Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks ‑‑ Convicted sexual offender convicted of loitering by play area in public park ‑‑ Definition of "loitering" -- Whether infringement of s. 7 (the right to life, liberty and security of the person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence) ‑‑ If so, whether justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 11(d) , (h), 12 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 179(1) (b).
Criminal law ‑‑ Sexual conviction ‑‑ Loitering ‑‑ Definition of "loitering" -- Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks ‑‑ Convicted sexual offender convicted of loitering by play area in public park ‑‑ Whether infringement of s. 7 (the right to life, liberty and security of the person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence) ‑‑ If so, whether justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 11(d) , (h), 12 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 179(1) (b).
Respondent's earlier convictions of sexual assault involving children made him subject to the prohibition in s. 179(1) (b) of the Criminal Code that he not commit vagrancy by loitering near playgrounds, school yards or public parks. On two occasions, respondent, who was carrying a camera with a telephoto lens in a public park near to where children were playing, was stopped by police and questioned as to whether he had a criminal record. On the first occasion, he was warned that a convicted sex offender was not permitted to loiter near a public park, school yard or playground. On the second, he was arrested and charged under s. 179(1)(b) of the Code with two counts of vagrancy ‑‑ "at or near a playground" and "in or near a public park" ‑‑ and the camera and film with frames focusing on the crotch areas of young girls playing in the park with their clothing in disarray were seized.
The respondent was convicted of the first count. The trial judge found that, even though s. 179(1)(b) infringed ss. 7 and 11( d ) of the Charter , these infringements were a justifiable limitation under s. 1. The second count was conditionally stayed under the Kienapple principle. An appeal to the British Columbia Supreme Court was dismissed. The Court of Appeal, however, allowed respondent's appeal and quashed the conviction because the breaches of ss. 7 and 11(d) were not justified. The constitutional questions before this Court queried if s. 179(1)(b) infringed several sections of the Charter , and if so, whether those infringements were justifiable under s. 1. The Charter provisions allegedly infringed were: s. 7 (the right to life, liberty and security of the person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence).
Held (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed. Section 179(1)(b) violated s. 7 of the Charter and was not justified under s. 1.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The word "loiter" in s. 179(1)(b) should be given its ordinary meaning ‑‑ to stand idly around, hang around, linger, tarry, saunter, delay, dawdle ‑‑ and should not be interpreted as requiring a malevolent intent. None of the dictionary definitions requires a malevolent intent or makes any reference to such a requirement and the jurisprudence considering its meaning in other sections of the Code supports the use of the ordinary meaning in s. 179(1)(b). The ordinary definition is also consistent with section's purpose of protecting children from becoming victims of sexual offences by prohibiting any prolonged attendance in areas often frequented by children.
The concept of malevolent intent (as opposed to a narrower formula such as unlawful intent) raises problems of definition which make it unworkable. It is a concept of very broad scope that is extremely difficult to define. Malevolent intent could mean almost anything, and its definition would be dependent upon the subjective views of the particular judge trying the case.
The legislative debates both on the provision's enactment and later on its reconsideration cannot be used to support the notion of some sort of malevolent intent. These debates, assuming admissibility, were inconclusive for the purpose of determining legislative intent. Indeed, legislative history generally is not admissible as proof of legislative intent in the construction of statutes because it is not reliable evidence. Rather, it may be admissible for the more general purpose of showing the mischief Parliament was attempting to remedy with the legislation.
Section 179(1)(b) restricts the liberty of those to whom it applies. Although a prohibition for the purpose of protecting the public does not per se infringe the principles of fundamental justice, the prohibition in s. 179(1)(b) does so because it restricts liberty far more than is necessary to accomplish its goal. It applies, without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review.
Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. They are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth, the means are too sweeping in relation to the objective.
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.
Reviewing legislation for overbreadth as a principle of fundamental justice is simply a matter of balancing the state interest against that of the individual. Where an independent principle of fundamental justice is violated, however, any balancing of the public interest must take place under s. 1 of the Charter . In analysing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective.
Section 7 of the Charter has a wide scope. An enactment, before it can be found to be so broad that it infringes s. 7 of the Charter , must clearly infringe life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective. In determining whether a provision is overly broad and not in accordance with the principles of fundamental justice, it must be determined whether the means chosen to accomplish the provision's objectives are reasonably tailored to effect its purpose. Where legislation limits the liberty of an individual in order to protect the public, that limitation should not go beyond what is necessary to accomplish that goal.
Section 179(1)(b) suffers from overbreadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice. The section is overly broad in its geographical ambit. The limitation should be more narrowly defined, to apply only to those parks and bathing areas where children can reasonably be expected to be present. It is also overly broad in that it applies for life, with no possibility of review. Without a review a person who has ceased to be a danger to children (or who indeed never was a danger to children) continues to be subject to the prohibition in s. 179(1)(b). A pardon under the Criminal Records Act or the royal prerogative of mercy, while removing only any disqualification flowing from conviction, does not meet the need for review because of inadequate and insufficient availability. Finally, s. 179(1)(b) applies to all persons convicted of the listed offences, without regard to whether they constitute a danger to children and accordingly is also overly broad in respect to the people to whom it applies.
The absence of notice, too, offends the principles of fundamental justice. Great care is taken to give notice in connection with other provisions of the Code.
It is significant that the new s. 161, enacted after the Court of Appeal's decision, applies only to persons who have committed the listed offences in respect of persons under age fourteen. In addition, the order made pursuant to it is discretionary so that only those offenders constituting a danger to children will be subject to a prohibition. Unlike s. 179(1)(b), the new s. 161 provides for both notice and review of the prohibition and accordingly reduces the significance of the overbreadth factor.
Doubts exist as to whether a violation of the right to life, liberty or security of the person which is not in accordance with the principles of fundamental justice can ever be justified, except perhaps in times of war or national emergencies. Overbroad legislation infringing s. 7 of the Charter is even more difficult to justify and would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis.
The objective of s. 179(1)(b) of protecting children from sexual offences is pressing and substantial. The protection of children from sexual offenses is obviously very important to society. Furthermore, the means employed in s. 179(1)(b), at least in some of their applications, are rationally connected to the objective. However, for the same reasons that s. 179(1)(b) is overly broad, it fails the minimal impairment branch of the s. 1 analysis and so cannot be justified under s. 1 of the Charter .
The remedies of reading in or reading down are not appropriate here. The changes which would be required to make s. 179(1)(b) constitutional would not constitute reading down or reading in but rather would amount to judicial rewriting of the legislation and the creation of an entirely new scheme with a completely different approach to the problem.
Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): Section 179(1)(b) should be interpreted as prohibiting the persons affected from being in one of the enumerated places for a malevolent or ulterior purpose related to the predicate offences. The purpose and legislative history of s. 179(1)(b), precedent and statutory context support this interpretation.
The legislative history of s. 179(1)(b) indicated that Parliament considered the word "loiter" to have a different meaning from the word "wander" which was removed from earlier versions of the provision. "Wander" connotes movement without specific intent; "loiter", notwithstanding the common element of idleness, is defined more narrowly and has a variable connotation according to the context.
The Crown's expert psychiatric and psychological evidence was of assistance in understanding the purpose and scope of s. 179(1)(b). The evidence on cross‑offending and the difficulty of predicting who will cross‑offend or repeat offend justifies some form of restriction on the liberty of persons convicted of sexual offences.
The section has at its foundation a concern for public safety and a desire to aid in the treatment and rehabilitation of offenders. It applies broadly to all persons convicted of the enumerated offences and therefore provides protection not only to children but also to others who could be victims of sexual assault in the listed areas. The areas where the prohibition applies are places where people will generally lower their guard.
A caveat to the general rule that words be given their ordinary meaning arises because the sense of the term "loiter" varies according to its context. The absence of purpose element in the ordinary meaning of loiter can have no application in the context of s. 179(1)(b). Parliament clearly intended to include conduct of convicted sex offenders whose purpose was related to re‑offending.
The prohibition contained in s. 179(1)(b) should be narrowed to render the prohibition less intrusive and to tailor it more carefully to the objectives being pursued. Not all loitering should be caught by its prohibition contained in s. 179(1)(b). Rather, the intrusion into the activities of individuals should be tied to some reason of public order. The concern to exclude presence in the enumerated areas for legitimate purposes from criminal prohibition is well‑founded. The restriction created by s. 179(1)(b) will not be the same in each of the listed areas.
Analysis of the interaction of other provisions of the Code dealing with a similar subject‑matter supports the interpretation that loitering as used in s. 179(1)(b) requires a malevolent purpose. Sections 179(1)(b) and 810.1 read together, however, produce a similar result to that achieved by s. 161 in relation to those convicted prior to the enactment of s. 161. (Section 161 allows a court at the time of sentencing to make an order prohibiting a sexual offender from attending day care centres, school grounds, playgrounds, community centres, or any public park or swimming area where persons under the age of 14 years are present or can reasonably be expected to be present. The s. 161 prohibition is available only in relation to persons who have committed offences against children under age 14.) Section 810.1 allows an application to be made to the provincial court, where there are reasonable grounds to fear that someone will commit certain sexual offences, for an order prohibiting that person from attending areas where children under age 14 are likely to be present. Section 179(1)(b) allows the police to take immediate preventative steps before a previous offender re-offends.
The two primary Charter concerns raised in relation to s. 179(1)(b) pertain to vagueness and overbreadth. Defining loitering in that section as being in an enumerated place for a malevolent or ulterior purpose related to the predicated offences avoids both these problems. A lifetime prohibition of activities with a malevolent or ulterior purpose related to re‑offending is not objectionable or over‑broad. Such a prohibition would impose a restriction on the liberty of the affected individuals to which ordinary citizens are not subject, but that restriction is directly related to preventing re‑offending. The affected persons' history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re‑offending justify this minor intrusion which does not breach the principles of fundamental justice.
Section 7 of the Charter was not violated by the absence of any notice of the prohibition contained in s. 179(1)(b). Even though formal notice of the content of s. 179(1)(b) might be preferable, Parliament's decision to provide notice in respect of certain Criminal Code prohibitions cannot be transformed into a principle of fundamental justice.
The allegation that s. 179(1)(b) violates ss. 9 , 11( d ) , (h) and 12 of the Charter are without foundation. The absence of notice, for reasons similar to those relating to overbreadth, did not violate the s. 9 Charter guarantee against being arbitrarily detained or imprisoned. The s. 11( d ) Charter right to be presumed innocent until proven guilty was not infringed either for s. 179(1)(b) does not assume recidivism but rather provides the means to prevent it. Anyone charged under s. 179(1)(b) will be presumed innocent and the burden remains on the Crown to prove beyond a reasonable doubt that the accused committed the offence as interpreted. The s. 11(h) right against double jeopardy was not violated. Section 179(1)(b) applies to persons identified by the fact of having been convicted of one of the enumerated offences. Any conviction under that section, however, will be based on violating its terms and not of having been convicted of one of the enumerated offences. Finally, the respondent was not the subject of cruel and unusual treatment or punishment contrary to s. 12 of the Charter . Such punishment or treatment must be "so excessive as to outrage the standards of decency" or have an effect "grossly disproportionate to what would have been appropriate". The lifetime prohibition of activities with a malevolent or ulterior purpose related to re‑offending, however, is both a minor and justifiable restraint of the affected persons' liberty.
Cases Cited
By Cory J.
