citation: "R. v. Le Royal Resto and Lounge Inc., 2017 ONCJ 767" parties: "The Region of Peel (Department of Public Health) v. Le Royal Resto and Lounge Inc." party_moving: "The Region of Peel (Department of Public Health)" party_responding: "Le Royal Resto and Lounge Inc." court: "Ontario Court of Justice" court_abbreviation: "ONCJ" jurisdiction: "Ontario" case_type: "trial" date_judgement: "2017-11-16" date_heard: "2017-09-20" applicant:
- "The Region of Peel (Department of Public Health)" applicant_counsel:
- "A. Krywoj" respondent:
- "Le Royal Resto and Lounge Inc." respondent_counsel:
- "J. Irving" judge: "Quon" winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 767 file_number: "05380" source: "https://www.canlii.org/en/on/oncj/doc/2017/2017oncj767/2017oncj767.html" summary: > The defendant corporation was charged with failing as an employer to ensure no person holds lighted tobacco in an enclosed workplace, contrary to section 9(3)(a) of the Smoke-Free Ontario Act. Health inspectors observed two individuals preparing hookah water pipes with ignited coal placed on tin foil covering shisha bowls. One sample tested positive for tobacco. The court acquitted the defendant, finding the prosecution failed to prove beyond a reasonable doubt that the tobacco-containing shisha had actually been lit at the time of inspection, as opposed to merely having a lit coal placed on top of it. The court also addressed the availability of the de minimis defence to regulatory offences. interesting_citations_summary: > This decision provides significant guidance on the de minimis non curat lex principle in regulatory offences under Ontario law. The court comprehensively reviewed the jurisprudence on whether de minimis applies to strict liability offences, distinguishing between its role as a statutory interpretation tool versus a defence. The court rejected the broad holding in R. v. Williams Operating Corp. that de minimis never applies to strict liability offences, finding instead that it remains available as a defence where the statutory provision uses general language without prescribed numerical thresholds. The decision also addresses the distinction between proof of a basic fact (lit coal) and the presumed fact (lit shisha), holding that no rebuttable presumption of fact exists under the SFOA requiring the trier of fact to infer that shisha is lit merely because coal is placed upon it. keywords:
- Smoke-Free Ontario Act
- De minimis non curat lex
- Regulatory offences
- Strict liability
- Shisha
- Hookah
- Tobacco
- Statutory interpretation
- Presumption of fact
- Enclosed workplace areas_of_law:
- Regulatory Law
- Public Health Law
- Environmental Law
- Evidence
- Statutory Interpretation legislation:
- title: "Smoke-Free Ontario Act, S.O. 1994, c. 10" url: "https://www.ontario.ca/laws/statute/940010"
- title: "General Regulation (Smoke-Free Ontario Act), O. Reg. 48/06" url: "https://www.ontario.ca/laws/regulation/060048"
- title: "Provincial Offences Act, R.S.O. 1990, c. P.33" url: "https://www.ontario.ca/laws/statute/900033"
- title: "Criminal Code, R.S.C. 1985, c. C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/"
- title: "Fisheries Act, R.S.C. 1985, c. F-14" url: "https://laws-lois.justice.gc.ca/eng/acts/F-14/" case_law:
- title: "Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75" url: "https://www.canlii.org/en/on/onca/doc/2013/2013onca75/2013onca75.html"
- title: "Ontario (Ministry of Labour) v. Hamilton (City)" url: "https://www.canlii.org/en/on/onca/doc/2002/2002canlii16893/2002canlii16893.html"
- title: "R. v. Sault Ste. Marie" url: "https://www.canlii.org/en/ca/scc/doc/1978/1978canlii11/1978canlii11.html"
- title: "Vancouver (City) v. Abdiannia (c.o.b. Ahwaz Hookah House), [2015] B.C.J. No. 1295 (B.C.S.C.)" url: "https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc1295/2015bcsc1295.html"
- title: "Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4" url: "https://www.canlii.org/en/ca/scc/doc/2004/2004scc4/2004scc4.html"
- title: "Ontario v. Canadian Pacific Ltd." url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii112/1995canlii112.html"
- title: "Ontario (Ministry of Natural Resources) v. 819743 Ontario Inc., 2013 ONCJ 128" url: "https://www.canlii.org/en/on/oncj/doc/2013/2013oncj128/2013oncj128.html"
- title: "R. v. Beets, [2017] Y.J. No. 339 (Y.T.C.)" url: "https://www.canlii.org/en/yt/ytca/doc/2017/2017ytca1/2017ytca1.html"
- title: "R. v. Cancoil Thermal Corp." url: "https://www.canlii.org/en/on/onca/doc/1986/1986canlii154/1986canlii154.html"
- title: "R. v. Castonguay Blasting, 2013 SCC 52" url: "https://www.canlii.org/en/ca/scc/doc/2013/2013scc52/2013scc52.html"
- title: "R. v. Croft, 2003 NSCA 109" url: "https://www.canlii.org/en/ns/nsca/doc/2003/2003nsca109/2003nsca109.html"
- title: "R. v. Cuerrier, [1998] 2 S.C.R. 371" url: "https://www.canlii.org/en/ca/scc/doc/1998/1998canlii796/1998canlii796.html"
- title: "R. v. Ferreira, 2014 ONCJ 21" url: "https://www.canlii.org/en/on/oncj/doc/2014/2014oncj21/2014oncj21.html"
- title: "R. v. Juneja, 2009 ONCJ 572" url: "https://www.canlii.org/en/on/oncj/doc/2009/2009oncj572/2009oncj572.html"
- title: "R. v. Goodman, 2005 BCPC 83" url: "https://www.canlii.org/en/bc/bcpc/doc/2005/2005bcpc83/2005bcpc83.html"
- title: "R. v. Hinchey" url: "https://www.canlii.org/en/ca/scc/doc/1996/1996canlii157/1996canlii157.html"
- title: "R. v. Li, [1984] O.J. No. 569 (O.H.C.)" url: "https://www.canlii.org/en/on/onhc/doc/1984/1984canlii3546/1984canlii3546.html"
- title: "R. v. Petro-Canada, 2009 ONCJ 179" url: "https://www.canlii.org/en/on/oncj/doc/2009/2009oncj179/2009oncj179.html"
- title: "R. v. Superior Custom Trailers Ltd., [2009] O.J. No. 6104 (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2009/2009oncj6104/2009oncj6104.html"
- title: "R. v. Syncrude Canada Ltd., 2010 ABPC 229" url: "https://www.canlii.org/en/ab/abpc/doc/2010/2010abpc229/2010abpc229.html"
- title: "R. v. UBA Inc., 2009 CarswellOnt 9923 (O.C.J.)" url: "https://www.canlii.org/en/on/oncj/doc/2009/2009oncj9923/2009oncj9923.html"
- title: "R. v. Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.)" url: "https://www.canlii.org/en/on/ondc/doc/1981/1981canlii2455/1981canlii2455.html"
- title: "R. v. Williams Operating Corp., [2008] O.J. No. 3736 (S.C.J.O.)" url: "https://www.canlii.org/en/on/onsc/doc/2008/2008canlii3736/2008canlii3736.html"
- title: "The Reward (1818), 2 Dodson's R. 265 (H.C. of Admiralty of England)" url: "https://www.bailii.org/ew/cases/1818/2Dods265.html" final_judgement: "The defendant, Le Royal Resto and Lounge Inc., is acquitted of the charge of failing as an employer to ensure no person holds lighted tobacco in an enclosed workplace, contrary to section 9(3)(a) of the Smoke-Free Ontario Act. The prosecution failed to prove beyond a reasonable doubt that the tobacco-containing shisha had been lit at the time of the inspection."
Ontario Court of Justice
Date: November 16, 2017
In the Matter of
Smoke-Free Ontario Act, S.O. 1994, c. 10
Between
The Region of Peel (Department of Public Health) prosecutor
and
Le Royal Resto and Lounge Inc. defendant
Ontario Court of Justice Brampton, Ontario
Before: Quon J.P.
Reasons for Judgment
Trial held: September 20, 2017
Judgment released on: November 16, 2017
Charge: Le Royal Resto and Lounge Inc. did fail as an employer to ensure no person holds lighted tobacco in enclosed workplace, contrary to s. 9(3)(a) of the Smoke-Free Ontario Act
Counsel:
- A. Krywoj, prosecutor for the Region of Peel (Department of Public Health)
- J. Irving, counsel for the corporate defendant, Le Royal Resto and Lounge Inc.
Cases Considered or Referred To
- Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, per MacPherson, Armstrong, and Blair JJ.A.
- Ontario (Ministry of Labour) v. Hamilton (City), per Weiler, Sharpe, and Simmons JJ.A.
- R. v. Sault Ste. Marie
- Vancouver (City) v. Abdiannia (c.o.b. Ahwaz Hookah House), [2015] B.C.J. No. 1295 (B.C.S.C.), per Leask J.
De minimis non curat lex cases:
- 244574 Alberta Ltd. v. Perspec Interiors Ltd., [1986] A.J. No. 544 (A.Q.B.), Master Funduk (in chambers)
- Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4
- Ontario v. Canadian Pacific Ltd.
- Ontario (Ministry of Natural Resources) v. 819743 Ontario Inc., 2013 ONCJ 128, per Dechert J.P.
- R. v. Beets, [2017] Y.J. No. 339 (Y.T.C.), per Chisholm J.
- R. v. Cancoil Thermal Corp., per Martin, Lacourciere and Goodman JJ.A.
- R. v. Castonguay Blasting, 2013 SCC 52
- R. v. Croft, 2003 NSCA 109
- R. v. Cuerrier, [1998] 2 S.C.R. 371
- R. v. Ferreira, 2014 ONCJ 21, per O'Donnell J.
- R. v. Juneja, 2009 ONCJ 572, per Duncan J.
- R. v. Goodman, 2005 BCPC 83, per Challenger J.
- R. v. Hinchey
- R. v. Li, [1984] O.J. No. 569 (O.H.C.), per Montgomery J.
- R. v. Petro-Canada, 2009 ONCJ 179, per Manno J.P.
- R. v. Superior Custom Trailers Ltd., [2009] O.J. No. 6104 (O.C.J.), per Valente J.
- R. v. Syncrude Canada Ltd., 2010 ABPC 229, per Tjosvold J.
- R. v. UBA Inc., 2009 CarswellOnt 9923 (O.C.J.), per Woolworth J.P.
- R. v. Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.), per Vannini J.
- R. v. Williams Operating Corp., [2008] O.J. No. 3736 (S.C.J.O.), per Platana J.
- The Reward (1818), 2 Dodson's R. 265 (H.C. of Admiralty of England), per Sir William Scott
Statutes, Regulations, By-Laws, and Rules Cited
- Smoke-Free Ontario Act, S.O. 1994, c. 10, ss. 1(1), 1(2), 9, 9(1), 9(3), and 9(3)(a)
- General Regulation (Smoke-Free Ontario Act), O. Reg. 48/06
- Peel Waterpipe Smoking By-Law, Peel By-Law No. 30-2016
- Provincial Offences Act, 1979, S.O. 1979, c. 4, s. 1(e)
- Provincial Offences Act, R.S.O. 1990, c. P.33, s. 80
Exhibits Entered
Exhibit "1" - Copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with red band and tin foil cover on top of bowl that was marked as #9 by Public Health Inspector Biley. (1 page)
Exhibit "2" - Copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with red band marked as #9 and with tin foil cover on top of bowl removed showing red-coloured shisha inside the bowl. (1 page)
Exhibit "3" - Copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with blue and yellow band and tin foil cover on top of bowl that was marked as #10 by Public Health Inspector Biley. (1 page)
Exhibit "4" - Copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with blue and yellow band marked as #10 and with tin foil cover on top of bowl removed showing bright/fresh red-coloured shisha (minty scent) inside the bowl. (1 page)
Exhibit "5" - Copy of Certificate of Analysis prepared by Cindy Carrier, Analyst in Alcohol and Tobacco Section of the Science and Engineering Directorate of Canada Border Services Agency (CBSA), dated February 15, 2017 at 79 Bentley Avenue, Ottawa, identified as laboratory report 193476-001, with reference number 1957171 and requester named as MayBellnne Biley, of sample taken at 11:47 p.m. from bowl with blue and yellow band marked as #10 in evidence bag 204812 on January 14, 2017 at 11:55 p.m. from Le Royale premises located at 755 Queensway East, Mississauga, indicating sample consists of a clear plastic cup containing approximately 26 grams of vegetable matter covered in red viscous liquid. The finding in the report is that the "vegetable matter was physically examined and chemically analyzed and found to contain tobacco". (1 page)
Exhibit "6" - Copy of eatery/restaurant operating licence for Le Royal Resto and Lounge, 755 Queensway East, Unit 116, Mississauga, Ontario issued Dec. 6, 2016 and expiring Dec. 31, 2017. (1 page)
Exhibit "7" - Copy of the Corporate Profile Report produced March 2, 2017, at 16:41:01, for Le Royal Resto and Lounge Inc., indicating an Ontario corporation number of 2405537, a registered office address of 755 Queensway East, Suite 116, Mississauga, Ontario, L4Y 4C5, and indicating an incorporation date of January 31, 2014, and also indicating the corporation's status as active and the jurisdiction is Ontario, and also indicating that Dalia Sulaiman is the director, President, Secretary, and Treasurer of the corporation. (5 pages)
Exhibit "8" - Copy of Inspection Report prepared by Public Health Inspector Biley for an inspection conducted of Le Royal Resto and Lounge premises at 113-116, 755 Queensway Road East, Mississauga, Ontario on September 23, 2016. Inspector Biley noted that she had advised the manager Annie Ingejikian that the Bylaw [Peel Waterpipe Smoking By-law (Peel By-Law No. 30-2016)] will be in effect as of November 1, 2016, which prohibits smoking waterpipes within enclosed workplaces, public places, and patios, and that the SFAO prohibits smoking tobacco within enclosed workplaces, public places, and patios, and the sale of flavoured tobacco, including tobacco shisha. (1 page)
Exhibit "9" - Copy of Inspection Report prepared by Public Health Inspector Biley for an inspection conducted of the Le Royal Resto and Lounge premises at 113-116, 755 Queensway Road East, Mississauga, Ontario on April 2, 2015. Inspector Biley noted that she had met with the owner [Dalia Sulaiman] and provided her education on the patio amendment with a fact sheet and that signage had to be posted within the patio within 5 business days (1 page)
Exhibit "10" - Copy of photograph taken on January 14, 2017, by Public Health Inspector Graczyk of television monitor showing patrons' shisha orders that is located in the preparation room located in the Le Royal premises located at 755 Queensway East, Mississauga, Ontario. (1 page)
Exhibit "11" - Copy of Inspection Report prepared by Public Health Inspector Jakub Graczyk for an inspection conducted on April 9, 2016 at Le Royal premises at 755 Queensway East, Mississauga, Ontario. Inspector Graczyk noted that samples of shisha were collected for testing from the premises and had advised the manager Annie Ingejikian that it is illegal to sell flavoured tobacco shisha and had provided copy of the inspection report to the manager Annie Ingejikian. (1 page)
Exhibit "12" - Copy of Inspection Report prepared by Public Health Inspector Jakub Graczyk (accompanied by Inspector Biley) for an inspection conducted on July 29, 2015 at Le Royal premises at 755 Queensway East, Mississauga, Ontario. Inspector Graczyk noted the premises is a lounge that serves herbal shisha and had provided copy of the inspection report to co-owner Amer Sulaiman. (1 page)
1. INTRODUCTION
[1] Some say that "there is no smoke without fire" -- while others will say "where there is smoke there is fire". Both sayings, nonetheless, refer to the same idiom, which generally means that if people are stating that someone has done something wrong, then there is usually a good reason for what they are saying. However, in a trial, even if witnesses are saying that an accused person has done something wrong, before that person can be found guilty of committing an offence that evidence must still be adjudged by the trier of fact to be credible and that it would also prove beyond a reasonable doubt that the person has committed all the essential elements of the offence for which they are charged with.
[2] Now, in this regulatory prosecution, the Department of Health for the Region of Peel alleges that on January 14, 2017, someone had been holding "lighted" tobacco in an enclosed workplace being operated by an Ontario corporation named, Le Royal Resto and Lounge Inc. (the "corporate defendant"). Consequently, the corporate defendant has been charged as the employer/operator for the restaurant and lounge known as "Le Royal Resto & Lounge" located at 755 Queensway East in the City of Mississauga, for failing to ensure that no person holds lighted tobacco in an enclosed workplace, contrary to s. 9(3)(a) of the Smoke-Free Ontario Act, S.O. 1994, c. 10 ("SFAO").
[3] For patrons who attend at the premises of Le Royal Resto & Lounge, they may presently partake in the smoking of "shisha" in a hookah water pipe indoors, as long as the shisha product does not contain tobacco. Traditionally, the shisha product that would have been smoked in a hookah water pipe had been a tobacco-based product flavored with molasses, honey, or fruit and mixed with such liquids as vegetable glycerin. However, since tobacco products are no longer permitted under the SFAO to be smoked indoors or in enclosed workplaces in Ontario, the tobacco-based shisha has been replaced with shisha that is now comprised of herbs and vegetable matter, which is currently being allowed to be smoked indoors (although the Region of Peel had passed a bylaw that became effective on November 1, 2016, that had banned the smoking of water pipes or hookahs in enclosed public places, enclosed workplaces, and specified outdoor settings, but which is not presently being enforced while there is a constitutional challenge of that bylaw before the courts).
