Counsel

K. Meyers and S. Palmer — for the Regional Municipality of Halton (prosecution)

The defendant Selina Rose Quintal — on her own behalf

Statutes, Regulations and Rules Cited

Cases Cited

Publications Cited

Canadian Oxford Dictionary, Second Edition (Oxford University Press, 2004)

K.W. DECHERT, J.P. (orally):

INTRODUCTION

1Under Certificate of Offence no. 1260-7317080A, the defendant Ms. Selina Rose Quintal, stands charged that she on the 25th day of September, 2011 at 11:50 a.m., at Convenience A, 1505 Guelph Line in the City of Burlington, did commit the offence of "sell tobacco to a person who is less than 19 years old", contrary to the Smoke-Free Ontario Act, section 3(1).

2On May 15th, 2012, the subject Certificate of Offence was before me for trial in the Burlington Provincial Offences Court. Upon arraignment on the subject charge, the defendant entered a plea of "not guilty" and a trial then ensued before me. The trial was not completed on the said date and it was adjourned to August 20th, 2012, when it was completed. It was then adjourned to December 18th, 2012 for my judgment.

3The prosecution, the Regional Municipality of Halton, was represented by Ms. K. Meyers and Ms. S. Palmer. The defendant was self-represented.

THE LAW

(i) Relevant Statutory Provisions

4The defendant is charged with the offence of "sell tobacco to a person who is less than 19 years old", contrary to subsection 3(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10, as amended, hereinafter referred to as "the SFOA". The title of this Act was changed from the Tobacco Control Act, 1994, to the SFOA, by operation of s. 1 of S.O. 2005, c. 18. Subsection 3(1) of the SFOA reads as follows:

No person shall sell or supply tobacco to a person who is less than 19 years old.

5The following provisions of the SFOA are relevant to the subject charge:

s. 1(1) In this Act,

'prescribed' means prescribed by the regulations;

'regulations' means the regulations made under this Act.

s. 2 This Act applies to tobacco in any processed or unprocessed form that may be smoked, inhaled or chewed, including snuff, but does not apply to products intended for use in nicotine replacement therapy;

s. 3(2) No person shall sell or supply tobacco to a person who appears to be less than 25 years old unless he or she has required the person to provide identification and is satisfied that the person is at least 19 years old;

s. 3(3) It is a defence to a charge under subsection (1) or (2) that the defendant believed the person receiving the tobacco to be at least 19 years old because the person produced a prescribed form of identification showing his or her age and there was no apparent reason to doubt the authenticity of the document or that it was issued to the person producing it.

6The prescribed form of identification referred to in subsection 3(3) of the SFOA, is defined in section 3 of Ont. Reg.48/06, as amended, made under the SFOA. That section reads as follows:

3(1) For the purposes of subsection 3(3) of the Act, an item of identification is prescribed if it includes a photograph of the person, states his or her date of birth, and reasonably appears to have been issued by a government.

(2) Without limiting the generality of subsection (1), the item of identification may be any of the types prescribed in subsection (3).

(3) The following types of identification are prescribed for the purpose of subsection 3(3) of the Act:

A driver's licence issued by the Province of Ontario with a photograph of the person to whom the licence is issued.

A Canadian passport.

A Canadian citizenship card with a photograph of the person to whom the card is issued.

A Canadian Armed Forces identification card.

A photo card issued by the Liquor Control Board of Ontario.

7Subsection 15(1) of the SFOA states, in part, that "a person who contravenes" section 3 of the SFOA"is guilty of an offence…".

8It would appear that the contents of subsection 3(3) of the SFOA establish a statutory due diligence defence to a charge under either subsection 3(1) or subsection 3(2) of the said Act. The said statutory due diligence defence may reasonably be interpreted as a statutory exemption from liability for the said charges.

9Accordingly, the contents of subsection 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the P.O.A.", are germane to this proceeding. That subsection reads as follows:

The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

(ii) Relevant Common Law

10In his decision in Regina v. Seaway Gas and Fuel Ltd., [2000] O.J. No. 226 (Ont. C.A.), MacPherson J.A. addressed the issue of the classification of the regulatory offence created by subsection 3(1) of the Tobacco Control Act, 1994 (being the predecessor to subsection 3(1) of the SFOA). In that regard the said jurist stated, in part, as follows:

…The Tobacco Control Act ("the Act") is a regulatory statute which creates strict liability offenses; the offenses come within the middle category of offenses set out by Dickson J. in his important and innovative decision in R. v City of Sault Ste. Marie, [1978] 2 S.C.R. 1299 [(S.C.C.)]. Dickson J. described this category of offence, and its consequences for both the Crown and the accused, in this fashion, at p. 1326:

Offenses in which there is no necessity for the prosecution to prove the existence of mens rea ; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves a consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offenses may properly be called offenses of strict liability.

Section 3(1) of the Act, which prohibits the sale of tobacco to a person who is less than 19 years old, is a strict liability offence. Thus, in Dickson J.'s words, 'the doing of the prohibited act prima facie imports the offence'. There is no dispute in the present case that the respondents, the store and its clerk, sold cigarettes to a person less than 19 years old.

However, a strict liability offence is not an absolute liability offence: this is the fundamental lesson of Sault Ste. Marie . There is a balancing of factors in strict liability offenses. On the one side, an absence of mens rea to commit the offence does not assist the accused. On the other side, however, the accused can, in Dickson J.'s words 'avoid liability by proving that he took all reasonable care'. This is the common law statement of the defence of due diligence.

In the present case, however, the Ontario legislature has attempted to define the contents of the due diligence defence in respect of the offence of selling tobacco products to young people. In effect, the legislature has provided a statutory definition of what constitutes 'all reasonable care' for this offence. The legislature has done this in s. 3(3) of the Act which, for ease of reference, I set out again:

3(3) It is a defence to a charge under subsection (1)… that the defendant believed the person receiving the tobacco to be at least 19 years old because the person produced a prescribed form of identification showing his or her age and there was no apparent reason to doubt the authenticity of the document or that it was issued to the person producing it.

