





CITATION:
R. v. Clothier, 2011
          ONCA 27



DATE: 20110113



DOCKET: C51791



COURT OF APPEAL FOR
          ONTARIO



OConnor A.C.J.O., Laskin
          and Gillese JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Matthew Clothier



Appellant



Paul Burstein, Lauren Cook
          and Clifford G.
Proudfoot
, for the appellant



Deanna
Exner
and Donna Glassman, for the respondent



Heard: June 3, 2010



On
          appeal from the decision of the Provincial Offence Appeal Court dated October
          14, 2009 by Justice G. Mark
Hornblower
from the
          Ontario Court of Justice, dismissing the appeal from conviction entered on
          April 18, 2008 by Justice of the Peace Stewart A. Taylor.



Laskin J.A.:



A.

Overview

[1]

The broad question raised by this appeal is whether the
    defence of entrapment applies to a regulatory offence.  The narrow question we must answer is whether
    government authorities can use random test shopping to monitor compliance with
    a particular regulatory statute  the
Smoke
    Free Ontario Act
, S.O. 1994,
c
. 10  without a
    reasonable suspicion that the person monitored is engaged in illegal activity.

[2]

Section 3(1) of the
Smoke
    Free Ontario Act
prohibits the sale of tobacco to any person under the age
    of 19.  In October 2007, a 17-year-old
    test shopper employed by the Tobacco Enforcement Office of the County of
    Lambton went
into a 7-Eleven store in Sarnia
and asked
    to buy a package of cigarettes.  The
    appellant, Matthew Clothier, then 19 years old, was working as a store clerk
    that day.  He sold the test shopper the
    cigarettes without asking for identification.  He was then charged with violating s. 3(1) of the Act.

[3]

At his trial, Mr. Clothier relied on the defence of
    entrapment.  He claimed that the charge
    against him should be stayed because the County of Lambton had engaged in test
    shopping without a reasonable suspicion that he or the store had previously
    sold tobacco to minors.  The trial judge,
    Justice of the Peace Taylor, held that there had been no entrapment.  Instead, he said that test shoppers utilized
    in a bona fide inquiry is an appropriate investigative technique when were
    dealing with regulatory offences.  He
    convicted Mr. Clothier and fined him $50.

[4]

On appeal, Justice
Hornblower
found no error in the reasons of the Justice of the Peace.  He held that the County had conducted a bona
    fide inquiry, and was entitled to do so without reasonable suspicion.  He dismissed the appeal.  Doherty J.A. granted leave to appeal because
    there is some conflict in the authorities and this court has not addressed the
    question of the availability of the defence of entrapment to the charge in
    issue.

[5]

Mr. Clothiers position is that the doctrine of
    entrapment, which developed in the criminal law, applies to regulatory
    offences.  Thus, entrapment will be made
    out, where, as in this case, the authorities offered an individual an
    opportunity to commit an offence without a reasonable suspicion that the
    individual was engaged in illegal activity.

[6]

The Attorney Generals position is that entrapment does
    not apply to regulatory offences.  Government authorities may justifiably conduct bona fide inquiries
    without reasonable suspicion, to ensure compliance with a regulatory statute,
    such as the
Smoke Free Ontario Act
.  Test shopping is one permissible form of a
    bona fide inquiry, and invariably more effective than other means of monitoring
    compliance with the prohibition on selling tobacco to minors.  Finally, the Attorney General says that while
    test shopping in this case was done in good faith, inquiries done in bad faith
    or for improper motives may be controlled by the doctrine of abuse of
    process.  Resort to the doctrine of
    entrapment is unnecessary.

[7]

The parties have put their positions broadly, inviting
    a determination of whether the defence of entrapment is available for
    regulatory offences generally.  However,
    my reasons are limited to the question whether the entrapment defence is
    available for a charge under the
Smoke
    Free Ontario Act
, when that charge stems from a random compliance
    check.  Whether the defence of entrapment
    is available in other circumstances or for an offence under another regulatory
    statute should be determined when that issue arises.

B.

