R. v. Heywood

R. v. Heywood
Collection
Supreme Court Judgments
Date
1994-11-24
Report
[1994] 3 SCR 761
Case number
23384
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 23384
Decision Content
R. v. Heywood, [1994] 3 S.C.R. 761
Her Majesty The Queen Appellant
v.
Robert Lorne Heywood Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Heywood
File No.: 23384.
1994: April 27; 1994: November 24.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks ‑‑ Convicted sexual offender convicted of loitering by play area in public park ‑‑ Definition of "loitering" -- Whether infringement of s. 7 (the right to life, liberty and security of the person), s. 11 (d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11 (h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence) ‑‑ If so, whether justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 11 (d), (h), 12 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 179(1) (b).
Criminal law ‑‑ Sexual conviction ‑‑ Loitering ‑‑ Definition of "loitering" -- Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks ‑‑ Convicted sexual offender convicted of loitering by play area in public park ‑‑ Whether infringement of s. 7 (the right to life, liberty and security of the person), s. 11 (d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11 (h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence) ‑‑ If so, whether justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 11 (d), (h), 12 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 179(1) (b).
Respondent's earlier convictions of sexual assault involving children made him subject to the prohibition in s. 179(1) (b) of the Criminal Code that he not commit vagrancy by loitering near playgrounds, school yards or public parks. On two occasions, respondent, who was carrying a camera with a telephoto lens in a public park near to where children were playing, was stopped by police and questioned as to whether he had a criminal record. On the first occasion, he was warned that a convicted sex offender was not permitted to loiter near a public park, school yard or playground. On the second, he was arrested and charged under s. 179(1)(b) of the Code with two counts of vagrancy ‑‑ "at or near a playground" and "in or near a public park" ‑‑ and the camera and film with frames focusing on the crotch areas of young girls playing in the park with their clothing in disarray were seized.
The respondent was convicted of the first count. The trial judge found that, even though s. 179(1) (b) infringed ss. 7 and 11 (d) of the Charter , these infringements were a justifiable limitation under s. 1 . The second count was conditionally stayed under the Kienapple principle. An appeal to the British Columbia Supreme Court was dismissed. The Court of Appeal, however, allowed respondent's appeal and quashed the conviction because the breaches of ss. 7 and 11 (d) were not justified. The constitutional questions before this Court queried if s. 179(1) (b) infringed several sections of the Charter , and if so, whether those infringements were justifiable under s. 1 . The Charter provisions allegedly infringed were: s. 7 (the right to life, liberty and security of the person), s. 11 (d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11 (h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence).
Held (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed. Section 179(1) (b) violated s. 7 of the Charter and was not justified under s. 1 .
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The word "loiter" in s. 179(1) (b) should be given its ordinary meaning ‑‑ to stand idly around, hang around, linger, tarry, saunter, delay, dawdle ‑‑ and should not be interpreted as requiring a malevolent intent. None of the dictionary definitions requires a malevolent intent or makes any reference to such a requirement and the jurisprudence considering its meaning in other sections of the Code supports the use of the ordinary meaning in s. 179(1) (b). The ordinary definition is also consistent with section's purpose of protecting children from becoming victims of sexual offences by prohibiting any prolonged attendance in areas often frequented by children.
The concept of malevolent intent (as opposed to a narrower formula such as unlawful intent) raises problems of definition which make it unworkable. It is a concept of very broad scope that is extremely difficult to define. Malevolent intent could mean almost anything, and its definition would be dependent upon the subjective views of the particular judge trying the case.
The legislative debates both on the provision's enactment and later on its reconsideration cannot be used to support the notion of some sort of malevolent intent. These debates, assuming admissibility, were inconclusive for the purpose of determining legislative intent. Indeed, legislative history generally is not admissible as proof of legislative intent in the construction of statutes because it is not reliable evidence. Rather, it may be admissible for the more general purpose of showing the mischief Parliament was attempting to remedy with the legislation.
Section 179(1) (b) restricts the liberty of those to whom it applies. Although a prohibition for the purpose of protecting the public does not per se infringe the principles of fundamental justice, the prohibition in s. 179(1) (b) does so because it restricts liberty far more than is necessary to accomplish its goal. It applies, without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review.
Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. They are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth, the means are too sweeping in relation to the objective.
Overbreadth analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.
Reviewing legislation for overbreadth as a principle of fundamental justice is simply a matter of balancing the state interest against that of the individual. Where an independent principle of fundamental justice is violated, however, any balancing of the public interest must take place under s. 1 of the Charter . In analysing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective.
