Court File and Parties
Court File No.: Halton Information no. 14-7410 Date: 2015-03-23 Ontario Court of Justice
Between: Regional Municipality of Halton — AND — Patrick Bowman
Before: Justice of the Peace Kenneth W. Dechert
Heard on: October 20, 2014 and November 17, 2014
Reasons for Judgment released on: March 23, 2015
Counsel
S. Palmer ............................................................................................................ for the prosecution
The defendant Patrick Bowman on his own behalf
Statutes, Regulations, Standards and Protocols Cited
- Health Protection and Promotion Act, R.S.O. 1990, c. H.7, as amended, ss.1(1), s. 4, ss. 7(1), 7(5), 42(1) and 100(3)
- Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, s. 81
- Ontario Public Health Standards 2008, revised May 1, 2014, "Purpose", "Infectious Diseases Program Standards" – Disease Prevention – Requirements, section 10 and Health Protection – Requirement, section 14
- Infection Prevention and Control in Personal Services Settings Protocol
Case Cited
Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.)
Publications Cited
- The Concise Oxford Dictionary of Current English, Eighth Edition, (1990, Clarendon Press – Oxford)
- Oxford Dictionary of Current English, Third Edition, (2001, Oxford University Press)
K.W. DECHERT, J.P. (orally):
INTRODUCTION
[1] In this proceeding, the defendant, Patrick Bowman stands charged that he on or about the 27th day of June, 2014 at Patrick's Barber Shop, 118 Guelph Street, Georgetown, in the Town of Halton Hills, did commit the offence of obstruction of a public health inspector lawfully carrying out a power, duty or direction under the Health Protection and Promotion Act, contrary to subsection 42(1) of the Health Protection and Promotion Act.
[2] The trial of this charge commenced before me on October 20th, 2014, when Mr. Bowman entered a plea of not guilty. It continued to its completion on November 17th, 2014. The proceeding was then adjourned until March 23rd, 2015 for my judgment.
RELEVANT LEGISLATIVE PROVISIONS
[3] The offence in this proceeding is created by subsection 42(1) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, as amended, hereinafter referred to as the "H.P.P.A.". As stated in section 2 therein, "the purpose of this Act is to provide for the organization and delivery of public health programs and services, the prevention of the spread of disease and the promotion and protection of the health of the people of Ontario". In my view, the H.P.P.A. is a public welfare statute.
[4] Subsection 42(1) of the H.P.P.A. reads as follows:
No person shall hinder or obstruct an inspector appointed by the Minister, a medical officer of health, a public health inspector or a person acting under the direction of a medical officer of health lawfully carrying out a power, duty or direction under this Act.
[5] Additionally, under the authority of subsection 100(3) of the H.P.P.A., any person who contravenes subsection 42(1) is guilty of an offence.
[6] The following portions of the H.P.P.A. are relevant to this proceeding:
s. 4 Every board of health,
(a) shall superintend, provide or ensure the provision of health programs and services required by this Act and the regulations to the persons who reside in the health unit served by the board; and
(b) shall perform such other functions as are required by or under this or any other Act.
s. 7(1) The Minister may publish guidelines for the provision of mandatory health programs and services and every board of health shall comply with the published guidelines.
(5) A guideline may adopt by reference, in whole or in part, with such changes as are specified in the guideline, any code, formula, protocol or procedure and may require compliance with the code, formula, protocol or procedure so adopted.
[7] Furthermore, the following terms and phrases which, in my view, are germane to the subject offence, are defined in subsection 1(1) of the H.P.P.A, as follows:
s.1(1) In this Act,
'board of health' means a board of health established or continued under this Act, and includes,
(a) the regional municipalities of Durham, Halton, Niagara, Peel, Waterloo and York and the County of Oxford, …
'guidelines' means guidelines published by the Minister under this Act;
'Minister' means Minister of Health and Long-Term Care;
'public health inspector' means a public health inspector of a board of health;
[8] The purpose of the "Ontario Public Health Standards 2008, revised May 1, 2014", published by the Minister as the guidelines for the provision of mandatory health programs and services pursuant to section 7 of the H.P.P.A., is stated therein, in part, as follows:
The Ontario Public Health Standards establish requirements for fundamental public health programs and services, which include assessment and surveillance, health promotion and policy development, disease and injury prevention, and health protection. The Ontario Public Health Standards outline the expectations for boards of health, which are responsible for providing public health programs and services that contribute to the physical, mental and emotional health and well-being of all Ontarians. …
[9] The said Ontario Public Health Standards ("the O.P.H. Standards") document indicates that "many of the standards are supported by specific protocols… that further specify how to operationalize some of the requirements". The document goes on to state that boards of health are accountable for the implementation of the standards including any such protocols.