Background Facts

[8]

Before
    his employment at the 7-Eleven
store
, Mr. Clothier had
    worked at an
Esso
station.  There, too, he had sold tobacco
    products.  At both places he was required
    to check the identification of potentially underage customers.  Indeed, when he started working at 7-Eleven,
    he had been trained on the age restrictions for selling tobacco, and how to ask
    for identification.  He had also been
    trained on age restricted merchandise and on 7-Elevens policy on how to refuse
    to sell tobacco to minors.  Mr. Clothier
    had no previous convictions for selling tobacco products to an underage person.

[9]

On
    the date of the offence, the 7-Eleven
store
had been
    randomly chosen for a spot compliance check from a master list containing all
    the tobacco vendors in Lambton County.  The County acknowledged that it had no reason to suspect Mr. Clothier
    had shown any disposition to sell tobacco to minors.  The trial judge found, on conflicting
    evidence, that the 7-Eleven store had no previous record of violating the
    statute.

[10]

A
    tobacco enforcement officer went to the 7-Eleven
store
together with the 17-year-old test shopper.  The test shopper was employed by the Lambton Health Unit, Tobacco
    Strategy Team.  Her job was to go around
    to different stores in the County, with an enforcement officer, and try to
    purchase tobacco products.

[11]

The
    test shopper went into the 7-Eleven
store
and asked
    Mr. Clothier, who was behind the counter, for a package of Peter Jackson full
flavoured
cigarettes.  He retrieved the package of cigarettes and asked the test shopper if she
    wanted a second package, as buying two packages together would save her one
    dollar.  She said no because she didnt
    have enough money.

[12]

Mr.
    Clothier scanned the package of cigarettes and received payment for it from the
    test shopper.  The transaction took about
    35 seconds.  At no time did Mr. Clothier
    ask the test shopper for age identification.  After the test shopper left the store, the enforcement officer entered,
    informed Mr. Clothier that he had sold tobacco to an underage person, and
    issued a certificate of offence.

C.

Entrapment and the
Smoke Free Ontario Act

(
i
)        Entrapment

[13]

The
    doctrine of entrapment in Canadian criminal law is an aspect of the broader
    abuse of process doctrine.  Entrapment
    reflects judicial disapproval of unacceptable police or prosecutorial conduct
    in investigating crimes.  The
defence
is extensively discussed by Lamer J. in
R. v. Mack
, [1988] 2 S.C.R. 903, and in
    his later judgment in
R. v. Barnes
,
    [1991] 1 S.C.R. 449.

[14]

In
    setting out the contours of the doctrine of entrapment, Lamer J. balanced two
    competing objectives.  On the one hand,
    he recognized that the police must have considerable leeway in the techniques
    they use to investigate criminal activity.  On the other hand, he also recognized that the power of the police to
    investigate crimes should not be untrammeled.  The police should not be allowed to randomly test the virtue of citizens
    by offering them an opportunity to commit a crime without reasonable suspicion
    that they are already engaged in criminal activity; or worse, to go further and
    use tactics designed to induce citizens to commit a criminal offence.  To allow these investigative techniques would
    offend our notions of decency and fair play.

[15]

Lamer
    J. struck the balance between these two objectives by concluding that an
    accused will be entitled to rely on the
defence
of
    entrapment in either of two situations:

·

First,
    when government authorities provide a person with an opportunity to commit a
    crime, unless they have a reasonable suspicion that the person is already
    engaged in criminal activity, or unless they are acting in the course of a bona
    fide investigation.

·

Second,
    when government authorities, though they have a reasonable suspicion or are
    acting in the course of a bona fide investigation, go beyond providing an
    opportunity to commit a crime by inducing the commission of an offence.

[16]

Typically,
    as in this case, when entrapment is alleged, the essential elements of the
    offence charged have been made out.  However, if an accused proves an abuse of process because of entrapment,
    the court will not permit the Crown to maintain a conviction as doing so would
    offend our sense of fair play, and bring the administration of justice into
    disrepute.  Instead, the court will stay
    the proceedings.  As with other aspects
    of the abuse of process doctrine, a stay is granted only if an accused meets
    the clearest of cases standard.