11In his decision in Regina v. Clothier, 2011 ONCA 27 (Ont. C.A.), Laskin J.A. made the following comments, contained in paragraphs 21, 22, 23, 24 and 25 thereof, pertaining to the appropriate classification of offences created by the SFOA:

Canadian jurisprudence has long distinguished between truly criminal conduct and conduct that, although not inherently wrong, is nonetheless prohibited for the protection of the public. Thus, we have distinguished between criminal statutes and regulatory statutes, and between criminal offences and regulatory offences. Cory J. discusses this distinction and the basis for it in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 [(S.C.C.)] at pp. 218-19:

It has always been thought that there is a rational basis for distinguishing between crimes and regulatory offences. Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same time, some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable.

The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of the public and social interest. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the protection of future harm through the enforcement of minimum standards of conduct and care.

The Smoke Free Ontario Act, formerly known as the Tobacco Control Act, 1994, is a regulatory statute, which has been enacted to promote public health and safety. It establishes a legislative regime for controlling the display, promotion, packaging, sale and use of tobacco, including when, how, where and to whom tobacco can be sold. The offences under the Act are strict liability offences, which means that due diligence is a defence but negligence is not. All offences are punishable by a fine, or, on multiple convictions, by a prohibition on the sale of tobacco for up to 12 months. No one can be imprisoned for a breach of the statute.

One of the most important purposes of the legislation is to ensure that minors are not able to buy cigarettes. Section 3(1), the section in issue on this appeal, states:

No person shall sell or supply tobacco to a person who is less than 19 years old.

Section 3(2) reduces the danger of an inadvertent violation of s. 3(1) by requiring vendors to check for identification when the customer appears to be under 25 years old:

No person shall sell or supply tobacco to a person who appears to be less than 25 years old unless he or she has required the person to provide identification and is satisfied that the person is at least 19 years old.

In R. v. Seaway Gas and Fuel Ltd. (2000), 47 O.R. (3d) 458 (C.A.) [ [2000] O.J. No. 226 (Ont. C.A.)], at paras. 32-33, my colleague MacPherson J.A. emphasized this important purpose of the legislation:

[32] Fifth, it needs to be recalled that the Act is an important public health statute. The Act and its regulations attempt to regulate in a strict and careful fashion the distribution of a dangerous product. In RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the Supreme Court of Canada considered the federal Tobacco Products Control Act, R.S.C. 1985, c. 14, and some of the regulations promulgated pursuant to it. Referring to the general purposes of the regulations, Sopinka and Cory JJ. said, at p. 353:

These are clear indications that the government passed the regulations with the intention of protecting public health and thereby furthering the public good.

Later in their reasons, the justices referred to 'the undeniable importance of the public interest in health and in the prevention of the widespread and serious medical problems directly attributable to smoking' (at pp. 353-54).

[33] In my view, this reasoning is entirely applicable to the Ontario Tobacco Control Act and suggests that the provisions of the Act and regulations should be interpreted with a judicial eye firmly focussed on the public health purposes of the legislation. One of the most important purposes of the legislation is to make sure that minors are not able to buy cigarettes. The legislation should be strictly interpreted to help achieve that purpose.

12In his P.O.A. appellate decision in Regina v. Chung, [2009] O.J. No. 4076 (Ont. C.J.), Pockele J. allowed the prosecution appeal of the decision of the trial justice of the peace to grant the defendant's non-suit application and thereby dismiss the charge of "selling tobacco to a person less than 19 years of age", contrary to subsection 3(1) of the SFOA. In allowing the appeal, Mr. Justice Pockele determined that the trial justice erred in ruling that the prosecution had failed to prove that the substance which had been sold to the underage purchaser was tobacco, on the basis that expert evidence had not been adduced on that point.

13In paragraph 5 of the said decision, Pockele J. set forth the ruling of the trial justice of the peace being appealed from, as follows:

This court has to determine whether that is sufficient evidence to support the motion that there is tobacco inside the package without having any other expert evidence before the court. I think that I am going to have to agree with Mr. Hardy's nonsuit that there is nothing to determine whether that is tobacco inside that package or not, only the wording outside of it and that wording is not sufficient to support the essential element.

14In paragraph 6 of the decision, the jurist described the evidence pertaining to the package allegedly containing tobacco adduced at trial, as follows:

The trial evidence clearly indicates that the court received evidence by way of testimony, and physical evidence, that the defendant sold a product described as a blunt wrap, and clearly labelled: 'Tobacco Canada Duty Paid'. And also labelled: 'Not for sale to minors'. And the exhibit was a sealed commercially-vended consumer product in a regulated market: tobacco. The undercover agent had asked the defendant if he could purchase a tobacco product, and the blunt wrap was produced by the employee of the defendant after accessing it from behind the counter and delivering it to an undercover agent. …

15In reaching his conclusion that the trial justice of the peace erred in finding that expert evidence was needed to prove that the package sold to the undercover purchaser contained tobacco, Mr. Justice Pockele stated as follows:

The second error at law lies in the conclusion that expert evidence is required to prove that the substance was, indeed, tobacco. This imposes a standard that simply does not exist at law.

Had contrary evidence been received indicating that the substance was not tobacco, raising a reasonable doubt on this issue, the justice of the peace could well have ruled that the prosecution had failed to establish this essential element beyond a reasonable doubt. However, there was no contrary evidence.

By analogy, in the drug prosecution cases expert evidence of analysis is required because the drugs which are the subject of prosecution are not overtly labelled or not readily handled by members of the public and drugs are frequently misrepresented by individuals selling drugs. Even then it is not a principle of law that there must be expert evidence, there is simply a burden upon the Crown to satisfy the courts beyond a reasonable doubt. The Crown calls expert evidence to meet this standard.

