Mandatory for prohibition order to be issued after two convictions

TOBACCO OFFENCES

Mandatory for prohibition order to be issued after two convictions

Applicant’s owner was charged with selling cigarettes to minor and pled guilty and paid fine. Applicant received notice of non-compliance that made it clear two convictions in five years could lead to automatic prohibition from selling tobacco products. Weeks later, applicant’s employee was charged with, and pled guilty to, selling cigarettes to minor. As a result, applicant was charged under s. 3(1) of Smoke-Free Ontario Act and sent notice of non-compliance. Applicant pled guilty and paid fine. Appeal periods for three charges were long expired. Minister issued prohibition order to applicant, which prohibited it from selling tobacco products for six months. Motion by applicant for stay of prohibition order pending appeal and application for judicial review. Motion dismissed. There was no serious issue to be tried. Section 16(2) of Act made it mandatory for Minister to issue prohibition order after two convictions; there was no discretion and thus, no decision. Applicant had right to hearing and appeal upon being charged. Section 7 of Canadian Charter of Rights and Freedoms did not apply to corporations and economic rights. Applicant was expected to know Regulations and chose to proceed without legal advice, despite notice of consequences. Sale of tobacco to minors was serious issue and six-month prohibition after two convictions was not arbitrary, overbroad or grossly disproportionate, nor was it cruel and unusual punishment or a secondary sentence.
1251553 Ontario Inc. v. Ontario (Minister of Health and Long-Term Care) (Aug. 19, 2014, Ont. S.C.J., H.S. Arrell J., File No. St. Catharines 55240/14) 244 A.C.W.S. (3d) 270.