R. v. Sobeys Inc., (2000) 181 N.S.R.(2d) 263 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 10, 2000
• Jurisdiction: Nova Scotia
• Citations: (2000), 181 N.S.R.(2d) 263 (SC);2000 CanLII 1961 (NS SC);[2000] NSJ No 32 (QL);181 NSR (2d) 263

R. v. Sobeys Inc. (2000), 181 N.S.R.(2d) 263 (SC);

 560 A.P.R. 263

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. FE.020

Sobeys Incorporated (appellant) v. Her Majesty The Queen (respondent)

(S.AT. No. 2286)

Indexed As: R. v. Sobeys Inc.

Nova Scotia Supreme Court

MacAdam, J.

January 31, 2000.

Summary:

A Sobeys employee sold cigarettes to a 16 year old youth test purchaser conducting a "compliance check" for the Department of Health. The youth had insufficient funds for the purchase, so the employee paid the balance of the purchase price and told the youth to pay her back later. Sobeys and the employee were convicted of selling ciga­rettes to an underage purchaser contrary to s. 5(1) of the Tobacco Access Act. The court imposed, in addition to a fine, an order prohibiting Sobeys from sell­ing cigarettes from the premises for seven days under s. 12(2)(a) of the Act. Sobeys appealed, sub­mitting that (1) there was no "sale" of ciga­rettes where the employee provided a portion of the purchase price; (2) Sobeys was entrapped, resulting in an abuse of process; (3) the prohibition order should have been issued against the employee, not Sobeys; and (4) the trial judge erred in failing to find that Sobeys exercised due diligence in ensuring that cigarettes were not sold by employees to underage pur­chasers.

The Nova Scotia Supreme Court dismissed the appeal.

Criminal Law - Topic 205.1

Common law defences - Entrapment - Requirement of reasonable suspicion or a bona fide investigation - A Sobeys employee sold cigarettes to a 16 year old youth test purchaser conducting a "compli­ance check" for the Department of Health - Section 10 of the Tobacco Access Act empowered the Department to make test purchases to check for compliance with the Act - On appeal from conviction, Sobeys raised, for the first time, the defence of entrapment - The Nova Scotia Supreme Court considered the defence notwith­standing the failure to raise it at trial - The issue of the validity of s. 10 was not raised - The court stated that absent an attack on the validity of s. 10, a bona fide inquiry under s. 10 did not constitute entrapment - See paragraphs 15 to 21.

Trade Regulation - Topic 5266

Retailers - Offences - Particular offences - Selling tobacco to a minor - A Sobeys employee sold cigarettes to a 16 year old youth test purchaser conducting a "compli­ance check" for the Department of Health -The youth had insufficient funds for the purchase, so the employee paid the balance of the pur­chase price and told the youth to pay her back next time in - So­beys and the employee were convicted of selling ciga­rettes to an underage purchaser con­trary to s. 5(1) of the Tobacco Access Act - So­beys submitted that there was no "sale" within the mean­ing of s. 5(1) - The Nova Scotia Supreme Court affirmed that there was a sale between the youth and Sobeys -The employee's facili­tation of the sale by pro­viding the youth with the funds needed to complete the sale did not result in a con­tract between the youth and the employee - The sale remained between the youth and Sobeys - See paragraphs 5 to 13.