Section 7 of the Charter has a wide scope. An enactment, before it can be found to be so broad that it infringes s. 7 of the Charter , must clearly infringe life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective. In determining whether a provision is overly broad and not in accordance with the principles of fundamental justice, it must be determined whether the means chosen to accomplish the provision's objectives are reasonably tailored to effect its purpose. Where legislation limits the liberty of an individual in order to protect the public, that limitation should not go beyond what is necessary to accomplish that goal.
Section 179(1)(b) suffers from overbreadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice. The section is overly broad in its geographical ambit. The limitation should be more narrowly defined, to apply only to those parks and bathing areas where children can reasonably be expected to be present. It is also overly broad in that it applies for life, with no possibility of review. Without a review a person who has ceased to be a danger to children (or who indeed never was a danger to children) continues to be subject to the prohibition in s. 179(1)(b). A pardon under the Criminal Records Act or the royal prerogative of mercy, while removing only any disqualification flowing from conviction, does not meet the need for review because of inadequate and insufficient availability. Finally, s. 179(1)(b) applies to all persons convicted of the listed offences, without regard to whether they constitute a danger to children and accordingly is also overly broad in respect to the people to whom it applies.
The absence of notice, too, offends the principles of fundamental justice. Great care is taken to give notice in connection with other provisions of the Code.
It is significant that the new s. 161, enacted after the Court of Appeal's decision, applies only to persons who have committed the listed offences in respect of persons under age fourteen. In addition, the order made pursuant to it is discretionary so that only those offenders constituting a danger to children will be subject to a prohibition. Unlike s. 179(1)(b), the new s. 161 provides for both notice and review of the prohibition and accordingly reduces the significance of the overbreadth factor.
Doubts exist as to whether a violation of the right to life, liberty or security of the person which is not in accordance with the principles of fundamental justice can ever be justified, except perhaps in times of war or national emergencies. Overbroad legislation infringing s. 7 of the Charter is even more difficult to justify and would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis.
The objective of s. 179(1)(b) of protecting children from sexual offences is pressing and substantial. The protection of children from sexual offenses is obviously very important to society. Furthermore, the means employed in s. 179(1)(b), at least in some of their applications, are rationally connected to the objective. However, for the same reasons that s. 179(1)(b) is overly broad, it fails the minimal impairment branch of the s. 1 analysis and so cannot be justified under s. 1 of the Charter .
The remedies of reading in or reading down are not appropriate here. The changes which would be required to make s. 179(1)(b) constitutional would not constitute reading down or reading in but rather would amount to judicial rewriting of the legislation and the creation of an entirely new scheme with a completely different approach to the problem.
Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): Section 179(1)(b) should be interpreted as prohibiting the persons affected from being in one of the enumerated places for a malevolent or ulterior purpose related to the predicate offences. The purpose and legislative history of s. 179(1)(b), precedent and statutory context support this interpretation.
The legislative history of s. 179(1)(b) indicated that Parliament considered the word "loiter" to have a different meaning from the word "wander" which was removed from earlier versions of the provision. "Wander" connotes movement without specific intent; "loiter", notwithstanding the common element of idleness, is defined more narrowly and has a variable connotation according to the context.
The Crown's expert psychiatric and psychological evidence was of assistance in understanding the purpose and scope of s. 179(1)(b). The evidence on cross‑offending and the difficulty of predicting who will cross‑offend or repeat offend justifies some form of restriction on the liberty of persons convicted of sexual offences.
The section has at its foundation a concern for public safety and a desire to aid in the treatment and rehabilitation of offenders. It applies broadly to all persons convicted of the enumerated offences and therefore provides protection not only to children but also to others who could be victims of sexual assault in the listed areas. The areas where the prohibition applies are places where people will generally lower their guard.
A caveat to the general rule that words be given their ordinary meaning arises because the sense of the term "loiter" varies according to its context. The absence of purpose element in the ordinary meaning of loiter can have no application in the context of s. 179(1)(b). Parliament clearly intended to include conduct of convicted sex offenders whose purpose was related to re‑offending.
The prohibition contained in s. 179(1)(b) should be narrowed to render the prohibition less intrusive and to tailor it more carefully to the objectives being pursued. Not all loitering should be caught by its prohibition contained in s. 179(1)(b). Rather, the intrusion into the activities of individuals should be tied to some reason of public order. The concern to exclude presence in the enumerated areas for legitimate purposes from criminal prohibition is well‑founded. The restriction created by s. 179(1)(b) will not be the same in each of the listed areas.
