2017 ONCJ 767, 2017 ONCJ 767

CITATION: Peel (Region, Department of Public Health) v. Le Royal Resto and Lounge Inc. , 2017 ONCJ 767 DATE: November 16, 2017 IN THE MATTER OF Smoke-Free Ontario Act, S.O. 1994, c. 10 Between The Region of Peel (Department of Public Health) prosecutor and Le Royal Resto and Lounge Inc. defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Trial held: September 20, 2017 Judgment released on: November 16, 2017 Charge: Le Royal Resto and Lounge Inc. did fail as an employer to ensure no person holds lighted tobacco in enclosed workplace, contrary to s. 9(3) (

a) of the Smoke-Free Ontario Act Counsel: A. Krywoj, prosecutor for the Region of Peel (Department of Public Health) J. Irving, counsel for the corporate defendant, Le Royal Resto and Lounge Inc.

Cases Considered or Referred To: Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75 , [2013] O.J. No. 520 (O.C.A.), per MacPherson, Armstrong, and BlairJJ.A. Ontario (Ministry of Labour) v. Hamilton (City), (ON CA), [2002] O.J. No. 283 (O.C.A.), per Weiler, Sharpe, andSimmons JJ.A. R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 (S.C.C.). Vancouver (City) v. Abdiannia (c.o.b. Ahwaz Hookah House), [2015] B.C.J. No. 1295 (B.C.S.C.), per Leask J. De minimis non curat lex cases: 244574 Alberta Ltd. v. Perspec Interiors Ltd., [1986] A.J. No. 544 (A.Q.B.), Master Funduk (in chambers).

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 , [2004] S.C.J. No. 6(S.C.C.). Ontario v. Canadian Pacific Ltd., (SCC), [1995] S.C.J. No. 62 (S.C.C.). Ontario (Ministry of Natural Resources) v 819743 Ontario Inc., 2013 ONCJ 128 , [2013] O.J. No. 1158 (O.C.J.), per DechertJ.P. R. v. Beets, [2017] Y.J. No. 339 (Y.T.C.), per Chisholm J. R. v. Cancoil Thermal Corp. (1986), (ON CA), 27 C.C.C. (3d) 295 (O.C.A.), per Martin, Lacourciere and GoodmanJJ.A. R. v. Castonguay Blasting, 2013 SCC 52 , [2013] 3 SCR 323; [2013] S.C.J. No. 52 (S.C.C.). R. v.

Croft, 2003 NSCA 109, [2003] N.S.J. No. 368 (N.S.C.A.). R. v. Cuerrier, [1998] 2 S.C.R. (S.C.C.). R. v. Ferreira, 2014 ONCJ 21 , [2014] O.J. No. 189 (O.C.J.), per ODonnell J. R. v. Juneja, 2009 ONCJ 572 , [2009] O.J. No. 5119 (O.C.J.), per Duncan J. R. v. G. (T.), [1990] A.J. No. 39 (Alta. Prov. Ct.), per Russell J.

R. v. Goodman, 2005 BCPC 83, [2005] B.C.J. No. 542 (B.C.P.C.), per Challenger J. R. v. Hinchey, (SCC), [1996] S.C.J. No. 121 (S.C.C.). R. v. Li, [1984] O.J. No. 569 (O.H.C.), per Montgomery J. R. v. McLaren, [2014] M.J. No. 189 (Man. Prov. Ct.), per Wiebe J. R. v. Petro-Canada, 2009 ONCJ 179, 82 WCB (2d) 729, (O.C.J.), per Manno J.P. R. v. St. Paul (Town), [1993] A.J. No. 953 (Alta. Prov. Ct.), per Dzenick J. R. v. Starosielski, [2001] A.J. No. 1453 (Alta. Prov. Ct.), Sully J. R. v. Superior Custom Trailers Ltd., [2009] O.J. No. 6104 (O.C.J.), per Valente J. R. v. Syncrude Canada Ltd., 2010 ABPC 229, [2010] A.J.

No. 730 (Alta. Prov. Ct.), per Tjosvold J. R. v. UBA Inc., 2009 CarswellOnt 9923 (O.C.J.), per Woolworth J.P. R. v. Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.), per Vannini J. R. v. Williams Operating Corp., [2008] O.J. No. 3736 (S.C.J.O.), per Platana J. The Reward (1818), 2 Dodson’s R. 265 (H.C. of Admiralty of England), per Sir William Scott. Statutes, Regulations, By-Laws, and Rules Cited: Smoke-Free Ontario Act, S.O. 1994, c. 10, ss. 1(1), 1(2), 9, 9(1), 9(3), and 9(3)(a). General Regulation (Smoke-Free Ontario Act), O. Reg. 48/06. Peel Waterpipe Smoking By-Law, Peel By-Law No. 30-2016.

Provincial Offences Act, 1979, S.O. 1979, c. 4, s. 1(e).

Provincial Offences Act , R.S.O. 1990, c. P.33, s. 80. Authorities or Reference Material Referred to or Considered: Barber, Katherine, ed., Canadian Oxford Dictionary, second edition (Don Mills, Ontario: Oxford University Press Canada, 2004), “burn”, “ignite”, and “lit”. Drinkwalter, W.D. and Ewart, J.D., Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980). Libman, R. Libman on Regulatory Offences in Canada (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) (in update 8 - November 2006). Olszynski, Martin Z.

P., “Ancient Maxim, Modern Problems: De Minimis, Cumulative Environmental Effects and Risk-Based Regulation”, (2015) 40:2 Queen's L.J. 705 – 740. Paciocco, D.M. and Stuesser, L., The Law of Evidence, 6th ed. (Toronto, Ontario: Irwin Law Inc., 2011). Swaigen, J., Regulatory Offences in Canada - Liability & Defences (Scarborough, Canada: Carswell - Thomson Professional Publishing, 1992), p. 72.

Exhibits entered: Exhibit "1" - copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with red band and tin foil cover on top of bowl that was marked as #9 by Public Health Inspector Biley. (1 page) Exhibit "2" - copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with red band marked as #9 and with tin foil cover on top of bowl removed showing red-coloured shisha inside the bowl. (1 page) Exhibit "3" - copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with blue and yellow band and tin foil cover on top of bowl that was marked as #10 by Public Health Inspector Biley. (1 page) Exhibit "4" - copy of photograph taken by Public Health Inspector Biley on January 14, 2017, at 755 Queensway East, Mississauga, Ontario, of bowl with blue and yellow band marked as #10 and with tin foil cover on top of bowl removed showing bright/fresh red- coloured shisha (minty scent) inside the bowl. (1 page) Exhibit "5" - copy of Certificate of Analysis prepared by Cindy Carrier, Analyst in Alcohol and Tobacco

Section of the Science and Engineering Directorate of Canada Border Services Agency (CBSA), dated February 15, 2017 at 79 Bentley Avenue, Ottawa, identified as laboratory report 193476-001, with reference number 1957171 and requester named as MayBellnne Biley, of sample taken at 11:47 p.m. from bowl with blue and yellow band marked as #10 in evidence bag 204812 on January 14, 2017 at 11:55 p.m. from Le Royale premises located at 755 Queensway East, Mississauga, indicating sample consists of a clear plastic cup containing approximately 26 grams of vegetable matter covered in red viscous liquid.

The finding in the report is that the “vegetable matter was physically examined and chemically analyzed and found to contain tobacco”. (1 page)

Exhibit "6" - copy of eatery/restaurant operating licence for Le Royal Resto and Lounge, 755 Queensway East, Unit 116, Mississauga, Ontario issued Dec. 6, 2016 and expiring Dec. 31, 2017. (1 page) Exhibit "7" - copy of the Corporate Profile Report produced March 2, 2017, at 16:41:01, for Le Royal Resto and Lounge Inc. , indicating an Ontario corporation number of 2405537, a registered office address of 755 Queensway East, Suite 116, Mississauga, Ontario, L4Y 4C5, and indicating an incorporation date of January 31, 2014, and also indicating the corporation’s status as active and the jurisdiction is Ontario, and also indicating that Dalia Sulaiman is the director, President, Secretary, and Treasurer of the corporation. (5 pages) Exhibit "8" - copy of Inspection Report prepared by Public Health Inspector Biley for an inspection conducted of Le Royal Resto and Lounge premises at 113-116, 755 Queensway Road East, Mississauga, Ontario on September 23, 2016.

