Court Information

Date: October 22, 2018

Ontario Court of Justice

Between:

Her Majesty the Queen Regional Municipality of Peel Prosecutor

– and –

2359090 Ontario Inc. o/a Hasty Market Defendant

Heard on: March 21, 2018

Written Submissions (received): July 15, 2018

Decision Filed: October 22, 2018

For the Crown (Prosecution): A. Krywoj

For the Defendant: G. Kaur

Justice of the Peace: Gerry Manno Central West Region

Materials Cited

Statutes

• Smoke-Free Ontario Act, S.O. 1994, Chapter 10
• Ontario Regulation 48/06 Section 10, under the Smoke-Free Ontario Act
• Provincial Offences Act, R.S.O. 1990, as amended

Cases

• R v. Clothier, 2011 ONCA 484, para. 22
• R v. Simard, [2012] O.J. No. 6503, para. 19
• Ontario (Ministry of Transportation) v. Inter County Concrete Products Limited & Pedrag Petkovic, 2017 ONCJ 734, para. 49
• R v. Sault Ste. Marie, [1978] 2 S.C.R. 1299
• R v. Seaway Gas & Fuel (2000), 47 O.R. (3d) 358 (O.C.A.)
• Kennedy v Leeds, Grenville and Lanark District Health Unit (2009), 2009 ONCA 685, 99 O.R. (3d) 215
• R v. Quintal, [2012] O.J. No. 6228
• R v. Edmonts, [2007] O.J. No. 1206 (O.C.J.)
• R v. Bata Industries Ltd., 70 C.C.C. (3d) 394
• R v. Brampton Brick Ltd., [2004] O.J. No. 3025 (O.C.A.)
• R v. Ontario (Environment), [2001] O.J. No. 2581 (O.C.J.)

Books

• Best, A., Wigmore on Evidence 4th ed. (Aspen Publishers, 1995)
• Libman, E., Libman on Regulatory Offences in Canada (Earlscourt Press, 2002)
• Dukelow, D., Dictionary of Canadian Law 3rd ed. (Thomson-Carswell, 2004) pg. 245
• Barber, K., The Canadian Oxford Dictionary 2nd ed. (Oxford University Press, 2004) pg. 325

Introduction

[1] This is a Part I Provincial Offence matter (POA) under the Smoke Free Ontario Act (SFOA) Section 6 that requires retailers of tobacco products to post prescribed government issued I.D. signs in their retail locations. That signage must be 'conspicuously' located (see Ontario Regulation 48/06 – Section 2) which is further defined as a sign that is easily or readily observable to both the seller of tobacco products and prospective purchasers.

[2] This particular offence is about compliance with the Act and Regulation. Upon conviction this offence attracts a set fine of $200 per offence and a suspension or prohibition on being able to sell tobacco products for a defined period of time. This is a strict liability offence and the Defendant is a numbered company, namely 2359090 Ontario Inc., otherwise known as Hasty Market located at 1785 Queen St. E., Suite C in Brampton, Ontario. The charge dates back to August 17, 2017 and the first date scheduled for trial was before me on June 6, 2018. The Defendant, though not present at trial, was represented by Ms. Kaur - a paralegal registered under the Law Society of Ontario (LSO) formerly known as the Law Society of Upper Canada (LSUC).

[3] This offence stems from the Ontario Regulation 48/06 (Regulation) made under the Smoke Free Ontario Act (supra), (SFOA) that specifically states that 'establishments' must (1) post a prescribed age restriction sign and health warning signs, and; (2) I.D. sign where each sign is clearly visible to the person who sells or supplies tobacco and to the person to whom the tobacco is sold or supplied (see prosecutorial factum).

[4] Section 10(3) supplies the exact measurements of the I.D. sign and what that sign should contain. Such signs are available to the seller/supplier from either calling their parent company Hasty Market for replacement signs or new signs AND/OR the Ministry itself as such signs are provided free of charge.

[5] Section 2 of the Regulation says that signs are to be posted in a conspicuous manner and shall not be obstructed from view.

[6] The intent of such Regulation and of the SFOA is to govern and monitor controlled products that should ordinarily not be sold to minors (<19 years of age) given evidence-based medical studies that show that smoking is dangerous to one's health. It would be considered a privilege for a retailer/supplier to be permitted to sell tobacco products and other controlled products such as lottery tickets. In exchange for that privilege, retailer/suppliers must agree to multiple yearly inspections for compliance and the possibility of Ministry employees being disguised as mystery shoppers to test seller compliance etc. This is the 'contract' that sellers agree to in exchange for the privilege of selling such product(s).

[7] Proper signage acts as a kind of 'early warning system' to remind purchasers (and sellers) that tobacco and other products are to be controlled and specifically not offered to minors as defined under the Regulation and the SFOA. The signs also help remind purchasers and sellers of the minimum requirements and possible request for I.D. to be able to sell to prospective purchasers.

[8] From the Ministry perspective, inter alia the legislators hope with prescribed signage given to sellers combined with a vigorous inspection system that retailers/sellers will achieve better consistency, compliance and the reduction if not elimination of sales to prohibited minors. As is true with most legislative formulas, protection for minors is not only intended but express rather than implied. As with most Provincial Offences, the intent of the Legislators is on public safety – preventing future harm as opposed to condemning past behaviour which is the focus of the Criminal Courts.