[4] To partake in the smoking of a hookah pipe, patrons would inhale the smoke from vaporized, roasted, or burning "shisha" after the smoke has been cooled and passed through a compartment in the hookah pipe that holds water or other liquids. In order to vaporize, roast, or burn the shisha, the shisha is covered with a screen or tin-foil cover perforated with holes and then an ignited and lit piece of coal is placed on top of the screen or perforated tin foil, which is what provides the heat source to vaporize, roast, or burn the shisha, from which the smoke from the shisha is then inhaled through the hookah water pipe.
[5] In the case at bar, Region of Peel Public Health Inspector Biley had collected samples of the shisha product at about 11:52 p.m. on January 14, 2017, from two hookah water pipes that were being prepared for patrons on the premises of Le Royal Resto & Lounge and then arranged for the samples to be sent to the Canadian Border and Security Agency ("CBSA") laboratory for analysis to determine if the shisha had contained tobacco. The samples had been only collected from those two hookah water pipes after ignited and lit pieces of coal had been observed being placed on top of the perforated tin foil covering the shisha product and then subsequently ordered to be removed from the hookah pipes by the two health inspectors after it had been sitting for a few moments on top of the tin foil. Of the two samples sent to the CBSA laboratory for analysis, one was found to contain tobacco, which would not have been permitted to be smoked in a hookah water pipe in an enclosed workplace under s. 9(1) of the SFAO.
[6] In its defence to the charge laid under s. 9(3)(a) of the SFAO for failing as an employer to ensure that no person holds lighted tobacco in an enclosed workplace, the corporate defendant submits that there is no evidence that the shisha product in the hookah water pipe, from which the sample containing the tobacco had been collected had indeed been "lit", since there is no evidence that the shisha had been smoking, smoldering, or do anything else, before the shisha sample had been collected by Health Inspector Biley. But more importantly, the corporate defendant is suggesting that if "there is no smoke then there can be no fire". In other words, the corporate defendant would be relying on that well-used idiom literally to contend that because there is no evidence that the shisha that had tested for tobacco had been actually been burning or smoldering or producing smoke before the sample had been collected, then the prosecution has failed to prove beyond a reasonable doubt that there had been any burning, roasting, or "lighted" tobacco being held by anyone at the enclosed workplace, known as Le Royal Resto & Lounge, at the time in question.
[7] Furthermore, the corporate defendant also submits that the Certificate of Analysis (Ex. 5) prepared by the CBSA laboratory for the shisha sample collected on January 14, 2017, from the bowl marked as #10, had only indicated that the sample had contained tobacco, but did not specify what had been the percentage, amount, or the weight of the tobacco that was in the shisha sample. Ergo, as a consequence of that omission, the corporate defendant contends that the legal maxim de minimis non curat lex ("the law does not concern itself with trifles") should apply in respect to the unspecified amount of tobacco contained in the shisha, so that it would be improper and unjust to convict the corporate defendant for a trace amount of tobacco or for an amount of tobacco in the de minimis range.
[8] In their reply to the question on whether the shisha had been "lit", the prosecution submits that on the basis of the aims or purpose of this smoke-free legislation to prevent employees or any other persons from being exposed to the harmful effects of second-hand smoke from lit tobacco in an enclosed workplace, then it should be interpreted or reasonably inferred that the shisha containing the tobacco had been lit when there is evidence that the coal sitting on top of the tin foil covering the shisha had been ignited and lit. Otherwise, submits the prosecution, not finding that the shisha had been lit after the piece of ignited and lit coal had been placed over the shisha would effectively nullify the enforcement of the legislation. In addition, the prosecution submits that s. 9(1) of the SFAO prohibits "lighted" tobacco being held by any person in an enclosed workplace, but that the SFAO does not specify or require there be a minimum amount of tobacco being lit before an offence can be committed.
[9] Ergo, two key questions need to be decided in order to determine if the corporate defendant should be found guilty of committing the offence laid under s. 9(3)(a). They are: (1) whether the de minimis non curat lex principle should apply to the amount of tobacco contained in the shisha sample collected by the health inspector, so that the corporate defendant would not be punished or convicted of committing the offence; and (2) whether the prosecution has proven beyond a reasonable doubt that the shisha containing the tobacco had actually been or presumed to be "lit" when there is evidence that the coal used to heat the shisha had been ignited and lit and had been placed on top of the tin foil covering the shisha.
[10] In respect to the first question that has to be decided, the common law defence of de minimis non curat lex could apply in the circumstances to this type of regulatory charge, since there is no numeric standard or a numeric value prescribed in the SFAO as the minimum amount of tobacco that has to be in lighted state in an enclosed workplace to contravene s. 9(1) or for an offence to be committed under s. 9(3)(a) of the SFAO. However, despite the availability of the de minimis defence in the circumstances for this particular charge, the corporate defendant, who has the burden to prove the defence of de minimis, has not proven on a balance of probabilities that the amount of tobacco in the shisha collected from the bowl marked as #10 had been in fact only a trace amount or in the de minimis range, so that it would not be harmful to any person or employee in the enclosed workplace being exposed to the lighted tobacco, if it indeed had been lit, in order to justify not convicting or punishing the corporate defendant.
[11] As for the second question that has to be decided, the prosecution has failed to prove that the tobacco in the shisha collected from the bowl marked as #10 had been "lit" beyond a reasonable doubt before it had been collected by Health Inspector Biley. Moreover, from the evidence adduced at trial, it cannot be reasonably inferred that the shisha containing the tobacco had been "lit" simply because a piece of ignited and lit coal had been placed on top of the tin foil covering the shisha in the bowl marked as #10, nor does the common law or the SFOA provide for a "rebuttable presumption of fact" that is mandatorily required to be made by the trier of fact that the shisha is deemed or presumed to be lit, once the prosecution has proven beyond a reasonable doubt that a piece of coal used to heat the shisha had been ignited and lit and had been placed on top of the tin foil covering the shisha.
[12] Consequently, as there is no evidence that the shisha containing the tobacco collected from the bowl marked as #10 had been charred, smoking, smoldering, roasting, or burning, then the prosecution has not proven beyond a reasonable doubt that the shisha containing the tobacco had been "lit" before the sample in question had been collected by Health Inspector Biley. As such, the prosecution has failed to meet their burden in proving beyond a reasonable doubt that the corporate defendant had failed to ensure that no person holds lighted tobacco in an enclosed workplace, contrary to s. 9(3)(a) of the SFOA. Accordingly, the corporate defendant will be acquitted of the charge.
[13] Furthermore, the trial of the corporate defendant's SFAO charge had been held on September 20, 2017. After final submissions were made by the prosecution and the corporate defendant, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment being released as of November 16, 2017:
2. BACKGROUND
[14] Three witnesses had testified at trial. All three of them were Region of Peel health inspectors. Two were the health inspectors who had attended the Le Royal Resto & Lounge located at 755 Queensway East, in the City of Mississauga, on January 14, 2017, and the third is the health inspector who had sent the two samples of shisha collected on January 14, 2017, to the CBSA laboratory for testing.
(a) SUMMARY OF THE TESTIMONY
(1) Public Health Inspector MayBellnne Biley
[15] Public Health Inspector Biley testified that she has been a public health inspector with the Region of Peel for 16 years. She also said that on January 14, 2017, she and her partner, Jakub Graczyk, had attended the premises operating as "Le Royal" at 755 Queensway East in Mississauga, Ontario. She also said they were there to do a compliance inspection under the SFOA.
[16] Inspector Biley also said she had met Amer Sulaiman, the co-owner, and advised him of the reason of their visit. She also said he had been cooperative with them. Biley then said that her partner and herself had gone to the back area of the kitchen into the prep area. She also said that she had observed through the interior windows of the kitchen into the banquet room and saw patrons smoking hookah water pipes. She explained that a hookah pipe is an apparatus used to smoke shisha. In addition, she described it as an apparatus that contains a small bowl or head piece, a mouth piece like on a trombone, a tray underneath the stem, a valve to purge, and a valve for the hose that goes to the mouthpiece. She then explained how the hookah water pipe worked. She said that the bowl (or head piece) is packed with shisha and then covered with tin foil that is pierced with holes. Then she said that one or two coals are placed on top of the foil, and inhalation of smoke is done through the mouthpiece, and that the smoke of the shisha is inhaled through the water.
[17] Furthermore, in the back room Biley said she had observed two operators there handling two hookah water pipes. She also said she had observed two coals being ignited on a hot plate and then placed on top of the prepared head or bowl of the hookah water pipe. She then said that at that point she and her partner had intervened and had the employees stop the preparation of the two hookah water pipes. She then said that at 11:47 p.m. the coals were then taken off the top of the head of the hookah pipe. She had also described that the two heads or bowls of the two hookah pipes had been packed with shisha and covered with tin foil and that the lit coals were "burning" over the perforated tin foil. She also said she had taken photographs of the two bowls that were on the two hookah pipes.
[18] For the first bowl, Inspector Biley said that she had identified the bowl that had a red band with the marker #9, She then said she took off the tin foil to examine the shisha. She described that particular shisha as being red in colour and having a scent of tarty fruit. She also said she had put new gloves on and used a clean spoon to take a sample of the shisha from the bowl with marker #9 and then placed the sample into a brand new collection container at approximately 11:52 p.m. She then said she sealed the container.
[19] For the second bowl of shisha, Inspector Biley said that she had marked the second bowl, which had a blue and yellow band, with the marker #10. Afterwards, she said she had taken the foil off that bowl or head and then described the shisha in that bowl as having a brighter red colour and with a strong scent of mint. She then said she took a sample of the shisha in the bowl with marker #10, and using new gloves and a new spoon, had put the sample in a new collection container and then sealed it.
[20] Inspector Biley then said that she had placed the collection container with the shisha sample taken from the bowl marked #10 into evidence bag numbered 204812 at 12:04 a.m. on January 15, 2017. She also said she then placed the collection container with the shisha sample taken from the bowl marked #9 in the evidence bag numbered 204811 at 12:07 a.m.
[21] Inspector Biley also said that she had informed the co-owner Amer Sulaiman that they had taken samples for analysis to see if there is any tobacco in the shisha. She also said that she had met Sulaiman, the co-owner of the Le Royal Resto & Lounge, on other occasions when he had provided his name to her. In addition, Inspector Biley said the tobacco sale licence issued by the City of Mississauga and the corporate profile documents indicated that the owner and operator of the Le Royal Resto & Lounge at 755 Queensway East, in the City of Mississauga is the corporation named Le Royal Resto and Lounge Inc. The corporate defendant's counsel also stated that he did not have issue with identification of who the owner or operator is of the establishment in question.
[22] In addition, Inspector Biley said that after seeing if there had been the proper signage posted in the premises as part of their compliance inspection, she and her partner then left the premises at 12:20 a.m. on January 15, 2017.
[23] Furthermore, Inspector Biley said the two samples were then sent to the CBSA for testing to see if the shisha samples she collected had contained tobacco. At that point, the corporate defendant's counsel stated that proof of the chain of custody for the two samples was also conceded.
[24] Moreover, after the two shisha samples were tested by the CBSA, Inspector Biley said that one of the two samples came back as positive for tobacco. She said that it had been the second sample of shisha taken from the bowl marked as #10 and labelled as 204812. She also said that the Certificate of Analysis (Ex. 5) from the CBSA laboratory had indicated that the shisha sample collected from the bowl marked as #10 had contained 26 grams of vegetable matter and had a minty aroma and had contained tobacco. However, Biley also admitted that the Certificate of Analysis (Ex. 5) for that sample did not specify or indicate the percentage or the weight of that shisha sample, which had been comprised of tobacco.
[25] In addition, Inspector Biley testified that she had on other occasions attended at the premises of 755 Queensway East for compliance inspections, as well as providing them with education on the SFAO. She further said that she had previously attended there on September 23, 2016, and on April 2, 2015. She also said that she had prepared inspection reports on those occasions and had provided them to the manager or owners of the establishment (see Ex. 8 and Ex. 9). In addition, Inspector Biley said that she had informed the manager, Annie Ingejikian, on the September 23, 2016, that the use of tobacco shisha was prohibited.
(2) Public Health Inspector Jakub Graczyk
[26] Public Health Inspector Graczyk testified that he has been employed as a public health inspector with the Region of Peel for 3 years. He also testified that on January 14, 2017, at 11:44 p.m., he and his partner, May Biley, had attended Le Royal Resto & Lounge located at 755 Queensway East in Mississauga, Ontario, to do a compliance inspection under the SFOA.
[27] On that visit to Le Royal Resto & Lounge, Inspector Graczyk said that he had gone to the kitchen and then to the back of the premises to the room where the shisha is prepared. In the shisha preparation room, Inspector Graczyk said he had observed two operators preparing two hookah water pipes. He also said he had observed them poke holes in the head of the pipes. In addition, he said he had observed "lighted" coal and that both operators had been holding the "lighted" water pipes. He then said that he had requested for the two operators to stop, put down the water pipes, and to remove the lighted coals. Once the coals were removed, Inspector Graczyk said the operators then handed the heads or the bowls of the two water pipes to him. Inspector Graczyk then said that Inspector Biley took photographs of the two bowls, and then took samples of the shisha in those two bowls, and then placed them separately into evidence bags.
[28] In addition, Inspector Graczyk said that he had observed in the shisha preparation room a television monitor which identified the orders of shisha that had been placed by patrons that evening. He also said that he had taken photographs of the liquor license and the business licence for the premises. He then said that he had taken a photograph of the monitor which listed the shisha orders (see Ex. 10). Furthermore, Inspector Graczyk said the owner, Amer Sulaiman, had entered the shisha preparation room. At that point, Inspector Graczyk said Amer Sulaiman had been provided with education on the bylaw, a responsibility sheet, a letter, and a copy of the inspection report. Inspector Graczyk also said that he had observed Amer Sulaiman sign the inspection report before a copy of it had been provided to Sulaiman.
[29] Inspector Graczyk also said he had observed 75 to 80 patrons in the premises and approximately 15 to 20 hookah pipes being smoked inside the premises.
[30] Furthermore, Inspector Graczyk said that after the shisha samples had been collected and processed by Inspector Biley, they had returned to their office, and the samples were placed in the secured evidence cabinet for the weekend. Then, on Monday morning, Inspector Graczyk said he had observed his colleague, Health Inspector Kun Zhang, remove the shisha samples collected from Le Royal Resto & Lounge from the evidence cabinet and package them to be shipped to the lab.
[31] In addition, Inspector Graczyk said he had also done SFAO compliance inspections of Le Royal Resto & Lounge on two prior occasions. He further said that he always provides education to the owner or operator of the establishment so that they would know their responsibilities under the SFAO. He further said that he had attended Le Royal Resto & Lounge on April 9, 2016, and on July 29, 2015. In addition, he said he had provided inspections reports and resource materials to the manager or owner on those two prior occasions (see Ex. 10 and Ex. 12) and had informed the manager, Annie Ingejikian, on April 9, 2016, that tobacco was not permitted to be smoked in the hookah water pipes.
[32] Inspector Graczyk also said he had been there at the Le Royal Resto & Lounge previously for a compliance check under the SFAO when shisha samples had been collected, analyzed, and were found to have contained tobacco. On that occasion, he said that warning letters were sent to the corporate defendant and to the owners of the corporation.
(3) Public Health Inspector Kun Zhang
[33] Public Health Inspector Zhang testified that he had personally delivered the two shisha samples collected from Le Royal Resto & Lounge on January 14, 2017, to the Purolator office in Mississauga.
[34] During Kun Zhang's testimony, the corporate defendant's legal counsel had conceded proof of the chain of custody of the two samples and that continuity of the two samples was not at issue.
(4) Arguments of the Corporate Defendant and the Prosecution
[35] In its closing argument, the corporate defendant submits the prosecution has failed to adduce any evidence beyond a reasonable doubt that there had been any tobacco that had been actually "lit" that was being held by any person at the time and place in question. In addition, the corporate defendant contends that because the Certificate of Analysis (Ex. 5) did not expressly provide the percentage or the weight of the tobacco in the 26-gram sample of shisha that had been collected from the bowl marked as #10, then the prosecution has failed to prove beyond a reasonable doubt that the amount of tobacco in question had been more than a trivial or de minimis amount.
[36] Accordingly, the corporate defendant submits that the prosecution has failed to prove beyond a reasonable doubt that there had been any "lit" tobacco in the bowl marked as #10 in the hookah pipe that was being held by someone preparing the hookah pipe before the shisha sample had been collected by Inspector Biley. But, even if the shisha in bowl #10 that had tested for tobacco is determined to have been burning or roasting, or that it had been lit before the shisha sample had been collected, then the corporate defendant contends that the amount of the tobacco in bowl #10 would have been in the trivial or de minimis range, such that the corporate defendant should not be convicted of, or punished, for committing the offence under s. 9(3)(a) by virtue of the legal maxim of de minimis non curat lex.
