Court File and Parties

DATE: August 25, 2022 Court file no. 1 999 20 1122-00

ONTARIO COURT OF JUSTICE (PROVINCIAL OFFENCES COURT)

B E T W E E N:

Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) Prosecutor

and

George Valtoudis Defendant

Prosecutor: Mr. D. Kappos, Counsel for OMAFRA Defendant: Ms. N. Kiselyov, Counsel for the defendant

Reasons for Decision

Trial held August 10, 2022 Decision released August 25, 2022

Her Worship Jane Moffatt Justice of the Peace

[1] George Valtoudis is charged with the offence of obstructing an inspector, contrary to the Food Safety and Quality Act, 2001, SO 2001, c.20, as amended.

[2] The trial was conducted remotely through Zoom. On August 10, 2022 I received evidence from Officer Randy Halls who is an inspector employed by the Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) and from George Valtoudis, the defendant.

[3] It is not in dispute that on May 21, 2020 the defendant obstructed Officer Halls from conducting an inspection of the premise known as Valtoudis Meat Packers located in Claremont, Ontario. I agree that all the elements of the offence have been proven beyond a reasonable doubt.

[4] This is a strict liability offence. The defendant has the onus of satisfying the court that the affirmative defence of either due diligence or reasonable mistake of fact have been proven on a balance of probabilities. If so, he is entitled to an acquittal. This is the only issue that I must decide.

[5] The defendant alleges that he was not aware that the person who attended on May 21, 2020 was there to conduct an inspection on behalf of OMAFRA pursuant to the Food Safety and Quality Act, 2001. He testified that he believed the person may have been someone trying to sell him something or was attempting to enter the premise by using evasive tactics in order to solicit business of some kind.

[6] For reasons that follow, I conclude that the defendant has failed to satisfy me, on a balance of probabilities, that he exercised due diligence to avoid the commission of the offence. Further, I am not satisfied that he had a reasonable although mistaken belief that Officer Halls was someone soliciting business of some kind. In any event, if Mr. Valtoudis held an honest but subjective belief that Officer Halls was not an inspector with OMAFRA, I do not find that belief to be objectively reasonable.

Due Diligence and Reasonable Mistake of Fact defence

[7] When a charge has been proven beyond reasonable doubt, it is open to the defendant to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. R. v. Sault Ste. Marie, , [1978] 2 S.C.R. 1299.

[8] “Mistake of fact” requires more than a subjective belief in a fact or set of facts. The defendant’s belief must be objectively reasonable. R. v. Murray Group Ltd., [2012] O.J. No. 6375 (C.J.); R. v. Stelco Inc., , [2006] O.J. No. 3332(S.C.J.).

[9] The concept of diligence is based on a citizen’s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence. Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420 at paragraph 30.

[10] Due diligence imports a “standard of objective reasonableness; an honest subjective belief is not enough”. R. v. Stelco Inc., , [2006] O.J. No. 3332 (S.C.J)

[11] “Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action”. R. v. Courtaultds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.)

[12] George Valtoudis has been a director of Valtoudis Meat Packers since at least 2004, together with his father and brother. This small, family-run business has been licensed through OMAFRA and has been subjected to regular inspections throughout their years of operation to ensure compliance with the regulatory provisions applicable to a slaughter and meat processing plant.

[13] I have had the benefit of viewing excerpts from a surveillance video which show the arrival and departure of Officer Halls at the premises on the date of the offence. Also marked as exhibits are two letters delivered to the defendant by Officer Halls on September 6, 2019 and November 7, 2019 respectively. The first letter was a notice of suspension, directing him to cease regulated operations. The second letter is a Notice of Revocation, which revoked the defendant’s business license to operate as a meat processing and packaging facility. Also marked as an exhibit is a photograph of the face of the plant as well as an excerpt from the document “Regulator’s Code of Practice”, available on the Ministry’s website.

[14] Mr. Valtoudis testified that the plant ceased operations in March, 2020 and he has been unemployed since that time. He is now his father’s caregiver and they live together on the second floor of the closed plant.

[15] It is conceded that Officer Halls attended the premise and spoke to the defendant on four occasions, three of which were before the date of the obstruct incident of May 21, 2020: September 6, 2019 – spoke to defendant for about 15 minutes and delivered and reviewed a suspension letter; October 4, 2019 – spoke to the defendant and was at the plant for 1 hour; November 7, 2019 – spoke to the defendant for about 15 minutes delivered and reviewed a notice of revocation letter.

