Supreme Court

R. v. Ninety North Const., 2005 NWTSC 47
Date: 20050502
Docket: S-1-CR-2004000133

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:


HER MAJESTY THE QUEEN, on the information and
complaint of W. S. Wong, Senior Safety Officer,
Workers' Compensation Board of the Northwest
Territories & Nunavut

     Appellant


-and-


Ninety North Construction and Development Ltd.

     Respondent


Transcript of a Ruling at an Appeal delivered by The Honourable Justice J.Z. Vertes, in Yellowknife, in the Northwest Territories, on the 28th day of April, A.D. 2005.


APPEARANCES:

Mr. G. Malakoe:  Counsel on behalf of the Appellant

Ms. S. Kay:   Counsel on behalf of the Respondent


Charge under s. 1(a) Environmental Tobacco Smoke Work Site Regulations


THE COURT:   Counsel, I want to start by thanking both of you for the thoroughness of your written submissions and oral argument. As a result of that, I have been able to consider the relevant point on this appeal and I find that I need not reserve but can give you my decision flow.

I should say that some of the points that we discussed during the hearing may indeed be worthy of further in-depth consideration but perhaps that is better left for another day when the issues are confronted directly.

In this case the Appellant Crown appeals the acquittal of the Respondent Company on a charge contrary to section 1 of the Environmental Tobacco Smoke Work Site Regulations which were made under the authority of section 25 of the Safety Act empowering the Commissioner to make regulations generally to protect the safety and health of workers.

Section 1 of the Regulations states that:

... an employer shall control the exposure of workers to environmental tobacco smoke at an enclosed work site by prohibiting smoking in the enclosed work site.

The charge was that on or about May 20th,

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2004, at the Capital Suites construction site in Inuvik, Northwest Territories, the Respondent Company failed to prohibit smoking in an enclosed work site, contrary to that Regulation.

I must say that the evidence at the hearing, in my opinion, was often unfocussed and confusing, which to some extent led to what I have concluded was a misapprehension of the essential point at issue in the case by the Justice of the Peace presiding at the hearing.

The prosecution's case was succinctly described at the hearing by the prosecutor at the time when he said:

“I'm going to make it clear that the charge is failing to prohibit smoking on May the 20th and, in particular, creating a designated smoking area, in my submission, in violation of the regs and, as well, by not taking sufficient steps to cause the smoking to be prohibited.”

It seems quite clear from the way that the prosecution case proceeded, and from the submissions, that the entire focus of the prosecution was on the allegation that there was a sign placed upon the door to the site superintendent's office which said “Designated

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Smoking Area”. The evidence was that the site superintendent's office was an enclosed work area, i.e. an area where work was done, and the safety officer who testified at the hearing was quite clear in his evidence that he observed that sign on the doorway to the site superintendent's office on the date in question. So that was the focus of the prosecution case. The focus was not whether smoking had in fact occurred on some other date in that office; the focus was on the action of the company in designating that enclosed work area as the designated smoking area in contravention of the Regulations.

Now I should point out that the Regulations do authorize an employer to permit smoking in a designated smoking area, although the Regulations, in section 3, specify that it is to be a designated smoking structure outside an enclosed work site. This is pertinent because, of course, of the nature of the evidence presented on behalf of the Respondent Company at the hearing.

The Justice of the Peace in his decision accepted the evidence of the safety officer that there was smoking taking place in the trailer in question. The trailer, it is undisputed, was divided into two parts with two entrances: one

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was the site superintendent's office where work was done, and there was no argument made before the Justice of the Peace that the site superintendent's office was not an enclosed work site as that term is used in the Regulations; and the other part of the trailer with another entrance was apparently a lunch room or used as a lunch room. There was no evidence or argument made at the hearing that the lunch room was used for anything other than a lunch room.

The Justice of the Peace accepted, as I said, the safety officer's evidence that there was smoking taking place in the trailer. The Justice of the Peace was not specific in saying where he thought the smoking was taking place but it seems to me to be a logical conclusion, or at least a logical assumption, that if he's accepting Mr. Wong' s evidence on that point, Mr. Wong's evidence was that he saw smoking taking place in the superintendent's office.

The Justice of the Peace, though, then goes on to the next question which is related to the question of an enclosed work place. He says:

“It appears that if the smoking took place at the work site office area, which is on the north end of the trailer, then this would be an

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enclosed work place. If there was smoking in there, then it would be smoking in an enclosed work place. It appears that if it was on the south end, and Mr. Stube had indicated that he believed that it was on the south end, apparently that area itself would not qualify as an enclosed work place. The Crown went to great lengths with Mr. Wong to determine that it was at an enclosed work place on the trailer.”

Later on in his conclusion, the Justice of the Peace says:

“The question is, was this smoking taking place in an enclosed work place. I do not believe the Crown has made out their case for this.”

So we have on the one hand the focus of the prosecution being that the company violated the Regulation by placing a sign designating as a smoking area a place that could not be a designated smoking area. This was in direct contravention of the Regulation.