[37] In response to the corporate defendant's arguments for an acquittal, the prosecution first submits that based on the purpose of the legislation to protect employees and the public from the harmful effects of second-hand smoke and to maintain the ability of the Peel Public Health Department to properly enforce the legislation, the court should interpret or infer that the shisha containing the tobacco had been "lit" while the piece of coal that had been ignited and lit had been sitting on top of the tin foil covering the shisha. Secondly, the prosecution submits that the SFAO does not specify the minimum amount of tobacco that has to be actually lit before s. 9(1) is contravened or that the offence of failing to ensure no person holds lighted tobacco in an enclosed workplace would be committed under s. 9(3)(a).
3. THE CHARGE
[38] As stated in the Part III Information numbered 05380 that was sworn on March 8, 2017, the corporate defendant, Le Royal Resto and Lounge Inc., has been charged with committing the strict liability offence of "fail to ensure no person holds lighted tobacco in the enclosed workplace", contrary to s. 9(3)(a) of Smoke-Free Ontario Act, S.O. 1994, c. 10:
Le Royal Resto and Lounge Inc. 755 Queensway East, Suite #115 Mississauga, Ontario L4Y 4C5
On or about the 14th day of January 2017
At Le Royal Resto and Lounge at 755 Queensway East, Mississauga, Ontario, Central West Region
did commit the offence of
Fail to ensure no person holds lighted tobacco in the enclosed workplace contrary to Smoke-Free Ontario Act, S.O. 1994, c. 10
section 9(3)(a)
4. ISSUES
[39] The following are the issues that have arisen at trial that need to be resolved:
(a) Has the prosecution proven beyond a reasonable doubt that a person was holding lighted tobacco in an enclosed workplace?
(b) Can it be reasonably inferred from the evidence that the shisha in the bowl marked as #10 had been burning, roasting, or lit after an ignited and lit piece of coal had been placed on top of the tin foil covering the shisha?
(c) Is there a "rebuttable presumption of fact" established under the common law or provided in the SFAO that requires the trier of fact to deem or presume that the shisha had been burning, roasting, or lit after it has been proven that an ignited and lit piece of coal had been placed on top of the tin foil covering the shisha?
(d) Does the legal maxim of de minimis non curat lex apply to regulatory offences in Ontario?
(e) In the circumstances, does the legal maxim of de minimis non curat lex apply to the charge laid under s. 9(3)(a) of the SFAO?
(f) Is there evidence that would prove the amount of tobacco found in the shisha sample is in the de minimis range?
(g) If the prosecution has proven that the shisha containing the tobacco had been lit, has the corporate defendant established the defence of de minimis non curat lex, if applicable, on a balance of probabilities whereby the corporate defendant will be acquitted of committing the offence under s. 9(3)(a) of the SFAO?
5. ANALYSIS AND DECISION
[40] In this present prosecution under the SFOA, it is alleged that Le Royal Resto and Lounge Inc. ("the corporate defendant"), had contravened s. 9(3)(a) of the SFOA by failing as an operator or employer for the restaurant or eatery business named Le Royal Resto & Lounge and located at 755 Queensway East, Mississauga, Ontario, to ensure that no person holds lighted tobacco in an enclosed workplace.
[41] The charge had resulted from a compliance inspection conducted by two Region of Peel Health inspectors who had attended the Le Royal Resto & Lounge premises at 755 Queensway East on January 14, 2017, and who had observed two individuals in the preparation area holding two hookah water pipes while an ignited and lit piece of coal had been placed on top of the tin foil that was covering the head or bowl of the hookah pipes that had contained the shisha to be smoked by patrons. After the two health inspectors had requested the respective pieces of coal be taken off of the tin foil covers, samples of the shisha contained in those two bowls were then collected by Health Inspector Biley, and which were then subsequently sent to the CBSA laboratory for analysis. One of the two samples tested had been found to have contained tobacco. The shisha sample that had tested for tobacco had been collected from the bowl marked as #10.
[42] For determining whether the prosecution has met their burden in proving the s. 9(3)(a) charge, the first question that needs to be decided is whether the prosecution has proven beyond a reasonable doubt that the shisha containing the tobacco in the bowl marked as #10 had actually been burning, roasting, or lit before the shisha sample had been collected by Inspector Biley. If the prosecution fails to prove that the shisha in the bowl marked as #10 had been burning, roasting, or lit before the shisha sample had been collected from that bowl, then the charge against the corporate defendant would have to be dismissed, given that there would be no evidence beyond a reasonable doubt that a person had been holding "lighted" tobacco in an enclosed workplace.
[43] On the other hand, if the prosecution has proven that the shisha containing the tobacco had actually been burning, roasting, or lit, before a sample of that shisha had been collected, then the prosecution will have proven that the corporate defendant had committed the offence of failing to ensure no person holds lighted tobacco in the enclosed workplace located at 755 Queensway East, Mississauga, unless the corporate defendant can establish the defence of due diligence on a balance of probabilities. However, instead of raising the defence of due diligence, the corporate defendant contends that the legal maxim of de minimis non curat lex applies to the amount of tobacco that was found contained in the shisha sample collected from bowl #10. Specifically, the corporate defendant contends that because the Certificate of Analysis (Ex. 5) did not state what had been the percentage, the amount, or the weight of the tobacco that was contained in the shisha sample, then the corporate defendant should not be convicted of the offence when the prosecution has not proven that the amount of tobacco is more than a trace amount or that it is beyond the de minimis range. Moreover, the corporate defendant submits that the issue concerning the amount of tobacco in question is analogous to the situation where accused persons facing criminal drug possession charges are found to be not guilty of being in the possession of an illegal drug or substance when the amount of the illegal drug or substance found in the person's possession is only a trace amount or that it falls within the de minimis range.
[44] Moreover, the application of the de minimis non curat lex principle as a defence would normally be considered only after the prosecution has proven beyond a reasonable doubt that the corporate defendant has committed the actus reus of the offence of failing to ensure no person holds lighted tobacco in an enclosed workplace. However, the issue of whether or when the de minimis defence should apply to a regulatory offence is not legally clear in Ontario. Therefore, it would be appropriate to first consider whether the de minimis principle as a defence is available to the corporate defendant for a charge under the SFAO, before having to decide the issue of whether the prosecution has proven that the corporate defendant has committed the offence under s. 9(3)(a) beyond a reasonable doubt.
(A) DOES THE LEGAL MAXIM OF "DE MINIMIS NON CURAT LEX" APPLY TO REGULATORY OFFENCES IN ONTARIO?
[45] The corporate defendant suggests that the legal maxim of de minimis non curat lex should apply to the amount of tobacco collected by Health Inspector Biley on January 14, 2017, given that the Certificate of Analysis (Ex. 5) did not specify the amount, percentage, or weight of the tobacco contained in that collected sample of shisha, and as such, contends that the prosecution has failed to prove that the amount of tobacco in question had been an amount that is beyond the de minimis range, so that it would unjust to convict or punish the corporate defendant when the amount of tobacco has not been proven to be more than a trace amount that would warrant a finding of guilt.
[46] And, in reply to that argument that the de minimis principle should apply to the amount of the tobacco found in the shisha sample, the prosecution submits that it should not apply in this particular case, since the SFAO does not prescribe a minimum quantity of tobacco that has to be lighted in an enclosed workplace before s. 9(1) is contravened and an offence is committed under s. 9(3)(a).
[47] However, despite the corporate defendant's argument that the de minimis principle is applicable to this particular regulatory offence, various courts and academics alike have commented and acknowledged that there is still a legal debate on whether the de minimis principle can be utilized as a defence for regulatory offences in Ontario. As such, it will have to be determined whether the common law defence of de minimis non curat lex would apply to an offence under s. 9(3)(a) of the SFAO.
(1) Consideration Of The De Minimis Principle By The Supreme Court Of Canada
[48] Unfortunately, the Supreme Court of Canada has yet to decide on whether the maxim of de minimis non curat lex can be utilized as a defence by accused persons in criminal or regulatory prosecutions, or when and for what purpose the maxim can be used by an accused person. Although the Supreme Court has not directly used or applied the legal maxim to date, the de minimis defence has been commented on in several cases that have been decided by the Supreme Court. However, to this point the maxim had only been mentioned in dissenting opinions, in obiter, or used as an interpretive tool to decide the meaning of a statutory provision.
[49] The most recent discussion about the availability and application of the de minimis maxim by a member of the Supreme Court had been in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, which had been a case about parents being charged criminally for using physical force to discipline their children. In that case, Arbour J., in her dissenting opinion at paras. 200 to 208, had admitted that the case law on the application of the de minimis defence is limited, but nonetheless she found that the de minimis principle exists as a common law defence that it is preserved by s. 8(3) of the Criminal Code, which is available to judges and which falls within the courts' discretion to apply and to develop the de minimis defence as it sees fit. Arbour J., also took an opportunity to explain what the de minimis defence would entail and when it could be used. She said that it would be, in effect, the situation where there had been only a "technical" commission of the actus reus and that the conduct would fall within the words of the offence description, but that it had been too trivial so as to fall within the range of wrongs for which the description had been designed to cover. Moreover, Arbour J. indicated that when the de minimis defence is accepted it does not mean that the act or conduct is justified, as it still remained unlawful, but because of its triviality it would go unpunished. Arbour J. also reiterated that the common law defence of de minimis applies when the deviation is a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, so that the conduct or omission in question might be properly overlooked. She also noted that the operation of the defence would be consistent with the dual fundamental principle of criminal justice that there is no culpability for harmless and blameless conduct. In addition, Arbour J. outlined the justifications for a de minimis excuse as the following: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases. Furthermore, Arbour J. recognized that even though the case law is somewhat unsatisfactory, the de minimis defence has succeeded on several occasions in the courts below, and as such, Arbour J. confirmed that the Supreme Court has expressly left the existence of the defence open and available for the judiciary to consider and utilize, as had been indicated in R. v. Cuerrier, [1998] 2 S.C.R. 371, at para. 21, and in R. v. Hinchey, at para. 69:
The Chief Justice is rightly unwilling to rely exclusively on prosecutorial discretion to weed out cases undeserving of prosecution and punishment. The good judgment of prosecutors in eliminating trivial cases is necessary but not sufficient to the workings of the criminal law. There must be legal protection against convictions for conduct undeserving of punishment. And indeed there is. The judicial system is not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of "a crime" (e.g., theft of a penny) because prosecutorial discretion is effective and because the common law defence of de minimis non curat lex (the law does not care for small or trifling matters) is available to judges.
The common law concept of de minimis non curat lex was expressed in the English decision of The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482, at p. 1484, in the following manner:
The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. -- Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.
Admittedly, the case law on the application of the defence is limited. It may be that the defence of de minimis has not been used widely by courts because police and prosecutors screen all criminal charges such that only the deserving cases find their way to court. Nonetheless de minimis exists as a common law defence preserved by s. 8(3) of the Code and falls within the courts' discretion to apply and develop as it sees fit. In effect, the defence is that there was only a "technical" commission of the actus reus and that "the conduct fell within the words of an offence description but was too trivial to fall within the range of wrongs which the description was designed to cover". The defence of de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished.
Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases. In part, the theory is based on a notion that the evil to be prevented by the offence section has not actually occurred. This is consistent with the dual fundamental principle of criminal justice that there is no culpability for harmless and blameless conduct.
In Canadian jurisprudence, the defence of de minimis has been raised in drug cases that involve a tiny quantity of the drug, in theft cases where the value of the stolen property is very low, or in assault cases where there is extremely minor or no injury. Though the case law is somewhat unsatisfactory, the defence has succeeded on several occasions and this Court has expressly left the existence of the defence open. In discussing the actus reus of the offence of "fraud on the government" under s. 121(1)(c) of the Code, L'Heureux-Dubé J. in Hinchey, supra, wrote the following, at para. 69:
In my view, this interpretation removes the possibility that the section will trap trivial and unintended violations. Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where an accused has "technically" violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada ... and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day. [Emphasis added.]
… The C.B.A. Task Force Report reviewed the uncertain state of the law and recommended codification of a power to stay for trivial violations. A codification of the defence may cure judicial reluctance to rely on de minimis; however, the common law defence of de minimis, as preserved under s. 8(3) of the Code, is sufficient to prevent parents and others from being exposed to harsh criminal sanctions for trivial infractions.
I am of the view that an appropriate expansion in the use of the de minimis defence -- not unlike the development of the doctrine of abuse of process -- would assist in ensuring that mere technical violations of the assault provisions of the Code that ought not to attract criminal sanctions are stayed. In this way, judicial resources are not wasted, and unwanted intrusions of the criminal law in the family context, which may be harmful to children, are avoided. Therefore, if s. 43 were to be struck down, and absent Parliament's re-enactment of a provision compatible with the constitutional rights of children, parents would be no more at risk of being dragged into court for a "pat on the bum" than they currently are for "tasting" a single grape in the supermarket.
… Parents and persons standing in the place of parents will not be exposed to the criminal law unnecessarily as the common law defences of necessity and de minimis will protect them from excusable and/or trivial conduct.
[50] However, McLachlin C.J. in writing her majority decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, at para. 44, did not support Arbour J.'s view that the de minimis maxim would be available to prevent criminalizing parents who used corrective force of a minor nature on their children. McLachlin C.J. had instead been critical of utilizing that defence because in her view the de minimis defence would have been equally or more vague and difficult in application than the reasonableness defence that is offered by s. 43 of the Criminal Code for parents who face criminal charges as a result of using corrective force on their children:
… Finally, Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and "de minimis". The defence of necessity, I agree, is available, but only in situations where corrective force is not in issue, like saving a child from imminent danger. As for the defence of de minimis, it is equally or more vague and difficult in application than the reasonableness defence offered by s. 43.
[51] Also, in an earlier case that had been before the Supreme Court, L'Heureux-Dubé J. in R. v. Hinchey, at para. 69, had also suggested that for the present case before her, there might have been another method that could have been used to avoid entering a criminal conviction for trivial violations, which would have been founded on the principle of de minimis non curat lex. However, L'Heureux-Dubé J. had posited that she did not need at that time to decide the issue of whether the de minimis defence would be available or applicable in order to resolve the case, and that it had been her preference to leave that question for another day. On the other hand, she did acknowledge that the de minimis maxim's potential application as a defence to criminal culpability had not yet been decided by the Supreme Court and that it had also been the subject of some debate in the courts below:
In my view, this interpretation removes the possibility that the section will trap trivial and unintended violations. Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where an accused has "technically" violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.
[52] Additionally, in R. v. Cuerrier, [1998] 2 S.C.R. 371, which is another case that had been decided by the Supreme Court, in which the accused had been acquitted of committing two criminal counts of aggravated assault for having unprotected sexual relations with two complainants without informing them that he was HIV‑positive, L'Heureux-Dubé J. once again had commented at paras. 20 and 21, about the possibility of the de minimis principle being applicable in a case. L'Heureux-Dubé J. had been concerned about the situation where the prosecution would decide to proceed with a charge against an accused person even though it had been based on a minor or trivial violation, in which case she felt that the de minimis maxim could then conceivably be implemented to insulate the accused person from being criminalized for relatively innocent conduct:
Finally, my colleagues' examples of the types of trivial conduct that will be caught by this approach are grossly overstated. Cory J. downplays the limiting effect of the fact that a causal connection must be proven, to the imposing criminal standard, between the accused's dishonest act and his intention to induce the submission of the complainant. For instance, a mere misrepresentation as to a man's professional status, without proof that the man was aware that the complainant was submitting to sexual intercourse with him by reason of his lie, would not constitute sexual assault. See Mewett and Manning, supra, at pp. 789-90. Whether a complainant actually submitted to sexual intercourse by reason of an accused's fraud will necessarily depend on an examination of all of the factors, and can only be decided on a case-by-case basis.
McLachlin J.'s predictions are even more cataclysmic. Contrary to her assertion in para. 52, it is not "any deception or dishonesty" that will be criminalized by this approach. McLachlin J. argues that based on the approach to fraud that I have explained, henceforward the "implied consent inherent in the social occasion -- the handshake or social buss -- are transformed by fiat of judicial pen into crimes". But my approach to fraud will in no way catch such innocent conduct. The very notion of implied consent to touching that is inherent in the social occasion, and indeed, inherent in so many aspects of day to day life, is based on an understanding of social realities and a need for tolerance of a reasonable degree of incidental and trivial contact. Whether or not a man is wearing a false moustache or a woman, alluring make-up, it is inconceivable that the Crown, were it foolish enough to prosecute a case of assault by handshake or social buss, would be capable of establishing beyond a reasonable doubt both that a complainant only consented to the physical contact by reason of the deception, and that the deception was employed with the knowledge and intention of inducing the submission of the complainant. In addition, the principle of de minimis non curat lex, that "the law does not concern itself with trifles" might apply in such a case: see R. v. Hinchey, [1996] 3 S.C.R. 1128, at para. 69, per L'Heureux-Dubé J. …
[53] Furthermore, recently in R. v. Ferreira, 2014 ONCJ 21, at paras. 23 to 26, O'Donnell J. in applying the de minimis defence in a criminal assault case, had emphasized that despite its long roots in the common law, the de minimis doctrine's availability and scope in Canadian common law are not well defined, nor is there clear appellate guidance as to the availability or unavailability of the doctrine of de minimis in Ontario. Moreover, O'Donnell J. had also noted that the de minimis defence when applicable could immunize a defendant from legal culpability. In addition, Justice O'Donnell pointed out that while such a doctrine will necessarily be of narrow ambit, it would be also appropriate that such a doctrine be recognized as a legitimate means of permitting a criminal court to properly overlook a deviation that was a mere trifle that would weigh little or nothing on the public interest. However, Justice O'Donnell also suggested that the availability of absolute and conditional discharges had changed the criminal law landscape so that there would no longer be a need for the concept of de minimis in criminal law, although he recognized that such suggestion would inevitably blur the line between culpability and penalty:
… Mr. Marshall suggests, however, that the concept of de minimus non curat lex, or "the law does not concern itself with trifling matters", applies here and that the degree of force used was so minor as not to make out an offence.
