J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 87 Date: 2006 02 23 Docket: Q.B.C.A. No. 247/2005 Judicial Centre: Yorkton BETWEEN: WESTFAIR FOODS LTD. and HER MAJESTY THE QUEEN Counsel: Daryl E. Labach for the appellant Randy P. Kachur for the respondent JUDGMENT BARCLAY J. February 23, 2006 [1] Westfair Foods Ltd. (“Westfair”) is a corporation that was charged in an information which stated the following:THAT Westfair Foods Ltd., doing business as Extra Foods, 290 Prince William Drive, Melville, SK., on or about the 25th day of August, A.D. 2003, at or near the City of Melville, in the Province of Saskatchewan, did unlawfully furnish a tobacco product, to wit: cigarettes, to a young person in a public place, contrary to section 8(1) of the Tobacco Act, S.C. 1997, chapter 13. [2] On June 20, 2005, Provincial Court Judge Andrychuk convicted Westfair on the summary conviction offence. $3,000.00 fine was imposed as sentence. GROUNDS OF APPEAL [3] Westfair has appealed this conviction pursuant to s. 813 of the Criminal Code. This section confers the rights of appeal from adjudications made in summary conviction proceedings. Westfair is requesting that the conviction be quashed, the sentence vacated and an acquittal entered. Westfair has appealed its conviction on the following grounds: The learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case; The learned trial judge erred in law by failing to apply the doctrine of stare decisis; The verdict was unreasonable by being inconsistent with the acquittal of the appellant in the case of R. v. Westfair Foods Ltd. and Roy H. Friesen, Sask. P.C. Information No. 33262198, J.C. Regina, May 31, 2005, Smith P.C.J. [4] The facts, which are not in dispute, may be summarized as follows. On August 25, 2003, Westfair was operating grocery store in Melville, Saskatchewan under the trade name of Extra Foods. On that day, Kristy Schafer (“Kristy”), an employee of Westfair sold package of Players Light cigarettes to Josh Bray (“Josh”). Josh is 16-year-old test shopper employed by Health Canada. He was accompanied by DeLee Grant, Tobacco Enforcement Officer (“Ms. Grant”), during this compliance check. [5] At approximately 11:17 a.m., Josh entered the Extra Foods Store in Melville and went to the closest check out counter. Kristy was the 16-year-old sales clerk working that checkout counter. She had been hired on June 10, 2003 and had worked part‑time from that date until August 25, 2003. On the day in question, she was asked by Josh for package of Players Light cigarettes. Kristy got the package of cigarettes out of locked cabinet. She accepted Josh’s money for the cigarettes and then gave him his change, receipt, and the cigarettes. At no time did Kristy make any attempt to verify that Josh was at least 18 years of age nor was she shown any documentation verifying his age. [6] At approximately 11:20 a.m., Josh exited Extra Foods. He provided Ms. Grant, with the package of cigarettes, the change, and the receipt. These facts are not disputed by Westfair. Westfair relies on the statutory defence of due diligence. [7] The trial judge found Westfair guilty of violating s. of the Tobacco Act, S.C. 1997, c.13 (the “Act”). This section makes it an offence to furnish or sell tobacco to person under 18. The section states: 8.(1) No person shall furnish tobacco product to young person in public place or in place to which the public reasonably has access. (2) person shall not be found to have contravened subsection (1) if it is established that the person attempted to verify that the person was at least eighteen years of age by asking for and being shown documentation prescribed for the purposes of verifying age, and believed on reasonable grounds that the documentation was authentic. [8] Section 54 of the Act provides defence of due diligence for person that is charged with an offence under the Act. The section states: 54. In prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission. [9] Section of the Act is strict liability offence. The definition of strict liability offence was discussed by Dickson J. of the Supreme Court of Canada in v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] S.C.R. 1299. He categorized strict liability offences at p. 1326: 2. 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 reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in 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…. [10] Dickson J. in Sault Ste. Marie, supra, went on to discuss the defence of due diligence which was available to person accused of strict liability offence. He stated at p. 1331: 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, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself.… [11] In R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] S.C.R. 154, the Supreme Court of Canada established that an accused who is charged with strict liability offence has the onus of establishing defence of due diligence which must be proved on balance of probabilities. [12] In R. v. Sobeys Inc. (2000), 2000 CanLII 1961 (NS SC), 181 N.S.R. (2d) 263; (2000), 45 W.C.B. (2d) 362; [2000] N.S.J. No. 32 (QL) heard in the Nova Scotia Supreme Court, Justice MacAdam dismissed an appeal from Sobeys Inc. who were convicted of selling tobacco to minor pursuant to the Tobacco Access Act, S.N.S. 1993, c. 14, s. 5(1). MacAdam J. discussed the defence of due diligence for this strict liability offence and stated at para.36: [36] Undisputed is that to establish the defence of due diligence, the accused must show, on balance of probabilities, that the