The Law

[9] According to section 6 of the Smoke-Free Ontario Act, S.O. 1994, c. 10, (SFOA) it is against the law to sell or offer to sell tobacco at retail unless signs bearing health warnings and other information referring to the prohibition imposed by section 3 are posted at that place.

[10] Section 6 - No person shall in any place, sell or offer to sell tobacco at retail unless signs bearing health warnings and other information referring to the prohibition imposed by section 3 are posted at the place.

[11] The prohibition imposed by section 3 relates to provisions of tobacco to persons under 19. According to section 3(1) and 3(2) respectively of the SFOA, no person shall sell or supply tobacco to a person who is less than 19 years old and 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.

[12] According to section 10 of Ontario Regulation 48/06 made under the Smoke-Free Ontario Act, S.O. 1994, c. 10, a person who sells or offers to sell tobacco at retail must post an 1) age restriction and health warning sign 2) an identification sign at any location where tobacco is sold or supplied in a place where each sign is clearly visible to the person who sells or supplies the tobacco and to the person to whom the tobacco is sold or supplied.

[13] Section 10 (1) - For the purposes of section 6 of the Act, a person who sells or offers to sell tobacco at retail shall post an age restriction and health warning sign described in subsection (2) and an identification sign described in subsection (3) at any location where tobacco is sold or supplied in a place where each sign is clearly visible to the person who sells or supplies the tobacco and to the person to whom the tobacco is sold or supplied.

[14] And further, under section 10(3) of the regulation, the identification sign is 9 x 18 cm with a black and white text on a red background, with the text: "Government ID with a photo and birth date must be shown when requested. You must be 19 or older to purchase tobacco products."

Section 10(3) - The identification sign referred to in subsection (1) shall meet the following requirements:

1. The sign shall be 9 cm in height and 18 cm in width

2. The sign shall be a copy of the sign entitled "Tobacco Identification", dated October 1, 2015 and accessible through www.ontario.ca/smokefree

And further, according to section 2 of Ontario Regulation 48/06, the signs must be posted in a conspicuous manner and not obstructed from view.

[15] Section 2 - All signs required to be posted under the Act and regulations shall be posted in a conspicuous manner and shall not be obstructed from view

[16] According to the SFOA, the legal responsibility to ensure compliance is on the tobacco retailer. A director or officer of a corporation that engages in the sale of tobacco has a duty to take all reasonable care to prevent the corporation from contravening the Act.

[17] A person who contravenes section 6 or 10 or subsection 18 (1) is guilty of an offence and on conviction is liable, for each day or part of a day on which the offence occurs or continues, to a fine determined in accordance with subsection (3).

[18] A director or officer of a corporation that engages in the manufacture, sale or distribution of tobacco has a duty to take all reasonable care to prevent the corporation from contravening this Act.

Issues to be Decided

[19] This case revolved around compliance with the Act and with Regulation and was not about the actual sale of tobacco products to prohibited purchasers under the Act. Specifically had the Defendant posted prescribed signs in a conspicuous area of the retail store that could be noted by both purchasers and seller of such tobacco products?

[20] Secondly, given the charge under the POA and given the strict liability nature of the offence, had the Prosecution proven the actus reus beyond a reasonable doubt? And, if so, had the Defendant been successful in mounting a due diligence defence before this court?

Prosecution's Position

Evidence of Officer Kemisha Andrews

[21] On August 17, 2017, at approximately 8:50 am Public Health Inspector Kemisha Andrews (hereinafter also referred to as 'Inspector' or 'Officer') attended Hasty Market, 1785 Queen Street East in Brampton, Ontario to conduct a routine inspection for compliance with the Smoke-Free Ontario Act.

[22] Officer Andrews testified that on August 17, 2017, Hasty Market at 1785 Queen Street East in Brampton, Ontario was owned by 2359090 Ontario Inc and has qualified that fact with a City of Brampton Tobacco Sales Licence, entered as Exhibit 3. The Officer testified that the corporation's status is active, with a director listed as Sachin Amin.

[23] Officer Andrews testified that on August 17, 2017, Hasty Market at 1785 Queen Street East in Brampton, Ontario was a convenience store that sold various products including tobacco. She observed customers enter the Hasty Market and purchase tobacco.

[24] Officer Andrews testified that the prescribed government identification ("ID") sign required by section 6 of the SFOA was not posted conspicuously and not visible to the clerk selling tobacco products and customers purchasing tobacco. Tobacco was available at the cashier area in a small humidor and a storage unit behind the cashier. She looked for the required ID sign where tobacco transactions took place and later found the ID sign located at the other end of the store and no other ID sign was posted for tobacco products. In her testimony, Officer Andrews repeated that the ID sign was not posted in a manner visible to the clerk selling tobacco and depending on where a customer was they would also not be able to view the ID sign when purchasing tobacco.

[25] On cross-examination, Officer Andrews further testified that she stood in front of the counter and behind the counter to look for the required ID sign and it was not posted in that location, where several tobacco transactions took place. Officer Andrews testified that she spoke to clerk "Lawes Georges" (spelling not verified) about the ID sign because she could not find it and no ID sign was shown to her in the area where tobacco transactions took place. Ergo, Officer Andrews testified that she provided the required ID sign to be posted and the clerk "Lawes Georges" correctly posted the ID sign in the area where tobacco was sold.

