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Statutes of Newfoundland 1994


CHAPTER 34

CHAPTER 34

AN ACT TO AMEND THE LIQUOR CONTROL ACT

(Assented to December 16, 1994)

Analysis

1. S.2 Amdt.
Definitions

2. S.17 Amdt.
Powers of board

3. S.18.1 renumbered as 19 and S.20 Added
20. Non-application

4. S.33 Amdt.
Qualification for licence

5. Ss. 88 to 97 R&S
88. Powers of officers
89. Search for alcoholic liquor or records
90. Seizure of contraband
91. Disposal
92. Third party claims

6. S.100 Rep.
Certificate of probable cause

7. Ss.106 and 107 R&S
106. Complaint

8. S.123 Rep.
When charged as 1st offence

9. S.124.1 Added
Offence: contraband

10. RSN 1990 cG-1
Amdt.

11. 1991 c53
Amdt.

12. RSN 1990 cR-15
Amdt.

13. RSN 1990 cT-5
Amdt.

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN 1990 cL-18 as amended

1. (1) Paragraph 2(f.1) of the Liquor Control Act is repealed and the following substituted:

(f.1) "contraband" means alcoholic liquor that is not purchased, possessed, acquired, transported, stored or sold in accordance with this Act;

(2) Section 2 of the Act is amended by adding immediately after paragraph (u) the following:

(u.1) "motor vehicle" means a vehicle propelled, driven or controlled otherwise than by muscular power and includes a trailer;

(3) Paragraph 2(aa) of the Act is repealed.

(4) Section 2 of the Act is amended by adding immediately after paragraph (ff) the following:

(ff.1) "trailer" means a vehicle which has no motive power of its own and which is attached to a motor vehicle upon a highway and includes a cargo container on or attached to a motor vehicle and a side-car attached to a motor cycle;

2. Section 17 of the Act is amended by adding immediately after subsection (2) the following:

(3) An inspector appointed under subsection (1) has, for the purpose of enforcing this Act, the powers of a member of the Royal Newfoundland Constabulary.

3. The Act is amended by renumbering section "18.1" as section "19" and by adding immediately after that section the following:

Non-application

20. (1) Notwithstanding another provision of this Act, this Act shall not apply to beer and wine that is made or brewed by a person for personal or family consumption.

(2) Subsection (1) shall not apply to beer or wine made or brewed on premises, in containers and using facilities, equipment, machinery or utensils that are rented or for which a fee is paid for the purpose of making or brewing that wine or beer.

4. Subsections 33(6) and (7) of the Act are repealed and the following substituted:

(6) The board shall refuse to issue a licence to a person or shall cancel the licence of a licensee who has been convicted of an offence under section 124.1.

5. Sections 88 to 97 of the Act are repealed and the following substituted:

Powers of officers

88. (1) Where it is reasonably necessary for the purpose of ensuring that premises are administered and alcoholic liquor is kept and controlled in compliance with this Act, an officer may, at reasonable times, enter a ship, boat, building or place of business of a licensee or upon the premises where that licensee's alcoholic liquor or records are kept and may

(a) ascertain the quantities of alcoholic liquor purchased, on hand, sold or used by that licensee; or

(b) inspect, audit or examine bank statements, books of account, records, financial statements, including balance sheets and profit and loss statements, or other documents

and the person occupying or in charge of the ship, boat, building, place of business or premises shall answer questions pertaining to those matters and shall produce for inspection that alcoholic liquor and those bank statements, books of account, records, financial statements, including balance sheets and profit and loss statements, or other documents that the officer may request.

(2) An officer acting under subsection (1) may on any occasion and for the purpose of analysis, take from a ship, boat, building, place of business or premises samples of liquor not exceeding a total volume of 1 litre.

(3) A certificate of an analyst appointed under section 115 stating that the analyst has made an analysis of a sample of alcoholic liquor taken under subsection (2) or seized under section 89 or 90 stating the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

(4) All samples taken under this section may be disposed of as the liquor corporation directs.

