1995 Legislative Session: 4th Session, 35th Parliament
FIRST READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
HONOURABLE PAUL RAMSEY
MINISTER OF HEALTH AND MINISTER
RESPONSIBLE FOR SENIORS
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 1 of the Tobacco Sales Act, R.S.B.C. 1979, c. 403, is repealed and the following substituted:
1 In this Act:
"administrator" means the administrator designated under section 3.3;
"authorization" means the authorization of a dealer to sell tobacco at retail by dealer's permit or by regulation under section 31 (1) (h) of the Tobacco Tax Act;
"certificate" means a certificate issued under section 3.7 by the administrator;
"conviction" means a conviction for an offence under this Act;
"dealer" means a dealer under section 1 of the Tobacco Tax Act;
"dealer's permit" means a dealer's permit under section 1 of the Tobacco Tax Act;
"director" means the director under section 1 of the Tobacco Tax Act;
"enforcement officer" means an enforcement officer designated under section 3.1;
"notice" means a notice under section 3.6;
"tobacco" means tobacco leaves or products produced from tobacco in any form or for any use.
2 Section 2 (2) is repealed and the following substituted:
(2) A person must not sell, offer for sale, distribute, advertise or promote the use of tobacco to a person who has not attained the age specified by regulation under section 4 (d.3).
3 The following sections are added:
3.1 (1) The minister may designate as enforcement officers any persons or categories of persons the minister considers qualified to be so designated.
(2) To carry out the duties of an enforcement officer under this Act, an enforcement officer may at any reasonable time enter and inspect any place to which the public has access and where tobacco is offered for sale.
(3) If an enforcement officer reasonably believes that an offence under this Act or the regulations has been committed, the enforcement officer may seize and detain for the purposes of this Act any item that may constitute evidence of the offence provided the item is
(a) in plain view, and
(b) in a place to which the public has access.
(4) A person must not
(a) hinder, obstruct or otherwise interfere with an enforcement officer who is acting under this Act or the regulations, or
(b) knowingly make a false or misleading statement, or provide or produce a false document or thing, to an enforcement officer who is acting under this Act or the regulations.
3.2 (1) If an item is detained under section 3.1 (3), an enforcement officer must give a receipt for the item to the person from whom it was seized and
(a) promptly return the item to the owner of the item, after making copies or taking extracts from the item insofar as the enforcement officer considers this to be required for the purposes of this Act, and the making of copies or the taking of extracts is to be under the supervision of an enforcement officer and at the expense of the person from whom it was seized, or
(b) if the enforcement officer considers that retention of the item is necessary and reasonable for the purposes of an investigation or prosecution for an offence under this Act or the regulations, retain the item and make it available for review by the person from whom it was seized.
(2) A copy made or extract taken under subsection (1), certified by an enforcement officer as a true copy or extract from the original, is admissible in evidence to the same extent as, and has the same evidentiary value as, the item of which it is a copy or from which it is an extract.
(3) On conviction for an offence under this Act, an item detained under section 3.1 (3) in relation to the offence and not returned under subsection (1) is forfeited to the government.
(4) An item that is retained under subsection (1) (b) must be returned to its owner, on written request of that person to the administrator, within 120 days of its seizure, unless
(a) the administrator considers that the item is required for the purposes of a proceeding under this Act, or
(b) subsection (3) applies.
(5) If the owner of an item that is retained under subsection (1) (b) has not made a written request to the administrator for its return within 120 days of its seizure, the item is forfeited to the government.
3.3 The minister may designate a public service employee to be the administrator.
3.4 (1) A judge and every registrar, deputy registrar or clerk of any court must immediately send to the administrator a transcript, copy or record for each conviction made by the judge.
(2) A transcript, copy or record sent to the administrator under subsection (1) is evidence of the conviction, appeal or proceedings to which it refers.
3.5 (1) A dealer is liable to have a certificate issued under section 3.7 if, within a 60 month period, the dealer has received, on or after this subsection comes into force, 2 or more convictions respecting the same business location.
