INFORMATION Nos.: 4650229F
and 4650230F
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
YANCHEN ZHANG and
11078011 CANADA INC. o/a
KINGSVILLE VAPE STORE
Before Her Worship Justice of the Peace H. DeBacker
Mr. Brian Fortune Counsel for the Prosecution
Mr. Anthony Debly Counsel for the Defendants
Matter Heard: April 29, 2026
DEBACKER JP.:
1Yanchen Zhang and 11078011 Canada Inc., are both charged with sell improperly packaged vapour product contrary to Section 8 of the Smoke Free Ontario Act. Held was a highly contested trial. The court heard from two tobacco and vaping enforcement officers, Walid Al-Tamimi and Mike Fines as well as each defendant Yanchen Zhang and Ruohan Kang owner of 11078011 Canada Inc and manager of Kingsville Vape Store.
2Firstly, I will address matters not in dispute. Next, statutory law and how statutory law applies to the facts of this matter. Then matters contested and in dispute. Then lastly, the case law and the application of case law to the matters in dispute.
Not in Dispute
3Mr. Walid Al-Tamimi, Mike Fines as well as Ron Funkenhauser, all tobacco and vaping enforcement officers of the Windsor Essex County Health Unit engaged in an undercover adult test shopping operation on the 24th day of May, 2024 where they attended 6 – 8 specialty vape store locations within the city and county in an attempt to purchase illegal vape product that contained 5% nicotine.
4Mr. Al-Tamimi entered Kingsville Vape Store, spoke with the lone male store clerk, Yanchen Zhang and asked to purchase 5% nicotine vape. After some pause and hesitancy by Yanchen Zhang, Mr. Al-Tamimi indicated he really needed the product because he suffered from headaches. Yanchen Zhang then retrieved two vape products from a small fridge that was near the back of the store yet completely visible from the counter location. Yanchen Zhang presented 2 Vape Me Fire 9000 nicotine vape products, both contained 5% nicotine. One was strawberry banana, the other strawberry kiwi. Conversation took place where Mr. Al-Tamimi asked, “What does this usually sell for?” Yanchen Zhang responded, “$30”. Mr. Al-Tamimi placed $30 cash on the counter of the store and exited the store with the strawberry banana flavoured 5% nicotine vape product.
5Yanchen Zhang was later positively identified through an Ontario Driver’s licence. Exhibit 3 established 11078011 Canada Inc operating as Kingsville Vape Store as an existing corporate defendant with an Ontario Master Business Licence. Ruohan Kang confirmed she is the owner of this corporation and manager of the store. Identity of both defendants has been proven and established beyond any reasonable doubt.
6Officer Al-Tamimi re-entered the store together with officer Fines. Officer Fines seized four similar 5% nicotine vape products from the small fridge within the store. All were placed in an exhibit bag.
Requirements under statutory law
7Section 8 of the Smoke Free Ontario Act reads,
“No person shall sell or offer to sell a tobacco product, a vapour product or a prescribed product or substance at retail or for subsequent sale at retail, or distribute or offer to distribute a tobacco product, a vapour product or a prescribed product or substance for that purpose, unless it is packaged in accordance with the regulations.”
Regulation 268/18 of the Smoke Free Ontario Act, at section 4 reads:
“Packaging Requirements
- For the purposes of Section 8 of the Act,
(a) a tobacco product must be packaged in accordance with the requirements of the Tobacco and Vaping Products Act (Canada), and the package must bear or contain information required under that Act,
(b) a vapour product must be packaged in accordance with the requirements of the Tobacco and Vaping Products Act (Canada), and the package must bear or contain information required under that Act,”
The federal regulation entitled: Nicotine Concentration in Vaping Products Regulations SOR (Statutory Orders and Regulations)2021-123 apply to the federal Tobacco and Vaping Products Act as well as the federal Canada Consumer Product Safety Act .
The Nicotine Concentration in Vaping Products Regulation is set out as,
“2(1) These Regulations apply to every vaping product that is intended for retail sale in Canada, as well as to its packaging.
(2) These Regulations also apply to every vaping product that is intended to be otherwise furnished, in Canada, at a point of sale that is a retail establishment where vaping products are ordinarily sold, as well as to the packaging of such a vaping product.”
8This Court finds Kingsville Vape Store to be a retail establishment where vaping products are ordinarily sold. Therefore, the Nicotine Concentration in Vaping Products regulations (of Canada) clearly apply to Kingsville Vape Store and any vape products within Kingsville Vape Store.
9The Nicotine Concentration in Vaping Products Regulation further requires under,
“Nicotine Concentration
Standard – maximum nicotine concentration
4(1)….. a vaping product must not contain nicotine in a concentration that exceeds 20 mg/ml….”