Evidence of Witness Mr Jigar Patel

[26] Witness Mr Jigar Patel testified that he was an employee at Hasty Market for almost a year as of the trial date on March 21, 2018. On cross-examination, Mr Patel clarified that he started working at the Hasty Market in April 2017, about four months before the offence and he was left in charge for about one and a half months.

[27] Mr Patel gave evidence of his responsibilities, including that all things are in proper compliance and to check if signs are posted or not.

[28] Mr Patel testified his training included training about age restriction, lottery, the transactions and dealing with situations of verbal abuse and this training came from the employer.

[29] Mr Patel gave evidence that Hasty Market is a 24 hour store with 3 shifts: a night, morning and evening shift. He testified that his shift was 9 to 5 and clerk "Lewis Georges" was the night shift worker who worked 12 to 9 am – this was the shift before Mr Patel's shift.

[30] Mr Patel testified that on August 17, 2017, his shift was 9 a.m. to 5 p.m. and he arrived for his shift at around 9 a.m. He testified that when he entered Hasty Market, the inspector and his colleague "Lewis Georges" was there. And further, he testified he was not present when the inspector first arrived for the compliance inspection.

[31] Mr Patel testified that when he came in for his shift, Officer Andrews told him there were some issues regarding the government prescribed I.D. signs.

[32] Mr Patel testified that signs were there, but faded away and not in tip top condition. When asked about how often they change signs, he testified they inform their Hasty Market representative and the representative drops signs off when they have the time and signs get posted. He also gave evidence that when they saw signs were ripped off, they would change those signs. He gave further evidence of other required and homemade signs that were posted.

[33] On cross-examination, when asked about posting the prescribed ID sign, Mr Patel testified that ID signs were on the front counter and they were conspicuous, but explained further that this was four months before the inspection. He testified that by the time of inspection, they should have changed the sign more times. He testified they did change signs but by the inspection, the signs were not in tip top shape.

Evidence of Witness Mr Sachin Amin

[34] Witness Mr. Sachin Amin testified he is the owner of the corporation and of the Hasty Market at 1785 Queen Street East in Brampton for five years, since March 2013.

[35] Mr Amin gave evidence that he is a hands-on owner, makes sure everything is done right, trains employees, has written policies and procedures and assigns duties. He testified his new employees read and sign the policies and procedures that are in place and then every three to four months to confirm they are following them. He gave evidence about the "Policies and Procedures" document, entered as Exhibit 5 and testified that this is how he would like his employees to perform; to follow these guidelines. Mr Amin read the contents of Exhibit 5, second page, first bullet to emphasize his request to walk around and do visual check for sign posters/replacement of any damaged poster. However, no evidence was given of when and by whom those policies and procedures were actually read and signed.

[36] Mr. Amin testified that employees did visual checks of signs and posters and that he insisted on tobacco age signs and ID signs were to be posted. They testified that they also made their own signs.

[37] Mr. Amin gave evidence about bullet number 5 on the "Night Shift Clerk Duties" document; and testified that even though they were all supposed to follow these procedures every day the night shift person was primarily responsible.

[38] Mr. Amin further testified that he posted a lot of signs, and now (my emphasis) they have a specific duty added for the clerk to check the signs, that being the night shift clerk. Referring to the "Night Shift Clerk Duties" document, Mr Amin testified that the employees sign and date the document. There was no evidence given of when and by whom this document was actually signed.

[39] Mr. Amin testified about using a Hasty Market communication tool with the employees to remind staff to be vigilant about mystery shoppers, kids buying smokes, checking ID and kids getting into mischief. He did not give any evidence that the Hasty Market communication tool was used to communicate about required signs that need to be posted.

[40] Mr. Amin testified that ID signs are normally on the counter and further indicated that after the inspection on August 17, 2017, he added signs on flaps behind the clerk and on a glass showcase.

[41] Mr. Amin testified about items of non-compliance and indicated that things had been there for years, they had not moved around and no one from the Ministry pointed things out or suggested that they were wrong, wrongly placed and/or in need of attention/repair. On cross-examination, Mr Amin testified to being warned for other problems with signs posted in the store that were not allowed. He further testified to receiving a warning in 2015 about signs.

[42] On cross-examination Mr. Amin testified that when he left in June 2017, the required signs were posted, but conceded that on August 17, 2017, he did not know if the required ID sign was posted.

[43] On cross-examination, Mr. Amin testified that they get their required signs from Hasty Market head office and from the City of Brampton. He was not aware that the tobacco identification signs were accessible through a Government of Ontario website: www.ontario.ca/smokefree and did not find it necessary to know of any more options to be able to get required signs.

Insufficient Evidence

[44] Referring to the "Night Shift Clerk Duties" document that Mr. Amin testified to, there was no evidence given that the form was used by the night shift employee or another employee on August 17, 2017 to remind them of their obligations under the SFOA. Mr. Patel did not give any evidence about the "Night Shift Clerk Duties" document and the night shift clerk did not testify at this trial.

[45] Referring to the Hasty Market communication tool that Mr. Amin testified to, Mr. Patel had not given any evidence about the existence of such a communication tool or using such a communication tool or receiving reminders through this communication tool.

[46] No evidence was given of when and which employees actually reviewed the policies and procedures and night shift clerk duties procedures provided by the corporation (Defendant).