conduct took place without its direction or approval, that it exercised all reasonable care by establishing proper system to prevent commission of the offence and, finally, that it took reasonable steps to ensure the effective operation of its system and supervised its operation.... SCOPE OF REVIEW [13] This summary conviction appeal was taken pursuant to s. 813 of the Criminal Code. The appeal procedure for summary conviction appeal can be found in Part XXVII of the Criminal Code (ss. 812‑839). Section 830(1) of the Criminal Code sets out the powers of the summary conviction appeal judge. An appeal can be heard from summary conviction court on the grounds that it is erroneous in point of law, it is excess of jurisdiction; or it constitutes refusal or failure to exercise jurisdiction. Section 830(2) states that the appeal of the summary conviction offence will be based on transcript of the proceedings or an agreed upon statement of facts. [14] This appeal was brought forward on three separate grounds. However, find that it is only necessary to address the first ground of appeal. [15] Westfair argues that the learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case. In the case at bar, whether Westfair proved the defence of due diligence on balance of probabilities is question of fact for the trial judge to determine: see R. v. Harris (1997), 1997 CanLII 990 (NS CA), 121 C.C.C. (3d) 64 (N.S.C.A.). This finding of fact cannot be disturbed by summary conviction appeal judge. However, in R. v. Fibreco Pulp Inc., [1997] B.C.J. No. 846 (QL), (1997) 88 B.C.A.C. 258, (1997) 23 C.E.L.R. (N.S.) 122 the British Columbia Court of Appeal confirmed that it is an error of law for judge to apply standard of perfection rather than standard of reasonable care when determining if defence of due diligence has been established for strict liability offence. [16] In R. v. Westfair Foods Ltd. and Roy H. Friesen, supra, the Provincial Court Judge who considered an identical charge against the same corporation held that Westfair Foods Ltd. had complied with its obligations under the Act. The learned Provincial Court Judge in conclusion stated: am satisfied that the evidence shows that Westfair Foods has completely complied with its obligation and is actually model, in my respectful opinion, for other people selling cigarettes as to how to conduct their business and, accordingly, acquit them of the charges. The system implemented by Westfair Foods Ltd. in R. v. Westfair Foods Ltd. and Roy H. Friesen to prevent the sale of tobacco to minors was essentially the same as the procedure followed by Westfair in this case. [17] The evidence tendered at the trial suggests that prior to the incident on August 25, 2003, Westfair had an established system created to prevent the commission of the offence of selling tobacco products to minors. Although the trial judge did not discuss this evidence in detail, will briefly summarize the facts surrounding the established system that Westfair had in place at the time of the offence in order to prevent the sale of tobacco to minors. [18] Each employee of the Extra Foods in Melville received written Tobacco Sales Policy when they were hired. The policy generally states that tobacco cannot be sold to anyone under the age of 18. If person looks as though there are under 25 years of age or if there is any doubt about the customer’s age, then the customer should be required to provide identification to the cashier before they can purchase tobacco. If the customer refuses to provide identification, the sale should be refused or the manager or supervisor should be called. The policy also states that failure to comply with the policy may result in charges being laid against the employee or the customer which could result in fines. Each employee is required to read the policy. The policy is then reviewed with them by the person conducting the training. If the new employee understands the policy then they will sign it. [19] On the first day of training, each newly employed cashier was required to participate in role playing. Valdeen Mathies, the head cashier in charge of training, would act as test shopper, fill her cart with products, and proceed through the check‑out line in order to train the cashier on the store’s policies and procedures. During this role playing exercise, Ms. Mathies would purchase tobacco so that the cashier could get comfortable with the stores policy and procedures surrounding the sale of tobacco. [20] Each cash register at the Extra Foods Store in Melville had cash register software which prompted the cashier to enter the customer’s date of birth when tobacco product was sold. The cashiers were advised that if customer appeared to be under 25 then their birth date must be entered into the till. If the cashier is satisfied that the customer looks 25 years or older then the cashier can enter the numbers 1909‑09‑09 into the till and this will override the screen prompt. [21] Ms. Mathies gave cashiers recognition tests every two to three weeks. These tests reviewed the store’s policies in relation to several areas and they always included questions about tobacco. Ms. Mathies testified that one of the possible questions she asked was in relation to the store’s policy on selling tobacco to minors. [22] Ms. Mathies testified that she conducted quarterly reviews with the cashiers based on the company’s Tobacco Sale Policy and their computer software policy designed to assist in preventing the sale of tobacco to underage customers. Each employee was required to sign