Referred to: Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Munroe (1983), 5 C.C.C. (3d) 217; Ledwith v. Roberts, [1937] 1 K.B. 232; R. v. Hasselwander, [1993] 2 S.C.R. 398; R. v. Gauvin (1984), 11 C.C.C. (3d) 229; R. v. Andsten and Petrie (1960), 33 C.R. 213; R. v. Lozowchuk (1984), 32 Sask. R. 51; R. v. Cloutier (M.) (1991), 51 Q.A.C. 143, 66 C.C.C. (3d) 149; R. v. Willis (1987), 37 C.C.C. (3d) 184; Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Gosselin v. The King (1903), 33 S.C.R. 255; Attorney General of Canada v. The Reader's Digest Association (Canada) Ltd., [1961] S.C.R. 775; R. v. Popovic and Askov, [1976] 2 S.C.R. 308; Highway Victims Indemnity Fund v. Gagné, [1977] 1 S.C.R. 785; Toronto Railway Co. v. The Queen (1894), 4 Ex. C.R. 262; Lyons v. The Queen, [1984] 2 S.C.R. 633; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Schneider v. The Queen, [1982] 2 S.C.R. 112; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; PSAC v. Canada, [1987] 1 S.C.R. 424; R. v. Whyte, [1988] 2 S.C.R. 3; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vasil, [1981] 1 S.C.R. 469; Paul v. The Queen, [1982] 1 S.C.R. 621; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Zundel (1987), 58 O.R. (2d) 129; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Beare, [1988] 2 S.C.R. 387; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Graf (1988), 42 C.R.R. 146; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; Schachter v. Canada, [1992] 2 S.C.R. 679.
By Gonthier J. (dissenting)
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Munroe (1983), 5 C.C.C. (3d) 217; R. v. Gauvin (1984), 11 C.C.C. (3d) 229; R. v. Cloutier (M.) (1991), 51 Q.A.C. 143, 66 C.C.C. (3d) 149; R. v. Lozowchuk (1984), 32 Sask. R. 51; R. v. Andsten and Petrie (1960), 33 C.R. 213; Attorney General for Ontario v. Regional Municipality of Peel, [1979] 2 S.C.R. 1134; Attorney-General of Hong Kong v. Sham Chuen, [1986] 1 A.C. 887; Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 9 , 11( d ) , (h), 12 , 15 .
Constitution Act, 1867 , s. 91(27) .
Constitution Act, 1982 , s. 52 .
Criminal Code, S.C. 1892, c. 29, ss. 207, 208.
Criminal Code , R.S.C. 1927, c. 36, s. 238(k) [ad. S.C. 1951, c. 47, s. 13].
Criminal Code, S.C. 1953‑54, c. 51, s. 164(1).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 246.1(1) [ad. S.C. 1980-81-82-83, c. 125, s. 19], 687 [rep. & sub. S.C. 1976-77, c. 53, s. 14].
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 19 , 100 , 161 [ad. S.C. 1993, c. 45, s. 1], 175(1)(c), 177, 179(1)(b) [rep. & sub. R.S.C., 1985, c. 19 (3rd Supp.), s. 8], 260, 749(3), 810.1 [ad. S.C. 1993, c. 45, s. 11].
Criminal Records Act , R.S.C., 1985, c. C‑47 , ss. 4 , 4.1(1) [ad. S.C. 1992, c. 22, s. 4(1)], (2) [ad. idem], 5(b) [rep. & sub. ibid., s. 5].
Authors Cited
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979, "loiter".
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15: An Act to amend the Criminal Code and the Canada Evidence Act. Issue No. 1. November 27; December 11, 18, 1986; February 5, 17; March 17, 1987, at pp. 1:46, 3:25-3:25, 6:18-6:19, 8:29-8:30, 9:70-9:75, 10:27-10:31.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths. (Badgley Report). Ottawa: Minister of Supply and Services Canada, 1984.
Canada. National Parole Board. National Parole Board, Pardon Decision Policies, Annex: The Royal Prerogative of Mercy: Direction (June 1993).
Canada. Special Committee on Pornography and Prostitution. Report of the Special Committee on Pornography and Prostitution (Fraser Report). Ottawa: The Committee, 1985.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1992.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Grand Larousse de la langue française. Paris: Librairie Larousse, 1972-1975, "errer", "flâner", "malveillant".
House of Commons Debates, vol. 5, 4th sess., 21st Parl. Ottawa: King's Printer, 1952.
Lagarde, Irénée. Droit pénal canadien. Montréal: Wilson et Lafleur, 1962.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "loiter", "malevolent", "wander".
Ruby, Clayton C. Sentencing, 3rd ed. Toronto: Butterworths, 1987.
APPEAL from a judgment of the British Columbia Court of Appeal (1992), 77 C.C.C. (3d) 502, 18 C.R. (4th) 63, 20 B.C.A.C. 166, 35 W.A.C. 166, 12 C.R.R. (2d) 238, allowing an appeal from a judgment of Melvin J. (1991), 65 C.C.C. (3d) 46, dismissing an appeal from conviction by Filmer Prov. Ct. J. Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Robert A. Mulligan, for the appellant.
B. Rory B. Morahan, for the respondent.
Bernard Laprade, for the intervener.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
Cory J. -- Section 179(1) (b) of the Criminal Code , R.S.C., 1985, c. C‑46 , as amended, makes it a crime for persons convicted of specified offences to be "found loitering in or near a school ground, playground, public park or bathing area". It must be determined whether the section infringes ss. 7 or 11( d ) of the Canadian Charter of Rights and Freedoms .
Facts
The respondent was charged with two counts of vagrancy under s. 179(1)(b) alleging that on or about July 5, 1989, he did commit vagrancy by loitering at Beacon Hill Park in Victoria. The first count was framed as loitering "at or near a playground". The second count, which referred to the same events, was framed as loitering "in or near a public park".
In 1987 the respondent was convicted of two counts of sexual assault contrary to the former s. 246.1(1) (now s. 271(1)) of the Criminal Code, R.S.C. 1970, c. C-34. These convictions made him subject to the prohibition set out in s. 179(1)(b).
On June 16, 1989, for about two minutes, Police Constable Ronald German observed the respondent standing in Beacon Hill Park in Victoria, British Columbia at the edge of a playground area. Around his neck the respondent was carrying a camera with a telephoto lens. The constable did not see the respondent take any pictures or approach or speak to any children. The respondent then went to another area of the park. Constable German followed the respondent and called to him. The respondent stopped, and German identified himself and produced his badge. He asked the respondent what he was doing in the park. The respondent replied that he was walking through the park just as he did every day.
After some further discussion, the officer asked the respondent for his address, date of birth, and if he had a criminal record. The respondent replied that he had a criminal record for sexual assault. Constable German then told the respondent that his hanging around the park was contrary to the vagrancy section of the Code, and that a convicted sex offender was not permitted to loiter near a public park, school yard or playground. The respondent asked the officer what he meant by "loitering", to which Constable German very astutely replied: "loitering meant standing around, apparently doing nothing, standing stationary in a location, or moving slowly in a certain area, stopping at regular intervals and standing around, or else loitering also could mean stopping in a location where it would obstruct persons who use that area too [sic] frequent". The officer did not charge the respondent, but warned him not to loiter near the playground at the park again.
On the afternoon of July 5, 1989, Constable Wayne Coleman observed the respondent walking on a pathway leading from the children's playground area in the Beacon Hill Park towards the petting zoo. After stopping there for a few minutes, the respondent went to his car. The respondent was once again carrying a camera with a large lens. Constable Coleman, who was in plain-clothes, followed the respondent in an unmarked police car. After driving around for approximately half an hour, the respondent returned to the park. There, the officer saw the respondent seated at a table approximately 50 yards from the playground area. He then moved to a bench approximately 20 yards from the playground and appeared to be using his camera. Some five minutes later, the respondent left the park and returned to his car. Constable Coleman followed the respondent to his residence, where he arrested Heywood and charged him with vagrancy. The police seized his camera and film. A search warrant was subsequently executed at his residence. A picture on the film found in the camera, and a number of pictures found in the respondent's residence and at the drugstore where he had his photographs developed, showed young girls playing in the park, their clothing disarranged from play so that the area of their crotch, although covered by underclothes, was visible.
At his trial, the respondent pleaded not guilty and challenged the constitutionality of s. 179(1)(b) on the grounds that it infringed ss. 7 , 11( d ) , (h), 12 and 15 of the Charter . The trial judge found that s. 179(1)(b) violated ss. 7 and 11( d ) of the Charter , but that it was a justifiable limit under s. 1. The respondent was convicted of the first count of vagrancy under s. 179(1)(b). The second count was conditionally stayed pursuant to the principle expressed in Kienapple v. The Queen, [1975] 1 S.C.R. 729. The respondent was sentenced to three months incarceration to be followed by three years probation. The respondent appealed to the Supreme Court of British Columbia, which dismissed his appeal. The Supreme Court judge accepted the trial judge's finding that s. 179(1)(b) violated ss. 7 and 11( d ) of the Charter , but like the trial judge found that they were justified under s. 1.
The respondent appealed to the British Columbia Court of Appeal. The Court of Appeal allowed the respondent's appeal, and quashed the conviction. Hutcheon J.A. (Rowles J.A. concurring) accepted the breaches of ss. 7 and 11(d) as found by the lower courts. Southin J.A. only found a breach of s. 7. All three judges of the Court of Appeal found that s. 179(1)(b) was not justified under s. 1 of the Charter . The Crown appellant was granted leave to appeal to this Court.
Relevant Legislation
Section 179(1)(b) provides that:
179. (1) Every one commits vagrancy who
. . .
(b) having at any time been convicted of an offence under section 151, 152 or 153, subsection 160(3) or 173(2) or section 271, 272 or 273, or of an offence under a provision referred to in paragraph (b) of the definition "serious personal injury offence" in section 687 of the Criminal Code , chapter C‑34 of the Revised Statutes of Canada, 1970, as it read before January 4, 1983, is found loitering in or near a school ground, playground, public park or bathing area.
The definition of "serious personal injury offence" in s. 687 of the Criminal Code , as it read before January 4, 1983, was as follows:
687. . . .
(b) an offence mentioned in section 144 (rape) or 145 (attempted rape) or an offence or attempt to commit an offence mentioned in section 146 (sexual intercourse with a female under fourteen or between fourteen and sixteen), 149 (indecent assault on a female), 156 (indecent assault on a male) or 157 (gross indecency).
Judgments
Provincial Court (Filmer Prov. Ct. J.)
The trial judge found that s. 179(1)(b) of the Code violated s. 7 of the Charter because it was "an impediment on the freedom and liberty of persons who have been previously convicted of the enumerated sections of the Criminal Code ". He also found that s. 179(1)(b) violated s. 11( d ) of the Charter . However, he concluded that s. 179(1)(b) could be saved under s. 1 of the Charter .
The trial judge found that the word "loiter" in s. 179(1)(b) did not connote innocent behaviour; rather, there must be an untoward or improper motive. In his opinion that motive did not need to be illegal. It was sufficient if it was "malevolent", or something a reasonable person would not consider innocent. In light of this interpretation of the word "loiter", the trial judge found that s. 179(1)(b) was justified under s. 1 of the Charter . He held that the objective of the section, namely protecting children and vulnerable persons from those within the community who might be sexually predatory, was pressing and substantial and that the means chosen were rationally connected to this objective.
Based on the evidence of the photographs taken by the respondent, the trial judge found that the respondent did not have an innocent purpose for being in the park. He stated:
It is my view that the conduct of [the respondent] transcended the bounds of what is harmless and innocent. His conduct pandered to a purely prurient interest; that is, it arose from indulgence in lewd ideas. Lewd in this context means that it involved obscenity, indecency, or lasciviousness of thought. Such conduct is so reprehensible in my view no reasonable person could characterize it as innocent or lawful. As I said when reviewing the constitutionality of this section, the section is not intended to limit innocent attendances or attendances where a lawful purpose is involved. I cannot find such a purpose exists here.
He further noted that the provisions of the Criminal Records Act , R.S.C., 1985, c. C‑47 , applied to permit a person who was subject to s. 179(1)(b) to obtain a pardon so that they would no longer be subject to the prohibition. He found that this provision acted as a safeguard against the unfair application of s. 179(1)(b).
Supreme Court (1991), 65 C.C.C. (3d) 46 (Melvin J.)
Melvin J. held at p. 56 that the meaning of the word "loiter" should be determined "by reference to the general use of the word in everyday language as found in dictionaries, other sections in the same statutory enactment, and in the context of the offence section itself". He found, at pp. 57-58, that:
I am satisfied that the word "loiter" in s. 179(1)(b) requires the existence of some unlawful, or evil, or malevolent intention or purpose on the part of the accused to complete the offence. Such an interpretation of the section demonstrates that a guilty mind is an essential component of the offence which must be established beyond a reasonable doubt. It is not sufficient to convict an individual under this section, in my view, of loitering on the basis that he attended at a park and sat watching flowers grow or ducks swim. There must be more to his conduct which will demonstrate an untoward or improper purpose.
