R. v. Corbeil, [1991] 1 SCR 830

R. v. Corbeil, [1991] 1 S.C.R. 830

 

Her Majesty The Queen                             Appellant

 

v.

 

Chantal Linda Corbeil                             Respondent

 

indexed as:  r. v. corbeil

 

File No.:  21897.

 

1991:  January 31; 1991:  April 18.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Cory and           Stevenson JJ.

 

on appeal from the court of appeal for quebec

 

                   Criminal law ‑‑ Keeping common bawdy‑house ‑‑ Elements of offence ‑‑ Accused participating in illicit activities of common bawdy‑house ‑‑ Whether element of care and management of premises required for conviction of accused for keeping common bawdy‑house ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 197(1) , 210(1) , (2) .

 

                   The accused, a masseuse, was charged with keeping a common bawdy‑house contrary to s. 210(1)  of the Criminal Code .  She was found in a massage parlour which offers its clients a one‑half hour massage "from neck to ankles" for $60.  At the option of the client, the massage would include manual masturbation.  The evidence at trial indicated that the accused worked at the massage parlour several days a week.  Each masseuse was responsible for greeting clients in the reception area, and either taking them to a cubicle or contacting the masseuse of the client's choice.  She would record the arrival and departure of her clients.  The $60 fee was collected by the masseuse, who then turned over half of the fee to the owner of the establishment.  The last masseuse to add money to the owner's cash box at the end of each day would count the money to ensure that the total amount received coincided with the number of clients logged in the register.  The accused was convicted at trial but the majority of the Court of Appeal allowed her appeal and entered a verdict of acquittal.  This appeal is to determine whether the existence of an element of care and management of the premises is necessary to ground a conviction for keeping a common bawdy‑house contrary to s. 210(1) of the Code.

 

                   Held (L'Heureux‑Dubé J. dissenting):  The appeal should be dismissed.

 

                   Per Lamer C.J. and La Forest, Cory and Stevenson JJ.:  A person who satisfies the definition of "keeper" in s. 197(1) of the Code does not necessarily "keep" a common bawdy‑house for the purposes of s. 210(1).  In order to come within the offence of keeping a common bawdy‑house, it is necessary: (1) that the accused have some degree of control over the care and management of the premises, and (2) that the accused participate to some extent in the "illicit" activities of the common bawdy‑house.  The element of participation does not require personal participation in the sexual acts which occur in the common bawdy‑house; it is sufficient that the accused participate in the use of the house as a common bawdy‑house.  In this case, the required element of "care and management" of the premises was not present.

 

                   Per L'Heureux-Dubé J. (dissenting):  An element of control over the care and management of the premises is not necessary to ground a conviction for keeping a common bawdy-house.  The definition of a "keeper" in s. 197(1) of the Code includes a person who simply "uses a place permanently or temporarily, with or without the consent of the owner or occupier thereof".  A proper reading of the wording of s. 210(1) of the Code, in conjunction with the expansive definition of "keeper" in s. 197(1), the legislative history of the provisions, and the case law, requires only proof of a "degree of active participation in the operation" of the bawdy-house to ground a finding of guilt for the offence in s. 210(1).

 

                   This test accommodates the range of conduct exhibited in different bawdy-house situations, from the ongoing operation of the classic brothel, to persons using a parking lot as a common bawdy-house.  This approach also ensures that each and every offence described in s. 210 is separate and distinct, and that the difference severity of the penalties in subs. (1) and (2) is properly reflected.  The requirement of proof of a degree of control over the care and management of the common bawdy-house would mean that the conduct of some persons actually participating in the daily operation of a common bawdy-house as a business or going concern would fall outside the scope of s. 210(1).  This is conduct which the section was intended to cover.

 

                   In this case, the trial judge made no error in entering a conviction.  The accused fell squarely within the definition of "keeper" in s. 197(1).  The evidence clearly demonstrates that the accused was an active participant in the operation of the bawdy-house, and engaged in tasks beyond being an "inmate" on the premises or a cog in the operation.

 

Cases Cited

 

By Lamer C.J.

 

                   Referred to:  R. v. Kerim, [1963] S.C.R. 124; R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123.

 

By L'Heureux‑Dubé J. (dissenting)

 

                   R. v. Kerim, [1963] S.C.R. 124; R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388; R. v. McLellan (1980), 55 C.C.C. (2d) 543; R. v. Mannix (1905), 10 C.C.C. 150; R. v. Smith (1908), 12 O.W.R. 80; R. v. Miket (1938), 53 B.C.R. 37; R. v. Richards (1938), 70 C.C.C. 105; R. v. Cohen, [1939] S.C.R. 212; R. v. Sorvari (1937), 69 C.C.C. 281; Perron v. The Queen (1954), 110 C.C.C. 197; R. v. Mark (1924), 43 C.C.C. 368; Wilson v. The Queen, [1953] Que. Q.B. 424; R. v. Marin (1937), 68 C.C.C. 245; R. v. Sokol (1949), 95 C.C.C. 360; R. v. Girone and Genoe (1953), 106 C.C.C. 33; R. v. Eakins (1943), 79 C.C.C. 256; R. v. Smith and Bird (1951), 102 C.C.C. 126; Lewis v. The King (1949), 97 C.C.C. 268; R. v. Rubenstein, [1960] O.R. 133; Rockert v. The Queen, [1978] 2 S.C.R. 704; R. v. Woszczyna; R. v. Soucy (1983), 6 C.C.C. (3d) 221; R. v. Karavasilis (1980), 54 C.C.C. (2d) 530; Theirlynck v. The King, [1931] S.C.R. 478; Patterson v. The Queen, [1968] S.C.R. 157; R. v. Sorko, [1969] 4 C.C.C. 241.

 

Statutes and Regulations Cited

 

Act respecting Vagrants, S.C. 1869, c. 28.

 

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 173(1) (a) [am. c. 19 (3rd Supp.), s. 7], 197(1) "common bawdy‑house", "keeper", 210(1), (2), 212(1)(a), 213(1) [rep. & sub. c. 51 (1st Supp.), s. 1], 693(1)(a) [am. c. 27 (1st Supp.), s. 140].

 

Criminal Code, S.C. 1953‑54, c. 51, s. 168(1)(h)(v).

 

Criminal Code , R.S.C. 1927, c. 36, s. 229 [rep. & sub. S.C. 1947, c. 55, s. 4].

 

Criminal Code, R.S.C. 1906, c. 146, s. 225 [rep. & sub. 1907, c. 8, s. 2; rep. & sub. 1917, c. 14, s. 3].

 

Criminal Code, 1892, S.C. 1892, c. 29, ss. 195, 198, 207, 208.