This problem was discussed in R. v. Piascik, [1990] N.W.T.J. No. 27, a decision of the Yukon Supreme Court sitting on appeal from a trial decision in their equivalent P.O.A. court. The relevant issue related to proof of the existence of alcoholic beverages drawn from evidence that bottles were found in a box marked Liquor Control Board Northwest Territories, Liquor Control System, Yellowknife.

The appeal court held that the subject was one of absolute liability and the defence of due diligence would have led the accused to check these packages to determine whether they contained an alcoholic beverage and that such activity would constitute reasonable care. The appeal court held the prosecution need prove nothing more. This parallels the standard of care in Ontario under the Smoke Free Ontario Act.

By analogy, when an individual is charged under the Highway Traffic Act, with a motor vehicle-related offence, we do not impose a duty on the prosecution to call expert evidence, perhaps an automotive engineer, that a particular machine is, in fact, a motor vehicle.

When an individual is charged under the Liquor Licence Act for an offence related to possession of alcoholic beverages, perhaps having unopened beer bottles in a vehicle, there is not a requirement that there be a chemical analysis undertaken to prove that these were alcoholic beverages. Certainly the Crown's case might fail in the face of defence evidence that this was non-regulated low-alcohol beer or was some other substance.

The point is, in the absence of contrary evidence, it is unreasonable to expect the prosecution to call expert evidence to establish a relatively simply ( sic ) matter that can be determined by common observation in everyday life experiences.

THE EVIDENCE

16During the trial proceeding of the subject charge on May 15th, 2012, I received verbal evidence from Ms. Claire Segeren and Ms. Nadia McLennan, tendered on behalf of the prosecution. On that same date I received verbal evidence from Ms. Rajinder Chahal, tendered on behalf of the defendant. The defendant testified in this proceeding on August 20th, 2012.

(i) The testimony of Ms. Claire Segeren

17Ms. Segeren testified that she was employed by the "Halton Region" as a "tobacco test shopper". In describing her employment duties, she stated that she would "go to stores that sell tobacco and attempt to purchase tobacco". She advised that she received training as a test shopper from her employer. She described the substance of her training as follows:

They explained how to go about my work. They told me to go in without any I.D. and ask for cigarettes and then see if I can buy them.

18Ms. Segeren testified that she was born on the 25th day of February, 1994. She advised that on September 25th, 2011, she was seventeen years of age.

19Ms. Segeren testified that on September 25th, 2011, she attended and entered a convenience store known as "Convenience A", located at 1505 Guelph Line, Burlington, Ontario. She advised that she went to this store to "attempt to buy tobacco products".

20Ms. Segeren stated that on the said date she entered the store"asked for tobacco and was sold it". She indicated that she purchased the tobacco product from the defendant who she identified as "the woman" in front of her in the courtroom. In describing the transaction, she advised that she purchased cigarettes, marketed under the name "Canadian Classics" in a "king pack", from the defendant for $8.85. She went on to advise that she "was given $11.15 in change".

21Ms. Segeren testified that in the course of selling the package of cigarettes to her, the defendant did not either ask her to produce identification or ask her to state her age. She stated that following the completion of the tobacco purchase transaction, she brought her "purchase" to her "officer" (who she also described as her "health inspector") and gave the officer the cigarettes and the money which she received as "change" from the transaction.

22In concluding her testimony-in-chief, Ms. Segeren responded to two further questions posed by the prosecutor, as follows:

Q: Ms. Segeren, in the course of your test shopping duties, if you are attempting to purchase cigarettes and you are asked for your identification, what do you do?

A: I don't give any identification and in general I don't bring any personal identification with me on the job.

Q: In the same situation Ms. Segeren, what would you do if you were asked for your age?

A: I would give the person my correct age, tell them my correct age.

23During cross-examination, Ms. Segeren was asked if she was able to recollect "how quickly the transaction was made", to which she replied: "I do. It was quite a fast transaction".

(ii) The testimony of Ms. Nadia McLennan

24Ms. McLennan testified that as of the 15th day of May, 2012, she was employed by the "Halton Region Health Department" as a "public health inspector" and as a "tobacco enforcement officer". She advised that she had been employed as a tobacco enforcement officer for a period of approximately six years. In describing her employment duties relative to the Smoke-Free Ontario Act, Officer McLennan stated that she performs "compliance and enforcement checks to see if vendors are willing to sell tobacco to someone who is less than 19 years of age or who appears to be less than 25 years of age".

25In testifying with the assistance of her investigative notes for the purpose of refreshing her existing memory, Officer McLennan stated that on September 25th, 2011, she "conducted a test shop" at the convenience store located at 1505 Guelph Line, Burlington, Ontario, known as "Convenience A". In that regard, the officer advised that she attended the convenience store with "the test shopper" who actually conducted the "test shop".

26Officer McLennan testified that on September 25th, 2011, she attended the said convenience store with test shopper, Ms. Claire Segeren, for purposes of supervising an "enforcement check" of the store. She described "an enforcement check" as being a circumstance when she would go to "an establishment" with a test shopper in order to see if the operators of the establishment were "willing to sell tobacco to someone who is under 19 years of age".

27The officer testified that on the said date, she instructed Ms. Segeren to go into the said convenience store and "attempt to purchase a package of cigarettes". In that regard, the officer confirmed that Ms. Segeren was able to purchase a package of cigarettes. She stated that following the time of the purchase, Ms. Segeren returned to her car with a package of cigarettes "and the change from a twenty-dollar bill". The officer advised that she had given Ms. Segeren the twenty-dollar bill prior to the time of the cigarette purchase transaction.