Despite its long roots in the common law, the de minimus doctrine's availability and scope in Canadian common law are not well defined. In R. v. Hinchey, [1996] 3 S.C.R. 1128, at paragraph 69, L'Heureux-Dube, J., noted of the de minimus principle: "I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below." In R. v. Murdock, [2003] O.J. No. 2470, at paragraph 29, Doherty, J.A., writing for the Court of Appeal for Ontario, described the principle as follows: "The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest."
The following year, in R. v. Kubassek, [2004] O.J. No. 3483, Catzman, J.A. again had occasion to comment on the uncertain state of the de minimus defence in Canadian criminal law. In the result, the Kubassek court determined that, assuming for the purposes of the appeal that de minimus was an available principle for a defendant in a criminal case, Ms. Kubassek's act, of pushing a minister in the midst of a religious service, causing him to fall backwards and almost trip over a pew, did not fit the standard of triviality historically required. In the course of his reasons, Catzman, J.A. makes the following comments:
The principle de minimis non curat lex is of considerable antiquity. The first record of the principle in the law reports is found in Taverner v. Dominum Cromwell (1594), 78 E.R. 601. Over two centuries later, the meaning of the expression was amplified in a case involving the seizure of a British ship for breach of British revenue laws by exporting logwood from Jamaica to the United States, which prohibited its importation: The Reward (1818), 2 Dods. 265, 165 E.R. 1482. In rejecting an invitation by the owners of the ship to reverse its condemnation because of the relative insignificance of the amount of logwood in issue, Sir Walter Scott (later Lord Stowell) said, at 269-270 Dods., 1484 E.R.:
The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.
It might well be argued that the widespread availability of criminal diversion programmes greatly reduces any need for such a principle, although it is doubtful that the existence of a discretionary programme could ever be a complete answer to the question of whether a principle immunizing a defendant from legal culpability does or does not exist. It might also be argued that the availability of absolute and conditional discharges has changed the criminal law landscape such that there is no need for a concept of de minimus in criminal law, although that argument would blur the line between culpability and penalty. For the time being, however, there is no clear appellate guidance as to the availability or unavailability of the doctrine of de minimus in Ontario. It seems to me, that while such a doctrine will necessarily be of narrow ambit, it is appropriate that such a doctrine be recognized as a legitimate means of permitting a criminal court, in the words of The Reward, supra, properly to overlook a deviation that was a mere trifle that would weigh little or nothing on the public interest. The criminal law is a blunt instrument and it is consistent with the good repute of the administration of justice that the courts reserve to themselves the right, in appropriate cases, to safeguard a defendant from a criminal finding where the conduct, although technically criminal, is so trifling as to raise no abiding concern. I should also say that I am reinforced in my conclusion that the de minimus principle does exist in Canadian criminal law by my review of the judgment of Duncan, J. in R. v. Juneja 2009 ONCJ 572, in which he not only provides a helpful review of the lower court decisions on the principle (as well as one oblique appellate reference to its existence), but also outlines a philosophy in relation to the reasons for the doctrine to exist that has much to commend it.
[54] And, in R. v. Juneja, 2009 ONCJ 572, at paras. 11 to 16, Duncan J. pointed out that there have been no cases rejecting the legal availability of de minimus in appropriate circumstances; but instead confirmed the authority is unanimous, though not substantial, in favour of the doctrine. Duncan J. also emphasized that the de minimus doctrine is important to the criminal law in relieving against overly broad criminal offences that ensnare trivial or unintended violations; to preserving dignity and respect for the administration of justice by not trivializing the important work of the courts; and to ensure that scarce time and resources are not wasted:
The de minimus doctrine has never been authoritatively adopted - or rejected - as being applicable in Canadian criminal law. A number of trial courts have applied it in assault and drug cases but to date there has been no decision from the Supreme Court of Canada or any provincial Court of Appeal bearing directly on the issue: see discussion in Stuart: Canadian Criminal Law (4th Ed) p. 594-599 and cases cited therein.
One case not cited by Stuart is R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.) where the Court entered an acquittal on a charge of assault bodily harm because the defendant's actions were found to be "reflexive" (and therefore not intentional) but also because:
"In any event, the encounter was a trifling one and we have come to the conclusion that the appeal ought to be allowed and the finding of guilt set aside..."
While this is admittedly rather oblique authority, in my view it provides some appellate support for the availability of the defence.
To my knowledge there have been no cases rejecting the legal availability of de minimus in appropriate circumstances. Authority is therefore unanimous, though not substantial, in favour of the doctrine and accordingly, I am prepared to apply it on the facts of this case.
The de minimus doctrine is important to the criminal law for a number of reasons - to relieve against overly broad criminal offences that ensnare trivial or unintended violations: see R. v. Hinchey (1996), 111 C.C.C. (3d) 353 (S.C.C.) at P. 380-81; to preserve dignity and respect for the administration of justice by not trivializing the important work of the courts; to ensure that scarce time and resources are not wasted.
On this latter point it is unconscionable that almost two days was devoted or about to be on devoted to the trial of this complaint while other defendants languish for months in custody or much longer out of custody awaiting trial in this infamously under-resourced jurisdiction that constantly teeters on the brink of another Askov meltdown, [1990] 2 S.C.R. 1199.
(2) The De Minimis Defence And Regulatory Offences In Ontario
[55] The de minimis defence, as elaborated upon by Arbour J. in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), is a common law defence. Ergo, as a common law defence it would be available as a defence for an accused person charged with committing a regulatory offence in Ontario by virtue of s. 80 of the Provincial Offences Act, R.S.O. 1990, c. P.33, which is the legislation that governs the procedure for the prosecution of regulatory or provincial offences in Ontario, and which preserves the application of common law defences to provincial offences, except in so far as they are altered by or inconsistent with the Provincial Offences Act or any other Act:
80 Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act.
[56] Moreover, on the question of whether the de minimis non curat lex principle should apply to a regulatory offence in Ontario, the de minimis defence had been raised in a regulatory offence case arising in Ontario that had been appealed to the Supreme Court of Canada. However, in that case of Ontario v. Canadian Pacific Ltd., the accused had challenged the constitutionality of the legislation for vagueness. In considering whether the legislation had been unconstitutional for being overly vague, Gonthier J. writing for the majority of the court at para. 65 of that case, had only applied or referred to the legal maxim of de minimis non curat lex as a tool to aid in interpreting the meaning of the legislation at issue, instead of applying the de minimis principle directly to any impugned trivial breach of a provision of the governing statute as a means to immunize the accused person from legal culpability. Furthermore, Gonthier J. explained that the de minimis principle is also closely related to the absurdity principle which is also another interpretive tool that allows for the narrowing of the scope of the statutory provision, given that the legislature is presumed in law not to have intended to attach penal consequences to trivial or minimal violations of a provision. As such, Gonthier J. concluded that for the particular legislative provision at issue, it did not attach penal consequences to trivial or minimal impairments of the natural environment nor to the impairment of a use of the natural environment which is merely conceivable or imaginable:
Second, interpreting the concept of "use" in s. 13(1)(a) in a restrictive manner is supported not only by its place in the legislative scheme, but also by the principle that a statute should be interpreted to avoid absurd results. Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), observes at pp. 383-84 that consideration of the consequences of competing interpretations will assist the courts in determining the actual meaning intended by the legislature. Since it may be presumed that the legislature does not intend unjust or inequitable results to flow from its enactments, judicial interpretations should be adopted which avoid such results. One method of avoiding absurdity is through the strict interpretation of general words (at p. 330). Driedger on the Construction of Statutes (3rd ed. 1994) states the relationship between the absurdity principle and strict interpretation as follows, at p. 94: "Absurdity is often relied on to justify giving a restricted application to a provision". Where a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature. In particular, because the legislature is presumed not to have intended to attach penal consequences to trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision. In this respect, the absurdity principle is closely related to the maxim, de minimis non curat lex (the law does not concern itself with trifles). The rationale of this doctrine was explained by Sir William Scott in the case of The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482, at pp. 269-70 and p. 1484:
The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. -- Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.
The absurdity, strict interpretation and de minimis principles assist in narrowing the scope of the expression "for any use that can be made of [the natural environment]", and determining the area of risk created by s. 13(1)(a) EPA. Where an accused has released a substance into the natural environment, the legal debate must focus on whether an actual or likely "use" of the "natural environment" has been "impaired" by the release of a "contaminant". This legal debate is clearly facilitated by the application of generally accepted interpretive principles. In particular, these principles demonstrate that s. 13(1)(a) does not attach penal consequences to trivial or minimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivable or imaginable. A degree of significance, consistent with the objective of environmental protection, must be found in relation to both the impairment, and the use which is impaired.
[57] Notably, the de minimis defence had been accepted and applied to a regulatory offence in Ontario, as early as the 1980s, in R. v. Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.), which was a case involving a parking ticket laid under a City of Sault Ste. Marie bylaw. In that case, Vannini J. had held, at paras. 15 to 30, that even though there was no case at that time in Ontario in which the legal maxim of de minimis non curat lex had been mentioned, considered or applied, he nonetheless held that the legal maxim is part of the common law of Ontario and that it applies to both civil causes of action and to offences created by provincial statute, as well as to offences created by a municipal by-law. Furthermore, Vannini J. concluded that the legal maxim is applicable to any provincial offence, which by virtue of s. 1(e) of the Provincial Offences Act, 1979, S.O. 1979, c. 4, includes an offence "under a regulation or by-law made under the authority of an Act of the Legislature". As a result, Vannini J. held that the maxim is applicable to a criminal or provincial offence or to an offence under a municipal by-law notwithstanding that the offence, such as the one under the by-law in question, is an offence of absolute liability in respect of which the accused person cannot exculpate themselves by showing that they were free of fault:
Although the Justice of the Peace did not expressly make any reference to it, the issue on this appeal is whether, on the maxim "de minimis non curat lex" (translated - "the law does not concern itself with trifles") the Justice of the Peace had jurisdiction to dismiss the information having regard to the purpose of the by-law and all the circumstances of the case notwithstanding that all elements of the offence charged had been proved.
The maxim first appeared in the law reports in Taverner v. Cromwell (1594), Cro. Eliz. 353, 78 E.R. 601. The rationale and operation of the doctrine expressed by the maxim was explained rather succinctly some 225 years later by Sir Walter Scott (afterwards Lord Stowell) in the case of The Reward (1818), 2 Dods. 265 at pp. 269-70, 165 E.R. 1482 at 1484:
"The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. - Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked."
This was quoted with approval and extended to the criminal law and applied in R. v. Peleshaty; R. v. Ling (1954); R. v. Overvold; R. v. Stimson where the Court held at p. 193 that "the application of the maxim appears to be totally discretionary".
And while it has been said that the maxim has been "honoured as much for its breach as in its observation" the maxim was recognized in R. v. McBurney; R. v. Babiac and in Would v. Herrington.
Of the maxim, Mewett and Manning, supra, said at pp. 317-318:
"The maxim de minimis non curat lex (the law does not concern itself with trifles) has its origins in common law and, as was stated by de Weerdt, J.M.C. in Overvold ... "has an ancient and colourful history in our jurisprudence, being honoured as much in its breach, it seems, as in its observance ...". The defence has arisen within the context of both civil and criminal actions and most recently has arisen in criminal prosecutions involving the possession of drugs where the judiciary has played a role in developing the limits of liability on those who possess minute traces of drugs in question. The rationale behind the doctrine is to allow the courts to relieve persons who have "technically" breached a statute from liability under that statute. Where there are irregularities of a very slight consequence and the judicial policy has been that the statute did not intend that the infliction of penalty should be inflexibly severe and, further, if the deviation were a mere trifle, the doctrine allows the court to overlook a technical breach of the statute."
Although I have not been referred to and my research has failed to disclose any case in Ontario in which the maxim was even mentioned, let alone considered or applied, I do hold that the maxim is part of the common law of Ontario and applies to both civil causes of action and to offences created by provincial statute as well as to offences created by a municipal by-law.
In this regard, s. 80 of the Provincial Offences Act, 1979 (Ont.) c. 4 provides:
"Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act."
The maxim is therefore applicable to any provincial offence which by s. 1(e) of the Act includes an offence "under a regulation or by-law made under the authority of an Act of the Legislature".
I do further hold that the maxim is applicable to a criminal or provincial offence or to an offence under a municipal by-law notwithstanding that the offence, such as the one under the by-law in question, is an offence of absolute liability in respect of which the defendant cannot exculpate himself by showing that he was free of fault; R. v. City of Sault Ste. Marie; R. v. Hickey (1976).
A conviction of the accused would serve no purpose. Having regard to the absence of snow and that the prohibition was to expire in 8 days, a conviction would not in any way further the intention and purpose of council to facilitate snow removal or act as a general deterrent to other motorists or as an individual deterrent to the respondent against breaching the by-law for the remainder of the period of seasonal prohibition. Instead, it would indeed be "artificial and divorced from reality" and "an absurdity" and bring the administration of justice into ridicule and contempt as well as the police notwithstanding the minimal monetary punishment to which he was liable, although a refusal to pay the fine as a matter of principle might result in his going to jail.
[58] However, 27 years after R. v. Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.), had been decided, Platana J. in R. v. Williams Operating Corp., [2008] O.J. No. 3736 (S.C.J.O.), made a controversial ruling about the non-applicability of the de minimis non curat lex principle to public welfare or strict liability offences. After reviewing R. v. Sault Ste. Marie, R. v. Goodman, 2005 BCPC 83, and R. v. Croft, 2003 NSCA 109, Platana J. accepted the Crown's arguments and concluded that the de minimis defence did not apply at all to public welfare or strict liability offences. In that case, regulatory charges had been laid under the Fisheries Act and the Metal Mining Effluent Regulations. In reaching his conclusion that the de minimis principle does not ultimately apply to public welfare offences or strict liability offences, Platana J., at paras. 44 to 47 and 86 of R. v. Williams Operating Corp., had based his reasoning on the principles expressed in those three cases and on the reasoning that strict liability offences only permit the defences of reasonable mistake of fact or due diligence. In other words, an accused would not be convicted of committing a strict liability offence if they could establish on a balance of probabilities one of the two branches of the due diligence defence, that either the accused had taken all reasonable care in the circumstances to avoid the event or that the accused had a mistaken belief of fact, if true, would render the act or omission innocent:
The Appellant submits that the trial judge erred in his application of the law as to strict liability offences. Despite concluding that there was "no evidence that any of the substances... which were discharged in to Moose Lake on December 30th, 2002, degraded, altered or formed part of a process of degradation or alteration of the quality of the water," the trial judge went on to apply the maxim de minimus non curat lox. He stated that
"based upon the evidence of Dr. Wren and the study conducted in the lake in England namely, Slapton Ley, I am of the view that with regard to counts 1, 2, 3, 5 and 7 any affect [sic] the concentration of any of the deposits which occurred would have had no or at the very worst only a very trifling affect on fish and so the ancient principle of de minimus non curat lex applies, or in English, the law cares not nor concerns itself with trifling matters (para. 39)."
The Appellant refers to the decision in: R. v. Sault Ste. Marie to submit that such an approach is inappropriate in the context of public welfare - or strict liability - offences, where the only defences are reasonable mistake of fact or due diligence.
Counsel submits that the application of de minimus non curat lex was rejected in R. v. Goodman, 2005 BCPC 83. Goodman also involved an offence under the Fisheries Act, and the Court stated that the principle of de minimus non curat lex does not apply and that it was not for the court to determine whether this prosecution was in the public interest.
Similarly, in R. v. Croft (2003), 2003 NSCA 109, 218 N.S.R. (2d) 184 (N.A.C.A.), the finding of Nova Scotia Supreme Court Justice MacAdam that the maxim has no application with respect to matters involving the fisheries was upheld:
"[n]either do we see any error on the part of the SCAC judge in affirming the trial judge's finding that the legal maxim de minimus non curat lex had not application to the circumstances of this case. We share that opinion. This is, as we have said, a strict liability offence. Moreover, it is one where compliance is measured in millimetres. Parliament has decided where it chooses to draw the line. In this sense it is much the same as imposing a limit of 80 mg of alcohol in 100 ml of blood in the Criminal Code provisions prohibiting the operation of a motor vehicle, vessel, aircraft or railway equipment while impaired. There is no tolerance or margin extended for "almost" or "close" compliance. The public interest in protecting our commercial fishery is hardly a trifling matter. The maxim has no application here (para. 15)."
