A. Krywoj

A provincial offence trial under the Smoke-Free Ontario Act concerning whether a tobacco retailer failed to post prescribed government identification signs in a conspicuous manner as required by regulation.

The Crown alleged the defendant failed to post the identification sign where tobacco transactions occurred.

The defendant argued the sign was posted conspicuously on the countertop near the cashier and that even if the actus reus was proven, a due diligence defence applied.

The court found the prosecution failed to prove the offence beyond a reasonable doubt due to conflicting testimony regarding sign placement and visibility.

The defendant was acquitted.

The court also found that had the actus reus been proven, the defendant would have successfully mounted a due diligence defence based on the owner's comprehensive compliance systems, training procedures, and reasonable care measures.

The prosecution charged an individual with smoking tobacco in an enclosed workplace contrary to section 9(1) of the Smoke-Free Ontario Act, and charged the corporate owner of the vehicle with failing to ensure compliance with the Act contrary to section 9(3)(a).

The central issue was whether hearsay evidence from a police officer regarding observations made on a vehicle ownership document and confirmed through Ministry of Transportation database records was admissible to prove the vehicle was a commercial motor vehicle and was owned by the corporate defendant.

The court held that such hearsay evidence was admissible under the principled approach to hearsay, satisfying both necessity and reliability requirements, and was further corroborated by other evidence including the licence plate configuration, absence of a personal-use sticker, and corporate ownership.

Both defendants were convicted.