Court File and Parties
Case No.: 4862 999 12 21429797/98 009
Date: February 4, 2014
Ontario Court of Justice Toronto Region
Her Majesty the Queen v. 6993010 Canada Inc. (Amier Manzoor)
Charges: Smoke Free Ontario Act
Reasons for Judgment
Before: His Worship V. Bubrin, Justice of the Peace
Appearances:
- Mr. D. D'Onofrio, Municipal Prosecutor
- Mr. S. Najem, Paralegal for the Defendant
- Mr. A. Manzoor, Defendant
Hearing dates: February 21, 2013; June 6, 2013; September 17, 2013
Judgment: December 6, 2013; February 4, 2014
Overview
[1] The defendant, Amir Manzoor, is the Director and owner of the numbered company 6993010 Canada Inc., operating under the franchise name Hasty Market #196 at 452 Rathburn Road, Units 6 & 7 in the City of Toronto. The business is licensed by the Toronto Municipal Licensing and Standards as a retail store for the purpose of selling foodstuffs, cigars, cigarettes and tobacco.
[2] On February 11, 2012 the defendant was charged with two offences under the Smoke Free Ontario Act, specifically:
- s. 3 (1) Sell tobacco to a person who is less than 19 years old; and
- s. 3 (2) Sell tobacco to a person who appears to be less than 25 years old.
[3] A plea of not guilty was entered on both charges.
[4] The provisions in the Smoke Free Ontario Act against selling tobacco to persons under 19 read as follows:
3(1) No person shall sell or supply tobacco to a person who is less than 19 years old.
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.
Pre-Trial Issue
[5] Before the commencement of the trial proper on February 21, 2013, Mr. Najem, agent for the defendant, raised the issue of the appropriateness of the charges before the Court. He endeavoured to argue that under the circumstances the appropriate charge should have been under s. 3 (4) of the Smoke Free Ontario Act against the corporation 6993010 Canada Inc., of which his client, Amir Manzoor, is the owner and Director, and not under ss. 3 (1) and (2) of that Act, against Amir Manzoor the person.
[6] The Court noted that when the matters came before the Court on November 22, 2012, the issue was argued before Her Worship Justice of the Peace Kirke, and the learned Justice ruled that the matters were properly before the Court and ready to be tried. Given that this was a pre-trial issue at the time, she did not seize herself on the matters.
[7] On February 21, 2013 this presiding Justice of the Peace declined to re-address the issue noting that the matter was already decided and if the defendant disagreed with the ruling of the previous Justice of the Peace, it was open to the defendant to appeal that ruling, which he appears not to have done.
[8] Notwithstanding the Court's clear indication that it was not prepared to re-hear Mr. Najem's arguments on the point, Mr. Najem persisted in raising the issue during the trial and in his submissions.
[9] Mr. Najem's position appears to have been based on his understanding that his client would not be able to put forward a defense of due diligence if charged under ss. 3 (1) and (2) of the Act. As we will see below, that understanding was mistaken.
[10] Although there was no requirement to oblige Mr. Najem with a response, the Court notes that in the course of his testimony, the investigating officer, Municipal Tobacco Inspector Jasar Waqar indicated that in laying the charges he acted on the understanding that under the Legislation Act, a corporation is a person. In his submissions Mr. D'Onofrio returned to this point and reiterated that that pursuant to the Definitions section of the Legislation Act, s. 87—in every Act and regulation "person" includes a corporation.
[11] To put this issue to rest, the Court notes that case law appears to be consistent with the above interpretation. I use as an example the case of R. v. Simard before J. Legault J. ([2012] O.J. No. 6503, November 2, 2012) an appeal case in which an employee of an Esso Gas station in Hawkesbury, Ontario, sold cigarettes to a minor yet it was the owner of the business, Mr. Simard, who was charged. In paragraph 2 of that appeal decision we read:
The Appellant is the owner of Esso Hawkesbury. It is admitted that his employee sold tobacco to a test shopper who was 17 years of age at the time of the sale.
The case also cites with approval the decision under Appeal of the Justice of the Peace, including the following paragraph:
Stores selling tobacco and their employees [emphasis added] have responsibility to the public. One important consequence of this responsibility is their deemed acceptance of an undertaking to exercise reasonable care to ensure that the harm identified in the regulatory statute – here selling tobacco to minors – does not occur. This entails a further consequence.
Allegation of Facts
[12] The alleged facts in this case are relatively straightforward. On February 11, 2012 at approximately 12:40 p.m., the City of Toronto Tobacco Inspector, Jasar Waqar attended the premises of Hasty Mart on 452 Rathburn Rd. to conduct a routine enforcement check under the Smoke Free Ontario Act. Mazen Zaveri, a test shopper employed by the Municipality, accompanied him.