He then concluded that the respondent's purpose was not innocent and it was that purpose or state of mind which brought him within the definition of "loitering" in s. 179(1)(b).
The appeal before Melvin J. was argued on the basis that the trial judge was correct to find violations of ss. 7 and 11( d ) of the Charter . On this basis, he accepted that s. 179(1)(b) violated ss. 7 and 11( d ) of the Charter . However, after reviewing the expert evidence he was satisfied that s. 179(1)(b) was justified under s. 1 of the Charter . He stated, at p. 63, that:
The objective, namely, the controlling of the impulses of potential reoffenders and the protection of the public, is of great importance and clearly justifies overriding a constitutionally protected right or freedom, such as found in s. 7 or s. 11( d ) of the Charter . When one considers the means chosen under those circumstances, if the section contains an evil or malevolent intent as a component to be demonstrated by the evidence led on behalf of the [appellant], then the proportionality test in R. v. Oakes is satisfied as the measures are designed to achieve their objective and are rationally connected with that objective and have little impairment of the rights or freedom in question.
As a result of his conclusions he dismissed the respondent's appeal.
Court of Appeal (1992), 77 C.C.C. (3d) 502
Hutcheon J.A., Rowles J.A. concurring
In the Court of Appeal the Crown accepted the trial judge's finding that the provisions of s. 179(1)(b) violated ss. 7 and 11( d ) of the Charter . Hutcheon J.A. proceeded on this basis and as a result dealt only with the question as to whether the section was saved by s. 1 of the Charter . He concluded that it was not.
Hutcheon J.A. carefully reviewed the jurisprudence pertaining to the word "loiter" and determined that there was no support for the position that the word implies an evil or malevolent intent. He wrote at p. 509:
I cannot find any support in those authorities for the proposition that the word "loiter" implies an evil or malevolent intent or purpose or an untoward or improper motive. Moreover, I question whether the taking of the photographs would qualify as an evil or malevolent intent. To be a criminal offence under the Criminal Code , the intent must be directed toward the corruption of others, not oneself.
He observed that the objectives of s. 179(1)(b) were to control the impulses of potential re‑offenders and to protect the public. However, he found at p. 511 that the lack of a provision for notice in s. 179(1)(b) caused the means chosen to achieve the objectives of s. 179(1)(b) "to be unfair and not carefully designed to achieve the two objectives". Thus, they were not justified under s. 1. Hutcheon J.A. stated that the Crown could not invoke s. 19 of the Code since s. 179(1)(b) was not a provision applicable to everyone. He concluded, at p. 511, that:
Our system of criminal justice could not operate if accused persons could raise the defence that they did not know it was contrary to the law to steal or to assault someone or to defraud. But if the fundamental liberty of movement of a particular group, convicted sexual offenders, is to be controlled, proper notice of the prohibition to the members of that group is an essential element of the control. Because of lack of a provision for notice I have concluded that s. 179(1)(b) is inconsistent with the Constitution, in the words of s. 52, and is of no force and effect. Section 179(1)(b) is not the law of which one could be ignorant.
In other words, s. 19 has no application if no offence has been committed and that is the result in this case of declaring s. 179(1)(b) to be of no force or effect. Nothing of s. 179(1)(b) is left to be saved by s. 19.
Southin J.A. (concurring)
Southin J.A. agreed with Hutcheon and Rowles JJ.A. that the word "loiter" did not imply any evil or malevolent intent. She then considered whether s. 179(1)(b) violated either ss. 7 or 11( d ) of the Charter . She found that the section did not violate s. 11(d) because the Crown had to prove the prior conviction and that the accused was "loitering" at one of the prohibited places.
Southin J.A. was of the view at p. 523 that Parliament, in the exercise of the authority conferred by s. 91(27) of the Constitution Act, 1867 , could "attach new disabilities to persons convicted of a crime". Southin J.A. stated that, although s. 179(1)(b) did not expressly say that a person convicted of a sexual crime could not go to certain places, she was proceeding on the basis that it was a form of prohibition. She found that a measure imposing a disability has aspects of both punishment and prevention. She noted that the purpose of s. 179(1)(b) was to protect young persons from sexual attacks.
Southin J. approached the question of whether s. 7 was violated by making commendable use of analogy to case law under s. 12 with respect to minimum sentences. She considered whether s. 179(1)(b) was grossly disproportionate to its purpose, and whether it was necessary to achieve a valid criminal law purpose. In her opinion although the purpose of the section was valid, the means were not proportional. She found that the deprivation of liberty in s. 179(1)(b) was not in accordance with the principles of fundamental justice because it is for life, and there is no avenue of review to relieve those covered by the section in whole or in part from the disability. She was not satisfied that the s. 7 breach due to the lack of a review process could be justified under s. 1.
Constitutional Questions
On October 18, 1993 the Chief Justice stated the following constitutional questions:
1.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C‑46 , limit the right of the respondent to life, liberty and security of the person as guaranteed by s. 7 of the Charter ?
2.If the answer to question 1 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
3.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C‑46 , limit the right of the respondent to be presumed innocent until proven guilty according to law as guaranteed by s. 11( d ) of the Charter ?
4.If the answer to question 3 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
5.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C‑46 , limit the right of the respondent not to be subjected to any cruel and unusual treatment or punishment as guaranteed by s. 12 of the Charter ?
6.If the answer to question 5 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
7.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C‑46 , limit the right of the respondent not to be arbitrarily detained or imprisoned as guaranteed by s. 9 of the Charter ?
8.If the answer to question 7 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
9.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C‑46 , limit the right of the respondent, if finally found guilty and punished for the offence, not to be tried or punished for it again, as guaranteed by s. 11( h ) of the Charter ?
10.If the answer to question 9 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
Analysis
I. Legislative History of Section 179(1)(b)
A review of the history of the vagrancy sections can be found in the decision of the Ontario Court of Appeal in R. v. Munroe (1983), 5 C.C.C. (3d) 217. The offence of vagrancy was codified in ss. 207 and 208 of the 1892 Criminal Code , although its history dates back to the Middle Ages in England: See Ledwith v. Roberts, [1937] 1 K.B. 232 (C.A.), at p. 271. Section 207 of the Criminal Code, S.C. 1892, c. 29, provided:
207. Every one is a loose, idle or disorderly person or vagrant who ‑‑
(a.) not having any visible means of maintaining himself lives without employment;
(b.) being able to work and thereby or by other means to maintain himself and family wilfully refuses or neglects to do so;
(c.) openly exposes or exhibits in any street, road, highway or public place, any indecent exhibition;
(d.) without a certificate signed, within six months, by a priest, clergyman or minister of the Gospel, or two justices of the peace, residing in the municipality where the alms are being asked, that he or she is a deserving object of charity, wanders about and begs, or goes about from door to door, or places himself or herself in any street, highway, passage or public place to beg or receive alms;
(e.) loiters on any street, road, highway or public place, and obstructs passengers by standing across the footpath, or by using insulting language, or in any other way;
(f.) causes a disturbance in or near any street, road, highway or public place, by screaming, swearing or singing, or by being drunk, or by impeding or incommoding peaceable passengers;
(g.) by discharging firearms, or by riotous or disorderly conduct in any street or highway, wantonly disturbs the peace and quiet of the inmates of any dwelling‑house near such street or highway;
(h.) tears down or defaces signs, breaks windows, or doors or door plates, or the walls of houses, roads or gardens, or destroys fences;
(i.) being a common prostitute or night walker, wanders in the fields, public streets or highways, lanes or places of public meeting or gathering of people, and does not give a satisfactory account of herself;
(j.) is a keeper or inmate of a disorderly house, bawdy-house or house of ill‑fame, or house for the resort of prostitutes;
(k.) is in the habit of frequenting such houses and does not give a satisfactory account of himself or herself; or
(l.) having no peaceable profession or calling to maintain himself by, for the most part supports himself by gaming or crime, or by the avails of prostitution.
Section 208 provided:
208. Every loose, idle or disorderly person or vagrant is liable, on summary conviction before two justices of the peace, to a fine not exceeding fifty dollars or to imprisonment, with or without hard labour, for any term not exceeding six months, or to both.
Historically, the essence of the offence of vagrancy was that of being a loose, idle or disorderly person or vagrant, rather than the doing of any of the specific acts referred to in the vagrancy provisions. The vagrancy provisions remained virtually unchanged until the 1950s. The predecessor to s. 179(1)(b) was added to the vagrancy offences in S.C. 1951, c. 47, s. 13. This section provided that everyone is a loose, idle or disorderly person or vagrant who:
238. . . .
(k) having at any time been convicted of an offence under paragraph (a) of section two hundred and ninety‑two, section two hundred and ninety‑three, subsection one or two of section three hundred and one, or section three hundred and two, is found loitering or wandering in or near a school ground or playground or public park or public bathing area.
In the 1953‑54 Criminal Code (S.C. 1953‑54, c. 51 ) the vagrancy provisions were restructured so that the focus shifted from being a vagrant to doing the acts prohibited by the section. However, it is significant that the acts prohibited were still primarily related to the status of the accused rather than the nature of the acts themselves. Section 164(1) of the 1953‑54 Code provided:
164. (1) Every one commits vagrancy who
(a)not having any apparent means of support is found wandering abroad or trespassing and does not, when required, justify his presence in the place where he is found;
(b)begs from door to door or in a public place;
(c)being a common prostitute or night walker is found in a public place and does not, when required, give a good account of herself;
(d)supports himself in whole or in part by gaming or crime and has no lawful profession or calling by which to maintain himself; or
(e)having at any time been convicted of an offence under a provision mentioned in paragraph (a) or (b) of subsection (1) of section 661, is found loitering or wandering in or near a school ground, playground, public park or bathing area.
Section 164(1)(e), which eventually became the present s. 179(1)(b), has been amended since that time to conform to changes in the numbering of the predicate offences in the Code, and in the definitions of sexual offences in the Code. However, it has not changed in substance.
II. How Should the Word "Loiter" be Defined in Section 179(1)(b)?
The appellant submits that the word "loiter" in s. 179(1)(b) should be interpreted as requiring a malevolent intent while the respondent takes the position that "loiter" should be given its ordinary meaning.
When a statutory provision is to be interpreted the word or words in question should be considered in the context in which they are used, and read in a manner which is consistent with the purpose of the provision and the intention of the legislature: Elmer A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; R. v. Hasselwander, [1993] 2 S.C.R. 398. If the ordinary meaning of the words is consistent with the context in which the words are used and with the object of the act, then that is the interpretation which should govern.
What then is the ordinary meaning of the word "loiter"? The Oxford English Dictionary (2nd ed. 1989), defines "loiter" in this manner:
loiter . . .
1. . . . a. In early use: To idle, waste one's time in idleness. Now only with more specific meaning: To linger indolently on the way when sent on an errand or when making a journey; to linger idly about a place; to waste time when engaged in some particular task, to dawdle. Freq. in legal phr. to loiter with intent (to commit a felony).
Similarly, Black's Law Dictionary (5th ed. 1979), defines "loiter" as follows:
To be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to spend time idly; to saunter; to delay; to idle; to linger; to lag behind.
It is significant that these definitions are essentially the same as those Constable German provided to the respondent on June 16, 1989. None of these definitions requires a malevolent intent or makes any reference to such a requirement.
Cases which have considered the meaning of "loiter" in other sections of the Code support the use of the ordinary meaning of "loiter" in s. 179(1)(b). In R. v. Munroe, supra, the Ontario Court of Appeal considered the meaning of "loiter" in what was then s. 171(1) (c) of the Criminal Code (now s. 175(1)(c)). That section makes it an offence to loiter in a public place and in any way obstruct persons who are in that place. The Ontario Court of Appeal gave "loiter" its ordinary dictionary meaning of "hanging idly about a place". It further held that if a person has some purpose for "hanging idly about" such as waiting for a spouse, then he or she cannot be said to be idling. The decision in Munroe was followed by the Ontario Court of Appeal in R. v. Gauvin (1984), 11 C.C.C. (3d) 229, at p. 232.