[47] No evidence was given about any disciplinary policies or consequences existing if employees failed to follow the policies and procedures set out by the corporate defendant. No evidence was given regarding sanctions against any employees for not following the corporate defendant's rules regarding the failure to post the identification sign.

[48] There was no evidence given that the warning for signs in 2015 prompted 2359090 Ontario Inc. o/a Hasty Market to change any practices.

Post Offence Conduct

[49] Mr. Amin testified that now they had a specific duty added for the night shift clerk to inspect the signs. And further Mr. Amin testified that after the inspection on August 17, 2017, he added signs on flaps behind the clerk and on a glass showcase.

[50] Post offence conduct is relevant to determining sentence, but irrelevant in determining if 2359090 Ontario Inc. o/a Hasty Market was making diligent attempts to comply prior to August 17, 2017.

Ignorance of the Law

[51] The Prosecution reminded the court that if the court was inclined to believe that prior to August 17, 2017, there were insufficient warnings or that no one pointed out items of non-compliance to the retailer, that the business owner, in this case 2359090 Ontario Inc. o/a Hasty Market had a duty (or onus) to take actions to find out what their obligations were. The Prosecution asserted that passive ignorance is not a valid defence.

Home-Made Signs

[52] Both Mr. Jigar Patel and Mr. Sachin Amin gave evidence that home-made signs that were posted.

[53] The Prosecution contended that posting additional signs about tobacco that were not the prescribed signs could lead to non-compliance with restrictions on promotion of tobacco, pursuant to section 3.1 (3) of the SFOA and section 7 of Ontario Regulation 48/06.

Due Diligence

[54] The leading case on due diligence, Sault Saint Marie (supra) compels the defendant to prove that he took all reasonable care. The defence of due diligence will be available if the accused reasonably believed in a mistaken set of fact which if true would render the act or omission innocent, or if he took all reasonable steps to avoid this particular event.

[55] The corporate defendant 2359090 Ontario Inc. o/a Hasty Market acted with knowledge of the fact that signs were required and yet signs were not posted conspicuously and not clearly visible to the clerk selling tobacco and to the customer purchasing tobacco.

[56] The 2359090 Ontario Inc. o/a Hasty Market had the privilege of selling tobacco, so they had the obligation to post the required signs in the prescribed manner.

[57] 2359090 Ontario Inc. o/a Hasty Market did not fulfil their legal obligation, under the Smoke-Free Ontario Act, to conspicuously post the required government ID sign where tobacco is sold or offered for sale, contrary to section 6 of the Smoke-Free Ontario Act.

[58] The prosecution submitted all facts in issue had been proven; reasonable care was not demonstrated by 2359090 Ontario Inc. o/a Hasty Market and as a result, asked that a conviction be registered.

Defendant's Position

Prosecution's Witness

[59] Kemisha Andrews ("Ms. Andrews"), the City of Mississauga Health Inspector, testified that on August 17, 2017 at approximately 8:50 a.m., she attended the premises of Hasty Market located on 1785 Queen St E, Unit C to conduct a routine compliance check pursuant to the Smoke Free Ontario Act. Ms. Andrews stated that she met with the store clerks, Lawes Georges and Jigar Patel.

[60] Ms. Andrews testified that she observed that the sign, specifically the approved Identification Sign had not been posted in accordance with Act and Regulation.

[61] Ms. Andrews confirmed that all the other mandatory signs were posted in accordance with the Act and Regulation. Ms. Andrews asserted that she handed the store clerk, Lawes Georges, the Identification sign sticker to be posted.

[62] Ms. Andrews further stated that she continued with her inspection and subsequently noticed the Identification sign posted on the humidor. This was contrary to her initial testimony where she testified that she did not see the "Identification" sign at all.

[63] The Inspector, Officer Andrew reaffirmed on cross-examination that the Identification sign she observed was not the same one that she had handed to the store clerk to be posted. When asked on cross if she saw any Identification sign posted on the countertop near the cash register, Ms. Andrews testified that she was not able to recall.

Defendant's Witness – Mr. Jigar Patel

[64] At the material time, Jigar Patel, was present during Ms. Andrew's inspection. Mr. Patel testified that he arrived shortly after 9:00 a.m. and noticed Ms. Andrew's conducting her inspection.

[65] Mr. Patel testified that he had been working at the store since April 2017 in the capacity of a store clerk. Mr. Patel testified that there were typically 3 shifts and Mr. Georges who interacted with Ms. Andrews was finishing his night shift during the day of inspection.

[66] Among other things, Mr. Patel testified that it was his responsibility to ensure that the signs (as required by the SMOA) were posted in accordance with the Act and Regulation. Mr. Patel testified that the Identifications sign was indeed posted on the countertop where the patrons and sellers were able to view such signage.

[67] Mr. Patel further testified that at the time of the offence, the prescribed identification sign was posted on the countertop near the cashier register. He testified that the sign was a little faded. He further stated that he last saw the sign, which was visible and clear, on Monday, August 14, 2017.

[68] He distinctively remembered this date as it was after the weekend, 3 days prior to the date of the inspection, and as part of his duty, he would perform a customary walkabout to check for compliance. Mr. Patel testified that the sign did not need to be replaced. Mr. Patel further stated that there was also an age restriction sticker provided by the Ontario Convenience Store posted on the counter, which was visible to the patrons and the cashier clerk. Noteworthy was that there was also an identification sign posted on the humidor as per Ms. Andrew's testimony.