Search for alcoholic liquor or records

89. (1) Where an officer believes on reasonable grounds that a person is contravening or has contravened this Act, the officer may, with a warrant issued under subsection (2), enter a commercial, public or private premises in the province, and

(a) search for contraband;

(b) examine the contents of the commercial or private premises and make those inquiries that the officer considers are necessary;

(c) seize, take away and hold anything which on reasonable grounds is or appears to be contraband;

(d) seize and take away manifests, bank statements, books, accounts or records and shall, upon the request of the owner of them make copies of those manifests, bank statements, books, accounts or records and those copies shall be returned to that owner as soon as is practicable; and

(e) seize, take away and hold a motor vehicle, aircraft, ship, boat or other thing in which contraband is located in or on commercial or private premises.

(2) A Provincial Court judge or justice of the peace who is satisfied upon oath or affirmation that there are reasonable grounds for believing that there is in commercial or private premises anything that will provide evidence with respect to a contravention of this Act may issue a warrant authorizing the officer named in the warrant to enter the commercial or private premises, search for and seize anything that will provide evidence with respect to a contravention of this Act, subject to the conditions that may be specified in the warrant.

(3) The owner or person in charge of the premises referred to in this section and a person found there shall give an officer reasonable help to enable the officer to carry out his or her duties and functions under this section and shall provide the information that the officer may reasonably require.

(4) Notwithstanding subsection (1), an officer may exercise the power of search referred to in that subsection without a warrant issued under subsection (2) where the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant.

(5) For the purpose of subsection (4), exigent circumstances include circumstances in which the delay necessary to obtain the warrant would result in danger to human life or safety or the loss or destruction of evidence.

(6) For the purpose of this section, the word "premises" includes a receptacle or container that is not a motor vehicle or trailer.

Seizure of contraband

90. Where an officer believes on reasonable grounds that a person is in possession of contraband, he or she may, without a warrant, stop and detain in the province a motor vehicle, aircraft, ship or boat, in which he or she has reasonable grounds to believe that contraband is located and may examine the contents of that motor vehicle, aircraft, ship or boat, including cargo, manifests, records, accounts, vouchers, papers or other things that may provide evidence that the motor vehicle, aircraft, ship or boat is carrying contraband and may

(a) seize, take away and hold contraband;

(b) seize, take away and detain a motor vehicle, aircraft, ship, boat, receptacle or container in which contraband is located; and

(c) seize and take away manifests, records, accounts, vouchers and other things and retain them until they are produced in a court proceeding.

Disposal

91. (1) Thirty days following its seizure, alcoholic liquor seized as contraband under section 89 or 90 shall be forfeited to the liquor corporation and may be disposed of as the liquor corporation directs.

(2) The proceeds of sale from alcoholic liquor directed to be sold by the liquor corporation under subsection (1) shall, after payment of costs incurred by the liquor corporation in seizing, impounding, holding and disposing of the alcoholic liquor, be paid to the liquor corporation.

(3) Where a person from whom contraband or a motor vehicle, aircraft, ship, boat or other thing has been seized under section 89 or 90 is convicted of an offence under section 124.1 in relation to that seizure, that contraband, if not forfeited under subsection (1), and that motor vehicle, aircraft, ship, boat or other thing shall be forfeited to the liquor corporation to be disposed of as the liquor corporation directs.

(4) The proceeds of sale from the sale of contraband, a motor vehicle, aircraft, ship, boat or other thing directed to be sold under subsection (3) shall, after payment of costs incurred by the liquor corporation in seizing, impounding, holding and disposing of them, be paid to the liquor corporation.

(5) A person from whom a motor vehicle, aircraft, ship, boat or other thing has been seized under section 89 or 90 who is not convicted of an offence under section 124.1 in relation to that seizure shall have that item returned to him or her within 3 months from the date of the court proceedings at which the finding of not guilty was made unless further proceedings by way of appeal have been commenced.

(6) A person from whom alcoholic liquor seized as contraband has been seized under section 89 or 90 or sold under subsection (1) who is not convicted of an offence under section 124.1 in relation to that seizure or sale and who establishes to the satisfaction of the liquor corporation that the alcoholic liquor is not contraband and is his or her property may apply to the liquor corporation to have the property returned to him or her or for reimbursement of the value of that alcoholic liquor and the liquor corporation shall return that property to him or her or shall pay out to that person an amount equal to the value of the alcoholic liquor that was his or her alcoholic liquor at the time of its seizure plus interest.