The trial judge used the maxim of de minimis non curat lex to determine that the quantities of the substances deposited were so insignificant as not to constitute an offence. I accept the Appellant's argument that based on the principles in R. v. Sault Ste. Marie, R. v. Goodman and R. v. Croft, de minimis does not apply to public welfare offences or strict liability offences.
[59] In R. v. Goodman, 2005 BCPC 83, the case relied on by Platana J. in R. v. Williams Operating Corp., several persons in Goodman had been charged for depositing or permitting the deposit of deleterious substances in water frequented by fish under the federal Fisheries Act. In convicting the accused persons, even though the quantity of the deleterious substances and the extent of the disruption to the fish habitat and its actual impact from the deleterious substances, if any, had been unclear, Challenger J. nonetheless had reasoned, at paras. 31 and 32, that the principle of de minimis non curat lex did not apply to that particular regulatory offence which had been one of strict liability. Moreover, Challenger J. held that the Crown needed to only prove some disruption occurred to the fish habitat and that some deleterious substance had been deposited. In addition, Challenger J. had also noted that it was not for the court to determine whether this particular prosecution had been in the public interest (although such public interest determination had been made by the High Court of Admiralty of England in The Reward (1818), 2 Dodson's R. 265, which is the seminal case on the application of the de minimis non curat lex maxim):
This is a strict liability offence. A defence of due diligence was not advanced. I am satisfied the principle of de minimus non curat lex does not apply. The Crown need only prove some disruption occurred to fish habitat and that some deleterious substance was deposited (see R. v. High [2003] B.C.J. No. 385 and R. v. Heinrich [1995] B.C.J. No. 2546). Furthermore, I accept that "harmful" modifies only "alteration" in the interpretation of the relevant legislation.
It is not for this court to determine whether this prosecution was in the public interest. It is not for this court to find that dredging, both large-scale and small, occurs regularly, and therefore, prosecution of these accused for these offences is unfair. No abuse of process application was brought. It is not for this court to make findings with respect to the interplay between the requirements of the Fraser River Port Authority and the Department of Fisheries and Oceans, or even the Fraser River Estuary Management Program. It is not for this court to make findings that it would not be economically feasible for tenants to meet both the requirements under their lease with the Fraser River Port Authority and the requirements of the Department of Fisheries and Oceans. The Catch-22 the tenants may find themselves in requires a political solution. Neither can this court take into account the fact that the forces of nature regularly disrupt the substrate and cause re-suspension of sediments. The Act is concerned only with regulating the activities of humans.
[60] Furthermore, in R. v. Croft, 2003 NSCA 109, the other case relied on by Platana J. in R. v. Williams Operating Corp., the appellant in Croft had argued in the alternative at trial that no criminal liability ought to attach to his conduct on account of the legal maxim of de minimis non curat lex. For consideration of the de minimis defence, both the trial judge and the summary conviction appeal judge had held that it did not apply in that particular case. And, on appeal to the Nova Scotia Court of Appeal, the Court of Appeal had affirmed the trial judge's finding that the legal maxim de minimis non curat lex had no application to the circumstances of that case because the legislation had been one where compliance is measured in millimetres and because Parliament had decided in the legislation where it had chosen to draw the line on what was acceptable and what was not acceptable. In other words, the Nova Scotia Court of Appeal had reasoned that the de minimis defence did not apply to that particular regulatory offence because the charging provision in that case had not been a generally-worded prohibition, but one that had set out a specific numerical value in which an offence would be committed if the matter fell within or out of that particular numerical limit. Moreover, the Nova Scotia Court of Appeal indicated that the legislation in question had been analogous and similar to the circumstances of drinking and then driving a motor vehicle where Parliament had imposed a limit of 80 mg. of alcohol in 100 ml. of blood in the Criminal Code, as the line in which the operation of a motor vehicle, vessel, aircraft or railway equipment would be prohibited and that the legislation did not allow for tolerance or that the margin be extended for "almost" or "close" compliance:
Neither do we see any error on the part of the SCAC judge in affirming the trial judge's finding that the legal maxim de minimis non curat lex had no application to the circumstances of this case. We share that opinion. This is, as we have said, a strict liability offence. Moreover, it is one where compliance is measured in millimetres. Parliament has decided where it chooses to draw the line. In this sense it is much the same as imposing a limit of 80 mg of alcohol in 100 ml of blood in the Criminal Code provisions prohibiting the operation of a motor vehicle, vessel, aircraft or railway equipment while impaired. There is no tolerance or margin extended for "almost" or "close" compliance. The public interest in protecting our commercial fishery is hardly a trifling matter. The maxim has no application here.
[61] And, despite Platana's holding in R. v. Williams Operating Corp. that the legal maxim of de minimis non curat lex does not apply to public welfare or strict liability offences, the de minimis defence was nevertheless considered subsequently in the regulatory offence case of R. v. Superior Custom Trailers Ltd., [2009] O.J. No. 6104 (O.C.J.). Valente J. in that case had thoroughly reviewed the relevant cases that had mentioned the use of or the applicability of the de minimis principle, but did not refer to the R. v. Williams Operating Corp. case that would have been adjudged less than a year earlier. Moreover, Valente J. did acknowledge, at paras. 34 to 53 in R. v. Superior Custom Trailers Ltd., that in respect to a regulatory charge laid under the Ontario's Environmental Protection Act, the question of whether the maxim rises to the level of a recognized defence had been a matter of considerable debate in Canada. However, for the circumstances of that case, Valente J. did not find it necessary to determine, in the context of the appeal, whether or not the de minimis non curat lex principle operates as a defence to a regulatory offence prosecution. Despite the ruling in R. v. Williams Operating Corp., Valente J. in R. v. Superior Custom Trailers Ltd. did accept that the de minimis defence would apply to regulatory offences, and followed Vannini J.'s recognition and application in R. v. Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.), of the de minimis maxim as a common law defence that is within the sole discretion of the trial judge and that it would be available as a defence for provincial offences by virtue of s. 80 of the Provincial Offences Act, R.S.O. 1990, c. P.33. But more importantly, Valente J. noted that if the common law defence of de minimis non curat lex is to apply to a regulatory offence, then it must be offence specific and that the conduct must fall within the words of the "offence description", but that if the conduct in question is too trivial or trifling to fall within the range of wrongs which the description had been designed to cover, then the impugned conduct would be merely a "technical" commission of the actus reus. Moreover, on the issue of whether the principle of de minimis non curat lex is restricted in its application to only sentencing, Valente J. held that nothing in any of the decisions of the Ontario Court of Appeal or the Supreme Court of Canada had restricted the de minimis principle to that extent:
Whether the maxim de minimis non curat lex rises to the level of a recognized defence in law has been a matter of considerable debate in this country.
Academics have defined the defence of de minimis non curat lex in the following terms:
The legal maxim de minimis non curat lex means that the court may properly overlook the breaking of the law by irregularities of very slight consequence or by trifling deviation which, if continued in practice, would weigh little or nothing on the public interest. The law does not concern itself with trifles.
The maxim was recognized as a common law defence within the sole discretion of the trial judge (made available to Provincial Offences by virtue of s. 80 of the Provincial Offences Act, R.S.O. 1990, c. P.33) by Vannini J., R. v. Webster in the following terms:
Although I have not been referred to and my research has failed to disclose any case in Ontario in which the maxim was even mentioned, let alone considered or applied, I do hold that the maxim is part of the common law of Ontario and applies to both civil causes of action and to offences created by provincial statute as well as to offences created by a municipal by-law.
The maxim is therefore applicable to any provincial offence which by s. 1(e) of the Act includes an offence "under a regulation or by-law made under the authority of an Act of the Legislature".
In other instances, the principle of de minimis non curat lex was specifically held to have no application to the criminal law. As was recognized in the Ontario Court of Appeal decision of R. v. Kubassek:
The principle de minimis non curat lex is of considerable antiquity. The first record of the principle in the law reports is found in Taverner v. Dominum Cromwell (1594), 78 E.R. 601. Over two centuries later, the meaning of the expression was amplified in a case involving the seizure of a British ship for breach of British revenue laws by exporting logwood from Jamaica to the United States, which prohibited its importation: The Reward (1818), 2 Dods. 265, 165 E.R. 1482. In rejecting an invitation by the owners of the ship to reverse its condemnation because of the relative insignificance of the amount of logwood in issue; Sir Walter Scott (later Lord Stowell) said, at 269-270 Dods., 1484 E.R.:
The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim, de minimis non curat lex. Where there are irregularities of vent slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.
The principle de minimis non curat lex may very well be one of considerable antiquity, but whether or not it rises to the level of a recognized common law defence preserved by either s. 8(3) of the Criminal Code of Canada or by s. 80 of the Provincial Offences Act, R.S.O. 1990, c. P.33, has been a matter of considerable debate in this country.
Counsel for the appellant seizes upon the phrase:
"... where there are irregularities of a very slight consequence..."
[Emphasis added]
and constructs a rather interesting argument to the effect that regardless of the offence before the Court, it is the "consequence", the "actual harm" or the "potential for harm" that is determinative of the issue as to whether or not the common law defence of de minimis non curat lex is available. As such, in the context of the present case, the appellant argues that as it had never been established that there had been any "potential for harm" occasioned to anyone as a result of the appellant's admitted and continuous breach (for a number of years) of the relevant condition of the Certificate of Approval in question, then at best, the appellant's breach could only be described as a continuing "irregularity of a very slight consequence" such that the common law defence of de minimis non curat lex would be available.
In this Court's respectful view, the appellant's argument must fail for a number of reasons. Firstly, a careful review of the trial record does not support the Appellant's submission that there was no potential for harm or no potential for an "adverse effect" as a result of the Appellant's operation in contravention of condition 2 of the Certificate of Approval in question. At its highest, the trial evidence was that there were no actual "adverse impacts" or "environmental impacts" from the dust emissions as a result of those operations. I took this evidence to mean that there was no evidence of an actual "adverse effect" as a result of the appellant's admitted and continuous breach of the relevant condition of the Certificate of Approval in question.
If the appellant meant to argue that there was no potential for an "adverse effect" as a result of its abrasive blasting operations [w]ithin the shot blast hut in question and that therefore, its continuous breach of condition 2 of the Certificate of Approval could at best, be described as a continuing "irregularity of a very slight consequence" such that the common law defence of de minim is non curat lex would be available, then in my view the argument must fail as an improper collateral attack on the Certificate of Approval. If whatever was being emitted from the appellant's shot blast hut had no potential for an "adverse effect" as that phrase is defined in the Environmental Protection Act, then clearly those emissions could not have been "contaminants" within the meaning of the said Act. If that is the case, then a Certificate of Approval would not have been required under s. 9(1) of the Act. Effectively, the appellant's argument would amount to an improper collateral attack on the Certificate of Approval considering the purpose of the Environmental Protection Act and the procedural Mechanisms available for appeals under the Act.
Furthermore, Gonthier J.'s reasons in the CPR case referred to above could hardly be taken as a clear recognition of the common law defence of de minimis non curat lex. A careful reading of those reasons makes it clear in my view, that he was addressing the issue as to whether or not s. 13(1)(a) of the Environmental Protection Act (as it then existed) was so vague as to infringe s. 7 of the Canadian Charter of Rights and Freedoms. It was in the context of that issue that Gonthier J. observed that the "absurdity principle" of statutory interpretation was closely related to the maxim of de minimis non curat lex. In my view, Gonthier J. did not go so far as to formally recognize de minimis non curat lex as a defence. That this is so, is made clear in the subsequent Supreme Court of Canada decision of R v. Hinchey. In Hinchey, L'Heureux-Dubé speaking for the majority of the Court (which included Gonthier J.) stated:
... If Parliament chooses to criminalize conduct which, notwithstanding Charter scrutiny, appears to be outside of what a judge considers "criminal", there must be a sense of deference to the legislated authority which has specifically written in these elements. In my view, what Doherty J.A. actually recognized when he stated that the judiciary should not declare innocent conduct criminal is a principle of statutory construction which decrees that Parliament does not intend through the criminal law to trap trivial, non-criminal conduct. As Gonthier J. expressed in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, at p. 1082:
Where a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature. In particular, because the legislature is presumed not to have intended to attach penal consequences to trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision.
(Emphasis added)
Although L'Heureux-Dubé J. subsequently acknowledged the possibility that the de minimis non curat lex principle might operate as a defence to criminal responsibility, she specifically chose to leave the question open. At paragraph 69 of the Hinchey decision, she wrote in obiter:
... Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where an accused has "technically" violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.
(Emphasis added)
In 2004, the Supreme Court of Canada upheld the constitutionality of s. 43 of the Criminal Code of Canada in its decision of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76. In one of three dissenting reasons, Arbour J. expressed the view that de minimis non curat lex did in fact exist as a valid common law defence. …
Although Arbour J. clearly recognised the common law defence of de minimis non curat lex in her dissenting reasons in the Canadian Foundation case, all that McLaughlin C.J.C., speaking for the majority would say on the subject, was:
… As for the defence of de minimis, it is equally or more vague and difficult in application than the reasonableness defence offered by s. 43.
Admittedly, the Hinchey and Canadian Foundation cases both dealt with Criminal Code offences rather than with Provincial Offences, however, given that the statutory provision which preserves common law defences in respect of Provincial Offences (s. 80 of the Provincial Offences Act) is in all material respects identical to that which preserves the common law defences in respect of offences under the Criminal Code of Canada (s. 8(3) of the Criminal Code), this distinction, in my view, is really of no moment.
If the common law defence of de minimis non curat lex is to apply, it must be offence specific. To use the words of Arbour J., the conduct must merely be a "technical" commission of the actus reus. The conduct must fall within the words of the "offence description" but be too trivial or trifling to fall within the range of wrongs which the description was designed to cover.
In the instant appeal, the Appellant's argument, in my view, loses sight of the actus reus of the offence under s. 186(3) Environmental Protection Act. This offence may be committed without any harm or potential for harm to the environment. Indeed, the offence under s. 186(3) of the Act may be committed without necessarily causing an actual "adverse effect" as that term is defined in the Act.
The actus reus of the offence under s. 186(3) of the Environmental Protection Act is failing to comply with a term or condition of a certificate of approval. In the context of the present case, this involved undertaking abrasive sand blasting within the shot blast hut in question without having the containment curtains at both ends of the hut closed. Environmental harm does not form part of the actus reus of the offence in question and would therefore not fall within the "offence description" under s. 186(3) of the Environmental Protection Act. Consequently, in my view, the degree of environmental harm caused would be irrelevant to the analysis of whether the breach of condition 2 of the certificate of approval in question was de minimis. In my view, the focus in the de minimis analysis in the context of the present case must be on the degree to which condition 2 of the certificate of approval in question was violated.
In speaking of the principle of de minimis non curat lex in the present case, the learned Justice of the Peace stated:
...de minimis really doesn't apply in this case because of the fact that again it goes to sentencing rather than to the actual charge itself.
The Aqua Clean reference at tab 22 [R. v. Aqua Clean Ships Ltd., [1994) B.C.J. No. 1232 (B.C. Prov. Ct.)], again, only applicable at sentencing.
To the extent that the learned Justice of the Peace intended to restrict the application of the principle of de minimis non curat lex to sentencing, respectfully, he fell into error. This Court reads nothing in either the Aqua Clean case or in any of the decisions of the Ontario Court of Appeal or the Supreme Court of Canada referred to above that restricts the de minimis principle to that extent.
In any event, this Court does not find it necessary to determine, in the context of the present appeal, whether or not the de minimis non curat lex principle operates as a defence to a prosecution such as the one before this Court. Assuming, for the purpose of the disposition of this appeal that it does, one could hardly describe the almost continuous breach of condition 2 of the Certificate of Approval in question for a number of years as "trivial" or "trifling". …
(3) Is The Consequential Harm From The Prohibited Act Or Omission Or The Cumulative Effect Of Trivial Contraventions Of A Statutory Provision A Factor To Be Considered In Determining Whether The De Minimis Defence Would Apply To A Specific Regulatory Offence?
[62] Professor Martin Olszynski in his dissertation entitled "Ancient Maxim, Modern Problems: De Minimis, Cumulative Environmental Effects and Risk-Based Regulation", (2015) 40:2 Queen's L.J. 705 – 740, at paras. 6 to 12, had also reiterated that there is still considerable disagreement in the jurisprudence about what role, if any, that the de minimis non curat lex principle should play in environmental law. However, Professor Olszynski did note that recently in R. v. Syncrude Canada Ltd., 2010 ABPC 229, the Alberta court had recognized and held that the de minimis doctrine is applicable as a defence in cases of strict liability. On the other hand, Professor Olszynski also noted that in cases where the application of the de minimis principle had been rejected, some courts, like the Nova Scotia Court of Appeal in R. v. Croft, 2003 NSCA 109, had seized on the "strict liability" nature of environmental offences, presumably alluding to the restricted defences that fall under the umbrella of the due diligence defence that is available for that category of regulatory offence. And for other cases, such as in R. v. Goodman, 2005 BCPC 83, he noted that the courts have expressed concern that the de minimis maxim's use would have stretch the proper role of the judiciary within the separation of powers. Furthermore, Professor Olszynski has taken the opportunity to emphasize that some courts have also expressed concern about the cumulative effects of small or trivial breaches of a regulation, such as when small amounts of deleterious substances have been deposited into rivers or lakes and a claim of de minimis has been brought by accused persons. In regards to whether the cumulative harm or effect of minor breaches can be considered in a de minimis claim, Professor Olszynski pointed to the recent Ontario case of Ontario (Ministry of Natural Resources) v. 819743 Ontario Inc., 2013 ONCJ 128, in which the court there had cited with approval recent commentary that "arguments about de minimis effects ought to be viewed with scepticism", and that the Crown at the sentencing stage "may rely on the analogy of death by a thousand cuts', to illustrate the cumulative nature of environmental damage":
A. Confusion as to Whether the Maxim Applies
The [de minimis] doctrine has been recognized as a defence in cases of strict liability. For example: R. v. St. Paul (Town), R. v. Starosielski, R. v. G.(T.). Other cases suggest that the doctrine should not apply in a regulatory context. ... For example: R. v. Petro-Canada.
