EXCLUSIVE: A First Depanneur Acquitted Of Tobacco Sale To A Minor For Unfair Trial Delays (Jordan Decision)
As his smile suggests, Benoît Lalande could not be happier.
All seems to indicate that he is the first c-store owner in Quebec to have been acquitted, on December 1st, from the accusation of selling tobacco to a minor after his lawyer, Alain Bissonnette, successfully filed an application about unfair trial delays under the recent Supreme Court Jordan decision.
This would be the first acquittal to date for a depanneur having sold tobacco to an underage, but many more are expected in the weeks and months ahead.
Because of the many similar pending cases and the long usual delays observed in this matter, this major legal breakthrough confirms for the first time that depanneurs can take advantage of the Jordan decision in this type of case and before the government can adjust, possibly dozens of depanneurs could be acquitted simply because judicial delays are way too long.
A wave of acquittals coming soon?
On December 1st, Mr. Bissonnette won his motion to drop the charges of selling tobacco to a minor against his client on the ground that the delays between the fine and the anticipated hearing date for the case exceeded the 18-month period prescribed in the Jordan ruling for this type of case. The alleged offense involved Dépanneur de la Faune (Beau-Soir), a c-store located at 1004 de la Faune Street in Saint-Jérôme and dated August 10, 2014, ie 40 months earlier, an incredibly long delay.
This is the first time, to our knowledge, that the Jordan decision applies in a case of tobacco sale to a minor in Quebec. It is quite significant since trial delays for this type of case are generally between two to three years (see following table), thus suggesting the possibility of an unprecedented wave of acquittals for all depanneurs and other tobacco retailers (such as grocery stores and supermarkets) that have pleaded not guilty to an offense that occurred more than 18 months ago. Given the notorious inefficiency of the justice administration system in Quebec — which is currently hit hard by the Jordan ruling — it could take some time before the government succeeds at reducing the current delays and thus rectifies the situation.
TYPICAL TRIAL DELAYS FOR TOBACCO SALE TO MINOR OFFENSES
| Store | Offense Date | Court Hearings | Delays |
|---|---|---|---|
| Marché St-Georges (Shawinigan) | 6/08/2013 | 16/06/2016 | 35 months |
| Marché Desrochers (Victoriaville) | 4/07/2013 | 31/05/2016 | 35 months |
| Tigre Géant (Trois-Rivières) | 4/08/2013 | 4 /05/2016 | 34 months |
| Dépanneur Nord-Est (Québec) | 5/07/2012 | 27/02/2015 | 31 months |
| Dépanneur des Érables (Gatineau) | 29/11/2003 | 8/06/2006 | 30 months |
| SuperSoir (St-Anselme) | 26/07/2012 | 10/12/2014 | 28 months |
| Dépanneur Soleil (St-Jérôme) | 15/08/2007 | 14/12/2009 | 28 months |
| IGA Bouchard (Sherbrooke) | 8/07/2015 | 18/10/2017 | 27 months |
| Petro-T Orford (Orford) | 9/07/2015 | 10/10/2017 | 27 months |
| Metro Richelieu (St-Sauveur) | 22/07/2013 | 29/11/2015 | 27 months |
| Marché Émery & Fils (Trois-Rivières) | 28/08/2014 | 5/11/2016 | 25 months |
| Tabagie du boulevard (Trois-Rivières) | 12/08/2014 | 7/09/2016 | 25 months |
| Metro Masson St-Pierre (Trois-Rivières) | 11/08/2014 | 18/05/2016 | 20 months |
| Station Ultramar (Trois-Rivières) | 20/08/2013 | 18/03/2015 | 18 months |
| Épicerie Brilland (Rimouski) | 16/07/2013 | 26/09/2014 | 14 months |
| Supermarché Claka (Québec) | 26/02/2016 | 5/11/2016 | 7 months |
Unacceptable delays amplified by an out-of-control Health Department
As can be seen in the table above, the average time observed between the offense and the court hearing is almost 26 months in Quebec, which exceeds the 18-month period prescribed by the Jordan ruling by a 45% margin. However, it must be noted that the time clock starts from the moment an offense is communicated (ie when it receives the contravention) and not from the date of the offense itself.