[10] The following portions of the O.P.H. Standards document, contained in the section titled "Infectious Diseases Program Standards", are relevant to this proceeding:
Disease Prevention
Requirements
10. The board of health shall ensure that the medical officer of health or designate receives reports of and responds to complaints regarding infection prevention and control practices in settings for which no regulatory bodies exist, particularly personal services settings. This shall be done in accordance with the Infection Prevention and Control in Personal Services Settings Protocol, 2008 (or as current) and the Infection Prevention and Control Practices Complaint Protocol, 2008 (or as current).
Health Protection
Requirement
14. The board of health shall inspect settings associated with risk of infectious diseases of public health importance in accordance with the …; Infection Prevention and Control in Personal Services Settings Protocol, 2008 (or as current); …
[11] In the Preamble to the said "Infection Prevention and Control in Personal Services Settings Protocol", it is stated that "protocols are program and topic specific documents which provide direction on how boards of health must operationalize specific requirement(s) identified within the OPHS [Ontario Public Health Standards]". Furthermore, under the sub-title "Purpose" contained within the said protocol document, it is stated that "this protocol applies to any facility, service, or person offering services where there is a risk of exposure to blood, such as but not limited to hairdressing and barber shops, tattoo and body piercing studios, electrolysis, acupuncture, and various aesthetic services. …".
[12] The following portions of the said protocol are relevant to this proceeding:
Operational Roles and Responsibilities
1) Inspection
The board of health shall:
a) Perform routine inspections for all personal services settings at least once a year.
3) Management
The board of health shall:
d) Focus on the risk related to a breach in infection prevention and control practices during annual inspections or when investigating complaints. …
Glossary
Personal services settings: Settings in which aesthetic services are delivered, such as but not limited to: hairdressing and barber shops, tattoo and body piercing studios; electrolysis; acupuncture; and various aesthetic services.
CATEGORIZATION OF THE OFFENCE
[13] As stated above, I have determined that the H.P.P.A. is a public welfare statute. Accordingly, any offences created by this Act are public welfare offences.
[14] In his seminal decision in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.), Dickson J. recognized three categories of offences; offences for which the prosecution would have to prove that the offender committed the offence with a criminal mind (mens rea), offences of strict liability and offences of absolute liability. He determined that public welfare offences were presumptively offences of strict liability. In reaching that conclusion he stated that an offence would only be categorized as a mens rea offence if words such as "wilfully", "with intent", "knowingly" or "intentionally" were contained in the statutory provision creating the offence and that absolute liability offences were those where "the Legislature had made it clear that guilt would follow proof merely of the proscribed offence".
[15] There is no evidence before me which rebuts the presumption that the subject offence is one of strict liability. The text of subsection 42(1) of the H.P.P.A. does not contain any of the words cited in Sault Ste. Marie, supra, indicative of an offence involving the proof of mens rea. Furthermore, the prosecutor in this proceeding has not led any evidence or made any submissions in an attempt to prove that the offence would fall into the exceptional category of absolute liability. The subject offence is therefore properly categorized as one of strict liability.
[16] In his decision in Sault Ste. Marie, Mr. Justice Dickson defined strict liability offences 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. …
[17] Accordingly in this case, if the prosecution is able to prove beyond a reasonable doubt that the defendant committed the prohibited act of obstructing a public health inspector, then the fault element of negligence is automatically imported into the offence. The legal burden of proof would then shift to the defendant to attempt to establish on a balance of probabilities, that in committing the prohibited act he took all reasonable care. If the defendant is able to discharge this burden by showing that in committing the act, he either exercised due diligence or did so on the basis of an honest and reasonable mistake of fact, his presumed negligence would then be negated and he would be excused of liability for the offence.
THE ISSUES
[18] In this proceeding, I must determine whether the prosecution has proven, beyond a reasonable doubt, that on the date and place in question Patrick Bowman obstructed Tatiana Troubatcheva, a public health inspector, while she was in the course of performing a routine inspection of Patrick's Barber Shop. In reaching my decision, I must remind myself that Mr. Bowman is presumed innocent of the subject charge until proven guilty and that the onus of proving the commission of the prohibited act rests with the prosecution, beyond a reasonable doubt. If the prosecution is unable to prove that Mr. Bowman committed the prohibited act, he will be acquitted of the offence.