It is clear that another discussion of de minimis' applicability is necessary when one considers any one of a number of recent regulatory prosecutions in Canada. The above-quoted passage is from R v Syncrude Canada Ltd, the relatively high-profile case wherein one of Canada's pioneer oil sands companies raised de minimis as a defence to charges under the Migratory Birds Convention Act, 1994 (MBCA) for the death of approximately 1,600 birds after they landed in one of its tailings ponds.
Confusion over the maxim's application is on full display in the Ontario Superior Court's decision in R v Williams Operating Corp. The accused mining company was charged with several offences under the federal Fisheries Act and the associated Metal Mining Effluent Regulations (MMER) after one of its sedimentation ponds overflowed, allowing approximately 3,000 gallons of mine and storm water to escape into Moose Lake, a fish-bearing lake in northwestern Ontario. Water samples taken from the sedimentation pond on the day of the spill indicated that although the water's pH was above the permissible limit, levels of cyanide, copper, arsenic and total suspended solids were below authorized limits. At trial, Clarke J invoked de minimis to dismiss the charges related to the unlawful deposit of deleterious substances into waters frequented by fish, stating: "I am of the view that. any effect the concentration of any of the deposits which occurred would have had no or at the very worst only a very trifling effect on fish and so the ancient principle of de minimis non curat lex applies".
On appeal to the Superior Court, the Crown argued that the MMER explicitly deemed cyanide, copper, arsenic and total suspended solids to be deleterious at any concentration, such that the application of the maxim was inappropriate. In making this argument, the Crown relied on the Nova Scotia Court of Appeal's decision in R v Croft where the accused was charged with unlawful possession of undersized lobsters, contrary to subsection 57(2) of the Atlantic Fishery Regulation, 1985. The Nova Scotia Court of Appeal held that the maxim had no application in the circumstances of that case:
This is, as we have said, a strict liability offence. Moreover, it is one where compliance is measured in millimetres. Parliament has decided where it chooses to draw the line. In this sense it is much the same as imposing a limit of 80 mg of alcohol in 100 ml of blood in the Criminal Code provisions prohibiting the operation of a motor vehicle, vessel, aircraft or railway equipment while impaired. There is no tolerance or margin extended for "almost" or "close" compliance. The public interest in protecting our commercial fishery is hardly a tri-fling matter. The maxim has no application here.
The Crown also relied on R v Goodman, another prosecution under the Fisheries Act, where, in dismissing the defendant's de minimis argument, the Court held that it is not its role "to determine whether [the] prosecution was in the public interest. It is not for this court to find that dredging, both large-scale and small, occurs regularly, and therefore, prosecution of these accused for these offences is unfair."
Accepting these authorities, the Court in Williams Operating declared broadly that "de minimis does not apply to public welfare offences or strict liability offences", a holding that was subsequently followed in R v Petro-Canada (one of the cases cited in R v Syncrude).
However, this holding was explicitly rejected and the maxim was applied in R v UBA Inc. In this case, the accused was charged with discharging, or permitting the discharge of, a contaminant--caustic soda--into the natural environment that caused, or was likely to cause, an adverse effect, contrary to subsection 14(1) of Ontario's Environmental Protection Act (EPA). This is the same prohibition that was at issue in Ontario v Canadian Pacific Ltd, a two-decade-old Supreme Court of Canada decision wherein the Court relied on the de minimis maxim as an aid in statutory interpretation to narrow the scope of what the defence argued was an unconstitutionally vague provision. In UBA, Woodworth JP distinguished Williams Operating by noting that the Court there
mentioned the case of [Canadian Pacific] but appears neither to have distinguished, analyzed or discussed that case in relation to the principle of de minimis. This court can only conclude that the decision of the Superior Court in the [Williams Operating] case is limited to the factual situation of that particular case which involved a charge under the Fisheries Act with a significantly different wording than the charge before this court and that the Canadian Pacific case being a decision of the Supreme Court of Canada remains the binding authority particularly in respect of Section 14.
Finally, in another recent Ontario case, Ontario (Ministry of Natural Resources) v 819743 Ontario Inc, the Court cited with approval recent commentary that "arguments about de minimis effects ought to be viewed with scepticism", and that the Crown--here at the sentencing stage--"may rely on the analogy of death by a thousand cuts', to illustrate the cumulative nature of environmental damage".
This brief survey demonstrates that there is currently considerable disagreement in the jurisprudence about what role--if any--de minimis should play in environmental law. In rejecting its application, some courts, like the court in Croft, have seized on the "strict liability" nature of environmental offences, presumably alluding to the restricted defences available in this context. Others, exemplified by Goodman, have expressed concern that the maxim's use stretches the proper role of the judiciary within the separation of powers. Courts have also expressed concern about cumulative effects. …
[63] In addition, at paras. 13 to 15 of Professor Olszynski's thesis, he suggests that some of the confusion in the case law could be resolved by recognizing that the de minimis maxim plays two separate and distinct roles. For the first role, he states the de minimis principle serves as an aid in statutory interpretation, as had been first championed by Gonthier J. in Ontario v Canadian Pacific Ltd.. And for the second, it plays a role as a defence. However, he states that the two roles are mutually exclusive. With respect to its role in the statutory interpretation context, Professor Olszynski explains that the de minimis principle identifies conduct that is not captured by the relevant statutory provision (i.e., does not meet the actus reus), but where the de minimis principle places the impugned conduct outside the scope of the actus reus, its availability as a defence is rendered redundant. On the other hand, he explains that where the de minimis principle is not applicable as an interpretative aid, its availability, if any, is restricted to the defence stage. Moreover, as an aid in statutory interpretation, Professor Olszynski explains that the de minimis principle is most clearly applicable where a legislature has drafted the relevant provisions in a statute or regulation in general terms, in which de minimis would act alongside other principles of interpretation as a part of the purposive approach to resolving legislative ambiguities. This he states is supported by several commentators who suggested that the maxim's role as an interpretive aid be limited to those instances where the general wording of the prohibition in the legislation "invites an interpretation restricting its scope" and as early as 1978, he indicated that one commentator had observed that the maxim "comes into its own when the legislature has not attempted mathematical precision but has used ordinary language, the application of which involves questions of the little less and the little more". However, Professor Olszynski notes that where the legislature has chosen to "enact detailed provisions", then the application of the de minimis maxim as an interpretive aid is unnecessary, given that the area of risk would be clear. And, in its role as a defence against being punished or convicted for apparent trivial breaches, he explains that the accused would have the burden of persuading the court on a balance of probabilities that the conduct should be considered too trivial to warrant penal consequences, assuming that the defence would be available in the strict liability context. Moreover, as a defence, Professor Olszynski suggests that the de minimis principle would invite the courts to second-guess the executive branch on matters of public interest by deliberately overlooking expressly prohibited conduct:
At least some of the confusion in the case law could be resolved by recognizing the two separate and distinct roles that de minimis has come to play. The first and relatively well-settled role is as an aid in statutory interpretation, which as noted above, is rooted in the Supreme Court's decision in Canadian Pacific. The second and less settled role is as a defence. These two roles are mutually exclusive. The maxim's application in the statutory interpretation context identifies conduct that is not captured by the relevant statutory provision (i.e., does not meet the actus reus). Where the maxim places the impugned conduct outside the scope of the actus reus, its availability as a defence is rendered redundant. Where, however, the maxim is not applicable as an interpretative aid, its availability--if any--is restricted to the defence stage.
The applicability of the maxim as a matter of statutory interpretation in some instances and not others and the current uncertainty as to its availability as a defence would appear sufficient to justify distinguishing between these two roles, but there are additional reasons. As part of the statutory interpretation exercise, de minimis plays an important role not just in the courts but also in the offices of regulator and industry counsel, as these advise their clients on their respective regulatory burdens (e.g., whether a permit should be required or sought for a certain work or undertaking, respectively). Inside the courtroom, the maxim's role in delineating the actus reus of any given offence means that the burden will be on the Crown to prove this element--or rather its absence--beyond a reasonable doubt. In its role as a defence, and assuming it is available in the strict liability context, the accused would have the burden of persuading the court on a balance of probabilities that the conduct should be considered too trivial to warrant penal consequences--the same burden imposed with respect to the reasonable care defences. Finally, as a principle of statutory interpretation, the maxim sits relatively comfortably within the judiciary's conventional role under the separation of powers. As a defence, it invites the courts to second-guess the executive branch on matters of public interest by deliberately overlooking expressly prohibited conduct.
(i) De Minimis in Statutory Interpretation
As an aid in statutory interpretation, the maxim is most clearly applicable where a legislature (with respect to a statute) or its chosen delegate (with respect to subordinate regulations) has drafted the relevant provisions in general terms. Here, de minimis acts alongside other principles of interpretation as a part of the purposive approach to resolving legislative ambiguities.
Subsequently, several commentators suggested that the maxim's role as an interpretive aid be limited to those instances where the general wording of the prohibition in the legislation "invites an interpretation restricting its scope". In fact, this position was articulated well before Canadian Pacific. As early as 1978, one commentator observed that the maxim "comes into its own when the legislature has not attempted mathematical precision but has used ordinary language, the application of which involves questions of the little less and the little more". This observation is particularly appropriate in the environmental law context where, as noted in the Canadian Pacific decision, "mathematical precision" is not always possible nor desirable:
In the context of environmental protection legislation, a strict requirement of drafting precision might well undermine the ability of the legislature to provide for a comprehensive and flexible regime. As the Law Reform Commission suggests, then, generally framed pollution prohibitions are desirable from a public policy perspective. ... In my view, the generality of s. 13(1)(a) ensures flexibility in the law, so that the EPA may respond to a wide range of environmentally harmful scenarios which could not have been foreseen at the time of its enactment.
In the area of environmental protection, legislators have two choices. They may enact detailed provisions which prohibit the release of particular quantities of enumerated substances into the natural environment. Alternatively, they may choose a more general prohibition of "pollution", and rely on the courts to determine whether, in a particular case, the release of a substance into the natural environment is of sufficient magnitude to attract legislative sanction.
This reasoning actually fits well with--and provides a defensible explanation for--most of those cases discussed above where the maxim's application was rejected. In Croft, for example, the accused were charged with possessing undersized lobsters (less than 82 millimetres from carapace to carapace) contrary to subsection 57(2) of the Atlantic Fishery Regulation, 1985, a prohibition whose parameters are plain on its face. Similarly, Williams Operating involved a detailed regulatory scheme that authorized only certain deposits from mining operations and only under specified conditions. Neither of these schemes requires application of the de minimis maxim to assist in carving out the "area of risk".
Where the legislature has chosen to "enact detailed provisions", application of the de minimis maxim as an interpretive aid is unnecessary; the area of risk is clear. Nevertheless, the maxim may still be available in the form of a defence, as it appears to be for certain criminal offences.
[64] Furthermore, Professor Olszynski in his thesis has outlined a two-part de minimis test, which he had derived from the foundational de minimis case of The Reward (1818), 2 Dodson's R. 265 (H.C. of Admiralty of England). To reiterate, Sir William Scott had held in that case "Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked":
… Whatever the quantity, it could not legally be exported to the United States. The law had imposed an absolute prohibition. Something has been said on the policy of the law, and it has been observed, that as some late acts permit the importation of foreign logwood into Jamaica, and its re-exportation thence, the restriction of the export of Jamaica logwood can be no very important object in the contemplation of the legislature; but with such considerations as these, I having nothing to do. This Court is not at liberty to controvert the policy of existing prohibitions. If they are unwise, they are not to be corrected here. If they have become inconvenient by a change in circumstances since their first enactment, application must be made to the legislature to remove that inconvenience. This Court cannot take on itself legislative functions: it must administer the law as it stands; certainly, with such qualifications as the law permits. The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex.-- Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked. In the present case, the exact quantity is not easily ascertained. It has been argued, that it did not amount to more than three tons. Three tons of fraud perhaps would not be what the Court could regard as a mere trifle. I think, on the evidence, the quantity of Jamaica logwood on board was probably greater. A part was certainly foreign, but how much cannot now be determined. Upon the whole, the Court cannot take upon itself to say, that the quantity of the prohibited article was so trifling as to fall properly within the protection of the legal maxim before adverted to. I think it exceeds that amount; but I must look a little further. What is alleged here is, that this is the usual practice of Jamaica. Now, in my mind, this, instead of alleviating the strictness to be exercised, ought to augment it; for, if a practice so abusive prevails generally at that island; if every ship that sails from Jamaica may take three, four, five or six tons of an article, the exportation of which is absolutely prohibited by law, what becomes of the prohibition? …
For the test Professor Olszynski explains, at paras. 43 to 46, that the first part of the maxim asks whether the offence ("the deviation") seems minimal ("a mere trifle"). If it does not appear to be a trivial breach then the inquiry is at an end. But, if the alleged breach does appear to be trivial, then the analysis turns to the potential for the combined or cumulative effects of such deviations ("if continued in practice") to interfere or undermine ("weigh... on") the legislature's objectives in promulgating the relevant regulatory regime ("the public interest"). In addition, Professor Olszynski explains that the goal of this two-step de minimis inquiry is to identify conduct that the regulatory regime may ignore ("might properly be overlooked") while still attaining its legislative objective:
When applying the de minimis principle, courts tend to consider only a single variable, namely the degree to which the impugned conduct deviates from the prescribed standard, often expressed in terms of the amount of environmental harm incurred. In Williams Operating, the trial judge applied the maxim because in his view the deposits at issue would have "no or at the very worst only a very trifling effect on fish". In UBA, the Court applied the maxim because "the only evidence of any adverse effect is so trivial or minimal that it should not attract penal consequences". Similarly, in Castonguay Blasting, the Supreme Court focused on the magnitude of harm from the specific incident in question to determine that it was not trivial: "The force of the blast, and the rocks it produced, were so powerful they caused extensive and significant property damage."
If one considers the de minimis maxim's foundational case, The Reward, however, the test actually involves two related inquiries: "If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked."
Broken down into parts, the first part of the maxim asks whether the offence ("the deviation") seems minimal ("a mere trifle"). If not, the inquiry is at an end. If it does, however, then the analysis turns to the potential for the combined or cumulative effects of such deviations ("if continued in practice") to interfere or undermine ("weigh... on") the legislature's objectives in promulgating the relevant regulatory regime ("the public interest"). The goal is to identify conduct that the regulatory regime may ignore ("might properly be overlooked") while still attaining its objective(s).
Although the reference to continuity arguably pertains to the specific offence before the court (and the potential effect if it were to continue in practice), any ambiguity on this front is resolved by the maxim's actual application in The Reward. In finding the accused guilty of exporting Jamaican logwood, the Court stated:
In the present case, the exact quantity is not easily ascertained. ... Three tons of fraud perhaps would not be what the Court could regard as a mere trifle. ... I think it exceeds that amount; but I must look a little further. What is here alleged is that this is the usual practice of Jamaica. Now, in my mind, this, instead of alleviating the strictness to be exercised, ought to augment it; for, if a practice so abusive prevails generally at that island; if every ship that sails from Jamaica may take three, four, five or six tons of an article, the exportation of which is absolutely prohibited by law, what becomes of the prohibition?... If it be true [that the law is unduly burdensome], this may be a very proper ground for an application to the Legislature to relax the prohibition, but cannot justify the individuals in taking on themselves a breach of the law as their general custom.
Thus, the Court was not satisfied to consider simply the extent of the deviation in the specific offence before it (i.e., the amount of Jamaican logwood illegally exported by the accused). It also considered the potential for such conduct, if allowed to be widespread, to undermine the public interest as expressed in the relevant prohibition.
[65] In addition, in his thesis Professor Olszynski, at paras. 31 to 33, suggests that if the impugned conduct is common, then there would be clearly a potential for cumulative effects and any prima facie finding of triviality will be defeated unless the harm is so miniscule that even cumulatively it can "properly be overlooked". However, he notes there will be instances of unintentional conduct where the potential for cumulative harm remains significant. Ultimately, he rationalizes, that neither the amount of harm, nor the conduct giving rise to it, would be sufficiently on their own reliable metrics for potential cumulative effects. Instead, he proposes that the proper approach would take both the amount of the harm and the conduct into account:
In my view, both the amount of environmental harm and the nature of the conduct are relevant, but at different stages of the analysis. Evidence as to the amount of environmental harm caused can be used to establish prima facie triviality (the first part of the de minimis test), but this information alone is insufficient to reach a conclusion on its potential to "weigh on the public interest" (the second part of the de minimis test). Of course, if widespread, the destruction of ten square metres of fish habitat, or the release of 3,000 gallons of mine water, or the death of 1,500 birds would weigh on the public interest, but simply assuming such widespread harm would render the maxim's availability illusory. What is needed, instead, is some basis for assessing whether such a risk is real. It is here that the conduct giving rise to the offence is relevant, as it sheds light on the actual potential for cumulative harm.
