J. Date: 19981202 Docket: C.A.C. 148131 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Cromwell, JJ BETWEEN: HER MAJESTY THE QUEEN, as represented by the Attorney General of Nova Scotia and SOBEY'S INCORPORATED, body corporate Respondent James A. Gumpert, Q.C. for the Appellant William L. Ryan, Q.C. and Chantal M. Richard for the Respondent Appeal Heard: December 2, 1998 Judgment Delivered: December 2, 1998 THE COURT: Appeal allowed per oral reasons for judgment of Cromwell, J.A.Freeman and Bateman, JJ.A. concurring CROMWELL, J.A.: (Orally) Sobey's Incorporated was acquitted by Cole, Prov. Ct. J. on a charge that it, on the 3rd of September, 1997, sold tobacco or a tobacco product to a person under the age of 19 years contrary to s. 5(1) of the Tobacco Access Act, S.N.S. 1993, c. 14. The actus reus of the offence was clearly proved. The issues at trial, and on this appeal, involve the constitutionality of the Act and the defence of due diligence. The trial judge found that the Tobacco Access Act was ultra vires the Legislature. He reasoned that federal legislation had "occupied the field" with the Tobacco Act, S.C. 1997, c. 13, that it "cannot stand side by side with the provincial legislation", and that the federal legislation therefore prevails. Having found the legislation under which the accused was charged to be unconstitutional, an acquittal was entered. The Crown appeals from that finding. The trial judge also indicated that, had he found the legislation to be constitutional, he would have entered conviction because he rejected the defence of due diligence advanced by the accused. It is apparent from the interchange between the Court and counsel for Sobey's at trial, to which the trial judge referred in his judgment, that he thought the relevant consideration was whether the employee who sold the tobacco product had been duly diligent rather than whether the accused, Sobey's, had been duly diligent. The trial judge said: The only way we have to make corporations accountable is through their employees, 'cause those are the servants and agents, and when acting in the scope of their authority, it seems to me that they are the corporation ..... Well, if you're right, the next time steal chocolate bar from Sobeys and I'm charged with theft, or anybody else for that matter, I'm gonna say my hand did it, didn't. I'll expect to be acquitted if buy your argument today ...... And I'm quite familiar with Sault Ste Marie. hear it every week, at least. Sobey's, by way of cross-appeal, challenges this aspect of the trial judge's findings. On the constitutional point, we are of the view that the trial judge erred in finding the provincial Statute unconstitutional. As submitted by the Crown, the proper method of analysis in this case has three steps. First, it is necessary to determine "the matter„, or the "pith and substance" of each of the federal and provincial laws. We are satisfied that the Province's Tobacco Access Act is legislation in relation to the health of young persons. As for the federal legislation, it has been assumed by both parties that it is in pith and substance criminal law as was decided in relation to its predecessor statute by majority of the Supreme Court of Canada in RJR-Macdonald Inc. v. Attorney General of Canada, 1995 CanLII 64 (SCC), [1995] S.C.R. 199; (1995), 127 D.L.R. (4t") 1. Assuming, without deciding that is the case, it is necessary to move to the second step of the analysis. The second step requires that the matter of each of the laws be assigned to one or more of the classes of subjects in respect of which the federal and provincial governments have legislative authority under the Constitution Act, 1867. The "matter" of the provincial Statute, the health of young persons, is within provincial legislative competence under section 92(16). As the Supreme Court of Canada noted in R. v. Morgentaler, 1993 CanLII 158 (SCC), [1993] S.C.R. 462; (1993), 1993 CanLII 74 (SCC), 85 C.C.C. (3d) 118 at 138 (C.C.C.), that section gives the provinces "...general jurisdiction over health matters within the province..." The matter of the federal Act is assumed to fall under s. 91 (27) setting out the power to legislate in relation to criminal law. The third step in the analysis is to determine whether there is conflict between the federal and the provincial laws. On this aspect of the analysis, we need only consider ss. and 12 of the Act. If there is conflict, the federal law prevails under the doctrine of paramountcy. The test for determining whether there is conflict was set out by the Supreme Court of Canada