28In describing the steps that she took after Ms. Segeren returned to the car following the cigarette purchase transaction, Officer McLennan testified as follows:

I spoke to Ms. Segeren and she provided me with the information as to who sold her the package of cigarettes. I then went into the store and the clerk matching the description provided to me by Claire was in the store and then I approached the clerk. I identified myself as a tobacco enforcement officer. … What I then did was explain to the clerk that an offence had been committed and the offence was, 'sale of tobacco to someone who is under 19 years of age'. I then advised her that she would be issued a ticket for the offence which is against the Smoke Free Ontario Act section 3(1).

29Officer McLennan testified that she issued the Offence Notice for the subject offence to the female store clerk, because she matched the description of the person who sold the cigarettes to Ms. Segeren, as relayed to her by Ms. Segeren. Officer McLennan stated that when she entered the subject convenience store, she noted the presence of only one store employee, being the store clerk to whom she issued the Offence Notice. She was not able to recollect whether there were any other customers in the store at that time. The officer advised that she issued the subject Offence Notice to Ms. Selina Rose Quintal.

30In answer to the prosecutor's question as to whether the individual to whom she issued the ticket for the subject offence was in the courtroom at that time, Officer McLennan stated: "she's sitting at the table". The prosecutor then remarked that in answering that question, the officer had "pointed to the defendant, Selina Quintal".

31Officer McLennan testified that after she issued the ticket for the subject offence to Ms. Quintal, she returned to her car, where she proceeded to put the package of 25 "Canadian" cigarettes purchased by Ms. Segeren, together with the currency totalling $11.15 into an "evidence bag". She stated that the package of cigarettes and the currency were the only items which were placed in the bag. The officer went on to state that once the items were contained within the evidence bag, she sealed the bag and wrote the information pertaining to the Offence Notice issued to the defendant on the front of it. She further advised that she recorded the fact that she sealed the bag on September 25th, 2011 at 12:00 p.m., on the face of the bag.

32In response to the prosecutor's question as to what happened to the evidence bag after it was sealed, Officer McLennan testified as follows:

The evidence bag stayed in my vehicle and then it was brought to the Halton Region, which was then put in secure evidence cabinet where it was locked and it was signed in and then it was signed out.

33The evidence bag, being a clear plastic bag which was sealed at the top and which contained the subject package of cigarettes and $11.15 in Canadian currency, comprised of one ten-dollar bill, one one-dollar coin, one ten-cent coin and one five-cent coin, was then identified by Officer McLennan and entered as exhibit no. 1 to this proceeding. The information written on the face of the evidence bag recorded the number of the subject Offence Notice, the name of the defendant, Selina Rose Quintal, the name of the "victim", Claire Segeren, the name of the investigating officer, N. McLennan and the date and time of the alleged offence being September 25, 2011 at 11:50 a.m.

34During cross-examination, the defendant and Officer McLennan engaged in the following brief question and answer exchange:

Q (the defendant): So I , I just basically want to know, is there reasoning why she [referring to Ms. Segeren] wouldn't be able to provide – like is there a reason why she would just give her age, like just tell me her age instead of giving me a proof of identification?

A: If she's asked for I.D. …

Q: Yes.

A: …she'll provide I.D. if she has it…

Q: Okay.

A: …but if she has asked her age, she'll provide her age, her true - her actual age.

(iii) The contents of exhibit no. 1

35Exhibit number 1, being the "evidence bag" prepared by Officer McLennan, contains one package of cigarettes, one Canadian ten-dollar bill, one Canadian one-dollar coin, one Canadian ten-cent coin and one Canadian five-cent coin.

36Upon carefully examining the markings on the outside of the cigarette package, I note that the brand of cigarettes marked on the package is "Canadian Classics" as manufactured by "Rock City Tobacco Company" of Toronto Ontario. The information on the package indicates that it contains "25 king size cigarettes". Furthermore the information on the subject package contains the Health Canada warning that "cigarettes cause lung cancer".

37It is noted that the subject package of cigarettes appears to be unopened as the seal wrapping around the package, which states "Canada Duty Paid" has not been broken. Furthermore, a stamp located on the bottom and rear portions of the subject cigarette box, which has not been torn or severed, states "Duty Paid Canada – 25 cigarettes".

(iv) The testimony of Ms. Rajinder Chahal

38Ms. Chahal was called by the defendant as a witness on her behalf.

39Ms. Chahal testified that as of September 25th, 2011, she had been working on a part-time basis at the convenience store known as Convenience A, for about five years. Ms. Chahal stated that in the morning of September 25th, 2011, she was working at the said store together with the defendant. She acknowledged that at that time the defendant was training for the role of store-clerk.

40Ms. Chahal testified that at a point in time during the morning of September 25th, 2011, she had to leave the store to go to the "Food Basics" store "to buy some groceries". She acknowledged that during the time that she was away from the store, the defendant was issued a ticket for the offence of selling tobacco to a person who is less than 19 years. Ms. Chahal advised that upon returning to the store, the defendant showed her the Offence Notice which she received for the subject charge and then engaged in a brief discussion with her relative to the impact that the subject charge would have on her continued employment with the store.

41Ms. Chahal testified that at that time, the defendant advised that she did not wish to work at the convenience store any longer. In that regard Ms. Chahal confirmed that the defendant quit her job at Convenience A, following the completion of her work-shift on September 25th, 2011.

42During cross-examination, Ms. Chahal engaged in the following question and answer exchange with the prosecutor:

Q (the prosecutor): You're an employee of Convenience A?

A: Yes.

Q: Thank you. Were you in the store when the test shopper was sold cigarettes?

A: No.

Q: And you were at the grocery store at that time?

A: Yes I was, Mm hm.

Q: So you didn't see Ms. Segeren in the store?

A: No.

Q: And you weren't in the store when the officer issued the ticket to the defendant?

A: No.

(v) The testimony of the defendant

43The defendant testified-in-chief in this proceeding as follows:

…So it was Sunday, September 25th. It was my second day training at Convenience A, located on Guelph Line and Upper Middle. I was training with Mrs. Chahal and we had – we were running low on one of the products in the store. So, she decided to leave the store and go to the Food Basics, which is in the same plaza, for fifteen to twenty minutes to grab what we needed for the store.

