R. v. Sault Ste-Marie, 2021 QCCQ 3734

Director of Criminal and Penal Prosecutions c. 155784 Canada Inc. 2021 QCCQ 3734 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU « Criminal and Penal Division » N° : 555-61-004725-201 DATE : May 10, 2021 ______________________________________________________________________ PRESIDED BY HONORABLE JUSTICE CHRISTINE AUGER, MAGISTRATE JUSTICE OF PEACE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor vs. 155784 CANADA INC.

Defendant _____________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Defendant 155784 Canada Ltd. was accused of selling tobacco product to a minor [1] on the 19 th of August 2019, while the law provides that no one may sell tobacco to a minor. [ 2 ] A 16-year-old inspector is hired by the Health Ministry to pose as a client of the convenient store [2] operated by the Defendant and asked to purchase a package of cigarettes on the 19 th of August 2019.

Pictures of the inspector were taken that day [3] show that this young girl has no significant personal trait nor characteristic that would objectively cause someone to question her minority status nor have grounds to believe that she was of full age. [ 3 ] She purchased a package of “Québec Classique” cigarettes [4] without being questioned on her age [5] from the clerk who was approximately 18 years of age [6] . [ 4 ] In proceedings of this nature, a Defendant who shows that a reasonable effort was made to verify the age of a person and that there were reasonable grounds to believe that the person was of full age should be acquitted.

QUESTION TO BE LITIGATED [ 5 ] Has the Prosecution proven all of the essential elements of the infraction establishing beyond a reasonable doubt the commission of the infraction? The answer is yes. The Prosecution has proven all of the essential elements of the infraction such as the identification of the Defendant as the operator of the convenient store, purchase of tobacco, minority status of the purchaser. [ 6 ] On the second litigated question, has the Defendant established on a balance of probabilities a defence of due diligence in making reasonable effort to verify the age of a person?

After analysis of all of the evidence, the answer to this litigated question is no. What are the reasons justifying this Court to refuse the defence of due diligence? ANALYSIS [ 7 ] In the analysis of the due diligence evidence required by R. v.

Sault Ste-Marie [7] , in light of the criteria established in Depan- Escompte [8] , the Court must evaluate essential aspects of the Defendant’s evidence in the context of due diligence, in particular, training, follow-up and enforcement. [ 8 ] The Defendant operates a convenience store and gas bar in Bryson in an area where there is significant customer traffic volume. [ 9 ] The clerk working in the convenience store on that day was 16 years old and began working for the Defendant on May 24 , 2018, a little more than one year prior to the infraction date. [ 10 ] She works part-time under the condition that she maintains her grades in good standing.

She testifies that she received training

from her manager as relates to the sale of lottery and tobacco products and her obligation to identify clients that she has reason to believe are minors. She believed the purchaser to be around 25 years old. [ 11 ] The Defendant’s manager has been employed since June 25 2012, and she was responsible for the clerk’s training. Essentially, for lottery and tobacco, if she has reason to believe that the purchaser is 25 years or younger, she was to ask for an ID. [ 12 ] On the day of the infraction, the manager was not present at the store because of a last minute personal emergency relating to daycare for her child.

The clerk was called in to replace her. The day shifts are very busy as compared to the shifts normally given to the clerk. It was the first time that the clerk had a day shift since starting to work for the Defendant. According to the manager, the clerk was simply overwhelmed.

The shifts normally attributed to the clerk are much shorter and are given at the time of the day where the store is not too busy. [ 13 ] The clerk confirms that her shift on that day was abnormal because contrary to her normal shift, she had many different tasks of taking inventory and serving clients at the same time. [ 14 ] After 5 to 6 days of training with her manager, she started to work by herself. During her training she received information and was shown posters and booklets on the sale of lottery and tobacco.

Under the law, not only does the Defendant have to ensure that the tasks are understood but that they are followed. The Court finds that the fact that the clerk needed to take personal notes and made a list of tasks in order not to get mixed up concerning her work routine was indicative that a more organized, detailed training framework would be required. [ 15 ] The owner, Mr. Zhang explains that he works the night shift until closing at 10 pm and the manager works the day shift. The clerk works short shifts when the store is not as busy in between the day shift and the night shift.

