Her Majesty the Queen v. Pourlotfali

[Indexed as: R. v. Pourlotfali]

Ontario Reports

Court of Appeal for Ontario,

Simmons, van Rensburg and Benotto JJ.A.

June 20, 2016

132 O.R. (3d) 136 | 2016 ONCA 490

Case Summary

Criminal law — Strict liability offences — Due diligence — Trial judge finding defendant guilty despite human error in calculating age of purchaser of cigarettes based on date of birth in identification document — Summary conviction appeal court judge erred in finding that due diligence defence made out as human error insufficient in absence of reasonable belief or reasonable care on defendant's part.

The defendant, a convenience store clerk and manager, sold cigarettes to a test shopper. She asked the shopper for identification, and the shopper produced her OHIP card that showed her date of birth as 1996, making her 17 years old. The defendant looked at the card. Beyond saying that she misread the date of birth as 1994 and may have been busy or distracted, she could not explain why she sold the shopper the cigarettes. The defendant was convicted of selling tobacco to a person under 19 contrary to s. 3(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10. The justice of the peace found that the due diligence defence in s. 3(3) of the Act was not made out on a balance of probabilities in absence of evidence that she misread the identification, what distracted her from her duties or explained what happened. The defendant successfully appealed her conviction to the Ontario Court of Justice. The appeal judge found that the defendant believed that the test shopper was 19 based on human error in calculating shopper's age based on birth date, but did not consider whether the defendant's belief was reasonable in the circumstances. The Crown appealed.

Held, the appeal should be allowed. [page137]

The offence in s. 3(1) is a strict liability offence, and s. 3(3) sets out a statutory due diligence defence. The statutory due diligence defence may apply if the defendant establishes that he or she held a reasonable belief that the customer was at least 19 years old that was formed after having exercised all reasonable care by requesting and reviewing the prescribed form of identification. To interpret s. 3(3) as permitting a defence of honest but mistaken belief of fact in the absence of reasonable belief or reasonable care would be inconsistent with the statutory provisions read in context and would undermine their legislative purpose, which is to reduce the harm of tobacco by preventing the sale of tobacco products to minors. The appeal judge erred in finding that the defendant had a defence to the charge based solely on her "human error".

R. v. Seaway Gas & Fuel Ltd. (2000), 47 O.R. (3d) 458, [2000] O.J. No. 226, 183 D.L.R. (4th) 412, 128 O.A.C. 268, 142 C.C.C. (3d) 213, 2000 CanLII 2981, 45 W.C.B. (2d) 208 (C.A.), consd

Cases referred to

Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Joshi v. Ontario (Minister of Health and Long-Term Care) (2015), 125 O.R. (3d) 384, [2015] O.J. No. 964, 2015 ONSC 1001, 331 O.A.C. 191, 250 A.C.W.S. (3d) 701 (Div. Ct.); R. v. Clothier, [2011] O.J. No. 102, 2011 ONCA 27, 273 O.A.C. 162, 330 D.L.R. (4th) 125, 266 C.C.C. (3d) 19; R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 85 D.L.R. (3d) 161, 21 N.R. 295, 40 C.C.C. (2d) 353, 7 C.E.L.R. 53, 3 C.R. (3d) 30, EYB 1978-147041, 2 W.C.B. 321; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894, D.T.E. 98T-154

Statutes referred to

Smoke-Free Ontario Act, S.O. 1994, c. 10, ss. 3 [as am.], (1), (2) [as am.], (3), (4) [as am.], (5) [as am.], (6), 16 [as am.]

Tobacco Control Act, 1994, S.O. 1994, c. 10 [as am.]

Tobacco Control Statute Law Amendment Act, 2005, S.O. 2005, c. 18

Rules and regulations referred to

O. Reg. 48/06 [as am.] (Smoke-Free Ontario Act)

O. Reg. 613/94 (Tobacco Control Act, 1994), s. 1

APPEAL from the judgment of Legault J. of the Ontario Court of Justice dated January 2, 2015 allowing the appeal from the conviction entered on May 28, 2014 by Justice of the Peace Girault of the Ontario Court of Justice.

Deanna Exner, Donna Glassman and Kristin Smith, for appellant.

