may be prescribed or imposed for contravention of a regulation must not be more than the maximum penalties or be less than the minimum penalties referred to in section 39 (1).
45 The proceeds of tax imposed under this Act and the proceeds of any forfeiture under section 54 (4) (a) must be paid into the consolidated revenue fund.
46 Despite the Social Service Tax Act, tobacco within the meaning of this Act is deemed not to be tangible personal property under that Act, and that Act does not apply to a consumer of tobacco under this Act.
47 If it is impracticable to obtain a warrant, and a peace officer has reasonable grounds to believe that
(a) tobacco is unlawfully possessed or kept, or possessed or kept for an unlawful purpose, or
(b) there are records or any other thing that will provide evidence related to tobacco that is unlawfully possessed or kept, or possessed or kept for an unlawful purpose,
the peace officer may, without a warrant,
(c) enter and search in any place or premises, other than a residence, for tobacco, records or any other thing referred to in paragraph (b), and
(d) stop a vehicle, vessel or aircraft, and search for tobacco, records or any other thing referred to in paragraph (b).
48 (1) For the purposes of this section, "premises" includes a residence.
(2) A justice who is satisfied, by information on oath, that there are reasonable grounds to believe that tobacco is
(a) unlawfully possessed or kept in a premises, vehicle, vessel or aircraft, or at any other place, or
(b) possessed or kept in a premises, vehicle, vessel or aircraft, or at any other place, for an unlawful purpose,
may, at any time, issue a warrant under the justice’s signature, authorizing a peace officer named in it to enter and search the premises, vehicle, vessel, aircraft or place for the tobacco and to seize and remove the tobacco and any packaging found there.
(3) A justice who is satisfied, by information on oath, that there are reasonable grounds to believe that records or other things
(a) will provide evidence of the unlawful possession or keeping of tobacco, or the possession or keeping of tobacco for an unlawful purpose, and
(b) are possessed or kept in a premises, vehicle, vessel or aircraft, or at any other place,
may, at any time, issue a warrant under the justice’s signature, authorizing a peace officer named in it to enter and search the premises, vehicle, vessel, aircraft or place for the records or other things and to seize and remove the records and other things found there.
49 (1) If a peace officer stops and searches a vehicle, vessel or aircraft, or enters and searches a premises or any other place under section 47 or 48, the person in charge of the vehicle, vessel or aircraft or the owner or occupant of the premises or other place must give the peace officer all reasonable assistance in connection with the stoppage, entry or search.
(1.1) A person must not
(a) hinder, molest or interfere with a peace officer doing anything that the peace officer is authorized to do under this Act, or
(b) prevent or attempt to prevent a peace officer from doing anything that the peace officer is authorized to do under this Act.
(2) A person commits an offence if the person does any of the following:
(a) refuses or fails to stop when required by a peace officer under section 47;
(b) obstructs or attempts to obstruct a peace officer who makes an entry or search under section 47 or 48;
(c) refuses to admit immediately a peace officer demanding entry to any place or premises as permitted by section 47 or 48.
50 (1) If in conducting or attempting to conduct a search under section 47 or 48, a peace officer finds
(a) tobacco that, in the peace officer’s opinion, is unlawfully possessed or kept, or kept or possessed for an unlawful purpose, contrary to this Act or the regulations, or
(b) records or other things that in the peace officer’s opinion will provide evidence of an offence against this Act or the regulations,
the peace officer may immediately seize and remove the tobacco, records or other things referred to in paragraph (a) or (b).
(2) A peace officer who removes anything under subsection (1) (b) must give a receipt to the person from whom it was removed and must promptly return the record, document or thing on completion of an investigation or proceeding.
(3) The government, or a person acting under the authority of this Act or the regulations, is not liable for loss or damage arising from the deterioration or destruction of anything detained or seized under this Act during the period it is under a detention or seizure lawfully made under this Act or the regulations.
51 (1) In this section, "official" means a person appointed by the director under section 21 for the purposes of that section.