The same definition of "loiter" has been applied to s. 177 of the Code. That section like its predecessor makes it an offence to loiter or prowl by night near a dwelling house on the property of another person without a lawful excuse. In R. v. Andsten and Petrie (1960), 33 C.R. 213 (B.C.C.A.), Davey J.A., writing for the court, held at p. 215 that "`hanging around' well expresses what is meant by `loiters' as used in s. 162 [now s. 177]".
In R. v. Lozowchuk (1984), 32 Sask. R. 51 (Q.B.), Geatros J., after considering Munroe, supra, and Andsten, supra, concluded at p. 54: "I find nothing in Code s. 173 to suggest that `loiter' is to be construed other than in its ordinary and natural meaning". A similar definition was endorsed by the Quebec Court of Appeal in R. v. Cloutier (M.) (1991), 51 Q.A.C. 143, 66 C.C.C. (3d) 149. Chevalier J.A. writing for the court held at p. 147 Q.A.C. and at pp. 154‑55 C.C.C.:
[translation] I will also not undertake to repeat here the definitions supported by dictionaries, given in several judgments that I previously quoted, of the English terms "loitering" and "prowling". Their French equivalents "flâner" and "rôder" reflect the same notions in respect of the attitudes or acts involved. Other than mere dictionary definitions, and as confirmation of their correctness, the average person who hears these two words immediately knows the difference. And, for him, it is of great importance.
In the loiterer, he sees an individual who is wandering about, apparently without precise destination, who does not have, in his manner of moving, a purpose or reason to do so other than to pass the time, who is not looking for anything identifiable and who often is merely motivated by the whim of the moment. The dictionnaire des synonymes Bordas (1988), p. 424 gives the following as synonyms for the verb "to wander, stroll, to go for a jaunt, saunter, bum about, dawdle, dillydally, hang about, and so on". In short, it is conduct which essentially has nothing reprehensible about it if, as required by s. 173, it does not take place on private property where, in principle, a loiterer has no business.
See also R. v. Willis (1987), 37 C.C.C. (3d) 184 (B.C. Co. Ct.).
Thus, where it is used in other sections of the Code, the word "loiter" has been given its ordinary dictionary definition.
The United States Supreme Court has also interpreted vagrancy statutes as not requiring proof of any special intent or malevolence in order to convict. In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the court held that a municipal vagrancy law was void for vagueness. In discussing the application of the vagrancy law, Douglas J., writing for the court, held that the law did not require a specific intent to commit an unlawful act. He wrote at p. 163: "The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent".
The ordinary definition of "loiter" is also consistent with the purpose of s. 179(1)(b). The section is aimed at protecting children from becoming victims of sexual offences. This is apparent from the places to which the prohibition of loitering applies. School grounds, playgrounds, public parks and public bathing areas are typically places where children are likely to congregate. The purpose of the prohibition on loitering is to keep people who are likely to pose a risk to children away from places where they are likely to be found. Prohibiting any prolonged attendance in these areas, which is what the ordinary definition of "loiter" does, achieves this goal.
Furthermore, the concept of malevolent intent favoured by the appellant (as opposed to a narrower formula such as unlawful intent, which the appellant does not endorse) raises problems of definition which make it unworkable. The Oxford English Dictionary defines "malevolent" as a person ". . . Desirous of evil to others; entertaining, actuated by, or indicative of ill‑will; disposed or addicted to ill‑will". These definitions make it apparent that it is a concept of very broad scope that is extremely difficult to define. Malevolent intent could mean almost anything, and its definition would be dependent upon the subjective views of the particular judge trying the case.
The appellant and the Attorney General of Canada argue that the legislative debates surrounding the passage of the section in 1951, and again when it was reconsidered in 1986‑87 provide support for the proposition that "loiter" in s. 179(1)(b) includes the notion of some sort of malevolent intent. In my opinion this argument is not well founded. The admissibility of legislative debates to determine legislative intent in statutory construction is doubtful: Drieger, supra, at pp. 156‑58; Pierre‑André Côté, The Interpretation of Legislation in Canada (2nd ed. 1992), at pp. 353‑67. This Court has repeatedly held that legislative history is not admissible as proof of legislative intent in the construction of statutes: Gosselin v. The King (1903), 33 S.C.R. 255, at pp. 264‑68, per Taschereau C.J.; Attorney General of Canada v. The Reader's Digest Association (Canada) Ltd., [1961] S.C.R. 775; R. v. Popovic and Askov, [1976] 2 S.C.R. 308, at p. 318; Highway Victims Indemnity Fund v. Gagné, [1977] 1 S.C.R. 785, at p. 792.
It is apparent that legislative history may be admissible for the more general purpose of showing the mischief Parliament was attempting to remedy with the legislation: Toronto Railway Co. v. The Queen (1894), 4 Ex. C.R. 262, at pp. 270‑71; Lyons v. The Queen, [1984] 2 S.C.R. 633, at pp. 683‑84. Additionally, more flexible rules apply in the admission of legislative history in constitutional cases. In those cases the legislative history will not be used to interpret the enactments themselves, but to appreciate their constitutional validity: Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Schneider v. The Queen, [1982] 2 S.C.R. 112; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; PSAC v. Canada, [1987] 1 S.C.R. 424; and R. v. Whyte, [1988] 2 S.C.R. 3. Legislative history is also admissible in Charter cases to help interpret its provisions: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 506‑9.
Nonetheless there are persuasive reasons advanced which support the position that legislative history or debates are inadmissible as proof of legislative intent in statutory construction. Many of these same reasons are also put forward to demonstrate that such materials should be given little weight even in those cases where they are admitted. The main problem with the use of legislative history is its reliability. First, the intent of particular members of Parliament is not the same as the intent of the Parliament as a whole. Thus, it may be said that the corporate will of the legislature is only found in the text of provisions which are passed into law. Second, the political nature of Parliamentary debates brings into question the reliability of the statements made. Different members of the legislature may have different purposes in putting forward their positions. That is to say the statements of a member made in the heat of debate or in committee hearings may not reflect even that member's position at the time of the final vote on the legislation.
Despite the apparent merits of the rule that legislative history is inadmissible to determine legislative intent in statutory construction, this Court has on occasion made use of such materials for this very purpose: see R. v. Vasil, [1981] 1 S.C.R. 469, at p. 487, and Paul v. The Queen, [1982] 1 S.C.R. 621.
However, it is not necessary in this case to determine the admissibility of the debates for the purpose of determining legislative intent. The debates concerning s. 179(1)(b) are inconclusive with regard to the meaning of loitering. In both the 1951 debates (Hansard, June 25, 1951 at pp. 4664‑66) and the 1986‑87 debates (Legislative Committee Minutes, November 27, 1986 at p. 1:46; December 11, 1986 at pp. 3:24‑3:25; December 18, 1986 at pp. 6:18‑6:19; February 5, 1987 at pp. 8:29‑8:30; February 17, 1987 at pp. 9:70‑9:75; March 17, 1987 at pp. 10:27‑10:31) different members of Parliament applied different meanings to the word "loiter". Some used it to mean simply "hanging around", while others attached to it the connotation of lurking or the concept of not being able to give a good account of oneself. Thus, even if the debates were held to be admissible, they are of no assistance in determining the meaning that Parliament intended to be given to the word "loiter" in s. 179(1)(b).
Thus, the word "loiter" in s. 179(1)(b) should be given its ordinary meaning, namely to stand idly around, hang around, linger, tarry, saunter, delay, dawdle, etc. This is consistent with the meaning given to the word as used elsewhere in the Code, and with the context and purpose of s. 179(1)(b).
III. Section 7 of the Charter
There can be no question that s. 179(1)(b) restricts the liberty of those to whom it applies. Indeed, the appellant made no argument to the contrary. The section prohibits convicted sex offenders from attending (except perhaps to quickly walk through on their way to another location) at school grounds, playgrounds, public parks or bathing areas ‑‑ places where the rest of the public is free to roam. The breach of this prohibition is punishable on summary conviction and, as this case demonstrates, imprisonment is the consequence.
The question this Court must decide is whether this restriction on liberty is in accordance with the principles of fundamental justice. The respondent conceded in oral argument that a prohibition for the purpose of protecting the public does not per se infringe the principles of fundamental justice. R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 327‑34, held that the indeterminate detention of a dangerous offender, the purpose of which was the protection of the public, did not per se violate s. 7. In light of that decision this concession was appropriate. If indeterminate detention in order to protect the public does not per se violate s. 7, then it follows the imposition of a lesser limit on liberty for the same purpose will not in itself constitute a violation of s. 7. The question, then, is whether some other aspect of the prohibition contained in s. 179(1)(b) violates the principles of fundamental justice. In my opinion it does. It applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review. It restricts liberty far more than is necessary to accomplish its goal.
A. Overbreadth
This Court considered the issue of overbreadth as a principle of fundamental justice in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. Writing for the Court, Gonthier J. discussed the relationship between overbreadth and vagueness at pp. 627‑31. After looking at the notion of overbreadth in American constitutional law, he wrote at pp. 629‑31:
This Court has repeatedly emphasized the numerous differences which exist between the Charter and the American Constitution. In particular, in the interpretation of s. 2 of the Charter , this Court has taken a route completely different from that of U.S. courts. In cases starting with Irwin Toy up to Butler, including the Prostitution Reference and Keegstra, this Court has given a wide ambit to the freedoms guaranteed by s. 2 of the Charter , on the basis that balancing between the objectives of the State and the violation of a right or freedom should occur at the s. 1 stage. Other sections of the Charter , such as ss. 7 and 8 , do however incorporate some element of balancing, as a limitation within the definition of the protected right, with respect to other notions such as principles of fundamental justice or reasonableness.
A notion tied to balancing such as overbreadth finds its proper place in sections of the Charter which involve a balancing process. Consequently, I cannot but agree with the opinion expressed by L'Heureux‑Dubé J. in Committee for the Commonwealth of Canada that overbreadth is subsumed under the "minimal impairment branch" of the Oakes test, under s. 1 of the Charter . This is also in accordance with the trend evidenced in Osborne and Butler. Furthermore, in determining whether s. 12 of the Charter has been infringed, for instance, a court if it finds the punishment not grossly disproportionate for the accused, will typically examine reasonable hypotheses and assess whether the punishment is grossly disproportionate in these situations (R. v. Smith, [1987] 1 S.C.R. 1045, and R. v. Goltz, [1991] 3 S.C.R. 485). This inquiry also resembles the sort of balancing process associated with the notion of overbreadth.
In all these cases, however, overbreadth remains no more than an analytical tool. The alleged overbreadth is always related to some limitation under the Charter . It is always established by comparing the ambit of the provision touching upon a protected right with such concepts as the objectives of the State, the principles of fundamental justice, the proportionality of punishment or the reasonableness of searches and seizures, to name a few. There is no such thing as overbreadth in the abstract. Overbreadth has no autonomous value under the Charter . As will be seen below, overbreadth is not at the heart of this case, although it has been invoked in argument.
The relationship between vagueness and "overbreadth" was well expounded by the Ontario Court of Appeal in this oft‑quoted passage from R. v. Zundel (1987), 58 O.R. (2d) 129, at pp. 157‑58:
Vagueness and overbreadth are two concepts. They can be applied separately, or they may be closely interrelated. The intended effect of a statute may be perfectly clear and thus not vague, and yet its application may be overly broad. Alternatively, as an example of the two concepts being closely interrelated, the wording of a statute may be so vague that its effect is considered to be overbroad.
I agree. A vague law may also constitute an excessive impairment of Charter rights under the Oakes test. This Court recognized this, when it mentioned the two aspects of vagueness under s. 1 of the Charter , in Osborne and Butler.
For the sake of clarity, I would prefer to reserve the term "vagueness" for the most serious degree of vagueness, where a law is so vague as not to constitute a "limit prescribed by law" under s. 1 in limine. The other aspect of vagueness, being an instance of overbreadth, should be considered as such.
Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. As the Ontario Court of Appeal observed in R. v. Zundel (1987), 58 O.R. (2d) 129, at pp. 157‑58, cited with approval by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, supra, the meaning of a law may be unambiguous and thus the law will not be vague; however, it may still be overly broad. Where a law is vague, it may also be overly broad, to the extent that the ambit of its application is difficult to define. Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective.
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.
Reviewing legislation for overbreadth as a principle of fundamental justice is simply an example of the balancing of the State interest against that of the individual. This type of balancing has been approved by this Court: see Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, per Sopinka J., at pp. 592‑95; R. v. Jones, [1986] 2 S.C.R. 284, per La Forest J., at p. 298; R. v. Lyons, supra, per La Forest J., at pp. 327‑29; R. v. Beare, [1988] 2 S.C.R. 387, at pp. 402‑3; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 538‑39; and Cunningham v. Canada, [1993] 2 S.C.R. 143, at pp. 151‑53. However, where an independent principle of fundamental justice is violated, such as the requirement of mens rea for penal liability, or of the right to natural justice, any balancing of the public interest must take place under s. 1 of the Charter : Re B.C. Motor Vehicle Act, supra, at p. 517; R. v. Swain, [1991] 1 S.C.R. 933, at p. 977.
In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. While the courts have a constitutional duty to ensure that legislation conforms with the Charter , legislatures must have the power to make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator. It is true that s. 7 of the Charter has a wide scope. This was stressed by Lamer J. (as he then was) in Re B.C. Motor Vehicles Act, supra, at p. 502. There he observed:
Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice.
However, before it can be found that an enactment is so broad that it infringes s. 7 of the Charter , it must be clear that the legislation infringes life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.
The purpose of s. 179(1)(b) is to protect children from becoming victims of sexual offences. This is apparent from the prohibition which applies to places where children are very likely to be found. In determining whether s. 179(1)(b) is overly broad and not in accordance with the principles of fundamental justice, it must be determined whether the means chosen to accomplish this objective are reasonably tailored to effect this purpose. In those situations where legislation limits the liberty of an individual in order to protect the public, that limitation should not go beyond what is necessary to accomplish that goal. In Cunningham v. Canada, supra, at p. 153, McLachlin J. held that changes to the Parole Act which adversely affected the liberty of prisoners were in accordance with the principles of fundamental justice because "the prisoner's liberty interest is limited only to the extent that this is shown to be necessary for the protection of the public".
In my opinion, s. 179(1)(b) suffers from overbreadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice.
i. Overbreadth in Geographical Ambit
The section is overly broad in its geographical ambit. It applies not only to school grounds and playgrounds, but also to all public parks and bathing areas. Its application to schools and playgrounds is appropriate, as these are the very places children are likely to congregate. But its application to all public parks and bathing areas is overly broad because not all such places are places where children are likely to be found. Public parks include the vast and remote wilderness parks. Bathing areas would include all the lakes in Canada with public beaches. Prohibiting individuals from loitering in all places in all parks is a significant limit on freedom of movement. Parks are places which are specifically designed to foster relaxation, indolent contemplation and strolling; in fact it may be assumed that "hanging around" and "idling" is encouraged in parks. The overly broad scope of this section was remarked upon by Maughan B.C. Prov. Ct. J. in R. v. Graf (1988), 42 C.R.R. 146, in which she found that what was at the time s. 175 (now s. 179(1)(b)) of the Criminal Code violated the Charter . She wrote at p. 150:
The wording of s. 175 makes a person such as Mr. Graf, the accused, a person in a permanent state of exile within his community who is, because of his status, absolutely prohibited from standing idly in vast areas of this country. Mr. Graf, because of his status, does not have the liberty of movement and locomotion to go where other citizens are entitled to go and in the same manner as they are entitled to do. He is, for example, banned for life from standing idly about Stanley Park, including the aquarium and the zoo area, Lost Lagoon, the playing fields, the beaches and the entertainment area. Similarly are included Queen Elizabeth Park, English Bay, the Planetarium, Vanier Park, the endowment lands at the University of British Columbia, the Courthouse gardens, Jericho Beach, Spanish Banks, Kitsilano Park, the Sky Train greenbelt, the multitude of small city parks, Manning Park, the marine parks in the province, waterfront parks, Cleveland Dam, Capilano Hatchery, Mount Seymour ski area, Lynn Valley Park, Lynn Canyon Park and all beaches, lake and rivers in Canada capable of being used by people for bathing.
If the particular park or part of the park or bathing area is not a place frequented by children, the object of protecting children is not enhanced by limiting the individual's freedom. In my opinion, such a limit should be more narrowly defined, to apply only to those parks and bathing areas where children can reasonably be expected to be present.
ii.Overbreadth by the Life‑Time Prohibition Without a Review Process
Section 179(1)(b) is also overly broad in another aspect. It applies for life, with no possibility of review. The absence of review means that a person who has ceased to be a danger to children (or who indeed never was a danger to children), is subject to the prohibition in s. 179(1)(b). In R. v. Lyons, supra, La Forest J., writing for the Court on this issue, held that the fact that a review process existed was essential to the finding that indeterminate sentences under the dangerous offender provisions did not violate s. 12. La Forest J. wrote at p. 341:
In my opinion, if the sentence imposed under Part XXI was indeterminate, simpliciter, it would be certain, at least occasionally, to result in sentences grossly disproportionate to what individual offenders deserved. However, I believe that the parole process saves the legislation from being successfully challenged under s. 12, for it ensures that incarceration is imposed for only as long as the circumstances of the individual case require.
Thus the imposition of an indeterminate sentence upon dangerous offenders in the absence of a review procedure would constitute a cruel and unusual punishment and violate the principles of fundamental justice. It follows that there must be some review available for the prohibition in s. 179(1)(b) if it is to accord with the principles of fundamental justice. Admittedly, the prohibition in s. 179(1)(b) is a lesser infringement of liberty than the indeterminate detention of a dangerous offender. Yet, it is still a very significant limit on an individual's freedom of movement. Attendance at the places listed in s. 179(1)(b) has not as a rule been regulated in Canada, and still is not regulated for the general public who have not committed sex offences. In passing I would observe that a different conclusion regarding the need for a review might have been reached if the prohibition was in respect of a regulated activity such as driving or the possession of firearms.
The appellant and the Attorney General of Canada argued that the availability of a pardon under the Criminal Records Act , as amended, or the royal prerogative of mercy, meet any concerns about the need for review. In my opinion they do not. It is true that a pardon or the exercise of the royal prerogative of mercy would (subject to any conditions) vacate the conviction and remove the disqualification that resulted from the conviction: s. 5 (b) of the Criminal Records Act ; s. 749(3) of the Code; Clayton C. Ruby, Sentencing (3rd ed. 1987), at pp. 108‑9. However, there are limits to the availability of pardons which make it inadequate and insufficient as a substitute for the review of the prohibition in s. 179(1)(b). For example, the conditions for granting pardons are not necessarily related to the dangerousness of the individual. A person who is not a danger to children may be denied a pardon. Under the Criminal Records Act , an individual may not apply for a pardon until five years after the completion of sentence in the case of an indictable offence, and three years after the completion of sentence in the case of a summary conviction offence: see s. 4 of the Criminal Records Act . As the prohibition applies to all persons convicted of the listed offences, there are individuals who will not be dangerous yet will, during the time they cannot apply for a pardon, still be subject to s. 179(1)(b).
A more serious problem is presented by the conditions which must be met in order to obtain a pardon. A person convicted of an indictable offence may only obtain a pardon if he has been "of good behaviour", and has not been convicted of an offence under federal legislation: s. 4.1(1) of the Criminal Records Act . A sex offender who has not committed any further sexual offences, and is not considered a danger to re‑offend, would not be eligible for a pardon if he was considered not to have been of good behaviour in a manner completely unrelated to sexual offences. Even if the conditions are met, in the case of indictable offences a pardon is still discretionary. In the case of a person convicted of a summary conviction offence, a pardon is mandatory if the person has not been convicted of any offence under federal legislation: s. 4.1(2) of the Criminal Records Act . However, a person who was no longer a danger, but who had committed an unrelated driving offence would not be eligible for a pardon. With respect to the royal prerogative of mercy, its use is exceptional: National Parole Board, Pardon Decision Policies, Annex: The Royal Prerogative of Mercy (June 1993). Neither the availability of a pardon nor the royal prerogative of mercy can constitute an acceptable review process.
iii.Overbreadth as to the People to Whom Section 179(1)(b) Applies
Section 179(1)(b) is overly broad in respect to the people to whom it applies. It applies to all persons convicted of the listed offences, without regard to whether they constitute a danger to children. This approach is contrary to the position taken by this Court in earlier decisions. In R. v. Swain, supra, the detention of all persons found not guilty by reason of insanity was found to be arbitrary because it was based on the overly inclusive assumption that all such persons were still dangerous at the time of sentencing: see pp. 1009, 1011‑13. Similarly, in R. v. Lyons, supra, the necessity of showing that an individual was likely to be a danger in the future was one of the features which saved the legislation from violating s. 12 of the Charter (at p. 338). It is difficult to accept that a person who had sexually assaulted an adult fifteen years earlier with no subsequent offences should be assumed to still be a threat to children.
This Court has approved the use of reasonable hypotheses in determining whether legislation violates s. 12 of the Charter : R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485. I think the same process may properly be undertaken in determining the constitutionality of s. 179(1)(b). The effect of the section is that it could be applied to a man convicted at age 18 of sexual assault of an adult woman who was known to him in a situation aggravated by his consumption of alcohol. Even if that man never committed another offence, and was not considered to be a danger to children, at the age of 65 he would still be banned from attending, for all but the shortest length of time, a public park anywhere in Canada. The limitation on liberty in s. 179(1)(b) is simply much broader than is necessary to accomplish its laudable objective of protecting children from becoming victims of sexual offences.
A new s. 161 was passed following the decision of the British Columbia Court of Appeal in this case and is set out later in these reasons. It is significant and telling that the new section only applies to persons who have committed the listed offences in respect of a person who is under the age of 14 years. In addition, under the new section, the order is discretionary, so that only those offenders who constitute a danger to children will be subject to a prohibition. I would add that in certain circumstances, legislative provisions for notice and for review of the prohibition may reduce the significance of the factor of overbreadth in the application of one impugned provision. It is noteworthy that the new s. 161 provides for both notice and review of the prohibition. These provisions are absent in s. 179(1)(b).
iv. Absence of Notice
There is another aspect in which the section offends the principles of fundamental justice. As Hutcheon J.A. observed, there is no provision for notice to be given to a person convicted of a predicate offence of his potential liability for breaching s. 179(1)(b). As he points out, great care is taken to give notice in connection with other provisions of the Code. For example, the prohibition against ownership, custody or control of a firearm under s. 100 must be made part of the sentencing proceeding following a conviction for the indictable offence involving violence. Notice must also be given of the prohibition of operating a motor vehicle, vessel or aircraft pursuant to s. 260. Similarly notice must be given of the terms of a probation order. The lack of a notice requirement for s. 179(1)(b) is unfair and unnecessarily so. It demonstrates that the section by the absence of a requirement of notice violates s. 7.
In summary, s. 179(1)(b) is overly broad to an extent that it violates the right to liberty proclaimed by s. 7 of the Charter for a number of reasons. First, it is overly broad in its geographical scope embracing as it does all public parks and beaches no matter how remote and devoid of children they may be. Secondly, it is overly broad in its temporal aspect with the prohibition applying for life without any process for review. Thirdly, it is too broad in the number of persons it encompasses. Fourth, the prohibitions are put in place and may be enforced without any notice to the accused.
I am strengthened in this conclusion by a consideration of the new s. 161 of the Criminal Code , S.C. 1993, c. 45, s. 1, which was enacted shortly after the decision of the British Columbia Court of Appeal in this case. The section provides:
161. (1) Where an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 736, of an offence under section 151, 152, 155 or 159, subsection 160(2) or (3) or section 170, 171, 271, 272 or 273, in respect of a person who is under the age of fourteen years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from
(a) attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; or
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of fourteen years.