[13] The Court learned that test shoppers are used regularly in the course of enforcing the requirements of the Smoke Free Ontario Act and accepted that test shopping is a lawful method ensuring compliance with the Act.
[14] Mr. Zaveri testified that on the day in question he was 17 years of age. When he entered the Hasty Mart store at 452 Rathburn Rd., he noticed two employees, one of whom was the cashier. Mr. Manzoor, the defendant, was not one of the two individuals in the store at that time. Mr. Zaveri said that he waited in line and when his turn came, he asked for a package of Peter Jackson small king cigarettes. The employee behind the cash sold him the cigarettes for $7.46 without asking him for his age or any identification with proof of his age. The employee who sold Mr. Zaveri the cigarettes was Mr. Ziaul Mustafa Shah. Mr. Zaveri testified that he then returned to the parking lot where Inspector Waqar was waiting for him and handed Mr. Waqar the package of cigarettes he purchased.
[15] Inspector Waqar testified that he returned to the store with Mr. Zaveri, met and spoke with Mr. Mustafa Shah, and charged the corporation with the offences noted above. Appropriate summonses were issued at that time.
[16] In the course of Mr. Najem's cross-examination, Inspector Waqar testified that he was familiar with the Hasty Mart store on Rathburn Rd. as he had previous dealings with the store and the owner. Specifically, he spoke of an earlier charge against the same retail business of selling tobacco to a person under the age of 19 (a charge to which the owner pleaded guilty and thus avoided going to trial), and approximately 4-5 other visits, when Mr. Waqar issued warnings to the owner. Mr. Waqar also testified that he provided the store with the Smoke Free Ontario Binder which contained information on the law, on posting signage, on whom to ask for identification, tips on how to recognize false identification, how to deal with aggressive customers not qualified to purchase tobacco, and how to train employees. The last educational point contained in the Binder was an "Employee Sign-Off Sheet" recommended to the owner as a method of tracking and showing that the employees read and understood the requirements of not selling tobacco to persons under the age of 19 as stipulated by the Smoke Free Ontario Act.
Prima Facie Proof Beyond a Reasonable Doubt
[17] There were a number of challenges by the defense with respect to the Municipality's alleged obligations to educate and guide business owners and the choice of Mr. Mazen Zaveri as a test buyer on account of his Pakistani race and ethnicity. The facts behind the charges themselves, however, were not contested. Moreover, none of the challenges by the defense caused the Court to question the accuracy or reliability of the essential facts of the case as presented by the prosecution. In the Court's opinion, therefore, the actus rea of the two offences have been proven beyond a reasonable doubt.
Defence of Due Diligence
[18] As per R. v. Sault Ste. Marie (City) (, [1978] 2 S.C.R. 1299), the offences under the Smoke Free Ontario Act are public welfare offences in which the Crown is relieved of the burden of proving mens rea, and a defence of reasonable belief in a mistaken set of facts or a defence of reasonable care is available to the defendant. These types of offences are known as strict liability offences defined by the Supreme Court of Canada in the above-noted R. v. Sault Ste. Marie (City) as follows:
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.
According to the same decision of R. v. Sault Ste. Marie (City) the standard of proof of a defence of reasonable care or due diligence is on the balance of probabilities.
[19] Mr. Najem endeavoured to advance a defence of due diligence through the testimonies of the defendant, Mr. Manzoor, the defendant's employee, Mr. Shah, who sold the cigarettes to the under-age test buyer, and by attempting to provide opinion evidence of his own with respect to the ethnicity of the test buyer.
[20] On the last point, Mr. Najem persisted in suggesting that Mr. Shah sold the cigarettes to Mr. Zaveri by entrapment. Mr. Najem endeavoured to argue that because Mr. Zaveri is of Pakistani origin, and Pakistani young males look older than they actually are, Mr. Shah was actually tricked into selling the cigarettes to him and did not consider it necessary to verify Mr. Zaveri's proof of his age. The Court took pains to remind Mr. Najem that he was not a witness in the proceedings, that the Court was not interested in his opinion on race and ethnicity, and that he ought to refrain from what appeared to be racial stereotyping or profiling. At one point Mr. Najem attempted to enter into evidence a photograph of the Mr. Zaveri in which Mr. Zaveri had a beard. The evidence was ruled inadmissible as the photo was taken after February 11, 2012 in connection with another investigation, unrelated to the case at trial. Although the Court is satisfied that these matters were addressed and ruled upon as they arose, they are being mentioned in this judgment in the interest of completeness of consideration of the evidence, and for the purpose of providing reasons as to why those particular parts of the evidence were ruled inappropriate and inadmissible.
[21] In his testimony Mr. Manzoor testified that he trained his employees to ask for ID when selling cigarettes, that he knew what his obligations were as owner and manager of the business, and that he has never had a complaint.