(2) A certificate must be for
(a) a 3 month suspension of the authorization if there are 2 convictions respecting the business location,
(b) a 6 month suspension of the authorization if there are 3 convictions respecting the business location, and
(c) a 12 month suspension of the authorization if there are 4 or more convictions respecting the business location.
(3) Subsection (2) applies even if
(a) a suspension or cancellation under section 4.2 of the Tobacco Tax Act applies to the dealer respecting the business location, or
(b) a previously given suspension at the business location is in force.
(4) A suspension described in subsection (2)
(a) must be based on at least one conviction that was not counted for the purposes of a previous suspension described in subsection (2),
(b) must not be based solely on convictions that were counted for the purposes of a previous suspension described in subsection (2), and
(c) must not be based on a conviction that occurred before the earliest conviction on which a prior suspension was based.
(5) For the purposes of calculating a suspension described in subsection (2), the dates on which the convictions occurred shall be considered and no consideration shall be given to the date the offences occurred.
3.6 (1) If the records of the administrator indicate that section 3.5 applies respecting a business location, the administrator must give notice to the dealer of an intention to consider issuing a certificate advising the director that the authorization at a business location is to be suspended.
(2) A notice must be served on the dealer personally or by registered mail at the dealer's most recent address known to the administrator or, if that address is unknown to the administrator, at the business location to which the certificate, if issued, would apply, and the notice must set out
(a) the suspension that may be specified in the proposed certificate for the business location and the grounds for this suspension,
(b) a statement that, in order to oppose the determination, the dealer must submit a signed statement within 30 days from the date the notice is served
(i) disputing the number, dates or applicability of the convictions specified in the notice, or
(ii) disputing the fact that the convictions relate to the business location specified in the notice, and
(c) the address to which the signed statement referred to in paragraph (b) must be delivered.
(3) For the purposes of subsection (2), service is deemed to have been effected
(a) on the date a person is served personally, or
(b) if a notice is sent to a person by registered mail, on the 14th day after it is sent.
Determination whether to issue a certificate
3.7 (1) The determination whether to issue a certificate respecting a business location of a dealer is made by the administrator on the basis of a review described by subsections (2) and (3) without a hearing and the administrator may begin the review at any time on or after the date specified in the notice.
(2) In deciding whether to issue a certificate, the administrator must consider only the number of and dates of the convictions and whether these convictions relate to the business location under consideration.
(3) For the purposes of subsection (2), the administrator may only refer to
(a) the notice,
(b) the dates of the convictions, and the business locations to which they relate, as disclosed by court records, and
(c) written submissions received under section 3.6 or this section.
(4) The administrator must issue or decide not to issue a certificate at the conclusion of a review and, if a certificate is issued, the administrator must send a copy of the certificate to the director and serve a copy on the dealer in the manner set out in section 3.6 (2).
(5) Subject to this section, a review under this section is governed by rules, practices and procedures adopted by the administrator and, in the conduct of such a review, the administrator is not bound by the legal or technical rules of evidence and may act on evidence by affidavit or by written statement or by the report of any officer appointed by the administrator or on evidence obtained in any manner the administrator thinks suitable.
(6) A certificate must not be held invalid on the grounds that the administrator did not examine or consider other information or evidence beyond that required by this section.
3.8 (1) A dealer may appeal a certificate to the Supreme Court on an issue of law or mixed fact and law within 30 days of being served with a copy of the certificate and section 3.6 (2) and (3) applies for the purpose of determining the manner and date of that service.
(2) The appellant must, not less than one month before the hearing of the appeal, serve both the administrator and the director, either personally or by registered mail, with a copy of the notice of appeal and notice of the date of the hearing of the appeal.
(3) The Supreme Court, on application, may order that the suspension provided for in a certificate under appeal is deferred, subject to the conditions it thinks appropriate pending the outcome of an appeal under this section.
(4) The Supreme Court must
(a) dismiss the appeal, or
(b) allow the appeal and order the director to terminate the suspension.
