Regina v. Seaway Gas & Fuel Ltd. et al.*
[Indexed as: R. v. Seaway Gas & Fuel Ltd.]
47 O.R. (3d) 458
[2000] O.J. No. 226
Nos. M24193 and C32393
Court of Appeal for Ontario
Carthy, Moldaver and MacPherson JJ.A.
February 2, 2000
*Vous trouverez traduction fran‡aise de la d‚cision ci-dessus
… 47 O.R. (3d) 468.
Criminal law -- Provincial offences -- Defences -- Due
diligence -- Selling cigarettes to persons under 19 -- Tobacco
Control Act providing defence for selling cigarettes to
underage customer if customer produced "prescribed form of
identification" -- Justice of peace erring by holding that list
of five types of proof of age in regulations merely guide to
what identification is acceptable -- Regulations exhaustive --
Due diligence only made out when one of prescribed
identification produced -- Crown appeal allowed -- Tobacco
Control Act, 1994, S.O. 1994, c. 10, s. 3(3) -- O. Reg. 613/94,
s. 1.
The individual respondent sold cigarettes to a 16-year-old
boy after she asked him for identification and he produced a
school identification card which showed him to be 19 years old.
The respondents were charged with selling tobacco to a person
under the age of 19 contrary to s. 3(1) of the Tobacco Control
Act, 1994. Section 3(3) of that Act provides a defence to a
charge under s. 3(1) where 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. Section 1 of O. Reg. 613/94 under
the Act provides that, "[t]he following forms of identification
are prescribed for the purposes of subsection 3(3) of the Act",
and then lists five forms of identification. A school
identification card is not one of them. The justice of the
peace found that s. 1 of the regulation is a guide to be
followed and that other forms of identification may be
presented. She found that the individual respondent had
exercised due diligence and dismissed the charges. That
decision was affirmed on appeal. The Crown appealed.
Held, the appeal should be allowed.
The five forms of identification in s. 1 of the regulation
constitute an exhaustive list of the forms of identification
that a vendor of tobacco products may examine when deciding
whether a prospective customer is entitled to buy a package of
cigarettes.
Cases referred to
R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, 85
D.L.R. (3d) 161, 1978 CanLII 11 (SCC), 3 C.R. (3d) 30, 21 N.R. 295, 7 C.E.L.R. 53, 40
C.C.C. (2d) 353; RJR-Macdonald Inc. v. Canada (Attorney
General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 164 N.R. 1, 111 D.L.R. (4th)
385, 1994 CanLII 117 (SCC), 54 C.P.R. (3d) 114, 60 Q.A.C. 241, 20 C.R.R. (2d) D-7
Statutes referred to
Provincial Offences Act, R.S.O. 1990, c. P.33, s. 139
Tobacco Control Act, 1994, S.O. 1994, c. 10, s. 3(1), (3), (6)
Rules and regulations referred to
General Regulation, O. Reg. 613/94 (Tobacco Control Act, 1994),
ss. 1, 13
Authorities referred to
The New Oxford Dictionary of English (1998), "acceptable"
APPEAL by the Crown from a judgment dismissing an appeal from
a decision dismissing charges of selling tobacco to a minor.
Diane M. Lahaie, for appellant.
Leo D. Courville, for respondents.
The judgment of the court was delivered by
MACPHERSON J.A.: --
Introduction
[1] Thousands of store owners and operators throughout
Ontario sell cigarettes to customers. The legal issue presented
by this appeal is of genuine practical consequence to them. The
issue is, what is the responsibility in law of store owners and
operators with respect to the sale of cigarettes to young
people? Specifically, what forms of identification may a vendor
accept to verify that a potential customer is legally permitted
to purchase cigarettes?
A. Factual Background
(1) The parties and the events
[2] At about 3:40 p.m. on August 13, 1997, Raymond Gervais
went to Seaway Gas & Fuel Ltd. ("Seaway"), a small gas bar and
store in Cornwall, to buy cigarettes. Raymond was born on March
26, 1981. Accordingly, he was 16 years old and was not legally
permitted to purchase cigarettes.
[3] Mrs. Param Phambri, the store clerk, requested
identification. Raymond produced a laminated school
identification card with writing at the top indicating Conseil
Scolaire Public de Stormont, Dundas and Glengarry Public School
Board. The card also contained the school's logo or insignia
and a recent photograph of Raymond with a date of birth of
March 26, 1978 (thus establishing, it appeared, that he was 19
years old which is the legal age for purchasing cigarettes).