Analysis of the interaction of other provisions of the Code dealing with a similar subject‑matter supports the interpretation that loitering as used in s. 179(1)(b) requires a malevolent purpose. Sections 179(1)(b) and 810.1 read together, however, produce a similar result to that achieved by s. 161 in relation to those convicted prior to the enactment of s. 161. (Section 161 allows a court at the time of sentencing to make an order prohibiting a sexual offender from attending day care centres, school grounds, playgrounds, community centres, or any public park or swimming area where persons under the age of 14 years are present or can reasonably be expected to be present. The s. 161 prohibition is available only in relation to persons who have committed offences against children under age 14.) Section 810.1 allows an application to be made to the provincial court, where there are reasonable grounds to fear that someone will commit certain sexual offences, for an order prohibiting that person from attending areas where children under age 14 are likely to be present. Section 179(1)(b) allows the police to take immediate preventative steps before a previous offender re-offends.
The two primary Charter concerns raised in relation to s. 179(1) (b) pertain to vagueness and overbreadth. Defining loitering in that section as being in an enumerated place for a malevolent or ulterior purpose related to the predicated offences avoids both these problems. A lifetime prohibition of activities with a malevolent or ulterior purpose related to re‑offending is not objectionable or over‑broad. Such a prohibition would impose a restriction on the liberty of the affected individuals to which ordinary citizens are not subject, but that restriction is directly related to preventing re‑offending. The affected persons' history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re‑offending justify this minor intrusion which does not breach the principles of fundamental justice.
Section 7 of the Charter was not violated by the absence of any notice of the prohibition contained in s. 179(1) (b). Even though formal notice of the content of s. 179(1) (b) might be preferable, Parliament's decision to provide notice in respect of certain Criminal Code prohibitions cannot be transformed into a principle of fundamental justice.
The allegation that s. 179(1)(b) violates ss. 9 , 11 (d), (h) and 12 of the Charter are without foundation. The absence of notice, for reasons similar to those relating to overbreadth, did not violate the s. 9 Charter guarantee against being arbitrarily detained or imprisoned. The s. 11 (d) Charter right to be presumed innocent until proven guilty was not infringed either for s. 179(1) (b) does not assume recidivism but rather provides the means to prevent it. Anyone charged under s. 179(1) (b) will be presumed innocent and the burden remains on the Crown to prove beyond a reasonable doubt that the accused committed the offence as interpreted. The s. 11 (h) right against double jeopardy was not violated. Section 179(1) (b) applies to persons identified by the fact of having been convicted of one of the enumerated offences. Any conviction under that section, however, will be based on violating its terms and not of having been convicted of one of the enumerated offences. Finally, the respondent was not the subject of cruel and unusual treatment or punishment contrary to s. 12 of the Charter . Such punishment or treatment must be "so excessive as to outrage the standards of decency" or have an effect "grossly disproportionate to what would have been appropriate". The lifetime prohibition of activities with a malevolent or ulterior purpose related to re‑offending, however, is both a minor and justifiable restraint of the affected persons' liberty.
Cases Cited
By Cory J.
Referred to: Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Munroe (1983), 5 C.C.C. (3d) 217; Ledwith v. Roberts, [1937] 1 K.B. 232; R. v. Hasselwander, [1993] 2 S.C.R. 398; R. v. Gauvin (1984), 11 C.C.C. (3d) 229; R. v. Andsten and Petrie (1960), 33 C.R. 213; R. v. Lozowchuk (1984), 32 Sask. R. 51; R. v. Cloutier (M.) (1991), 51 Q.A.C. 143, 66 C.C.C. (3d) 149; R. v. Willis (1987), 37 C.C.C. (3d) 184; Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Gosselin v. The King (1903), 33 S.C.R. 255; Attorney General of Canada v. The Reader's Digest Association (Canada) Ltd., [1961] S.C.R. 775; R. v. Popovic and Askov, [1976] 2 S.C.R. 308; Highway Victims Indemnity Fund v. Gagné, [1977] 1 S.C.R. 785; Toronto Railway Co. v. The Queen (1894), 4 Ex. C.R. 262; Lyons v. The Queen, [1984] 2 S.C.R. 633; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Schneider v. The Queen, [1982] 2 S.C.R. 112; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; PSAC v. Canada, [1987] 1 S.C.R. 424; R. v. Whyte, [1988] 2 S.C.R. 3; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vasil, [1981] 1 S.C.R. 469; Paul v. The Queen, [1982] 1 S.C.R. 621; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Zundel (1987), 58 O.R. (2d) 129; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Beare, [1988] 2 S.C.R. 387; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Graf (1988), 42 C.R.R. 146; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; Schachter v. Canada, [1992] 2 S.C.R. 679.