(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of
(a) the date on which the order is made; and
(b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release.
(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
It can be seen that this section is limited to clearly defined geographical areas where children are or can reasonably be expected to be present. Further, the prohibition may be for life or a shorter period and a system of review is provided. Additionally, the order of prohibition is made part of the sentencing procedure so that the accused is aware of and notified of the prohibitions. It is thus apparent that overly broad provisions are not essential or necessary in order to achieve the aim of s. 179(1)(b).
The violation of s. 7 of the Charter is thus established. It is now necessary to consider whether the section may be saved by the provisions of s. 1 of the Charter .
IV. Section 1 of the Charter
This Court has expressed doubt about whether a violation of the right to life, liberty or security of the person which is not in accordance with the principles of fundamental justice can ever be justified, except perhaps in times of war or national emergencies: Re B.C. Motor Vehicle Act, supra, at p. 518. In a case where the violation of the principles of fundamental justice is as a result of overbreadth, it is even more difficult to see how the limit can be justified. Overbroad legislation which infringes s. 7 of the Charter would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis.
The objective of s. 179(1)(b) is certainly pressing and substantial. The protection of children from sexual offences is obviously very important to society. Furthermore, at least in some of their applications, the means employed in s. 179(1)(b) are rationally connected to the objective. However, for the same reasons that s. 179(1)(b) is overly broad, it fails the minimal impairment branch of the s. 1 analysis. The new s. 161 is a good example of legislation which is much more carefully and narrowly fashioned to achieve the same objective as s. 179(1)(b). Section 179(1)(b) cannot be justified under s. 1 of the Charter .
V. Remedy
Counsel for the appellant argued that even if s. 179(1) (b) of the Criminal Code is so overbroad as to result in a violation of s. 7 which cannot be saved by s. 1, rather than striking the section down in its entirety, the section should be read down so as to come within constitutional limits. In my opinion reading down is not appropriate in this case. The changes which would be required to make s. 179(1)(b) constitutional would not constitute reading down or reading in; rather, they would amount to judicial rewriting of the legislation.
This Court considered the application of flexible remedial alternatives under s. 52 of the Constitution Act, 1982 such as reading in and reading down in Schachter v. Canada, [1992] 2 S.C.R. 679. Lamer C.J., writing for himself and four other members of the Court, held that reading in or reading down will only be warranted where: (i) the legislative objective is obvious, and reading in or reading down would constitute a lesser intrusion on that objective than striking down the legislation; (ii) the choice of means used by the legislature is not so unequivocal that reading in or reading down would unacceptably intrude into the legislative sphere; and (iii) reading in or reading down would not impact on budgetary decisions to such an extent that it would change the nature of the legislation at issue.
Reading in or reading down in this case would create an entirely new scheme. Parliament chose unequivocal means in s. 179(1)(b), namely, a prohibition on loitering for all persons convicted of the listed offences in all school grounds, playgrounds, public parks and bathing areas, for life, with no possibility of review. The changes required to make the section comply with s. 7 of the Charter would constitute a completely different approach to the problem, and would amount to an unwarranted intrusion into the legislative domain. Any changes required to be made over and above the provisions of the new s. 161 should be made by Parliament.
Disposition
The constitutional questions are, therefore, answered as follows:
1.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C‑46 , limit the right of the respondent to life, liberty and security of the person as guaranteed by s. 7 of the Charter ?
A. Yes.
2.If the answer to question 1 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
A. No.
In view of the answers to the first two constitutional questions, it is unnecessary to answer the other constitutional questions. The appeal is dismissed.
The reasons of La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
Gonthier J. -- I have read the opinion of Justice Cory and, with all due respect, find I am unable to agree. The central issue in this case concerns the interpretation of s. 179(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 . By giving the word "loiter" its ordinary meaning, Cory J. would interpret the provision as prohibiting lingering, tarrying, standing idly around, sauntering, delaying, dawdling, etc. in the enumerated areas. This interpretation leads him to conclude that the prohibition created by s. 179(1)(b) violates s. 7 of the Canadian Charter of Rights and Freedoms and is not saved by s. 1 because it is overbroad in terms of the persons, places and time period to which it applies and because notice to the accused is not required. In my view, however, s. 179(1)(b) should be interpreted as prohibiting the persons affected from being in one of the enumerated places for a malevolent or ulterior purpose related to the predicate offences. My reasons for favouring this interpretation are drawn from the purpose and legislative history of s. 179(1)(b) as well as precedent and statutory context. The first two parts of my reasons are devoted to these points. In the third part, I examine the constitutionality of this interpretation.
A. The legislative history and purpose of s. 179(1) (b) of the Criminal Code
Section 179(1)(b) makes it an offence for persons who have been convicted of certain enumerated offences to loiter "in or near a school ground, playground, public park or bathing area". The enumerated offences are:
. sexual interference, sexual touching or sexual exploitation of a person under 14 (ss. 151, 152 and 153 respectively);
. bestiality in the presence of a person under 14 (s. 160(3));
. sexual exposure to a person under 14 (s. 173(2));
. the sexual assault provisions (ss. 271, 272, 273); and
. the "serious personal injury offences" identified in s. 687 as it read before January 4, 1983 (rape, attempted rape, sexual intercourse with a female under fourteen or between fourteen and sixteen, indecent assault on a female or male and gross indecency).
Clearly a wide range of offenders are affected, in part because of the inclusion of the general sexual assault provisions and their antecedents. The central interpretive question relates to the scope of the prohibition. Guidance in answering this question can be taken from an examination of the legislative history of the section and an analysis of its purpose.
Though the prohibition of "vagrancy" in the common law world dates from at least the fourteenth century, s. 179(1)(b) of the Code was only added in 1951 (S.C. 1951, c. 47, s. 13). Excerpts from the parliamentary debates prior to the adoption of the offence aid in identifying the mischief which the offence was aimed at and its intended scope:
Mr. Garson: ... The British Columbia section of the Canadian Bar Association made the suggestion. I think they were actuated in making it by several rather nasty cases that had arisen in which, as my hon. friend knows is often the case, children were the victims of these sex perverts. They thought that by keeping them away from the places indicated in this section the purpose they had in mind might be served.
...
Mr. Fleming: ... If a man is listening to a band concert and behaves himself I do not think anyone will say he is loitering or wandering about. It seems to me a very sound idea that people with records like that who are found in these public areas loitering or wandering about should be liable to conviction on a charge of vagrancy. It is not any more serious than that, but I am sure it will give more effective opportunity to keep such people moving out of such places.
(House of Commons Debates, June 25, 1951, at pp. 4664 and 4666.)
These two passages demonstrate an intention to keep sex offenders away from places frequented by children, but not to prohibit them totally from the enumerated areas. As with legislative debates generally, the above passages are not determinative. They are, however, properly part of the evidence which a court may consider to identify the purpose of a statutory provision (see R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 744-45, per Dickson C.J. for the majority).
Turning to the legislative history of s. 179(1)(b), it should be noted that the original provision enacted in 1951 prohibited persons convicted of the enumerated offences from loitering or wandering in the same areas now listed in s. 179(1)(b). In 1985, after the reports of the Badgley and Fraser Commissions, the provision was kept, but amended to remove the word "wander". This specific deletion would indicate that the word "loiter" was considered by Parliament to have a different meaning from "wander". Indeed, the word "wander" is somewhat broader than "loiter". "Wander" merely connotes movement without specific destination; "loiter" has a variable connotation according to the context, though these connotations share the common element of idleness. The Oxford English Dictionary (2nd ed. 1989), defines "wander" in the following general terms:
wander ...
1.a. ... To move hither and thither without fixed course or certain aim; to be (in motion) without control or direction; to roam, ramble, go idly or restlessly about; to have no fixed abode or station.
...
e. To go or take one's way casually or without predetermined route; to go to a place by a devious and leisurely course; to stroll, saunter.
The word "loiter", by contrast, is defined more narrowly:
loiter ...
1. ... a. In early use: To idle, waste one's time in idleness. Now only with more specific meaning: To linger indolently on the way when sent on an errand or when making a journey; to linger idly about a place; to waste time when engaged in some particular task, to dawdle. Freq. in legal phr. to loiter with intent (to commit a felony).
Other evidence before the trial judge which is of assistance in understanding the purpose and scope of s. 179(1)(b) is the testimony of the psychiatric and psychological experts called on behalf of the Crown. Filmer Prov. Ct. J. summarized a crucial portion of this evidence in the following terms:
... the root cause of sexual offending is difficult to diagnose and treat. It involves a mechanism wherein sexual stimulation is found and relieved in various ways but usually in a fairly predictable cycle. The cycle involves an increasing need to be stimulated and is usually marked by an ever-increasing need to be near the object of arousal. To treat this drive, the subject must be disassociated from the objects, such as children, which may arouse. This separation is paramount in treatment. In many cases treatment is a lifelong endeavour.
A portion of the evidence of Dr. Semrau, a psychiatrist, more fully explains some of these points:
... one does not speak of curing sexual offenders and ‑- and particularly so of pedophiles. The ‑- one can hope to bring their offending tendency under some degree of control, but treatment has to involve a very long-term relapse prevention sort of component and so this kind of restriction is ‑- is a critical part of that because perhaps an analogy could be made with that of an alcoholic, [the example was of an alcoholic going into a bar thinking it would not kill him. Such a person, however, is at perpetual risk of slipping into alcoholism again] but the same sort of analogy can be made that once one has engaged in some such behaviour it ‑- it starts you on a slippery slope towards reoffending.
So that sort of provision in the Criminal Code is entirely compatible with, and in keeping with, and supportive of, the basic principles of treatment of sexual offenders.
The psychiatrist stated that offenders will often believe that their conduct is perfectly lawful; however, in reality they will be "on a slippery slope towards reoffending". He stressed that it is an important part of treatment to help offenders to recognize that such conduct, though normally lawful for everyone else, is not benign in their case but rather is part of the cycle of re-offending.
In addition to the possibility that the risk of re-offending may be perpetual and that disassociation aids treatment, there was also considerable evidence before the trial judge on the issue of crossover. Crossover refers to the situation where a sexual offender commits a different type of offence when she/he re-offends. An example of such crossover would be where a person convicted of a sexual assault against an adult later molests a child. Both Dr. Semrau and Dr. Glackman made reference to the work of Dr. Abel. Dr. Abel was described as one of "half a dozen top experts in the world in the area of sexual offenders". Contrary to conventional wisdom, Dr. Abel discovered that there is extensive cross-offending so that a given offender is likely to be involved in a variety of different activities throughout a lifetime. Dr. Semrau summarized the implications of this research in the following terms: "So that there is ‑- there's, in fact, a large crossover from one category to another. A sexual offender convicted of a particular offence must be viewed also, in general, as having a substantial risk for all of the other kinds of sexual offences as well". The current state of knowledge therefore suggests that a person who demonstrates one form of sexually deviant behaviour may present a more general risk.
It is hard to deny that there will be individual cases where the risk of crossover or the risk of re-offending will not be present, but as both Dr. Semrau and Dr. Glackman stressed it is impossible, given the current state of knowledge, to identify such persons with any certainty. Dr. Semrau explained the problem in this way:
Again, for some individuals it may not be important, but given our lack of ability to get people to be honest with us or, indeed, we have no ‑‑ we have some psychological and psychiatric testing and assessment methods which give us some clues to what an individual's tendencies are but it's very easy, given our current methods, for offenders to grossly mislead us with regard to what their tendencies are. Anyone who's worked in this area has had many painful experiences of finding that ‑- that, despite perhaps a lot of experience, that they are ‑- that they were woefully naive in believing people, and so we don't have the ability to separate out which, let's say adult female rapists, are going to be at risk for molesting children and which aren't. We know that a substantial proportion will, but we don't have any method of reliably identifying which of those individuals are at the highest risk for such behaviour, and so it certainly would be appropriate for all sexual offenders to ‑- to avoid those kinds of high risk situations.