[4] Mrs. Phambri sold a package of DuMaurier king size
cigarettes to Raymond. He departed the store and rode away on
his bicycle. Two provincial offences officers, Inspectors
Robert Gilchrist and Yves Decoste, had been conducting
surveillance on Seaway. They stopped Raymond a few blocks from
the store. He provided the inspectors with his proper name and
address. When asked about his date of birth, Raymond replied
truthfully -- March 26, 1981. Raymond admitted to the
inspectors that he had purchased cigarettes at Seaway and that
he had produced a student card as identification. Raymond had
himself prepared the card with its false birth date, March 26,
1978, with the assistance of his computer.
[5] Later the same day, Inspectors Gilchrist and Decoste
proceeded to Seaway. They questioned Mrs. Phambri and advised
her that she was being charged under the Tobacco Control Act,
1994, S.O. 1994, c. 10, with selling tobacco products to
someone under the age of 19.
[6] Mrs. Phambri called her husband Kulwant Phambri, the
owner and president of Seaway. He came to the store. The
inspectors informed him that charges would be laid against both
Seaway, the corporate entity, and Mrs. Phambri, the store clerk
who made the sale.
(2) The litigation
[7] The charges against Seaway and Mrs. Phambri proceeded to
trial on March 18, 1998 before Her Worship Justice of the Peace
Louise Rozon. Seaway and Mrs. Phambri were charged with
violating s. 3(1) of the Tobacco Control Act which provides:
3(1) No person shall sell or supply tobacco to a person who
is less than 19 years old.
[8] On June 2, 1998, Justice of the Peace Rozon rendered her
decision. She dismissed the charges against both Seaway and
Mrs. Phambri. In reaching this conclusion, the trial judge
considered s. 3(3) of the Tobacco Control Act and a regulation
dealing with forms of identification under the Act.
[9] Section 3(3) of the Act provides a defence to a charge
under s. 3(1). It provides, in part:
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.
[10] Referring to the words in the bottom half of this
provision, the trial judge found that Mrs. Phambri was diligent
about seeking identification from Raymond Gervais and that the
identification appeared to be authentic:
The identification produced is a laminated public school
board card with photo, name, and date of birth. The card does
not appear to have been tampered with, i.e. date of birth.
[11] The trial judge recognized that this did not end the
inquiry. Raymond Gervais had produced a school identification
card when asked for proof of age. Was this "a prescribed form
of identification" within s. 3(3) of the Act? On that question,
it was necessary for the trial judge to consider a regulation
promulgated under the Tobacco Control Act, namely O. Reg. 613/
94:
- The following forms of identification are prescribed for
the purposes 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 Licence Board of
Ontario.
[12] In interpreting this provision, the trial judge
considered a number of factors. She examined the dictionary
definition of the word "prescribed". She also discussed the
difficulty non-Ontario customers would have in places like
Cornwall (which is very close to both Quebec and New York
state) if they were required to produce one of the prescribed
forms of identification. In addition, she referred to s. 13 of
the regulation which required retailers to post signs informing
customers of the forms of identification "that may . . . be
produced under subsection 3(3) of the Act" (emphasis is trial
judge's). Finally, the trial judge noted that s. 13 of the
regulation requires stores to post signs listing the five forms
of identification, but with the introductory words "Acceptable
I.D."; in her view, if only the five forms of identification
set out in s. 1 of the regulation were permitted, the
regulation would have said "The acceptable I.D." or "Only
acceptable I.D." (emphasis is trial judge's).
[13] Taking these considerations together, the trial judge
reached the conclusion:
I am satisfied that Ontario Regulation 613/94 is a guide to
be followed and other forms of I.D. may be presented.
Since she found that Mrs. Phambri had exercised due diligence
in requesting identification, and that the identification
produced seemed to be authentic as to both the person and his
age, she dismissed the charges against Seaway and Mrs. Phambri.
[14] The Crown appealed. The appeal was heard by Judge B.
MacPhee of the Ontario Court of Justice (Provincial Division)
in Cornwall on February 3, 1999. On March 23, 1999, the appeal
judge rendered his decision, dismissing the appeal. On the
legal issue of whether the five forms of identification set out
in s. 1 of the regulation was an exhaustive list of acceptable
identification, the appeal judge agreed with the trial judge's
negative answer. He said:
I see no error in the Justice of the Peace's assessment of s.
13 of the regulation as it affects s. 1 of the regs. and
thereby s. 3(3) of the Act. . . . The Tobacco Control Act and
its regulations as drafted, allow for the proof of age
through credible documentation other than that listed in the
regulations.
[15] The Crown sought leave to appeal Judge MacPhee's decision.
Pursuant to s. 139 of the Provincial Offences Act, R.S.O. 1990,
c. P.33, Rosenberg J.A. granted leave on June 4, 1999.
B. Issue
[16] There is a single legal issue in this appeal. What are
the acceptable forms of identification that a customer may show
to a store operator who challenges his or her capacity, in
terms of age, to purchase cigarettes? Or, put another way, is
it a defence to a charge under s. 3(1) of the Tobacco Control
Act (selling tobacco products to underage persons) for the
store operator to establish that he or she reviewed a form of
identification, but not one listed in s. 1 of O. Reg. 613/94?