 

Disorderly Houses Act (U.K.), 25 Geo. 2, c. 36, s. VIII.

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1990] R.J.Q. 963, 57 C.C.C. (3d) 554, allowing the accused's appeal from his conviction on a charge of keeping a common bawdy‑house.  Appeal dismissed, L'Heureux‑Dubé J. dissenting.

 

                   Éric Simard and Jean‑Pierre Proulx, for the appellant.

 

                   Michel Ferland, for the respondent.

 

//Lamer C.J.//

 

                   The judgment of Lamer C.J. and La Forest, Cory and Stevenson was delivered by

 

                   Lamer C.J. -- I am of the view that the appeal should be dismissed and I am largely in agreement with the reasons of Fish J.A. in the Quebec Court of Appeal, [1990] R.J.Q. 963, 57 C.C.C. (3d) 554.

 

                   It is important to keep in mind that the Crown's appeal is brought, as of right, under s. 693(1) (a) of the Criminal Code , R.S.C., 1985, c. C-46 .  Consequently, the only issue which is properly before this Court is the question of law upon which Tourigny J.A. dissented in the Court of Appeal.  The point of dissent in the Court of Appeal was whether the existence of an element of care and management is necessary to ground a conviction for keeping a common bawdy-house, contrary to s. 210(1) of the Code.  I agree with the reasons of Fish J.A., and respectfully disagree with the dissenting reasons of Tourigny J.A., to the extent that I have concluded that mere participation in the "illicit" activities of a common bawdy-house is not sufficient to ground a conviction for keeping a common bawdy-house.

 

                   I agree with Fish J.A. that a person who satisfies the definition of "keeper", contained in s. 197(1), does not necessarily "keep" a common bawdy-house for the purposes of s. 210(1).  I agree with Fish J.A. that while this may seem incongruous at first glance, it would be even more incongruous to interpret "keeps" in s. 210(1) in such a way that the "lesser" offence (set out in s. 210(2)) required a greater degree of culpability than the more serious, indictable offence set out in s. 210(1).

 

                   In my view, the judgment of this Court in R. v. Kerim, [1963] S.C.R. 124, is consistent with the conclusion that mere participation in the "illicit" activities of a common bawdy-house is not sufficient to ground a conviction for keeping a common bawdy-house.  In Kerim, the accused was the president of the company which owned the gaming house, and he was on the premises each evening.  Thus, in Kerim, an element of control over the premises was clearly present.  What was not present, however, was any participation by the accused in the wrongful use of the place.  This Court held that without the element of participation, the accused could not be said to "keep" a common gaming house.

 

                   In the case at bar, the facts are effectively reversed.  The accused, Ms. Corbeil, was found by the trial judge to have participated in the "illicit" activities of the common bawdy-house.  The accused in this case clearly "occupied" the Studio and used it "permanently or temporarily".  However, the required element of having a degree of control over the care and management of the premises which was present in Kerim, supra, is not present in the case at bar.

 

                   The above analysis can be summarized as follows.  In order to come within the offence of keeping a common bawdy-house, it is necessary that two elements be present: (1) that the accused have some degree of control over the care and management of the premises, and (2) that the accused participate to some extent, as was said in Kerim, in the "illicit" activities of the common bawdy-house.  This is not to say that the element of participation requires personal participation in the sexual acts which occur in the common bawdy-house, but it is sufficient that the accused participate in the use of the house as a common bawdy-house.  Of course, the element of participation in "illicit" activities is not necessary to satisfy the lesser offence set out in s. 210(2)(c), which provides that an owner, landlord, etc., or person who otherwise has charge or control of any place who knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house is guilty of an offence punishable on summary conviction.  Because the offence of keeping a common bawdy-house is a more serious, indictable offence than that set out in s. 210(2)(c), both the elements of culpability are required to support a conviction under s. 210(1).  In plain language, the accused under s. 210(2)(c) is passive in the face of the illicit use of the house, but under s. 210(1) he or she is active.

 

                   I note that although Parliament has chosen to regulate, through the Criminal Code , many activities related to prostitution and the practice of indecent acts, such as procuring a person to have illicit sexual intercourse with another person (s. 212(1)(a)) and soliciting in a public place for the purpose of engaging in prostitution (s. 213(1)), prostitution itself is not illegal in Canada (see Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1162).  Section 210(1), as a further example, does not prohibit acts of prostitution, but makes it a criminal offence to keep a common bawdy-house.  For this additional reason, I am of the view that, to ground a conviction under s. 210(1), it must be established that the accused exercised a degree of control over the care and management of the premises.  If this element of control over care and management is not necessary to ground a conviction, the meaning of "keeps" for the purposes of s. 210(1) would effectively be expanded, given the broad definition of "common bawdy-house" in s. 197(1), to cover the act of prostitution itself.  This would be the result because a mere user of a place for the purposes of prostitution would be guilty of keeping a common bawdy-house under s. 210(1).  In my opinion, a person who merely uses a place for the purposes of prostitution without attempting to exert any control over the care and management of those premises, as was the case in R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388 (Ont. C.A.), does not "keep" the place as a common bawdy-house. If that person is not guilty of a related offence, such as the commission of an indecent act in a public place (s. 173(1)(a)), his or her conduct is not proscribed by the Criminal Code .

 

                   For these reasons, I would dismiss the appeal and uphold the acquittal entered by the Quebec Court of Appeal.

 

//L'Heureux-Dubé J.//

 

                   The following are the reasons delivered by

 

                   L'Heureux-Dubé J. (dissenting) -- This appeal concerns the interpretation of s. 210(1)  of the Criminal Code , R.S.C., 1985, c. C-46 , formerly s. 193(1) under which the respondent was charged.  Since I cannot agree with the Chief Justice's reasons nor with the result he reaches, I respectfully dissent for the following reasons.

 

Facts

 

                   The respondent was discovered in Studio Altesse, a massage parlour which offered its clients a one-half hour massage "from neck to ankles" for $60.  At the option of the client, the massage would include manual masturbation.   The $60 fee was collected by a masseuse such as the respondent, who then turned over half of the fee to the owner of the establishment, Mr. André Véronneau.  The masseuse kept the other half.  In this case, the police arrived to find the respondent in one of the cubicles of the Studio, wearing a pink "mini-dress".  Her client was entirely nude.

