R. v. Myers (M.R.), (1999) 185 Sask.R. 281 (ProvCt)

• Judge: Meagher, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: October 18, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 185 Sask.R. 281 (ProvCt)

R. v. Myers (M.R.) (1999), 185 Sask.R. 281 (ProvCt)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. OC.055

Indexed As: R. v. Myers (M.R.)

Saskatchewan Provincial Court

Regina

Meagher, P.C.J.

October 18, 1999.

Summary:

Myers was charged with selling cigarettes to a young person, contrary to s. 8(1) of the Tobacco Act. A 17 year old test shopper had attended at Myer's workplace at the direction of a Tobacco Act enforcement officer and had purchased cigarettes from Myers without being questioned about his age or asked for identification.

The Saskatchewan Provincial Court found that Myers did not comply with the Act. However, the court entered a stay of pro­ceedings where it found that the procedure used by the enforcement officer amounted to entrapment resulting in abuse of process.

Criminal Law - Topic 205

Common law defences - Entrapment - Agents provocateur - [See first Trade Regulation - Topic 5266 ].

Criminal Law - Topic 205.1

Common law defences - Entrapment - Requirement of reasonable suspicion or a bona fide investigation - [See first Trade Regulation - Topic 5266 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See first Trade Regulation - Topic 5266 ].

Criminal Law - Topic 255

Abuse of process - Power of court - Re prevention and remedies - [See first Trade Regulation - Topic 5266 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See first Trade Regulation - Topic 5266 ].

Trade Regulation - Topic 5266

Retailers - Offences - Selling tobacco to a minor - Myers was charged with selling cigarettes to a young person, contrary to s. 8(1) of the Tobacco Act - Myers had sold cigarettes to a 17 year old test shopper who attended at his workplace at the di­rec­tion of a Tobacco Act enforcement officer - The Saskatchewan Provincial Court found that there was no suspicion on the part of the enforcement officer that Myers had been selling tobacco to minors and that therefore the investigation was an act of random virtue testing - There were other methods of investigation that could have been used but were not and therefore the procedure used by the enforcement officer amounted to entrapment resulting in abuse of process - The court entered a stay of proceedings - See paragraphs 8 to 16.

Trade Regulation - Topic 5266

Retailers - Offences - Selling tobacco to a minor - Myers was charged with selling cigarettes to a young person (a 17 year old test shopper), contrary to s. 8(1) of the Tobacco Act - Myers argued that the only proof of the test shopper's age was given by the test shopper himself and that it was hearsay and not admissible - The Saskatch­ewan Provincial Court rejected that argu­ment and applied s. 658(1) of the Criminal Code which provided that the testimony of a person as to the date of his birth was admissible - The Criminal Code applied by virtue of s. 34(2) of the Inter­pretation Act - See paragraph 6.

Trade Regulation - Topic 5266

Retailers - Offences - Selling tobacco to a minor - Myers was charged with selling cigarettes to a young person, contrary to s. 8(1) of the Tobacco Act - Myers had sold cigarettes to a 17 year old test shopper without asking about his age or for identi­fication - The defence argued that Myers had an honest belief that the test shopper was over 18 - The Saskatchewan Provin­cial Court rejected the argument - Section 8(2) of the Act stipulated the steps which a seller must take to determine the age of a prospective buyer - If such steps were not taken the seller was open to conviction - Myers did not comply with s. 8(2) - See paragraph 7.

Cases Noticed:

R. v. Yung (Y.M.) (1997), 203 A.R. 149; 53 Alta. L.R.(3d) 147 (Prov. Ct.), refd to. [para. 7].

R. v. Campbell (J.) and Shirose (S.) (1999), 237 N.R. 86; 119 O.A.C. 201 (S.C.C.), refd to. [para. 9].

R. v. Mack, [1989] 2 S.C.R. 903; 90 N.R. 173; 44 C.C.C.(3d) 513, refd to. [para. 10].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487; 140 D.L.R.(3d) 405, refd to. [para. 13].

Counsel:

Mr. Halvorsen, for the Crown;

Mr. Szakacs, for the defendant.

This matter was heard at Regina, Saskatchewan, before Meagher, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on October 18, 1999.