[69] Mr. Patel stated that sometime the patrons would leave water bottle or their bags or wallets on top of the counter. He also noticed the patrons would sometimes peel away at the Identification sign while waiting for their transaction to be processed.

[70] On cross-examination, Mr. Patel confirmed that all the signs were posted by the Corporate Defendant before the owner Mr. Amin he left for a sabbatical on or about June 2017. He confirmed that his owner had given him clear directions and training on ensuring compliance in accordance to the Act, which included ensuring that signs were replaced periodically, and when necessary.

[71] Mr. Patel testified that he had undergone a few inspections from various ministries including the Public Health and Safety. He stated that he was not aware of any concerns or contraventions that the inspectors may have had in the past.

Defendant's Witness – Mr. Sachin Amin

[72] At the time of the inspection, Sachin Amin was in India on a sabbatical retreat. Mr. Amin testified that he had been the store owner for over 5 years. Mr. Amin stated that since he had been there, he had been extremely vigilant and ensuring compliance with the law. The store not only sells Tobacco products, but is also a lottery retailer. His store had been constantly inspected for compliance from the various ministries and the owner/operator have never been charged nor convicted of any offence under the SFOA or by any of the other Regulatory bodies.

[73] Mr. Amin testified that before leaving for his sabbatical, he had ensured that all the signs as required by the Act were posted in accordance with the regulations. He personally posted the signs and further instructed his clerk, Mr. Patel to ensure compliance, which included replacing faded signs periodically and as needed. During his cross-examination, Mr. Patel corroborated this fact. Mr. Patel had in his response to the Prosecution's question stated that Mr. Amin had posted the signs prior to leaving for his sabbatical. Mr. Patel further corroborated that he was given extensive training prior to being left in-charge of the store.

[74] Mr. Amin testified that he had a rigorous training process in place and was very "hands-on". He trained his employees to check on ID verifications, ensuring the signs were posted, ensuring proper storage and keeping the premises clean. Mr. Amin testified that he had a written policy in place clearly listing the responsibilities of all employees. He further stated that he reviewed the policy with all staff on a regular basis and had employees sign an acknowledgement each time he conducted the reviews.

[75] Mr. Amin testified that he learned of the inspector's visit through a phone call from Mr. Patel. After hearing about the results of the inspection, Mr. Amin concluded that perhaps Ms. Andrews, the ministry inspector was being 'overzealous' in discharging her duties.

Legislation

[76] The Smoke Free Ontario Act "establishes a legislative regime for controlling the display, promotion, packaging, sale and use of tobacco, including when, how, where, and to whom tobacco could be sold.

[77] It is trite law that the accused is presumed innocent until proven guilty. In order to secure a finding of guilt, the Prosecution must satisfy the Court that the allegation as against the accused is proven beyond a reasonable doubt. The burden of proof rest with the Crown. "A reasonable doubt is based on reason and common sense and is logically connected to the evidence or absence of evidence. More is required than proof that the accused is probably guilty." In this case, all mandatory signs were posted, including the identification sign. As per Mr. Patel's testimony, that prescribed signage was conspicuously posted on the countertop near the cash register. In addition, there was also an Identification sign posted on the humidor as confirmed by the Prosecution's witness.

[78] The Prosecution's witness could not definitively state that she did not see any Identification sign posted on the countertop near the cash register. Rather, it is Ms. Andrew's testimony that she did see an Identification sign posted on the humidor. Ms. Andrews categorically stated that the sign she saw posted on the humidor was not the same sign she handed to the store clerk.

[79] Based on the aforementioned, it is the Corporate Defendant's position that the Prosecution had not met their burden in proving the actus reus beyond a reasonable doubt.

The Due Diligence Defence

[80] In Regina v. Clothier, Laskin J.A commented:

Canadian jurisprudence has long distinguished between truly criminal conduct and conduct that, though not inherently wrong, is nonetheless prohibited for the protection of the public. Thus, we have distinguished between criminal statutes and regulatory statutes, and between criminal offences and regulatory offences.

[81] Cory J. discussed this distinction and the basis for it in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 at pp. 218-19:

It has always been thought that there is a rational basis for distinguishing between crimes and regulatory offences. Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely. Murder, sexual assault, fraud, robbery and theft are all so repugnant to society that they are universally recognized as crimes. At the same time, some conduct is prohibited, not because it is inherently wrongful, but because unregulated activity would result in dangerous conditions being imposed upon members of society, especially those who are particularly vulnerable.

The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interest. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care.

[82] The Smoke Free Ontario Act, formerly known as the Tobacco Control Act, 1994, is a regulatory statute, which was enacted to promote public health and safety. It established a legislative regime for controlling the display, promotion, packaging, sale and use of tobacco, including when, how, where and to whom tobacco can be sold. The offences under the Act are strict liability offences, which means that due diligence is a defence but negligence is not. All offences are punishable by a fine, or, on multiple convictions, by a prohibition on the sale of tobacco for up to 12 months.

[83] Therefore the case before this honourable court falls under the classification of a strict liability offence, which allows the Corporate Defendant to pursue a due diligence defence.

[84] Pursuant to the reasons articulated in R. v. Sault Ste. Marie (supra), the Crown does not have to prove the mens rea element, therefore leaving it open to the Corporate Defendant to prove that he took all reasonable care to avoid liability or prevent the act from occurring.