 

                   At the respondent's trial, both the owner and Manon St-Denis, another employee of the Studio, testified for the Crown. (Both Véronneau and St-Denis were convicted under former s. 193(1) (now s. 210(1)) of the Code, from evidence arising out of the same police raid.)  The testimony in chief of St-Denis reveals that the respondent was not the manager of the Studio.  St-Denis also testified that when a customer arrived on the premises, a masseuse, in this case the respondent, would meet the customer out front and they would proceed into a cubicle for the massage.  There was no regular receptionist.  If the client requested a different masseuse than the one who greeted him, or asked who the others were, another would be brought out.  Regular clients could then be linked to their favourite masseuse.  In addition, there was a register in which each masseuse was required to log the arrival and departure of her clients, thus keeping track of the number of customers visiting the Studio each day.  Clients paid the masseuse directly and she would later put half in a cash box which Véronneau would pick up either at the end of the day or the next morning.  The last masseuse to add money to the cash box each day would count the money to ensure that the total amount of money received coincided with the number of clients logged in the register.

 

                   It was on this evidence that the respondent was convicted at trial and it was on this evidence that the dissenting judge in the Court of Appeal found a degree of control in the illegal use of the premises by the respondent.  The majority took a different view of the law, allowed the appeal and registered a verdict of acquittal. 

 

Legislative Provisions

 

                   The provisions relevant to this appeal are found in Part VII of the Criminal Code  entitled "Disorderly Houses, Gaming and Betting".  Section 197(1) (s. 179(1) at the time of trial) reads in part as follows:

 

                   197. (1)  In this Part,

 

                                                                   . . .

 

"common bawdy-house" means a place that is

 

(a) kept or occupied, or

 

(b) resorted to by one or more persons

 

for the purpose of prostitution or the practice of acts of indecency;

 

                                                                   . . .

 

"keeper" includes a person who

 

(a)  is an owner or occupier of a place,

 

(b)  assists or acts on behalf of an owner or occupier of a place,

 

(c)  appears to be, or to assist or act on behalf of an owner or occupier of a place,

 

(d)  has the care or management of a place, or

 

(e)  uses a place permanently or temporarily, with or without the consent of the owner or occupier thereof;

 

                   Section 210  of the Criminal Code  provides in part:

 

                   210. (1)  Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

 

(2)  Every one who

 

(a)  is an inmate of a common bawdy-house,

 

(b)  is found, without lawful excuse, in a common bawdy-house, or

 

(c)  as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house,

 

is guilty of an offence punishable on summary conviction.

 

Judgments in the Courts Below

 

                   In the Court of Sessions of the Peace, Judge Boyer heard testimony from Véronneau, St-Denis and two officers of the Quebec Provincial Police.  After noting the admission by counsel for the respondent that the Studio was a common bawdy-house for the purposes of the Code, the trial judge concluded that since the respondent [translation]  "occupied this place by using it, whether on a permanent or temporary basis, as confirmed by the cheques issued to her, I find her guilty . . ."

 

                   In the Court of Appeal, Fish J.A. (Monet J.A. concurring with brief comments), found that there was "no evidence" on which to ground a conviction under s. 210(1) and allowed the appeal from her conviction: [1990] R.J.Q. 963, 57 C.C.C. (3d) 554 (hereinafter cited to C.C.C.).  Fish J.A. analyzed the definition of "keeper" in s. 197 and the offences in s. 210, and, referring to R. v. Kerim, [1963] S.C.R. 124, observed (at p. 562):

 

                   Though s. 197 defines "keeper" so as to include "an owner or occupier of a place", an owner cannot be convicted of "keeping" unless he is shown to have participated in the wrongful use of that place: Kerim, supra.  This however does not mean, in my view, that every person who participates in the wrongful use of a place -- for example, as an "inmate" or patron -- thereby "keeps" it.  The plain meaning of "keep" simply does not permit of that interpretation: to use is not to keep. [Emphasis in original.]

 

                   In Fish J.A.'s view, the case law imported into the offence of "keeping" an element of management or control over the common bawdy-house.  In addition, he made specific reference to the amendments brought about by S.C. 1953-54, c. 51.  He concluded that, although the respondent "might well" have been convicted as an inmate had she been charged under s. 210(2)(a) of the Code, there was no evidence on which to ground a conviction of keeping a bawdy-house according to s. 210(1) of the Code.

 

                   In her dissenting reasons, Tourigny J.A., noting the definition of "keeper" in s. 197(1), also considered R. v. Kerim, supra, and commented (at p. 557):

 

[translation]  I repeat, it is not sufficient to call evidence that a person occupies space or uses space in a common bawdy-house.  Rather, as indicated in the Kerim decision, her active participation in the unlawful use must be demonstrated in order for this person to be found guilty of the indictable offence in s. 210(1) rather than the offence punishable on summary conviction found in s. 210(2).

 

                   Tourigny J.A., at p. 558, found that the cases of R. v. Pierce and Golloher (1982), 66 C.C.C. (2d) 388 (Ont. C.A.), and R. v. McLellan (1980), 55 C.C.C. (2d) 543 (B.C.C.A.), [translation] "seem to require a certain form of control in order for a person to be found guilty of the indictable offence" in s. 210(1).  After reviewing these two judgments, in both of which the accused was acquitted, she stated (at pp. 558-59):

 

                   [translation]  The circumstances of these two cases appear significantly different from the one with which we are now concerned.  In the present case, Ms. Corbeil is a person who regularly frequented the place, received money from the owner and regularly worked there, at least for a certain period, as a masseuse.

 

                   I therefore come to the conclusion that the differences between the cases are sufficient so that, contrary to the case of prostitutes who use a place from time to time, without the agreement of anyone, but rather of their own volition, the present case may give rise to a charge and conviction under s. 210(1).

 

                   Tourigny J.A. further noted that it was the masseuse who collected the fees from the clients and neither the owner nor St-Denis had control over the accounting of the receipts.

 

Analysis

 

1. Introduction

 

                   This appeal arises as of right on account of the dissent on a question of law in the Court of Appeal, and I agree with the Chief Justice regarding the question of law to be decided by this Court.

 

                   The interaction between ss. 197(1)  and 210(1)  of the Criminal Code  is at the heart of the debate in this case.  Beyond differing on the appreciation of the facts, the majority and the minority in the Court of Appeal diverged in their interpretation of these two sections of the Code.  Section 210(1) states that every one who "keeps" a common bawdy-house is guilty of an offence, while s. 197(1) provides the definition of a "keeper".  The majority of the Court of Appeal found that a person falling under para. (e) of the definition of a "keeper" in s. 197(1) might not be a person who "keeps" for the purposes of s. 210(1).  This raises the scope and intent of Parliament's inclusion of para. (e) in the definition of a "keeper" in s. 197(1), of a person who "uses a place permanently or temporarily, with or without the consent of the owner or occupier thereof".