Inspector Biley noted that she had advised the manager Annie Ingejikian that the Bylaw [ Peel Waterpipe Smoking By-law (Peel By-Law No. 30-2016)] will be in effect as of November 1, 2016, which prohibits smoking waterpipes within enclosed workplaces, public places, and patios, and that the SFAO prohibits smoking tobacco within enclosed workplaces, public places, and patios, and the sale of flavoured tobacco, including tobacco shisha. (1 page) Exhibit "9" - copy of Inspection Report prepared by Public Health Inspector Biley for an inspection conducted of the Le Royal Resto and Lounge premises at 113-116, 755 Queensway Road East, Mississauga, Ontario on April 2, 2015.

Inspector Biley noted that she had met with the owner [Dalia Sulaiman] and provided her education on the patio amendment with a fact sheet and that signage had to be posted within the patio within 5 business days (1 page) Exhibit "10" - copy of photograph taken on January 14, 2017, by Public Health Inspector Graczyk of television monitor showing patrons’ shisha orders that is located in the preparation room located in the Le Royal premises located at 755 Queensway East, Mississauga, Ontario. (1 page) Exhibit "11" - copy of Inspection Report prepared by Public Health Inspector Jakub Graczyk for an inspection conducted on April 9, 2016 at Le Royal premises at 755 Queensway East, Mississauga, Ontario.

Inspector Graczyk noted that samples of shisha were collected for testing from the premises and had advised the manager Annie Ingejikian that it is illegal to sell flavoured tobacco shisha and had provided copy of the inspection report to the manager Annie Ingejikian. (1 page) Exhibit "12" - copy of Inspection Report prepared by Public Health Inspector Jakub Graczyk (accompanied by Inspector Biley) for an inspection conducted on July 29, 2015 at Le Royal premises at 755 Queensway East, Mississauga, Ontario.

Inspector Graczyk noted the premises is a lounge that serves herbal shisha and had provided copy of the inspection report to co-owner Amer Sulaiman. (1 page) 1. INTRODUCTION [ 1 ] Some say that “there is no smoke without fire” -- while others will say “where there is smoke there is fire”. Both sayings, nonetheless, refer to the same idiom, which generally means that if people are stating that someone has done something wrong, then there is usually a good reason for what they are saying .

However, in a trial, even if witnesses are saying that an accused person has done something wrong, before that person can be found guilty of committing an offence that evidence must still be adjudged by the trier of fact to be credible and that it would also prove beyond a reasonable doubt that the person has committed all the essential elements of the offence for which they are charged with. [ 2 ] Now, in this regulatory prosecution, the Department of Health for the Region of Peel alleges that on January 14, 2017, someone had been holding “lighted” tobacco in an enclosed workplace being operated by an Ontario corporation named, Le Royal Resto and Lounge Inc. (the “corporate defendant”).

Consequently, the corporate defendant has been charged as the employer/operator for the restaurant and lounge known as “Le Royal Resto & Lounge” located at 755 Queensway East in the City of Mississauga, for failing to ensure that no person holds lighted tobacco in an enclosed workplace, contrary to s. 9(3) (

a) of the Smoke-Free Ontario Act , S.O. 1994, c. 10 (“ SFAO ”). [ 3 ] For patrons who attend at the premises of Le Royal Resto & Lounge, they may presently partake in the smoking of “shisha” in a

hookah water pipe indoors, as long as the shisha product does not contain tobacco. Traditionally, the shisha product that would have been smoked in a hookah water pipe had been a tobacco-based product flavored with molasses, honey, or fruit and mixed with such liquids as vegetable glycerin.

However, since tobacco products are no longer permitted under the SFAO to be smoked indoors or in enclosed workplaces in Ontario, the tobacco-based shisha has been replaced with shisha that is now comprised of herbs and vegetable matter, which is currently being allowed to be smoked indoors (although the Region of Peel had passed a bylaw [1] that became effective on November 1, 2016, that had banned the smoking of water pipes or hookahs in enclosed public places, enclosed workplaces, and specified outdoor settings, but which is not presently being enforced while there is a constitutional challenge of that bylaw before the courts). [ 4 ] To partake in the smoking of a hookah pipe, patrons would inhale the smoke from vaporized, roasted, or burning “shisha” after the smoke has been cooled and passed through a compartment in the hookah pipe that holds water or other liquids.

In order to vaporize, roast, or burn the shisha, the shisha is covered with a screen or tin-foil cover perforated with holes and then an ignited and lit piece of coal is placed on top of the screen or perforated tin foil, which is what provides the heat source to vaporize, roast, or burn the shisha, from which the smoke from the shisha is then inhaled through the hookah water pipe. [ 5 ] In the case at bar, Region of Peel Public Health Inspector Biley had collected samples of the shisha product at about 11:52 p.m. on January 14, 2017, from two hookah water pipes that were being prepared for patrons on the premises of Le Royal Resto & Lounge and then arranged for the samples to be sent to the Canadian Border and Security Agency (“CBSA”) laboratory for analysis to determine if the shisha had contained tobacco.

The samples had been only collected from those two hookah water pipes after ignited and lit pieces of coal had been observed being placed on top of the perforated tin foil covering the shisha product and then subsequently ordered to be removed from the hookah pipes by the two health inspectors after it had been sitting for a few moments on top of the tin foil.

Of the two samples sent to the CBSA laboratory for analysis, one was found to contain tobacco, which would not have been permitted to be smoked in a hookah water pipe in an enclosed workplace under s. 9(1) of the SFAO . [ 6 ] In its defence to the charge laid under s. 9(3) (

a) of the SFAO for failing as an employer to ensure that no person holds lighted tobacco in an enclosed workplace, the corporate defendant submits that there is no evidence that the shisha product in the hookah water pipe, from which the sample containing the tobacco had been collected had indeed been “lit”, since there is no evidence that the shisha had been smoking, smoldering, or do anything else, before the shisha sample had been collected by Health Inspector Biley. But more importantly, the corporate defendant is suggesting that if “there is no smoke then there can be no fire”.

In other words, the corporate defendant would be relying on that well-used idiom literally to contend that because there is no evidence that the shisha that had tested for tobacco had been actually been burning or smoldering or producing smoke before the sample had been collected, then the prosecution has failed to prove beyond a reasonable doubt that there had been any burning, roasting, or “lighted” tobacco being held by anyone at the enclosed workplace, known as Le Royal Resto & Lounge, at the time in question. [ 7 ] Furthermore, the corporate defendant also submits that the Certificate of Analysis (Ex. 5) prepared by the CBSA laboratory for the shisha sample collected on January 14, 2017, from the bowl marked as #10, had only indicated that the sample had contained tobacco, but did not specify what had been the percentage, amount, or the weight of the tobacco that was in the shisha sample.

Ergo, as a consequence of that omission, the corporate defendant contends that the legal maxim de minimis non curat lex (“the law does not concern itself with trifles”) should apply in respect to the unspecified amount of tobacco contained in the shisha, so that it would be improper and unjust to convict the corporate defendant for a trace amount of tobacco or for an amount of tobacco in the de minimis range. [ 8 ] In their reply to the question on whether the shisha had been “lit”, the prosecution submits that on the basis of the aims or purpose of this smoke-free legislation to prevent employees or any other persons from being exposed to the harmful effects of second-hand smoke from lit tobacco in an enclosed workplace, then it should be interpreted or reasonably inferred that the shisha containing the tobacco had been lit when there is evidence that the coal sitting on top of the tin foil covering the shisha had been ignited and lit.

Otherwise, submits the prosecution, not finding that the shisha had been lit after the piece of ignited and lit coal had been placed over the shisha would effectively nullify the enforcement of the legislation.

In addition, the prosecution submits that s. 9(1) of the SFAO prohibits “lighted” tobacco being held by any person in an enclosed workplace, but that the SFAO does not specify or require there be a minimum amount of tobacco being lit before an offence can be committed. [ 9 ] Ergo, two key questions need to be decided in order to determine if the corporate defendant should be found guilty of committing the offence laid under s. 9(3)(a).