4 Section 4 (d.2) and (d.3) is repealed and the following substituted:
(d.2) specifying the minimum number of cigarettes that must be in a package if the package is to be sold, offered for sale, distributed, advertised or promoted to persons;
(d.3) specifying the age for the purposes of section 2 (2); .
5 Section 5 is repealed and the following substituted:
5 (1) A person who contravenes section 2 or 3.1 (4) or a regulation made under section 4 (a) or (c) commits an offence and is liable on conviction
(a) for a first offence to a fine of not more than $500 or to imprisonment for a term not exceeding 3 months, or to both the fine and imprisonment, and
(b) for a subsequent offence to a fine of not more than $1 000 or to imprisonment for a term not exceeding 6 months, or to both the fine and imprisonment.
(2) If a corporation commits an offence under subsection (1) and an officer, director, employee or agent of the corporation directed, authorized, assented to, acquiesced in or participated in the commission of the offence, that individual also commits and is liable to the penalties for that offence.
(3) If an officer, director, employee or agent of a corporation commits an offence under subsection (1) while acting on behalf of the corporation, the corporation also commits and is liable to the penalties for that offence.
(4) For the purposes of subsection (3), a corporation has the burden of proving that an officer, director, employee or agent of the corporation was not acting on behalf of the corporation at the time that individual committed an offence under this Act or the regulations.
(5) No proceeding for an offence under this section may be commenced after 12 months from the date the cause of action arises.
(6) It is a defence to a charge of contravention of section 2 (2) to establish that the defendant, in reaching the conclusion that the purchaser had attained the required age,
(a) required the person to produce valid photo identification,
(b) made a reasonable effort to determine the authenticity of that identification, and
(c) acted on the basis of that identification.
6 The Tobacco Product Amendment Act, 1992, S.B.C. 1992, c. 81, is amended by repealing those parts of section 2 which enact sections 2 (2) (b), 3 and 3.1 of the Tobacco Sales Act.
7 The Tobacco Tax Act, R.S.B.C. 1979, c. 404, is amended by adding the following section:
4.4 (1) Subject to an order under section 3.8 (3) of the Tobacco Sales Act, on receipt of a certificate from the administrator under the Tobacco Sales Act, the director must, if the person has a dealer's permit or authorization under section 31 (1) (h) applicable to a location specified in the certificate, suspend the permit or authorization for the location and period specified in the certificate.
(2) A suspension under this section may be made without advance notice to a dealer.
8 This Act comes into force by regulation of the Lieutenant Governor in Council.
SECTION 1: [Tobacco Sales Act, reenacts section 1] reenacts some definitions, revises others and adds additional ones for the purposes of the Act.
SECTION 2: [Tobacco Sales Act, amends section 2] restates section 2 (2) more clearly.
SECTION 3: [Tobacco Sales Act, adds sections 3.1 to 3.8] provides for the appointment of enforcement officers, the designation of an administrator, the inspection of business premises, the production of evidence of an offence, the determination whether suspensions under the Tobacco Tax Act should occur and if so for how long and due process in suspension proceedings, all for the purpose of creating a further administrative consequence for repeated contravention of the Tobacco Sales Act.
SECTION 4: [Tobacco Sales Act, amends section 4] restates the regulation making power under section 4 to reflect amendments made by sections 1 and 2 of this Bill.
SECTION 5: [Tobacco Sales Act, reenacts section 5] makes corporations more clearly liable for the acts and omissions of their officers, agents and employees and the converse as well in appropriate circumstances. A special due diligence defence is also created to a charge of selling tobacco to an under age person.
SECTION 6: [Tobacco Product Amendment Act, 1992, repeals part of section 2] repeals amendments made in 1992 to the Tobacco Sales Act that are not being brought into force.
SECTION 7: [Tobacco Tax Act, adds section 4.4] requires the director to give effect to a suspension specified in a certificate issued under the Tobacco Sales Act.
[ Return to: Legislative Assembly Home Page ]
Copyright © 2002: Queen's Printer, Victoria, British Columbia, Canada