Court Information

Ontario Court of Justice

Date: November 17, 2017

Court File No.: London 2683634B

Parties

Between:

Her Majesty the Queen

— And —

Eunsoo Na

Judicial Officer and Counsel

Before: Justice Wendy Harris Bentley

Heard on: September 21, 2017

Reasons for Judgment released on: November 17, 2017

Counsel:

• Bob Sheppard, for the Appellant
• Lindsay Lake, for the Respondent

Decision

Harris Bentley J.:

Grounds of Appeal

[1] The appellant, Eunsoo Na appeals his conviction from selling tobacco to a person who is less than 19 years old contrary to section 3(1) of the Smoke-Free Ontario Act, S.O. 1994, c. 10 (the "SFOA").

Evidence at Trial

[2] On January 21, 2016, a 16-year-old test shopper entered a variety store where the appellant, Eunsoo Na, worked as a convenience store clerk. She approached the counter and asked the appellant for a package of cigarettes. During the transaction, which took from two to three minutes, the two were a couple of feet apart. The appellant looked at the shopper while she asked for the cigarettes, then retrieved the cigarettes and looked at her again as the cigarettes were paid for with cash. She was not asked her age, nor was she asked for identification. The shopper then returned to a tobacco enforcement officer who was overseeing her and described what had taken place. The enforcement officer had taken a photograph depicting the shopper wearing glasses and a winter coat. This picture was made an exhibit at trial.

[3] The appellant had been working at the variety store for four years where he sold tobacco products. He had attended training about the rules and regulations with respect to selling tobacco and, in particular, training with respect to the age of persons purchasing or attempting to purchase tobacco products run by the Middlesex London Health Unit. He understood the obligations of the SFOA to be that he request identification from anyone who appeared to be under the age of 25. The appellant testified that he obeyed that rule.

[4] The appellant, assisted by a Korean interpreter, testified that he looked at the shopper when she asked to purchase cigarettes. He observed her overall appearance as well as her face. He believed her to be well over the age of 25 and this is why he gave the cigarettes to her without asking further questions. He had no worry or concern about her age. He also said that if he had thought she appeared to be under 25, he would have asked for identification or would not have sold her the cigarettes.

Decision at Trial

[5] The Justice of the Peace determined that while she had no concerns with respect to the credibility of the appellant, with respect to the reliability of all the evidence the court had heard, she found that the appellant had "conducted a subjective analysis where the simple remedy would have been to request identification making an objective analysis". A reasonable doubt was not raised, and the court found the appellant guilty.

The Positions of the Parties

The Appellant

[6] The appellant's position is that the Justice of the Peace erred in her analysis as to whether the defence of honest mistaken belief/due diligence availed in this case. He submits that her analysis, requiring the vendor to ask for identification to determine if the person appeared to be less than 25, would require that, in any age assessment, proof of age identification be checked, a requirement which renders meaningless s. 3(2) SFOA.

[7] The appellant submitted that, although s. 3(2) appeared to be an offence, it was not, and maintained that a 22-year-old buying cigarettes would not be charged or found guilty of that offence.

[8] The appellant submits, rather, that due diligence requires that the seller determine the age of the buyer using his training, tobacco sales experience, human experience, abilities of observation and common sense. If the honest answer to the apparent age is under 25, then the seller is required to ask for acceptable proof of age identification before completing the sale. An honest mistake of fact will avail as a defence where the seller has honestly and sincerely engaged in this analysis.

[9] The appellant submits that statutory interpretation would lead the court to look at the whole of the statute and draw from the whole insights available to assist in the interpretation of the section under which appellant is charged.

[10] He also submits that the wording of s. 3(2) should have the words "to the seller" read into the section as follows:

"No person shall sell or supply tobacco to a person who appears to the seller to be less than 25 years old unless …"

as there could be no-one else who would make the assessment at the time of the sale.

[11] The appellant submits that as the Justice of the Peace accepted that the appellant was credible that she therefore accepted that the appellant believed that the buyer was well over the age of 25. In her brief reasons, the Justice of the Peace did not question the credibility of that particular belief but simply said that he should have asked for identification to arrive at the belief if it were to supply a defence of due diligence.

The Respondent

[12] The respondent maintains that s. 3(2) is a separate offence as is demonstrated by Schedule 83.0.1 under the SFOA. This schedule, found at tab 2 of her materials clearly sets out in a column called offences the two offences of selling and supplying to a person who appears to be less than 25 years old.

[13] As 3(2) SFOA is a separate offence, it is not a statutory defence for s. 3(1) offences. Persons charged under S. 3(1) must look to s. 3(3) SFOA for any statutory due diligence defence and not rely upon s. 3(2).

[14] The respondent also argues that because s. 3(3) specifically sets out that it is a defence for sections 3(1) and 3(2), statutory interpretation would suggest that if s. 3(2) were to be a defence to s. 3(1), it should be specifically set out in that section.

[15] Secondly, the words "to the seller" should not be read into s. 3(2) as this would make it a subjective analysis rather than an objective one. However, the respondent also submitted during oral argument that in the moment, in other words, at the time of the sale, it would be the seller who would make the determination of apparent age.

