r v. COMMISSION SCOLAIRE, 2011 QCCQ 13979

Directeur des poursuites criminelles et pénales c. Commission scolaire Marie-Victorin 2011 QCCQ 13979 JR1387 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL “Criminal and penal division” No.: 505-61-090646-092 DATE: November 18, 2011 ______________________________________________________________________ PRESIDING: Marc Renaud, Presiding Justice of the Peace ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor v.

COMMISSION SCOLAIRE MARIE-VICTORIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Commission scolaire Marie-Victorin (hereinafter “the defendant”) is charged with the following offence: [ translation ] On or about October 2, 2008, at Longueuil, at 7450 Blvd. Cousineau (École André Laurendeau), being the operator of a place or business to which

chapter II of the Act applies, did tolerate smoking in an area where smoking is prohibited . Tobacco Act (R.S.Q., c. T- 0.01), sections 11 and 43 .

FACTS : [ 2 ] On October 1, 2008, between 1 p.m. and 3 p.m., two government tobacco control inspectors visited the École secondaire André Laurendeau at class dismissal times to see if students were smoking on the school grounds. [ 3 ] They observed that in fact many students were smoking on the school grounds and, a little later, they identified themselves to one of supervisors they encountered on-site. [ 4 ] On October 2, 2008, one of the inspectors returned to the same location at about 9 a.m. At 9:15 a.m., about a hundred students exited the school building for their fifteen-minute recess break.

She observed that about sixty students were smoking on the school grounds. [ 5 ] These students were smoking in clear sight, but there were no supervisors outside the school. [ 6 ] Immediately following this recess break, the inspector entered the institution and met with the school’s vice-principal to inform him of the situation.

ISSUE : [ 7 ] The defendant admits that the prosecutor has proved the essential elements of the offence beyond a reasonable doubt since many people were smoking on the school grounds between 9:15 and 9:30 a.m. on October 2, 2008. [ 8 ] The defendant nevertheless raises a due diligence defence.

ANALYSIS : [ 9 ] The defendant’s burden of proof with respect to its due diligence does not consist only in raising a reasonable doubt in this regard.

It must establish due diligence on a balance of probabilities. [1] [ 10 ] As soon as the Tobacco Act came into force in 2006, the school authorities implemented a code of conduct including a smoking ban. [ 11 ] In addition, the school’s vice-principal meets with every class at the beginning of the school year to tell students about the code of conduct and, among other things, the fact that smoking is prohibited both inside the school and on the school grounds. [ 12 ] The students are also informed that they will be suspended from school if they are caught smoking. [ 13 ] In this school, there are six full-time supervisors.

Fifteen additional supervisors are also assigned to oversee students during the lunch period. [ 14 ] Furthermore, numerous no-smoking signs are posted both inside and outside the school. [ 15 ] Moreover, a theater company comes to educate the students about the consequences of drug and tobacco use. [ 16 ] Since 2006, school authorities have taken steps to prevent students from smoking on the school grounds. [ 17 ] A government guide [2] on implementing a tobacco-free school strategy was given to the school. [ 18 ] At the start of the school year, agendas incorporating the code of conduct are given to the students and their parents, and the parents must sign an agreement promising to follow it. [ 19 ] Failure to comply with the code of conduct results in the internal or external suspension of the student. [ 20 ] When students are caught smoking on the school grounds, they usually receive a one-day external suspension along with homework to be done during the suspension. [ 21 ] In 2008, there were six supervisors for 2200 students.

The six supervisors worked from 7:30 a.m. to 3 p.m. and used walkie- talkie-like devices to communicate with each other. [ 22 ] As far as the school authorities are concerned, smokers go outside the institution and know very well where they can smoke. [ 23 ] When supervisors see a student smoking, they direct them to the place authorized for that purpose, which is a two- to three- minute walk outside the school grounds. [ 24 ] The supervisors inform the school authorities when a student has been smoking in an unauthorized area, and the school authorities must then decide on the sanction to impose. [ 25 ] During morning recess, there may be up to 100 students outside the school, but approximately 2100 students remain inside.

The supervisors are therefore assigned to the inside of the building and only go outside if necessary. [ 26 ] Given their limited human and financial resources, the school authorities argue that they make optimal use of the six supervisors. [ 27 ] As for assessing due diligence, the Superior Court is of the opinion that it is not sufficient to warn or prohibit, it is necessary to prevent; evidence of a general directive is insufficient without frequent spot checks, as stated by Bienvenue J. in Beauce Express Inc. v. Québec (A.G.) (14 August 1991, Sup.

Ct.) . : [ translation ] To claim due diligence, it is therefore not enough to freely hand out instruction booklets and short summaries of the legislation if you do not meet your overriding obligation to actually prevent the commission of the offence through serious, frequent, on-site checks by your employees, for which you assume responsibility at every level. [ 28 ] For the prosecution, the defendant made some efforts but did not exercise due diligence since approximately sixty students were smoking on the school grounds during the morning recess, and no supervisors had been assigned to work outdoors by the school authorities. [ 29 ] The evidence also establishes that the supervisors are uncomfortable with being viewed by the students as the smoking police, wishing quite simply to maintain a cooperative relationship with them. [ 30 ] Furthermore, how can the defendant ensure compliance with the Tobacco Act when there are no supervisors outside the school during the morning recess break? [ 31 ] In this case, it is clear, in the Court’s mind, that a reasonable person, placed in the same situation, would have posted supervisors outside the school during the morning recess break to ensure that students abide by the law. [ 32 ] To argue due diligence, it is not enough to give instructions to the students; you must also ensure that they are followed. [ 33 ] The Court believes rather that it is budgetary restrictions that prevent the school from assigning supervisors to the outside of

the building during the morning recess break. [ 34 ] In these circumstances, the defendant has not shown, to the satisfaction of the Court, that it took all the precautions that a reasonable person would take in the same circumstances to prevent the commission of the offence. FOR THESE REASONS, THE COURT : CONVICTS the defendant of the offence with which it is charged; SENTENCES the defendant to pay a fine of $400. The whole with costs. __________________________________ MARC RENAUD, PRESIDING JUSTICE OF THE PEACE Mtre Daniel Tousignant For the prosecution Mtre Martin Bouffard For the defendant Hearing date: September 29, 2011