R. v. Tyzuk (D.S.), (2009) 486 A.R. 377 (PC)

• Judge: Sully, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 22, 2009
• Citations: (2009), 486 A.R. 377 (PC);2009 ABPC 282

R. v. Tyzuk (D.S.) (2009), 486 A.R. 377 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. OC.059

Her Majesty the Queen v. Dennis Scott Tyzuk (080987258P1; 2009 ABPC 282)

Indexed As: R. v. Tyzuk (D.S.)

Alberta Provincial Court

Sully, P.C.J.

September 22, 2009.

Summary:

The accused was charged with selling tobacco to a minor, contrary to s. 8(1) of the Tobacco Act (Alta.).

The Alberta Provincial Court found the accused guilty of the offence, but ordered a judicial stay of proceedings on the ground that the conduct of the agents of the Crown constituted entrapment of the accused and amounted to an abuse of process.

Criminal Law - Topic 205.1

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

Criminal Law - Topic 253

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

Criminal Law - Topic 4486

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

Trade Regulation - Topic 5266

Retailers - Offences - Particular offences - Selling tobacco to a minor - A Health Canada test shopper and a Tobacco Inspector attended a Canada Safeway store, located in the Capilano Mall (Capilano Safeway) - The Crown alleged that the accused, an employee of the store, sold a package of cigarettes to the test shopper, who was then under 18 years old - The accused was charged with selling tobacco to a minor, contrary to s. 8(1) of the Tobacco Act (Alta.) - The Alberta Provincial Court found the accused guilty of the offence, but ordered a judicial stay of proceedings on the ground that the conduct of the agents of the Crown constituted entrapment of the accused and amounted to an abuse of process - The case involved random virtue testing - Prior to commencing the investigation, the authorities did not have a reasonable suspicion that the accused was engaged in the selling of tobacco products to minors or had been involved in criminal activity - In addition, the authorities did not have a reasonable suspicion that the Capilano Safeway store was engaged in selling tobacco products to minor - The history for this store had been compliance based on six previous tests of selling tobacco products to under age test shoppers - The investigation was based on all 140 to 150 Safeway stores in Alberta - The investigation was not based on a location at which the authorities had a reasonable suspicion that selling of tobacco products was likely occurring - Accordingly, the random virtue testing conducted with respect to the accused constituted an abuse of process which shocked the conscience and offended the principal of decency and fair play.

Cases Noticed:

R. v. Pearson (E.) (1998), 233 N.R. 367; 130 C.C.C.(3d) 293 (S.C.C.), refd to. [para. 11].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 12].

R. v. Imoro (A.), [2008] O.T.C. Uned. C86 (Sup. Ct.), refd to. [para. 13].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 19].

R. v. Barnes, [1991] 1 S.C.R. 449; 121 N.R. 267, refd to. [para. 20].

R. v. Myers (M.R.) (2000), 193 Sask.R. 289 (Q.B.), refd to. [para. 21].

Counsel:

M. Dion, for the Crown;

Mr. Bullerwell and Ms. Hayes of Student Legal Services, agents for the accused.

This case was heard by Sully, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision on September 22, 2009.