 

                   This Court is, therefore, asked to determine whether and on what criteria one who "uses" a place under para. (e) of the definition in s. 197(1), also "keeps" a common bawdy-house under s. 210(1) and thereby commits the offence set out in that section.  In articulating the proper test, a review of both the legislative background and the pertinent authorities is in order.  In addition, the interaction of the various definitions and offences in ss. 197(1) and 210(1) and 210(2) will be examined.

 

2. Legislative Background

 

                   The offences in question here find their roots in ancient English criminal law.  The provisions of the Disorderly Houses Act (U.K.), 25 Geo. 2, c. 36, laid the foundation for similar offences in the present Criminal Code .  In particular, the present definition of "keeper" in s. 197(1) finds its antecedent in s. VIII in the 1752 Act, which read:

 

                   VIII.  And whereas, by reason of the many subtle and crafty Contrivances of Persons keeping Bawdy-houses, Gaming-houses or other disorderly Houses, it is difficult to prove who is the real Owner or Keeper thereof, by which Means many notorious Offenders have escaped Punishment;  Be it enacted by the Authority aforesaid, That any Person who shall at any Time hereafter appear, act or behave him or herself as Master or Mistress, or as the Person having the Care, Government or Management of any Bawdy-house, Gaming-house or other disorderly House, shall be deemed and taken to be the Keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in Fact be the real Owner or Keeper thereof. [Emphasis added.]

 

                   In Canada, bawdy-house offences may be traced back to An Act respecting Vagrants, S.C. 1869, c. 28, which was passed by Parliament in 1869 and later incorporated into the original Criminal Code .  It is interesting to note that the original Criminal Code  created different offences in different Parts of the Code for a person who "keeps" any disorderly house (including a common bawdy-house), and for the "keeper" of a common bawdy-house, who was considered a vagrant.  Part XIV of the Criminal Code, 1892, S.C. 1892, c. 29, was entitled "Nuisances", and created the following offences:

 

                   195.  A common bawdy-house is a house, room, set of rooms or place of any kind kept for purposes of prostitution.

 

                   198.  Every one is guilty of an indictable offence and liable to one year's imprisonment who keeps any disorderly house, that is to say, any common bawdy-house, common gaming-house or common betting-house, as hereinbefore defined.

 

                   2.  Any one who appears, acts, or behaves as master or mistress, or as the person having the care, government or management, of any disorderly house shall be deemed to be the keeper thereof, and shall be liable to be prosecuted and punished as such, although in fact he or she is not the real owner or keeper thereof.

 

                   Part XV, entitled "Vagrancy", contained these sections:

 

                   207.  Every one is a loose, idle or disorderly person or vagrant who --

 

                                                                   . . .

 

                   (j.)  is a keeper or inmate of a disorderly house, bawdy-house or house of ill-fame, or house for the resort of prostitutes;

 

                   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.

 

                   The subsequent history of the legislation reveals that Parliament, through various amendments, enlarged both the scope of the definition of "keeper" (originally found in s. 198(2)) as well as the definition of a "common bawdy-house" (originally found in s. 195).

 

                   In interpreting these sections of the 1892 Code, the courts found that, based on the definition of common bawdy-house in s. 195, a prostitute could not be convicted of "keeping" unless other persons also resorted to the premises for the purposes of prostitution:  R. v. Mannix (1905), 10 C.C.C. 150 (Ont. C.A.).  Parliament, in 1907 (S.C. 1907, c. 8, s. 2), amended that definition of a common bawdy-house, increasing its ambit to cover an occupier and a person or persons who would simply resort to a place of any kind for acts of prostitution.  Former s. 195(1) was renumbered as s. 225 and redrafted to read:

 

                   225.  A common bawdy house is a house, room, set of rooms or place of any kind kept for purposes of prostitution or occupied or resorted to by one or more persons for such purposes. [Amendment underlined.]

 

                   In 1917 (S.C. 1917, c. 14, s. 3), this definition was further amended to include premises used for "acts of indecency".  Thus, from 1917 until the amendments of 1953-54, a common bawdy-house was defined as follows:

 

                   225.  A common bawdy house is a house, room, set of rooms or place of any kind kept for purposes of prostitution or for the practice of acts of indecency, or occupied or resorted to by one or more persons for such purposes.

 

                   It should be noted, however, that the offences of keeping a common gaming house, common bawdy-house and common betting house remained together in the same section from the original 1892 Code until 1947.  In 1947 (S.C. 1947, c. 55, s. 4), these offences were partially divided, with the result that keeping a common gaming house and keeping a common betting house were to be found in s. 229(1), while the offence of keeping a common bawdy-house was in s. 229(2).

 

                   By the same token, the 1947 amendments extended the parameters of the offence of "keeping", by deeming a person who assisted in the care, government or management of a place to be a "keeper" of the disorderly house.   The original provision, which had persisted since the 1892 Code, was amended to read as follows (the amended phrases are underlined):

 

                   229. . . .

 

                   (3)  Every one who appears, acts or behaves as master or mistress, or as the person having the care, government or management of any disorderly house, or as assisting in such care, government or management, shall be deemed to be the keeper thereof and is liable to be prosecuted and punished as such although in fact he or she is not the real owner or keeper thereof.

 

                   The courts, including this Court, almost consistently held that the 1907 amendments enlarging the definition of a common bawdy-house, could ground the conviction of a person simply renting a room or occupying a house for the purposes of prostitution, under the "keeping" offence:  R. v. Smith (1908), 12 O.W.R. 80 (C.A.);  R. v. Miket (1938), 53 B.C.R. 37 (C.A.);  R. v. Richards (1938), 70 C.C.C. 105 (Ont. C.A.);  R. v. Cohen, [1939] S.C.R. 212.  Contra, see R. v. Sorvari (1937), 69 C.C.C. 281 (Ont. C.A.).

 

                   Few reported cases, however, appear to have considered the situation of a person accused of keeping a "place of any kind", which was not a room or house but which was simply resorted to for indecent acts.  Those courts which did consider this statutory language did not convict under it.  In Perron v. The Queen (1954), 110 C.C.C. 197 (Que. Q.B.), the accused was a prostitute charged with "keeping".  There was no evidence that she occupied any place or was a tenant of a particular room on the premises.  Rinfret J.A. for a 5-member court, carefully considered the interpretation of the expanded definition of "keeper", as found in s. 229(3) above, and stated (at p. 200):

 

                   [translation]  Taken textually, this section could apply to any person at all who, at hand or from afar, might contribute to the operation of the establishment and control the subordinate male or female employees who have nothing to do or say in the conduct or management of the establishment but who assist in its care.