The snack bar is the responsibility of another worker. There are 4 employees and the convenient store operates seven days per week. [ 16 ] Because it is a small business, the training, follow-up and enforcement are very informal. Mr. Zhang advises employees of the consequences for the Defendant of not respecting their legal obligations concerning tobacco. He talks to the younger employees and at times, even their parents to discuss working hours, schooling, grades and generally how to be better persons. [ 17 ] The Court was able to conclude that the owner, Mr.

Zhang, has a very personalized approach which is akin to a paternal role in dealing with his employees. It is obvious that he attempts to create a positive and family work environment. [ 18 ] He is also proactive in hiring students with learning challenges or students who are just starting out in the workforce. The Court commends the Defendant for giving students a chance to experience their first job and gather work experience. There are simply too many instances where employment is beyond reach for them, either because of inexperience or capabilities of these young workers.

The hiring practises of the Defendant should set an example for employers who seek to have equitable employment standards. [ 19 ] However, with that hiring policy comes greater diligence in all aspects of the training, follow-up and enforcement. The reason is very simple.

Even with proactive hiring practises, if the training and regular follow-up are inefficient, the result for the student employee is that the first experience has the potential of being devastating . [ 20 ] In fact, when the young clerk was notified of the sale of the product to a minor, she was physically sick, took the entire burden of this situation on herself and felt responsible for the “trouble” in which she placed Mr. Zhang, to quote her testimony. To the court’s astonishment, she even wanted to be responsible for the payment of fine. [ 21 ] The Court was very impressed with this young lady.

She is serious, committed, hard-working and demonstrates adherence to a strict moral code and work ethic. She must be congratulated for taking the initiative of taking personal notes concerning her work routine to ensure that she would not confuse the different tasks required of her. [ 22 ] The Court emphasized to this young woman that what happened at the store that day was not her fault . It is a fact that she was overwhelmed but there are reasons why that was the case.

In short, the work requirements placed upon her were not adapted to her training nor her work routine over the past year of employment. [ 23 ] First, a 5-6 day training with her manager followed by working alone is unacceptable. There should have been shifts where the clerk was working with someone who could evaluate that the requirements of the work were well understood and applied. The Court has no evidence that this verification was done.

The clerk was called to work alone very quickly after being hired, even if she worked during shifts that were not too busy. [ 24 ] Second and perhaps more importantly, the evidence suggests that the clerk was called upon at the last minute to cover for the manager who was unable to attend work that morning for justified child-care issues. Mr. Zhang should not have called upon the clerk to fill in, knowing that she was going to be working alone on a busy day shift , that she had combined tasks and that it was her first experience on a shift of this nature.

It was quite reasonable to expect that the 16-year-old student would be overwhelmed and issues could arise .At the very least, Mr. Zhang should have been there with her at the beginning of her shift to ease her anxiety and make sure things were running smoothly before he left. [ 25 ] As well, throughout Mr. Zhang’s testimony, he emphasized that “we needed to make sure that no tobacco was sold to minors”. The Court takes considerable issue with that view. Ultimately, it is Mr.

Zhang’s responsibility to ensure that his employees have all of the tools that they require at their disposal to respect the legal obligations that bind the operation of his business. It was not the case here. The clerk did not have at her disposal the tools that she needed nor the work conditions that allowed her to do that. It was Mr. Zhang’s responsibility. [ 26 ] Lastly, it was the Court’s impression that in the event of a guilty verdict, there was a potential that Mr. Zhang would terminate the employment of the clerk or perhaps even consider having her assume part of the fine, as a consequence.

That would be highly unfortunate if that were to happen, but in the event it does, the Court has no doubt that this serious, polite and hard-working young

woman will find employment that will suit and value her important work ethic. It is the Court’s view that no consequences of any nature should be imposed on this employee as a result of the Court’s verdict. FOR THESE REASONS, THE COURT: DECLARES the Defendant guilty of the infraction as charged. __________________________________ JUSTICE CHRISTINE AUGER, J.P.M. M e Sophie Ouellette Directeur of Public Prosecution Defendant is self-represented through his Administrator Date of hearing : February 1 st , 2021