R. v. Corbeil

R. v. Corbeil
Collection
Supreme Court Judgments
Date
1991-04-18
Report
[1991] 1 SCR 830
Case number
21897
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Cory, Peter deCarteret; Stevenson, William
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 21897
Decision Content
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 "ke