 

                   Rinfret J.A. found that this view conflicted with the authorities (particularly the gaming house case R. v. Mark (1924), 43 C.C.C. 368 (Ont. C.A.)) and was not commensurate with the legislation as it then existed.  The accused was accordingly found not guilty.  See also Wilson v. The Queen, [1953] Que. Q.B. 424.

 

                   By the 1950s, several conflicting decisions had been rendered by provincial Courts of Appeal regarding the interpretation of the offence of keeping a common betting house -- an offence, it is recalled, which remained in the same section of the Code as keeping a common bawdy-house until 1947.  Some judges took the view that an individual who was a bare user of a place could, if that place were a common betting house, be convicted under the offence of "keeping":  R. v. Marin (1937), 68 C.C.C. 245 (Ont. C.A.);  R. v. Sokol (1949), 95 C.C.C. 360 (Man. C.A.);  R. v. Girone and Genoe (1953), 106 C.C.C. 33 (B.C.C.A.).  These judgments appear to rely on the wide definition of "common betting house" in the Criminal Code , which included a "place" which was "opened, kept or used for the purpose of betting between persons resorting thereto, and ... any person using the same": R.S.C. 1927, c. 36, s. 227(a)(ii).   The definition of "common bawdy-house", then found in s. 225, was hardly more limited of course, since it included a "place of any kind ... resorted to by one or more persons..."  But the courts in these cases were prepared to find that an accused could keep a place even if he only used the place for taking bets.

 

                   Other judges, however, took the opposite view.  In R. v. Eakins (1943), 79 C.C.C. 256 (Ont. C.A.), the accused was seen on a number of occasions using a public room in a Toronto hotel to take, and later settle, bets on horses.  He was convicted at trial on the charge of keeping a common betting house.  Robertson C.J.O. allowed the appeal and stated at p. 257:

 

                   There is no evidence whatever that the appellant acted or behaved as master or as a person having any care, government or management of the hotel premises, or that he assisted in such care, government or management, or in fact that he had any right at all to be there, unless that might be inferred from his frequently going there for the same purpose. [Emphasis added.]

 

                   Robertson C.J.O. declined to follow Marin, supra, and concluded specifically:

 

                   In view of the provisions of s-s. (2) of s. 229, it would seem to be out of the question to convict as the keeper of the premises, one whose only connection with them was such as the use made of them by the appellant in this case.  Under the circumstances we do not think that we would be warranted in overlooking the express terms of the statute....

 

See also R. v. Smith and Bird (1951), 102 C.C.C. 126 (Ont. C.A.), and similarly, Lewis v. The King (1949), 97 C.C.C. 268 (Que. Q.B.), and Mark, supra.

 

                   It was in this context that Parliament again amended the Code  (S.C. 1953-54, c. 51).  Fish J.A. commented on these 1953-54 amendments as follows (at p. 563):

 

                   In rearranging these provisions, Parliament substituted more modern terminology but did not, in my view, thereby manifest any intent to change the substance or reach of the law.

 

                   I disagree.  In my respectful opinion, the 1953-54 amendments did modify the law with respect to keepers of common bawdy-houses, common gaming houses and common betting houses by adding a new subparagraph to the definition of "keeper".   In so doing, Parliament, once again, enlarged the scope of the definition of a "keeper" to include a person who "uses a place permanently or temporarily, with or without the consent of the owner or occupier" (S.C. 1953-54, c. 51, s. 168(1)(h)(v)).  It is precisely that subparagraph, now para. (e) of the definition of "keeper" in s. 197(1), which is at issue in the present case.  This "modern" definition of "keeper" applies to simple "users", as in Perron and Eakins, both supra, and both to common gaming house or common betting house offences as well as to common bawdy-house offences.  The courts reacted to this new definition, in gaming house cases, by convicting those who, under the previous definition, might have been acquitted as simple "users":  for example, see R. v. Rubenstein, [1960] O.R. 133 (C.A.).

 

3. The Legislation in its Present Form

 

                   In my view, if Parliament chose to gradually expand the definitions of "keeper" and "common bawdy-house", it did so in response to a number of stimuli, including restrictive judicial interpretation, changes in the patterns of behaviour of that category of persons intended to fall under the offence provisions, and to discourage arguments of a technical or semantic nature.  These amendments were designed, in my view, to support Parliament's efforts to deal with a problem which it considered serious.  It is within the province of Parliament to create offences whose definition goes beyond plain meaning or common usage, in order to give effect to its objectives and to eradicate fully the mischief it wishes to address.

 

                   In that, I disagree with Fish J.A. where he says that "[t]he plain meaning of "keep" simply does not permit of that interpretation: to use is not to keep" (p. 562).  In fact, Parliament here has decided that to "use" is to "keep" for the purposes of that section.  This it had the right to do.

 

                   From the very wording of the provisions already discussed, one can readily see that there is a broad range of factual circumstances envisaged under the rubric of the offence of "keeping".  Primarily, these situations correspond to the broad definition of "keeper" in s. 197(1), which, as can be seen from the legislative history, reflects Parliament's efforts to cover a wide spectrum of situations.  In fact, each of the five paragraphs under the definition of "keeper" addresses different factual situations.  Section 197(1) states that a "keeper" includes a person who:

 

(a) is an owner or occupier of a place,

 

This is the classic situation of an owner or lessor managing premises as a common bawdy-house, as well as the prostitute who uses his or her own residence as a common bawdy-house.

 

(b)               assists or acts on behalf of an owner or occupier of a place,

 

This paragraph would cover, for instance, the daytime manager of a premises, or the ordinary assistant to the owner or occupier in the operation of the business.  The latter may have no power over the greater premises as a place, but is involved in running the common bawdy-house as a going concern.

 

(c) appears to be, or to assist or act on behalf of an owner or occupier of a place,

 

This paragraph could allow conviction of a person who may not be a regular manager or assistant, but simply appears to be so on surveillance and on the occasion of the laying of the charge.  There need not be direct proof of actual ownership or of actual assistance to the owner or occupier.  In addition, this definition could cover a person who appears to participate in running the business but may have only nominal control over the premises.

 

(d) has the care or management of a place,

 

Presumably this paragraph covers any other persons who may temporarily run the business or control the premises.

 

(e) uses a place permanently or temporarily, with or without the consent of the owner or occupier thereof;

 

This last paragraph is very wide, and covers persons who simply use premises which constitute, in law, a common bawdy-house.  On a literal reading, anyone who just steps into a place briefly uses that place.  The persons contemplated under this definition do not own or lease the premises and have little or no permanent legal connection to the premises.  The use of the premises need only be temporary.  The keeper may be a user of another person's property such as a parking lot or an abandoned cabin.  On a literal interpretation, the prostitute or customer in the common bawdy-house could even be a "keeper".  In order to avoid the conviction of pure strangers to the premises, the courts have restricted the scope of this paragraph, but not, in my view, to the extent articulated by the majority of the Court of Appeal.