They are: (1) whether the de minimis non curat lex principle should apply to the amount of tobacco contained in the shisha sample collected by the health inspector, so that the corporate defendant would not be punished or convicted of committing the offence; and (2) whether the prosecution has proven beyond a reasonable doubt that the shisha containing the tobacco had actually been or presumed to be “lit” when there is evidence that the coal used to heat the shisha had been ignited and lit and had been placed on top of the tin foil covering the shisha. [ 10 ] In respect to the first question that has to be decided, the common law defence of de minimis non curat lex could apply in the circumstances to this type of regulatory charge, since there is no numeric standard or a numeric value prescribed in the SFAO as the

minimum amount of tobacco that has to be in lighted state in an enclosed workplace to contravene s. 9(1) or for an offence to be committed under s. 9(3) (

a) of the SFAO .

However, despite the availability of the de minimis defence in the circumstances for this particular charge, the corporate defendant, who has the burden to prove the defence of de minimis , has not proven on a balance of probabilities that the amount of tobacco in the shisha collected from the bowl marked as #10 had been in fact only a trace amount or in the de minimis range, so that it would not be harmful to any person or employee in the enclosed workplace being exposed to the lighted tobacco, if it indeed had been lit, in order to justify not convicting or punishing the corporate defendant. [ 11 ] As for the second question that has to be decided, the prosecution has failed to prove that the tobacco in the shisha collected from the bowl marked as #10 had been “lit” beyond a reasonable doubt before it had been collected by Health Inspector Biley.

Moreover, from the evidence adduced at trial, it cannot be reasonably inferred that the shisha containing the tobacco had been “lit” simply because a piece of ignited and lit coal had been placed on top of the tin foil covering the shisha in the bowl marked as #10, nor does the common law or the SFOA provide for a “rebuttable presumption of fact” that is mandatorily required to be made by the trier of fact that the shisha is deemed or presumed to be lit, once the prosecution has proven beyond a reasonable doubt that a piece of coal used to heat the shisha had been ignited and lit and had been placed on top of the tin foil covering the shisha. [ 12 ] Consequently, as there is no evidence that the shisha containing the tobacco collected from the bowl marked as #10 had been charred, smoking, smoldering, roasting, or burning, then the prosecution has not proven beyond a reasonable doubt that the shisha containing the tobacco had been “lit” before the sample in question had been collected by Health Inspector Biley.

As such, the prosecution has failed to meet their burden in proving beyond a reasonable doubt that the corporate defendant had failed to ensure that no person holds lighted tobacco in an enclosed workplace, contrary to s. 9(3)(

a) of the SFOA . Accordingly, the corporate defendant will be acquitted of the charge. [ 13 ] Furthermore, the trial of the corporate defendant’s SFAO charge had been held on September 20, 2017. After final submissions were made by the prosecution and the corporate defendant, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment being released as of November 16, 2017: 2. BACKGROUND [ 14 ] Three witnesses had testified at trial. All three of them were Region of Peel health inspectors.

Two were the health inspectors who had attended the Le Royal Resto & Lounge located at 755 Queensway East, in the City of Mississauga, on January 14, 2017, and the third is the health inspector who had sent the two samples of shisha collected on January 14, 2017, to the CBSA laboratory for testing. (

a) SUMMARY OF THE TESTIMONY

(1) Public Health Inspector MayBellnne Biley [ 15 ] Public Health Inspector Biley testified that she has been a public health inspector with the Region of Peel for 16 years. She also said that on January 14, 2017, she and her partner, Jakub Graczyk, had attended the premises operating as “Le Royal” at 755 Queensway East in Mississauga, Ontario. She also said they were there to do a compliance inspection under the SFOA . [ 16 ] Inspector Biley also said she had met Amer Sulaiman, the co-owner, and advised him of the reason of their visit. She also said he had been cooperative with them.

Biley then said that her partner and herself had gone to the back area of the kitchen into the prep area. She also said that she had observed through the interior windows of the kitchen into the banquet room and saw patrons smoking hookah water pipes. She explained that a hookah pipe is an apparatus used to smoke shisha. In addition, she described it as an apparatus that contains a small bowl or head piece, a mouth piece like on a trombone, a tray underneath the stem, a valve to purge, and a valve for the hose that goes to the mouthpiece. She then explained how the hookah water pipe worked.

She said that the bowl (or head piece) is packed with shisha and then covered with tin foil that is pierced with holes. Then she said that one or two coals are placed on top of the foil, and inhalation of smoke is done through the mouthpiece, and that the smoke of the shisha is inhaled through the water. [ 17 ] Furthermore, in the back room Biley said she had observed two operators there handling two hookah water pipes. She also said she had observed two coals being ignited on a hot plate and then placed on top of the prepared head or bowl of the hookah water pipe.

She then said that at that point she and her partner had intervened and had the employees stop the preparation of the two hookah water pipes. She then said that at 11:47 p.m. the coals were then taken off the top of the head of the hookah pipe. She had also described that the two

heads or bowls of the two hookah pipes had been packed with shisha and covered with tin foil and that the lit coals were “burning” over the perforated tin foil. She also said she had taken photographs of the two bowls that were on the two hookah pipes. [ 18 ] For the first bowl, Inspector Biley said that she had identified the bowl that had a red band with the marker #9, She then said she took off the tin foil to examine the shisha. She described that particular shisha as being red in colour and having a scent of tarty fruit.

She also said she had put new gloves on and used a clean spoon to take a sample of the shisha from the bowl with marker #9 and then placed the sample into a brand new collection container at approximately 11:52 p.m. She then said she sealed the container. [ 19 ] For the second bowl of shisha, Inspector Biley said that she had marked the second bowl, which had a blue and yellow band, with the marker #10. Afterwards, she said she had taken the foil off that bowl or head and then described the shisha in that bowl as having a brighter red colour and with a strong scent of mint.

She then said she took a sample of the shisha in the bowl with marker #10, and using new gloves and a new spoon, had put the sample in a new collection container and then sealed it. [ 20 ] Inspector Biley then said that she had placed the collection container with the shisha sample taken from the bowl marked #10 into evidence bag numbered 204812 at 12:04 a.m. on January 15, 2017.

She also said she then placed the collection container with the shisha sample taken from the bowl marked #9 in the evidence bag numbered 204811 at 12:07 a.m. [ 21 ] Inspector Biley also said that she had informed the co-owner Amer Sulaiman that they had taken samples for analysis to see if there is any tobacco in the shisha. She also said that she had met Sulaiman, the co-owner of the Le Royal Resto & Lounge, on other occasions when he had provided his name to her.

In addition, Inspector Biley said the tobacco sale licence issued by the City of Mississauga and the corporate profile documents indicated that the owner and operator of the Le Royal Resto & Lounge at 755 Queensway East, in the City of Mississauga is the corporation named Le Royal Resto and Lounge Inc.

The corporate defendant’s counsel also stated that he did not have issue with identification of who the owner or operator is of the establishment in question. [ 22 ] In addition, Inspector Biley said that after seeing if there had been the proper signage posted in the premises as part of their compliance inspection, she and her partner then left the premises at 12:20 a.m. on January 15, 2017. [ 23 ] Furthermore, Inspector Biley said the two samples were then sent to the CBSA for testing to see if the shisha samples she collected had contained tobacco.

At that point, the corporate defendant’s counsel stated that proof of the chain of custody for the two samples was also conceded. [ 24 ] Moreover, after the two shisha samples were tested by the CBSA, Inspector Biley said that one of the two samples came back as positive for tobacco. She said that it had been the second sample of shisha taken from the bowl marked as #10 and labelled as 204812.

She also said that the Certificate of Analysis (Ex. 5) from the CBSA laboratory had indicated that the shisha sample collected from the bowl marked as #10 had contained 26 grams of vegetable matter and had a minty aroma and had contained tobacco.

However, Biley also admitted that the Certificate of Analysis (Ex. 5) for that sample did not specify or indicate the percentage or the weight of that shisha sample, which had been comprised of tobacco. [ 25 ] In addition, Inspector Biley testified that she had on other occasions attended at the premises of 755 Queensway East for compliance inspections, as well as providing them with education on the SFAO . She further said that she had previously attended there on September 23, 2016, and on April 2, 2015.

She also said that she had prepared inspection reports on those occasions and had provided them to the manager or owners of the establishment (see Ex. 8 and Ex. 9). In addition, Inspector Biley said that she had informed the manager, Annie Ingejikian, on the September 23, 2016, that the use of tobacco shisha was prohibited.