(2) An official who finds tobacco while conducting an inspection, audit or examination under section 21 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 British Columbia,
(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 British Columbia by a person who is not authorized, by a dealer's permit or by regulation as required by section 5 (1), to sell tobacco at retail.
(3) For the purposes of subsection (2) (b) (iv), a person who holds a quantity of tobacco in excess of 1 000 grams of tobacco is deemed, in the absence of evidence to the contrary, to hold the tobacco for sale at retail in British Columbia.
(4) An official who seizes and removes tobacco under subsection (2) must provide a receipt for the tobacco to the person from whom the tobacco is seized.
(5) A receipt provided under subsection (4) must identify
(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 government,
(b) may be destroyed by the director after the director is satisfied that the tobacco is no longer required for the purposes of an investigation or a proceeding, and
(c) does not give rise to an offence and must not be tendered as evidence in a prosecution for an offence.
(7) If, as a result of an appeal under section 23 or 24, it is determined by the minister or the court, 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 amount 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.
52 (1) As soon as practicable but no later than 10 days after a seizure under section 48 or 50, the peace officer who made the seizure must report the seizure to a justice in order that the thing seized may be dealt with in accordance with subsection (3).
(2) If the seizure referred to in subsection (1) is made under warrant, the report must be made to the justice who issued the warrant or, if that is not practicable, to a justice having jurisdiction.
(3) On receiving the report under subsection (1), the justice may
(a) order the thing returned to its owner or other person entitled to it unless satisfied that an order under paragraph (b) should be made, or
(b) order the thing detained if satisfied that
(i) the detention is required for purposes of an investigation or proceeding, or
(ii) the thing may be subject to forfeiture under section 54.
(4) Anything ordered detained under this section that may be subject to forfeiture under section 54 and that is not required for the purposes of an investigation or proceeding must be placed in the custody of the director or a person designated by the director.
53 (1) Anything detained under section 52, other than a thing that may be subject to forfeiture under section 54, must not be detained for a period longer than 1 year from the date of its seizure unless, before the expiration of that period,
(a) proceedings have been commenced in respect of the thing,
(b) the owner of the thing agrees to its continued detention, or
(c) a justice is satisfied that the continued detention of the thing seized is warranted for a specified period, subject to any other conditions as the justice considers appropriate, and so orders.
(2) More than one order may be made under subsection (1) (c) with respect to anything that is detained under section 52.
(3) The director may make or cause to be made one or more copies of any record ordered detained under this section or section 52.
(4) Anything ordered detained under this section or under section 52, other than a thing that may be subject to forfeiture under section 54, must be returned to its owner or the person entitled to it without delay on completion of all proceedings in which it may be required.
54 (1) A person who has custody of tobacco under section 52 may return all or part of the tobacco, together with any packages in which it is kept that are also in custody, to the person, if any, lawfully entitled to have possession of it on receiving
(a) an amount of money equal to the value of the returned tobacco and packages plus an amount of money equal to the tax that would have been paid on the retail sale of the tobacco at the time immediately before they were seized, or
(b) if the director authorizes, security satisfactory to the director.
(2) 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 (1), the director may sell or cause to be sold, or dispose of in any manner other than by sale, all or part of the tobacco detained under section 52.
(3) The director must hold in trust any money or security received under subsection (1) and any money obtained on a sale under subsection (2) in place of the tobacco and packages that were returned or sold.
(4) Subject to section 55 (2), tobacco and any packaging in which it was kept that were seized under section 48 or 50 (1), and any money or security held under subsection (3) of this section, are forfeited to the government, if a conviction is obtained for an offence referred to in section 39 (7) or (9) in relation to the tobacco.
(5) A person who claims to be the person lawfully entitled to possession of tobacco seized under section 48 or 50 (1), other than a person entitled to make an application to the Supreme Court under section 55, 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 been initiated, or
(b) a proceeding, including all available appeals, in respect of an offence alleged under section 39 (7) or (9) in relation to the tobacco has been concluded and no conviction has been obtained.
(6) An application under subsection (5) (a) must be brought within 12 months after the date of the seizure.
