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4 men found guilty, fined in smoke shop trial

A crowd gathers for the grand opening of the Dakota Chundee Smoke Shop on Highway 2 east of Pipestone in 2011.

FILE PHOTO Enlarge Image

A crowd gathers for the grand opening of the Dakota Chundee Smoke Shop on Highway 2 east of Pipestone in 2011.

Four Dakota men have been convicted and fined thousands of dollars for their roles in running a smoke shop that sold cut-rate cigarettes.

Judge Shauna Hewitt-Michta convicted and sentenced the men in Brandon provincial court on Wednesday afternoon.

Prior to receiving his sentence, Dakota Plains First Nation Chief Orville Smoke told Hewitt-Michta that the intent of the Dakota Chundee Smoke Shop was to provide revenue for his impoverished people. It was also intended to draw attention to the need for better living conditions on the Dakota reserves.

"Please keep in mind that we didn’t do this for ourselves, we did it for our people," Smoke said, claiming that the provincial and federal governments are incapable of providing for First Nation people.

Hewitt-Michta said she accepted that the smoke shop wasn’t run out of greed, and noted some of the money from the shop was used to address needs on Dakota communities.

"I certainly accept that the accused in this case undertook their actions to draw attention to what are essentially socioeconomic and political issues from their perspective," Hewitt-Michta said.

However, she said the men deliberately created and persisted in an enterprise they knew to be against the law.

"There are rules that exist, and they exist for a very good reason," Hewitt-Michta said. "And the requirement is that everybody — regardless of the colour of their skin, and regardless of their personal circumstances — follow the rules."

Smoke, former Canupawakpa Dakota Nation chief Frank Brown, Charles Blacksmith and Garth Blacksmith were charged with a number of offences under both the Tax Administration and Miscellaneous Taxes Act and the Tobacco Tax Act.

Their trial began in September and continued in stages until its end on Wednesday, when Hewitt-Michta convicted all four men on all charges.

At trial, Manitoba Finance investigators testified that they seized tens of thousands of cut-rate cigarettes from the smoke shop which stood on non-reserve land in the RM of Sifton near Pipestone. About 89,000 cigarettes were seized during one raid alone.

Court heard cigarettes weren’t marked for tax purposes in Manitoba, as required to show that provincial tobacco tax had been collected.

The series of raids were made between November 2011 and March 2012.

Court was also told that Smoke and Brown owned the smoke shop property, but they didn’t have the required sales tax authorization. They also didn’t have a dealer’s licence to sell tobacco.

The Crown alleged that co-accused Charles and Garth Blacksmith — found inside the "selling room" inside the shop during raids — were involved in the operation.

Hewitt-Michta agreed that the evidence showed both men were involved in the display and sale of unmarked cigarettes from the shop.

Smoke had previously told investigators the smoke shop was his idea. During trial, he described the shop as a revenue generator for his people.

Hewitt-Michta concluded that Smoke and Brown knew about the sale of the unmarked tobacco from the shop and did nothing to stop it. In fact, she said, the evidence showed they supported the shop.

Witnesses testified that profits from shop — which was later shut down by a court-ordered injunction — were used to feed the elderly, buy a fire truck and educate and care for children.

The four accused argued that provincial Crown prosecutors didn’t have jurisdiction over the Dakota people who didn’t sign a treaty that extinguished their sovereignty or rights.

Smoke said the shop was an attempt to gain equality for the Dakota people.

However Hewitt-Michta ruled that previous court decisions make it clear that laws and regulations apply to First Nation peoples regardless of whether they have a treaty or not.

Provincial tobacco tax legislation applied to all of the accused, whether or not they have a treaty or meet the definition of "Indians" under law.

Hewitt-Michta fined Charles Blacksmith and Garth Blacksmith $9,400 each. Smoke and Brown were each fined $21,600.

In addition, all four men were jointly fined a total of $116,746. Smoke and Brown were also jointly fined another $11,323 (although it’s not clear whether all four men are to play a part in paying this fine). These figures represent a mandatory penalty of triple the unpaid provincial tax — a rate of 22.5 cents per cigarette at the time of the offences.

All four men were also placed on two-year probation orders with a condition that they not possess more than a carton — 200 cigarettes — in unmarked tobacco. That represents the limit allowed for personal use.

Each of the men indicated in court that they will struggle to pay the fines.

However, following court, Brown indicated that he’s not concerned about the fines at this point, as all four men intend to appeal their convictions.

» ihitchen@brandonsun.com

» Twitter: @IanHitchen

Republished from the Brandon Sun print edition February 13, 2014

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Four Dakota men have been convicted and fined thousands of dollars for their roles in running a smoke shop that sold cut-rate cigarettes.

Judge Shauna Hewitt-Michta convicted and sentenced the men in Brandon provincial court on Wednesday afternoon.

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Four Dakota men have been convicted and fined thousands of dollars for their roles in running a smoke shop that sold cut-rate cigarettes.

Judge Shauna Hewitt-Michta convicted and sentenced the men in Brandon provincial court on Wednesday afternoon.

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