Most obviously, if the conduct is common, then there is clear potential for cumulative effects and any prima facie finding of triviality will be defeated unless the harm is so miniscule that even cumulatively it can "properly be overlooked". At the other end of the spectrum sits conduct that is rare and often unintentional (i.e., accidental). Intention, after all, is not a requisite element for regulatory (strict liability) offences. Here the maxim has the potential to bleed into the defence of due diligence, in that a finding of due diligence suggests that the harm was the result of a fluke or bad luck, and thus any potential for cumulative effects is low. There will, however, be instances of unintentional conduct where the potential for cumulative harm remains significant. Ultimately, neither the amount of harm, nor the conduct giving rise to it, is on their own sufficiently reliable metrics for potential cumulative effects. The proper approach takes both into account.
At this stage of the discussion, it is useful to return to the concepts and principles of modern cumulative effects analysis and risk-based regulation. I am not arguing that cumulative effects analysis, as predominantly practiced in the environmental assessment context, ought now to be incorporated into the de minimis test. As explained above, the maxim's concern for cumulative effects has deep roots. Similarly, the maxim has always been risk oriented. The goal here is simply to provide additional insight into its application before considering whether the approach proposed herein is consistent with the maxim's role in interpreting environmental legislation.
[66] Moreover, at paras. 44 to 46 of his thesis, Professor Olszynski has suggested a framework for deciding whether the de minimis maxim can be applied in the context of offences involving environmental harm when there exists the potential for cumulative harm: First, does the environmental harm seem trivial or minor on its face? If not, the de minimis maxim does not apply. If the harm seems trivial, is the conduct giving rise to such harm of a kind that, if allowed, it could undermine a regulator's objectives through cumulative environmental effects? If the conduct is known to be widespread, or it is reasonably foreseeable that it might be, then the potential for cumulative harm exists and the de minimis maxim does not apply. Alternatively, if the conduct is infrequent or if the harm would be negligible even if it were widespread, then the de minimis maxim applies and the conduct may be properly overlooked. But more important, there is also no reason why Professor Olszynski's framework for determining whether the de minimis maxim is applicable when there is the potential for the cumulative effects of harm from minor breaches of a statutory provision in the environmental context could not be used similarly in other contexts involving the effects of cumulative harm:
The potential for cumulative harm fits comfortably within the rubric of harms "not easily conducive to precise codification", as does its inclusion as part of the de minimis test with legislation whose "intended reach is wide and deep". Quite simply, it is seldom possible to define broadly applicable, ecologically relevant thresholds: "In a perfect world regulatory thresholds would correspond to clear ecological thresholds, but in practice, this is difficult to achieve because ecosystems are highly variable." It is of some significance, then, that where the legislature (or its delegate) has enacted laws or regulations with "mathematical precision", such as the MMER, these are often accompanied with requirements to monitor and report ambient environmental effects as a way of verifying that the applicable limits are in fact protective.
Properly construed in its historical jurisprudential context, the de minimis test directly accounts for--rather than ignores--the potential for cumulative effects. Applied as an aid in the course of statutory interpretation, the result is a practicable and predictable framework for identifying conduct that should, or should not be, subject to a given regulatory regime.
When applying the de minimis maxim, courts, regulators and those subject to regulation should adopt the following steps. First, does the environmental harm seem trivial or minor on its face? If not, the de minimis maxim does not apply. If the harm seems trivial, is the conduct giving rise to such harm of a kind that, if allowed, it could undermine a regulator's objectives through cumulative environmental effects? If the conduct is known to be widespread, or it is reasonably foreseeable that it might be, then the potential for cumulative harm exists and the maxim does not apply. Alternatively, if the conduct is infrequent or if the harm would be negligible even if it were widespread, then the maxim applies and the conduct may be properly overlooked.
(4) For Regulatory Offences, Accused Persons May Utilize Other Defences Besides The Due Diligence Defence
[67] In Drinkwalter and Ewart's tome entitled, Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980), at pp. 267, 269-270, the authors outlined in their commentary that the availability of common law defences for regulatory offences, which had been preserved by s. 80 of the Provincial Offences Act, R.S.O. 1990, c. P.33, would be dependent on the category or type of regulatory offence (i.e., absolute liability, strict liability, or mens rea) that the offence falls into in combination with which of the two categories of defences that would be involved (namely, first those defences that operate when the prosecution is unable to prove the mental element, such as insanity, automatism (unconscious, involuntary actions) and involuntary intoxication and second, those defences which would secure an acquittal even though the prosecution has proven both the physical and mental elements that constitute the offence, such as self-defence, provocation, duress and necessity). In addition, Drinkwalter and Ewart suggest that for absolute liability offences, the defences of necessity, self-defence, and duress would still operate and be available even though the offence is complete once the prosecution proves the actus reus of the offence. And, for strict liability offences, Drinkwalter and Ewart proposed that since there is a mental element component to those type of offences, even though one which the prosecution need not establish, those common law defences which are relevant to proof of a mental element, namely, drunkenness, insanity and automatism, should also be available. However, the authors surmised that the onus would be on the accused person to establish one of those common law defences, instead of just raising a reasonable doubt. On the other hand, Drinkwalter and Ewart note that the second class of generally-available defences, namely necessity, duress, and self-defence, should also be available in theory, but insinuate that these defences may have been subsumed into the two defences outlined in R. v. Sault Ste. Marie (i.e., the defence of due diligence). And, for the mens rea category of regulatory offences, Drinkwalter and Ewart point out that all of the common law defences would be available for this category of regulatory offences, since the prosecution has the onus to prove the accused person had the requisite mental element:
The availability of a common law defence in any particular case turns upon which of the three categories the offence falls into, combined with which of the two categories of defence is involved. …
At common law, there are two main categories of defences. The first are those which operate when the prosecution is unable to prove the mental element. Thus insanity, automatism (unconscious, involuntary actions) and involuntary intoxication go towards showing that the prosecution has not proven that the defendant acted with the requisite mental element of consciousness. Voluntary intoxication also falls into this class of defence, but differs from the others in being relevant only to offences requiring proof of a specific intention.
The second class of defences consists of those which secure an acquittal even though the prosecution has proven both the physical and metal elements which constitute the offence. These defences provide exceptions to liability in circumstances in which the defendant has deliberately committed an illegal act, but nonetheless is entitled to an acquittal. Included in this group of defences are self-defence, provocation, duress and necessity.
The ruling in R. v. Sault Ste. Marie is obviously central to the issue of when the various common law defences are available. When it is combined with the classification of defences, the following results emerge.
If an offence is one of absolute liability, it has no mental element, and therefore defences which rebut the existence of a mental element are unavailable. Accordingly, drunkenness, insanity and automatism need not be considered. However, notwithstanding some of the language used by Dickson J., it would be appear that those defences which operate even though the offence is complete still should be available, and thus necessity, self-defence and duress should be considered. Provocation theoretically falls into this class, but is unavailable since it has application only to charge of murder.
If an offence is one of strict liability, a defendant who has committed the proscribed act can exculpate himself by demonstrating that he:
reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent;
took all reasonable steps to avoid the particular event, or in other words, exercised due diligence; or
did not possess the requisite mental element, if it is implied rather than being expressly incorporated by words such as "knowingly".
Since there is a mental component to those offences, albeit one which the prosecution need not establish, it would seem that those common law defences which are relevant to proof of a mental element – drunkenness, insanity and automatism – should also be available. However, it would seem that the onus would be on the defendant to establish the defence, instead of merely to raise a reasonable doubt. While the second class of generally-available defences – necessity, duress and self-defence – ought also to be available in theory, it would appear that they may have been subsumed into the two defences outlined in R. v. Sault Ste. Marie.
If a provincial offence falls into the true crime category, in the sense of having a mental element which the prosecution must prove, then all of the common law defences will be available. Leaving these few offences aside, the following summary can be given:
Offences of absolute liability: the defendant may be acquitted, notwithstanding that he did the act, if he established on a balance of probabilities that he acted out of necessity, duress or self-defence. However, insanity, automatism and intoxication are not relevant to the proof of guilt.
Offences of strict liability: in the same circumstances, the defendant may be acquitted if he proves, on a balance of probabilities that he had a reasonable belief in a state of facts which, if true, would render his actions innocent, or that he exercised all due diligence, or that he did not act with any implied mental element, or that he acted out of necessity, duress or self-defence, or that he was in a state of insanity, automatism or involuntary drunkenness.
[68] Furthermore, in Libman on Regulatory Offences in Canada (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) (in Update 11 – February 2008), at page 8-2, Justice Libman refers to the author J. Swaigen's comments at p. 72 in the tome, Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell, 1992), in which Swaigen had emphasized that the defence of reasonable care is the "pre-eminent defence" for public welfare offences, but that the majority of other common law defences overlap with the defence of reasonable care and are, as such, "subsumed, for the most part", by it. On the other hand, Justice Libman also noted in his textbook that there are other possible defences to strict liability prosecutions that are related to due diligence, which include necessity, impossibility, mistake of fact, self-defence, lack of the requisite mental element, officially induced error, and res judicata:
In strict liability offences, due diligence is but one defence which may arise. Other possible defences to strict liability prosecutions that are related to due diligence include necessity, impossibility, mistake of fact, self-defence, lack of the requisite mental element, officially induced error and res judicata.
In Ontario, s. 80 of the Ontario Provincial Offences Act preserves common law defences to excuse or justify the conduct of the defendant, except insofar as such defences are inconsistent or have been altered by the Act or any other provincial statute.
Swaigen observes that the defence of reasonable care is the "pre-eminent defence" to public welfare offences. The majority of other common law defences overlap with the defence of reasonable care and are "subsumed, for the most part", by it.
[69] Moreover, the Court of Appeal for Ontario in R. v. Cancoil Thermal Corp., noted at pp. at 301-02, that even for offences of absolute liability, in which it is not open to the accused to exculpate himself by showing that they were free of fault, there is no reason why other general defences such as necessity, duress and coercion should not be available:
Even in offences of absolute liability, where "it is not open to the accused to exculpate himself by showing that he was free of fault" (The Queen v. City of Sault Ste. Marie, supra), there is no reason why other general defences should not be available such as necessity, duress and coercion. See Smith and Hogan, Criminal Law, 5th ed. at pp. 100-101. The usual defences are available, except the defences of lack of intention, etc. See Glanville Williams, Textbook of Criminal Law, (1978) at p. 906. However, there was no suggestion that any of these defences was applicable in the present case.
[70] Therefore, in respect to Platana J.'s blanket conclusion in R. v Williams Operating Corp., [2008] O.J. No. 3736 (S.C.J.O.), that the legal maxim de minimis non curat lex does not apply to all public welfare offences, which he had based on the principles in R. v. Sault Ste. Marie, R. v. Goodman and R. v. Croft, rather than rejecting its application to only the particular charge or to the particular legislation he had been adjudicating, appears to be an overreach on his part and not supported in law.
[71] Moreover, if Platana J's reasoning for holding that the de minimis defence is not applicable to all regulatory offences because most regulatory offences are strict liability offences, in which an accused person may avoid conviction if they can establish on a balance of probabilities the defence of due diligence, then for practical purposes it could be argued that most common law defences are or have been subsumed into the due diligence defence. However in law, an accused person is not required to prove due diligence for all three of the categories of regulatory offences to avoid conviction and all common law defences are still available for the mens rea class of regulatory offences. Accordingly, Platana J.'s reasoning may not be legally correct, given that there are in fact three categories of regulatory offences established by the Supreme Court of Canada in R. v. Sault Ste. Marie, and in which the due diligence defence has been established for only strict liability offences.
[72] As such, if common law defences had been subsumed into the due diligence defence, it would be only for the strict liability category of regulatory offences, where an accused person has the legal burden to establish the defence of due diligence to avoid conviction. On the other hand, for absolute liability offences the common law defences of necessity, self-defence, duress would be available while for mens rea regulatory offences, all common law offences would be available. Moreover, these common law defences are legally distinct from the defence of due diligence and may still be brought by any accused persons when charged with an absolute liability or a mens rea type of regulatory offence.
[73] Accordingly, Platana J.'s holus bolus conclusion in R. v Williams Operating Corp. that the de minimis defence does not apply to all public welfare offences does not appear to be correct or supported in law.
(5) Would The De Minimis Non Curat Lex Maxim Apply To Charges Laid Under The SFAO?
[74] The SFAO does not set out any numerical percentage or a specific minimum amount of tobacco that has to be lit to be a contravention of s. 9(1) or before it would be considered to be an offence under s. 9(3)(a), nor what amount of lighted tobacco would be considered to be harmful as second-hand smoke to an employee or a member of the public in an enclosed workplace.
[75] On the other hand, continued exposure or inhalation of the smoke from small amounts of burning or lighted tobacco could or would have a cumulative effect over time that may still have a harmful effect to the health of employees or members of the public in an enclosed workplace or prescribed place, which on principle could negate a claim of de minimis for this type of regulatory offence.
[76] Consequently, as there is no prescribed minimum amount of tobacco in the SFAO that has to be lighted to be in breach of s. 9(1) of the SFAO or before an offence can be committed under s. 9(3)(a), then there is no barrier to the de minimis defence being raised as a defence by a person accused of committing an offence under s. 9 of the SFAO, which would be categorized as strict liability offences.
[77] However, even though the de minimis maxim for this particular charge can be raised as a defence, the corporate defendant, who has raised the defence and who would also have the onus to prove the defence on a balance of probabilities, has not proven that the amount of tobacco in the shisha collected from the bowl marked as #10 had in fact been in the de minimis range, so that it would not be harmful to any person or employee in the enclosed workplace being exposed to the lit tobacco, if it indeed had been lit, in order to justify not convicting or punishing the corporate defendant. Accordingly, the corporate defendant has not established the defence of de minimis in respect to the amount of tobacco in question on a balance of probabilities.
(B) HAS THE PROSECUTION PROVEN BEYOND A REASONABLE DOUBT THAT THE CORPORATE DEFENDANT HAS COMMITTED THE OFFENCE OF FAIL TO ENSURE NO PERSON HOLDS LIGHTED TOBACCO IN AN ENCLOSED WORKPLACE?
(1) Is The Establishment Known As "Le Royal Resto & Lounge" Located At 755 Queensway East, Mississauga An "Enclosed Workplace"?
[78] According to s. 9(1) of the SFOA, no one is permitted to smoke tobacco or hold lighted tobacco in an "enclosed workplace":
9(1) No person shall smoke tobacco or hold lighted tobacco in any enclosed public place or enclosed workplace.
[79] An "enclosed workplace" is defined under s. 1(1) of the SFOA and includes the "inside of any place or building that is covered by a roof" that is "not primarily a private dwelling" and in which "employees work in or frequent during the course of their employment, whether or not they are acting in the course of their employment at the time":
1.(1) In this Act,
"enclosed workplace" means,
(a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them,
(i) that is covered by a roof,
(ii) that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and
(iii) that is not primarily a private dwelling, or
(b) a prescribed place;
[80] Also, under s. 1(2) of the SFOA, a "private dwelling" includes "Private self-contained living quarters in any multi-unit building or facility or "Any other prescribed place":
Private dwelling
1 (2) For greater certainty, and without restricting the generality of the expression, the following are primarily private dwellings for the purposes of the definition of "enclosed workplace" in subsection (1):
Private self-contained living quarters in any multi-unit building or facility.
Any other prescribed place.
[81] Ergo, as specified by the definition of an "enclosed workplace" under s. 1(1) of the SFOA, the establishment known as "Le Royal Resto & Lounge" located at 755 Queensway East, Mississauga, which is licenced as a restaurant and eatery and which is not a private dwelling, would therefore by definition be an enclosed workplace where employees could or would work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time.
[82] But more significantly, the definition for an "enclosed workplace" does not specify that a person who is holding lit tobacco in an enclosed workplace, has to be actually engaged or acting as an employee in respect to that establishment for that establishment to be classified as an enclosed workplace. Nor does s. 9(1) and s. 1(1) of the SFOA, specifically require the prosecution to prove that any of the individuals preparing the shisha for the hookah water pipes in the shisha preparation room on January 14, 2017, had been acting in the capacity of an employee or that they were employed by the corporate defendant, since the application of s. 9(1) is not limited to only "employees", but applies to everyone, as the provision states that "no person" shall smoke or hold tobacco in an enclosed workplace.
(2) Is The Corporate Defendant An Employer For The Purposes Of S. 9(3)(a) Of The SFOA?