(2) Public Health Inspector Jakub Graczyk [ 26 ] Public Health Inspector Graczyk testified that he has been employed as a public health inspector with the Region of Peel for 3 years. He also testified that on January 14, 2017, at 11:44 p.m., he and his partner, May Biley, had attended Le Royal Resto & Lounge located at 755 Queensway East in Mississauga, Ontario, to do a compliance inspection under the SFOA . [ 27 ] On that visit to Le Royal Resto & Lounge, Inspector Graczyk said that he had gone to the kitchen and then to the back of the premises to the room where the shisha is prepared.

In the shisha preparation room, Inspector Graczyk said he had observed two operators preparing two hookah water pipes. He also said he had observed them poke holes in the head of the pipes. In addition, he said

he had observed “lighted” coal and that both operators had been holding the “lighted” water pipes. He then said that he had requested for the two operators to stop, put down the water pipes, and to remove the lighted coals. Once the coals were removed, Inspector Graczyk said the operators then handed the heads or the bowls of the two water pipes to him.

Inspector Graczyk then said that Inspector Biley took photographs of the two bowls, and then took samples of the shisha in those two bowls, and then placed them separately into evidence bags. [ 28 ] In addition, Inspector Graczyk said that he had observed in the shisha preparation room a television monitor which identified the orders of shisha that had been placed by patrons that evening. He also said that he had taken photographs of the liquor license and the business licence for the premises. He then said that he had taken a photograph of the monitor which listed the shisha orders (see Ex. 10).

Furthermore, Inspector Graczyk said the owner, Amer Sulaiman, had entered the shisha preparation room. At that point, Inspector Graczyk said Amer Sulaiman had been provided with education on the bylaw, a responsibility sheet, a letter, and a copy of the inspection report.

Inspector Graczyk also said that he had observed Amer Sulaiman sign the inspection report before a copy of it had been provided to Sulaiman. [ 29 ] Inspector Graczyk also said he had observed 75 to 80 patrons in the premises and approximately 15 to 20 hookah pipes being smoked inside the premises. [ 30 ] Furthermore, Inspector Graczyk said that after the shisha samples had been collected and processed by Inspector Biley, they had returned to their office, and the samples were placed in the secured evidence cabinet for the weekend.

Then, on Monday morning, Inspector Graczyk said he had observed his colleague, Health Inspector Kun Zhang, remove the shisha samples collected from Le Royal Resto & Lounge from the evidence cabinet and package them to be shipped to the lab. [ 31 ] In addition, Inspector Graczyk said he had also done SFAO compliance inspections of Le Royal Resto & Lounge on two prior occasions. He further said that he always provides education to the owner or operator of the establishment so that they would know their responsibilities under the SFAO .

He further said that he had attended Le Royal Resto & Lounge on April 9, 2016, and on July 29, 2015. In addition, he said he had provided inspections reports and resource materials to the manager or owner on those two prior occasions (see Ex. 10 and Ex. 12) and had informed the manager, Annie Ingejikian, on April 9, 2016, that tobacco was not permitted to be smoked in the hookah water pipes. [ 32 ] Inspector Graczyk also said he had been there at the Le Royal Resto & Lounge previously for a compliance check under the SFAO when shisha samples had been collected, analyzed, and were found to have contained tobacco.

On that occasion, he said that warning letters were sent to the corporate defendant and to the owners of the corporation.

(3) Public Health Inspector Kun Zhang [ 33 ] Public Health Inspector Zhang testified that he had personally delivered the two shisha samples collected from Le Royal Resto & Lounge on January 14, 2017, to the Purolator office in Mississauga. [ 34 ] During Kun Zhang’s testimony, the corporate defendant’s legal counsel had conceded proof of the chain of custody of the two samples and that continuity of the two samples was not at issue.

(4) Arguments of the Corporate Defendant and the Prosecution [ 35 ] In its closing argument, the corporate defendant submits the prosecution has failed to adduce any evidence beyond a reasonable doubt that there had been any tobacco that had been actually “lit” that was being held by any person at the time and place in question.

In addition, the corporate defendant contends that because the Certificate of Analysis (Ex. 5) did not expressly provide the percentage or the weight of the tobacco in the 26-gram sample of shisha that had been collected from the bowl marked as #10, then the prosecution has failed to prove beyond a reasonable doubt that the amount of tobacco in question had been more than a trivial or de minimis amount. [ 36 ] Accordingly, the corporate defendant submits that the prosecution has failed to prove beyond a reasonable doubt that there had been any “lit” tobacco in the bowl marked as #10 in the hookah pipe that was being held by someone preparing the hookah pipe before the shisha sample had been collected by Inspector Biley.

But, even if the shisha in bowl #10 that had tested for tobacco is determined to have been burning or roasting, or that it had been lit before the shisha sample had been collected, then the corporate defendant contends

that the amount of the tobacco in bowl #10 would have been in the trivial or de minimis range, such that the corporate defendant should not be convicted of, or punished, for committing the offence under s. 9(3)(

a) by virtue of the legal maxim of de minimis non curat lex . [ 37 ] In response to the corporate defendant’s arguments for an acquittal, the prosecution first submits that based on the purpose of the legislation to protect employees and the public from the harmful effects of second-hand smoke and to maintain the ability of the Peel Public Health Department to properly enforce the legislation, the court should interpret or infer that the shisha containing the tobacco had been “lit” while the piece of coal that had been ignited and lit had been sitting on top of the tin foil covering the shisha.

Secondly, the prosecution submits that the SFAO does not specify the minimum amount of tobacco that has to be actually lit before s. 9(1) is contravened or that the offence of failing to ensure no person holds lighted tobacco in an enclosed workplace would be committed under s. 9(3)(a). 3. THE CHARGE [ 38 ] As stated in the

Part III Information numbered 05380 that was sworn on March 8, 2017, the corporate defendant, Le Royal Resto and Lounge Inc. , has been charged with committing the strict liability offence of “fail to ensure no person holds lighted tobacco in the enclosed workplace”, contrary to s. 9(3) (

a) of Smoke-Free Ontario Act , S.O. 1994, c. 10: Le Royal Resto and Lounge Inc. 755 Queensway East, Suite #115 Mississauga, Ontario L4Y 4C5 On or about the 14 th day of January 2017 At Le Royal Resto and Lounge at 755 Queensway East, Mississauga, Ontario, Central West Region did commit the offence of Fail to ensure no person holds lighted tobacco in the enclosed workplace contrary to Smoke-Free Ontario Act , S.O. 1994, c. 10 section 9(3)(a) 4. ISSUES [ 39 ] The following are the issues that have arisen at trial that need to be resolved: (

a) Has the prosecution proven beyond a reasonable doubt that a person was holding lighted tobacco in an enclosed workplace? (

b) Can it be reasonably inferred from the evidence that the shisha in the bowl marked as #10 had been burning, roasting, or lit after an ignited and lit piece of coal had been placed on top of the tin foil covering the shisha?

(

c) Is there a “rebuttable presumption of fact” established under the common law or provided in the SFAO that requires the trier of fact to deem or presume that the shisha had been burning, roasting, or lit after it has been proven that an ignited and lit piece of coal had been placed on top of the tin foil covering the shisha? (

d) Does the legal maxim of de minimis non curat lex apply to regulatory offences in Ontario? (

e) In the circumstances, does the legal maxim of de minimis non curat lex apply to the charge laid under s. 9(3) (

a) of the SFAO ? (

f) Is there evidence that would prove the amount of tobacco found in the shisha sample is in the de minimis range? (

g) If the prosecution has proven that the shisha containing the tobacco had been lit, has the corporate defendant established the defence of de minimis non curat lex, if applicable , on a balance of probabilities whereby the corporate defendant will be acquitted of committing the offence under s. 9(3) (

a) of the SFAO ? 5. ANALYSIS AND DECISION [ 40 ] In this present prosecution under the SFOA , it is alleged that Le Royal Resto and Lounge Inc. (“the corporate defendant”), had contravened s. 9(3)(

a) of the SFOA by failing as an operator or employer for the restaurant or eatery business named Le Royal Resto & Lounge and located at 755 Queensway East, Mississauga, Ontario, to ensure that no person holds lighted tobacco in an enclosed workplace. [ 41 ] The charge had resulted from a compliance inspection conducted by two Region of Peel Health inspectors who had attended the Le Royal Resto & Lounge premises at 755 Queensway East on January 14, 2017, and who had observed two individuals in the preparation area holding two hookah water pipes while an ignited and lit piece of coal had been placed on top of the tin foil that was covering the head or bowl of the hookah pipes that had contained the shisha to be smoked by patrons.