David Reiter, Selwyn J. Hicks and Meghan Cowan, for respondent.

Paul Burstein, for intervenor Ontario Convenience Stores Association. [page138]

The judgment of the court was delivered by

VAN RENSBURG J.A.: —

A. Overview

[1] This appeal involves the offence of selling tobacco to minors and the interpretation of a statutory defence.

[2] Section 3(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10 (the "SFOA") prohibits the sale or supply of tobacco to a person under the age of 19. Section 3(3) provides that it is a defence to a charge under this subsection 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". This defence also applies to the offence under s. 3(2) of selling or supplying tobacco to a person who appears to be less than 25 years old without having required the person to provide identification and being satisfied that the person is at least 19 years old.

[3] The respondent, Jamileh Pourlotfali, a convenience store clerk and manager, sold a package of cigarettes to a test shopper. She asked the shopper for identification. The shopper produced her OHIP card that showed her actual date of birth, which was in 1996 -- making her 17 years old at the time. The respondent looked at the card, but beyond saying that she misread the date of birth as 1994, and may have been busy or distracted, she could not explain why she sold the shopper cigarettes.

[4] The respondent was charged and convicted by a justice of the peace of a provincial offence under s. 3(1) of the SFOA. She successfully appealed her conviction to the Ontario Court of Justice. The appeal judge found the respondent believed that the test shopper was 19 based on human error but did not consider whether the respondent's belief was reasonable in the circumstances. With leave, the Crown appeals to this court. The Ontario Convenience Stores Association ("OCSA") intervened on the appeal, with leave, and supports the respondent's position seeking that the appeal be dismissed.

[5] For the reasons that follow, I would allow the appeal.

[6] Briefly, I conclude that the relevant offence is a strict liability offence and that s. 3(3) sets out a statutory due diligence defence. The statutory due diligence defence may apply if the defendant establishes that he or she held a reasonable belief that the customer was at least 19 years old that is formed after having exercised all reasonable care by requesting and [page139] reviewing the prescribed form of identification. To interpret s. 3(3) as permitting a defence of honest mistaken belief of fact in the absence of reasonable belief or reasonable care is inconsistent with the statutory provisions read in context and would undermine their legislative purpose, which is to reduce the harm of tobacco by preventing the sale of tobacco products to minors. The appeal judge erred in finding that the respondent had a defence to the charge based solely on her "human error". I would restore the conviction and fine imposed at first instance.

B. Evidence at Trial

[7] Ms. Pourlotfali was working as a manager and clerk at a Mac's convenience store in Ottawa on February 1, 2014 when she sold cigarettes to a 17-year-old test shopper who was working under the supervision of a City of Ottawa by-law officer. Ms. Pourlotfali was charged with an offence under s. 3(1) of the SFOA and tried by a justice of the peace.

[8] Ms. Pourlotfali testified that, because the shopper appeared to be less than 25 years old, she asked for identification. In fact, she thought the shopper appeared less than 19 years old.

[9] The shopper provided an OHIP card that was authentic and correctly identified her date of birth as December 16, 1996.

[10] Ms. Pourlotfali said she checked the card's expiry date, the photo and the date of birth. She made a mistake when she read the identification. She thought she must have miscalculated the shopper's age, thinking the year of birth on the card was 1994 instead of 1996. She had no explanation for her error other than that she may have been busy or distracted.

[11] Ms. Pourlotfali had received proper training from her employer and, according to the investigating officer, her "Smoke Free Ontario knowledge was very good". The officer concluded that the store owner had done the necessary diligence to make sure that the clerk had the appropriate knowledge to prevent a sale to a minor, and accordingly did not charge the owner with an offence under s. 3(4) of the SFOA. (That subsection provides for vicarious liability unless the owner exercised due diligence.) The officer concluded that Ms. Pourlotfali's knowledge of the SFOA was above average and was satisfied that, as a result of her training, Ms. Pourlotfali knew what was expected of her. The officer acknowledged that this was a case of "human error".