The Justice of the Peace, however, considered the issue to be whether smoking was

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taking place in an enclosed work place, and this is where, in my respectful view, there was a misapprehension of the evidence. His focus should have been on the question as framed by the prosecution.

This is a regulatory offence; it is not a criminal offence.

As a regulatory offence it is, as everyone recognized at the hearing, a strict liability offence, which means that if the Crown establishes the act that prima facie amounts to an offence, then there is a burden on the defendant to show that it took all reasonable measures to avoid committing the offence, to avoid the prohibited act.

The Regulation here speaks of the obligation to prohibit smoking in an enclosed work site. It seems to me that a breach of the Regulation can be committed by an act of omission, i.e. by not taking any steps whatsoever to prohibit smoking, or by an act of commission, that is by doing something that violates that Regulation. It is that latter type of conduct that is at stake here.

The prosecution's position was that the company took a deliberate step to violate the Regulation by designating the superintendent's

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office as the smoking area.

The evidence of Mr. Wong established a prima facie case.

The defence presented at the hearing was to the effect, in answer to that point, that there was a designated smoking area but that designated smoking area was the lunch room and that the sign that Mr. Wong said was on the site superintendent's office door was in fact on the lunch room door. But there was no direct admissible evidence that the sign was on the lunch room door on May 20th. The only evidence was evidence from Mr. Stube, who was not there on May 20th, who said that steps were taken to designate the lunch room as the smoking area; that he saw photographs of the sign on the door but he did not know when those photographs were taken; and he could not say when he saw those photographs. So as Mr. Malakoe said, there is nothing in Mr. Stube's evidence that necessarily would contradict the evidence of Mr. Wong, that on May 20th Mr. Wong saw that sign on the site superintendent's door. It certainly appears from the Justice of the Peace's reasons that he relied to some extent on Mr. Stube's evidence in coming to his conclusion that the prosecution had failed to prove its case.

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So we have here a positive defence, a due diligence defence - essentially the defence saying we designated the smoking area, it was the lunch room, the sign was on that door. Well if that was the defence, then there was a requirement to consider the next question as to whether the lunch room could be designated as the smoking area. I have serious doubts about that, but that was a question that was not discussed at the hearing and it was not analyzed by the Justice of the Peace. Hence my conclusion that there was a misapprehension of the evidence and issues in this case by the Justice of the Peace. His focus was on whether there was proof of smoking actually taking place in that enclosed area when in fact the whole premise of the Crown's case rested on the evidence of Mr. Wong, his direct evidence to the effect that he saw the sign on the site superintendent's door on May 20th. That was the question that should have been answered. If there was to be evidence presented to contradict, or evidence relied on to contradict that point, then because it is such an essential point of this prosecution, then it should have been evidence that was properly admissible and certainly not evidence that is based on something that was not even in evidence,

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such as the photographs that Mr. Stube referred to, photographs that he himself did not take, could not say when they were taken, and did not have with him to present to the court.

Furthermore, I think there should have been, in exploring the due diligence aspect of the case, an analysis of why the company thought it could designate the lunch room as the designated smoking room. It may be that some mistake of fact or a mistaken reliance issue is available, but of course these were not explored during the hearing. I think if the issue can be focussed, and if the issue had been more focussed and the evidence had been directed to that issue specifically, then I think it would have been clearer to the Justice of the Peace as to the real question that he needed to answer.

One can discuss at great length the type of offence created by this Regulation - whether ongoing conduct can amount to an offence; whether ongoing lack of conduct can amount to an offence; whether, for example, as in this case, evidence of smoking in the site superintendent's office on other days and other times can amount to the offence. But I do not think it would be fair to the company to recast the prosecution in some other way than how it was put at the original

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hearing. As I said, the basis of the prosecution, it seems to me, was simply because of the sign that the safety officer said he observed on the site superintendent's office on May 20th. If there was to be some other basis of the prosecution, then it should have been made clear to the company. But it was that question that was lost in the evidence and I think led the Justice of the Peace to misapprehend the point that he had to decide.

I do not want to be seen as being overly critical of the Justice of the Peace because, in all fairness, I think there was quite a bit of confusion in the evidence and I think it could have been presented in a far more clearcut manner.

In my opinion the verdict cannot stand and therefore I will set it aside and direct that a new trial be held before a different Justice of the Peace, or perhaps counsel can agree to move this into Territorial Court.

As I said previously, counsel, I want to thank both of you for your submissions, they certainly helped to clarify in my mind what the essential point here was.

I am simply going to ask that one of you take out a formal order and the other one consent

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to it, and that can be entered in due course.

Any questions?

MR. MALAKOE:  No, sir, thank you. Ms. Kay?

MS. KAY:   No, sir.


Certified to be a true and accurate transcript pursuant to Rule 723 and 724 of the Supreme Court Rules of Court.

Annette Wright RPR, CSR(A)
Court Reporter

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