[17]

In
    the present appeal we are concerned only with the first branch of
    entrapment.  Mr. Clothier does not
    suggest that anyone threatened him or induced him to sell cigarettes to the
    test shopper.  This first branch of
    entrapment encompasses two kinds of cases.  In one, the police, without reasonable suspicion a person is already
    engaged in criminal activity, provide that person with an opportunity to commit
    a crime:  see
Mack
.

[18]

In
    the other kind of case, the police undertake an investigation directed at a
    geographic area but without a reasonable suspicion criminal activity is
    occurring there:  see
Barnes
.  Conversely, where the police undertake a bone fide investigation
    targeting an area where criminal activity is reasonably suspected, there will
    be no entrapment.  The police are
    entitled to provide any person in the area with the opportunity to commit the
    offence.  If criminal activity is
    reasonably suspected, the investigation is bona fide.

[19]

In
    either kind of case, under the first branch of the entrapment doctrine the
    police can lawfully act only on reasonable suspicion, either of an individuals
    or an areas criminal activity.  The
    requirement of reasonable suspicion in the criminal law context defines the
    debate on this appeal.

[20]

The
    question is whether reasonable suspicion should be required for compliance
    checks under the
Smoke Free Ontario Act
.  The Attorney General acknowledges that the
    County of Lambton acted without reasonable suspicion.  Therefore, if the County was required to
    reasonably suspect that either Mr. Clothier or the stores in the area were
    engaged in illegal activity before sending a test shopper to the 7-Eleven
store
, then Mr. Clothiers entrapment claim ought to
    succeed.  But if the County could
    undertake a bona fide investigation into whether stores in the area were selling
    tobacco to minors without a reasonable suspicion that was so, then the
    entrapment claim must fail.  To put this
    debate in context, I will briefly review the statute in issue, the
Smoke Free Ontario Act
.

(ii)       The
Smoke Free Ontario
    Act

[21]

Canadian
    jurisprudence has long distinguished between truly criminal conduct and conduct
    that, though not inherently wrong, is nonetheless prohibited for the protection
    of the public.  Thus, we have
    distinguished between criminal statutes and regulatory statutes, and between
    criminal offences and regulatory offences.  Cory J. discusses this distinction and the basis for it in
R. v. Wholesale Travel Group Inc.
,
    [1991] 3 S.C.R. 154 at pp. 218-19:

It
    has always been thought that there is a rational basis for distinguishing between
    crimes and regulatory offences.  Acts or
    actions are criminal when they constitute conduct that is, in itself, so
    abhorrent to the basic values of human society that it ought to be prohibited
    completely.  Murder, sexual assault,
    fraud, robbery and theft are all so repugnant to society that they are
    universally recognized as crimes.  At the
    same time, some conduct is prohibited, not because it is inherently wrongful,
    but because unregulated activity would result in dangerous conditions being
    imposed upon members of society, especially those who are particularly
    vulnerable.

The
    objective of regulatory legislation is to protect the public or broad segments
    of the public (such as employees, consumers and motorists, to name but a few)
    from the potentially adverse effects of otherwise lawful activity.  Regulatory legislation involves a shift of
    emphasis from the protection of individual interests and the deterrence and
    punishment of acts involving moral fault to the protection of public and
    societal interest.  While criminal
    offences are usually designed to condemn and punish past, inherently wrongful
    conduct, regulatory measures are generally directed to the prevention of future
    harm through the enforcement of minimum standards of conduct and care.

[22]

The
Smoke Free Ontario Act
, formerly
    known as the
Tobacco Control Act, 1994
,
    is a regulatory statute, which has been enacted to promote public health and
    safety.  It establishes a legislative
    regime for controlling the display, promotion, packaging, sale and use of tobacco,
    including when, how, where and to whom tobacco can be sold.  The offences under the Act are strict
    liability offences, which means that due diligence is a
defence
but negligence is not.  All offences are
    punishable by a fine, or, on multiple convictions, by a prohibition on the sale
    of tobacco for up to 12 months.  No one
    can be imprisoned for a breach of the statute.