 

                   In the same vein, each of the offences set out in s. 210 relating to bawdy-houses serves a different purpose.  The offences found in s. 210 include "keeping", being an inmate or "found-in", and knowingly permitting one's premises to be used as a common bawdy-house.   In conjunction with the full definition of "keeper" in s. 197(1), subs. (1) and each paragraph in subs. (2) of s. 210 are designed to address different evils identified by Parliament.  Since, by virtue of s. 210(1), keeping a common bawdy-house is one of these offences, this Court must decide who Parliament intended to fall under that provision as opposed to the offences set out in subs. (2).

 

                   The Chief Justice points to the differences between s. 210(1) and s. 210(2)(c).  I agree that obvious differences exist between an owner (or the others listed in para. (c)), who knowingly permits the place to be used as a common bawdy-house, and someone, such as an owner, who actually keeps the common bawdy-house.  The distinction is one of degree of participation in the operation of the common bawdy-house.   Similarly, and, I think, more pertinent to the present case, the offences of being an inmate in a common bawdy-house under s. 210(2)(a), and being a "found-in" under s. 210(2)(b), also differ from the offence of "keeping" in subsection (1).  Parliament has defined each offence to address a different problem.  It is apparent that every "inmate" of a common bawdy-house will not, according to those subsections, necessarily be found to keep that common bawdy-house, given the distinction reflected in the different offences enacted by ss. 210(1) and 210(2)(a).  Similarly, persons found in a common bawdy-house cannot always be said to "keep" the common bawdy-house.

 

                   In terms of penalty, it is consistent with the whole philosophy of the Criminal Code  that more serious offences be punished more severely.  Sections 210(1), an indictable offence, and 210(2), punishable on summary conviction, reflect that difference in punishment.  This reinforces the view that a user whom the law defines as a "keeper" in s. 197(1), must be more severely punished than an inmate of the common bawdy-house or a person simply found in the premises, as contemplated in s. 210(2)(a) and (b).

 

                   With these considerations in mind, this Court must interpret the offence of "keeping" in s. 210(1) in a way which sufficiently reflects the variety of factual circumstances which the offence was drafted to cover.  Reference has been made to the diverse situations covered by the definition of "keeper" in s. 197(1).  A review of the case law will shed further light on what constitutes the offence of "keeping".

 

4. R. v. Kerim

 

                   The judgment of this Court in Kerim, supra, seems to have been a turning point in the interpretation of the offence of keeping a common gaming house.  In the present case, both the majority and the minority in the Court of Appeal appear to rely on Kerim.  In my view, the interpretation of the majority in the Court of Appeal cannot stand. In addition, I am unable to agree with the interpretation offered by my colleague the Chief Justice.

 

                   Mr. Kerim was the president of a company which, for over two years, leased its premises in a hotel four nights a week to various religious and charitable organizations.  These groups conducted bingo games for charitable purposes on the site.  Although Mr. Kerim was on the premises each night, he did not participate in the bingo games in any way.   He was charged under s. 176(1), now s. 201(1), with keeping a common gaming house.  He was convicted at trial, but the Ontario Court of Appeal quashed the conviction.  A majority of this Court dismissed the Crown's appeal.

 

                   Martland J., for the majority, found that Mr. Kerim fell under the statutory definition of "keeper" and that the premises were a "common gaming house" for the purposes of the Criminal Code .   Martland J. then stated at pp. 130-31:

 

                   The definition of a keeper in s. 168(1)(h) [now s. 197(1)] is a very broad one and it relates to the keeper of a "place", which is also broadly defined.  Every householder and, indeed, every landowner is a keeper within that definition.  But this, of course, in itself, constitutes no offence.  The offence defined in s. 176(1) [now s. 201(1)] is the keeping of a common gaming house.  The question is, if the "place" is used in a manner which constitutes it a common gaming house, does everyone who falls within the definition of a keeper of that place automatically keep the common gaming house?  In my opinion that conclusion does not follow.  The offence is the keeping of the common gaming house, and, in my opinion, in order to constitute that offence, there must be something more than the keeping of a place whose use, by someone other than the accused, makes it a common gaming house.  I do not, for example, see how the owner of a house leased to a tenant, who, without his knowledge, operates it as a common gaming house, could possibly be found guilty of the offence.  What then is the position of a "keeper" who does not in any way participate in the operation of the games played, but who knows that the place in question is being used for that purpose, and who permits such use?  This, it appears to me, is the sort of situation which was contemplated when the offence defined in s. 176(2)(b) [now s. 210(2)(b)] was created and, in my opinion, that offence must have been created because it was not contemplated that such a person was, himself, keeping the common gaming house within the meaning of s. 176(1).

 

                   I agree with the conclusion reached by Laidlaw J.A., in the Court below, that the offence defined in s. 176(1) involves some act of participation in the wrongful use of the place and that the evidence in this case does not establish any such participation on the part of the respondent. [Emphasis added.]

 

                   I have emphasized that Kerim dealt with premises whose use "by someone other than the accused" made it a common gaming house (a distinction also made by Estey J. in Rockert v. The Queen, [1978] 2 S.C.R. 704).  Mr. Kerim was acquitted because he did not participate in the wrongful use of the place, namely the organization or actual playing of bingo on the premises.

 

                   According to the Chief Justice, Kerim mandates that two "elements" be present to support a conviction under s. 210(1):  (i)  "some degree of control over the care and management" of the common bawdy-house must be exhibited by the accused; and (ii) the accused must "participate to some extent" in the "illicit" activities of the common bawdy-house.  This interpretation, in my view, is mandated neither by the terms of s. 210(1) nor by the definition of "keeper" in s. 197(1), or by the reasons of the majority in Kerim.  It is clear from Martland J.'s reasons in Kerim that Mr. Kerim fell under Parliament's definition of a "keeper" in the Criminal Code .  The question before the Court was what had to be shown to convict Mr. Kerim as a person who "keeps" the common gaming house, in addition to proof that he fell under the statutory definition of "keeper".  The majority found that the Crown had to prove, in addition, "some act of participation in the wrongful use of the place".  On the facts of the case, Mr. Kerim fell squarely within the definition of a "keeper" in s. 197(1), at least under para. (d) as having the care and management of the hotel.  But the case does not, in my opinion, suggest that  "a degree of control over the care and management of the premises" is required to prove the "keeping" offence in all cases.

