R. v. Canada Safeway Ltd. Date:, 2011 BCPC 385

Citation: R. v. Canada Safeway Ltd. Date: 20111219 2011 BCPC 0385 File No: AH00919665-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CANADA SAFEWAY LTD. REASONS FOR JUDGMENT OF JUDICIAL JUSTICE I. BLACKSTONE Appearing for the Crown: H. Mulder Appearing for Defence: P. Mazzone Date of Hearing: September 29, 2011 Date of Decision: December 19, 2011 Background [ 1 ] On March 5, 2010, Fraser Health Authority employed a minor test shopper to attend Canada Safeway in Abbotsford and purchase cigarettes.

She was successful; an employee of Canada Safeway sold tobacco products to the minor who was 17 years old. [ 2 ] Two minor test shoppers attended Safeway in Abbotsford. They went to the customer service desk and one of them asked the clerk, Donna Taylor, for cigarettes. Clerk Taylor asked for identification. A valid British Columbia drivers licence was produced. Ms. Taylor looked at it for a few seconds, gave it back accepted money and the purchase was made.

A few minutes after they left an agent for the Fraser Health Authority entered the store and issued a violation ticket to Canada Safeway Ltd. with one count of selling tobacco to a person under 19 years of age contrary to Sec. 2(2) of the Tobacco Control Act. Issue #1: Is the Fraser Health Authority operating in good faith by using identification that does not prove the required age? [ 3 ] In its submission Canada Safeway argued entrapment because the Fraser Health Authority was using minor test shoppers to monitor compliance.

They also argued that having minor test shoppers produce identification as if they were 19 years old had an element of deception because the inference is that the identification is valid when it is known to not be valid, i.e. could not prove the age of 19. [ 4 ] First, it is erroneous to state the identification is invalid because it was used to prove an invalid age. There was nothing in the evidence to suggest at any time that the minor test shopper was suggesting any age what so ever. When asked for identification she offered her driver’s licence.

Driver’s Licenses are used primarily for reasons other than proof of identification; however they are accepted as a viable form of identification because of the quality screening process used by the government prior to issuance. Nothing was asked about her age and nothing was offered in response – it was there in plain view on the face of the licence for the employee to see. [ 5 ] The use of under age minors offering identification as if to verify legal age was cautioned in Safeway’s letters and email to employees at tab 21 dated back to October 2002.

[ 6 ] The issue of entrapment in regulatory offences was dealt with in R. v. Au Canada Monetary Exchange

(1999) B.C.J. No 455 . “it is not necessary for the police to have a reasonable suspicion that the accused or any of the other currency exchange dealers were failing to comply with the provisions of the PCMLA and the regulations made there under before conducting the spot check, in the manner which they did.” [ 7 ] And, for there to be entrapment, as stated by Estay J. in Amato v. The Queen (1982) 69 C.C.C. b) ….. they must go beyond providing an opportunity and induce the commission of an offence. [ 8 ] In this case I am satisfied there was no inducement and hence no entrapment.

Issue #2: Did Canada Safeway practice due diligence in its approach to the sale of tobacco as defined by the Tobacco Control Act? [ 9 ] At trial a great deal of time was spent on Safeway’s Tobacco Sales Policy, implementation and application of that policy and how they train employees to achieve compliance. [ 10 ] Exhibit 9, tendered by Safeway is a 171 page document brief with 40 tabs. It illustrates the progression of the policy from 1996 through to 2010. Generally speaking, Safeway used a series of email letters to employees advising of the Tobacco Sales Policy.

This was often accompanied by a sign off sheet indicating the employee selling tobacco had read the policy. [ 11 ] Safeway created its own slogan “If in doubt we check it out’, this was displayed in their stores, in the policy releases and in- house news letters. [ 12 ] Regular inter office communication was sent out containing the Tobacco Sales Policy. [ 13 ] It laid out six steps to follow: 1. Assess if the customer appears to be under the age of 25 years 2. If the customer appears to be under 25years of age, you must ask for proper identification. 3.

A photo ID, such as a valid driver’s license or an age of majority card, is the only acceptable form of identification. 4. Look at the customer and compare them to the picture on the form of ID presented. 5. Compare the date of birth on the ID presented to ensure the legal age requirements are met. 6.

If all of the above requirements are met, you can proceed with the transaction. [ 14 ] At the bottom of the policy the following statement appears: THIS POLICY MUST BE STRICTLY FOLLOWED ANY EMPLOYEE FOUND TO BE IN VIOLATION OF THE POLICY WILL BE SUBJECT TO DISCIPLINARY ACTION UP TO AND INCLUDING TERMINATION OF EMPLOYMENT. [ 15 ] Communications were sent out when a sale of tobacco to a minor occurred. The policy was restated.

Over the years a pattern developed where the policy was restated and reissued, followed approximately six months by another policy release and a sign off sheet. [ 16 ] Some of the releases included photocopies of the decals required by the Tobacco Control Act. [ 17 ] Having read all the documents, there can be no doubt that any employee of Safeway having had exposure to them would be well aware of the company policy on selling tobacco to minors and complying with the Tobacco Control Act. [ 18 ] In addition to the on going written information provided to staff, other procedures were used by Canada Safeway such as selling tobacco products at the customer service desk.

The employees at the customer service desk were considered more mature and experienced. Additionally, the cash register system used an age verification system that informed the cashier of the “born before” date. [ 19 ] I am satisfied Canada Safeway used due diligence in training its employees on the sale of tobacco to minors.

Issue #3: Did Canada Safeway do all it could to train its staff in identification of underage persons, specifically with regard to the new driver’s licenses? [ 20 ] Crown’s position is that the new British Columbia drivers licence included a text line indicating, “under 19 until “(the birth date indicated). Training about this feature should have been provided. [ 21 ] Although no specific training on the new drivers licence was provided by Safeway, policy was quite clear that the date of birth on the ID must be compared and checked. The test to be met is not perfection – the test to meet is a reasonable standard.

It is my opinion, if an employee did read the identification provided, the added text on the driver’s licence would have been sufficient - it was there to be seen. [ 22 ] The evidence of Donna Taylor is clear – she worked there for 20 years, she knew of the policy, she knew all the rules. She had seen a few of the new driver’s licenses. However, on that day she was busy, she took the license, looked at it, computed in her head but

it didn’t register correctly. [ 23 ] No amount of training offered by an employer can indemnify against simple human error. [ 24 ] I am satisfied Canada Safeway used due diligence in training it employees, including the new drivers licenses. [ 25 ] Having considered all the above I am satisfied that Canada Safeway met the defence of due diligence, I find Canada Safeway Ltd. not guilty. ___________________ I. Blackstone Judicial Justice