[22] He also acknowledged his dealings with Inspector Waqar and admitted that Mr. Waqar warned him on several previous occasions, that Mr. Waqar provided the store with the "Not to Kids" binder, and that after each visit to the store when he was not there, Mr. Waqar would leave his business card.
[23] According to Mr. Manzoor the training he provided to his staff consisted of always (that is whenever he is in the store) telling them to check the customer's ID, and going through the "Not to Kids" binder with his staff. With respect to the second point, he also testified that he has his staff sign the "Employee Sign-Off Sheet" (Exhibit #5) as proof that they have been properly trained. He said that he does this every other week. At another point in his testimony his answer was that this was done "once in a while." A further method he relied upon, according to his testimony, was for his employees to train one another.
[24] Mr. Manzoor further testified that he installed a mechanism (supplied by Hasty Mart head office) on the cash register(s) to ensure that when a package of cigarettes is scanned a pop-up icon appears that needs to be pressed confirming that ID has been verified before the cigarettes are sold (Exhibit #6). The computerized cash register apparently will not work until the pop-up is followed or deliberately by-passed. Mr. Manzoor was not sure when the system was installed and whether it was in place on February 11, 2012, although he seemed to recall that it was put in place after the first charge in 2011. While he was certain that the computer system was operating properly, he was not sure whether his employees were using it properly, that is by-passing the cash register pop-up reminder.
[25] Mr. Manzoor testified that as far as he is concerned he was doing his job with respect to training and compliance, even though in his answer to the very next question he testified that it's all guesswork, that if the staff think that the buyer is 19 years of age they have to sell them cigarettes and that selling of cigarettes is by-and-large at the discretion of employees. He also acknowledged that it is possible for employees to circumvent the computer system, the installed pop-up mechanism that he installed on the cash registers.
[26] Mr. Manzoor testified that when he found out that he was charged on February 11, 2012 he was very mad at Mr. Shah for selling cigarettes to a minor. However, he accepted Mr. Shah's explanation was that the buyer looked old enough to him to buy cigarettes. Mr. Manzoor confirmed that Mr. Shah had been fully trained by him.
[27] About his own training, Mr. Manzoor testified that the previous owners of the business trained him. This training, according to him, consisted of them telling him that he had to "check the ID under 19 always." Although he acknowledged speaking with Mr. Waqar and Mr. Waqar's warnings, he was not aware of any Ministry of Health websites and testified that he had not done any research on his own.
[28] In answer to the question whether Mr. Shah was given any training after the incident on February 11, 2012, Mr. Manzoor declined to answer, only repeating what he said earlier, i.e. that "it's guesswork." Mr. Manzoor expressed the opinion that if his staff sell cigarettes to minors and fail to verify the buyers' age it is not his responsibility and that he should not be penalized for that.
[29] Mr. Ziaul Shah, Mr. Manzoor's employee of two-and-a-half years testified that the training he received consisted of being referred to the binder provided by the Municipality and on using the computerized register, including the pop-up mechanism instructing the operator to verify the cigarette buyers' ID. He thought that the new mechanism was installed eight months ago, therefore, after February 11, 2012, but was unable to provide a more precise answer on that point.
[30] Although Mr. Shah testified that he checked the binder every week or every two weeks, he acknowledged that he signed it only once in July 2011 when it was introduced in the store. Like Mr. Manzoor, Mr. Shah did not consider it necessary to re-sign the Sign-Off Sheet regularly or periodically as proof of subsequent reading and renewed familiarization with the Smoke Free Ontario requirements.
[31] Mr. Shah also offered general information about how he operates in Mr. Manzoor's store when it comes to selling tobacco and cigarettes. He testified that he does not ask regular customers for ID, offering the explanation that it was not necessary to repeat the process having checked it once or twice before.
[32] Mr. Shah admitted to selling a package of cigarettes to the 17-year-old Mr. Zaveri, the test shopper, on February 11, 2012 but endeavoured to exculpate himself of any responsibility because the customer did not look to be under 19 and ID was not requested because the buyer looked older that 25.
Analysis
[33] In the Court's opinion, the defence has not met the test of due diligence on the standard of a balance of probabilities.
[34] The Court finds that, contrary to the defence arguments, the defendant has not shown that necessary steps were taken and appropriate measures put in place to comply with the requirements of the Smoke Free Ontario legislation.
[35] The Court agrees with the submissions of the prosecution that notwithstanding the role of the Municipal Inspectors to educate licensees by providing them with signage, literature, compliance tips, and training tools such as employee sign-off sheets at the back of the "Not to Kids" binder, it is the responsibility of licensed sellers of tobacco products to provide the necessary training and supervision to ensure compliance with the Smoke Free Ontario legislation. As noted in the earlier cited decision of R. v. Simard, by virtue of being licensed, retail stores and businesses are deemed to accept "an undertaking to exercise reasonable care to ensure that the harm identified in the regulatory statute – here selling tobacco to minors – does not occur."