After the two health inspectors had requested the respective pieces of coal be taken off of the tin foil covers, samples of the shisha contained in those two bowls were then collected by Health Inspector Biley, and which were then subsequently sent to the CBSA laboratory for analysis. One of the two samples tested had been found to have contained tobacco. The shisha sample that had tested for tobacco had been collected from the bowl marked as #10. [ 42 ] For determining whether the prosecution has met their burden in proving the s. 9(3)(

a) charge, the first question that needs to be decided is whether the prosecution has proven beyond a reasonable doubt that the shisha containing the tobacco in the bowl marked as #10 had actually been burning, roasting, or lit before the shisha sample had been collected by Inspector Biley.

If the prosecution fails to prove that the shisha in the bowl marked as #10 had been burning, roasting, or lit before the shisha sample had been collected from that bowl, then the charge against the corporate defendant would have to be dismissed, given that there would be no evidence beyond a reasonable doubt that a person had been holding “lighted” tobacco in an enclosed workplace. [ 43 ] On the other hand, if the prosecution has proven that the shisha containing the tobacco had actually been burning, roasting, or lit, before a sample of that shisha had been collected, then the prosecution will have proven that the corporate defendant had committed the offence of failing to ensure no person holds lighted tobacco in the enclosed workplace located at 755 Queensway East, Mississauga, unless the corporate defendant can establish the defence of due diligence on a balance of probabilities.

However, instead of raising the defence of due diligence, the corporate defendant contends that the legal maxim of de minimis non curat lex applies to the amount of tobacco that was found contained in the shisha sample collected from bowl #10.

Specifically, the corporate defendant contends that because the Certificate of Analysis (Ex. 5) did not state what had been the percentage, the amount, or the weight of the tobacco that was contained in the shisha sample, then the corporate defendant should not be convicted of the offence when the prosecution has not proven that the amount of tobacco is more than a trace amount or that it is beyond the de minimis range.

Moreover, the corporate defendant submits that the issue concerning the amount of tobacco in question is analogous to the situation where accused persons facing criminal drug possession charges are found to be not guilty of being in the possession of an illegal drug or substance when the amount of the illegal drug or substance found in the person’s possession is only a trace amount or that it falls within the de minimis range. [ 44 ] Moreover, the application of the de minimis non curat lex principle as a defence would normally be considered only after the prosecution has proven beyond a reasonable doubt that the corporate defendant has committed the actus reus of the offence of failing to ensure no person holds lighted tobacco in an enclosed workplace.

However, the issue of whether or when the de minimis defence should

apply to a regulatory offence is not legally clear in Ontario. Therefore, it would be appropriate to first consider whether the de minimisprinciple as a defence is available to the corporate defendant for a charge under the SFAO, before having to decide the issue of whetherthe prosecution has proven that the corporate defendant has committed the offence under s. 9(3)(

a) beyond a reasonable doubt. (

A) DOES THE LEGAL MAXIM OF “DE MINIMIS NON CURAT LEX” APPLY TO REGULATORY OFFENCES IN ONTARIO? [45] The corporate defendant suggests that the legal maxim of de minimis non curat lex should apply to the amount of tobacco collectedby Health Inspector Biley on January 14, 2017, given that the Certificate of Analysis (Ex. 5) did not specify the amount, percentage, orweight of the tobacco contained in that collected sample of shisha, and as such, contends that the prosecution has failed to prove that theamount of tobacco in question had been an amount that is beyond the de minimis range, so that it would unjust to convict or punish thecorporate defendant when the amount of tobacco has not been proven to be more than a trace amount that would warrant a finding ofguilt. [46] And, in reply to that argument that the de minimis principle should apply to the amount of the tobacco found in the shisha sample,the prosecution submits that it should not apply in this particular case, since the SFAO does not prescribe a minimum quantity of tobaccothat has to be lighted in an enclosed workplace before s. 9(1) is contravened and an offence is committed under s. 9(3)(a). [47] However, despite the corporate defendant’s argument that the de minimis principle is applicable to this particular regulatoryoffence, various courts and academics alike have commented and acknowledged that there is still a legal debate on whether the deminimis principle can be utilized as a defence for regulatory offences in Ontario.

As such, it will have to be determined whether thecommon law defence of de minimis non curat lex would apply to an offence under s. 9(3)(

a) of the SFAO.

(1) Consideration Of The De Minimis Principle By The Supreme Court Of Canada [48] Unfortunately, the Supreme Court of Canada has yet to decide on whether the maxim of de minimis non curat lex can be utilized asa defence by accused persons in criminal or regulatory prosecutions, or when and for what purpose the maxim can be used by an accusedperson. Although the Supreme Court has not directly used or applied the legal maxim to date, the de minimis defence has beencommented on in several cases that have been decided by the Supreme Court.

However, to this point the maxim had only beenmentioned in dissenting opinions, in obiter, or used as an interpretive tool to decide the meaning of a statutory provision. [49] The most recent discussion about the availability and application of the de minimis maxim by a member of the Supreme Court hadbeen in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 , [2004] S.C.J. No. 6(S.C.C.), which had been a case about parents being charged criminally for using physical force to discipline their children.

In that case,Arbour J., in her dissenting opinion at paras. 200 to 208, had admitted that the case law on the application of the de minimis defence islimited, but nonetheless she found that the de minimis principle exists as a common law defence that it is preserved by s. 8(3) of theCriminal Code, which is available to judges and which falls within the courts' discretion to apply and to develop the de minimis defenceas it sees fit. Arbour J., also took an opportunity to explain what the de minimis defence would entail and when it could be used.

Shesaid that it would be, in effect, the situation where there had been only a "technical" commission of the actus reus and that the conductwould fall within the words of the offence description, but that it had been too trivial so as to fall within the range of wrongs for whichthe description had been designed to cover. Moreover, Arbour J. indicated that when the de minimis defence is accepted it does notmean that the act or conduct is justified, as it still remained unlawful, but because of its triviality it would go unpunished.

Arbour J. alsoreiterated that the common law defence of de minimis applies when the deviation is a mere trifle, which, if continued in practice, wouldweigh little or nothing on the public interest, so that the conduct or omission in question might be properly overlooked. She also notedthat the operation of the defence would be consistent with the dual fundamental principle of criminal justice that there is no culpabilityfor harmless and blameless conduct.

In addition, Arbour J. outlined the justifications for a de minimis excuse as the following: (1) itreserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction andfrom the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormousnumber of trivial cases.

Furthermore, Arbour J. recognized that even though the case law is somewhat unsatisfactory, the de minimisdefence has succeeded on several occasions in the courts below, and as such, Arbour J. confirmed that the Supreme Court has expresslyleft the existence of the defence open and available for the judiciary to consider and utilize, as had been indicated in R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371, at para. 21, and in R. v.

Hinchey, (SCC), [1996] 3 S.C.R. 1128, at para. 69[emphasis is mine below]: The Chief Justice is rightly unwilling to rely exclusively on prosecutorial discretion to weed out cases undeserving of prosecution and

punishment. The good judgment of prosecutors in eliminating trivial cases is necessary but not sufficient to the workings of the criminallaw. There must be legal protection against convictions for conduct undeserving of punishment. And indeed there is. The judicial systemis not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of "a crime" (e.g.,theft of a penny) because prosecutorial discretion is effective and because the common law defence of de minimis non curat lex (the lawdoes not care for small or trifling matters) is available to judges. ...

The common law concept of de minimis non curat lex was expressed in the English decision of The "Reward" (1818), 2 Dods. 265, 165E.R. 1482, at p. 1484, in the following manner: The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification impliedin the ancient maxim De minimis non curat lex. -- Where there are irregularities of very slight consequence, it does not intend that theinfliction of penalties should be inflexibly severe.

If the deviation were a mere trifle, which, if continued in practice, would weigh littleor nothing on the public interest, it might properly be overlooked. Admittedly, the case law on the application of the defence is limited. It may be that the defence of de minimis has not been used widely bycourts because police and prosecutors screen all criminal charges such that only the deserving cases find their way to court.Nonetheless de minimis exists as a common law defence preserved by s. 8(3) of the Code and falls within the courts' discretion (J.

Hétu,"Droit judiciaire: De minimis non curat praetor: une maxime qui a toute son importance!" (1990), 50 R. du B. 1065, at pp. 1065-76) toapply and develop as it sees fit. In effect, the defence is that there was only a "technical" commission of the actus reus and that "theconduct fell within the words of an offence description but was too trivial to fall within the range of wrongs which the description wasdesigned to cover" (E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 100).