Third party claims

92. (1) A person, other than a person accused of an offence relating to a seizure under section 89 or 90 who claims an interest in a motor vehicle, aircraft, ship, boat or other thing seized under those sections, as an owner, lienholder or holder of a like interest may, within 30 days after that seizure, apply to a Provincial Court judge for an order under subsection (2).

(2) If, on the hearing of an application under subsection (1) a Provincial Court judge is satisfied that the applicant has not been involved in the offence resulting in the seizure and has not colluded with an accused in relation to the offence, the judge may order that a seized motor vehicle, aircraft, ship, boat or other thing be returned to the applicant at a time and subject to conditions to be specified by the judge.

(3) Where a Provincial Court judge orders that a motor vehicle, aircraft, ship, boat or other thing be returned to an applicant under subsection (2), he or she shall order that applicant to post a bond or other form of security in an amount satisfactory to the judge, but not less than the market value of the seized item, pending a final resolution of proceedings commenced under this Act.

(4) Where a person from whom a motor vehicle, aircraft, ship or boat has been seized under section 89 or 90 is convicted of an offence under section 124.1, a bond or other security posted under subsection (3) shall be forfeited to the liquor corporation.

6. Section 100 of the Act is repealed.

7. Sections 106 and 107 of the Act are repealed and the following substituted:

Complaint

106. A complaint may be made and proceedings may be taken on the complaint in respect of an offence under this Act or the regulations without limitation of time.

8. Section 123 of the Act is repealed.

9. The Act is amended by adding immediately after section 124 the following:

Offence: contraband

124.1 (1) A person who purchases, possesses, acquires, transports, stores or sells contraband is guilty of an offence and is liable on summary conviction

(a) for a 1st offence, to

(i) a fine of not less than $200 nor more than $10,000, or

(ii) imprisonment for a period of not more than 2 years, or

(iii) both a fine and imprisonment;

(b) for a 2nd offence, to

(i) a fine of not less than $500 nor more than $50,000, or

(ii) imprisonment for a period of not more than 2 years, or

(iii) both a fine and imprisonment; and

(c) for a 3rd or subsequent offence, to

(i) a fine of not less than $1,000 and not more than $100,000, or

(ii) imprisonment for a period of not more than 2 years, or

(iii) both a fine and imprisonment.

(2) In addition to the penalties which are imposed under subsection (1), a court shall order the person found guilty of an offence under this section to pay an additional fine equal to the sum of $150 per litre or part of a litre of alcoholic liquor seized as contraband in relation to that offence.

(3) In addition to the fines imposed under subsections (1) and (2), a court shall order that person who defaults in the payment of those fines be imprisoned for a period of not less than 1 month and not more than 6 months and that period of imprisonment shall be in addition to any other period of imprisonment imposed under this section.

RSN 1990 cG-1 Amdt.

10. Section 17 of the Gasoline Tax Act is amended by adding immediately after subsection (3) the following:

(4) Where a person who applies for or holds a licence issued under this Act has been convicted of an offence under section 124.1 of the Liquor Control Act, the minister shall refuse to issue or shall cancel or suspend that person's licence.

1991 c53 Amdt.

11. Section 4 of the Lotteries Act is amended by adding immediately after subsection (2) the following:

(3) Where a person who applies for or holds a licence issued under subsection (1) is convicted of an offence under section 124.1 of the Liquor Control Act, the Minister of Justice shall refuse to issue or shall cancel or suspend that person's licence.

RSN 1990 cR-15 Amdt.

12. Section 24 of the Retail Sales Tax Act is amended by adding immediately after subsection (2.1) the following:

(2.2) The minister shall refuse to issue a registration certificate to a person or shall cancel or suspend the registration certificate of a person who has been convicted of an offence under section 124.1 of the Liquor Control Act.

RSN 1990 cT-5 Amdt.

13. Section 13 of the Tobacco Tax Act is amended by adding immediately after subsection (3) the following:

(3.1) The minister shall refuse to issue a wholesaler's licence to a person or shall cancel or suspend the wholesaler's licence of a person who has been convicted of an offence under section 124.1 of the Liquor Control Act.

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