R. v. Overwaitea Food Group Ltd. Date:, 2011 BCPC 386

Citation: R. v. Overwaitea Food Group Ltd. Date: 20111122 2011 BCPC 0386 File No: 5321: AH00919699-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. OVERWAITEA FOOD GROUP LIMITED REASONS FOR JUDGMENT OF JUDICIAL JUSTICE I. BLACKSTONE Appearing for Crown: H. Mulder Counsel for Defendant: J.H. Goulden Place of Hearing: Chilliwack, B.C.

Date of Hearing: September 16, 2011 Date of Judgment: November 22, 2011 [ 1 ] The Defendant, Overwaitea Food Group Limited is charged under Sec. 2(2) of the Tobacco Control Act, “Sell tobacco to person under 19 yrs”. [ 2 ] The alleged offence occurred in Chilliwack at the Price Smart store. The defendant Overwaitea admits the facts of the allegation and presents a defence of “due diligence.” [ 3 ] On March 4, 2010 an employee of Price Smart, Sherry Mitchell sold tobacco – cigarettes to Mr. Janzen a minor test shopper employed by the Fraser Health Authority. Mr. Janzen at that time was 16 years old.

He was accompanied by Ms. Thomas, also a minor test shopper employed by the Fraser Health Authority. Ms. Thomas was 16 years old. [ 4 ] The issues that arise in this matter are: 1) has Overwaitea demonstrated due diligence in their steps taken to prevent the sale of tobacco to under aged persons or as Crown submits 2) has Overwaitea failed to provide adequate training regarding the Tobacco Sales policy and

3) has Overwaitea failed to properly instruct their employees on what constituted proper identification, including the new form drivers’ licence released in the spring of 2009. The significance of the new licence is the additional text identifying those under 19 years. [ 5 ] In this case the defence provided a DVD containing a segment of an in house video surveillance. The court was able to see what happened on the day of the alleged offence. There was no audio recording.

The two minor test shoppers approached the customer service counter, the employee behind the counter, identified as Sherry Mitchell addressed them briefly, reached into a drawer under the counter and extracted a package of cigarettes, Mr. Janzen produced a card later established to be a driver’s licence, Ms. Mitchell looked at it, returned it to Mr. Janzen; she accepted money and gave back change. The two minor test shoppers left the store with a package of cigarettes. A few minutes later Mr.

Hans Mulder, Tobacco Enforcement Officer entered the store and ultimately issued a Violation Ticket to Overwaitea Food Group Limited. [ 6 ] I note, with the assistance of the video surveillance on DVD and seeing them in court as witnesses a year later neither of the two young people looked 19 years old. [ 7 ] Tobacco Control Act Sec. 2(2) A person must not sell, offer for sale provide or distribute tobacco to an individual who has not reached the age specified by regulation under section 11 (2) (g). [ 8 ] The case of R. v. Sault Ste.

Marie found at (1978) 40 C.C.C. is helpful: 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 willful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system.

The availability of the defence to a 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. [ 9 ] Crown submits the training for Tobacco sales was inadequate, constituting less than 5 % of the training for a responsibility that comprised 50 to 90% of the duties of the customer service desk.

Retraining or refresher training was only offered by the employer when triggered by a mistake or a lengthy leave. [ 10 ] The regular in house training merely consisted of annual reissuing of the company Tobacco Sales Policy. A communication book that contained up dates and company memos was available for employees to read.

Crown described this as haphazard. [ 11 ] Crown submits the absence of: • training on acceptable identification, • a guide on how to examine identification, • ways to determine legitimacy of the identification and • more importantly, no training on the new form of British Columbia identification and driver’s licence cards issued in 2009 removes the defence of due diligence. [ 12 ] The defence filed copies of Overwaitea Food Group’s Tobacco Sales Policy #RT002: • dated November 1999 signed by Ms Mitchell on April 2002 • dated February 2002 signed by Ms. Mitchell on May 2005 • dated March 2004 signed by Ms.

Mitchell on March 2005 • dated March 2004 signed by Ms. Mitchell on October 2008 • dated March 2004 signed by Ms. Mitchell On March 2010. [ 13 ] Four of these five documents are exactly the same; the first one from 1999 is slightly different. All contain information regarding the laws affecting tobacco sales in British Columbia.

It emphasized “ALL EMPLOYEES are responsible for understanding and complying with the laws that affect the sale of tobacco in the Province. “ It also contained the following “It is ILLEGAL to sell to anyone who has not attained the age of 19 years.” It contained a paragraph describing a tobacco product and could not be sold to minors. It clarified what associated items could be sold. It contained a reference to the penalties facing both the company and the employee in the event of a sale to a minor.

Above the employee signature line is the following statement: “I have read, and understand the above policy, and realize that failure to adhere to it may result in disciplinary action, up to and including termination.” [ 14 ] Defence exhibit #10 – Cashier Training Walk through, which indicates Tobacco Age Verification is covered on day 2 of a 5 day training course. [ 15 ] Two defence witnesses, the Supervisor of the Chilliwack Price Smart store and the Cashier trainer clearly laid out the emphasis placed on adhering to the store policy about the Tobacco Act by requesting acceptable identification.