According to Jean-François Therrien, Director of Inspection and Investigations of the Quebec Health Department (MSSS), inspectors only take one or two weeks after an offense to inform retailers. However, with respect to delivering the contravention, it is up to the Justice Department to prepare and serve the ticket which, according to him, could sometimes take up to a year in certain regions like Montreal (source: here).
On the other hand, such offenses fall into the category of summarily proceedings. The Jordan decision provides for a maximum of 18 months to be tried for this type of charge, which should normally be served within a maximum of 12 months after the offense has been committed.
Thus, in the case of the Dépanneur Nord-Est, the appeal judgment specifies both the date of the offense (July 5, 2012), the date on which the retailer was notified through summarily proceedings (December 13, 2012), a little less six months later, and the court hearing date (February 27, 2015), 26 months later. So, in such case, this verdict could have been dismissed based on the Jordan ruling, which was confirmed though by the Supreme Court quite recently, on June 16, 2017. So this is really a new era that we’re in.
But even if we suppose a delay of one, two, or even six months after the offense for a retailer to be notified, it remains that in the vast majority of cases, as shown in the table above, the delay to be tried far exceeds the minimum prescribed by the Jordan decision for this type of offense.
“An unreasonable delay represents a denial of justice for the accused, the victims, their families and the population as a whole.” – Extract from R. v. jordan
Dozens of depanneurs could be acquitted
According to data provided by the Ministry of Health and Social Services (MSSS), the vast majority of depanneurs, nearly 90% on average, plead guilty in general when accused of selling tobacco to minors and this, to avoid lawyer’s fees, stress and time invested to prepare their legal defense (especially for a first offense in five years that is no longer punished by a month long tobacco sale ban, but only a fine). On the other hand, 169 c-stores and other tobacco retailers have made non-guilty pleas to an accusation of having sold tobacco to a minor since 2014, of which at least two-thirds have not yet been judged according to our estimates, totalling 120 pending cases heading for long trial delays and potential acquittals under the Jordan ruling.
Rate |
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|---|---|---|---|---|
Explosion of inspections
In this governmental fiasco, the Quebec Health Department looks especially bad. Its unbridled bureaucratic zeal has led to an excessive number of entrapment-type inspections among depanneurs that have gone from 1,500 to 5,000 per year without any specific reason whatsoever since the arrival of the provincial Liberals in power in 2014, under the leadership of the former Minister of Health, Dr. Philippe Couillard (see following table).
So, radicalized and under high pressure, the Ministry bureaucrats never cared for a second for the limited capacity of the Quebec judicial system to deal with the additional load of lawsuits that their zeal would engender, ending up in a situation where taxpayers’ money will potentially have been wasted, depanneurs harassed for nothing and the public interest not at all served.
EXPLOSION OF ENTRAPMENT TYPE OF INSPECTIONS FOR TOBACCO SALE TO MINORS
A proud and socially responsible depanneur
However happy with the turn of events, owner Benoît Lalande remains highly conscious and deeply committed to his social obligations with regards to keeping tobacco out-of-reach of minors and for which he insists he has a stellar record.
“I have been operating this depanneur for 22 years and apart this incident, have never committed any tobacco sale type of offense because we are very, very careful,” said he proudly.
According to Mr. Lalande, either with or without the Jordan ruling, his odds to win were excellent because it was his manager, a highly experienced employee, who inadvertently sold tobacco to a minor in this case. Someone so qualified that she herself provides training and supervision to other employees to prevent tobacco sale to minors. Therefore, it was not for the employer’s negligence that such an unfortunate event occurred. This simply proves that in this area as elsewhere, the human being is not and will never be perfect, whatever we do and no matter how extensive the prevention measures.
Taking nothing for granted, Mr. Lalande points out that he has also joined the Inspectabac program of the Quebec Convenience Stores Assocation (QCSA) for several years and is paying annual fees to be inspected by external third parties at regular intervals. Young people, aged 25 and under, are systematically age-verified in his depanneur, which goes beyond what is required by the Law. According to Mr. Lalande, his depanneur performs very well in the tests because they take this matter very seriously.