[19] On the other hand, if the prosecution is successful in proving the prohibited act beyond a reasonable doubt, then the legal burden of proof shifts to Mr. Bowman to establish on a balance of probabilities, that in committing the offence he either took all reasonable steps to avoid the particular event or he did so on the basis of a honest and reasonable mistake of fact. If he is able to establish the defence of reasonable care, he will be acquitted of the offence.
[20] Based upon the undisputed evidence in this proceeding, I am of the view that the following elements of the subject prohibited act, have been established beyond a reasonable doubt:
that on June 27th, 2014, the defendant Patrick Bowman was the proprietor of a barber shop, known as Patrick's Barber Shop, located at 118 Guelph Street, Georgetown, Ontario, being within the boundaries of the Town of Halton Hills, in the Regional Municipality of Halton;
that on that date, Tatiana Troubatcheva was employed as a public health inspector by the Halton Region Health Department, being a "board of health" within the meaning of the H.P.P.A.;
that as part of her duties as a public health inspector, Inspector Troubatcheva was required to enforce the provisions of the H.P.P.A., including the provisions of the Ontario Public Health Standards 2008 and the Infection Prevention and Control in Personal Services Settings Protocol, published as guidelines for the provision of mandatory health programs and services under the authority of the H.P.P.A.;
that on June 27th, 2014, Inspector Troubatcheva attended Patrick's Barber Shop for purposes of lawfully carrying out her duty to conduct a routine inspection of the barber shop, in accordance with the Infection Prevention and Control in Personal Services Settings Protocol;
[21] The remaining element of the prohibited act is whether the defendant's actions or conduct at the material time obstructed the inspector in carrying out her inspection of the barber shop to its completion. The resolution of this issue will involve an assessment of the credibility of the testimonial evidence in this proceeding. In conducting that assessment I must consider the issue of credibility in the context of the doctrine of proof beyond a reasonable doubt in order to determine whether the totality of the evidence establishes the defendant's guilt of the offence, beyond a reasonable doubt.
[22] Furthermore, since the subject offence is one of strict liability the prosecution is not required to prove that in committing the prohibited act, Mr. Bowman did so wilfully, intentionally, recklessly or through wilful blindness. If the prohibited act is proven beyond a reasonable doubt, then Mr. Bowman is presumed to be negligent in committing the offence, unless he can show that in committing the offence, he took all reasonable care.
[23] In summary, the issues in this proceeding are:
whether or not the prosecution has proven all of the elements of the prohibited act, beyond a reasonable doubt; and
if the prosecution has met its burden in this regard, whether or not Mr. Bowman has established, on a balance of probabilities the defences of due diligence and/or reasonable mistake of fact.
THE EVIDENCE
[24] During the course of the trial in this proceeding, I received verbal evidence from Ms. Tatiana Troubatcheva and from Mr. Patrick Bowman.
The Testimony of Tatiana Troubatcheva
[25] Ms. Troubatcheva testified on October 20th and November 17th, 2014. She advised that she was employed as a public health inspector by the Halton Region Health Department and had been so employed for eleven and one-half years. She advised that her duties as an inspector included the enforcement of the H.P.P.A.
[26] Inspector Troubatcheva testified with the assistance of her original investigative notes, that on June 27th, 2014 she attended the premises of Patrick's Barber Shop, 118 Guelph Street, Georgetown, Ontario, for purposes of conducting the annual health inspection of the barbershop.
[27] The inspector advised that upon entering the shop, she encountered its owner who she identified in court as the defendant, Patrick Bowman. She advised that she introduced herself as Tatiana from the Health Department. She stated that in response to Mr. Bowman's query as to what she was doing in his shop, she advised that she was there to conduct the annual inspection of the shop.
[28] She testified that Mr. Bowman then showed her to his work station. At that location she observed a chair for clients, a number of clippers located on little table which were "covered with hair and debris" as well as a jar containing Barbicide solution. Upon examining the jar, she noticed the existence of about one-half inch of "greyish sediment". She stated that upon opening the jar, she observed the presence of hair and pieces of dry skin floating in the solution.
[29] Inspector Troubatcheva testified that upon making a comment to Mr. Bowman as to the cleanliness of the Barbicide solution, she observed him leave the barbershop. The inspector advised that she then followed Mr. Bowman outside of the shop, noting that she could not conduct the inspection without him being present. In that regard, she stated that she needed Mr. Bowman to be present so she could make any necessary inquiries of him.