…All right, having been an employee there for seven years, she knew that Sunday mornings were quite busy because of the football season and the amount of customers for the Pro Line Lotto. So, she wanted to grab the items that we needed before it got busy. And within that time that she was away the volume of customers that came in was a very high volume. And so, being a new trainee I was responsible for the Lotto machine, the cash flow and the debit transactions.

Okay, all of the items in the store are put through the cash machine manually. The only items that are scanned through the machine are the cigarettes. So, at the time when Ms. Segeren was in the store I had a high volume of customers and things to keep track of. And so, when the transaction occurred it was so quick that I was completely unaware that she was underage. As a new employee I was trying to get people through as fast as I possibly could. So I had absolutely no intention of selling anyone underage cigarettes. I was just trying to do the job as best as I possibly could. And so, when Officer McLennan came in to issue the ticket I was completely oblivious as to what had – what she was referring to until she told me that it was selling cigarettes to an underage customer.

And once Mrs. Chahal got back to Convenience A, I was upset and I told her that I would no longer be working at Convenience A due to the cost of the ticket and the integrity of the store.

44During cross-examination, the prosecutor and the defendant engaged in the following question and answer exchange:

Q (prosecutor): Do you recall if there were signs in the store about the Smoke-Free Ontario Act ?

A: I believe there was on – there was one on the cash register.

Q: And those signs remind you not to sell cigarettes to anyone who appears to be less than 19?

A: Right.

Q: So, you knew not to sell cigarettes to anyone who was less than 19, right?

A: Yes.

45By way of re-examination, the defendant testified as follows:

The only response I have is because of the volume of customers and because it was such a quick transaction if Ms. Segeren, if she had purchased any other item or if it was a debit transaction I might have had the chance to really get a look at her and tell that she was underage and ask for her I.D. But because it was such a quick transaction, even when Officer McLennan came in to issue the ticket if she were to ask me to describe Ms. Segeren I wouldn't be able to. It was that fast that I was trying to keep track of everyone in the store at the time.

THE ISSUES

46The ultimate issue in this proceeding is whether or not the prosecution has proven the guilt of the defendant of the subject charge, to the standard of proof beyond a reasonable doubt.

47The sub-issues in this proceeding are as follows:

whether or not the prosecution has proven all of the essential elements of the actus reus of the subject offence, including the issue of the identification of the defendant, beyond a reasonable doubt?; and
if the prosecution has proven the actus reus of the subject offence against the defendant, beyond a reasonable doubt:

(i) whether the defendant has established, on a balance of probabilities, that the exemption from liability for the subject offence created by subsection 3(3) of the SFOA operates in her favour, in accordance with subsection 47(3) of the P.O.A.? and

(ii) whether the defendant has established on a balance of probabilities, the defence of due diligence as defined in the case of Regina v. City of Sault Ste. Marie, supra; such that her presumed negligence in committing the subject strict liability offence is negated, thereby excusing her of liability for the subject offence?

ANALYSIS

(i) The actus reus of the offence

48The issue of the identity of the defendant as the person who at the relevant time and place sold tobacco to Ms. Claire Segeren, does not appear to be in dispute. In fact during her testimony, the defendant admitted that in the late morning hours of September 25th, 2011, she was working as a store-clerk "in training" at the Convenience A store. She acknowledged that she sold a package of cigarettes to Ms. Segeren at that time. She submits, however, that in doing so she acted on the basis of an honest belief that Ms. Segeren was at least 19 years of age.

49In my view, the prosecution has successfully proved all of the essential elements of the actus reus of the subject offence, beyond a reasonable doubt. In reaching that conclusion, I have found the verbal evidence of all four witnesses in this proceeding to be credible. Each of the witnesses testified in a clear and concise manner. Their respective testimony was internally consistent and was not shaken on cross-examination. There was no indication that any of the witnesses attempted to embellish or exaggerate their respective versions of the relevant events.

50Furthermore, in finding that the prosecution has met its burden of proving that the defendant committed the actus reus of the offence, I have taken into consideration the fact that the defendant did not present any exculpatory evidence relative to the prohibited act created by subsection 3(1) of the SFOA. When I consider the defendant's evidence in the context of the evidence as a whole, I find that I am not left in a state of reasonable doubt as to the defendant's guilt. Accordingly, based upon the totality of the testimonial evidence in this proceeding, which I have accepted, and based upon the application of the third prong of the model jury instruction enunciated by the Supreme Court of Canada in its decision in Regina v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.), I am convinced beyond a reasonable doubt of the defendant's guilt of the subject offence.

51The totality of the undisputed evidence in this proceeding has, in my view, established the following elements of actus reus of the subject offence, beyond a reasonable doubt:

(i) that on the 25th day of September, 2011, just prior to 12:00 p.m., a test shopper employed by the Regional Municipality of Halton, Ms. Claire Segeren, entered a convenience store located at 1505 Guelph Line, Burlington, Ontario, known as "Convenience A";

(ii) that at that time, Ms. Segeren was seventeen years of age having been born on the 25th day of February 1994;

(iii) that upon entering the store, Ms. Segeren approached the defendant, who was the store clerk at that time and asked if she could purchase tobacco;

(iv) that upon making the request, the defendant sold a package of 25 "Canadian Classics king size" cigarettes to Ms. Segeren, for $8.85;

(v) that the cigarettes purchased from the defendant by Ms. Segeren are a tobacco product.

52In concluding that the said "Canadian Classics" brand of cigarettes purchased by Ms. Segeren on September 25th, 2011, was tobacco, I have weighed the testimonial evidence of both Ms. Segeren and the defendant in the context with the wording and markings contained on the cigarette package. Furthermore, I have considered the ordinary definition of the word "cigarette" as stated in the Canadian Oxford Dictionary, Second Edition (Oxford University Press, 2004), as follows:

cigarette: 1. a thin cylinder of finely-cut tobacco rolled in paper for smoking.