C. Trial Decision

[12] The justice of the peace convicted Ms. Pourlotfali of the offence. She concluded that the defence under s. 3(3) was not [page140] available, as the justice of the peace did not accept, based on the shopper's appearance and voice, that Ms. Pourlotfali had in fact come to the conclusion or belief that the shopper was at least 19 years old. The justice of the peace went on to consider the common law due diligence defence. She concluded that the defence had not been made out because there was no evidence as to why Ms. Pourlotfali misread the shopper's birth date. There was no evidence of anything to distract Ms. Pourlotfali from her duties, or to explain what happened. Simply saying "I looked at the ID card and I made a mistake" could not address due diligence on the balance of probabilities.

[13] The set fine of $300 was reduced to $225, with four months to pay.

D. First Level of Appeal

[14] The appeal judge allowed the appeal. He found that the justice of the peace erred in her analysis of s. 3(3) by failing to properly apply the elements of the statutory defence.

[15] The appeal judge concluded that Ms. Pourlotfali was entitled to the benefit of the statutory defence if her belief that the shopper was over 19 was based on a prescribed form of identification provided by the shopper and there was no reason to doubt its authenticity or that it was issued to the shopper. The appeal judge accepted that Ms. Pourlotfali believed the shopper was over 19 after she requested her identification; this belief was based on human error in misreading the date of birth. The appeal judge held that it was open to the justice of the peace to conclude that Ms. Pourlotfali "could not believe that the test shopper was over the age of 19 based on the identification provided, but only if [the justice of the peace] rejected [Ms. Pourlotfali's] evidence that she misread the date of birth". That evidence was not rejected at trial. As a result, all of the requirements of the defence set out in s. 3(3) were met on the basis of the justice of the peace's findings of fact. A verdict of not guilty was substituted.

E. Issues on Appeal

[16] At the heart of this appeal is the proper interpretation of the statutory defence provided under s. 3(3) of the SFOA to the offence of selling tobacco products to minors.

[17] The Crown argues that the court below erred in its interpretation of s. 3(3). The Crown says the appeal judge applied a subjective belief test, without regard to the underlying purpose of the statutory due diligence defence set out in the Act, or the common law due diligence requirement that any mistaken belief [page141] of fact must be reasonable in the circumstances. The Crown also asserts that the defence provided under s. 3(3) is limited to circumstances involving reasonable reliance on false identification, although a common law due diligence defence may be available to a defendant charged with selling a tobacco product to a minor. What is key however, according to the Crown, is that the provisions of s. 3 and the available defences must be understood in relation to one of the SFOA's primary purposes: the prevention of tobacco sales to minors.

[18] The respondent, relying on certain passages from this court's decision in R. v. Seaway Gas & Fuel Ltd. (2000), 47 O.R. (3d) 458, [2000] O.J. No. 226, 2000 CanLII 2981 (C.A.), says that s. 3(3) is the only available defence to an offence under s. 3(1). As such, says the respondent, s. 3(3) should be interpreted literally as affording a defence any time a defendant took the steps required by the section, provided that the court accepts that the defendant honestly believed the customer was of age. This interpretation would not require a finding that a clerk's mistaken belief was reasonable or evidence of reasonable care, and would permit, as in this case, a defence of honest mistaken belief based solely on "human error".

[19] The intervenor supports this argument and offers another reason to read s. 3(3) as affording a defence of honest mistaken belief as to a customer's age. The intervenor says that this interpretation reflects the legislature's intention to mitigate the potentially overbroad effect of the original s. 16 of the Act (ss. 3 and 16 were both introduced in 1994, when the SFOA was called the Tobacco Control Act, 1994). According to OCSA, s. 16 provided for a six-month prohibition of tobacco sales by a store following two convictions of its clerks for selling tobacco to minors within a five year period -- with a potentially significant loss of income.

F. Analysis

(1) Brief background to s. 3(3) and the Seaway Gas case

[20] The sale of tobacco products to persons under the age of 19 was first prohibited by statute in Ontario in 1994 under the Tobacco Control Act, 1994, S.O. 1994, c. 10. Section 3 provided for the offences of selling or supplying tobacco to a person who is less than 19 years old (s. 3(1)), and selling or supplying tobacco to a person who appears to be less than 19 years old, regardless of the person's actual age (s. 3(2)).

