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Regina v. Seaway Gas & Fuel Ltd. et al.*
[Indexed as: R. v. Seaway Gas & Fuel Ltd.]
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47 O.R. (3d) 458
[2000] O.J. No. 226 Nos. M24193 and C32393
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Court of Appeal for Ontario
Carthy, Moldaver and MacPherson JJ.A.
February 2, 2000
*Vous trouverez traduction fran‡aise de la d‚cision ci-dessus
… 47 O.R. (3d) 468.
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Criminal law — Provincial offences — Defences — Due diligence — Selling cigarettes to persons under 19 — Tobacco Control Act providing defence for selling cigarettes to underage customer if customer produced “prescribed form of identification” — Justice of peace erring by holding that list of five types of proof of age in regulations merely guide to what identification is acceptable — Regulations exhaustive — Due diligence only made out when one of prescribed identification produced — Crown appeal allowed — Tobacco Control Act, 1994, S.O. 1994, c. 10, s. 3(3) — O. Reg. 613/94, s. 1.
The individual respondent sold cigarettes to a 16-year-old boy after she asked him for identification and he produced a school identification card which showed him to be 19 years old. The respondents were charged with selling tobacco to a person under the age of 19 contrary to s. 3(1) of the Tobacco Control Act, 1994. Section 3(3) of that Act provides a defence to a charge under s. 3(1) where 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. Section 1 of O. Reg. 613/94 under the Act provides that, “[t]he following forms of identification are prescribed for the purposes of subsection 3(3) of the Act”, and then lists five forms of identification. A school identification card is not one of them. The justice of the peace found that s. 1 of the regulation is a guide to be followed and that other forms of identification may be presented. She found that the individual respondent had exercised due diligence and dismissed the charges. That decision was affirmed on appeal. The Crown appealed.
Held, the appeal should be allowed.
The five forms of identification in s. 1 of the regulation constitute an exhaustive list of the forms of identification that a vendor of tobacco products may examine when deciding whether a prospective customer is entitled to buy a package of cigarettes.
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Cases referred to
R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161, 3 C.R. (3d) 30, 21 N.R. 295, 7 C.E.L.R. 53, 40 (2d) 353; RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 164 N.R. 1, 111 D.L.R. (4th) 385, 54 C.P.R. (3d) 114, 60 Q.A.C. 241, 20 C.R.R. (2d) D-7
Statutes referred to
Provincial Offences Act, R.S.O. 1990, c. P.33, s. 139
Tobacco Control Act, 1994, S.O. 1994, c. 10, s. 3(1), (3), (6) Rules and regulations referred to
General Regulation, O. Reg. 613/94 (Tobacco Control Act, 1994),
ss. 1, 13
Authorities referred to
The New Oxford Dictionary of English (1998), “acceptable”
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APPEAL by the Crown from a judgment dismissing an appeal from a decision dismissing charges of selling tobacco to a minor.
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Diane M. Lahaie, for appellant. Leo D. Courville, for respondents.
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The judgment of the court was delivered by MACPHERSON J.A.: —
Introduction
Thousands of store owners and operators throughout Ontario sell cigarettes to customers. The legal issue presented by this appeal is of genuine practical consequence to them. The issue is, what is the responsibility in law of store owners and operators with respect to the sale of cigarettes to young people? Specifically, what forms of identification may a vendor accept to verify that a potential customer is legally permitted
to purchase cigarettes?
Factual Background
The parties and the events
At about 3:40 p.m. on August 13, 1997, Raymond Gervais went to Seaway Gas & Fuel Ltd. (“Seaway”), a small gas bar and store in Cornwall, to buy cigarettes. Raymond was born on March 26, 1981. Accordingly, he was 16 years old and was not legally permitted to purchase cigarettes.
Mrs. Param Phambri, the store clerk, requested identification. Raymond produced a laminated school identification card with writing at the top indicating Conseil Scolaire Public de Stormont, Dundas and Glengarry Public School Board. The card also contained the school’s logo or insignia and a recent photograph of Raymond with a date of birth of March 26, 1978 (thus establishing, it appeared, that he was 19 years old which is the legal age for purchasing cigarettes).