53Furthermore, in finding that the prosecution has proven that the contents of the cigarette package was tobacco processed in the form of cigarettes, I have followed the reasoning of Pockele J. in Regina v. Chung, supra. In that regard, the totality of the evidence in this proceeding permits me to draw a prima facie inference that the subject package marked as "Canadian Classics" cigarettes, contained a tobacco product, and in the absence of any evidence to the contrary, I am able to conclude that the prosecution has proven that the said package contains tobacco, beyond a reasonable doubt. As stated in Chung, supra, in these circumstances it would be unreasonable to expect the prosecution to call expert scientific evidence to prove that the substance contained in the sealed cigarette box was, actually, tobacco.

(ii) Whether the defendant has proven that the exemption from liability for the subject offence under subsection 3(3) of the SFOA, operates in her favour?

54As stated above, subsection 3(3) of the SFOA, appears to establish a statutory exemption from liability for the subject offence. In his decision in Regina v. Seaway Gas and Fuel Ltd. supra, MacPherson J.A. opined that the said subsection constitutes a "statutory due diligence defence". In either scenario, however, the burden of proof of establishing this statutory exemption or qualification rests on the defendant on a balance of probabilities.

55Subsection 3(3) of the SFOA states that if a defendant charged with an offence under subsections 3(1) or (2) of the SFOA, believed that the person receiving the tobacco was at least 19 years old, because the person produced to the defendant a form of identification prescribed by the regulations under the Act showing his or her age and where there was no apparent reason to doubt the authenticity of the identification document or that it was issued to the person producing it, the defendant would have a valid defence to the charge which would shield him or her from liability therefor.

56It is clear that in order to be eligible for this statutory exemption, a defendant would need to show that his or her belief that the person to whom tobacco was sold or supplied was at least 19 years old, was based upon an identification document prescribed by section 3 of Ont. Reg. 48/06 and the information contained in that document.

57In the case at bar, the defendant sold the tobacco to the seventeen-year old test shopper, Ms. Segeren, without first perusing any form of identification produced by her. In her evidence, the defendant maintains that at the time of the subject transaction, she believed that Ms. Segeren was at least 19 years of age; however, that belief was not based upon the information contained within an identification document produced by Ms. Segeren at the time of the transaction.

58Accordingly, there is no evidence before the Court that the defendant's mistaken belief respecting Ms. Segeren's age at the material time was based upon an identification document produced by Ms. Segeren. The defendant has, therefore, failed to discharge her burden of proving, on a balance of probabilities that the exemption from liability for the offence under subsection 3(1) of the SFOA, created by subsection 3(3) of the said Act, operates in her favour.

(iii) Whether the defendant has established the defence of due diligence such that she may be excused of liability for the subject offence?

59In this case, I have found that the prosecution has met its burden of proving all of the essential elements of the actus reus of the subject strict liability offence, beyond a reasonable doubt. In accordance with the reasoning enunciated in Regina v. City of Sault Ste. Marie, supra, the fault element of negligence is automatically imported into the offence and the defendant will be convicted of the regulatory offence unless she is able to establish, on a balance of probabilities, that she "took all reasonable care". This defence is commonly referred to as the defence of due diligence.

60If the defendant proves the defence of due diligence, her presumed negligence in committing the prohibited act is rebutted and she is therefore excused of liability for the offence. In that circumstance she is entitled to be acquitted of the offence.

61In his judgment in Regina v. City of Sault Ste. Marie, supra, Mr. Justice Dickson (as he then was) advised that the defence of taking all reasonable care "involves a consideration of what a reasonable man would have done in the circumstances". He stated that the defence "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event".

62In Regina v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.) Tarnopolsky J.A. stated that "the due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably".

63In Regina v. Stelco Inc., [2006] O.J. No. 3332 (Ont. S.C.J.), Whitten J. noted that "due diligence imports a standard of objective reasonableness, an honest subjective belief is not enough".

64In commenting on the defence of due diligence in his appellate decision in Regina v. Nitrochem Inc., [1993] O.J. No. 3336 (Ont. Prov. Ct.), Anderson J. stated as follows:

An analysis of the defence reveals two possible arguments. First it is open to the accused to establish that he reasonably believed in a mistaken set of facts which if true would have rendered the act or omission harmless. The second branch of the argument is that the accused did everything reasonably within his power to avoid the event. In practical terms however, the two aspects of the defence ultimately converge since to establish the reasonableness of the mistaken belief an inquiry is necessary to determine whether the accused did everything reasonably within his power to ascertain the true state of affairs.

65In his decision in Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.), Fitzpatrick J. made the following comments pertaining to the defence of due diligence:

Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.

66In the case of Lévis (City) v. Tétreault, 2006 SCC 12 , [2006] S.C.J. No. 12 (S.C.C.), LeBel J., writing on behalf of the Court, summarized his decision respecting the subject appeal, including the issue of the applicability of the defence of due diligence, as follows:

In this case, as I explained above, the charge brought by the City of Lévis was one of operating a motor vehicle without a valid driver's licence, contrary to s. 93.1 of the Safety Code [ Highway Safety Code, R.S.Q., c. C-24.2]. Nothing in the words of this provision indicates an intention to create a mens rea offence or, conversely, to impose absolute liability so as to exclude a due diligence defence. The provision in no way places the burden of proving mens rea on the prosecution. Nor does it include any expression of the legislature's intent to create an absolute liability offence. Furthermore, such an intent cannot be inferred from the scheme of this provision, which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring driver's licences without it being necessary to deprive an accused of a due diligence defence. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and, in particular, of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. The only issue in dispute thus consists in determining whether the defence of the accused is consistent with the concept of due diligence.