(7) An application under subsection (5) (b) must be brought within 30 days after the conclusion of the proceeding referred to in that subsection.
(8) On an application under subsection (5), the justice must
(a) order the tobacco forfeited to the government 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 British Columbia, 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
(i) the tobacco be returned to the applicant, or
(ii) the applicant be paid an amount equal to the wholesale cost of the tobacco at the time of its seizure.
(9) A person aggrieved by an order made under subsection (8) may appeal from the order to the Supreme Court, and for the appeal sections 103 to 114 of the Offence Act apply.
(10) If an application is not brought under subsection (5) within the time required by subsection (6) or (7), the tobacco is forfeited to the government.
(11) Any money or security held by the director under subsection (3) in place of tobacco seized under section 48 or 50 (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 39 (7) or (9) in relation to the tobacco has been concluded and no conviction has been obtained.
(12) A person to whom tobacco is returned, money is paid or security is returned under subsection (8) or (11) 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, the provision of security or an application made under this section.
(13) In the event of a conflict between this section and section 24 of the Offence Act, this section prevails.
(14) Money payable under subsection (8) (b) (ii) must be paid out of the consolidated revenue fund.
(15) If money is returned to the owner or other person in accordance with subsection (4) (b) or paid to the owner or other person in accordance with subsection (14), there must also be paid to that person out of the consolidated revenue fund interest as prescribed in respect of the time between the date of seizure and the date the money is returned.
55 (1) If tobacco is seized as forfeited under this Act, any person, other than a person accused of an offence resulting in the seizure or in whose possession the thing was when seized, who claims an interest in the tobacco as an owner, lien holder or holder of any similar interest may, within 30 days after the seizure, apply to the Supreme Court for an order under subsection (2).
(2) If, on the hearing of an application made under subsection (1), it appears to the satisfaction of the court that
(a) the applicant is innocent of any complicity in the offence resulting in the seizure or of any collusion with the offender in relation to the offence, and
(b) the applicant exercised all reasonable care in respect of any person permitted to obtain possession of the tobacco to satisfy the applicant that possession of the tobacco was not contrary to this Act or the regulations,
the applicant is entitled to an order declaring that the applicant's interest is not affected by the seizure and declaring the nature and extent of the applicant's interest at the time of the contravention, and the court may order that the tobacco be returned to the applicant.
56 If tobacco is seized by a peace officer, the peace officer must promptly report in writing to the director the particulars of the seizure as soon as practicable but no later than 10 days after the seizure.
57 The absence of the prescribed mark or stamp required to be affixed to any package in which tobacco is sold, offered for sale, kept for sale or found in the possession of any person, is notice to all persons that tax imposed on the tobacco under this Act has not been accounted for.
58 (1) A dealer must not sell tobacco that does not bear the prescribed mark or stamp to a consumer who is liable to pay tax under this Act unless the dealer has taken reasonable care to ensure that the package in which the tobacco is kept bears the prescribed mark or stamp.
(2) A consumer who is liable to pay tax under this Act must not purchase tobacco unless the consumer has taken reasonable care to ensure that the package in which the tobacco is kept bears the prescribed mark or stamp.
(3) A person who is liable to pay tax under this Act must not possess or keep tobacco in excess of 1 000 grams of tobacco if the packages in which the tobacco is kept do not bear the prescribed mark or stamp.
(4) A person must not transport in British Columbia
(a) tobacco in quantities in excess of 50 cartons of cigarettes, or
(b) tobacco in bulk in excess of 10 kilograms,
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.
(5) Subject to subsection (6), a person must not sell or otherwise distribute tobacco or any packages, cartons or cases on which an indicium has been marked or stamped under this Act or the regulations if the person selling or distributing knows or ought to know that the person to whom the tobacco, packages, cartons or cases are sold or distributed is a person who, outside of British Columbia, sells 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) A person must not, without first receiving the written authorization of the director to do so, mark or stamp an indicium on tobacco or on any package, carton or case.
Copyright (c) 2001: Queen’s Printer, Victoria, British Columbia, Canada