Executive Summary: Key Legal and Evidentiary Issues

• Eau Claire Distillery Ltd. failed to comply with a Safety Order requiring hazardous zoning assessment documentation by January 31, 2021

• Trial court rejected the distillery's due diligence defense, finding no genuine effort to comply with the Safety Order

• Central interpretive issue involved sections 67(5) and 68(1) of the Safety Codes Act regarding liability for "continuing offences"

• Dispute centered on whether daily fines could extend beyond the period specified in the information (February 1 to March 1, 2021)

• Court of Appeal emphasized accused persons must receive reasonable notice and adjudication before being convicted for any time period

• Strict liability offences require proof that the accused failed to exercise due diligence, not merely that non-compliance occurred

Background and the safety order

On December 7, 2020, the Deputy Fire Chief and Safety Codes Officer of the Town of Turner Valley (now Diamond Valley) served Eau Claire Distillery Ltd. with Order No. 2020-0001 under section 49 of the Safety Codes Act. The Safety Order directed the distillery to "provide documentation prepared by a qualified individual to indicate the hazardous zoning of [its] facility and compliance with the Canadian Electrical Code" by January 31, 2021. The assessment was to "indicate the extent of the hazards in the building and processes, as to their locations and how significant they are" and thus allow the Safety Codes Officer to determine the distillery's compliance with the Fire Code. The distillery had been operating without a hazardous zoning assessment since its inception in 2014.

Non-compliance and conviction

The distillery did not comply with the Safety Order. On March 1, 2021, it was issued a summons charging that, on or about February 1, 2021, it had contravened section 67(4)(d) of the Safety Codes Act by failing to carry out the actions required by the Safety Order. Following a four-day trial in October and December 2022, the distillery was convicted on February 24, 2023. The trial judge found the distillery had committed the actus reus of the offence based on the Safety Codes Officer's testimony and rejected the distillery's various defences, including its defence of due diligence. The trial judge considered evidence of steps taken by the distillery prior to and following the Safety Order being issued, including documentation submitted after the summons date. She found the distillery had not taken sufficient steps to avoid the Safety Order being issued or to come into compliance after it was issued, concluding there was no genuine attempt to comply and insufficient evidence to prove the distillery exercised due diligence.

Sentencing dispute

At sentencing, the respondent conceded the distillery could not be fined for any failures to comply following the date of conviction, but submitted the distillery ought to be fined for each day up to and including the date of conviction – February 24, 2023. It argued section 67(5) of the Safety Codes Act means liability for a daily fine continues until the date of conviction. The sentencing judge rejected this position, imposing an initial fine of $25,000 and a daily fine of $500 only for the period after the offence date identified in the information up to the date the information was issued – the 28 days from February 2 to March 1, 2021. She relied on the "golden rule" from The Queen v Côté, that an accused be provided with enough information to be "reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial." The sentencing judge found that because "the Information only states that Eau Claire failed to comply with the Safety Codes Order from February 1, 2021 to March 1, 2021" the distillery had "only been convicted with an offence related to that period of time." She further found the distillery made no admission of non-compliance, "particularly in regard to the offence continuing past the laying of the Information."

Appeal to the Court of King's Bench

The distillery did not appeal its conviction or sentence. However, the respondent appealed the sentence to the Court of King's Bench. On appeal, the respondent changed its position and argued the distillery should be liable for daily fines not only through to conviction, but also after the date of conviction up to the date its Safety Codes Officer confirmed the distillery had come into compliance, which the respondent advised at the appeal hearing was November 7, 2023. The reviewing judge allowed the appeal. In her view, the distillery could be fined for each day from February 1, 2021 until the date the distillery had come into compliance, which she accepted was the date the Safety Codes Officer confirmed compliance. The reviewing judge suggested the golden rule from Côté did not apply to strict liability offences and found it would be inappropriate for a new information to be issued, since the legislature "cannot intend for the Crown to issue new information[s] repeatedly for the same underlying offence, being a failure to follow an order, resulting in a dramatic increase in penalty." In her view, the reference to a "continuing offence" in section 68(1)(a) of the Safety Codes Act means "the continuation of the activity that constituted the original offence of which the party was found guilty." She found the distillery had continued the offence from "February 1, 2021 onward until the date at which it complied with the Safety Codes Act." The reviewing judge substituted a fine of $75 per day from February 1, 2021 until the date of compliance with the Safety Order, some 1,009 days.

Court of Appeal decision

The distillery applied to the Court of Appeal under section 19 of the Provincial Offences Procedures Act for permission to further appeal the reviewing judge's decision. The Court granted permission, holding the proper interpretation of sections 67 and 68 of the Safety Codes Act is a question of sufficient importance to warrant a further appeal. The Court of Appeal found the reviewing judge erred in interpreting sections 67(5) and 68(1) to permit sanction for days in respect of which there has been neither reasonable notice of an allegation of misconduct nor adjudication of whether the allegation is made out. The Court held that sections 67(5) and 68(1) do contemplate that an "offence" may constitute a "continuing offence" taking place over multiple days, but nowhere does the legislation obviate the need to reasonably identify for the accused the period over which the "continuing offence" is alleged to have occurred. The Court emphasized that sections 67(5) and 68(1) are clear that liability arises only "on conviction" and where a "person... is guilty of an offence."

Final ruling and outcome

The Court of Appeal held that strict liability offences are not exempt from the rule in Côté. The information laid in this case charged the distillery only with failing to carry out the actions specified in the Safety Order "[o]n or about the 1st day of February, 2021." From this, the trial judge reasonably concluded the non-compliance for which the distillery had been given notice was restricted to the period between the date specified in the information (February 1, 2021) and the date when the information was laid (March 1, 2021). The Court found the distillery has not been tried and found guilty of an offence for any time after March 1, 2021, and whether it exercised due diligence in its efforts to comply after March 1, 2021, has not been adjudicated. The evidence addressed about steps taken by the distillery towards compliance ends in December 2021, and the trial judge found the distillery had made no admission about non-compliance for the period after March 1, 2021. The Court emphasized that the offence is one of strict liability, not absolute liability; the issue is not simply whether the distillery failed to comply with the Safety Order, but also whether it failed to comply after exercising due diligence to comply. The appeal was allowed, and the sentence imposed in the Sentencing Decision was restored, limiting daily fines to February 1, 2021 to March 1, 2021.