[85] Mr. Amin was on a sabbatical and had personally ensured that the signs were posted prior to leaving Mr. Jigar in-charge. Mr. Jigar had testified that he was categorically informed about ensuring compliance with the Act, which included ensuring that the signs were posted and further testified that all signs were posted.

[86] Mr. Amin further testified that he had a rigorous process in place to train new employees to ensure compliance with the Act. Mr. Amin testified that a written policy about selling tobacco products and ensuring that all mandated signs were posted. He periodically reviewed the policies with his employees and had no charge or convictions in the past five years since he had operated the business.

[87] He took his responsibilities as a store owner seriously and had a hands-on approach. The store was subjected to various inspections from the different bodies and ministries which control and monitor the sales of tobacco products and lottery tickets to name a few.

Automatic Prohibition

[88] The Defendant was aware that the Minister generally issues a Notice of Prohibition under sections 16(2) & (5) of the SFOA. The Notice is an Automatic Prohibition that the Minister issues when a Corporate Defendant, who sells tobacco, is charged and found guilty of non-compliance. The consequences of an automatic prohibition may likely cause substantial economic loss, possible disruptions and/or layoffs for some of its employees, along with the reputational harm.

[89] The Defendant Corporation took its responsibility seriously and had a rigorous training process to ensure that the store did not sell tobacco to minors and ensured compliance with all the authorities, which included the Minister of Finance and other regulatory bodies.

Defendant's Conclusion

[90] The Defendant has had no adverse record before this court by the Municipality. The Defendant submitted that they were compliant with the spirit and the letter of the law. All required signs, including the Identification sign, as mandated by the Act were posted before and at the time of inspection. In fact, there were two identification signs posted, one on the countertop near the cash register and the other on humidor. The Defendant was of the opinion that the Public Health Inspector was 'overzealous' in carrying out her duties and in her zeal missed seeing the prescribed identification sign posted on the countertop. Therefore the Defendant submitted that the Prosecution had not made out a prima facie case against the Defendant (beyond a reasonable doubt) and therefore sought to have the charges as against the Defendant dismissed.

[91] In the alternative, should the court find that the actus reus was proven beyond a reasonable doubt, the Defendant submitted that it took all reasonable steps to prevent the act from occurring. Prior to leaving for his sabbatical on Jun/Jul, the owner had ensured that all the required signs as mandated by the Act were posted as per the Regulation. He had trained his clerk and given clear instructions to change any signs that needed to be replaced. The fact that the store did not have any violation in any of the inspections carried out over the 5 years period preceding this incident was indicative that the Defendant took its responsibility seriously. As such, the Corporate Defendant submitted that on a balance of probabilities it had been duly diligent and as such asked the Court to return an acquittal of this charge.

Analysis

[92] For the record, the court had substantially discounted the Defendant's assertions (see paragraph 88 above), namely that the automatic prohibition that might occur with a conviction. That is a sentencing argument and certainly has no place in deciding whether or not the Defendant avoided the commission of such an offence. Knowledge of a severe penalty is not necessarily proof that a Defendant avoided such an offence. Though severe consequences might act as a General and/or specific deterrence, fore knowledge of such consequences does not guarantee that the offence will be avoided. This is true in the Criminal courts and it is most certainly true in the Provincial Offences courts. Secondly there was much testimony from the Defence witnesses to suggest that the Ministry inspector was "overly zealous" in performing her duties. Beyond their assertions, there was no direct evidence to corroborate such an assertion. The necessity to have companies and individuals comply is important for public safety reasons and one who performs their duties well is said to be acting appropriately out of a sense of protecting that public interest. Unless there is hard or direct evidence to the contrary courts should pay some deference to such inspectors who assist in monitoring compliance with both the Act and the Regulation.

[93] In the normal course of business, a purchase and sale might take the following trajectory:

(a) Purchaser attends the subject location, sees the signs and knows by that signage that they are not invited to purchase the subject items without proper identification;

(b) Purchasers that feel they do qualify proceed to request the tobacco product of their choice;

(c) Retail employee is permitted to sell to those purchasers unless the retail employee raises the issue of the minimum age requirement not being met;

(d) Prior to completing a sale to that purchaser, the retail employee that feels that the minimum age requirement is potentially not being met can request proper I.D. from the prospective purchaser before handing over the tobacco product;

(e) Once the retail employee is satisfied that the purchaser is eligible, then both conclude the agreement of purchase and sale. Running afoul of the age minimum or producing suspicious I.D. will/should lead to a refusal of the sale of tobacco products to that purchaser.

[94] The Regulation uses the words 'must post' such prescribed signs implying that it is an absolute liability offence. However, the nature and intent of the Provincial Offences Act (POA) is that most offences fall under the category of 'strict-liability' offences. In short, these offences for the most part do not include the necessity to prove mens rea. Additionally, in the event that the Prosecution can prove the offence was committed beyond any reasonable doubt, the matter does not end there. Once the actus reus has been established, the onus shifts to the Defendant to prove on a balance of probability basis that they relied on a mistaken set of facts or that they took reasonable care to avoid the incident. In other words they may attempt to mount a due diligence defence to the charge and if successful would lead to the acquittal of the charge before this court. Also as background, unlike the Criminal Code of Canada (CCC) offences, POA regulations inter alia are about preventing future harm rather than focused on condemning past transgressions.