[30] The inspector testified that upon exiting the barbershop she met Mr. Bowman in the area immediately in front of his shop. She stated that at that time, she was standing next to her parked car facing the window of the barber shop and Mr. Bowman, at a distance of approximately one and one-half metres. She noticed Mr. Bowman put a brownish substance into a glass pipe and attempt to light it. She testified that at that point in time, Mr. Bowman started yelling at her, telling her that there was a camera in his shop, which had recorded her statement about the Barbicide solution and that he would take her to court and tear her apart with his lawyers.
[31] The inspector testified that Mr. Bowman then began to swear at her, using vulgar language, telling her to leave the area. She advised that Mr. Bowman continued to yell at her, using foul language to convey the message that he was not going to change his Barbicide solution on a daily basis and that she couldn't tell him what to do in his business.
[32] The inspector stated that she then asked Mr. Bowman if she could finish her inspection inside the barbershop. Mr. Bowman responded by continuing to swear at her and in doing so telling her to leave the area.
[33] Inspector Troubatcheva testified that in light of Mr. Bowman's behaviour, she was unable to complete her inspection of the barber shop. She stated that Mr. Bowman did not permit her to complete the inspection. She testified that Mr. Bowman wrote certain comments on her incomplete inspection report, while he continued to yell and swear at her, telling her to leave. She stated that when she challenged him as to his abusive and vulgar language, he began to yell at her in a different language while making offensive gestures to her with his middle finger, his hands and his tongue.
[34] Inspector Troubatcheva testified that at that time he proceeded to spit on her car. The inspector stated that at that time she was scared of Mr. Bowman and felt threatened by his abusive behaviour. Accordingly she entered her car and immediately drove out of the area. She advised that as she started her car and began to move out of the parking spot, she observed Mr. Bowman attempt to strike her car with an object, which she believed was a pipe.
[35] The inspector testified that once she was out of the immediate vicinity of the barber shop, she proceeded to call both her manager and the police to report the circumstances of her encounter with Mr. Bowman.
[36] During cross-examination, the defendant asked Inspector Troubatcheva a number of questions pertaining to her partial completion of her inspection report titled "Personal Services Setting Inspection Report". In response to the defendant's questions in this regard, the inspector acknowledged that based on the contents of the report she found that the both the sink and the work and contact surfaces in the barber shop were in compliance with the applicable public health standards. However, Inspector Troubatcheva stated that while the work area of the barber shop was "well lit", it was not maintained in a sanitary manner.
[37] At a later point during cross-examination, Mr. Bowman asked the inspector why certain administrative sections of the inspection report had not been filled out completely, to which she responded "because it was not finished."
The Testimony of Patrick Bowman
[38] Mr. Bowman testified that on June 27th, 2014, he was working in his barber shop when Inspector Troubatcheva attended the premises to conduct the unscheduled public health inspection. He stated that once the inspector identified herself, he allowed her access to his shop to commence the inspection.
[39] Mr. Bowman testified that in conducting the inspection, Inspector Troubatcheva examined both his work area and the shampoo bowl. He stated that when the inspector looked inside of the jar of Barbicide solution located in his work station, she immediately remarked that the solution hadn't been changed in a year.
[40] Mr. Bowman advised that he was deeply insulted by this remark, which he felt was without merit. He stated that he suddenly lost his temper noting that an "instant rage" came over him. He felt that the inspector's statement as to the cleanliness of the Barbicide solution was an unjustifiable attack on his competency and professionalism as a barber.
[41] Mr. Bowman testified that upon receiving the inspector's comments pertaining to his work-station, which he described as "infuriating", he immediately walked out of his shop onto the sidewalk in front of the shop. He stated that he left the shop at that time in order to smoke some marijuana to calm his nerves. He advised that marijuana had been medically prescribed for him as treatment for his on-going condition related to stress and anxiety.
[42] Mr. Bowman acknowledged that while he was standing outside of his shop, he engaged in a verbal altercation with the inspector. In this regard, he acknowledged that he was rude to the inspector and swore at her, using vulgar language, in both the English and French languages. At one point in time during his testimony, Mr. Bowman seemed to express regret for his behaviour towards Inspector Troubatcheva stating: "she's an innocent person and I had no right to be that enraged at that time with that comment", referring to the inspector's comment about the cleanliness of the Barbicide solution.