[16] Finally, the court must interpret the SFOA in a purposeful way bearing in mind that the legislation is enacted to promote public health and safety. The legislation must be strictly interpreted to help achieve the purpose of keeping tobacco products out of the hands of minors. If the seller could simply say that he believed the person to be over 25, it would render meaningless the objectives and purpose of the SFOA.

[17] Both counsel addressed the brevity of the reasons for conviction. The respondent submitted that although they were short, they were adequate and set out the reasons for conviction sufficiently.

[18] Both counsel agreed that should the appeal be allowed, the court should vary the conviction to an acquittal under s. 138(1) of the Provincial Offences Act.

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

Analysis

The Legislation

Smoke-Free Ontario Act

Section 3(1) – Selling or supplying to persons under 19

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

Section 3(2) – Apparent age

No person shall sell or supply tobacco to a person who appears to be less than 25 years old unless he or she has required the person to provide identification and is satisfied that the person is at least 19 years old.

Section 3(3) – Defence

It is a defence to a charge under subsection (1) or (2) that the defendant believed the person receiving the tobacco to be at least 19 years old because the person produced a prescribed form of identification showing his or her age and there was no apparent reason to doubt the authenticity of the document or that it was issued to the person producing it.

Section 3(4) – Vicarious liability

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

Section 3(5) – Repealed: 2005, c. 18, s. 4(2).

Section 3(6) – Improper documentation

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

The Justice of the Peace's Determination of Credibility of the Appellant

[20] The Justice of the Peace gave a short ruling in which she made a finding of credibility in favour of the Appellant, although found him guilty as a result of not conducting an objective analysis. She did not give reasons for the finding of credibility.

[21] Looking at the photograph of the buyer put into evidence, as well as at the short but effective cross-examination of the appellant during which the appellant was apparently inconsistent and untruthful, this court may have concluded that the appellant was not credible. However, I may not simply substitute my view for that of the Justice of the Peace. I would have to find that she made an error in law in her analysis.

[22] I take into account that the trial was done with the assistance of an interpreter which may account for some of the appellant's odd language (ie that he developed an ability to just feel it (her age)) and for some of the inconsistencies. The Justice of the Peace was in a position to view and listen to the appellant give his evidence and so deference must be afforded to her determination. I also take into account that the Justice of the Peace addressed her mind to the reasonable step she felt that the appellant should have taken. In my view the case turns on the determination of credibility, but it is clear from the Justice of the Peace' decision that she did not, and perhaps, consequently, she did not spend time on that aspect of the decision. In any case, as the Ontario Court of Appeal held in R. v. M.(A.), 2014 ONCA 769, 123 O.R. (2d) 536, at para. 17:

… where a case turns largely on determinations of credibility, the sufficiency of reasons must be considered in light of the deference generally afforded to trial judges on credibility findings. It is rare for deficiencies in a trial judge's credibility analysis, as expressed in the reasons for judgment, to warrant appellate intervention: R. v. Vuradin (S.C.C.), at para. 11; Dinardo, at para. 26.

Interpretation of Section 3 of the SFOA

[23] In R. v. Seaway Gas & Fuel Ltd., 47 O.R. (3d) 458, MacPherson J.A. classified subsection 3(1) of the Tobacco Control Act, 1994 (being the predecessor to subsection 3(1) of the SFOA) as a regulatory statute which creates strict liability offences.

[24] In R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. No. 1299, Dickson J. held that these are:

... Offenses in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves a consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

[25] In the present case, the appellant sold cigarettes to a person less than 19 years old. The fact that the appellant did not intend to sell cigarettes to a minor does not assist him. S. 3(3) SFOA does not provide a defence to the Appellant as he did not ask for identification. The common-law defence of due diligence is available if the appellant can prove on a balance of probabilities that he took all reasonable care. R. v. Pourlotfali, [2016] O.J. No. 3254 (Ont.C.A.) at para. 53.

[26] The respondent submits that s. 3(2) SFOA is not a statutory defence for s. 3(1). I agree that it is not a statutory defence in the way that s. 3(3) is. However, in determining the scheme behind the SFOA and in particular of s. 3, s. 3(2) provides context which, in this instance, provides support to the common-law defence of due diligence.

[27] The case of Pourlotfali, ibid at para. 29 speaks to statutory interpretation:

The issue in this case is to interpret the defence provided in s. 3(3) of the SFOA. The court must be guided by Driedger's modern approach to statutory interpretation, adopted in Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27, at para. 21: "[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

In order to interpret the duties of the seller as set out in all of s. 3 dealing with age requirements, I must read the act in context and give effect to the grammatical and ordinary sense of the words. The selling regime is set out by van Rensburg J.A. in Pourlotfali, ibid at paras. 39 to 40:

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

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

[28] Pourlotfali, ibid dealt with a seller who had received the identification required and made a mathematical error calculating the age of the buyer giving rise to her mistaken belief that the buyer was an adult. The judgment interpreted s. 3(3) and determined that the seller had not exercised reasonable care in making the calculation and had not succeeded in raising a due diligence defence.