[95] Furthermore, it is distinctly understood by all of the parties that this case does NOT involve the actual sale of tobacco products to a prohibited or underage purchaser, nor does the particulars of this case support a conviction based on the entire lack of prescribed I.D. signage. Rather, this charge revolves around whether or not such posted, prescribed signage was indeed located in a conspicuous location so that it was observable to both the seller and the purchasers of tobacco products.

[96] The court asked itself, in order to understand the charge before this court one might benefit from understanding the meaning and intent of the use of the word 'conspicuous'. The Dictionary of Canadian Law defined conspicuous to be 'manifest', 'notable', 'flagrant'. Whereas, the Canadian Oxford Dictionary defines conspicuous to be something that is 'clearly visible' or 'striking to the eye' or otherwise 'attracting notice'.

[97] Given these definitions, could it be that being conspicuous entails a certain amount of interpretation and personal perspective? In other words, could it be that what one person believes is conspicuous may not necessarily be shared by another observer of that same event? For instance someone who smokes over the course of many years and is quite used to purchasing tobacco might conduct the purchase and sale process without looking at posted signs having done it so many times before that the action has become perfunctory. If the sign is properly and conspicuously placed that would not guarantee that such an individual would necessarily notice it. Of course the court also recognizes that many experienced smokers might not be the target audience for such signage. The surrounding environment may also play a role and has a potentially significant part to play in one's ability to notice a sign and process the sign's intent. By way of example the I.D. sign is black with white lettering so that placing such a sign against a completely black painted wall might render the sign to be less noticeable to some. Alternatively suppose such a sign were placed in proximity to other unrelated signs that were larger, more colourful and featured animation or movement to capture the eye. That prescribed I.D. sign might be understandably missed by tobacco patrons. Whereas the colourful animated signs would normally attract the attention of underage patrons.

[98] There is not a lot of common law that is available to give guidance on such an issue. The idea of a conspicuous sign was discussed in an older case by the name of Todd v. Sampson, 1918, CarswellSask 175, [1919] 1 W.W.R. 110. That case involved the court imposed sale of land. Within that decision, the courts ordered that at least 25 signs proclaiming such a sale was to be conspicuously posted. These signs were instead posted at various solicitor offices in Saskatoon. The court in its subsequent ruling said that "however important and attractive a solicitor's office may be to some people it can scarcely be said to be sought after, and it is usually located where it is not strikingly open to public view." (para. 4 sub 3).

[99] The Regulation(s) go on to further define 'conspicuous' signage as being a sign that is both visible to the seller of tobacco products as well as to a prospective buyer. How is this dealt with if the young prospective purchaser (under 19 years of age) is visually impaired? Is that sign conspicuous to that individual?

[100] The only evidence in this case that the sign was not posted in accordance with the Act and Regulation came from the viva voce evidence of the Ministry's inspector on the witness stand. If this were in itself sufficient to prove the charge, the court might accept that the actus reus had been proven. However, acceptance of such evidence without factoring in the other side's position (and subsequent to this, whether or not the Defendant mounted a Due Diligence) would represent an error in law.

[101] Mr J. Badel, the defence witness and employee at the Hasty Market testified that this location was a 24/7 operation with 3 shifts. This particular inspection was conducted in the early morning hours when the night shift duties were coming to an end. Mr. Badel indicated that when staff saw "signs that were not proper or that were ripped off", then those signs are changed. Mr. Badel indicated that there were two signs on the flaps behind the cashier/clerk station and they were in a conspicuous place contrary to the evidence given by the Ministry's inspector.

[102] Mr. Amin, the next witness and owner/manager of the Defendant alleged that he was a hands on employer who personally managed the store, even virtually having installed some 20 cameras (CCTV) in the store so that he could monitor activity from a remote location when not physically present.

[103] Mr. Amin went on to say that he requires new employees to read the policies and procedures and that they must sign off on such policies. He contended that every 3-4 months he would check compliance and understanding of the rules with his employees. He went so far as to supplement the prescribed I.D. signs provided by the Ministry and made and posted additional 'home made' signs posting them at other locations around the store. Naturally the sign that was posted on the counter near the cashier in a horizontal or flat position would be potentially visible to the purchaser and seller but not necessarily to an observer standing back and only tending to note vertically placed signs.

[104] The first prosecutorial witness, the Ministry's inspector Ms. K. Andrews alleged that she did not see the prescribed I.D. sign posted initially but later returned and did note the sign that she claimed had been placed on a humidor located to the far right of the cashier's counter (looking from the perspective of the Purchaser). Unfortunately (referring to para. 24 & 25 above) the inspector provided no photographic evidence nor was there much descriptive evidence to describe exactly how far away the Inspector thought the signs should have been placed with respect to the cashier's station. The Officer simply stated that she noted the sign to be to 'the far right' of the seller's counter. This assertion, with all due respect considering the Defendant's testimony as well, left the court with some reasonable doubt. The other notation the court observed was that that the Prosecution alleged that the Ministry inspector gave the sellers a sign to post during the subject inspection, which they allege the Defendant's employees did accept and place where the Inspector/Officer had recommended. Strictly speaking, this latter evidence cannot be viewed as proof positive that such a sign was not appropriately placed from the outset. One must recognize that normally there is a natural power imbalance between the store employees and the Ministry Inspector. The latter is seen to hold ultimate authority. In many circumstances those being inspected would do anything in their power to satisfy the needs and instructions of the Inspector/Officer. Most would agree that employees would or should rarely dispute matters hoping instead to appease the Officer during the inspection and perhaps be let off with a warning. Inspectors may not be consciously aware of this interaction being focused on the inspection itself and the details they must prove as opposed to the motivation of retail employees.