[83] "Employer" is defined under s. 1(1) of the SFOA and includes an owner of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it:
"employer" includes an owner, operator, proprietor, manager, superintendent, overseer, receiver or trustee of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it;
Employer obligations
9 (3) Every employer shall, with respect to an enclosed workplace or a place or area mentioned in subsection (2) over which the employer exercises control,
(a) ensure compliance with this section;
(b) give notice to each employee in an enclosed workplace or place or area that smoking is prohibited in the enclosed workplace, place or area in a manner that complies with the regulations, if any;
(c) post any prescribed signs prohibiting smoking throughout the enclosed workplace, place or area over which the employer has control, including washrooms, in the prescribed manner;
(d) ensure that no ashtrays or similar equipment remain in the enclosed workplace or place or area, other than a vehicle in which the manufacturer has installed an ashtray;
(e) ensure that a person who refuses to comply with subsection (1) or (2) does not remain in the enclosed workplace or place or area; and
(f) ensure compliance with any other prescribed obligations.
[84] The corporate defendant meets the definition of "employer" for the purposes of s. 9(3) of the SFOA, since Ex. 7 has established beyond a reasonable doubt that the corporate defendant is the operator of the "Le Royal Resto & Lounge" and is the entity licenced by the City of Mississauga to operate the establishment at 755 Queensway East, in the City of Mississauga, as an eatery/restaurant business (see Ex. 6). Therefore, under s. 9(3)(a) the corporate defendant has the legal responsibility to ensure that no person holds lighted tobacco in an enclosed workplace as prescribed by s. 9(1).
(3) Has The Prosecution Proven That A Person Had Been Holding "Lighted Tobacco" In The Enclosed Workplace Beyond A Reasonable Doubt?
[85] The Certificate of Analysis (Ex. 5), had only indicated that the shisha sample in the head or bowl marked as #10 had been found to have contained tobacco. The shisha sample in the bowl marked as #9 had not been found to have contained tobacco. Therefore, in order for the prosecution to prove that the corporate defendant had committed the actus reus of the offence under s. 9(3)(a) there has to be evidence that the shisha sample in the bowl marked as #10 which had contained tobacco had been lit before the sample had been collected by Health Inspector Biley on January 14, 2017.
[86] For that question, the corporate defendant submits that there is no evidence that the tobacco in the shisha in the bowl marked as #10 had been "lit" or that the shisha had been smoldering, smoking, or doing anything else. In addition, the corporate defendant emphasizes that the shisha inside the bowl marked as #10 had been described in the Certificate of Analysis (Ex. 5) as a vegetable matter with a red-coloured "viscous" substance. Moreover, the corporate defendant submits that the testimony from the two health inspectors had only indicated that two people preparing the two hookah pipes had placed two coal pieces that had been ignited on a hot plate onto the tin foil covering the two bowls or heads of the two hookah pipes for only a moment or two and then were holding the hookah pipes when they were asked by the officers to remove the "ignited or lit coal" from the top of the two bowls.
[87] Now, in deciding whether the shisha in question had been burning, roasting, or actually lit, the issue that has to be resolved is whether it could be reasonably inferred that the "shisha" that is sitting underneath the perforated tin foil cover and underneath an ignited and lit piece of coal would have also been burning, roasting, or be lit, given that neither of the two health inspectors who had inspected the Le Royal Resto & Lounge premises on January 14, 2017, had actually testified to observing the shisha in the bowl marked as #10 smoldering, smoking, roasting, or burning, or that the shisha smelled like burning matter, or that the shisha showed signs of charring from being heated by the ignited and lit coal.
[88] Furthermore, neither inspector had testified about having to wait for the shisha in the bowl marked as #10 to stop burning or that there had been an ember or flame that had to be extinguished before the sample could be collected. Nor did they provide any testimony that they had observed or smelled that the shisha in either of the two bowls had been lit, smoldering, smoking, or burning, or that there were signs, such as charring or singeing of the shisha, which would infer that the shisha had been lit after the ignited and lit piece of coal had been removed from the top of the tin foil cover.
[89] Accordingly, the only credible evidence from the testimony of the two inspectors about anything being lit in the preparation room is that the pieces of coal placed on the top of the tin foil covering the two bowls containing the shisha had been ignited and lit.
[90] On the other hand, despite the question of whether there is any evidence that any tobacco had been lit and being held by a person in the preparation area for hookah pipes to be prepared, the prosecution submits that it should be interpreted, based on the purpose and aims of the legislation, that the shisha in the bowl marked as #10 had been lit when there is evidence that the piece of coal that is used as the heat source for a hookah pipe has been ignited and lit and then placed on the tin foil covering the shisha.
[91] Moreover, in suggesting that the shisha in the bowl marked as #10 should be found to have been burning, ignited, or lit when the ignited and lit piece of coal had been placed on top of the tin foil covering the shisha, the prosecution relies on the case of Vancouver (City) v. Abdiannia (c.o.b. Ahwaz Hookah House), [2015] B.C.J. No. 1295 (B.C.S.C.). In that case, the operators of indoor establishments, who had permitted patrons to smoke shisha in hookah pipes, had been charged with violating the City of Vancouver's Health Bylaw #9535, which had banned all indoor smoking or burning of any substance in commercial establishments, by having allowed customers in their commercial premises to smoke hookahs. The operators of the establishments, on appeal, had contended that they did not violate the Vancouver Bylaw because the Bylaw only prohibits smoking where the substance being smoked is actually "burned", but not when the "shisha in a hookah is not burned", as the operators contended that the shisha in a hookah water pipe is only in reality being warmed by the charcoal. Moreover, the operators also submitted that the charcoal's flame does not contact the herbal shisha and that the herbal shisha is not on fire. However, Leask J., at paras. 8 to 13, in Vancouver (City) v. Abdiannia (c.o.b. Ahwaz Hookah House), in upholding the conviction of the two operators did not have to decide whether the herbal shisha had been burning or not, since Leask J. had agreed with the prosecution's submission that even if the herbal shisha itself was not being burned in the hookah pipe, the mere burning of the "charcoal" in the hookah pipe is enough to result in a finding that "any other substance" was being "burned" and that the smoke from the "burning charcoal" which is being inhaled would bring that particular burning substance within the meaning of the by-law:
A. Was the Shisha burning?
The Provincial Court trial judge found "that the shisha in hookah smoking gets burned in the ordinary meaning of the word." At trial the respondent City argued that the word "burn" covered "the situation when the substance is heated in the hookah, such that smoke is produced, which is inhaled and exhaled by means of a hookah pipe." The respondent City also relied upon several dictionary definitions of the word "burn".
As an alternative, the trial judge stated:
Even if the herbal shisha only gets heated, I am persuaded by the City's argument that the dictionary meaning of the word burn is sufficiently clear given the object of the By-Law as it relates to the act of smoking.
If this were the entirety of the evidence and submissions on this issue, I would be inclined to find that the trial judge's conclusion was clearly wrong and unsupported by the evidence. In particular, the trial judge relied upon three propositions, the second of which was:
While there is a tinfoil separating the herbal shisha from the charcoal, I am convinced that the reason for holes to be punched in the tinfoil is to allow the heat or flame from the burning charcoal to be drawn through the holes to come into contact with the herbal shisha as the smoker inhales. If the sole purpose of the charcoal is just for heating up the shisha, there would be no need to have the tinfoil punched.
The appellants submitted that the evidence showed that the holes in the tinfoil are there to allow air to pass through, not flame. The evidence of the appellants was that the charcoal's flame does not contact the herbal shisha and the herbal shisha is not on fire. There was no contrary evidence.
In my view, the respondent City, on appeal, has provided a complete, and satisfactory, answer to this whole argument:
... even if this Court concludes that the trial judge erred by finding that the herbal shisha is burned in a hookah pipe, it is inescapable that the mere burning of the charcoal in the hookah pipe is enough to result in a finding that 'any other substance' is 'burned', the smoke of which is inhaled within the meaning of the by-law. The evidence on this point is not in dispute.
I agree with this submission.
[92] Moreover, in Ontario (Ministry of Labour) v. Hamilton (City) (2002), at para. 16, Sharpe J.A. had not only reinforced the notion that narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives were to be avoided, but that he had also emphasized that the generous approach to be used for the interpretation of public welfare statutes does not, however, call for a limitless interpretation of their provisions:
The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purpose and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided.
[93] Similarly, in Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, the Court of Appeal for Ontario, at paras. 24, 26, and 27, had held that interpreting legislation broadly to accord with the purpose of the legislation does not on the other hand call for a limitless interpretation of its provisions, which could extend the reach of the legislation far beyond what was intended by the legislature:
Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a manner that will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.), at para. 22.
This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however.
One of the problems with what is otherwise an understandable approach to the interpretation of public welfare legislation is that broad language, taken at face value, can sometimes lead to the adoption of overly broad definitions. This can extend the reach of the legislation far beyond what was intended by the legislature and afford the regulating ministry a greatly expanded mandate far beyond what is needed to give effect to the purposes of the legislation.
[94] In short, what the prosecution is seeking is a finding to be made by the court that the shisha containing the tobacco had been "lit" merely based on the purpose or aim of the smoke-free legislation, rather than requiring such finding to be made that is based on factual proof. This would indeed extend the reach of the legislation improperly if the court were to find that the shisha in the bowl marked as #10 would have been lit, simply because there had been proof that an ignited or lit piece of coal had been placed and be sitting on top of the tin foil covering the shisha in a hookah water pipe, even though the shisha may not have actually been burning, roasting, smoldering, or been lit.
(a) Does a "presumption of fact" operate which requires the trier of fact to mandatorily make a finding of fact that the shisha containing the tobacco had been lit?
[95] Furthermore, the prosecution's submission that there should be a finding that the shisha containing the tobacco in the bowl marked as #10 had been lit because the piece of coal that had been sitting on top of the tin foil cover had been ignited and lit would also require a "presumption of fact" to be mandatorily made by the court if that presumed fact is not rebutted. Rebuttable presumptions of fact are, however, permitted in law where the legislative body specifically provides such mechanism in the governing legislation or as provided by a common law rule. Where there is such a mechanism, then such a presumed fact is mandatorily required to be made by the trier of fact when a basic fact had been proven by the prosecution, if the accused is unable to rebut the presumed fact.
[96] In Paciocco and Stuesser's textbook, The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011), at pp. 536-537, the authors point out that "presumptions of fact" exist where a common law or statutory rule provides, in effect, that upon proof of fact A (the basic fact), the existence of fact B (the presumed fact) will be rebuttably presumed. In addition, Paciocco and Stuesser emphasized that a presumption of fact does not arise automatically as a matter of law, since it only arises after a party has proved a fact required by the relevant rule. Furthermore, Paciocco and Stuesser noted that presumptions of fact are "mandatory" in the sense that the trier of fact must draw the presumed conclusion if the party against whom the presumption operates fails to rebut the presumed fact. And, Paciocco and Stuesser also note that presumptions of fact are "rebuttable" because they allow the party against whom the presumption operates to avoid the operation of the presumption by rebutting the presumed fact:
Even though presumptions of fact are rules of law, a presumption of fact, unlike a presumption of law, does not arise automatically as a matter of law. A presumption of fact arises only after a party has proved a fact required by the relevant rule. Presumptions of fact are easy to recognize. They exist where a common law or statutory rule provides, in effect, that upon proof of fact A (the basic fact), the existence of fact B (the presumed fact) will be rebuttably presumed. For example, according to section 252(2) of the Criminal Code, if the Crown proves that the accused left the scene of a motor vehicle accident without leaving his name and offering assistance, it is presumed that he left for the purpose of avoiding civil or criminal liability. The trier of fact must, as a matter of law, find this to be so unless there is evidence to the contrary rebutting the inference that this is why the accused left the scene of the accident. Hence, presumptions of fact are "mandatory" but "rebuttable." They are mandatory in the sense that the trier of fact must draw the presumed conclusion if the party against whom the presumption operates fails to rebut the presumed fact. They are rebuttable because they allow the party against whom the presumption operates to avoid the operation of the presumption by rebutting the presumed fact.
There are numerous presumptions of fact known to law. Most often the presumed fact follows, as a matter of human experience, so regularly or dependably where the basic fact exists that it is sensible to assume that the presumed fact is true where the basic fact is true, absent contrary proof. In effect, presumptions of fact operate as shortcuts to the proof of material facts. Instead of having to prove the material presumed fact, the party relying on a presumption of fact can prove the more easily established basic fact, and effectively shift the burden to the opposing party. To return to section 252(2), although there are many reasons why people might leave the scene of an automobile accident, it is almost invariably because the driver who has left wants to avoid the civil or criminal liability that might befall him if he awaits the arrival of the police. Hence there is a factual basis in human experience for the presumption.
[97] However, in the case at bar there is no common law rule or statutory rule in the SFOA that mandates the trier of fact to make a finding that the shisha product had been lit once it had been proven beyond a reasonable doubt that an ignited and lit piece of coal had been placed for a few seconds on top of the tin foil that is covering the shisha in the bowl that is marked #10.
[98] Moreover, unlike the municipal bylaw in Vancouver (City) v. Abdiannia (c.o.b. Ahwaz Hookah House), that prohibits the smoking or burning of any substance indoors, holding burning or "lit" coal is not an offence under the SFOA, nor does it necessarily mean that the tobacco in the shisha in the bowl marked as #10 had been burning or "lit" at the same time that the ignited and lit piece of coal had been placed on the tin foil covering the shisha. Nor is there sufficient evidence on which it can be reasonably inferred or concluded that the shisha containing the tobacco had been burning, roasting, or "lit" after the ignited and lit coal had been placed on top of the tin foil covering the shisha in the bowl marked as #10.
[99] Ergo, neither the common law nor the SFAO provides for or mandatorily requires the trier of fact to make a "rebuttable presumption of fact" that the shisha in a bowl covered with tin foil is burning, roasting, or "lit" when it is proven beyond a reasonable doubt that a piece of ignited and lit coal, which is the heat source that allows smoke to be created from the shisha, is placed on the tin foil that covers the shisha.
(4) Conclusion
[100] Consequently, the only thing that had been "lit" at the time that Peel Health Inspectors Biley and Graczyk had been at the corporate defendant's premises on January 14, 2017, which has been established by the evidence, is that the pieces of coal that were placed on top of the tin foil covering the two bowls containing the shisha, marked as bowl #9 and bowl #10 had been ignited and "lit". However, it has not been established that the shisha in those two bowls had been "lit" before samples of the shisha were collected by Health Inspector Biley. More importantly, neither inspector had testified that they had observed or smelled any burning, roasting, or lit shisha emanating from the two bowls of the two hookah pipes they had observed being prepared in the backroom, in which they had observed the pieces of ignited and lit coal placed on the top of the two bowls, or that the shisha had been aflame, burning, roasting, or lit when the pieces of ignited and lit coal had been removed from atop the two bowls and the tin foil had been removed for the inspectors to take samples of the shisha from the two bowls. Nor did either inspector testify to having observed visible smoke fume or vapour emanating from the shisha in the two bowls marked as #9 and #10, or that they had observed smoldering embers or the charring or singeing of the shisha from which it could be reasonably inferred that the shisha that contained the tobacco in the bowl marked as #10 had been burning, roasting, or had been lit before the shisha samples had been collected by Inspector Biley.
[101] As such, the prosecution has not proven beyond a reasonable doubt that the shisha that contained the tobacco, which had been in bowl #10 had been burning, roasting, or lit at the time it was being held. Accordingly, the prosecution has not proven beyond a reasonable doubt that the shisha in the bowl marked #10 had been "lit" before or during the time the shisha sample had been collected by Health Inspector Biley on January 14, 2017 at approximately 11:52 p.m.
[102] Therefore, the prosecution has not met their burden in proving beyond a reasonable doubt that the corporate defendant, as an employer within the meaning of the SFOA, has committed the offence of "fail to ensure no person holds lighted tobacco in enclosed workplace", contrary to s. 9(3)(a) of the SFOA.
6. DISPOSITION
[103] In respect to Information numbered 05380, for the charge of employer "fail to ensure no person holds lighted tobacco in enclosed workplace", contrary to s. 9(3)(a) of the Smoke-Free Ontario Act, S.O. 1994, c. 10, the prosecution has not met its burden in proving beyond a reasonable doubt that the corporate defendant, Le Royal Resto and Lounge Inc., has committed that offence. As such, an acquittal will be entered for the corporate defendant, Le Royal Resto and Lounge Inc.
Dated at the City of Brampton on November 16, 2017.
QUON J.P.
Ontario Court of Justice
Footnote
[1] The Peel Waterpipe Smoking By-law (Peel By-Law No. 30-2016) to regulate waterpipe smoking in the Regional Municipality of Peel, was enacted by council for the Regional Municipality of Peel on April 28, 2016, and came into force on November 1, 2016. The Bylaw prohibits the smoking of a waterpipe in specific areas or locations. Section 2 of the Bylaw lists the following as prohibited areas:
- That no person shall Smoke a Waterpipe in:
(a) an Enclosed Public Place;
(b) an Enclosed Workplace;
(c) a Restaurant or Bar Patio;
(d) a Playground;
(e) a Sporting Area;
(f) a Spectator Area adjacent to a Sporting Area;
(g) a School; or
(h) any area under public ownership that is within 20 metres of any point on the perimeter of a Playground, Sporting Area or Spectator Area adjacent to a Sporting Area.