C. Analysis
[17] My starting point is the same as that of both parties.
The Tobacco Control Act ("the Act") is a regulatory statute
which creates strict liability offences; the offences come
within the middle category of offences set out by Dickson J. in
his important and innovative decision in R. v. Sault Ste. Marie
(City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161. Dickson J.
described this category of offence, and its consequences for
both the Crown and the accused, in this fashion, at p. 1326:
- Offences 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 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 offences may
properly be called offences of strict liability.
[18] 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.
[19] 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
offences. 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.
[20] 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.
[21] It can be seen that there are three components to this
statutory defence: the defendant believed the person receiving
the tobacco was at least 19 years old because (1) the person
produced a prescribed form of identification showing his or her
age; (2) there was no apparent reason to doubt the authenticity
of the document; and (3) there was no apparent reason to doubt
that the document was issued to the person presenting it. The
respondents do not challenge the power of the legislature both
to create a strict liability offence and to provide a due
diligence defence. Nor does the respondent suggest that there
is anything unreasonable about the contents of the due
diligence defence established by s. 3(3) of the Act.
Accordingly, the crucial issue on this appeal is the
interpretation of this provision.
[22] In the present appeal, there is no issue with respect to
(2) and (3). The trial judge found that the store clerk,
Mrs. Phambri, properly asked her customer for identification.
The customer, Raymond Gervais, produced a school identification
card which included his name, photo and date of birth. The
trial judge found, "The card does not appear to have been
tampered with, i.e. date of birth." Moreover, the photo on the
card was a picture of her customer. Accordingly, the trial
judge held that there was no apparent reason for Mrs. Phambri
to doubt either the authenticity of the card or the identity of
the person producing it. The Crown does not quarrel with these
aspects of the trial judge's decision.
[23] The real issue is precisely the one identified by the
trial judge in her reasons: "What is an issue in the matter
before this court is whether it was acceptable I.D." That issue
falls to be determined on the interpretation to be given to the
words "prescribed form of identification" in s. 3(3) of the
Act.
[24] By O. Reg. 613/94, the Ontario government has defined
the contents of "prescribed form of identification". Section 1
of the regulation states that, "[t]he following forms of
identification are prescribed for the purposes of subsection
3(3) of the Act." Five forms of identification are then listed
-- an Ontario driver's licence with a photograph of the person
to whom the licence is issued, a Canadian passport, a Canadian
citizenship card including photograph, a Canadian Armed Forces
card, and a photo card issued by the Liquor Licence Board of
Ontario.
[25] In my view, subject to a minor qualification I will make
at the conclusion of these reasons, these five items constitute
an exhaustive list of the forms of identification that a vendor
of tobacco products may examine when deciding whether a
prospective customer is entitled to buy a package of
cigarettes. I reach this conclusion for several reasons.
[26] First, the dictionary definition of the word
"prescribed" suggests exclusivity and compulsion. In her
judgment, the trial judge stated:
"Prescribed" not being defined in the Interpretation Act, I
then verified the definitions in the dictionary. The
dictionary definitions of "prescribed" are as follows:
- "To set down as a direction or rule to be followed; to
lay down the rules of the law" -- Canadian Law
Dictionary.
- "To lay down as a guide, direction, or rule of action"
-- Webster's Collegiate Dictionary.
- "To lay down or impose authoritatively" -- Oxford
English Dictionary.
[27] This is a fair selection of dictionary definitions.
Having set them out in her reasons, the trial judge did not
state explicitly how she interpreted these definitions. In my
view, the words "rule to be followed", "rule of action" and
"impose authoritatively" suggest something that is
mandatory. In the context of s. 3(3) of the Act that means that
a vendor must insist that a customer produce one of the five
statutory forms of identification.
[28] Second, I do not think there is an inconsistency between
the words "prescribed" in s. 3(3) of the Act and s. 1 of the
regulation and "acceptable" in s. 13(5) of the regulation. In
The New Oxford Dictionary of English (1998), the principal
definition of the word "acceptable" is, "able to be agreed on;
suitable . . . . adequate; satisfactory" (at p. 10). In my
view, this definition is consistent with the definition of
"prescribed" in the context of the Act. When s. 1 of the
regulation lists five forms of identification as "prescribed",
and s. 13 of the same regulation lists the same five forms of
identification as "acceptable", the two adjectives mean the
same thing -- a vendor must insist that a prospective customer
produce one of them.