 

5. Cases Subsequent to R. v. Kerim

 

                   Since R. v. Kerim, the courts have had occasion to interpret the offence of keeping in s. 210(1) in various circumstances. It is clear from the cases that s. 197(1) was applied to several categories of keepers, depending on the facts and circumstances of each case.  Such circumstances did include accused persons who played different roles in the operation of a common bawdy-house, from the manager and directing mind of a steam bath premises, to the prostitutes who simply used a parking lot for the purpose of prostitution.  In the middle were situations where the accused is more than a trespasser on the premises, but less than the owner and operator of the brothel.

 

                   In R. v. Woszczyna; R. v. Soucy (1983), 6 C.C.C. (3d) 221 (Ont. C.A.),  Martin J.A., for the Court, convicted the "owner, directing mind and alter ego" of a company which owned and ran a steam bath premises.  Martin J.A. rejected the argument that Kerim imposed a requirement of "day-by-day participation of the conduct of the premises".  Besides knowing of the activities occurring on the premises, Martin J.A. found that Mr. Woszczyna was clearly involved in the management of the operation:  "he received the proceeds from the operation of the business there conducted; he hired and paid the staff and paid other operating expenses out of those proceeds" (p. 226).  In R. v. Soucy, a case heard concurrently with Woszczyna, the accused's conviction was upheld.  Martin J.A. noted that Soucy was the "cashier/attendant" and was aware of the nature of the activities in the steam bath premises.

 

                   R. v. Karavasilis (1980), 54 C.C.C. (2d) 530 (Ont. C.A.) concerned a prosecution for keeping a common gaming house, as in Kerim, supra. The accused leased the place involved and provided the tables, cards and score sheets, but he remained behind the counter, selling refreshments and cigarettes to the card players.  There was no "rake-off" from the winnings and the only gain made by the accused was from selling the sundry items.  Morden J.A. upheld the conviction entered at trial and concluded (at pp. 538-39):

 

                   In the present case, the activities of the appellant himself in providing the accommodation and facilities and selling the refreshments made the premises a common gaming-house.  It may be accurately said of him that he did, to some significant extent, participate in the promotion, organization and operation of the games of rummy and, accordingly, that he kept a common gaming-house. [Emphasis added.]

 

                   In these cases, the courts were faced with established business operations on premises which constituted a common bawdy-house or a common gaming house under the Criminal Code .  The accused persons fell squarely within the definition of "keeper" as found in s. 197(1)  of the Criminal Code  and were found to participate actively in the operation, if not the actual management, of the place as a common bawdy or gaming house.

 

                   These cases did not go so far, however, as to hold that the keeper of a common bawdy-house must be found to have participated in the sexual activities occurring on the premises.  The accused in Karavasilis, supra, or Kerim, supra, did not have to be shown to have gambled.  Indeed, this Court and others have held that the premises themselves may fall under the definition of a "common bawdy-house" without any direct proof that illicit sexual acts took place on a premises:  Theirlynck v. The King, [1931] S.C.R. 478;  Patterson v. The Queen, [1968] S.C.R. 157;  R. v. Sorko, [1969] 4 C.C.C. 241 (B.C.C.A.).   As Morden J.A. noted in Karavasilis, to be guilty of "keeping", it was sufficient for the accused to participate in the promotion, organization or operation of, in that case, the card-playing in a common gaming house.  In my view, the same applies to a common bawdy-house.

 

                   At the other end of the spectrum, the widest definition of a "keeper" in s. 197(1) is at issue.  These are cases where an accused is not the owner or lessor of the premises, but simply "uses a place permanently or temporarily, with or without the consent of the owner or occupier thereof" under para. (e) of the definition.  As Tourigny J.A. effectively demonstrated in her dissenting opinion in the Court of Appeal, such was the case in R. v. Pierce and Golloher, supra.  MacKinnon A.C.J.O., for the Ontario Court of Appeal, considered the situation where prostitutes were using a public parking lot for their trade.  Various parking spaces were occupied by vehicles belonging to clients without any regular pattern.  The Crown argued that the accused used the parking spaces temporarily and therefore fell within para. (e) of the definition of "keeper" in (now) s. 197(1).  MacKinnon A.C.J.O. reviewed Kerim, supra, and made the following observations at p. 394:

 

                   I agree with counsel for the Crown that the relevant paragraph makes it clear that a "keeper" can be a trespasser.  I can envisage a situation where the person charged makes use of an abandoned house or barn for the purposes or [sic] prostitution, directing customers to that particular place and to a certain extent controlling its use.  In the instant case there is no evidence that the respondents directed their customers to this parking-lot, nor, indeed, is there evidence whether or not some or all of the customers had parking privileges in this lot.  Further, there is no evidence that the respondents or either of them had any "say" in what parking spaces would be used or in allocating the spaces. There may be an inference drawn from the frequency of the use of the parking-lot by the respondents that they were responsible for directing their customers to this particular parking-lot but it is clear that the respondents had no right or interest in the parking-lot as owners, tenants or licensees. [Emphasis added.]

 

                   It is apparent from the opinion of MacKinnon A.C.J.O. that, in his view, the Crown must do more than show that an accused regularly resorts to a place.  At pages 395-96 he remarked:

 

                   If the respondents had been shown to have had a rental agreement with regard to a parking space, or had the benefit of one in connection with their apartment rental, or had sought to keep others out of the parking-lot even though they were trespassers themselves, this would show some control or management or attempt at control or management or direction of the place necessary to found a conviction for the offence charged.  This, of course, was not shown or argued; their mere presence in the parking-lot on a number of occasions, it was argued, was sufficient to establish them as keepers of a common bawdy-house.  As I have stated, I do not agree with that proposition.... [Emphasis added.]

 

                   From this passage it is clear that "mere presence" in a place, even regularly, is insufficient per se to ground a conviction under s. 210(1).  According to MacKinnon A.C.J.O., evidence of an attempt at control, management or direction of the place is adequate to support a conviction.  But I do not read Pierce and Golloher to suggest that evidence of control or management is an essential element to be proven to ground a conviction under s. 210(1).  MacKinnon A.C.J.O. only states that, on the facts of that case, evidence of control or management, such as a rental agreement for the parking places, could ground a conviction and that mere presence on a premises will not suffice.

 

                   In R. v. McLellan, supra, the first floor of a hotel was found to be a common bawdy-house.  A prostitute was charged with "keeping", under the present s. 210(1), when she used various rooms for the purposes of prostitution on four occasions.  The Crown argued that the accused, McLellan, was "keeping" a common bawdy-house on account of the fact that she used the hotel temporarily on these four occasions.  Nemetz C.J.B.C., after reviewing Kerim, supra, and a previous unreported decision of the British Columbia Court of Appeal, found that the simple providing of accommodation, for the purposes of prostitution or acts of indecency, is the essence of the actus reus of keeping a common bawdy-house.