[23]

One
    of the most important purposes of the legislation is to ensure that minors are
    not able to buy cigarettes.  Section
    3(1), the section in issue on this appeal, states:

No
    person shall sell or supply tobacco to a person who is less than 19 years old.

[24]

Section
    3(2) reduces the danger of an inadvertent violation of s. 3(1) by requiring
    vendors to check for identification when the customer appears to be under 25
    years old:

No
    person shall sell or supply tobacco to a person who appears to be less than 25
    years old unless he or she has required the person to provide identification
    and is satisfied that the person is at least 19 years old.

[25]

In
R. v. Seaway Gas & Fuel Ltd.

(2000), 47 O.R. (3d) 458 (C.A.), at
    paras.
32-33, my
    colleague MacPherson J.A. emphasized this important purpose of the legislation:

[32] Fifth, it needs to be recalled that the Act is
    an important public health statute.  The
    Act and its regulations attempt to regulate in a strict and careful fashion the
    distribution of a dangerous product.  In
RJR-Macdonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, the Supreme Court of Canada considered the
    federal
Tobacco Products Control Act
,
    R.S.C. 1985, c. 14, and some of the regulations promulgated pursuant to
    it.
Referring to the
    general purposes of the regulations,
Sopinka
and Cory
    JJ.

said
, at p. 353:

These are clear indications that the government
    passed the regulations with the intention of protecting public health and
    thereby furthering the public good.

Later in their reasons, the justices referred to
    the undeniable importance of the public interest in health and in the
    prevention of the widespread and serious medical problems directly attributable
    to smoking (at pp. 353-54).

[33] In my view, this reasoning is entirely
    applicable to the Ontario
Tobacco Control
    Act
and suggests that the provisions of the Act and regulations should be
    interpreted with a judicial eye firmly focussed on the public health purposes
    of the legislation.
One of the most important purposes of the legislation is to make sure
    that minors are not able to buy cigarettes
.  The legislation should be strictly interpreted to help achieve that
    purpose.
[Emphasis added.]

[26]

Against this background, I turn to the question on this
    appeal:  whether government authorities
    can use random test shopping to monitor compliance with this important purpose
    of the statute, or whether doing so amounts to entrapment under the first
    branch of the doctrine discussed in
Mack
and
Barnes
.

D.        The Availability of
    Random Test Shopping to Monitor Compliance with the Prohibition on Selling
    Tobacco to Minors

[27]

As my colleague Doherty J.A. noted in granting leave to
    appeal, the case law is conflicting on whether entrapment is available as a
    defence to a charge of selling tobacco to a minor.  In Ontario, most trial decisions and Ontario
    Court of Justice appeal decisions have held that entrapment is not available.

[28]

The two main appeal decisions are
R. v.
Donkersgoed
, 2007 ONCJ 467, which
    was relied on by Taylor J.P. in the present case, and
R. v. Cho
, [2000] O.J. No. 5354 (C.J.).  In both cases the court held that random test
    shopping does not amount to entrapment.  In other words, the authorities may engage in test shopping without a
    reasonable suspicion that either a particular store or stores in the area are
    selling tobacco to underage persons.  In
Cho
Finlayson J.A. denied leave to
    appeal, and in so doing baldly stated the defence of entrapment is not
    available in regulatory offences:  see
    [2001] O.J. No. 1041 (C.A.).  His
    conclusion is instructive, but, of course, a decision of a judge of this court
    denying leave to appeal has no precedential value.

[29]

As counsel for Mr. Clothier point out in their factum,
    courts in other provinces  notably Saskatchewan and Alberta  have held that
    a bona fide inquiry does require some prior suspicion of the person or area
    being targeted by the states test shopper, and they have stayed proceedings
    as an abuse of process resulting from entrapment:  see, for example,
R. v. Myers
, 2000 SKQB 226 and
R.
    v.
Tyzuk
, 2009 ABPC 282.