The defence of de minimis does not mean that theact is justified; it remains unlawful, but on account of its triviality it goes unpunished (S. A. Strauss, "Book Review of South AfricanCriminal Law and Procedure by E. M. Burchell, J. S. Wylie and P. M. A. Hunt" (1970), 87 So. Afr. L.J. 471, at p. 483).

Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to serious misconduct;(2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivialconduct; and (3) it saves courts from being swamped by an enormous number of trivial cases (K. R.

Hamilton, "De Minimis Non CuratLex" (December 1991), discussion paper mentioned in the Canadian Bar Association, Criminal Recodification Task Force Report,Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), at p. 189). In part, thetheory is based on a notion that the evil to be prevented by the offence

section has not actually occurred. This is consistent with the dualfundamental principle of criminal justice that there is no culpability for harmless and blameless conduct (see my opinion in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at paras. 234-35 and 244). In Canadian jurisprudence, the defence of de minimis has been raised in drug cases that involve a tiny quantity of the drug (R. v.Overvold (1972), (NWT TC), 9 C.C.C. (2d) 517 (N.W.T. Mag. Ct.), at pp. 519-21; R. v. S. (1974), (MB PC), 17 C.C.C. (2d) 181 (Man. Prov. Ct.), at p. 186; and R. v.

McBurney (1974), (BC SC), 15 C.C.C. (2d) 361(B.C.S.C.), aff'd (1975), (BC CA), 24 C.C.C. (2d) 44 (B.C.C.A.)), in theft cases where the value of the stolen propertyis very low (R. v. Li (1984), (ON SC), 16 C.C.C. (3d) 382 (Ont. H.C.), at p. 384), or in assault cases where there isextremely minor or no injury (R. v. Lepage (1989), (SK KB), 74 C.R. (3d) 368 (Sask. Q.B.); R. v. Matsuba (1993), (AB CJ), 137 A.R. 34 (Prov. Ct.); and in obiter in Kormos, supra); see also: Department of Justice of Canada,Reforming the General Part of the Criminal Code: A Consultation Paper (1994), "Trivial violations", at pp. 24-25).

Though the case lawis somewhat unsatisfactory, the defence has succeeded on several occasions (see Stuart, supra, at pp. 594-99) and this Court hasexpressly left the existence of the defence open (see R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371, at para. 21, and R. v.Hinchey, (SCC), [1996] 3 S.C.R. 1128, at para. 69). In discussing the actus reus of the offence of "fraud on thegovernment" under s. 121(1)(

c) of the Code, L'Heureux-Dubé J. in Hinchey, supra, wrote the following, at para. 69: In my view, this

interpretation removes the possibility that the

section will trap trivial and unintended violations. Nevertheless, assumingthat situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction:the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where anaccused has "technically" violated a Code

section has been proposed by the Canadian Bar Association, in Principles of CriminalLiability: Proposals for a New General Part of the Criminal Code of Canada ... and others: see Professor Stuart, Canadian Criminal Law:A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminalculpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below.

Since aresolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day. [Emphasis added.] … The C.B.A. Task Force Report reviewed the uncertain state of the law and recommended codification of a power to stay for trivialviolations (see Stuart, supra, at p. 598). A codification of the defence may cure judicial reluctance to rely on de minimis; however, thecommon law defence of de minimis, as preserved under s. 8(3) of the Code, is sufficient to prevent parents and others from being

exposed to harsh criminal sanctions for trivial infractions. I am of the view that an appropriate expansion in the use of the de minimis defence -- not unlike the development of the doctrine of abuseof process -- would assist in ensuring that mere technical violations of the assault provisions of the Code that ought not to attractcriminal sanctions are stayed. In this way, judicial resources are not wasted, and unwanted intrusions of the criminal law in the familycontext, which may be harmful to children, are avoided.

Therefore, if s. 43 were to be struck down, and absent Parliament's re-enactment of a provision compatible with the constitutional rights of children, parents would be no more at risk of being dragged intocourt for a "pat on the bum" than they currently are for "tasting" a single grape in the supermarket. … Parents and persons standing in the place of parents will not be exposed to the criminal law unnecessarily as the common lawdefences of necessity and de minimis will protect them from excusable and/or trivial conduct. [50] However, McLachlin C.J. in writing her majority decision in Canadian Foundation for Children, Youth and the Law v.

Canada(Attorney General), 2004 SCC 4 , [2004] S.C.J. No. 6 (S.C.C.), at para. 44, did not support Arbour J.’s view that the de minimismaxim would be available to prevent criminalizing parents who used corrective force of a minor nature on their children.

McLachlinC.J. had instead been critical of utilizing that defence because in her view the de minimis defence would have been equally or more vagueand difficult in application than the reasonableness defence that is offered by s. 43 of the Criminal Code for parents who face criminalcharges as a result of using corrective force on their children [emphasis is mine below]: … Finally, Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences ofnecessity and "de minimis".

The defence of necessity, I agree, is available, but only in situations where corrective force is not in issue,like saving a child from imminent danger. As for the defence of de minimis, it is equally or more vague and difficult in application thanthe reasonableness defence offered by s. 43. [51] Also, in an earlier case that had been before the Supreme Court, L'Heureux-Dubé J. in R. v. Hinchey, (SCC),[1996] S.C.J.

No. 121 (S.C.C.), at para. 69, had also suggested that for the present case before her, there might have been anothermethod that could have been used to avoid entering a criminal conviction for trivial violations, which would have been founded on theprinciple of de minimis non curat lex. However, L'Heureux-Dubé J. had posited that she did not need at that time to decide the issue ofwhether the de minimis defence would be available or applicable in order to resolve the case, and that it had been her preference to leavethat question for another day.

On the other hand, she did acknowledge that the de minimis maxim's potential application as a defence tocriminal culpability had not yet been decided by the Supreme Court and that it had also been the subject of some debate in the courtsbelow [emphasis is mine below]: In my view, this

interpretation removes the possibility that the

section will trap trivial and unintended violations. Nevertheless, assumingthat situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction:the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where anaccused has "technically" violated a Code

section has been proposed by the Canadian Bar Association, in Principles of CriminalLiability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, CanadianCriminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence tocriminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below.

Sincea resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day. [52] Additionally, in R. v. Cuerrier, [1998] 2 S.C.R. (S.C.C.), which is another case that had been decided by the Supreme Court, inwhich the accused had been acquitted of committing two criminal counts of aggravated assault for having unprotected sexual relationswith two complainants without informing them that he was HIV-positive, L'Heureux-Dubé J. once again had commented at paras. 20 and21, about the possibility of the de minimis principle being applicable in a case.

L'Heureux-Dubé J. had been concerned about thesituation where the prosecution would decide to proceed with a charge against an accused person even though it had been based on aminor or trivial violation, in which case she felt that the de minimis maxim could then conceivably be implemented to insulate theaccused person from being criminalized for relatively innocent conduct [emphasis is mine below]: Finally, my colleagues’ examples of the types of trivial conduct that will be caught by this approach are grossly overstated.

Cory J.downplays the limiting effect of the fact that a causal connection must be proven, to the imposing criminal standard, between the

accused’s dishonest act and his intention to induce the submission of the complainant. For instance, a mere misrepresentation as to aman’s professional status, without proof that the man was aware that the complainant was submitting to sexual intercourse with him byreason of his lie, would not constitute sexual assault. See Mewett and Manning, supra, at pp. 789-90. Whether a complainant actuallysubmitted to sexual intercourse by reason of an accused’s fraud will necessarily depend on an examination of all of the factors, and canonly be decided on a case-by-case basis.

McLachlin J.’s predictions are even more cataclysmic. Contrary to her assertion in para. 52, it is not “any deception or dishonesty” thatwill be criminalized by this approach. McLachlin J. argues that based on the approach to fraud that I have explained, henceforward the“implied consent inherent in the social occasion -- the handshake or social buss -- are transformed by fiat of judicial pen into crimes”. But my approach to fraud will in no way catch such innocent conduct.

The very notion of implied consent to touching that is inherent inthe social occasion, and indeed, inherent in so many aspects of day to day life, is based on an understanding of social realities and aneed for tolerance of a reasonable degree of incidental and trivial contact.