Mrs. Phambri sold a package of DuMaurier king size cigarettes to Raymond. He departed the store and rode away on his bicycle. Two provincial offences officers, Inspectors Robert Gilchrist and Yves Decoste, had been conducting surveillance on Seaway. They stopped Raymond a few blocks from the store. He provided the inspectors with his proper name and address. When asked about his date of birth, Raymond replied truthfully — March 26, 1981. Raymond admitted to the inspectors that he had purchased cigarettes at Seaway and that he had produced a student card as identification. Raymond had himself prepared the card with its false birth date, March 26, 1978, with the assistance of his computer.
Later the same day, Inspectors Gilchrist and Decoste proceeded to Seaway. They questioned Mrs. Phambri and advised her that she was being charged under the Tobacco Control Act, 1994, S.O. 1994, c. 10, with selling tobacco products to someone under the age of 19.
Mrs. Phambri called her husband Kulwant Phambri, the owner and president of Seaway. He came to the store. The inspectors informed him that charges would be laid against both Seaway, the corporate entity, and Mrs. Phambri, the store clerk who made the sale.
The litigation
The charges against Seaway and Mrs. Phambri proceeded to trial on March 18, 1998 before Her Worship Justice of the Peace Louise Rozon. Seaway and Mrs. Phambri were charged with violating s. 3(1) of the Tobacco Control Act which provides: 3(1) No person shall sell or supply tobacco to a person who is less than 19 years old.
On June 2, 1998, Justice of the Peace Rozon rendered her decision. She dismissed the charges against both Seaway and Mrs. Phambri. In reaching this conclusion, the trial judge considered s. 3(3) of the Tobacco Control Act and a regulation dealing with forms of identification under the Act.
Section 3(3) of the Act provides a defence to a charge under s. 3(1). It provides, in part: 3(3) It is a defence to a charge under subsection (1) . . . 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.
Referring to the words in the bottom half of this provision, the trial judge found that Mrs. Phambri was diligent about seeking identification from Raymond Gervais and that the identification appeared to be authentic: The identification produced is a laminated public school board card with photo, name, and date of birth. The card does not appear to have been tampered with, i.e. date of birth.
The trial judge recognized that this did not end the inquiry. Raymond Gervais had produced a school identification card when asked for proof of age. Was this “a prescribed form of identification” within s. 3(3) of the Act? On that question, it was necessary for the trial judge to consider a regulation promulgated under the Tobacco Control Act, namely O. Reg. 613/ 94:
The following forms of identification are prescribed for the purposes of subsection 3(3) of the Act:
A driver’s licence issued by the Province of Ontario with a photograph of the person to whom the licence is issued.
A Canadian passport.
A Canadian citizenship card with a photograph of the person to whom the card is issued.
A Canadian Armed Forces identification card.
A photo card issued by the Liquor Licence Board of Ontario.
In interpreting this provision, the trial judge considered a number of factors. She examined the dictionary definition of the word “prescribed”. She also discussed the difficulty non-Ontario customers would have in places like Cornwall (which is very close to both Quebec and New York state) if they were required to produce one of the prescribed forms of identification. In addition, she referred to s. 13 of the regulation which required retailers to post signs informing customers of the forms of identification “that may . . . be produced under subsection 3(3) of the Act” (emphasis is trial judge’s). Finally, the trial judge noted that s. 13 of the regulation requires stores to post signs listing the five forms of identification, but with the introductory words “Acceptable I.D.”; in her view, if only the five forms of identification set out in s. 1 of the regulation were permitted, the regulation would have said “The acceptable I.D.” or “Only acceptable I.D.” (emphasis is trial judge’s).
Taking these considerations together, the trial judge reached the conclusion: I am satisfied that Ontario Regulation 613/94 is a guide to be followed and other forms of I.D. may be presented. Since she found that Mrs. Phambri had exercised due diligence in requesting identification, and that the identification produced seemed to be authentic as to both the person and his age, she dismissed the charges against Seaway and Mrs. Phambri.