[16] Officer Halls testified that he was in uniform on all four occasions, just as he was while testifying on August 10, 2022, although when attending to conduct an inspection he did not also wear a tie. His uniform consists of work dress pants and a beige shirt with shoulder straps (epaulettes). Above the left breast of the shirt is a stitched government of Ontario trillium and the word “Ontario” and over the right breast it reads OMAFRA and below that the words “Regulatory Compliance”. In cross-examination he was asked to angle his camera so his shirt and these markings could be viewed by the court.

[17] Officer Hall testified that he identified himself verbally to the defendant on the first visit with Mr. Valtoudis and showed the defendant his badge and appointment card on the 3rd visit in November, 2019. He did not recall whether he ever left his business card.

[18] The excerpt from the surveillance video on the date of the offence shows Officer Hall arriving in an unmarked pick up truck, exit the truck and approach and leave the premise with a clipboard in his hand. He is seen wearing his uniform, with regular eye glasses (not sunglasses) and a standard white/blue face mask (due to the pandemic). He appeared calm and collected at all times.

[19] Mr. Valtoudis would not answer the knock at the door – rather, he spoke to the officer from a second floor window above and to the left of the front door and later from the second floor window above the front door.

[20] I have heard contrary evidence about what actually occurred during this interaction. Officer Hall said he knocked, saw the defendant look through the upstairs window and informed him that he was there to do an inspection under the Food Safety and Quality Act to monitor compliance. The defendant told him they were closed and he would not allow the inspector to come in. The inspector said he lowered the mask while he was speaking to Mr. Valtoudis. Indeed, in the surveillance video, the mask can be seen hanging from the Officer’s left ear leaving his face exposed. Officer Halls asked if there was any livestock on site and the defendant replied there was no livestock on site and there was nothing happening. He then swore at the officer and told him to get off the property. The Officer tried the door, but it was locked. The defendant went to another of the closer upstairs windows and again swore at the Officer and told him to “tell all the others to f off and get the f off his property.” The inspector asked if he could come in to inspect since he was present but Mr. Valtoudis said no and slammed the window shut. The inspector left.

[21] The defendant testified that he told the person they were closed and he would not let him come in. The defendant would only admit that he heard the word “inspection” and when he asked for details regarding what kind of inspection, the person pointed to the clipboard and said “I’m here for this” and asked if there were any livestock on the premises. He could not see what the person was referring to on the clipboard. Mr. Valtoudis responded no and that they were closed. He said he did not recognize who the person was, was not addressed by his name, was not shown credentials.

[22] He thought this was someone trying to sell him something. When asked if he was in the habit of swearing at people he didn’t know, he said he will swear at people soliciting on his property. Mr. Valtoudis was also asked why did he say “tell your boss to f off, too”. He explained that he was just trying to be polite by not appearing to direct this specifically to the person, but rather to his boss.

[23] I simply do not accept the defendant’s version of events. There is no air of reality to his claim that his reference to “the boss” was an attempt to be polite by directing the *f” swear word indirectly to the boss instead. Further, the defendant is a veteran in this type of business and knew he was subject to unannounced inspections. Indeed the letter of suspension and notice of revocation both set out that he will be subjected to unannounced inspections. In addition, Mr. Valtoudis met with this particular inspector on 3 separate occasions before the date of offence. Even if the glasses and mask prevented him from readily identifying the inspector as Officer Halls, the clipboard, uniform and request to enter for an inspection accompanied by a question relating to livestock should have alerted Mr. Valtoudis that the person was an inspector from the Ministry.

[24] It is argued that Officer Halls did not follow the Regulator’s Code of Practice in relation to identifying himself to Mr. Valtoudis on this occasion. Officer Halls explained that the defendant’s conduct prevented him from following the suggested procedures. I accept the Officer’s explanation and in any event, the Code of Practice does not have the weight of legislation.

[25] On all of the evidence, I find as fact that the defendant knew who Officer Hall was and why he was present. If I am wrong and the defendant had an honest and subjective belief that the person was a stranger soliciting business rather than an inspector, in my view there is no reasonable basis for that belief. The defendant knew or ought to have known that the person was Officer Halls or another inspector from OMAFRA.

[26] I am also not satisfied that the defendant was duly diligent in ensuring he understood the correct identity of the person attending the property. He was either willfully blind or simply did not take the minimum steps another reasonably prudent person would have to avoid the commission of this offence.

[27] For these reasons, the defendant has not discharged his onus on a balance of probabilities to establish either a due diligence or reasonable mistake of fact defence. The defendant is therefore found guilty of the offence as charged.

Dated August 25, 2022

Justice of the Peace Jane Moffatt Released: Whitby, Ontario