In Mr. Tétreault's case, the judgments of the courts below confused passivity with diligence. The accused did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. He proved no action or attempt to obtain information. The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence in criminal law. Consequently, the acquittals are unfounded in this case. …

67In his decision in Regina v. Seaway Gas and Fuel Ltd., supra, at paragraphs 36 and 37, MacPherson J.A. made the following comments pertaining to the level of diligence required to be exercised by vendors of tobacco products, in Ontario with specific reference to the prohibition of the sale of tobacco to persons under 19 years of age under subsection 3(1) of the Tobacco Control Act, 1994, supra:

…the position of Ontario merchants is one that combines privilege and responsibility. The privilege is the merchant's opportunity to sell products to the public and to earn a profit, or even to gain a livelihood, thereby. The responsibility arises from the fact there is a direct interface or relationship between the merchant and the customer. With respect to regulated products, it is crucial that the merchant understand and respect the limits of its privilege to sell to the public. As expressed by Dickson J. in Sault Ste. Marie, supra, at page 1322:

The element of control, particularly by those in charge of business activities which may endanger the public, is vital to promote the observance of regulations designed to avoid that danger.

Applying this passage to the sale of tobacco products in Ontario, the message to vendors is a simple one: you must be scrupulously vigilant in ensuring that you do not sell tobacco products to minors. One of the ways a vendor fulfills this responsibility is by insisting that a young person seeking to buy cigarettes is in fact old enough to do so, as demonstrated by production of one of the five forms of identification prescribed in the regulation.

68After carefully reviewing the defendant's testimony in this proceeding, I am of the view that the defendant's argument that she should be acquitted of the subject offence is based on a submission that in committing the prohibited act she harboured an honest and reasonable, but mistaken belief that Ms. Segeren was at least 19 years of age. She submits that her mistaken belief was reasonable given the fact that at the material time, she was an inexperienced convenience store clerk who had only been employed in that capacity for two days and was undergoing on-the-job training. Additionally, she argues that her oversight in failing to take appropriate steps to seek proper identification from Ms. Segeren prior to selling cigarettes to her, was directly related to the significant volume of customers in the store at the time and the stress that she was under to attempt to service the customers without assistance from her trainer, Ms. Chahal.

69The defendant remarked that the transaction with Ms. Segeren happened very quickly, at a time when she was trying to service a significant number of customers. She maintained that in light of the hurried and confusing circumstances in the store at the time, she was only able to briefly interact with Ms. Segeren. It was during this brief interaction, in the course of a set of chaotic circumstances in the store, that the defendant came to her own conclusion based on her cursory view of Ms. Segeren, that Ms. Segeren was old enough to be able to legally purchase tobacco. The following portion of her narrative-style testimony-in-chief supports her legal argument pertaining to her stated due diligence defence:

…So at the time that Ms. Segeren was in the store I had a high volume of customers and things to keep track of. And so, when the transaction occurred it was so quick that I was completely unaware that she was underage. As a new employee I was trying to get people through as fast as I possibly could.

70Furthermore, the defendant's testimony as to the speed of the subject tobacco purchase transaction was corroborated by Ms. Segeren's testimony during cross examination when on answer to the defendant's question as to whether she was able to recall "how quickly the transaction was made", she stated: "it was quite a fast transaction".

71In assessing the defendant's testimony relative to the circumstances surrounding and leading up to the tobacco purchase transaction in question, I find that the defendant's testimony is both internally consistent and consistent with the preponderance of the evidence proffered by the other witnesses. I therefore find the defendant's testimony relative to her submission that she committed the prohibited act on the basis of a reasonable, but mistaken belief that Ms. Segeren was at the relevant time, of legal age for purposes of purchasing tobacco products, to be credible.

72I am satisfied that given her brief interaction with Ms. Segeren, that the defendant honestly assumed that Ms. Segeren was at least 19 years of age. Accordingly, I do not believe that the defendant intended to breach the regulatory provision codified in subsection 3(1) of the SFOA at the material time.

73In my view, however, the totality of the evidence before me in this matter has failed to persuade me on a balance of probabilities that the defendant's honest, subjective belief that Ms. Segeren was of legal age, given the defendant's inexperience as a store clerk and the rushed and stressful circumstances surrounding the subject tobacco purchase transaction, was objectively reasonable. I am not satisfied that a reasonable person under similar circumstances would have acted in the same way as the defendant did in jumping to an immediate conclusion that Ms. Segeren was of legal age for purposes of purchasing tobacco, based upon a very brief encounter with the purchaser and a cursory assessment of her appearance.

74Subsection 3(2) of the SFOA imposes a statutory duty on vendors of tobacco to require persons seeking to purchase tobacco who appear to be less than 25 years old, to provide identification so as to prove that they are at least 19 years old before selling tobacco to them. There is no evidence before me relative to the defendant's opinion as to the apparent age of Ms. Segeren, other than her view that the said purchaser was at least 19 years of age. The defendant did not testify that Ms. Segeren appeared to her to be 25 years of age or older. In fact the defendant's evidence was that in light of the rapid pace of the transaction, she would have been unable to describe Ms. Segeren if she had been asked by Officer McLennan at the time that the Offence Notice was issued to her.

75There is no evidence before me upon which I could infer, on a balance of probabilities, that the defendant both honestly and reasonably believed that Ms. Segeren was 25 years of age or more at the material time. Accordingly, it is reasonable to conclude that in the circumstances the defendant ought to have asked Ms. Segeren for identification to confirm her age prior to completing the tobacco purchase transaction. While it is certainly understandable that the defendant could have honestly believed that the 17-year-old shopper was, at the relevant time, 19-years of age, based on the evidence before me it is not objectively reasonable to conclude that the defendant could have honestly believed that the test shopper was 25 years of age or older.

