Court of Appeal

CASE NO.                                                  VOLUME                                                          PAGE

Cite as: R. v. Sobey’s Inc., 1998 NSCA 237

HER MAJESTY THE QUEEN                                                    SOBEY’S INCORPORATED

as represented by the Attorney                                                                        a body corporate

General of Nova Scotia

                                                                        - and -

(Appellant)                                                                                                                (Respondent)

C.A.C.  No.  148131                            Halifax, N.S.                                   CROMWELL, J.A.

                                                                                                                             (orally)

APPEAL HEARD:                                        December 2, 1998

JUDGMENT DELIVERED:             December 2, 1998

WRITTEN RELEASE OF ORAL:               December 4, 1998

SUBJECT:           Constitutional Law - Division of Powers - Whether Provincial legislation prohibiting sale of tobacco to persons under 19 is intra vires the Legislature

Provincial Offences - Defences - Due Diligence

SUMMARY:        Sobey’s was charged with selling tobacco or a tobacco product to a person under the age of 19 contrary to s. 5(1) of the Tobacco Access Act, S.N.S. 1993, c. 14.  The actus reus of the offence was clearly proved at trial.  The trial judge acquitted as a result of his finding that the Act was ultra vires the Province.  The trial judge also opined that, had the Act been constitutional, he would have convicted because he did not accept the accused’s defence of due diligence.  The Crown appealed and the accused cross-appealed.

ISSUES:              (1)       Is the Tobacco Access Act of Nova Scotia intra vires the provincial Legislature?

(2)       Did the judge err in law in his consideration of the defence of due diligence?

RESULT: Appeal allowed and matter remitted to the Provincial Court for trial.  The Tobacco Access Act is legislation in relation to health.  Sections 5 and 12 of that Act do not conflict with Federal tobacco legislation.  The trial judge, therefore, erred in finding that the provincial Statute was unconstitutional.

The trial judge also erred in law with respect to the defence of due diligence.  The question is not, as the trial judge thought, whether the employee who sold the tobacco product was duly diligent, but whether the accused, her employer, exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system.