[29] Third, I do not think that the word "may" in s. 13(1) of
the regulation means that other forms of identification may be
considered by a store operator. In the context of five
"prescribed" forms of identification in s. 1 and five
"acceptable" forms of identification in s. 13(5), the word
"may" in s. 13(1) simply means that the customer may produce
any of the five listed forms of identification, not something
completely different.
[30] Fourth, I do not think that s. 3(6) of the Act assists
the respondents. Section 3(6) provides:
3(6) No person shall present as evidence of his or her age
identification that was not lawfully issued to him or her.
In their factum, the respondents submit that this provision is
"a logical limit to the extent of due diligence to be
exercised by a clerk or store owner." Since it appeared to the
store clerk that the school identification card had been
lawfully issued to the customer producing it, the store clerk
was justified in making the sale.
[31] I do not agree with this submission. The purpose of s.
3(6) is to create an offence for persons who produce a fake
version of one of the five forms of prescribed identification.
The section does not purport to convert other forms of
identification (e.g., a student identification card) into
prescribed forms of identification simply because they are
authentic and have been lawfully issued to the holder by the
relevant authority (e.g., a school board).
[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 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R.
(4th) 385, the Supreme Court of Canada considered the
federal Tobacco Products Control Act, R.S.C. 1985 (4th Supp.),
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 focused 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.
[34] Sixth, I do not think that it is an accident that the
government chose only five -- and five quite specific -- forms
of identification. The wallets of young people are filled with
identification cards -- school cards, sports team cards, club
membership cards, retail store cards, movie rental cards, and a
myriad of other types of cards. It would be easy for a minor to
alter the information, including birth date, on some of these
cards. That is what Raymond Gervais did in this case; as the
trial judge put it, "Mr. Gervais admitted in evidence that he
prepared the I.D. on his computer."
[35] The five forms of identification listed in s. 1 of O.
Reg. 613/94 fall into a different category. They are quite
formal documents issued by federal and provincial authorities.
They are not easy to obtain; care is taken by the authorities
in issuing them. I think a fair inference is that the Ontario
legislature chose these five forms of identification because it
knew that the authorities are careful in scrutinizing the
relevant information before they are issued. In other words,
there is a strong likelihood that the information on, for
example, a Canadian passport or an Ontario driver's licence is
accurate.
[36] Seventh, 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 p. 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.
[37] 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 fulfils 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.
[38] For these reasons, I do not think that the
interpretation of s. 3(3) of the Act by the trial and appeal
judges was correct.
[39] I need to make a minor qualification to the conclusion I
have reached. I recognize that there is at least one anomaly in
the legislation in this domain. What is a store operator to do
with the young person he or she challenges who produces
identification from another jurisdiction that is similar to one
of the five prescribed forms of identification in the Ontario
regulation? For example, must a store operator refuse to sell
cigarettes to a challenged young person who produces an
apparently valid Quebec driver's licence or United States
passport? This situation can arise anywhere in Ontario but is,
of course, particularly prevalent in a place like Cornwall
which is very close to both Quebec and New York State.
[40] Moreover, the anomaly is not limited to only visitors to
Ontario. An additional category would be current Ontario
residents who possess only formal documents from another
jurisdiction -- for example, a student from British Columbia,
with a valid British Columbia driver's licence, attending an
Ontario university.
[41] Section 1 of O. Reg. 613/94 does not provide an answer
to the store operator in these situations. My answer to these
scenarios is only partial, but it is the traditional answer of
the common law method: they are not this case.
[42] The Ontario legislature is properly concerned with
proscribing consumption of tobacco products by young people. It
has, therefore, legislated in this area. Part of the
legislative response is a statutory due diligence defence
anchored in a limited number of formal Canadian and Ontario
government-issued documents.
[43] This statutory due diligence defence, by its terms, does
not cover every situation. It does not address the situation of
sales to young people from other jurisdictions with
identification similar to that prescribed in the Ontario law.
Nor does it cover sales to some current Ontario residents who
might only possess identification from other jurisdictions.
[44] It may well be that, with respect to sales to young
people in these categories, the common law defence of due
diligence, grounded in Dickson J.'s language in Sault Ste.
Marie -- "leaving it open to the accused to avoid liability by
proving that he took all reasonable care" -- would play a
residual role and provide protection to store operators.
However, whatever difficulties might be presented by a
relatively small group of consumers of tobacco products, those
difficulties should not detract from the clear and strict
regime the legislature has put in place for merchants and the
vast majority of their customers. With respect to those
customers, the merchant must insist that the young person he or
she challenges produce one of the five prescribed forms of
identification.
Disposition
[45] I would allow the appeal. Convictions should be entered
against both respondents for committing the offence of selling
a tobacco product to a minor contrary to s. 3(1) of the Tobacco
Control Act. In the circumstances of this case, it is
appropriate to grant both respondents absolute discharges.
Appeal allowed.
WDPH