sheet acknowledging that they had read and understood the policies. [23] There was sign located at every till which stated that it was illegal to sell tobacco to someone who is under 18. These signs were also on the locked cabinet that held the tobacco. [24] Ms. Mathies testified that the cashiers were trained to call supervisor, manager or assistant manager if customer was upset about being asked for identification when purchasing tobacco. The cashiers were told that they did not have to deal with the situation themselves. [25] Westfair had auditors that tested each store once year or at minimum once every two years. These audits may have included testing in relation to identification for tobacco sales. If there were any problems during the audit the store would be made aware of the results. [26] Westfair had implemented mandatory punishments for employees that sold tobacco products to minors. Probationary employees were terminated and regular employee would be subject to two week suspension. If regular employee sold tobacco to minor for second time, they were also dismissed. [27] The trial judge concluded that the appellant did not establish the defence of due diligence. There is no dispute as to the facts of this case. Although the trial judge correctly set out the state of the law surrounding the defence of due diligence, I am of the view that the trial judge erred in applying an unreasonably high standard for this defence. The question before the trial judge was whether the appellant had taken all reasonable care in establishing proper system to prevent their cashiers from selling tobacco to minors and whether they had taken reasonable steps to ensure the effective operation of this system. [28] In order to resolve this issue, the trial judge was required to consider what reasonable person would have done in these circumstances to avoid this offence. reasonable person is not required to possess extraordinary or great diligence. They are not required to exercise the extreme care that person of unusual prudence would apply. Instead, in establishing the defence of due diligence for strict liability offence, an accused must show that he took all reasonable steps to avoid the offence. [29] An analysis of the trial judge’s decision reveals that he applied higher standard of due diligence to the facts of the case than is warranted by the law. The trial judge applied standard of due diligence which required Westfair to be able to prove that there were no other possible precautions or actions that could have been taken to prevent the company’s cashiers from selling cigarettes. This standard exceeds the requirements of reasonable person. For the trial judge to find that Westfair had proven due diligence on the balance of probabilities, he implied that Westfair must be able to prove that there was nothing else that could have been done by the company to prevent the sale of tobacco to minors. The trial judge suggested that this burden had not been satisfied because Westfair could have given the cashiers training on age evaluation, they could have used in‑house test shoppers, they could have had older cashiers exclusively sell cigarettes, and they could have made it difficult to override the cash register software which prompts the cashier to enter the customer’s date of birth when tobacco product is sold. This burden is consistent with standard of perfection and essentially implies zero tolerance. Provincial Court Judge Fitzpatrick in R. v. Courtaulds Fibres Canada (1992), 1992 CanLII 12826 (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Ct.) held at p. 77: Reasonable care and due diligence do not mean superhuman efforts. They mean high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move strict liability offence dangerously close to one of absolute liability. [30] The trial judge should have inquired whether Westfair “exercised all reasonable care by establishing proper system to prevent the commission of the offence and, finally, that it took reasonable steps to ensure the effective operation of its system and supervised its operation” (Sobeys Inc., supra, at para. 36). By applying a higher standard of due diligence, the trial judge erred in law. Had the appropriate standard of due diligence been applied to the facts of this case, Westfair would have succeeded in establishing the defence of due diligence as was decided in R. v. Wesfair Foods Ltd. and Roy H. Friesen, supra. CONCLUSION [31] In summary then, this appeal is allowed, the conviction quashed and a verdict of an acquittal shall be entered. J. R. L. Barclay
The appellant appeals its conviction of selling tobacco to a minor contrary to s. 8(1) of the Tobacco Act. The appellant argues that the learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case. HELD: The appeal is allowed, the conviction is quashed and a verdict of acquittal is entered.  1) The court reviewed in detail the steps the appellant had in place. 2) The court was of the view that the trial judge erred in applying an unreasonably high standard for this defence. The trial judge applied a standard of due diligence that required the appellant to be able to prove that there were no other possible precautions or action that could have been taken to prevent the company's cashiers from selling cigarettes. This standard exceeds the requirements of a reasonable person. By applying a higher standard of due diligence, the trial judge erred in law. Had the appropriate standard of due diligence been applied to the facts of this case, the appellant would have succeeded.