Later he reiterated a similar sense of frustration:
Again though, one can never be fully satisfied in any situation as to being able to relax the restrictions necessary. I've had more cases than I would like to think of in which an individual who seemed to be of the most benign sort and to be well treated and the problem seemed to be thoroughly dealt with, and ‑- and I really felt inclined to relax about the particular offender where, you know, some horrendous thing comes out of the blue.
So, I mean, our ‑- our ability to ‑- to be certain that one can relax surveillance or restrictions on a particular individual is not very good at this point in history. Our methods of assessing sexual offenders are relatively crude and we ‑- the best therapists in this area frequently get nasty surprises in which they ‑- they realize that they have been naive. We don't have very good methods of being able to make accurate predictions about what will happen with an individual, so one can speak in relative terms of individuals who have lesser or greater risk and where restrictive conditions are more or less necessary or appropriate, but it ‑- one would never encounter a situation in which you could say that you could totally relax and completely omit any concern about a future problem.
(See also the evidence of Dr. Glackman.)
The concerns with regard to crossover and the potentially perpetual nature of the risk of re-offending contributed to the conclusion of both Dr. Glackman and Dr. Semrau that a person who was convicted of a "date rape" type sexual assault offence or a random sexual assault offence involving physical contact would be a person who should be subject to the kind of prohibition contained in s. 179(1)(b). The evidence on cross-offending and the difficulty of predicting who will cross-offend or repeat offend would thus seem to justify some form of restriction on the liberty of persons convicted of sexual offences given our current state of knowledge.
Taking the above as a whole, the objectives embodied in the s. 179(1)(b) prohibition are relatively clear. The courts below have unanimously recognized that the section has at its foundation a concern for public safety and a desire to aid in the treatment and rehabilitation of offenders. I agree and would stress that the provision applies broadly to all persons convicted of the enumerated offences and therefore provides protection not only to children but also to others who could be victims of sexual assault in the listed areas. These areas, it should be remembered, are places where people will generally lower their guard.
The above, though, does not allow us to identify as easily the specific conduct prohibited. The identified objectives are clearly achieved, and perhaps most efficiently, by the broad interpretation of the prohibition adopted by Cory J. A less intrusive interpretation which prohibits the persons affected from being in one of the enumerated places for a malevolent or ulterior purpose related to the predicate offences, however, is also consistent with the objectives. The more narrow interpretation would go beyond a mere "attempts" offence. It would preserve the preventive aspect of the section by allowing the state to deal with activities that are part of the cycle of re-offending, such as taking photos, which can be proven to reflect a malevolent or ulterior purpose related to the predicate offences. At the same time, this interpretation would allow the affected persons to use the listed areas for the legitimate purposes for which they were intended.
The deletion of "wandering" and the use of the word "loitering" as opposed to simply "attending at" or some other formulation can be seen as reflecting a concern to limit the scope of the prohibition. Portions of the legislative debates which I have noted above can also be invoked in this regard. My conclusion to adopt the less intrusive interpretation, however, is supported by the case law interpreting offences defined in terms of loitering as well as the statutory context in which s. 179(1)(b) is situated.
B.Case Law Interpreting the Word "Loiter" and the Statutory Context of Section 179(1)(b)
As Cory J. has noted, at p. 789, the ordinary or usual dictionary meaning of loiter is "to stand idly around, hang around, linger, tarry, saunter, delay, dawdle, etc." There is no suggestion in this definition that the term includes an evil or malevolent purpose. The dictionary definition of the French term "flâner" is similar.
The Canadian case law interpreting the word "loiter" deals primarily with ss. 175(1)(c) and 177 of the Code:
175. (1) Every one who
...
(c) loiters in a public place and in any way obstructs persons who are in that place, ...
is guilty of an offence punishable on summary conviction.
177. Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.
As will be seen, the interpretation given to "loiter" in relation to these sections, though generally involving some part of the ordinary meaning of the word, has not been exactly the same in all cases.
In R. v. Munroe (1983), 5 C.C.C. (3d) 217, per Cory J.A., as he then was, and in R. v. Gauvin (1984), 11 C.C.C. (3d) 229, the Ontario Court of Appeal gave loiter its ordinary meaning in the context of s. 175(1)(c): idly hanging about. Munroe dealt with a woman suspected of being a prostitute, while Gauvin concerned a man who insisted upon taking a seat reserved for others at a political meeting. In both cases the court refused to convict the accused persons on the basis that their activities were purposeful. Purposeful activity was held to be the antithesis of idleness.
In terms of prohibited physical activity, loiter has been given a similar meaning in the context of s. 177. In R. v. Cloutier (M.) (1991), 51 Q.A.C. 143, 66 C.C.C. (3d) 149, the Quebec Court of Appeal also gave loiter its ordinary dictionary meaning and noted the absence of purpose as a defining element. In distinguishing loiter from prowl ("flâner" from "rôder"), the court underlined the "innocent" nature of loiter as compared to prowl. The court wrote, at pp. 147-48 Q.A.C. and at pp. 154-55 C.C.C., respectively:
[translation] In the loiterer, he sees an individual who is wandering about, apparently without precise destination, who does not have, in his manner of moving, a purpose or reason to do so other than to pass the time, who is not looking for anything identifiable and who often is merely motivated by the whim of the moment.... In short, it is conduct which essentially has nothing reprehensible about it if, as required by s. [177], it does not take place on private property where, in principle, a loiterer has no business.
Opposite to this, for the average person, "prowl" inspires a pejorative reaction. The verb includes a notion of evil; it depreciates in his eyes the person who is involved in the action that it represents.
Similarly, in R. v. Lozowchuk (1984), 32 Sask. R. 51 (Q.B.), Geatros J. held that the accused could not be convicted of loitering within the terms of s. 177 because, in going to his girlfriend's home late one evening, he had a definite purpose in mind.
The interpretation of s. 177, however, has not been entirely consistent. In at least one case, a Court of Appeal has departed from the interpretation that the offence is defined by the absence of purpose associated with idleness. In R. v. Andsten and Petrie (1960), 33 C.R. 213, the British Columbia Court of Appeal upheld the convictions of two private detectives who had been snooping around the complainant's house looking for evidence which would be relevant to divorce proceedings. The court concluded that "hanging around" expressed what was meant by loiter in s. 177. The existence or absence of a purpose was held to be irrelevant to the question of whether a person is loitering within the terms of s. 177 (ibid., at p. 214). Davey J.A., perhaps foreseeing the difficulties presented by the different uses of the word loiter in the Code, was careful to stress that the court's discussion of the meaning of loiter was restricted to issues involving invasion of private property.
In my view, the case law summarized above suggests that the term "loiter" will vary to some extent according to its context. Ascribing an absence of purpose may make sense in terms of s. 175; however, as at least Andsten and Petrie, supra, clearly demonstrated, it may not be applicable under s. 177. Similarly, the absence of purpose element in the ordinary meaning of loiter can have no application in the context of s. 179(1)(b). Clearly Parliament intended to include conduct of convicted sex offenders whose purpose was related to re-offending.
My suggestion that the meaning of loiter will vary according to the specific statutory context is merely an illustration of a caveat to the general rule that words be given their ordinary meaning. Pierre-André Côté expressed this caveat in The Interpretation of Legislation in Canada (2nd ed. 1992), at p. 221 (as quoted below), citing Laskin C.J., in Attorney General for Ontario v. Regional Municipality of Peel, [1979] 2 S.C.R. 1134, at p. 1145:
The need to determine the word's meaning within the context of the statute remains. Dictionaries provide meanings for a number of standard and recurring situations. Even the best of them will only tersely indicate the context in which a particular meaning is used. The range of meanings in a dictionary is necessarily limited. It cannot be sufficiently repeated "how much context and purpose relate to meaning".
An illustration of this basic principle in relation to the word loiter and of the nuances which arise from context is found in a recent decision of the Judicial Committee of the Privy Council, Attorney-General of Hong Kong v. Sham Chuen, [1986] 1 A.C. 887.
In Sham Chuen, the Privy Council considered s. 160(1) of the Hong Kong Crimes Ordinance. Section 160(1) made it an offence to loiter in a public place or in the common parts of any building unless the person was able to give a satisfactory account of her/his presence. The crucial portions of the Privy Council's reasoning as to the scope of the offence are contained in a single rather long paragraph. For ease of discussion, I have broken the paragraph (at pp. 895-96) into two parts.
A considerable amount of argument before the Board was directed to the meaning of "loitering" in section 160(1). Given that the acceptable dictionary meaning of the word was simply "lingering", three possible constructions of the word in its present context were suggested. These were (i) any lingering; (ii) lingering with no apparent purpose at all; and (iii) lingering in circumstances which suggest an unlawful purpose.... Reference was made at some length to the legislative history of this particular enactment and of similar enactments in other Commonwealth jurisdictions, as well as to a number of reported decisions on the interpretation of such enactments. In their Lordships' opinion no helpful guidance is to be obtained from any of them. The word is to be construed in the light of the context in which it appears in this particular enactment.
My review of the Canadian case law summarized above supports the Privy Council's suggestion that the task of ascertaining the specific meaning of "loiter" and therefore of the offence of which loiter is an element in any given case will not always be eased by referring to the interpretation of other enactments. Rather, as I have suggested and as the Privy Council concluded, a contextual approach attuned to the particular enactment is more apposite. The Privy Council's contextual interpretation of s. 160(1), however, is of some assistance to the interpretive question now before this Court. The Privy Council wrote, at p. 896:
Subsections (2) and (3) of section 160 are each concerned with loitering of a particular character, the first being loitering which causes an obstruction and the second being loitering which causes reasonable concern to a person for his safety or well-being. In their Lordships' opinion subsection (1) is also concerned with loitering of a particular character, namely loitering which calls for a satisfactory account of the loiterer and a satisfactory explanation for his presence. Obviously a person may loiter for a great variety of reasons, some entirely innocent and others not so. It would be unreasonable to construe the subsection to the effect that there might be subjected to questioning persons loitering for plainly inoffensive purposes, such as a tourist admiring the surrounding architecture. The subsection impliedly authorises the putting of questions to the loiterer, whether by a police officer or by any ordinary citizen. The putting of questions is intrusive, and the legislation cannot be taken to have contemplated that this would be done in the absence of some circumstances which make it appropriate in the interests of public order. So their Lordships conclude that the loitering aimed at by the subsection is loitering in circumstances which reasonably suggest that its purpose is other than innocent.
Despite the absence of any sort of charter of rights and freedoms in Hong Kong, the Privy Council concluded that the legislation should be given a circumscribed interpretation so that "innocent" loitering was not subject to criminal sanction. The Privy Council's decision demonstrates that the word "loiter" on its own may create an offence which is excessively intrusive. Generally, this has been the chief problem identified in regard to vagrancy or loitering provisions (see the discussion contained in the decision of the United States Supreme Court in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)). As the decision in Sham Chuen, supra, demonstrates, however, such excessive intrusiveness can and should be avoided where it would be consistent with the statutory context.
As stated at the outset, I am of the view that the prohibition contained in s. 179(1)(b) should be narrowed to render the prohibition less intrusive and to tailor it more carefully to the objectives being pursued. Just as in Sham Chuen, supra, not all loitering should be caught by the prohibition contained in s. 179(1)(b). Rather, the intrusion into the activities of individuals should be tied to some reason of public order. The three provisions in which loiter is used in our Code suggest a structure with some parallels to the situation in Hong Kong. In each case, it is loitering of a particular character which is being prohibited. Section 175(1)(c) deals with loitering which causes an obstruction. Section 177 pertains to loitering at night on the property of another without lawful excuse. In this context, s. 179(1)(b) prohibits loitering related to the enumerated sexual offences. The enumerated offences thus qualify the word "loiter" and limit the otherwise broad scope of the prohibition.