[21] From the outset, s. 3(3) provided a defence to the offences under ss. 3(1) and 3(2). It provided then (as now): [page142]

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.

[22] Originally, s. 3(4) provided another defence to a charge under then s. 3(2): that the vendor had personal knowledge that the person receiving the tobacco was at least 19 years old. And s. 3(5) provided that, in a prosecution under subsection (1) or (2), "the court may determine, from the person's appearance and from other relevant circumstances, whether a person who received tobacco appears to be less than 19 years old".

[23] Subsection 3(6), then as now, prohibited the presentation of identification that was not lawfully issued to a person.

[24] This was the statutory backdrop to the Seaway Gas decision. In that case, a 16-year-old purchased cigarettes after presenting a laminated school identification card showing his photo and a date of birth that would make him 19 years old. The clerk and the store owner were charged under s. 3(1). They relied on s. 3(3). The specific question before this court was the type of identification that a vendor could accept to verify that a potential customer was legally of age to purchase cigarettes, in the context of s. 3(3) and the regulation setting out a list of prescribed forms of identification.[^1] This court concluded that the prescribed forms of identification were mandatory, save perhaps in a situation where the potential customer presented similar identification from another jurisdiction. Accordingly, reliance on a school identification card did not meet the requirements of s. 3(3) and did not afford the defendant a due diligence defence.

[25] In the course of his analysis, MacPherson J.A. considered the strict liability nature of the offence and the legislature's intentions in relation to the statutory due diligence defence. He made a number of important observations about the purpose and scheme of the legislation, which I will refer to in some detail later in these reasons.

[26] The Act was amended in 2005,[^2] after the Seaway Gas decision, and it was renamed the Smoke-Free Ontario Act. [page143] Importantly, s. 3(2) was amended to prohibit the supply or sale of tobacco to a person appearing to be under the age of 25, unless the vendor required the person to provide identification and was satisfied that the person was at least 19 years old. The knowledge- and appearance-based provisions in subsections 3(4) and 3(5) were repealed.

[27] The relevant regulation was also repealed and replaced by O. Reg. 48/06, which provides that for the purposes of s. 3(3) of the SFOA a "prescribed form of identification" must include a photograph of the person, state his or her date of birth, and reasonably appear to have been issued by a government: s. 3(1). The regulation now provides that such identification "may be any of the types prescribed in subsection 3(3)" of the regulation, which lists five specific types of identification.

(2) Interpretation of [s. 3(3)](https://www.canlii.org/en/on/laws/stat/so-1994-c-10/latest/so-1994-c-10.html#sec3subsec3_smooth) of the [SFOA](https://www.canlii.org/en/on/laws/stat/so-1994-c-10/latest/so-1994-c-10.html)

[28] Section 3 of the SFOA, at the time of the events leading to the charge in this case, and now, reads as follows:

3(1) No person shall sell or supply tobacco to a person who is less than 19 years old.

(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.

(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.

(4) The owner of a business where tobacco is sold shall be deemed to be liable for any contravention of subsection (1) or (2) on the premises where the contravention took place, unless the owner exercised due diligence to prevent such a contravention.

(5) Repealed: 2005, c. 18, s. 4 (2).

(6) No person shall present as evidence of his or her age identification that was not lawfully issued to him or her.

[29] The issue in this case is to interpret the defence provided in s. 3(3) of the SFOA. The court must be guided by Driedger's modern approach to statutory interpretation, adopted in Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21: "[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." The Supreme Court of Canada has repeatedly endorsed this approach: [page144] see, e.g., Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26.

(i) The legislative purpose

[30] First, I consider the legislative purpose. The goal of the SFOA is to reduce the harms caused by smoking. A key focus is to prevent minors from smoking by restricting their access to tobacco products.

[31] In Seaway Gas, at para. 32, MacPherson J.A. noted, in respect of the Tobacco Control Act, 1994, 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 and advance the public interest in health and in preventing the widespread and serious medical problems directly attributable to smoking. He also stated, at para. 33, 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.

[32] From this, it is clear that the interpretation of s. 3(3) must be consistent with the public health purposes of the Act, and in particular the important purpose "to make sure that minors are not able to buy cigarettes".