Trade Regulation - Topic 5266

Retailers - Offences - Particular offences - Selling tobacco to a minor - A Sobeys employee sold cigarettes to a 16 year old youth test purchaser conducting a "compli­ance check" for the Department of Health -Sobeys and the employee were convicted of selling cigarettes to an under­age pur­chaser contrary to s. 5(1) of the Tobacco Access Act - The court imposed, in addi­tion to a fine, an order prohibiting Sobeys from selling cigarettes from the premises for seven days under s. 12(2)(a) of the Act - Sobeys claimed that the pro­hibition order should have been made against the employee personally, not So­beys, because the employee contravened company policy communicated to her under the potential threat of termination - The Nova Scotia Supreme Court held that the trial judge did not err in imposing the prohibition order on Sobeys - See para­graphs 22 to 27.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - A Sobeys employee sold cigarettes to a 16 year old youth test pur­chaser conducting a "compliance check" for the Department of Health - Sobeys and the employee were convicted of selling cigarettes to an underage purchaser con­trary to s. 5(1) of the Tobacco Access Act - Sobeys appealed, submitting that the trial judge erred in failing to find that Sobeys exercised due diligence to ensure that cigarettes were not sold by employees to underage purchasers - The issue was whether Sobeys exercised rea­sonable care by establishing a proper system to prevent underage sales and took reasonable steps to ensure the effective operation and supervision of the system - Although this particular store had not received warnings of noncompliance pre­viously, two other Sobeys stores (using the same procedures) had been warned in the previous six months - The Nova Scotia Supreme Court affirmed that Sobeys failed to establish due diligence where nothing was done to improve the procedure following receipt of warnings that the procedure in force was not effec­tive and a future violation would result in a fine and prohibition order.

Cases Noticed:

R. v. Miller (G.C.) (1999), 173 N.S.R.(2d) 26; 527 A.P.R. 26 (C.A.), refd to. [para. 11].

R. v. Myers (M.R.), [1999] 185 Sask.R. 281 (Prov. Ct.), refd to. [para. 15].

R. v. Strickland (W.A.) (1996), 148 N.S.R.(2d) 243; 429 A.P.R. 243 (C.A.), refd to. [para. 16].

R. v. Bowman (L.E.), [1999] N.S.R.(2d) Uned. 10 (C.A.), refd to. [para. 16].

R. v. Robart (N.A.) (1997), 159 N.S.R.(2d) 243; 468 A.P.R. 243 (C.A.), refd to. [para. 17].

R. v. Mack (1988), 90 N.R. 173; 44 C.C.C.(3d) 513 (S.C.C.), refd to. [para. 19].

R. v. Sobeys Inc. (1998), 172 N.S.R.(2d) 165; 524 A.P.R. 165 (C.A.), refd to. [para. 29].

R. v. Sault Ste. Marie (City) (1978), 21 N.R. 295; 40 C.C.C.(2d) 353 (S.C.C.), refd to. [para. 31].

Tesco Supermarkets Ltd. v. Nattrass, [1971] 2 All E.R. 127 (H.L.), refd to. [para. 32].

R. v. Z-H Paper Products Ltd. (1979), 27 O.R.(2d) 570 (Div. Ct.), refd to. [para. 33].

R. v. Domo Gasoline Corp., [1997] A.J. No. 1298 (Prov. Ct.), refd to. [para. 39].

R. v. Northwood Pulp Timber Ltd. (1992), 9 C.E.L.R.(N.S.) 289 (B.C. Prov. Ct.), refd to. [para. 41].

R. v. Yung (Y.M.) et al. (1999), 203 A.R. 149 (Prov. Ct.), refd to. [para. 42].

R. v. McLellan's Supermarket Ltd., [1999] B.C.J. No. 443 (Prov. Ct.), refd to. [para. 43].

R. v. Van Gard Drugs Ltd. (1997), 242 A.R. 34 (Prov. Ct.), refd to. [para. 46].

R. v. Taylor's Pharmacy Ltd. (1997), 241 A.R. 131 (Prov. Ct.), refd to. [para. 47].

Statutes Noticed:

Tobacco Access Act, S.N.S. 1993, c. 14, sect. 10(a), sect. 10(c) [para. 18]; sect. 12(2)(a) [para. 3].

Counsel:

William L. Ryan, Q.C., for the appellant;

Ronald J. MacDonald, for the respondent.

This appeal was heard on January 10, 2000, at Antigonish, N.S., before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 31, 2000.