Whether or not a man is wearing a false moustache or awoman, alluring make-up, it is inconceivable that the Crown, were it foolish enough to prosecute a case of assault by handshake orsocial buss, would be capable of establishing beyond a reasonable doubt both that a complainant only consented to the physical contactby reason of the deception, and that the deception was employed with the knowledge and intention of inducing the submission of thecomplainant. In addition, the principle of de minimis non curat lex, that “the law does not concern itself with trifles” might apply insuch a case: see R. v.

Hinchey, (SCC), [1996] 3 S.C.R. 1128, at para. 69, per L’Heureux-Dubé J. … [53] Furthermore, recently in R. v. Ferreira, 2014 ONCJ 21 , [2014] O.J. No. 189 (O.C.J.), at paras. 23 to 26, ODonnell J. inapplying the de minimis defence in a criminal assault case, had emphasized that despite its long roots in the common law, the de minimisdoctrine's availability and scope in Canadian common law are not well defined, nor is there clear appellate guidance as to the availabilityor unavailability of the doctrine of de minimis in Ontario.

Moreover, ODonnell J. had also noted that the de minimis defence whenapplicable could immunize a defendant from legal culpability. In addition, Justice ODonnell pointed out that while such a doctrine willnecessarily be of narrow ambit, it would be also appropriate that such a doctrine be recognized as a legitimate means of permitting acriminal court to properly overlook a deviation that was a mere trifle that would weigh little or nothing on the public interest.

However,Justice ODonnell also suggested that the availability of absolute and conditional discharges had changed the criminal law landscape sothat there would no longer be a need for the concept of de minimis in criminal law, although he recognized that such suggestion wouldinevitably blur the line between culpability and penalty [emphasis is mine below]: … Mr. Marshall suggests, however, that the concept of de minimus non curat lex, or "the law does not concern itself with triflingmatters", applies here and that the degree of force used was so minor as not to make out an offence.

Despite its long roots in the common law, the de minimus doctrine's availability and scope in Canadian common law are not welldefined. In R. v. Hinchey, (SCC), [1996] 3 S.C.R. 1128, at paragraph 69, L'Heureux-Dube, J., noted of the de minimusprinciple: "I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decidedby this Court, and would appear to be the subject of some debate in the courts below." In R. v. Murdock, (ON CA),[2003] O.J.

No. 2470, at paragraph 29, Doherty, J.A., writing for the Court of Appeal for Ontario, described the principle as follows:"The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the fourcorners of the penal provision, were so trivial as to pose no risk to the public interest." The following year, in R. v. Kubassek, (ON CA), [2004] O.J. No. 3483, Catzman, J.A. again had occasion tocomment on the uncertain state of the de minimus defence in Canadian criminal law.

In the result, the Kubassek court determined that,assuming for the purposes of the appeal that de minimus was an available principle for a defendant in a criminal case, Ms. Kubassek'sact, of pushing a minister in the midst of a religious service, causing him to fall backwards and almost trip over a pew, did not fit thestandard of triviality historically required. In the course of his reasons, Catzman, J.A. makes the following comments: The principle de minimis non curat lex is of considerable antiquity. The first record of the principle in the law reports is found inTaverner v.

Dominum Cromwell (1594), 78 E.R. 601. Over two centuries later, the meaning of the expression was amplified in a caseinvolving the seizure of a British ship for breach of British revenue laws by exporting logwood from Jamaica to the United States, whichprohibited its importation: The Reward (1818), 2 Dods. 265, 165 E.R. 1482.

In rejecting an invitation by the owners of the ship toreverse its condemnation because of the relative insignificance of the amount of logwood in issue, Sir Walter Scott (later Lord Stowell)said, at 269-270 Dods., 1484 E.R.: The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification impliedin the ancient maxim, de minimis non curat lex. Where there are irregularities of very slight consequence, it does not intend that theinfliction of penalties should be inflexibly severe.

If the deviation were a mere trifle, which, if continued in practice, would weigh little ornothing on the public interest, it might properly be overlooked.

It might well be argued that the widespread availability of criminal diversion programmes greatly reduces any need for such a principle,although it is doubtful that the existence of a discretionary programme could ever be a complete answer to the question of whether aprinciple immunizing a defendant from legal culpability does or does not exist. It might also be argued that the availability of absoluteand conditional discharges has changed the criminal law landscape such that there is no need for a concept of de minimus in criminallaw, although that argument would blur the line between culpability and penalty.

For the time being, however, there is no clearappellate guidance as to the availability or unavailability of the doctrine of de minimus in Ontario. It seems to me, that while such adoctrine will necessarily be of narrow ambit, it is appropriate that such a doctrine be recognized as a legitimate means of permitting acriminal court, in the words of The Reward, supra, properly to overlook a deviation that was a mere trifle that would weigh little ornothing on the public interest.

The criminal law is a blunt instrument and it is consistent with the good repute of the administration ofjustice that the courts reserve to themselves the right, in appropriate cases, to safeguard a defendant from a criminal finding where theconduct, although technically criminal, is so trifling as to raise no abiding concern. I should also say that I am reinforced in myconclusion that the de minimus principle does exist in Canadian criminal law by my review of the judgment of Duncan, J. in R. v.

Juneja2009 ONCJ 572 , in which he not only provides a helpful review of the lower court decisions on the principle (as well as oneoblique appellate reference to its existence), but also outlines a philosophy in relation to the reasons for the doctrine to exist that hasmuch to commend it. [54] And, in R. v. Juneja, 2009 ONCJ 572 , [2009] O.J. No. 5119 (O.C.J.), at paras. 11 to 16, Duncan J. pointed out that therehave been no cases rejecting the legal availability of de minimus in appropriate circumstances; but instead confirmed the authority isunanimous, though not substantial, in favour of the doctrine.

Duncan J. also emphasized that the de minimus doctrine is important to thecriminal law in relieving against overly broad criminal offences that ensnare trivial or unintended violations; to preserving dignity andrespect for the administration of justice by not trivializing the important work of the courts; and to ensure that scarce time and resourcesare not wasted [emphasis is mine below]: The de minimus doctrine has never been authoritatively adopted - or rejected - as being applicable in Canadian criminal law.

A numberof trial courts have applied it in assault and drug cases but to date there has been no decision from the Supreme Court of Canada or anyprovincial Court of Appeal bearing directly on the issue: see discussion in Stuart: Canadian Criminal Law (4th Ed) p. 594-599 andcases cited therein. One case not cited by Stuart is R. v. Wolfe (1974) (ON CA), 20 C.C.C. (2d) 382 (Ont.

C.A.) where the Court enteredan acquittal on a charge of assault bodily harm because the defendant's actions were found to be "reflexive" (and therefore notintentional) but also because: "In any event, the encounter was a trifling one and we have come to the conclusion that the appeal ought to be allowed and the finding ofguilt set aside..." While this is admittedly rather oblique authority, in my view it provides some appellate support for the availability of the defence. … To my knowledge there have been no cases rejecting the legal availability of de minimus in appropriate circumstances.

Authority istherefore unanimous, though not substantial, in favour of the doctrine and accordingly, I am prepared to apply it on the facts of this case. The de minimus doctrine is important to the criminal law for a number of reasons - to relieve against overly broad criminal offences thatensnare trivial or unintended violations: see R. v. Hinchey (1996) (SCC), 111 C.C.C. (3d) 353 (S.C.C.) at P. 380-81; topreserve dignity and respect for the administration of justice by not trivializing the important work of the courts; to ensure that scarcetime and resources are not wasted.

On this latter point it is unconscionable that almost two days was devoted or about to be on devoted to the trial of this complaint whileother defendants languish for months in custody or much longer out of custody awaiting trial in this infamously under-resourcedjurisdiction that constantly teeters on the brink of another Askov meltdown, (SCC), [1990] 2 S.C.R. 1199.

(2) The De Minimis Defence And Regulatory Offences In Ontario [55] The de minimis defence, as elaborated upon by Arbour J. in Canadian Foundation for Children, Youth and the Law v. Canada(Attorney General), is a common law defence. Ergo, as a common law defence it would be available as a defence for an accused personcharged with committing a regulatory offence in Ontario by virtue of s. 80 of the Provincial Offences Act, R.S.O. 1990, c.