in Multiple Access v. McCutcheon, 1982 CanLII 55 (SCC), [1982] S.C.R. 161 and reiterated in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987 CanLII 72 (SCC), [1987] S.C.R. 59 and Irwin Toy Ltd. v. Attorney General (Quebec), 1989 CanLII 87 (SCC), [1989] S.C.R. 927. In Multiple Access, Dickson, J., as he then was, said at page 191: In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other. (emphasis added) There is no conflict here in this sense between the federal and provincial legislation. It follows that the two Acts can operate side by side and that the trial judge erred in finding the provincial Act unconstitutional. It is unfortunate that notice was not given by the accused of its intention to make the constitutional argument. Had it been, the trial judge would likely have had the advantage of being referred to the relevant authorities. Turning to the due diligence issue raised on the cross-appeal, the trial judge also erred in concluding that the onus on Sobey's was to show that its employee was duly diligent rather than that it was duly diligent. The law was stated by the Supreme Court of Canada in R. v. Corporation of City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] S.C. R. 1299; (1978), 40 C.C.C. (2d) 353 to which the trial judge referred. In that case, Dickson, J., as he then was, said at p. 1331 [S.C.R.]: Since the issue is whether the defendant is guilty of an offence, the doctrine of respondeat superior has no application. The due diligence which must be established is that of the accused alone. Where an employer is charged in respect of an act committed by an employee acting in the course of employment. the question will be whether the act took place without the accused's direction or approval... and whether the accused exercised all reasonable care by establishing_a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. (emphasis added) In the result, the appeal is allowed, the judgment of the trial judge is set aside and the matter is remitted to a differently constituted Provincial Court for trial. Having given our view with respect to the point of law raised by way of cross­appeal, it is not necessary for us to make any order with respect to the cross­appeal. Cromwell, J.A. Concurred in: Freeman, J.A. Bateman, J.A. CANADA CASE NUMBER 763696 PROVINCE OF NOVA SCOTIA 1998 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus SOBEYS INCORPORATED #610 HEARD BEFORE: The Honourable Judge David E. Cole PLACE HEARD: Amherst, Nova Scotia DATE HEARD: 06 May 1998 CHARGE: THAT THEY, on or about the 3' day of September, 1997, at, or near 147 South Albion Street, Amherst, in the County of Cumberland, Province of Nova Scotia, did sell tobacco or tobacco product to person under the age of 19 years, contrary to section 5(1) of the Tobacco Access Act. COUNSEL: Mr. Bruce Baxter, for the Crown Mr. William Ryan, for the Defense C.A. No.148131 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN, as represented by the Attorney General of Nova Scotia and SOBEY'S INCORPORATED, body Respondent REASONS FOR JUDGEMENT BY: CROMWELL, J.A. (Orally)
The respondent grocery store was charged with selling tobacco to a person under the age of 19, contrary to s. 5(1) of the Tobacco Access Act. The actus reus of the act was clearly proved at trial. The trial judge acquitted as a result of his finding that the legislation was ultra vires the Province. He reasoned that federal legislation had 'occupied the field' with the Tobacco Act, that the federal legislation cannot stand side by side with the provincial legislation, and that the federal legislation therefore prevails. The trial judge further commented that, had the Act been constitutional, he would have convicted because he did not accept the accused's defence of due diligence. The Crown appealed, and the accused cross-appealed. Allowing the appeal and remitting the matter to Provincial Court for trial, that the Tobacco Access Act is legislation in relation to matters of health, and therefore within provincial jurisdiction. It does not conflict with the federal Tobacco Act. The trial judge therefore erred in finding that the Tobacco Access Act was ultra vires. The trial judge also erred in law with respect to the defence of due diligence. The question is not, as the trial judge thought, whether the employee who sold the tobacco was duly diligent, but whether the accused, her employer, exercised all reasonable care by establishing a proper system to prevent the commission of the offence, and by taking all reasonable steps to ensure the effective operation of the system.