The Crown appealed. The appeal was heard by Judge B. MacPhee of the Ontario Court of Justice (Provincial Division) in Cornwall on February 3, 1999. On March 23, 1999, the appeal judge rendered his decision, dismissing the appeal. On the legal issue of whether the five forms of identification set out in s. 1 of the regulation was an exhaustive list of acceptable identification, the appeal judge agreed with the trial judge’s negative answer. He said: I see no error in the Justice of the Peace’s assessment of s. 13 of the regulation as it affects s. 1 of the regs. and thereby s. 3(3) of the Act. . . . The Tobacco Control Act and its regulations as drafted, allow for the proof of age through credible documentation other than that listed in the regulations.
The Crown sought leave to appeal Judge MacPhee’s decision. Pursuant to s. 139 of the Provincial Offences Act, R.S.O. 1990, c. P.33, Rosenberg J.A. granted leave on June 4, 1999.
Issue
There is a single legal issue in this appeal. What are the acceptable forms of identification that a customer may show to a store operator who challenges his or her capacity, in terms of age, to purchase cigarettes? Or, put another way, is it a defence to a charge under s. 3(1) of the Tobacco Control Act (selling tobacco products to underage persons) for the store operator to establish that he or she reviewed a form of identification, but not one listed in s. 1 of O. Reg. 613/94?
Analysis
My starting point is the same as that of both parties. The Tobacco Control Act (“the Act”) is a regulatory statute which creates strict liability offences; the offences come within the middle category of offences set out by Dickson J. in his important and innovative decision in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161. Dickson J. described this category of offence, and its consequences for both the Crown and the accused, in this fashion, at p. 1326:
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.
Section 3(1) of the Act, which prohibits the sale of tobacco to a person who is less than 19 years old, is a strict liability offence. Thus, in Dickson J.’s words, “the doing of the prohibited act prima facie imports the offence.” There is no dispute in the present case that the respondents, the store and its clerk, sold cigarettes to a person less than 19 years old.
However, a strict liability offence is not an absolute liability offence: this is the fundamental lesson of Sault Ste. Marie. There is a balancing of factors in strict liability offences. On the one side, an absence of mens rea to commit the offence does not assist the accused. On the other side, however, the accused can, in Dickson J.’s words, “avoid liability by proving that he took all reasonable care”. This is the common law statement of the defence of due diligence.
In the present case, however, the Ontario legislature has attempted to define the contents of the due diligence defence in respect of the offence of selling tobacco products to young people. In effect, the legislature has provided a statutory definition of what constitutes “all reasonable care” for this offence. The legislature has done this in s. 3(3 ) of the Act which, for ease of reference, I set out again: 3(3) It is a defence to a charge under subsection (1) . . . 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.
It can be seen that there are three components to this statutory defence: the defendant believed the person receiving the tobacco was at least 19 years old because (1) the person produced a prescribed form of identification showing his or her age; (2) there was no apparent reason to doubt the authenticity of the document; and (3) there was no apparent reason to doubt that the document was issued to the person presenting it. The respondents do not challenge the power of the legislature both to create a strict liability offence and to provide a due diligence defence. Nor does the respondent suggest that there is anything unreasonable about the contents of the due diligence defence established by s. 3(3) of the Act. Accordingly, the crucial issue on this appeal is the interpretation of this provision.
In the present appeal, there is no issue with respect to (2) and (3). The trial judge found that the store clerk, Mrs. Phambri, properly asked her customer for identification. The customer, Raymond Gervais, produced a school identification card which included his name, photo and date of birth. The trial judge found, “The card does not appear to have been tampered with, i.e. date of birth.” Moreover, the photo on the card was a picture of her customer. Accordingly, the trial judge held that there was no apparent reason for Mrs. Phambri to doubt either the authenticity of the card or the identity of the person producing it. The Crown does not quarrel with these aspects of the trial judge’s decision.
The real issue is precisely the one identified by the trial judge in her reasons: “What is an issue in the matter before this court is whether it was acceptable I.D.” That issue falls to be determined on the interpretation to be given to the words “prescribed form of identification” in s. 3(3) of the Act.
