Three men convicted of tax offences for an illegally run smoke shop are appealing their sentences, arguing that the hefty fines and probation they received were too harsh.
Dakota Plains First Nation Chief Orville Charles Smoke, Garth Leon Blacksmith and Charles Conrad Blacksmith all filed appeals in Brandon Court of Queen’s Bench last month.
Former Canupawakpa Dakota Nation chief Frank Brown was also convicted, but there’s no indication that he has filed an appeal at this point.
In their notices of appeal, Charles and Garth Blacksmith and Smoke ask for their conviction to be overturned, or that they receive a new trial or new sentence.
The sentences they seek to overturn were imposed in Brandon provincial court on Feb. 12 by Judge Shauna Hewitt-Michta at the end of a lengthy trial. The men were tried and found guilty of various offences under the Tax Administration and Miscellaneous Taxes Act and the Tobacco Tax Act.
The trial centred on the controversial Dakota Chundee Smoke Shop, which operated on non-reserve land in the RM of Sifton and sold cut-rate cigarettes.
Manitoba Finance investigators repeatedly raided the shop between November 2011 and March 2012. They seized tens of thousands of cigarettes — 89,000 of them during one raid alone.
At trial, court heard that the smokes weren’t marked for tax purposes in Manitoba, as required to show that provincial tobacco tax had been collected.
Smoke and Brown owned the smoke shop property, but didn’t have the required sales tax authorization or the dealer’s licence to sell tobacco, court heard.
Charles Blacksmith and Garth Blacksmith were found inside the shop during raids and involved in the operation.
Witnesses testified that shop profits were used to feed the elderly, buy a fire truck and educate and care for children. The shop was later shut down by a court-ordered injunction.
The men 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.
However, Hewitt-Michta ruled that previous court decisions make it clear that laws and regulations — including provincial tobacco tax legislation — apply to First Nation peoples regardless of whether they have a treaty .
During sentencing on Feb. 12, Smoke told Hewitt-Michta that the intent of the smoke shop was to generate revenue for his impoverished people, and draw attention to the need for better living conditions on Dakota reserves.
Hewitt-Michta handed each accused a substantial fine for their smoke shop charges.
Charles Blacksmith and Garth Blacksmith were each fined $9,400, while Brown and Smoke were each fined $21,600. Jointly, the four men are also responsible for paying an additional total penalty of $128,070, which represents a penalty of triple the unpaid provincial tax.
All four were also put on probation for two years.
In each of their appeals filed on March 10, Smoke and the Blacksmiths assert that their conviction was unreasonable and unsupported by the facts, and that their sentence was “overly harsh.” They also ask the court to consider any further grounds they may present.
The matter is currently set to appear on the April 7 Brandon Court of Queen’s Bench docket.
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