(ii) The strict liability context

[33] Next, it is important to remember that the offence provisions in this regulatory statute, including s. 3(1), are strict liability offences. Since R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, there is a presumption that all public welfare or regulatory offences are strict liability offences that allow a defence of due diligence. This means that, on proof beyond reasonable doubt of the guilty act (the actus reus -- in this case selling tobacco to a minor), the onus shifts to the defendant to establish, on a balance of probabilities, that she took all reasonable care. This is the common law defence of due diligence. As Dickson J. explained in Sault Ste. Marie, at p. 1326 S.C.R., "[t]he 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 [she] took all reasonable steps to avoid the particular event". A determination of what constitutes all reasonable care "involves consideration of what a reasonable [person] would have done in the circumstances". [page145]

[34] In Seaway Gas, MacPherson J.A. considered the strict liability nature of s. 3(1) and the legislature's intentions in relation to the defence under s. 3(3). He said, at paras. 17 to 19:

My starting point is the same as that of both parties. 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[.]

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 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.

[35] MacPherson J.A. went on to characterize s. 3(3) as a statutory due diligence defence: at paras. 21, 42.

[36] In R. v. Clothier, [2011] O.J. No. 102, 2011 ONCA 27,[^3] the only other decision of this court considering defences under the SFOA, Laskin J.A. observed, at para. 39: "Section 3(1) is a strict liability offence. A person can be convicted for merely being negligent."

[37] Accordingly, it is important to interpret s. 3(3) in a manner that is consistent with the strict liability context and its character as a "statutory due diligence defence".

(iii) The specific wording of the statutory defence in context

[38] Next, I consider the specific wording of the statutory defence in the context of the entirety of s. 3. It is clear that the various subsections work together to further the goal of preventing the deliberate or inadvertent sale of tobacco products to minors.

[39] Section 3(1) begins with a prohibition against the sale of tobacco to anyone less than 19 years of age. Without more, this would be a strict liability offence, subject to a general defence of due diligence (reasonable mistake of fact or reasonable care). [page146] But s. 3(2) provides for a second offence -- of supplying or selling tobacco to someone who appears to be less than 25 years old, unless the vendor has required the person to provide identification and is satisfied that the person is at least 19 years old. As Laskin J.A. noted in Clothier, at para. 24, "[s]ection 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".

[40] Section 3(2) accordingly imports an affirmative duty on the part of the vendor to ask for identification when someone appears to be less than 25, and requires the vendor to be "satisfied" that the person is at least 19 years old. According to the Concise Oxford English Dictionary, 12th ed., to be "satisfied" is to be "provide[d] with adequate information about or proof of something". The only sensible interpretation of s. 3(2) is that the vendor must be satisfied the person is at least 19 years old after having reviewed the identification that provides proof of the purchaser's age.

[41] Section 3(3) provides a defence to both ss. 3(1) and 3(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" (emphasis added). The defendant's belief about the purchaser's age is "because" of the production of the identification. The only sensible interpretation of s. 3(3) is that the vendor, in forming the belief the purchaser is at least 19 years old, must exercise reasonable care in reviewing the identification that provides proof of the purchaser's age.

[42] Further, s. 3(3) refers to "prescribed" identification, which under the regulation must include a photograph, a date of birth and reasonably appear to have been issued by a government. And there must be "no apparent reason to doubt the authenticity of the document or that it was issued to the person producing it". These features must be present to inform the vendor's belief that the purchaser is of age.

[43] It is hard to see how the identification could be confirmed as authentic without a careful reading of the age, as surely what false identification often consists of is an alteration to the year of birth on otherwise valid identification. Moreover, a vendor can only determine whether identification is "authentic" and "was issued to the person producing it" after calculating the age as established by the production of the prescribed identification [page147] containing the date of birth and assessing whether the identification could belong to the customer.

[44] The purpose of the provision of identification is to permit the vendor to form the belief the person is at least 19 years old. As a practical matter, the vendor is engaged in a process of verifying whether the identification is genuine and corresponds by appearance and age to the identity of the purchaser, in order to "believe" that the purchaser is at least 19 years old.