By Gonthier J. (dissenting)
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Munroe (1983), 5 C.C.C. (3d) 217; R. v. Gauvin (1984), 11 C.C.C. (3d) 229; R. v. Cloutier (M.) (1991), 51 Q.A.C. 143, 66 C.C.C. (3d) 149; R. v. Lozowchuk (1984), 32 Sask. R. 51; R. v. Andsten and Petrie (1960), 33 C.R. 213; Attorney General for Ontario v. Regional Municipality of Peel, [1979] 2 S.C.R. 1134; Attorney-General of Hong Kong v. Sham Chuen, [1986] 1 A.C. 887; Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 11 (d), (h), 12 , 15 .
Constitution Act, 1867, s. 91(27) .
Constitution Act, 1982, s. 52 .
Criminal Code, S.C. 1892, c. 29, ss. 207, 208.
Criminal Code, R.S.C. 1927, c. 36, s. 238(k) [ad. S.C. 1951, c. 47, s. 13].
Criminal Code, S.C. 1953‑54, c. 51, s. 164(1).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 246.1(1) [ad. S.C. 1980-81-82-83, c. 125, s. 19], 687 [rep. & sub. S.C. 1976-77, c. 53, s. 14].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 19 , 100 , 161 [ad. S.C. 1993, c. 45, s. 1], 175(1)(c), 177, 179(1)(b) [rep. & sub. R.S.C., 1985, c. 19 (3rd Supp.), s. 8], 260, 749(3), 810.1 [ad. S.C. 1993, c. 45, s. 11].
Criminal Records Act, R.S.C., 1985, c. C‑47, ss. 4 , 4.1(1) [ad. S.C. 1992, c. 22, s. 4(1)], (2) [ad. idem], 5(b) [rep. & sub. ibid., s. 5 ].
Authors Cited
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979, "loiter".
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-15: An Act to amend the Criminal Code and the Canada Evidence Act. Issue No. 1. November 27; December 11, 18, 1986; February 5, 17; March 17, 1987, at pp. 1:46, 3:25-3:25, 6:18-6:19, 8:29-8:30, 9:70-9:75, 10:27-10:31.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths. (Badgley Report). Ottawa: Minister of Supply and Services Canada, 1984.
Canada. National Parole Board. National Parole Board, Pardon Decision Policies, Annex: The Royal Prerogative of Mercy: Direction (June 1993).
Canada. Special Committee on Pornography and Prostitution. Report of the Special Committee on Pornography and Prostitution (Fraser Report). Ottawa: The Committee, 1985.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1992.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Grand Larousse de la langue française. Paris: Librairie Larousse, 1972-1975, "errer", "flâner", "malveillant".
House of Commons Debates, vol. 5, 4th sess., 21st Parl. Ottawa: King's Printer, 1952.
Lagarde, Irénée. Droit pénal canadien. Montréal: Wilson et Lafleur, 1962.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "loiter", "malevolent", "wander".
Ruby, Clayton C. Sentencing, 3rd ed. Toronto: Butterworths, 1987.
APPEAL from a judgment of the British Columbia Court of Appeal (1992), 77 C.C.C. (3d) 502, 18 C.R. (4th) 63, 20 B.C.A.C. 166, 35 W.A.C. 166, 12 C.R.R. (2d) 238, allowing an appeal from a judgment of Melvin J. (1991), 65 C.C.C. (3d) 46, dismissing an appeal from conviction by Filmer Prov. Ct. J. Appeal dismissed, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Robert A. Mulligan, for the appellant.
B. Rory B. Morahan, for the respondent.
Bernard Laprade, for the intervener.
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
Cory J. -- Section 179(1) (b) of the Criminal Code, R.S.C., 1985, c. C‑46 , as amended, makes it a crime for persons convicted of specified offences to be "found loitering in or near a school ground, playground, public park or bathing area". It must be determined whether the section infringes ss. 7 or 11 (d) of the Canadian Charter of Rights and Freedoms .
Facts
The respondent was charged with two counts of vagrancy under s. 179(1) (b) alleging that on or about July 5, 1989, he did commit vagrancy by loitering at Beacon Hill Park in Victoria. The first count was framed as loitering "at or near a playground". The second count, which referred to the same events, was framed as loitering "in or near a public park".
