Supreme Court of Canada
Patterson v. R., [1968] S.C.R. 157
Date: 1967-12-18
Patricia Patterson, (Plaintiff) Appellant;
and
Her Majesty The
Queen, (Defendant) Respondent.
1967: December 7, 8,18.
Present: Cartwright C.J. and Fauteux,
Ritchie, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Criminal law—Disorderly houses—Keeper of
common bawdy house—No evidence of prior use of house as such—Whether accused
properly convicted—Criminal Code, 1953-54 (Can.), c. 51, s. 168.
As a result of a sexual proposition by
telephone made by a police agent provocateur, the appellant arranged to procure
another girl who would make arrangements for a suitable place of assignation
where both could entertain the caller and three male friends, also police officers.
The appellant met the police officers at an agreed location and under her
direction they drove to the home of her confederate. There, they were told that
the confederate intended to take them to another house as soon as a telephone
call, which she was expecting, confirmed the arrangements she had already made.
Eventually, a telephone call came and the confederate was heard to say “leave
the front door open”. The men and the two girls then drove to a private home in
a suburban residential area, the owner of which was not disclosed in the
record. Money exchanged hands and after the girls had removed some of their
clothing, they were arrested. There was no evidence in the record that the home
had ever been used for the purpose of prostitution or the practice of acts of
indecency. It had no such reputation nor was there any evidence of undue
traffic to or from the premises. The appellant was convicted of keeping a
common bawdy house, and her conviction was affirmed by a majority judgment in
the Court of Appeal. An appeal was launched to this Court.
Held: The appeal should be allowed and a
verdict of acquittal entered.
To obtain a conviction of keeping a common
bawdy house, the Crown must prove that there had been a frequent or habitual
use of a place for the purpose of prostitution. There was no such evidence in
this case nor was there any evidence upon which the magistrate could properly
base an inference that the place had been habitually so used.
Droit criminel—Maisons de désordre—Tenancier
de maison de débauche—Aucune preuve que la maison utilisée antérieurement à ces
fins—Verdict de culpabilité peut-il être soutenu—Code criminel, 1953-54 (Can.),
c. 51, art. 168.
A la suite d’un appel téléphonique d’un
officier de police, un agent provocateur, aux fins de rapports sexuels
illicites, l’appelante a convenu d’embaucher une autre fille qui ferait des
arrangements pour obtenir un local où les deux filles pourraient recevoir celui
qui téléphonait ainsi que trois amis, aussi des officiers de police.
L’appelante a rencontré les officiers de police à l’endroit convenu et, sous sa
direction, ils se sont tous dirigés en automobile à la maison de l’autre fille.
A cet endroit, on leur a dit que cette fille avait l’intention de les amener à
une autre maison dès qu’elle aurait reçu un appel téléphonique confirmant les
[Page 158]
arrangements qu’elle avait faits
antérieurement. Éventuellement, l’appel téléphonique a été reçu et on entendit
la fille demander de laisser la porte d’en avant ouverte. Les hommes et les
deux filles se sont alors dirigés en automobile vers une maison privée dans un
quartier résidentiel de banlieue. Le nom du propriétaire de cette maison
n’apparaît pas au dossier. Les officiers ont donné de l’argent aux filles et
après que ces dernières eurent enlevé quelques-uns de leurs vêtements, elles
furent mises sous arrêt. Il n’y avait aucune preuve dans le dossier que la
maison avait en aucun temps servi à des fins de prostitution ou pour la
pratique d’actes d’indécence. La maison n’avait pas cette réputation et il n’y
avait aucune preuve d’entrées ou de sorties inusitées. L’appelante a été
trouvée coupable d’avoir été la tenancière d’une maison de débauche, et le
verdict de culpabilité a été confirmé par un jugement majoritaire en Cour
d’Appel. Un appel a été logé devant cette Cour.
Arrêt: L’appel doit être maintenu et une
déclaration de non culpabilité doit être enregistrée.
Pour obtenir une déclaration de
culpabilité d’avoir été le tenancier d’une maison de débauche, la Couronne doit
prouver que le local a été employé fréquemment ou habituellement à des fins de
prostitution. Il n’y avait aucune telle preuve dans le dossier et il n’y avait
non plus aucune preuve sur laquelle le juge aurait pu baser à bon droit une
inférence que le local avait été employé habituellement à de telles fins.
APPEL d’un jugement de la Cour d’Appel de
l’Ontario,
confirmant une déclaration de culpabilité. Appel maintenu.