[105] The inspector then subsequently inspected the business ownership and tobacco license and found all to be in good order.

[106] Though the inspector could not attest to how long this particular inspection took, she indicated that this was the first inspection of this store or location.

[107] Given the testimony of both the employee on the night shift (Mr. Badel) and that of Mr. Amin (owner/manager) the court was left with some reasonable doubt on the evidence which was accepted at trial. They provided a version which was in direct opposition to the evidence provided by the Ministry inspector. It is because of this reasonable doubt that the court accepts that there were two versions of the posting and placement of those I.D. signs. As such, the Prosecution had not met their burden of proving this offence beyond a reasonable doubt. The charging officer or inspector used the short form wording on the certificate that suggested that there had been a "failure to post identification sign under section 6 of the SFOA.

[108] However both sides agreed that the prescribed signs were indeed posted and the issue to be decided upon was whether or not such signs were posted in a conspicuous place on the premises.

[109] As such, and given all of the factors discussed above, the court finds that the Prosecution has failed in its burden to prove this offence beyond a reasonable doubt and the Defendant is found not guilty of this offence. The charge before this court will be endorsed as dismissed.

[110] In the event the court is mistaken in its conclusion, it would be prudent to engage in a brief analysis of whether or not the Defendant was successful in mounting a Due Diligence defence and if successful, then be excused from the conviction and resulting sentencing.

[111] By way of brief background, the due diligence defence is available, in general in strict liability offences (not for mens rea or absolute liability offences). To be successful, a defendant could avoid liability by (a) exercising reasonable care; and/or (b) that the Defendant believed in a mistaken set of facts that if true, would render the act or omission innocent. (see R v. Sault Sainte Marie, supra).

[112] The actions of the Defendant pre-offence were the most relevant to determining whether or not one of these branches (above in para. 111) applied. (see R v. Emonts, supra).

[113] All 'reasonable care' was discussed in R v. Bata Industries Ltd., (supra) wherein the court instructed that not all of the steps (or every one of the available steps) had to be taken but only those that were deemed 'reasonable'.

[114] The court's analysis must also include the circumstances surrounding a particular offence (see Brampton Brick, supra).

[115] A list of the relevant factors to consider in assessing whether or not the Defendant exercised reasonable care in any given set of circumstances are found in R v. Ontario (Environment), supra.

[116] In this particular case, the owner was on an extended leave of absence in India which might cause some to speculate that workers left in charge were not as diligent or careful as an owner/manager would have been. The owner had a number of systems in place that would have mitigated such risk when the owner was absent. Such systems included the following:

(a) The owner had installed remote monitoring CCTV cameras to monitor compliance when not physically present;

(b) The owner had articulated and circulated a number of policies and rules (see Exhibit 5) which he had in a document labelled "New Employee Policy and Procedures"

(c) He reminded staff to conduct regular walk around inspections to check product and signage and encouraged changing of signs for signs that were showing signs of wear and tear;

(d) The owner reminded staff on how to check for I.D. and how to deal with difficult customers;

(e) His policies included a penalty clause which basically warned employees that any transgression in signage or offences contravening regulations would be the responsibility of such employees and they would be required to pay the fines or penalties on behalf of the company and on behalf of themselves.

[117] True, there was an admission from one witness that suggested that the signs may not have been in 'tip top' condition as corners tended to fade or rip over time but they were normally replaced when their condition was not up to par. However sign condition was not at issue here nor is it part of the offence as alleged.

[118] The courts must be careful not to apply a type of 'gold standard' to every due diligence defence situation. In other words, if one compares the policies and procedures normally found in a large going concern vs. a small business, the latter will tend to have less formal procedures that may not be as polished and professional looking but may be effective nonetheless. This is to recognize the difference in budgets and staffing that a large company may have vs. a small business with far fewer employees and smaller budgets. One must be careful not to prejudice the smaller companies for being smaller and less formal. Hasty Market franchisees are considered small businesses where many of the functions are provided or done by one or a few employees. In exchange for the privilege of being able to sell controlled products such as lottery tickets or tobacco products, retailers must be subjected to constant inspection, mystery shoppers, rules and regulations under both the Act and the Regulation. In this case the evidence was that this particular location had approximately 6 inspections per annum: two were for lottery sales; two for health and two were tobacco related inspections.

The owner was quite forthright in his evidence and asserted that he had been previously given a warning about signage in 2015 but insisted that this previous caution gave him extra encouragement or motivation to make sure that his signage was in accordance with the rules and regulations going forward.

[119] For the above mentioned reasons, the court finds that in the event that the actus reus had been proven beyond a reasonable doubt, given the particulars of this case and the actions of the owner/manager, the court finds that a due diligence defence would be successful thereby excusing the Defendant from a conviction. As such, the charge would be dismissed.

Respectfully submitted

Gerry Manno Justice of the Peace Central West Region

October 22, 2018