[43] Mr. Bowman testified that he had occasion to review the inspector's partially completed inspection report, when he was standing outside of the shop. He advised that upon reading the report he told Inspector Troubatcheva to "go away" and that he wanted his barbershop to be re-inspected by a different public health inspector. He stated that Inspector Troubatcheva immediately dismissed his request for a re-inspection by a different inspector.
[44] During his testimony, Mr. Bowman disputed the inspector's allegations that during the course of his interaction with her, he spat on her car and that at a later point-in-time he attempted to strike her car with his pipe.
[45] With respect to the spitting incident, Mr. Bowman testified that at the material time he expectorated a large amount of sputum well away from the inspector's vehicle onto the parking lot, in order to clear his throat. Furthermore in respect of the inspector's allegation that he attempted to strike her vehicle with a pipe, he denied this allegation stating that he blew ash out of his pipe as the inspector was backing her vehicle out of the parking spot.
[46] In concluding his testimony-in-chief, Mr. Bowman stated that while he acknowledged Inspector Troubatcheva's testimony in this proceeding to be "reasonably accurate", "there was no obstruction that day". In that regard, Mr. Bowman argued as follows:
There was criticism of my government for coming in and putting me down and being heavy handed and making a statement that she can't back up and that's what happened June 27th and that's why I got so upset.
[47] The prosecutor did not cross-examine Mr. Bowman.
ANALYSIS
Issue No. 1: Whether or not the prosecution has proven all of the elements of the prohibited act, beyond a reasonable doubt?
[48] In this proceeding, the defendant is charged with the offence of obstructing a public health inspector. Accordingly, I must first define the verb "obstruct".
[49] According to The Concise Oxford Dictionary of Current English, Eighth Edition, (1990, Clarendon Press – Oxford), "obstruct" is defined as "1. block up; make hard to pass, 2. prevent or retard the progress of; impede". Furthermore, according to the Oxford Dictionary of Current English, Third Edition, (2001, Oxford University Press), "obstruct" is defined as "1. be in the way of; block. 2. prevent or hinder".
[50] There is very little conflict between the versions of the events of June 27th, 2014, as proffered by both witnesses in this proceeding. In my view, both Inspector Tatiana Troubatcheva and Mr. Patrick Bowman presented their evidence in a clear and detailed manner and their testimony relative to the ultimate issue of the existence of obstructive behaviour by the defendant, appeared to be both internally and externally consistent. They presented as credible witnesses.
Sub-Issue: Did Mr. Bowman's behaviour at the material time obstruct Inspector Troubatcheva in carrying out her lawful inspection duties?
[51] In my view Mr. Bowman's evidence largely supports the testimony of Inspector Troubatcheva relative to this sub-issue. The totality of the evidence leads me to only one conclusion; that Patrick Bowman's behaviour of June 27, 2014, prevented or impeded Inspector Troubatcheva in her ability to complete her inspection of the barber shop at the subject time.
[52] Mr. Bowman acknowledged that he lost his temper during the course of the inspection and that he immediately left the barber shop in an effort to calm his nerves. He testified that when the inspector followed him outside of the shop, he swore at her using vulgar language. Moreover, he admitted that he became more outraged when the inspector denied his request for a re-inspection with a different inspector.
[53] During his testimony, Mr. Bowman admitted that he prevented the inspector from re-accessing his barber shop to continue the inspection, after she had stepped out of the shop to speak with him. He acknowledged that in the course of swearing at her, he directed her to leave the area of the barber shop. Inspector Troubatcheva testified that she was intimidated by Mr. Bowman's rude and vulgar language and obscene gestures towards her, so she decided to leave the area of the barber shop before completing the routine inspection.
[54] In my view, the totality of the undisputed evidence relative to the sub-issue as outlined above is sufficient to establish the prohibited act of obstructing a public health officer, beyond a reasonable doubt. Mr. Bowman's admitted conduct of leaving the barber shop during the course of the inspection, of losing his temper such that he swore at her and communicated with her using vulgar language, and most importantly his refusal to let the inspector complete the inspection coupled with his direction to her to leave the area, constitute actions which, in combination, impeded Inspector Troubatcheva in her ability to fulfill her statutory duty to complete the subject health inspection at the material time. Accordingly, I find that the prosecution has proven, beyond a reasonable doubt that at the material time, Patrick Bowman obstructed public health inspector Tatiana Troubatcheva in the carrying out of her lawful duties under the H.P.P.A.