APPEAL from a judgment of the Court of Appeal
for Ontario1, affirming the conviction of the appellant. Appeal
allowed.
John F. Hamilton, for the appellant.
C.J. Meinhardt, for the respondent.
The judgment of the Court was delivered by
SPENCE J.:—This is an appeal from the judgment
of the Court of Appeal for Ontario1 delivered on January 5, 1967,
whereby that Court dismissed the appeal from the conviction of the accused on February 8, 1966, by a police magistrate. The
accused was charged with unlawfully keeping a common bawdy house, situate and
known as 43 Harding Boulevard.
[Page 159]
In the Court of Appeal for Ontario, MacKay J.A., with whom Porter
C.J.O. concurred, gave reasons for dismissing the appeal and Schroeder J.A.
gave reasons for allowing the appeal and quashing the conviction. The facts
were accurately stated in considerable detail in the judgment of Schroeder J.A.
as follows:
On December 2, 1966 (sic-a, misprint
for 1965) a morality squad officer of the Metropolitan Toronto Police
Department, Detective John Leybourne, telephoned the appellant, using an
assumed name, and made an instigative sexual proposition to her. In the result,
it was arranged that she should procure another girl who would make
arrangements for a suitable place of assignation where both could satisfy the
sexual appetites of the agent provocateur and of three male friends (fellow
officers of the morality squad but not so made known to the appellant).
Subsequently Detective Leybourne and two fellow
detectives, all attired in plain clothes, met the appellant at an agreed
location on Bloor Street, and under her direction they drove to the home of her
confederate, one Beverley Dixon. Upon their arrival Dixon informed them that she intended to take them to another house and
was awaiting a telephone call to confirm the plans which she had set afoot. A
call eventually came and in responding to it Dixon was heard to say “leave the front door open”.
The three detectives and the two girls then
repaired to a suburban home in a quiet residential section of Richmond Hill, known and described for
municipal purposes as 43 Harding Boulevard. The record discloses nothing as to the identity of the owner or
occupant of that property.
Detective Leybourne had given the appellant $75
as compensation for the favours to be bestowed upon him and his two companions
and an additional $10 to pay for the use of the premises. After their arrival
the appellant and her female companion repaired to another part of the house,
and later returned to the presence of the detectives wearing nothing but their
under-garments. At this point the three police officers disclosed their identity
and after Detective Leybourne had repossessed himself of the $85 previously
paid to the appellant he charged her and her companion with the offence out of
which the present appeal arises.
[Page 160]
Beverley Dixon, who had made the necessary
arrangements for the use of the Harding Boulevard premises, was acquitted by the Magistrate and a conviction was
entered against the appellant only.
There is not the remotest suggestion in the
record that house number 43 Harding Boulevard in Richmond Hill, a
private residence in a quiet and respectable residential subdivision, had ever
been used by the appellant or any other person for the purpose of prostitution
or the practice of acts of indecency. No evidence was adduced as to any undue
traffic to and from the said premises which would reflect prejudicially upon
the reputation of the house or its occupants. The only evidence offered was
that of the three detectives which undoubtedly proved the intent of the
appellant and her co-accused to commit an act of prostitution with these
witnesses at the place in question.
The appellant has stated the points at issue in
this appeal as follows:
1. Did the Court of Appeal for Ontario err in finding 43 Harding Boulevard was a common bawdy
house?
2. Did the Court of Appeal for Ontario err in holding that the appellant
was the keeper of a common bawdy house, pursuant to s. 168 of the Criminal
Code?
The majority in the Court of Appeal found that
the premises at 43 Harding Boulevard were a common bawdy house and that the appellant was the keeper
thereof. Schroeder J.A., dissenting, was of the opinion that the premises were
not a common bawdy house and that the appellant was not the keeper thereof. I
am of the opinion that this appeal may be disposed of by considering the first
question only and I have come to the conclusion for the reasons which I shall
outline that the premises were not a common bawdy house within the meaning of
those words as used in s. 168 of the Criminal Code. Therefore, as Roach
J.A. said in giving judgment for the Court of Appeal for Ontario in R. v. King:
Since this place was not a common bawdy
house, it is irrelevant who the keeper was.