By O. Reg. 613/94, the Ontario government has defined the contents of “prescribed form of identification”. Section 1 of the regulation states that, “[t]he following forms of identification are prescribed for the purposes of subsection 3(3) of the Act.” Five forms of identification are then listed — an Ontario driver’s licence with a photograph of the person to whom the licence is issued, a Canadian passport, a Canadian citizenship card including photograph, a Canadian Armed Forces card, and a photo card issued by the Liquor Licence Board of Ontario.
In my view, subject to a minor qualification I will make at the conclusion of these reasons, these five items constitute an exhaustive list of the forms of identification that a vendor of tobacco products may examine when deciding whether a prospective customer is entitled to buy a package of cigarettes. I reach this conclusion for several reasons.
First, the dictionary definition of the word “prescribed” suggests exclusivity and compulsion. In her judgment, the trial judge stated: “Prescribed” not being defined in the Interpretation Act, I then verified the definitions in the dictionary. The dictionary definitions of “prescribed” are as follows:
“To set down as a direction or rule to be followed; to lay down the rules of the law” — Canadian Law Dictionary.
“To lay down as a guide, direction, or rule of action” — Webster’s Collegiate Dictionary.
“To lay down or impose authoritatively” — Oxford English Dictionary.
This is a fair selection of dictionary definitions. Having set them out in her reasons, the trial judge did not state explicitly how she interpreted these definitions. In my view, the words “rule to be followed”, “rule of action” and “impose authoritatively” suggest something that is mandatory. In the context of s. 3(3) of the Act that means that a vendor must insist that a customer produce one of the five statutory forms of identification.
Second, I do not think there is an inconsistency between the words “prescribed” in s. 3(3) of the Act and s. 1 of the regulation and “acceptable” in s. 13(5) of the regulation. In The New Oxford Dictionary of English (1998), the principal definition of the word “acceptable” is, “able to be agreed on; suitable . . . . adequate; satisfactory” (at p. 10). In my view, this definition is consistent with the definition of “prescribed” in the context of the Act. When s. 1 of the regulation lists five forms of identification as “prescribed”, and s. 13 of the same regulation lists the same five forms of identification as “acceptable”, the two adjectives mean the same thing — a vendor must insist that a prospective customer produce one of them.
Third, I do not think that the word “may” in s. 13(1) of the regulation means that other forms of identification may be considered by a store operator. In the context of five “prescribed” forms of identification in s. 1 and five “acceptable” forms of identification in s. 13(5), the word “may” in s. 13(1) simply means that the customer may produce any of the five listed forms of identification, not something completely different.
Fourth, I do not think that s. 3(6) of the Act assists the respondents. Section 3(6) provides: 3(6) No person shall present as evidence of his or her age identification that was not lawfully issued to him or her. In their factum, the respondents submit that this provision is “a logical limit to the extent of due diligence to be exercised by a clerk or store owner.” Since it appeared to the store clerk that the school identification card had been lawfully issued to the customer producing it, the store clerk was justified in making the sale.
I do not agree with this submission. The purpose of s. 3(6) is to create an offence for persons who produce a fake version of one of the five forms of prescribed identificatio n. The section does not purport to convert other forms of identification (e.g., a student identification card) into prescribed forms of identification simply because they are authentic and have been lawfully issued to the holder by the relevant authority (e.g., a school board).
Fifth, it needs to be recalled that the Act is an important public health statute. The Act and its regulations attempt to regulate in a strict and careful fashion the distribution of a dangerous product. In RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, the Supreme Court of Canada considered the federal Tobacco Products Control Act, R.S.C. 1985 (4th Supp.), c. 14, and some of the regulations promulgated pursuant to it. Referring to the general purposes of the regulations, Sopinka and Cory JJ. said, at p. 353: These are clear indications that the government passed the regulations with the intention of protecting public health and thereby furthering the public good. Later in their reasons, the justices referred to “the undeniable importance of the public interest in health and in the prevention of the widespread and serious medical problems directly attributable to smoking” (at pp. 353 -54).
In my view, this reasoning is entirely applicable to the Ontario Tobacco Control Act and suggests that the provisions of the Act and regulations should be interpreted with a judicial eye firmly focused 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.