[45] As such, an ordinary or plain reading of s. 3(3) suggests that the defendant's belief as to age will arise because of verification of the prescribed identification, which requires care and attention in reading the date of birth and assessing whether the document was issued to the person producing it.

[46] For these reasons, I conclude that s. 3(3) presumes careful scrutiny of the identification by the vendor. It articulates a statutory due diligence defence which requires the defendant to prove that she believed the prospective purchaser of a tobacco product to be of age, after taking reasonable care to verify identity and age by reference to the customer's identification. It does not contemplate a defendant who makes an unexplained "human error" when misreading the information on the face of the identification.

[47] An interpretation of s. 3(3) that would permit a mistake of fact defence based solely on "human error" without any other explanation demonstrating care and attention to the contents of the identification is inconsistent with one of the Act's main purposes -- to ensure that minors are not able to buy cigarettes. The essence of the statutory due diligence defence provided by s. 3(3) is verification of age by requiring the production of identification. To not require the exercise of reasonable care in the review of the identification and to allow a mistake of fact that is not objectively reasonable to constitute a defence would render hollow this important measure and would undermine the legislative purpose of preventing access to tobacco by minors.

(iv) Section 3(3) and reasonable care

[48] I turn now to consider, and to explain why I reject, the respondent's argument, which was accepted at the first level of appeal, in support of an interpretation of s. 3(3) that would not require reasonable care.

[49] The respondent argues that Seaway Gas stands for the principle that the defence to a charge under ss. 3(1) or 3(2) has been codified in s. 3(3), and that no other defence is available. From this, the respondent says that the defence under s. 3(3) [page148] should be interpreted as permitting an honest but mistaken belief that the purchaser of a tobacco product is at least 19, provided the prescribed form of identification has been produced.

[50] The respondent relies on Seaway Gas, at paras. 20-21, where, after referring to the strict liability nature of s. 3(1), MacPherson J.A. stated:

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[.]

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.

[51] The respondent argues that this passage means that s. 3(3) is the only defence available to a person who sells cigarettes to a minor. There is no reference in the statutory defence to a "reasonable" belief or "reasonable care". Rather, Seaway Gas imposes a precise statutory definition of what constitutes "all reasonable care" for an offence under s. 3(1) of the SFOA, and the defence is available when the defendant meets its literal terms.

[52] There are three problems with this argument. First, it ignores entirely all of the other passages from Seaway Gas emphasizing the public health purpose of the legislation, the strict liability nature of the offence of selling tobacco to minors, the requirement for the defendant to establish a due diligence defence, and the exhortation that vendors must be "scrupulously vigilant" in ensuring that they do not sell tobacco products to minors: see paras. 18-19, 33, 37.

[53] Second, the court in Seaway Gas did not definitively say that s. 3(3) is the only defence to an offence under ss. 3(1) and 3(2). At the time, s. 3(4) afforded a defence to the original s. 3(2) based on actual knowledge of the purchaser's age and s. 3(5) made "appearance and . . . other relevant circumstances" relevant to a charge under ss. 3(1) or 3(2). MacPherson J.A. emphasized the importance of the vendor's reliance on identification as "in effect" providing a statutory definition of "all reasonable care" for the offence. And he recognized that the legislature had provided "a due diligence defence" in s. 3(3) anchored (at the time) in a limited number of formal Canadian and Ontario [page149] government-issued identification documents. He also acknowledged, at para. 43, that "[t]his statutory due diligence defence, by its terms, does not cover every situation", and explicitly noted that the common law defence of due diligence may apply to sales of tobacco to persons without such identification.

[54] I would not therefore read Seaway Gas as saying that s. 3(3), which expressly provides for "a defence", is the only defence available to a charge under s. 3(1). Indeed, the Crown in this case argued that common law defences, including due diligence, remain available to someone charged under s. 3(1) of the SFOA. However, the real issue in this appeal is the proper interpretation of the language of s. 3(3). As I have explained, s. 3(3) provides a statutory due diligence defence that requires belief that a person is 19 years of age based on reasonable care. As a result, the extent to which common law defences might also be available need not be determined in this appeal. In the present case, the respondent's position is that she has a defence in compliance with s. 3(3) of the Act based only on her honest belief and "human error".

