Tobacco and Vaping Products Act (S.C. 1997, c. 13)

Marginal note:Certificate of default

• 41.2 (1) Any debt that may be recovered under subsection 41.1(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.

• Marginal note:Judgment

  (2) On production to the Federal Court, a certificate made under subsection (1) shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in the certificate and all reasonable costs and charges attendant in the registration of the certificate.

Regulations

Marginal note:Regulations

42 The Governor in Council may make regulations

• (a) respecting the powers and duties of inspectors and analysts;

• (b) respecting the taking of samples;

• (b.1) respecting the costs in relation to anything required or authorized under section 39 or subsection 41(4);

• (c) prescribing anything that by this Part is to be prescribed; and

• (d) generally for carrying out the purposes of this Part.

PART V.1Miscellaneous Provisions

42.1 [Repealed, 2018, c. 9, s. 52]

Marginal note:Food and Drugs Act

• 42.2 (1) The Governor in Council may make regulations providing that this Act or any provision of this Act does not apply in respect of some or all of the vaping products that are regulated under the Food and Drugs Act or that contain a controlled substance, as defined in subsection 2(1) of the Controlled Drugs and Substances Act.

• Marginal note:For greater certainty

  (2) For greater certainty, the regulations may distinguish between vaping products on the basis of type of authorization, including type of licence, issued under the Food and Drugs Act, or on the basis of type of licence, permit, authorization or exemption issued or granted under the Controlled Drugs and Substances Act.

Marginal note:Trademarks

• 42.3 (1) Despite the Trademarks Act, the registration of a trademark shall not be held invalid on the basis of paragraph 18(1)(b) or (c) of that Act as a result of compliance with this Act.

• Marginal note:For greater certainty

  (2) For greater certainty, the absence of use of a trademark as a result of compliance with this Act constitutes special circumstances that excuse the absence of use for the purposes of the Trademarks Act.

Marginal note:Regulations

42.4 The Governor in Council may make regulations

• (a) prescribing anything that by this Part is to be prescribed; and

• (b) generally for carrying out the purposes of this Part.

Marginal note:Incorporation by reference — limitation removed

42.5 The limitation set out in paragraph 18.1(2)(a) of the Statutory Instruments Act to the effect that a document must be incorporated as it exists on a particular date does not apply to the powers to make regulations under sections 7, 7.8, 14, 17, 33, 42 and 42.4.

PART VIOffences and Punishment

Marginal note:Product and promotion offences — manufacturer

• 43 (1) Every manufacturer who contravenes section 5, 7.2 or 19 is guilty of an offence and liable

  • (a) on summary conviction to a fine not exceeding $500,000 or to imprisonment for a term not exceeding one year, or to both; or

  • (b) on conviction on indictment to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding two years, or to both.

• Marginal note:Promotion offences — other persons

  (2) Every person, other than a manufacturer, who contravenes section 19 is guilty of an offence and liable on summary conviction to a fine not exceeding $500,000.

Marginal note:Additives, ingredients and markings — manufacturer

43.1 Every manufacturer who contravenes subsection 5.1(1), section 5.2, subsection 5.3(1) or section 7.21 or 7.22 is guilty of an offence and liable on summary conviction to a fine not exceeding $300,000 or to imprisonment for a term not exceeding two years, or to both.

Marginal note:Markings — other persons

43.2 Every person, other than a manufacturer, who contravenes subsection 5.3(1) is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.

Marginal note:Summary offence

44 Every person who contravenes subsection 6(1) or (2), section 6.1, subsection 7.3(1) or (2), section 7.5, subsection 10(1), (2) or (3) or 26(1) or (2), section 30.7 or subsection 31(1) or (3), 32(1) or (2) or 38(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both.

Marginal note:Prohibited sale

44.1 Every manufacturer who contravenes section 7.4 is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both.

Marginal note:Sales to young persons, promotions

45 Every person who contravenes subsection 8(1) or 9(1) or section 11 or 12, or every retailer who contravenes section 29 or 30.5 or subsection 30.6(1) or (2), is guilty of an offence and liable on summary conviction

• (a) for a first offence, to a fine not exceeding $3,000; and

• (b) for a subsequent offence, to a fine not exceeding $50,000.

Marginal note:Offence by retailer

• 46 (1) Every retailer who contravenes subsection 15(1) or (2), 15.1(1) or (4) or 15.3(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.

• Marginal note:Offence by manufacturer

  (2) Every manufacturer who contravenes subsection 15(1), (1.1) or (2), 15.1(1) or (4) or 15.3(1) or (2), section 29 or 30.5 or subsection 30.6(1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $500,000 or to imprisonment for a term not exceeding two years, or to both.

• Marginal note:Offence

  (3) Every person who contravenes subsection 15.1(2) or (3) is guilty of an offence and liable on summary conviction to a fine not exceeding $500,000 or to imprisonment for a term not exceeding two years, or to both.