Further under,
‘Prohibitions – packaging and sale
5 …. a vaping product must not be packaged or sold in a package that displays a nicotine concentration statement…. , that indicates that the nicotine concentration in the vaping substances exceeds 20 mg/ml.”
The tobacco enforcement officers’ evidence was vaping products of 20 mg/ml would either note this amount of measure or more commonly display 20 mg/ml as 2% nicotine. Their evidence similarly was vaping products of 50 mg/ml would either note that amount of measure or more commonly display 50 mg/ml as 5% nicotine.
This court finds because the vape products seized by the tobacco enforcement officers displayed 5% nicotine, these seized products were prohibited in all of Canada, which includes Ontario, and further that the products were not packaged in accordance with the applicable regulations of the Smoke Free Ontario Act.
10Furthermore, the federal Excise Act, 2001 applies to vaping products, under:
“Packaging and stamping of imported vaping products
158.47(1) …., if a vaping product is imported, it must, before it is released under the Customs Act for entry into the duty-paid market,
(a) be packaged in a package that has printed on it prescribed information;
(b) be stamped to indicate that vaping duty has been paid; and
( c) if the vaping product is to be entered in the duty-paid market of a specified vaping province, be stamped to indicate that additional vaping duty in respect of the specified vaping province has been paid.”
Notice – absence of stamping
158.48(1) The absence on a vaping product of stamping that indicates that vaping duty has been paid is notice to all persons that vaping duty has not been paid on the vaping product.”
Notice – specified vaping province
(2) The absence on a vaping product of stamping that indicates that additional vaping duty in respect of a specified vaping province has been paid is notice to all persons that additional vaping duty in respect of the specified vaping province has not been paid on the vaping product.”
The vaping products seized by the tobacco enforcement officers, and an exhibit, were stamped, “Made in China”. This court finds these 5% nicotine products were imported from China. Therefore, the Excise Act applies. The enforcement officers indicated that both federal Canada and provincial Ontario duty-paid stamps are required to be present on legal vape products. As the Excise Act itself indicates, absence of the duty-paid stamps is notice that the applicable duty has not been paid.
11Lastly, Mr. Al-Tamimi testified legal tobacco and vape products have a prescribed Health Canada information warning labeled on the product. This is yet another layer of regulated packaging required on all legal tobacco or vape products. The vaping products seized once again were absent of any such Health Canada warning label.
12For these reasons, namely, 1) the seized vape products contained 5% nicotine, when 2% nicotine is the maximum allowable limit by law in Canada and Ontario; 2a) the provincial duty-paid stamps were absent or missing; 2b) the federal duty-paid stamps were absent or missing; and 3) the appropriate Health Canada safety warnings were also absent or missing = this court finds, the seized vaping products were improperly packaged. The vapes were not packaged in accordance with the requirements and regulations and therefore were prohibited and illegal as a result. It is undeniable the vapour products were improperly packaged.
Matters in dispute
13The primary issue in dispute in the trial was regarding the verb ‘sell’, as the defendants are charged with sell improperly packaged vapour products. In their defence, the defendants relied upon the law of entrapment and that the 5% nicotine product was not on display. It was only after the enforcement officer repeated his need for 5% nicotine product that Yanchen Zhang produced it, which I will return to, as well as a remarkable and incredible defence product-origin story.
14Yanchen Zhang testified when he arrived for work that very same day, as he unlocked the back door of the store to enter for the workday, an unknown person, whom he had never seen before nor since, simply walked up to him at the back door of the store and said words to the effect, ‘hey, I have some vape for you’; and handed Yanchen several boxes of 5% nicotine vape products. Yanchen testified, he did not know what to do, so he telephoned his boss, Ruohan Kang, who told him to place them in the small fridge.
15Ruohan Kang testified several times per year her store is provided with free samples of various items. Ms. Kang indicated her intention was to view the vape product samples received and determine whether they were fit for sale or not. Her evidence was if she had found or known they were 5% nicotine, she would have discarded them and would not have sold them.
16This court finds this to be an incredible, self-serving and unbelievable story. The court does not find this defence story of convenience to be true. Furthermore, regardless of whether this incredible story is true or not, the fact remains that Kingsville Vape Store had 5% nicotine, no duty-paid, illegal and prohibited vape product in their store.