Sixth, I do not think that it is an accident that the government chose only five — and five quite specific — forms of identification. The wallets of young people are filled with identification cards — school cards, sports team cards, club membership cards, retail store cards, movie rental cards, and a myriad of other types of cards. It would be easy for a minor to alter the information, including birth date, on some of these cards. That is what Raymond Gervais did in this case; as the trial judge put it, “Mr. Gervais admitted in evidence that he prepared the I.D. on his computer.”
The five forms of identification listed in s. 1 of O. Reg. 613/94 fall into a different category. They are quite formal documents issued by federal and provincial authorities. They are not easy to obtain; care is taken by the authorities in issuing them. I think a fair inference is that the Ontario legislature chose these five forms of identification because it knew that the authorities are careful in scrutinizing the relevant information before they are issued. In other words, there is a strong likelihood that the information on, for example, a Canadian passport or an Ontario driver’s licence is accurate.
Seventh, the position of Ontario merchants is one that combines privilege and responsibility. The privilege is the merchant’s opportunity to sell products to the public and to earn a profit, or even to gain a livelihood, thereby. The responsibility arises from the fact there is a direct interface or relationship between the merchant and the customer. With respect to regulated products, it is crucial that the merchant understand and respect the limits of its privilege to sell to the public. As expressed by Dickson J. in Sault Ste. Marie, supra, at p. 1322:The element of control, particularly by those in charge of business activities which may endanger the public, is vital to promote the observance of regulations designed to avoid that danger.
Applying this passage to the sale of tobacco products in Ontario, the message to vendors is a simple one: you must be scrupulously vigilant in ensuring that you do not sell tobacco products to minors. One of the ways a vendor fulfils this responsibility is by insisting that a young person seeking to buy cigarettes is in fact old enough to do so, as demonstrated by production of one of the five forms of identification prescribed in the regulation.
For these reasons, I do not think that the interpretation of s. 3(3) of the Act by the trial and appeal judges was correct.
I need to make a minor qualification to the conclusion I have reached. I recognize that there is at least one anomaly in the legislation in this domain. What is a store operator to do with the young person he or she challenges who produces identification from another jurisdiction that is similar to one of the five prescribed forms of identification in the Ontario regulation? For example, must a store operator refuse to sell cigarettes to a challenged young person who produces an apparently valid Quebec driver’s licence or United States passport? This situation can arise anywhere in Ontario but is, of course, particularly prevalent in a place like Cornwall which is very close to both Quebec and New York State.
Moreover, the anomaly is not limited to only visitors to Ontario. An additional category would be current Ontario residents who possess only formal documents from another jurisdiction — for example, a student from British Columbia, with a valid British Columbia driver’s licence, attending an Ontario university.
Section 1 of O. Reg. 613/94 does not provide an answer to the store operator in these situations. My answer to these scenarios is only partial, but it is the traditional answer of the common law method: they are not this case.
The Ontario legislature is properly concerned with proscribing consumption of tobacco products by young people. It has, therefore, legislated in this area. Part of the legislative response is a statutory due diligence defence anchored in a limited number of formal Canadian and Ontario government-issued documents.
This statutory due diligence defence, by its terms, does not cover every situation. It does not address the situation of sales to young people from other jurisdictions with identification similar to that prescribed in the Ontario law. Nor does it cover sales to some current Ontario residents who might only possess identification from other jurisdictions.
It may well be that, with respect to sales to young people in these categories, the common law defence of due diligence, grounded in Dickson J.’s language in Sault Ste. Marie — “leaving it open to the accused to avoid liability by proving that he took all reasonable care” — would play a residual role and provide protection to store operators. However, whatever difficulties might be presented by a relatively small group of consumers of tobacco products, those difficulties should not detract from the clear and strict regime the legislature has put in place for merchants and the vast majority of their customers. With respect to those customers, the merchant must insist that the young person he or she challenges produce one of the five prescribed forms of identification.
Disposition
I would allow the appeal. Convictions should be entered against both respondents for committing the offence of selling
a tobacco product to a minor contrary to s. 3(1) of the Tobacco Control Act. In the circumstances of this case, it is appropriate to grant both respondents absolute discharges.
Appeal allowed.
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