Marginal note:General offence

47 Every person who contravenes subsection 9.1(1) or (2) or 20(1), section 20.1, subsection 21(1), 22(1), 23(1) or (2), 23.1(1) or (2) or 23.2(1) or (2), section 23.3, subsection 24(1) or (2), section 25, 27, 30.1 or 30.2, subsection 30.21(1) or 30.3(1) or (2), section 30.4 or 30.41, subsection 30.42(1) or 30.43(1) or (2), section 30.44, subsection 30.45(1) or (2), 30.46(1) or (2), 30.47(1) or (2) or 30.48(1) or (2) or section 30.701 or 30.71 is guilty of an offence and liable on summary conviction to a fine not exceeding $500,000 or to imprisonment for a term not exceeding two years, or to both.

Marginal note:Where no other penalty

48 Every person who contravenes a provision of this Act or the regulations for which no other penalty is provided in this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $25,000.

Marginal note:Due diligence defence

48.1 A person is not to be found guilty of an offence under this Act if they establish that they exercised due diligence to prevent the commission of the offence.

Marginal note:Continuing offence

49 A person who commits or continues an offence under this Act on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed or continued.

Marginal note:Offence by director or officer of corporation

50 Where a corporation commits an offence under this Act, any director or officer of the corporation who authorized or acquiesced in the offence is guilty of an offence and liable on conviction to the penalty provided for by this Act in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted.

Marginal note:Limitation period

51 No prosecution for a summary conviction offence under this Act may be instituted after two years after the time when the subject-matter of the proceedings arose.

Marginal note:Venue

52 A prosecution for an offence under this Act may be instituted, heard, tried and determined by a court in any jurisdiction in which the accused carries on business, regardless of where the subject-matter of the prosecution arose.

Marginal note:Exception need not be pleaded

• 53 (1) No exception, exemption, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information or indictment for an offence under this Act or under section 463, 464 or 465 of the Criminal Code in respect of an offence under this Act.

• Marginal note:Proof of exemption

  (2) In a prosecution for an offence referred to in subsection (1), the burden of proving that an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused and the prosecutor is not required, except by way of rebuttal, to prove that it does not operate in favour of the accused, whether or not it is set out in the information or indictment.

Marginal note:Offence by employee or agent

54 In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission.

Marginal note:Certified copies and extracts

55 In a prosecution for an offence under this Act, a copy of any written or electronic information obtained during an inspection under this Act and certified by the inspector to be a true copy is admissible in evidence and is, in the absence of evidence to the contrary, proof of its contents.

Marginal note:Certificate or report of analyst as proof

• 56 (1) Subject to subsections (2) and (3), a certificate or report purporting to be signed by an analyst stating that the analyst has analysed anything to which this Act applies and stating the results of the analysis, is admissible in evidence in any prosecution for an offence under this Act without proof of the signature or official character of the person appearing to have signed the certificate or report.

• Marginal note:Notice

  (2) The certificate or report may not be received in evidence unless the party intending to produce it has, before the trial, given the party against whom it is intended to be produced reasonable notice of that intention together with a copy of the certificate or report.

• Marginal note:Attendance of analyst

  (3) The party against whom the certificate or report is produced may, with leave of the court, require the attendance of the analyst for the purpose of cross-examination.

Marginal note:Evidentiary presumptions

57 In a prosecution for a contravention of this Act,

• (a) information on a package indicating that it contains a tobacco product or vaping product is, in the absence of evidence to the contrary, proof that the package contains that product; and

• (b) a name or address on a package purporting to be the name or address of the person by whom the tobacco product or vaping product was manufactured is, in the absence of evidence to the contrary, proof that it was manufactured by that person.

Marginal note:Additional fine

58 If an offender has been convicted of an offence under this Act and the court is satisfied that as a result of the commission of the offence the offender acquired any monetary benefits or that monetary benefits accrued to the offender, the court may order the offender to pay, despite the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to the court’s estimation of the amount of those monetary benefits.

Marginal note:Orders of court

59 When the court is sentencing an offender who has been convicted of an offence under this Act, in addition to any other punishment that may be imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

• (a) prohibiting the offender from doing any act or engaging in any activity that is likely to result in the continuation or repetition of the offence;

• (b) prohibiting the offender from selling tobacco products and vaping products for a period of not more than one year, in the case of a subsequent offence for the contravention of subsection 8(1) or section 11, 12, 29, 30.5 or 30.6;

• (c) directing the offender to publish, in the manner directed by the court, the facts relating to the commission of the offence;

• (d) directing the offender to post any bond or pay any amount of money into court that will ensure compliance with an order made pursuant to this section;

• (e) directing the offender to compensate the Minister, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the Minister as a result of the act or omission that constituted the offence; and

• (f) directing the offender to pay an amount for the purposes of conducting research into any matters relating to tobacco products and vaping products that the court considers appropriate.