[Page 161]
Section 168 of the Criminal Code provides
in subs. (1), paras. (b), (h), and (i):
168. (1) In this Part,
(b) “common bawdy house”
means a place that is
(i) kept or occupied, or
(ii) resorted to by one or more persons for
the purpose of prostitution or the practice of acts of indecency;
* * *
(h) “keeper” includes a
person who
(i) is an owner or occupier of a place,
(ii) assists or acts on behalf of an owner
or occupier of a place,
(iii) appears to be, or to assist or act on
behalf of an owner or occupier of a place,
(iv) has the care or management of a place,
or
(v) Uses a place permanently or
temporarily, with or without the consent of the owner or occupier; and
(i) “place” includes any place,
whether or not
(i) it is covered or enclosed,
(ii) it is used permanently or temporarily,
or
(iii) any person has an exclusive right of
user with respect to it.
Schroeder J.A. was of the opinion that the words
“kept or occupied” and the words “resorted to” as used in s. 168(1) (b) (i) and
(ii) connote a frequent or habitual use of the premises for the purposes of
prostitution. I am in accord with that view. I have considered all the cases
cited and I have noted that there has been evidence, in each case where
conviction has resulted, of one of three types,
firstly, there
has been actual evidence of the continued and habitual use of the premises for
prostitution as in The King v. Cohen
and Rex v. Miket,
secondly, there
has been evidence of the reputation in the neighbourhood of the premises as a
common bawdy house, or
thirdly, there
has been evidence of such circumstances as to make the inference that the
premises were resorted to habitually as a place of prostitution, a proper
inference for the court to draw from such evidence.
Examples of the latter are, particularly, Rex
v. Davidson, where
Stewart J.A. giving judgment for the majority of the Court said at p. 54:
It might very well happen that a clerk in a
hotel who had become friendly with a man, a guest or inmate or a regular
customer of the hotel,
[Page 162]
might, on receiving a wink, shut his eyes
to his friend’s proposed escapade and allow him to take a woman to his room on
one occasion without protest, and yet not be guilty at all of habitually
allowing any casual guest to do so.
And at p. 55:
The way in which the whole thing happened
was such that the magistrate might quite properly infer that it was not an
isolated instance but rather a matter of course and of custom or habit.
Moreover, I think the decision in Rex v. James, 25 Can. Cr. Cas. 23, 25
D.L.R. 476, 9 A.L.R. 66, 9 W.W.R. 235, went upon the same principle,
viz., that the existence of a habit or custom of doing a certain thing might be
inferred from the circumstances surrounding the doing and the manner of doing
or even of offering to do that thing on a single occasion.
This is sufficient to sustain the
conviction and the motion should, therefore, be dismissed with costs.
It was admitted that though the accused was
only a night clerk he came within the definition of a “keeper” given in sec.
228(2) of the Code.
Also, in Rex v. Clay, Bissonnette J. said at
p. 40:
As a general rule, proof of an isolated act
of prostitution cannot suffice to establish the offence of keeping a disorderly
house. But if, from circumstances surrounding the evidence of this isolated
act, a certainty arises that this house is habitually used for purposes of
prostitution, the magistrate is thereupon justified in not requiring direct
proof of the bad reputation or delictual character of this house.
It would therefore appear that the element of
habitual or frequent use of the place will remain the necessary interpretation
of proof despite the amendment of the definition of “common bawdy house” to add
the words “resorted to by one or more persons” and in fact that the word
“resorted” itself has been relied upon to support the view that such habitual
or frequent use of a place is required. (See Rex v. Davidson, supra). So
in cases where the Crown has failed to prove a habitual or frequent use of a
place for the purposes of prostitution, the conviction has not been upheld. In Rex
v. King, supra, Roach J.A. said at p.325:
It was not a place kept or occupied or
resorted to by one or more persons for the purposes of prostitution or the
practice of acts of indecency. The authorities make it clear that to come
within that definition the place must be one that is habitually so kept or
resorted to.
I echo the words of Hanrahan P.M., in Rex v.
Martin, when
he said:
It is true convictions have been registered
and sustained on appeal on evidence of a single act of prostitution, but always
in such cases the
[Page 163]
surrounding circumstances established the
premises had been habitually used for such a purpose and in most cases had
acquired such a reputation in the community.
As I have said, there was no evidence in the
present case of any reputation in the community and there was no evidence of
the use of the premises for prostitution on any other occasion than the one
which was the subject of this prosecution. There was moreover no evidence upon
which the learned magistrate properly could base an inference that the place
had been habitually so used.
I would allow the appeal, quash the conviction,
and direct a verdict of acquittal.
Appeal allowed, conviction quashed and
verdict of acquittal directed.
Counsel for the appellant: John F.
Hamilton, Toronto.
Counsel for the respondent: The
Attorney-General for Ontario, Toronto.
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