2020 QCCQ 784, 2020 QCCQ 784

Director of Criminal and Penal Prosecutions c. 9283-1072 Québec inc. 2020 QCCQ 784 JL4783 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF SAINT-FRANÇOIS TOWN OF SHERBROOKE «Criminal and penal division» N°: 450-61-067798-180 DATE : 28 th of February 2020 ______________________________________________________________________ BEFORE MADAM TANYA LAROCQUE, JUSTICE OF THE PEACE AND JUDGE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor c. 9283-1072 QUÉBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is accused of selling tobacco to a minor [1] . The court must determine if the offense is proven beyond a reasonable doubt and if so, does the defendant show that a reasonable effort was made to verify the age of the person buying the tobacco. [ 2 ] On the 14 th of July 2017, a sixteen year old girl employed by the MSS [2] , is instructed to buy a pack of cigarettes without lying about her age or encouraging the sale.

At 7:52 that morning, she enters the defendant’s convenience store. There are no other clients in the store. She grabs a bottle of water and heads to the counter. She then asks the cashier for a pack of red Next cigarettes. The cashier gets the cigarettes, puts them on the counter and tells the girl the price of her items. The girl pays and then leaves the store with her items and the bill. The cashier never asks the girl her age or to see her identification documents. [ 3 ] The prosecution has proven beyond a reasonable doubt that the defendant sold tobacco to a person under the age of 18. DUE DILIGENCE [ 4 ]

Section 13 of the Law prohibits the sale of tobacco to a minor and

section 14 provides a due diligence defense. [ 5 ] The defendant must demonstrate, by balance of probabilities, that all reasonable precautions to prevent the commission of the infraction where taken. The defendant must satisfy a higher onus of proof issued by the legislator in

section 14 of the Law. The defendant must show that a reasonable effort was made to verify the age of the person and that there were reasonable grounds to believe that the person was of full age [3] . [ 6 ] To determine the defendant’s due diligence, the Court must compare her actions with the actions of a person in the same sector of specialised activity [4] . [ 7 ] In Procureur général du Québec c. Dépan-escompte Couche-Tard inc. [5] , The judge enumerates the criteria the Courts must consider when an employer is prosecuted for the actions of his employee : 1.

The presence of clear directives that are appropriately given to the employees by an effective way of communication; 2. Implementing application systems, control and supervision of the directors and employees; 3. The existence of a specialized training program and the training of the staff; 4. The use and maintenance of adequate equipment; 5. […] 6. The possibility of graduated administrative sanctions to incite the employees to respect the Law and directives;

ANALYSIS The presence of clear directives that are appropriately given to the employees by an effective way of communication [ 8 ] The defendant has a contract that must be signed every month by the employees. This contract states that the employee must read it and put their initials after every paragraph to show his (or her) understanding of the requirements towards the sale of prohibited products to minors. [ 9 ] This contract was signed by the faulty cashier in the months before and after the incident.

However, the contract was not co-signed by the employer. [ 10 ] It is not sufficient to ask the employees to sign a contract. The employer must make sure the employees understand the directives given. The employer must do follow ups, punctual verifications and frequent reminders [6] . [ 11 ] The contracts are accessible to the employees so they can refer to them at all times. This cannot be considered as a follow up or a reminder since the defendant does not take active steps to make sure the employees know the rules [7] . The defendant leaves that responsibility to the employees.

Implementing application systems, control and supervision of the directors and employees [ 12 ] The defendant employs a supervisor. However, the supervisor is not present at the hearing to explain to the Court the tasks that he accomplished. Furthermore, the proof shows that the supervisor is not present at the time of the incident. The defendant does not take any other means to supervise or control the employees. Therefore, there is a lack of supervision.

The existence of a specialized training program and the training of the staff [ 13 ] The only training received by the cashier consists of the contract that she must sign every month. This cannot be considered as a specialized training program. The use and maintenance of adequate equipment [ 14 ] The defendant’s store has signs pertaining to the sale of prohibited items to minors. These signs are meant for the clients and not for the employees. The cashier uses a note on which the year of birth of an 18 year old is inscribed. This note is used as a reminder for herself and other employees.

This is a good tool as long as an identification document is given so the cashier can compare it with the date on the note. [ 15 ] The defendant does not use other equipment to verify the age of the customers for lack of finances. The equipment in place at the time of the incident is not sufficient. The possibility of graduated administrative sanctions to incite the employees to respect the Law and directives [ 16 ] The defendant’s administrator asked the supervisor to fire the faulty cashier but he refused because employees are hard to find.

The defendant orders were not obeyed and the supervisor and cashier did not get punished for their faulty actions. [ 17 ] The defendant has no graduated administrative sanctions . The implement of such a system is necessary to incite the employees to respect the Law and follow the directives given by their employer [8] .

DECISION [ 18 ] THEREFORE, the defendant does not show due diligence to verify the age of the customers since none of the criteria are met. [ 19 ] FOR THESE REASONS, THE COURT : [6] DECLARES the defendant guilty of the infraction; [7] CONDEMS the defendant to pay the minimum fine [9] of 2 500$, with costs for the trial and costs for one postponement, in the next sixty (60) days of the present judgement. __________________________________ TANYA LAROCQUE JUSTICE OF THE PEACE and JUDGE

Me Juliette Ménard-Reid Attorney for the prosecution The representative for defendant, Madam Ying Yuan Tan, is not assisted by an attorney. Date of hearing: 26 th of February 2020