P.33, which isthe legislation that governs the procedure for the prosecution of regulatory or provincial offences in Ontario, and which preserves theapplication of common law defences to provincial offences, except in so far as they are altered by or inconsistent with the ProvincialOffences Act or any other Act: 80 Every rule and principle of the common law that renders any circumstance a justification or excuse for

an act or a defence to acharge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any otherAct. [56] Moreover, on the question of whether the de minimis non curat lex principle should apply to a regulatory offence in Ontario, the deminimis defence had been raised in a regulatory offence case arising in Ontario that had been appealed to the Supreme Court of Canada. However, in that case of Ontario v. Canadian Pacific Ltd., (SCC), [1995] S.C.J. No. 62 (S.C.C.), the accused hadchallenged the constitutionality of the legislation for vagueness.

In considering whether the legislation had been unconstitutional forbeing overly vague, Gonthier J. writing for the majority of the court at para. 65 of that case, had only applied or referred to the legalmaxim of de minimis non curat lex as a tool to aid in interpreting the meaning of the legislation at issue, instead of applying the deminimis principle directly to any impugned trivial breach of a provision of the governing statute as a means to immunize the accusedperson from legal culpability.

Furthermore, Gonthier J. explained that the de minimis principle is also closely related to the absurdityprinciple which is also another interpretive tool that allows for the narrowing of the scope of the statutory provision, given that thelegislature is presumed in law not to have intended to attach penal consequences to trivial or minimal violations of a provision.

As such,Gonthier J. concluded that for the particular legislative provision at issue, it did not attach penal consequences to trivial or minimalimpairments of the natural environment nor to the impairment of a use of the natural environment which is merely conceivable orimaginable [emphasis is mine below]: Second, interpreting the concept of "use" in s. 13(1)(

a) in a restrictive manner is supported not only by its place in the legislativescheme, but also by the principle that a statute should be interpreted to avoid absurd results. Pierre-André Côté, The

Interpretation ofLegislation in Canada (2nd ed. 1991), observes at pp. 383-84 that consideration of the consequences of competing

interpretations willassist the courts in determining the actual meaning intended by the legislature. Since it may be presumed that the legislature does notintend unjust or inequitable results to flow from its enactments, judicial

interpretations should be adopted which avoid such results. Onemethod of avoiding absurdity is through the strict

interpretation of general words (at p. 330). Driedger on the Construction of Statutes(3rd ed. 1994) states the relationship between the absurdity principle and strict

interpretation as follows, at p. 94: "Absurdity is oftenrelied on to justify giving a restricted application to a provision". Where a provision is open to two or more

interpretations, the absurdityprinciple may be employed to reject

interpretations which lead to negative consequences, as such consequences are presumed to havebeen unintended by the legislature. In particular, because the legislature is presumed not to have intended to attach penal consequencesto trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision.

In thisrespect, the absurdity principle is closely related to the maxim, de minimis non curat lex (the law does not concern itself with trifles).The rationale of this doctrine was explained by Sir William Scott in the case of The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482, at pp.269-70 and p. 1484: The Court is not bound to a strictness at once harsh and pedantic in the application of statutes.

The law permits the qualificationimplied in the ancient maxim De minimis non curat lex. -- Where there are irregularities of very slight consequence, it does not intendthat the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, wouldweigh little or nothing on the public interest, it might properly be overlooked. The absurdity, strict

interpretation and de minimis principles assist in narrowing the scope of the expression "for any use that can bemade of [the natural environment]", and determining the area of risk created by s. 13(1)(

a) EPA. Where an accused has released asubstance into the natural environment, the legal debate must focus on whether an actual or likely "use" of the "natural environment"has been "impaired" by the release of a "contaminant". This legal debate is clearly facilitated by the application of generally acceptedinterpretive principles. In particular, these principles demonstrate that s. 13(1)(

a) does not attach penal consequences to trivial orminimal impairments of the natural environment, nor to the impairment of a use of the natural environment which is merely conceivableor imaginable. A degree of significance, consistent with the objective of environmental protection, must be found in relation to both theimpairment, and the use which is impaired.

[57] Notably, the de minimis defence had been accepted and applied to a regulatory offence in Ontario, as early as the 1980s, in R. v.Webster, [1981] O.J. No. 2455 (Ont. Distr. Ct.), which was a case involving a parking ticket laid under a City of Sault Ste. Marie bylaw.

In that case, Vannini J. had held, at paras. 15 to 30, that even though there was no case at that time in Ontario in which the legal maximof de minimis non curat lex had been mentioned, considered or applied, he nonetheless held that the legal maxim is part of the commonlaw of Ontario and that it applies to both civil causes of action and to offences created by provincial statute, as well as to offences createdby a municipal by-law. Furthermore, Vannini J. concluded that the legal maxim is applicable to any provincial offence, which by virtueof s. 1(

e) of the Provincial Offences Act, 1979, S.O. 1979, c. 4, includes an offence "under a regulation or by-law made under theauthority of

an Act of the Legislature".

As a result, Vannini J. held that the maxim is applicable to a criminal or provincial offence or toan offence under a municipal by-law notwithstanding that the offence, such as the one under the by-law in question, is an offence ofabsolute liability in respect of which the accused person cannot exculpate themselves by showing that they were free of fault [emphasisis mine below]: Although the Justice of the Peace did not expressly make any reference to it, the issue on this appeal is whether, on the maxim "deminimis non curat lex" (translated - "the law does not concern itself with trifles") the Justice of the Peace had jurisdiction to dismiss theinformation having regard to the purpose of the by-law and all the circumstances of the case notwithstanding that all elements of theoffence charged had been proved.

The maxim first appeared in the law reports in Taverner v. Cromwell (1594), Cro. Eliz. 353, 78 E.R. 601. The rationale and operation ofthe doctrine expressed by the maxim was explained rather succinctly some 225 years later by Sir Walter Scott (afterwards Lord Stowell)in the case of The Reward (1818), 2 Dods. 265 at pp. 269-70, 165 E.R. 1482 at 1484: "The Court is not bound to a strictness at once harsh and pedantic in the application of statutes.

The law permits the qualification impliedin the ancient maxim De minimis non curat lex. - Where there are irregularities of very slight consequence, it does not intend that theinfliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh littleor nothing on the public interest, it might properly be overlooked." This was quoted with approval and extended to the criminal law and applied in R. v. Peleshaty, (MB CA), [1950] 1W.W.R. 108, 9 C.R. 97, 57 Man. R. 500 (C.A.), 96 C.C.C. 147 at 156-7; R. v.

Ling (1954), (AB KB), 19 C.R. 173, 109C.C.C. 306 (Alta. S.C.); R. v. Overvold, (NWT TC), [1972] 6 W.W.R. 473, 20 C.R.N.S. 327, 9 C.C.C. (2d) 517(N.W.T.); R. v. Stimson, (MB PC), [1974] 3 W.W.R. 598, 26 C.R.N.S. 130, 17 C.C.C. (2d) 181 (sub nom. R. v. S.)(Man. Prov. Ct.) where the Court held at p. 193 that "the application of the maxim appears to be totally discretionary". And while it has been said that the maxim has been "honoured as much for its breach as in its observation" the maxim was recognized inR. v. McBurney, (BC CA), [1975] 5 W.W.R. 554, 24 C.C.C. (2d) 44 at 46 (B.C. C.A.); R. v.

Babiac, (MB CA), [1975] 3 W.W.R. 615, 21 C.C.C. (2d) 464 at 468 (Man. C.A.) and in Would v. Herrington, (MB CA),[1932] 2 W.W.R. 385, 40 Man. R. 365, [1932], 4 D.L.R. 308 (C.A.). … Of the maxim, Mewett and Manning, supra, said at pp. 317-318: "The maxim de minimis non curat lex (the law does not concern itself with trifles) has its origins in common law and, as was stated by deWeerdt, J.M.C. in Overvold ... "has an ancient and colourful history in our jurisprudence, being honoured as much in its breach, it seems,as in its observance ...".

The defence has arisen within the context of both civil and criminal actions and most recently has arisen incriminal prosecutions involving the possession of drugs where the judiciary has played a role in developing the limits of liability on thosewho possess minute traces of drugs in question. The rationale behind the doctrine is to allow the courts to relieve persons who have"technically" breached a statute from liability under that statute.

Where there are irregularities of a very slight consequence and thejudicial policy has been that the statute did not intend that the infliction of penalty should be inflexibly severe and, further, if thedeviation were a mere trifle, the doctrine allows the court to overlook a technical breach of the statute." … Although I have not been referred to and my research has failed to disclose any case in Ontario in which the maxim was even mentioned,let alone

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