I draw additional support for narrowing the scope of the prohibition created by s. 179(1)(b) from the opinion of a distinguished commentator of the Code. In the 1962 edition of his treatise, Droit pénal canadien, Irénée Lagarde explained the antecedent version of s. 179(1)(b) as follows, at p. 224:
[translation] [Persons who have been convicted of one of the enumerated offences] may not "loiter" or "prowl" near (1) a school, (2) a playground, (3) a public park or (4) a public beach. Like anyone else such a person is entitled to sit on a bench in a public park, to bathe at a public beach and to be found near a school or playground. The legislature is prohibiting not his or her presence but "loitering" or "prowling". What are we to understand by these terms? It seems to me that they mean a presence which tends to indicate a probable guilty intent and which by its persistence might reasonably suggest that the accused has the intention of sexually attacking children or adults. In other words, the legislature prohibits him or her from hanging about near a schoolyard, public beach or playground without any specific purpose. In a public park, the accused may relax peacefully but without "watching", "being on the lookout for" or "abnormally observing" persons who might become his or her victims. The particular circumstances of the case will determine whether or not there was "loitering". [Emphasis in original.]
While I do not entirely agree with Lagarde's description of the offence, his concern to exclude from the criminal prohibition presence in the enumerated areas for legitimate purposes would appear to be well founded. I also support the suggestion that the restriction created by s. 179(1)(b) will not be the same in each of the listed areas. While it may be perfectly legitimate to rest in a public park with no other apparent purpose, the same cannot be said for hanging around a school yard. An application of the section which is not sensitive to these points will create a prohibition which is more intrusive than necessary.
Additional support for the interpretation I would give to s. 179(1)(b) is found when the section is analyzed in conjunction with ss. 161 and 810.1. Sections 161 and 810.1 were enacted by Parliament following the decision of the British Columbia Court of Appeal in this case. Section 161 allows a court at the time of sentencing to make an order prohibiting a sexual offender from attending at day care centres, school grounds, playgrounds, community centres, or any public park or swimming area where persons under the age of 14 years are present or can reasonably by expected to be present. The section relies on a similar list of offences to that contained in s. 179(1)(b), but the s. 161 prohibition is available only in relation to persons who have committed offences against children under the age of 14. The prohibition may be for life or any shorter duration and the court which makes the order can vary it at any time on application of the offender or the prosecutor. This provision is thus a powerful means of enhancing public safety and aiding offender treatment. Section 161 though does not apply to sex offenders convicted prior to its enactment.
Sections 179(1)(b) and 810.1 read together, however, produce a similar result to that achieved by s. 161 in relation to those convicted prior to the enactment of s. 161. Section 810.1 allows any person who has reasonable grounds to fear that another person will commit one of a number of sexual offences to appear before a provincial court judge and seek an order prohibiting the person in question from attending areas where children under 14 are likely to be present. This procedure, while eventually achieving the same result as s. 161, would obviously require the expenditure of significant time and energy before a prohibition could be ordered. The interpretation I would give to s. 179(1)(b) allows it to serve as a useful means for law enforcement officers to take immediate preventive steps when a person who has been convicted of one of the enumerated sexual offences is in one of the listed areas and demonstrates an ulterior or malevolent purpose related to the predicate offences. In short, the provision allows the police to intervene before a previous offender re-offends. In such cases, s. 810.1 would then be available to subject the offender to a prohibition similar to s. 161 if it can be shown that there are reasonable grounds to fear that the person will commit one of the predicate offences specified in s. 161. Satisfying the requirements of s. 179(1)(b) and demonstrating that the accused had a malevolent or ulterior purpose related to one of the predicate offences would no doubt help to satisfy the reasonable grounds requirement in s. 810.1. An excessively broad view of the prohibition contained in s. 179(1)(b) would destroy this symmetry.
My review of the legislative history, purpose and context of s. 179(1)(b) thus leads to the conclusion that the offence should be interpreted as lingering or hanging about the enumerated areas for a malevolent or ulterior purpose related to any of the predicate offences. This interpretation is suggested by the terms of the offence and general desire to limit the intrusiveness of the prohibition while still achieving the objectives of public safety and offender treatment. As will be seen in the next section, this interpretation is also consistent with the Charter .
C. Section 179(1)(b) and Its Conformity with the Charter
The two primary Charter concerns raised by s. 179(1)(b) pertain to vagueness and overbreadth. The interpretation of the provision adopted by Filmer Prov. Ct. J. and Melvin J., requiring proof of an "untoward or improper motive", is arguably unconstitutionally vague. Cory J.'s broader interpretation of s. 179(1)(b) eliminates any vagueness problem, but, in his view, leads to a prohibition which is unjustifiably overbroad. The interpretation I have adopted avoids both these problems.
As discussed in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 643, a provision which is unconstitutionally vague provides an intolerable level of prosecutorial discretion and fails to give those subject to the provision notice of its content. Put in its most simplistic form, what is prohibited will be what those charged with law enforcement decide at any given moment should be prohibited. Interpreting s. 179(1)(b) to prohibit lingering with an "untoward or improper motive" would arguably be an example of an unconstitutionally vague restriction on liberty. "Untoward or improper motive" gives little basis for legal debate within the terms of Nova Scotia Pharmaceutical Society. It is difficult to identify the factors to be considered or the determinative elements in ascertaining whether a motive is untoward or improper. The United States Supreme Court made a similar suggestion in Papachristou v. City of Jacksonville, supra, at p. 164. Qualifying malevolent or ulterior purposes by reference to the predicate offences, however, eliminates any concerns as to vagueness. The enumerated offences provide a clear basis for legal debate and narrow the scope of potential liability. The persons affected would thus have notice of what is prohibited and prosecutorial discretion would be sufficiently restricted.
Cory J., however, suggests that the prohibition created by s. 179(1)(b) is overbroad in terms of the persons, places and time period to which it applies. I express no opinion on the soundness of this analysis of liberty because it is not necessary in this case to decide the issue. The interpretation I advocate eliminates Cory J.'s concern that the prohibition is overbroad. A lifetime prohibition of activities with a malevolent or ulterior purpose related to re-offending is in no way objectionable or overbroad. Such a prohibition would impose a restriction on the liberty of the affected individuals to which ordinary citizens are not subject, but that restriction is directly related to preventing re-offending. The affected persons' history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re-offending justify what is in effect a minor intrusion which does not breach the principles of fundamental justice.
That restraint of the affected persons' liberty is minor and easily illustrated. As noted above, use of public parks for the legitimate purposes for which they are intended would not be caught. Furthermore, though trite, it must be remembered that the Crown will bear the burden of proving all elements of the offence beyond a reasonable doubt. This burden guarantees that only loitering which can be proven to be related to one of the predicate offences will be subject to the criminal prohibition. I recognize that this formulation of the offence will likely lead to certain evidentiary presumptions which, absent a satisfactory explanation, may cause a judge to draw an adverse inference. Take for example a person with a history of offences in relation to children who is observed hanging around a playground and offering children candy. Similarly, as discussed above, just lingering about a school yard with no apparent purpose, as distinct from a public park, would give rise to legitimate suspicions. Such presumptions, however, in no way reverse the burden of proof, nor do they violate the accused's right to silence.
One of the most obvious objections to the more narrow formulation is that it is potentially less efficient than the alternatives in terms of achieving the legislative objective. As I noted above, a broad prohibition preventing certain persons from even attending at areas where the risk of re-offending is high may be a superior way to achieve the objectives of public safety and offender treatment. As Cory J. convincingly demonstrates, however, for such a broad prohibition to be constitutional, it would probably have to be accompanied by the same kind of guarantees present in the new s. 161. It is well beyond the proper scope of the judicial role to contemplate such extensive additions in this case.
In addition to overbreadth, the absence of any notice of the prohibition contained in s. 179(1)(b) was relied upon by Cory J. in concluding that s. 7 of the Charter was violated. The basis for this conclusion was that notice is provided for in the case of certain other prohibitions contained in the Code and that the lack of notice in the case of s. 179(1)(b) "is unfair and unnecessarily so". In so concluding, Cory J. would make notice, albeit in limited circumstances, a principle of fundamental justice. With all due respect, I cannot agree. It is a basic tenet of our legal system that ignorance of the law is not an excuse for breaking the law. This fundamental principle has been given legislative expression in s. 19 of the Criminal Code : "Ignorance of the law by a person who commits an offence is not an excuse for committing that offence." Though formal notice of the content of s. 179(1)(b) might be preferable, I can see no basis for transforming the legislator's decision to provide notice in respect of certain Code prohibitions into a principle of fundamental justice.
For his part and in addition to s. 7, the respondent alleges that s. 179(1)(b) violates ss. 9 , 11( d ) , (h) and 12 of the Charter . These allegations are without foundation and can be dismissed summarily.
Section 9 of the Charter provides a guarantee against being arbitrarily detained or imprisoned. The respondent's argument that any detention or imprisonment pursuant to s. 179(1)(b) would be arbitrary related largely to his objection to the absence of notice. As I have stated, the absence of notice does not provide a basis for attacking the validity of s. 179(1)(b). The reasoning set out above applies with equal force to the respondent's arguments in respect of s. 9 of the Charter .
Section 11( d ) of the Charter enshrines the right to be presumed innocent until proven guilty. The respondent argues that s. 179(1)(b) presumes that an offender will re-offend and therefore violates the presumption of innocence. In reality, the provision does not assume recidivism, but rather provides the means to prevent it when convicted sex offenders demonstrate, through their conduct, a malevolent intent related to re-offending. Furthermore as I stressed above, anyone charged under s. 179(1)(b) will be presumed innocent and the burden remains on the Crown to prove beyond a reasonable doubt that the accused committed the offence as interpreted.
Section 11(h) protects a person found guilty and punished for an offence from being tried or punished again for the same offence. The class of persons to whom s. 179(1)(b) applies is identified by the fact of having been convicted of one of the enumerated offences. Any conviction under that section, however, will be based on violating its terms and not of having been convicted of one of the enumerated offences. Section 11(h) is therefore not violated.
Finally, the s. 12 guarantee against cruel and unusual treatment or punishment is also of no avail to the respondent. Even if the respondent could demonstrate that he is subject to a punishment or treatment within the meaning of s. 12, which I doubt, it is clear that any such punishment or treatment is not cruel and unusual. A punishment or treatment will only be cruel and unusual where it is "so excessive as to outrage standards of decency" or where its effect is "grossly disproportionate to what would have been appropriate" (see R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 499). As explained above in the context of my discussion of s. 7 of the Charter , the lifetime prohibition of activities with a malevolent or ulterior purpose related to re-offending is both a minor and justifiable restraint of the affected persons' liberty. In the circumstances, neither the prohibition created by s. 179(1)(b) nor any punishment which would result from its infringement can be said to be grossly disproportionate to what would be appropriate or so excessive as to outrage the standards of decency.
Prohibiting lingering or hanging about the enumerated areas for a malevolent or ulterior purpose related to one of the predicate offences thus survives Charter scrutiny. The predicate offences provide an ample basis for limiting prosecutorial discretion and giving guidance as to what is prohibited to those affected. Furthermore, prohibiting only conduct which can be demonstrated to be part of the cycle of re-offending carefully balances the objectives of public safety and offender treatment with a desire to limit the intrusiveness of the prohibition.
D. Disposition
For the foregoing reasons, s. 179(1)(b) of the Code should be interpreted as prohibiting lingering or hanging about the enumerated areas for a malevolent or ulterior purpose related to any of the predicate offences. Based on this interpretation the constitutional questions are, therefore, answered as follows:
1.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , limit the right of the respondent to life, liberty and security of the person as guaranteed by s. 7 of the Charter ?
A. No.
3.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , limit the right of the respondent to be presumed innocent until proven guilty according to law as guaranteed by s. 11( d ) of the Charter ?
A. No.
5.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , limit the right of the respondent not to be subjected to any cruel and unusual treatment or punishment as guaranteed by s. 12 of the Charter ?
A. No.
7.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , limit the right of the respondent not to be arbitrarily detained or imprisoned as guaranteed by s. 9 of the Charter ?
A. No.
9.Does s. 179(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , limit the right of the respondent, if finally found guilty and punished for the offence, not to be tried or punished for it again, as guaranteed by s. 11( h ) of the Charter ?
A. No.
Given the negative answers to questions 1, 3, 5, 7 and 9, it is unnecessary to answer questions 2, 4, 6, 8 and 10.
In this case, the evidence demonstrated beyond any doubt that the accused had a malevolent purpose related to the predicate offences. I would therefore allow the appeal and restore the accused's conviction.
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