[29] In this case, the defence is that the appellant reasonably but mistakenly believed that the buyer appeared to be over 25.

[30] As shown above in paragraph 40 of Pourlotfali, ibid, s. 3(2) can be used to help interpret the scheme of the legislation. For example, if you believe the person to be under 25, you must ask for identification. This section must be examined even if the person is charged under s. 3(1) and is raising a defence under 3(3).

[31] My view, after reviewing s. 3(2), is that the act contemplates that the seller does not have to ask for identification in all cases. Otherwise, 3(2) is unnecessary. The interpretation of the provisions taken as a whole is that the seller of tobacco is required to request identification unless they believe that the person appears to be 25 years or more. The logical extrapolation is that if the seller believes that the buyer is 25 years or more, he is not required to ask for identification.

[32] With respect to the reading in of the words "to the seller" to s. 3(2), I conclude that the only person who can make the determination of apparent age is the seller and that that is how it ought to be interpreted.

[33] What then is the seller required to do? S. 3(2) requires the seller to determine if the person appears to be less than 25. The natural interpretation of those words is that the seller must look at the appearance of the buyer to determine if she seems or looks less than 25. The phrase "appears to be" indicates that the seller cannot be sure that the determined age is accurate unlike knowing that the actual age of a person if the seller looks at identification.

The question becomes how does the person determine the apparent age in a reasonable way in order to make out a due diligence defence to the offence under s. 3(1).

[34] The legislative purpose of s 3 of the SFOA is to prevent tobacco products from falling into the hands of minors. In R. v. Seaway Gas & Fuel Ltd., supra, at para. 33, the court held that:

…the provisions of the Act and regulations should be interpreted with a judicial eye firmly focussed on the public health purposes of the legislation. One of the most important purposes of the legislation is to make sure that minors are not able to buy cigarettes. The legislation should be strictly interpreted to help achieve that purpose.

[35] In order to give effect to the goals of the legislation, the court must require that the seller exercise due diligence in coming to the determination of age. Clearly simply not addressing the age of the buyer would not make out the defence. In other words, if the seller paid no attention to the age of the buyer and had no idea about their age, there would be no defence.

[36] If the seller thought that the person was over 19 but made no effort to determine the age, this would also be insufficient as the act clearly sets out that identification must be obtained if the person appears to be less than 25 or if a defence of due diligence was pursued, the person would not have done everything reasonably within their power to ascertain the true state of affairs. This is what occurred in the case of R. v. Quintal, 2012 ONCJ 787, a case offered by the respondent.

[37] In that case, Ms. Quintal testified that she had absolutely no intention of selling anyone underage cigarettes. She was new to the job and the store was busy. The interaction was so quick that she did not have a chance to get a look at the buyer. The court held that in those circumstances, Ms. Quintal honestly assumed that the buyer was over 19 years of age, but that that assumption was not objectively reasonable. The court was not satisfied that a reasonable person in similar circumstances would jump to the immediate conclusion that the buyer was of legal age. There was also no evidence before the court that would allow the court to infer that Ms. Quintal honestly and reasonably believed that the seller believed that the shopper appeared to be 25 or older, a key distinction.

[38] The seller must be able to set out their background, working and life experiences related to their ability to determine age as well as set out what they noted the buyer's appearance to be. In this case, the appellant took courses from the very health unit that was responsible for laying the charge. He had four years of experience selling tobacco products at the variety store in question. He said that over time he could just "feel it". He looked at the buyers face and overall appearance and was confident she was "well over 25". Again, he was found to be credible and was not found to be unreliable, so I must accept his evidence.

[39] In terms of the practical application of the legislation, how else, other than relying on experience and viewing the buyer, could the seller make the determination? The court at first instance suggested that he could ask for identification. This would lead to him asking for identification to determine if he needed to ask for identification, which does not make sense. He could have asked how old she was. In my view, the asking of her age would not have contributed to the buyer "appearing to be" a certain age.

[40] The respondent is concerned that allowing the seller to simply say that he believed the person to be over 25 would render meaningless the objectives and purpose of the SFOA. In my view, the requirement of the seller to show, using his background and what he observed, how the decision was reached as well as the ability of the court to do a thorough analysis to determine credibility and reliability of all the evidence provides the necessary protection.

[41] The difference in interpretation between the analyses in Pourlotfali and Quintal is that in those two cases the question to be determined was, "Is the person actually less than 19?" and in this case, the question is "Does the buyer appear to the seller to be less than 25?"

[42] An honest mistake of fact will avail as a defence where the seller has honestly and sincerely determined that the buyer of tobacco products appears to be 25 years of age or over. However, the seller must have reached that conclusion by being diligent in taking time to view the buyer and applying their knowledge and experience.

[43] For these reasons, I would allow the appeal. The conviction will be set aside and a verdict of acquittal entered.

Released: November 17, 2017

Signed: Justice Harris Bentley