[36] It is settled in law that random test shopping is not an entrapment or an improper or discriminatory measure, but a permissible investigative technique.
[37] Having regard to the details as well as the general tenor of the evidence in support of due diligence by the defendant and Mr. Shah, the Court finds that the training and measures in place at Hasty Mart at 452 Rathburn Road for the purposes of preventing the sale of tobacco products to persons under the age of 19 were muddled, haphazard, disorganized and inconsistent at best.
[38] Mr. Manzoor appears to have had only a vague understanding of what the requirements are and the training he allegedly provided to his staff followed suit. Thus, while he was adamant that he trained and reminded the staff not to sell tobacco to minors (persons under the age of 19), in actuality these were no more than occasional verbal intimations when he happened to be in the store. He admitted that he relied on the staff to train each other, and appeared to be satisfied that the previous owner's advice to be careful when selling cigarettes to minors was appropriate training. At no time does he appear to have taken steps to do his own research as to the requirements of preventing the sale of tobacco to persons under 19. These are only some of the indicators of Mr. Manzoor's lack of due diligence.
[39] The Court also has reason to call into question Mr. Manzoor's credibility. Thus at one point he testified that he was not aware of any complaints about selling tobacco to minors, yet in answer to the very next set of questions he had to admit that there was a previous charge in 2011 and 4-5 warnings by the Municipal Tobacco Inspector. Similarly, his insistence that he regularly trained his staff by reminding them to check the age and verify the ID of customers purchasing cigarettes, is inconsistent with his later resignation that it is all guesswork left to the discretion of his staff.
[40] The Court is fully aware that a lack of credibility on the part of the accused does not equate to a proof of guilt beyond a reasonable doubt pursuant to R. v. W.D. (1991) S.C.C. At the same time, pursuant to R. v. Dillman ONJC 101 (2008), it is inappropriate to give the defendant the benefit of a reasonable doubt on credibility, when he bears the burden of proving due diligence on a balance of probabilities.
[41] Mr. Manzoor's evidence was for the most part vague, lacking in any meaningful specificity, which could reasonably be taken as proof of a concerted effort to train his staff, follow up on that training, and monitor the staff's compliance. Thus for example, when he learned of the charges on February 11, 2012, that his business was charged as a result of Mr. Shah selling cigarettes to a 17-year old, his response was that he got mad. There is no evidence that the charges, apparently the second set of charges in a span of less than two years, prompted him to revisit his training methods and review the measures that needed to be put in place to prevent future incidents of this kind.
[42] Mr. Manzoor's evidence shows him to be not a business owner willing to take pro-active preventative steps, but rather a resigned storekeeper who takes the position that preventing the sale of tobacco to persons under the age of 19 is, to use his own words, guesswork, left to the staff's discretion. His uncertainty as to when he installed the pop-up mechanism on the cash machine provided by Hasty Mart as a reminder to staff to check ID, is another indicator that training and prevention of tobacco products to persons under the age of 19 was not a priority for his store. The same can be said about the absence of any disciplinary measures against Mr. Shah for selling cigarettes to a 17-year old youth, who happened to be a test shopper.
[43] Equally indicative of the overall haphazard approach to the prevention of the sale of tobacco to persons under 19 was Mr. Shah's testimony that it was not his practice to ask for ID of regular customers, having checked their age once or twice on earlier occasions. It is not at all surprising then that with this discretionary approach, along with the absence of any systematic and regular training, cigarettes were sold to a 17-year old on February 11, 2012 simply because he looked to be older than 19.
[44] What further aggravates the situation is that if the pop-up reminder was in place on February 11, 2012, although the evidence of the two defence witnesses was uncertain and contradictory on this point, Mr. Shah was able to circumvent the mechanism, as he scanned the package of Peter Jackson cigarettes, and was able to process the sale without verifying the test shopper's ID and age.
[45] In conclusion, having established that the prosecution has made out a prima facie case against the defendant beyond a reasonable doubt, and the defendant has not proven due diligence on a balance of probabilities, the Court finds the defendant guilty of the two offences under the Smoke Free Ontario Act:
- s. 3 (1) Sell tobacco to a person who is less than 19 years old; and
- s. 3 (2) Sell tobacco to a person who appears to be less than 25 years old.
V. Bubrin
V. Bubrin, Justice of the Peace
[Upon considering the parties' submissions regarding the penalty and taking into account the principles of specific and general deterrence, a fine of $1,000 on each of the two counts was imposed by the Court. The defendant was allowed six months to pay.]