[30]

No provincial court of appeal has directly considered
    the availability of the defence of entrapment to the regulatory offence of
    selling tobacco to a minor.  In a
    different regulatory context, however, Cowan J. of the British Columbia Supreme
    Court held that random spot checks for compliance with the
Proceeds of Crime (Money Laundering) Act
did not amount to
    entrapment, and his conclusion and reasoning were approved by the British
    Columbia Court of Appeal:  see
R. v. Au Canada Monetary Exchange Inc.
,
    [1999] B.C.J. No. 455 (S.C.),
affd
, 2000 BCCA 193,
    leave to appeal to the S.C.C. denied, [2000] S.C.C.A. No. 222.

[31]

Section 80 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P.33 preserves the applicability of common
    law defences, such as entrapment, to regulatory offences, such as selling
    tobacco to a minor:

Every rule and principle of the common law that
    renders any circumstance a justification or excuse for an act or a defence to a
    charge continues in force and applies in respect of offences, except in so far
    as they are altered by or inconsistent with this or any other Act.

[32]

However, the proviso in s. 80  except in so far as
    they are  inconsistent with  any other Act  is significant.  Doctrines developed in the criminal law
    context should not automatically be applied, or applied without modification,
    in the wholly different regulatory context.

[33]

In my opinion, the reasonable suspicion requirement,
    which negates entrapment under the first branch of the doctrine set out in
Mack
and
Barnes
, does not apply to the offence of selling tobacco to a
    minor.  Government authorities may use
    random test shopping to monitor compliance with the
Smoke Free Ontario Act
.  They
    need not wait until they have a reasonable suspicion that a store or one of its
    employees is selling tobacco illegally.  As long as random test shopping is done in good faith  that is, it is
    not done in a discriminatory way or for an improper purpose  it is a
    permissible investigative technique.  This is because the two specific rationales underpinning the first
    branch of the entrapment doctrine in criminal law, as set out by Lamer J. in
Mack
, have no relevance to a charge under
    the
Smoke Free Ontario Act
.

[34]

The first rationale is that to permit the state to
    offer a person an opportunity to commit a crime without a reasonable suspicion
    that the person is engaged in criminal activity amounts to random virtue
    testing and an unjustifiable invasion of individual privacy.  This rationale does not pertain to stores
    selling tobacco for several related reasons.

[35]

First, these stores operate in a regulated commercial
    environment, and operating in this regulatory environment comes with
    consequences. As Cory J. said in
Wholesale
    Travel
, at p. 229:   those who
    choose to participate in regulated activities have, in doing so, placed
    themselves in a responsible relationship to the public generally and must
    accept the consequences of that responsibility.

[36]

Stores selling tobacco and their employees have this
    responsibility to the public. One important consequence of this responsibility
    is their deemed acceptance of an undertaking to exercise reasonable care to
    ensure that the harm identified in the regulatory statute  here selling
    tobacco to minors  does not occur.  This
    entails a further consequence.

[37]

Those who sell tobacco products must accept a greatly
    diminished expectation of privacy, as some form of monitoring will be necessary
    to ensure that they meet their due diligence responsibilities.   The monitoring is done, not to punish past
    conduct, as would be the case for an offence under the criminal law, but to
    deter harmful conduct in the future  in other words, to prevent harm to the
    public from the illegal sale of tobacco to minors.

[38]

These consequences, which the 7-Eleven store and Mr.
    Clothier must be taken to accept when they engage in the regulated activity of
    selling tobacco to the public, persuasively show that the first branch of the
    criminal law entrapment doctrine cannot be transported to a charge under the
Smoke Free Ontario Act.
We recognize entrapment as a defence in
    criminal law because of our concern that random virtue testing will result in
    too great an invasion of personal privacy.  That rationale simply does not apply in this regulatory context.

[39]

A second reason why the rationale does not apply is
    that in using random test shopping, the government is not engaged in virtue
    testing; it is engaged in compliance testing. Virtue is irrelevant to a charge under s. 3(1) of the
Smoke Free Ontario Act
.  Section 3(1) is a strict liability
    offence.  A person can be convicted for
    merely being negligent.