The Supervisor constantly monitored cashier compliance and the trainer covered it in orientation with new cashiers and in retraining when an employee returned from leave. Ms. Mitchell was on leave on three different occasions and was retrained each time. The Tobacco Policy was covered on these occasions.

[ 16 ] Overwaitea Food Group has a cash register system - a point of sale system that requires the cashier during a tobacco sale to enter a date of birth on two separate screens to confirm the customer is over the age of 19 years. One of the screens is bright red. The POS system has an override function. Ms Mitchell admitted to using the override function. [ 17 ] There are photo exhibits that establish this Price Smart had regulatory decals at cash registers and the customer service desk as required by the Tobacco Control Regulations.

There is no evidence to indicate the tobacco products were not stored correctly. [ 18 ] The evidence of Sherry Mitchell is the most telling and most helpful. Ms. Mitchell is 46 years old; she has worked for Price Smart in Chilliwack BC since 1997. Her duties are groceries, customer service, tobacco sales, refunds, exchanges and complaints. When asked about her specific training on tobacco sales her answer included the steps required by the new tills for the tobacco policy prompting the age to be typed in and then verified, or if age was visually confirmed then one could enter twice and proceed.

She admitted to signing and dating at various times the Tobacco Sales Policy. She confirmed training on the POS system. She described the steps taken when asking for ID if the customer looked less than 25 years old – look to verify ID is for the right person, find the birth date, punch it into the computer, and then the prompt for 2 nd time. She understood this was all required because it’s illegal to sell to under 19 yrs. Through a series of questions Ms.

Mitchell acknowledged she was trained, there was policy regarding ID for anyone under the age of 25 years, she understood the penalties of selling tobacco would be fines and possible termination. She agreed the company conveyed the seriousness of selling tobacco to minors. She knew the Health Authority used minor test shoppers. When asked if anything was confusing she said no.

She confirmed there was regular supervision and reminders. [ 19 ] When asked about the events of March 4, 2010 Ms Mitchell described a young person asked for Belmont Slims, she asked for ID, quickly verified it, cleared the prompts and sold the tobacco. She said she had the ID in hand for about 2 seconds, she agrees she didn’t read the ID. When asked why, she answered, “I made a mistake”. Further questioning confirmed there was no difficulty reading the licence she just didn’t read it. [ 20 ] A few days after this sale to a minor Ms.

Mitchell had a meeting with the supervisor and resigned the Tobacco Sales Policy. Pursuant to the Master agreement this incident was treated as step one in the disciplinary process, a verbal warning was recorded on her file. [ 21 ] Crown submits the defendant’s tobacco training program or policy changed “superficially” in format between 2002 and 2010, an example of a one size fits all policy. However, during that time there was no evidence that the Tobacco Act itself changed which could have triggered a change in the content of the policy.

The material in the Act itself and the store policy is not complex it is clearly stated that it is illegal to sell tobacco products to anyone not 19 years old. [ 22 ] Crown also submits the in house training program failed to address acceptable identification. I note in exhibit # 10 there is training on age verification in tandem with Tobacco Act training on Day 2 of cashier training.

Checking for ID is addressed several times with respect to story policy in Exhibit 9, Skills Training Series Cashier. [ 23 ] Finally crown submits that Overwaitea’s failure to inform its employees on the enhanced driver licence was neglectful.

Yet, Crown’s submission suggests that the added feature of a text line that states “under 19”, until birth date inserted, made the licence so simple it replaced “the need to read the date of birth and attempt to do the math or the need to input the birth date into a computer or cash register to do the math for you.” [ 24 ] I have read the material and cases provided by counsel. I return to R, v. Sault Ste. Marie (supra).

The availability of the defence to a 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. [ 25 ] In the case at bar I am satisfied that the directing minds of the corporation had demonstrated the will of the corporation itself to be adherence to the Tobacco Act. • There was written and oral communication of the tobacco sales policy • There were regular releases re-iterating the policy. • A training program included the tobacco act policy. • They employed a dedicated trainer. • Refresher training was conducted after absences. • Employees were required to sign acknowledgment of the policy. • Tobacco sales were restricted to customer service areas and conducted by experienced cashiers. • There was on going job site supervision. • There was video surveillance. • Signage was correct and adequate. • There was a daily communication book containing up dates to policy.

• The cash registers had a POS system • Employees knew they would be disciplined if they sold tobacco to minors. • Employees knew the Fraser Health authority utilized minor test shoppers. With these procedures in place the employee did know the importance placed on adherence to the tobacco policy and the Tobacco Actby the employer. [26] I have read R. v. Fibreco Pulp Inc.

(1997) B.C.J. 846 and R. v. Wholesale Travel Group Inc. (1991) (SCC),S.C.J. No. 79. It is necessary to avoid the temptation of expecting companies to achieve exemplary training and monitoring proceduresas cases proceed and develop - a standard of perfection that becomes less and less possible to maintain. Did Overwaitea Group havepolicies that met reasonable standards? I think they did. I am satisfied Overwaitea Group exercised due diligence. The offence occurreddue to human error, a mistake. I find the defendant – not guilty. __________________ I. Blackstone Judicial Justice