 

                   These cases are illustrative of the various situations envisaged by the definition of "keeper" in s. 197(1), which may arise and may fall within the parameters of the offence of "keeping" in s. 210(1).  Those circumstances, for which Parliament has seen fit to create an offence, are covered, as the case law demonstrates, by the broad definition of "keeper" in s. 197(1).  Consequently, the test which must be formulated has to properly reflect the concerns articulated in that section of the Criminal Code .

 

6. The Proper Test for the Offence of "Keeping"

 

                   The breadth of the definition in s. 197(1) and the case law serve to underline the need to keep a relatively flexible test for what, on a given set of facts, constitutes "keeping".  This test must accommodate the nature and degree of participation inherent in different common bawdy-house situations, from those of a parking lot to those of an ongoing operation of the classic brothel.  In my opinion, the test of "a degree of control over the care and management" of the premises, coupled with participation in the illicit activities of the place, does not flow from the case law nor from a proper interpretation of ss. 210(1) and 197(1) to which it refers.

 

                   In the vast bulk of cases, a person charged as the "keeper" of a common bawdy-house will be the owner or manager, and, whether or not that person has care and management of the premises may not even be an issue.  In other cases, however, where there is an established operation or business which constitutes a common bawdy-house, the requirement of "a degree of control over the care and management of the premises" is not commensurate with the range of conduct that s. 210(1) is intended to cover, given the wide definition of a "keeper" in s. 197(1).  The proscribed conduct varies from the ownership and daily management of a common bawdy-house (as in Woszczyna, supra), to the assistance in the operation of the premises, or perhaps appearance as owner of the premises (as in Soucy, supra), to the participation in some of the chores of operating a premises as a common bawdy-house (as in the present case), to the ordinary use or trespass on a place (as in Pierce and Golloher, supra).  The requirement of proof of a degree of control over the care and management of the common  bawdy-house would mean that the conduct of some persons actually participating in the daily operation of a common bawdy-house (or gaming house for that matter), as a business or going concern, would fall outside the scope of s. 210(1), conduct which, in my view, that section was intended to cover.  A proper reading of the wording of s. 210(1) in conjunction with s. 197(1), as well as the legislative history of the statutory provisions and the case law, requires only proof of a degree of active participation in the operation of a common bawdy-house to ground a finding of guilt for the offence of "keeping".

 

                   This approach ensures that each and every offence described in s. 210 is separate and distinct, and also that the different severity of the penalties in subss. (1) and (2) is properly reflected.  Persons who are regularly in a common bawdy-house as employees and who are actively engaged in activities other than, or in addition to, sexual activities, cannot be said to be simple "inmates" under s. 210(2)(a) or "found-ins" for the purposes of subs. (2)(b).  Inmates and "found-ins" are not involved in the operation of the business beyond the simple provision and partaking of "services".   The inmate under subs. (2)(a) is the prostitute who works on the premises with some regularity but is not responsible for any of the organizational duties involved in running the business as a business.  The so-called "found-in" is simply the client who is caught in the premises.  These persons only commit an offence punishable on summary conviction.  Other persons who are on the premises solely for the purposes of their trade (for example, an electrician, plumber, or gardener), and who are not intended to fall within the offences in s. 210, would, under the present interpretation, escape liability.  For the purposes of the "keeping" offence in s. 210(1), they are, to adopt MacKinnon A.C.J.O.'s words in Pierce and Golloher, supra, persons who are "merely present" on the premises.

 

                   On the other hand, those who (as Morden J.A. put it in Karavasilis, supra) actively "participate in the promotion, organization and operation" of the premises as a common bawdy-house must be considered to "keep" and therefore commit the more serious offence in s. 210(1).  These persons may be the actual owners and managers, or may simply be employed to do tasks inherent in the running of the business such as accounting or perhaps allocation of the various rooms in the common bawdy-house.  Other persons involved in different activities in relation to the operation of the premises, could be found guilty of keeping the premises, such as the "cashier/attendant" in R. v. Soucy.

 

                   In summary, then, on the question of law raised in this appeal, it is my view that the proper test under s. 210(1) is "a degree of active participation in the operation" of a common bawdy-house.  Accordingly, I can agree neither with the majority of the Court of Appeal, nor with Chief Justice's approach.

 

7. Application to the Facts of this Case

 

                   The present case concerns an established premises and an organized business, admittedly a common bawdy-house, and the various roles played by different actors on such premises.  The respondent worked there regularly, several days a week.  The evidence reveals that each masseuse, including the respondent, was responsible for greeting clients at the reception area, and either taking them to a cubicle or contacting the masseuse of the client's choice.  The respondent would record the arrival and, later, the departure of her clients.   When payments for the services were made, they were made directly to the respondent who would later place the owner's half in a cash box. The testimony of the "manager", St-Denis, reveals that she had no more control over this cash box than did anyone else.  The respondent was also involved in counting the money received during the day to ensure the amount in the cash box coincided with the record of each client's arrival and departure.

 

                   The owner of the premises was often absent during the operation of the bawdy-house, and the fact that the respondent was not titled as the "manager" cannot in itself be determinative of whether she had a role in the operation of the business.  There was no "relation de travail" between St-Denis and the respondent and it is apparent that the respondent did more than simply wait for clients in an assigned cubicle which might have made her a simple user of the common bawdy-house (or an inmate).  The evidence clearly demonstrates that the respondent was an active participant in the operation of the common bawdy-house and engaged in tasks that went beyond mere presence on the premises.  The respondent was obviously not a cog in the operation of the business and it is apparent that she was more than a simple "inmate" on the premises.   Rather, she actively participated in the operation of the common bawdy-house and, accordingly, satisfies, in my view, the proper test under s. 210(1) of the Code.

 

                   The respondent, therefore, falls squarely within the expansive definition of "keeper" in s. 197(1) of the Code, and the premises were admitted to be a common bawdy-house.  In my view, since the respondent actively participated in the operation of the bawdy-house, the trial judge made no error in entering a conviction.  Therefore, I agree with the result reached by Tourigny J.A., dissenting in the Court of Appeal.

 

Disposition

 

                   I would allow the appeal and restore the trial judge's conviction of the respondent.

 

                   Appeal dismissed, L'Heureux-Dubé J. dissenting.

 

                   Solicitor for the appellant:  Éric Simard, Valleyfield.

 

                   Solicitor for the respondent:  Michel Ferland, Montréal.