[55] Third, it does not necessarily follow that if s. 3(3) is the only defence available it must be given an interpretation that would permit reliance on an honest (but not objectively reasonable) mistake as to a customer's age. The respondent says that s. 3(3) prescribes the reasonable conduct that is required -- the three components set out at para. 21 of Seaway Gas. This ignores the requirement that the vendor's belief must be "because" of the identification produced. As I have already explained, the legislative purpose, strict liability nature of the offence, and the statutory wording all suggest that a defendant cannot simply "go through the motions" of asking for identification without taking reasonable care to consider its contents in relation to the identity and apparent age of the customer.

[56] To interpret s. 3(3) as advocated by the respondent would mean that a clerk would never have to use care in assessing the information in the identification to form the belief that the customer is of age. It would allow the vendor of tobacco to a minor to avoid liability by making a mistake when verifying age based on identification, however unreasonable that mistake may be. An interpretation that would exempt such negligence from liability does not accord with the context of the provisions or the purposes of the Act.

(v) Section 3(3) and false identification

[57] I pause here to address briefly another aspect of the argument advanced by the Crown. The Crown argues that the [page150] defence in s. 3(3) is only available where a vendor mistakenly believes that fraudulent identification is valid and can prove that there was no apparent reason to doubt the authenticity of the document or that it was issued to the person presenting it. As such, the Crown submits that s. 3(3) serves only the limited purpose of protecting a vendor's reasonable reliance on false identification. As noted above, however, the Crown also contends that, in addition to this limited statutory defence, a common law due diligence defence based on a mistake of fact as to age after exercising reasonable care would remain open to a person charged under s. 3(1) of the SFOA.

[58] It should be obvious from my analysis above that I reject the Crown's narrow interpretation of s. 3(3), as contrary to a plain reading of the subsection in the context of s. 3. Further, such an interpretation is inconsistent with this court's decision in Seaway Gas, and in particular MacPherson J.A.'s observation, at para. 20, that s. 3(3) attempts to provide "in effect" a statutory definition of what constitutes "all reasonable care".

(vi) OCSA's vicarious liability argument

[59] Finally, I turn to the intervenor's "vicarious liability" argument. In its factum, OCSA submits that s. 3(3) should be interpreted to afford a defence based on an honest mistaken belief about the purchaser's age (provided that the vendor has required the production of prescribed identification) in order to "balance out the broad vicarious liability imposed upon store owners for their employees' honest mistakes". OCSA says that allowing vicarious liability to attach when store clerks make honest age calculation errors would discourage store owners from investing in due diligence prevention measures (a defence it says was not recognized in the original Act). The intervenor relies upon s. 16 in support of this argument.

[60] Section 16 originally provided that a notice of prohibition would be sent to "the person" who "has been convicted of a tobacco sales offence committed in a place owned or occupied by the person", where the person was convicted of another such offence "committed in the same place" in the preceding five years.

[61] It was in 2005 that s. 16 was amended to provide that a notice of prohibition would be sent to "the person who owns or occupies the place" where "[a]ny person has been convicted of a tobacco sales offence committed in a place owned or occupied by the person" and "[a]ny person" was convicted of another such offence in the same place during the preceding five years [page151] (emphasis added). This is the version of s. 16 that OCSA seems to rely upon.

[62] The Divisional Court carefully analyzed these amendments to s. 16 in Joshi v. Ontario (Minister of Health and Long-Term Care) (2015), 125 O.R. (3d) 384, [2015] O.J. No. 964, 2015 ONSC 1001 (Div. Ct.). Swinton J. noted that prior to the amendments, a prohibition on tobacco sales could only follow if the owner or occupier had been convicted twice in five years. She held that, while the 2005 amendments made a distinction between "the person" who owns or occupies the place and "any person" who is convicted of a tobacco sales offence in the same place (appearing to cast the net more broadly), the amended section should be interpreted as consistent with the original section -- that is, to permit a prohibition to issue only against a store owner who had personally been convicted of two tobacco sales offences within five years.[^4]

[63] In addition, s. 3(4) was amended in 2005 to provide that "[t]he owner of a business where tobacco is sold shall be deemed to be liable for any contravention of subsection (1) or (2) on the premises where the contravention took place, unless the owner exercised due diligence to prevent such a contravention". As in the present case, a store owner will avoid liability where it has exercised reasonable care.

