Facts of Case :
After numerous public revelations that a significant proportion of cigarettes sold in Ontario are smuggled brands for which no federal and provincial excise taxes are paid, the Government of Ontario passed a law, the Tobacco Sales Civil Remedies Act, 2014, which allows the provincial government to seize the property of any retailer upon whose business premises contraband cigarettes are found for sale. The official reasoning behind this legislation is that it serves to capture resources tainted by crime so as to make them unavailable to fund future crime, and to help compensate private individuals and public institutions for the costs of past crime. The provincial government also justifies the law on grounds that it aims to help those tobacco retailers who do not sell smuggled brands and who consequently find themselves at a competitive disadvantage vis a vis those who sell illegal tobacco products.
The law is designed so that the seizure of property is only permitted after the person charged with a smuggling offense is convicted and all avenues of appeal have been exhausted. The seized property is to be sold in a disposal auction and the former owner is entitled to tender a bid for it. All proceeds raised by such an auction are directed to a special account called The Cigarette Smuggling Compensation Fund, the monies from which are to be disbursed according to the remedies stipulated by the Act.
Immediately after the Civil Remedies Act was passed, it was challenged in Court by the Small Business Association of Ontario (SBAO).
Prepare a factum detailing the Small Business Association of Ontarios (SBAO) constitutional argument(s).
Prepare a second factum detailing the Ontario Governments constitutional argument(s) in defense of its legislation.
How long should each factum be? You are only required to write a few paragraphs for each factum. If you are using 12-point font, with double spacing and one-inch margins, a page for each factum should suffice (your factum can be shorter if you are succinct in your language).
A note of caution: while there may not be a uniquely right answer in constitutional disputes, this is not the same thing as saying that all arguments are potentially right. It is patently wrong to claim, for example, that provinces are entitled to set interest rates for this is clearly prohibited by the constitution. Thus, when composing your arguments in the hypothetical case, you must always keep in mind that there are certain “legal facts” that condition the possible ways in which a constitutional dispute can be resolved judicially.
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