76In considering the issue of whether the defendant exercised due diligence in deciding to sell Ms. Segeren a package of cigarettes at the subject time, I must remind myself of the need to interpret the SFOA in a manner so as to ensure the strict enforcement of its provisions for the protection of the public. In this regard, I am reminded of the standard of care enunciated by Mr. Justice MacPherson in Regina v. Seaway Gas and Fuel Ltd., supra, where he states that the strict provisions of the Tobacco Control Act, 1994, now the SFOA, considered in the context of the principles enunciated in Regina v. Sault Ste. Marie, supra, send a simple message to vendors of tobacco products in Ontario that they "must be scrupulously vigilant" in ensuring that they do not sell tobacco products to minors.

77It would appear, based on the evidence before me, that despite the chaotic circumstances that the defendant found herself in as the only customer service clerk working in the convenience store at the material time, she was, nevertheless, negligent in failing to ask Ms. Segeren for identification to confirm her age, prior to selling the cigarettes to her. There was no objective basis for a determination that Ms. Segeren appeared to be at least 25 years of age or older at the relevant time, so as to excuse the defendant from fulfilling her statutory duty to require Ms. Segeren to produce identification to confirm her age at the relevant time.

78In my view, the circumstances surrounding the tobacco sale transaction are not significant enough to overcome the defendant's negligence in failing confirm the defendant's age through a request for the production of prescribed identification. In this regard, the defendant failed to meet her duty of care as a vendor of tobacco products, established both in common law and by the terms of the SFOA, to be "scrupulously vigilant" in ensuring that tobacco products are not sold to underage customers.

79Furthermore, I am of the view that in order to reach the conclusion that the defendant's mistaken belief that Ms. Segeren was at least 19 years of age, was a reasonable belief, there must be evidence before me that establishes that even in the confusing and stressful situation that the defendant found herself in, she maintained the presence of mind to make some inquiries of Ms. Segeren relative to her actual age.

80While it is certainly conceivable that a reasonable person might, in the context of the chaotic circumstances in the store at the relevant time, either simply forget to ask for identification from Ms. Segeren or innocently overlook this task, it is not conceivable that the reasonable person would make a perfunctory decision to sell cigarettes to Ms. Segeren without first asking her if she was at least 19 years of age. The defendant failed to make any verbal inquiries of the Ms. Segeren relative to her age prior to proceeding to rapidly complete the cigarette purchase transaction as requested.

81As stated in Regina v. Nitrochem Inc., supra, in order to determine the reasonableness of a mistaken belief"an inquiry is necessary to determine whether the accused did everything within his power to ascertain the true state of affairs". Furthermore, in Lévis (City) v. Tétreault, supra, LeBel J. stated that "the concept of diligence is based on the acceptance of a citizen's civic duty to take actions to find out what his or her obligations are", noting that "passive ignorance is not a valid defence in criminal law".

82In my view, at the material time, the defendant failed to take the prudent steps needed to protect the public and thereby fulfill her statutory duty as a vendor of tobacco products, by verbally asking Ms. Segeren to confirm her age.

83While there is no question that the defendant was an inexperienced convenience store employee who had not been provided with adequate training or assistance, she nevertheless, was aware of the fact that she would be breaking the law if she sold tobacco products to anyone under the age of 19 years. Under those circumstances, one might reasonably have expected that she should have been alert to the special rules surrounding the sale of tobacco products and her obligation to exercise caution in processing the sale of such products by, at least, making verbal inquiries of Ms. Segeren as to her actual age prior to completing the purchase transaction.

84In considering the totality of the circumstances of the case at bar, it was not reasonable for the defendant to sell the cigarettes to Ms. Segeren without first asking her age. While the stress that the defendant was experiencing at the time of the subject transaction might serve to excuse the defendant from her apparent obligation to ask Ms. Segeren for a piece of prescribed identification prior to considering her request to purchase tobacco, it did not excuse the defendant from her obligation at common law to do everything reasonably in her power to ascertain Ms. Segeren's actual age at the subject time.

85The defendant relied on her own subjective assumption that Ms. Segeren was at least 19 years of age, in undertaking the completion of the sale of a tobacco product to her. She therefore committed the subject offence on the basis of an honest mistake of fact. Her mistake of fact, however, was not reasonable as it was based on her passive ignorance of the circumstances of the sale transaction.

86The defendant had an opportunity, even in the context of the volume of customers with varying needs that she was attempting to serve at the relevant time, to take the minimal step of asking the test shopper for her age prior to completing the tobacco purchase transaction. By failing to take that step, she failed to undertake all reasonable steps within her power to ascertain the shopper's actual age. It cannot be said, therefore, that the defendant's mistaken belief that Ms. Segeren was at least 19 years of age at the time of the subject tobacco purchase transaction, was a reasonable belief.

87In conclusion, I find that the defendant has failed to prove, on a balance of probabilities, that in committing the prohibited act under subsection 3(1) of the SFOA she acted on the basis of an honest and reasonable mistake of fact. She has therefore failed to establish the defence of due diligence and is therefore presumed to have committed the actus reus of the subject offence, through negligence.

THE DECISION

88The prosecution has succeeded in proving that the defendant committed the actus reus of the subject offence, beyond a reasonable doubt. The fault element of negligence is, therefore, automatically imported into the subject offence.

89The defendant has failed to establish on a balance of probabilities, that the statutory exemption from liability for the subject offence codified in subsection 3(3) of the SFOA, operates in her favour.

90Furthermore, the defendant has failed to prove on a balance of probabilities that in committing the prohibited act relative to the subject offence, she exercised due diligence so as to negate her presumed negligence. She is not, therefore, excused of quasi-criminal liability for this offence.

91The defendant, Selina Rose Quintal is, therefore, found guilty of the offence of "sell tobacco to a person who is less than 19 years old", contrary to subsection 3(1) of the Smoke-Free Ontario Act, and a conviction is registered.

Released: December 18th, 2012

Signed: "Justice of the Peace Kenneth W. Dechert"