[40]

A third reason for not applying the criminal law
    rationale is that the test shopping takes place at a store that sells tobacco
    to the public.  Selling tobacco products
    is part of the stores ordinary business.  Thus, the opportunity to commit an offence when the test shopper asks to
    buy a package of cigarettes is no different from the opportunity presented when
    any underage customer asks to buy cigarettes.  Put the other way, the test shopper does not present the store or its
    employees with an opportunity to commit an offence that they would not otherwise
    encounter in the ordinary course of their business.  Any invasion of the store owners or
    employees expectation of privacy is minimal at best.

[41]

For these reasons, the first rationale underpinning the
    first branch of the entrapment doctrine has no bearing on the charge of selling
    tobacco to minors.

[42]

The second specific rationale stems from the concern
    that if the police were permitted to offer a person an opportunity to commit a
    crime without a reasonable suspicion that the person had already engaged in
    criminal activity, then individuals who would not otherwise be involved in
    criminal activity may end up committing criminal offences.  This rationale, too, has no relevance to a
    charge under s. 3(1) of the
Smoke Free
    Ontario Act
.

[43]

As I have already said, the opportunity provided to the
    store clerk to violate s. 3(1) when the test shopper asks to buy cigarettes is
    exactly the same as the opportunity provided when any underage person comes
    into the store and asks to buy cigarettes.  Test shopping does not provide an opportunity to the store clerk that is
    not routinely available in the course of the stores business.

[44]

Because neither specific rationale underpinning the
    first branch of the entrapment doctrine applies to a charge of selling tobacco
    to a minor, government authorities may engage in random test shopping to
    monitor compliance with the statute.  They need not have a reasonable suspicion of illegal activity before
    using this investigative technique.

[45]

I add that on the evidence at trial, random test
    shopping is the most effective way to achieve the governments purpose of
    ensuring compliance with the statute and deterring future illegal sales of
    tobacco.  Surveillance, according to the
    testimony of the Tobacco Enforcement Officer, is largely ineffective.  And expecting minors who have purchased
    tobacco to cooperate with the authorities by reporting an offence or giving
    them information is highly unrealistic.  Prosecution for an offence may have some deterrent effect.  But deterrence comes mainly from the threat
    of detection occasioned by random test shopping.

[46]

This does not mean that government authorities
    discretion to use test shopping is unfettered or unreviewable by the
    courts.  Test shopping may be done
    randomly; but it must be done in good faith.  It must be used for a proper purpose and carried out bona fide and
    without discrimination.  If it is not, if
    it is done in bad faith, then courts retain jurisdiction to stay proceedings
    under the general abuse of process doctrine of which entrapment is one aspect.

[47]

The overriding rationale of the abuse of process
    doctrine  a rationale that also underlies the entrapment doctrine  is that
    government should not be allowed to investigate possible illegal activity in a
    way that offends our sense of decency and fair play.  This rationale applies as much to the
    regulatory charge of selling tobacco to an underage person as it does to a
    charge under the
Criminal Code
.

[48]

Suppose, for example, a government authority chooses to
    use test shopping to check compliance with the Act, but decides to target only
    stores owned by a particular ethnic group.  That discriminatory use of test shopping should not be condoned by the
    courts.  Whether characterized as an
    abuse of process or as entrapment under a very limited version of the first
    branch of the doctrine, is a matter of semantics, not substance.  The result would be the same: proceedings
    would be stayed.

[49]

In the case before us, the test shopping carried out by
    the County of Lambton was bona fide.  The
    7-Eleven
store
where Mr. Clothier worked was randomly
    chosen from a master list of stores in the area.  The charge was made out.  The test shopper was underage; Mr. Clothier
    did not ask her for identification; and he sold her the package of cigarettes
    she requested.

[50]

I would dismiss the appeal.

RELEASED:  Jan. 13,
    2011                                                John Laskin J.A

JL                                                                                      I
    agree D. OConnor A.C.J.O.

I
    agree E.E. Gillese J.A.