[64] Since it is clear that s. 16 did not originally, and still does not, have the effect of exposing a store owner to a tobacco sales prohibition without being convicted personally of an offence, any argument based on interpreting s. 3(3) to avoid expanded and unfair "vicarious liability" to store owners falls away.

G. Conclusion

[65] To summarize, s. 3(3) of the SFOA must be interpreted in a manner that gives effect to and does not undermine the Act's purposes, which include the prevention of tobacco sales to minors. Section 3(3) is a statutory defence to a strict liability regulatory offence. The onus is on the defendant to establish both her belief that the purchaser of a tobacco product was of age and that the belief was formed as a result of requesting and reviewing identification.

[66] When a defendant relies on the defence in s. 3(3) she must not only ask for identification, but her belief about the customer's age must be because of that identification. An [page152] interpretation of s. 3(3) that would permit a belief to be held without the exercise of reasonable care in reviewing the identification would divorce the statutory defence from its strict liability context.

[67] The evidence here is that the respondent asked for identification, which indicated that the shopper was only 17 years old, and she was unable to explain why she sold the cigarettes to the shopper beyond that she thought she had read 1994 instead of 1996. The onus was on the respondent to establish the defence. It was not sufficient for her to go through the motions of obtaining identification without having exercised reasonable care in reading it. As the justice of the peace said in her reasons:

No information was provided or elicited from the defendant insofar as how long she looked at the ID; that even looking at the ID and thinking it was '94, looking at the test shopper, that she appeared so young, I mean, not making any other inquiries. There was nothing to distract her from her duties to look at the card a little longer, especially when one looks at the youthful age and the youthful demeanour and the voice of the test shopper in this particular case.

[68] In these circumstances, it was an error for the appeal judge to find that the respondent had a defence under s. 3(3). The appeal judge's first error was in his rejection of the justice of the peace's finding that Ms. Pourlotfali did not in fact believe that the test shopper was over 19. He erred in concluding that it was only open to the justice of the peace to find that the respondent did not believe the test shopper was at least 19 years old, if she rejected Ms. Pourlotfali's evidence that she misread the date of birth. The onus of proving the defence was on the respondent on a balance of probabilities, including that she in fact believed the shopper to be over 19, and it was open to the justice of the peace to conclude that the onus had not been met without having to outright reject Ms. Pourlotfali's evidence that she misread the date.

[69] Moreover, even if the respondent believed the shopper was 19, it was not sufficient that she held this belief after asking for and examining identification that showed she was under age. The respondent's "human error" did not afford her a defence as it was not a belief that she formed after the exercise of reasonable care. She offered no evidence that would be consistent with having exercised the required due diligence in examining the identification and assessing whether it corresponded with the shopper and verifying her age. Put another way, the respondent gave no evidence of making an assessment concerning whether [page153] there was any apparent reason to doubt the authenticity of the document or that it was issued to the shopper presenting it. For s. 3(3) to apply, some evidence of that nature was required upon which a trier of fact could conclude that Ms. Pourlotfali's assessment of the identification produced was conducted with reasonable care such that she had demonstrated a reasonable mistaken belief. In the absence of such evidence, the appeal judge erred in concluding that the "human error" evidence was sufficient to make out the statutory due diligence defence that s. 3(3) provides.

H. Disposition

[70] For these reasons, I would allow the appeal and restore the conviction of the respondent and the fine imposed by the justice of the peace.

Appeal allowed.

[^1]: At the time O. Reg. 613/94, s. 1, listed five specific forms of identification issued by the federal or Ontario governments as "prescribed for the purposes of subsection 3(3) of the Act". The list did not include a school identification card.

[^2]: The amendments that are relevant here came into force on May 31, 2006: see the Tobacco Control Statute Law Amendment Act, 2005, S.O. 2005, c. 18.

[^3]: This case considered whether the common law defence of entrapment was available to a charge under s. 3(1) of the SFOA.

[^4]: Section 16 was amended in 2015 to make explicit the meaning given to the section by Joshi; however, the amendment is not yet in force.

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