[55] In reaching this conclusion, I am cognizant of the fact that the prosecution need not prove the element of mens rea, beyond a reasonable doubt, in order to sustain a conviction for this strict liability, regulatory offence. In light of my finding that the evidence establishes the commission of the prohibited act, beyond a reasonable doubt, the fault element of negligence is automatically imported into the offence.
Issue No. 2: Has the defendant proven, on a balance of probabilities either of the defences of due diligence or reasonable mistake of fact?
[56] There is no evidence before me which establishes on a balance of probabilities, that in committing the prohibited act, Mr. Bowman took all reasonable steps to avoid committing the act. The totality of the evidence shows that Mr. Bowman lost control of his temper and failed to take rational steps to manage his anger. There is no question that his pride was bruised by the blunt comments of the public health inspector relative to the cleanliness of his work-station. He reacted to the inspector's comments in an emotional manner and by doing so failed to manage the circumstances of the inspector's spot inspection of his business premises in a balanced and reasonable fashion.
[57] Accordingly, the defendant has failed to prove the defence of due diligence on a balance of probabilities.
[58] On the other hand, the defendant argues that the health inspector's conclusion that the state of cleanliness of the Barbicide solution was indicative of an inference that it had not been changed for a year was an unjustifiable conclusion which tainted the legitimacy and fairness of the inspection being conducted by Inspector Troubatcheva. Based upon his final submissions, it would appear that Mr. Bowman is arguing that he had a right to prevent the continuation of the subject public health inspection by Inspector Troubatcheva, because he felt that her conclusions were unfair and not supported by the results of the inspection. It would appear that Mr. Bowman felt that he had a right to a new inspection by a different inspector, simply by asking for it. Furthermore, it would appear that his actions in this regard were informed by an experience he had with the Halton Regional Health Department in 2004, when he was granted the opportunity for a new inspection by a different inspector.
[59] The question I must ask myself is whether Mr. Bowman's belief that he was justified in preventing Inspector Troubatcheva from continuing her inspection of the barber shop to its completion on June 27th, 2014, might be characterized as a reasonable mistake of fact on his part, sufficient to excuse him from liability for the subject offence. After carefully considering Mr. Bowman's submissions in this proceeding, I am of the view that he has not shown, on a balance of probabilities, that in committing the subject offence he did so on the basis of an honest and reasonable mistake of fact.
[60] It seems to me that if Mr. Bowman honestly believed that he was justified in law in restricting Inspector Troubatcheva from re-entering his barber shop to complete the inspection; based upon his belief that he had a right to request a new inspection in circumstances where he perceived the initial inspection procedure to be unfair, then that belief might be more appropriately characterized as a mistake of law.
[61] Mr. Bowman has failed to adduce any evidence which shows, on a balance of probabilities, that in committing the subject offence he did so on the basis of a mistaken fact or set of facts; for example in circumstances where he had obstructed an individual who he honestly and reasonably believed was not an public health inspector or who he honestly and reasonably believed was not lawfully carrying out a power, duty or direction under the H.P.P.A. Mr. Bowman's actions in obstructing Inspector Troubatcheva in these circumstances was, in part, predicated on his erroneous belief that he had a right to prevent the inspection being conducted by one inspector and then request a re-inspection by a different inspector. In that regard, he acted on the basis of a mistake of law relative to the scope of the H.P.P.A., its guidelines and protocols.
[62] Section 81 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, states that "ignorance of the law by a person who commits an offence is not an excuse for committing the offence". Accordingly, Mr. Bowman's apparent misunderstanding of the law as I have characterized it is not a valid defence. He is not, therefore, excused of liability for the subject offence on that basis.
[63] In conclusion therefore, I find that Mr. Bowman has failed to prove, on a balance of probabilities, that in committing the subject prohibited act he took all reasonable care, either by exercising due diligence or by acting on the basis of an honest and reasonable mistake of fact. He has therefore failed to negate his presumed negligence in committing the subject strict liability offence. He is not, therefore, excused of liability for the offence.
THE DECISION
[64] As stated above, I have found that based upon the totality of the evidence in this proceeding, all of the essential elements of the subject prohibited act have been proven by the prosecution to the standard of proof beyond a reasonable doubt. Mr. Bowman has failed to prove the defence of reasonable care, on a balance of probabilities.
[65] The defendant, Patrick Bowman is therefore found guilty of the subject offence of obstruction of a public health inspector lawfully carrying out a power, duty or direction under the H.P.P.A., contrary to section 42(1) of the H.P.P.A., as charged.
Released: March 23, 2015
Signed: "Justice of the Peace Kenneth W. Dechert"