17Because these charges are strict liability, this court will address the defence of due diligence and why, if raised, it would fail. Ruohon Kang knew of the existence of illegal 5% nicotine vape yet, never once did Ruohon Kang ask Yanchen to describe the product, learn it was 5% and direct that product not enter her store, which she could have done so. Ruohon made no further inquiry. If the story even was true, Ruohon simply told Yanchen to place the product into the small fridge without any further effort nor direction. Ruohon could have done more. As for Yanchen Zhang, any defence of due diligence would also fail. Because firstly, this court finds his hesitation with Mr. Al-Tamimi leads the court to find Yanchen Zhang knew 5% nicotine vape was illegal and prohibited. If Yanchen was duly diligent, he would not have produced the 5% nicotine product to Mr. Al-Tamimi, yet he did. Yanchen Zhang’s evidence was when he responded ‘$30’ to Mr. Al-Tamimi’s question of, ‘how much do these products usually sell for’, he had no intention of making a sale. Rather, the $30 Mr. Al-Tamimi left on the counter was provided as a tip only and a sale did not occur. This court rejects this evidence forthright. This court finds, the $30 provided by Mr. Al-Tamimi was not a tip, it was payment for purchase of the 5% nicotine, unstamped vape product presented and offered for sale by Yanchen Zhang at Kingsville Vape Store. This court finds the sale of this product did occur.
Application of case law to the facts
18Lastly, the defence contended, however, this was all a trap. Argued was the law of entrapment. In R. v. Clothier, 2011 ONCA 27, [2011] O.J. No. 102 the Ontario Court of Appeal provided reasons in law why the defence of entrapment is not available in the case of test shoppers in the highly regulated commercial environment of retail sale of tobacco products for which the Smoke Free Ontario Act applies. Firstly, the Smoke Free Ontario Act is a public health, welfare and safety legislation. The purpose of the Act is to regulate and place restrictions on the supply of tobacco products for the safety of all Ontarians. It is of no coincidence that related through federal regulation is the Canada Consumer Product Safety Act. The title of this federal Act alone provides this law’s intention. While the facts in R. v. Clothier, involved sale of cigarettes to a minor under the age of 19 years old, this court finds, there is no less a public safety message or intention involved in the related regulations that prohibit sale or distribution of vape products, or any tobacco products, that exceed the maximum concentration of 20 mg/ml of nicotine. In R. v. Clothier, the Ontario Court of Appeal distinguished the application of the doctrine of entrapment in the context of criminal law versus regulatory law.
19Clearly, the Smoke Free Ontario Act is a regulatory, public health and safety law. In R. v. Wholesale Travel Group Inc, 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154 Cory J., stated:
“The objective of regulatory legislation is to protect the public or broad segments of the public, such as consumers to name but a few, from the potentially adverse effects of otherwise unlawful activity. Regulatory legislation involves a shift of emphasis from protection of individual interests and the deterrence and punishment of acts involving moral fault (criminal offences) to the protection of the public and societal interest. …. Regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.”
20The Smoke Free Ontario Act has been enacted to promote public health and safety. R. v. Seaway Gas & Fuel Ltd. (2000), 2000 CanLII 2981 (ON CA), 47 O.R. (3d) 458 (C.A.), the Court of Appeal said,
“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.”
21This court finds limiting the amount of nicotine, the addictive dangerous ingredient in tobacco products including vape products, is no less important to achieve public safety than is limiting the age to those the product may be sold to. In fact, nicotine concentration regulations apply to an even broader spectrum of the public than underage persons alone. Here, Ruohan Kang as principal for Kingsville Vape Store and Yanchen Zhang sold and distributed vape product that contained more than twice the legal amount of nicotine, the addictive, unsafe and harm-causing ingredient.
22In R. v. Clothier the Ontario Court of Appeal held the defence of entrapment is not available and does not apply to random test shopping to monitor regulatory compliance and minimum standards of the Smoke Free Ontario Act as long as the random test shopping is done in good faith and it is not done in a discriminatory way or for an improper purpose.
23The court heard the Windsor Essex County tobacco enforcement officers test shopped 6 – 8 vape store locations within both the City of Windsor and County of Essex that same day. This court finds their purpose was bone fide and done in good faith. They had no improper purpose. Their purpose was to monitor compliance with the regulations of the Smoke Free Ontario Act of retail establishments selling tobacco products as part of their ordinary business, all for public health and safety reasons.
24Lastly, this court was not left in any doubt by any of the defence evidence on any branch of R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
25The vape products were improperly packaged. This court finds it was alarming that not only was there no duty paid on the vape products imported from China, it was most alarming that these products contained 2 ½ times the legal limit of nicotine allowed for sale or distribution in Canada or Ontario, which places the unknowing or unsophisticated public in harm’s way.
26In conclusion, this Court finds for the 3 earlier-stated reasons namely, 1) 5% nicotine; 2) unpaid both federal and provincial taxes; and 3) missing Health Canada safety warning labels, that the seized vapour products were improperly packaged. This Court further finds that a sale of the improperly packaged and illegal vapour product did occur and that both defendants are responsible. This Court finds each and every one of the essential elements have been proven and established. Therefore, both defendants are found guilty. Convictions to register for both and each.
Released: July 22, 2026
_____________________________
Justice of the Peace H. DeBacker