In 1987 the respondent was convicted of two counts of sexual assault contrary to the former s. 246.1(1) (now s. 271(1)) of the Criminal Code, R.S.C. 1970, c. C-34. These convictions made him subject to the prohibition set out in s. 179(1) (b).
On June 16, 1989, for about two minutes, Police Constable Ronald German observed the respondent standing in Beacon Hill Park in Victoria, British Columbia at the edge of a playground area. Around his neck the respondent was carrying a camera with a telephoto lens. The constable did not see the respondent take any pictures or approach or speak to any children. The respondent then went to another area of the park. Constable German followed the respondent and called to him. The respondent stopped, and German identified himself and produced his badge. He asked the respondent what he was doing in the park. The respondent replied that he was walking through the park just as he did every day.
After some further discussion, the officer asked the respondent for his address, date of birth, and if he had a criminal record. The respondent replied that he had a criminal record for sexual assault. Constable German then told the respondent that his hanging around the park was contrary to the vagrancy section of the Code, and that a convicted sex offender was not permitted to loiter near a public park, school yard or playground. The respondent asked the officer what he meant by "loitering", to which Constable German very astutely replied: "loitering meant standing around, apparently doing nothing, standing stationary in a location, or moving slowly in a certain area, stopping at regular intervals and standing around, or else loitering also could mean stopping in a location where it would obstruct persons who use that area too [sic] frequent". The officer did not charge the respondent, but warned him not to loiter near the playground at the park again.
On the afternoon of July 5, 1989, Constable Wayne Coleman observed the respondent walking on a pathway leading from the children's playground area in the Beacon Hill Park towards the petting zoo. After stopping there for a few minutes, the respondent went to his car. The respondent was once again carrying a camera with a large lens. Constable Coleman, who was in plain-clothes, followed the respondent in an unmarked police car. After driving around for approximately half an hour, the respondent returned to the park. There, the officer saw the respondent seated at a table approximately 50 yards from the playground area. He then moved to a bench approximately 20 yards from the playground and appeared to be using his camera. Some five minutes later, the respondent left the park and returned to his car. Constable Coleman followed the respondent to his residence, where he arrested Heywood and charged him with vagrancy. The police seized his camera and film. A search warrant was subsequently executed at his residence. A picture on the film found in the camera, and a number of pictures found in the respondent's residence and at the drugstore where he had his photographs developed, showed young girls playing in the park, their clothing disarranged from play so that the area of their crotch, although covered by underclothes, was visible.
At his trial, the respondent pleaded not guilty and challenged the constitutionality of s. 179(1) (b) on the grounds that it infringed ss. 7 , 11 (d), (h), 12 and 15 of the Charter . The trial judge found that s. 179(1) (b) violated ss. 7 and 11 (d) of the Charter , but that it was a justifiable limit under s. 1 . The respondent was convicted of the first count of vagrancy under s. 179(1) (b). The second count was conditionally stayed pursuant to the principle expressed in Kienapple v. The Queen, [1975] 1 S.C.R. 729. The respondent was sentenced to three months incarceration to be followed by three years probation. The respondent appealed to the Supreme Court of British Columbia, which dismissed his appeal. The Supreme Court judge accepted the trial judge's finding that s. 179(1) (b) violated ss. 7 and 11 (d) of the Charter , but like the trial judge found that they were justified under s. 1 .
The respondent appealed to the British Columbia Court of Appeal. The Court of Appeal allowed the respondent's appeal, and quashed the conviction. Hutcheon J.A. (Rowles J.A. concurring) accepted the breaches of ss. 7 and 11 (d) as found by the lower courts. Southin J.A. only found a breach of s. 7 . All three judges of the Court of Appeal found that s. 179(1) (b) was not justified under s. 1 of the Charter . The Crown appellant was granted leave to appeal to this Court.
Relevant Legislation
Section 179(1) (b) provides that:
179. (1) Every one commits vagrancy who
. . .
(b) having at any time been convicted of an offence under section 151, 152 or 153, subsection 160(3) or 173(2) or section 271, 272 or 273, or of an offence under a provision referred to in paragraph (b) of the definition "serious personal injury offence" in section 687 of the Criminal Code , chapter C‑34 of the Revised Statutes of Canada, 1970, as it read before January 4, 1983, is found loitering in or near a school ground, playground, public park or bathing area.
The definition of "serious personal injury offence" in s. 687 of the Criminal Code , as it read before January 4, 1983, was as follows:
687. . . .
(b) an offence mentioned in section 144 (rape) or 145 (attempted rape) or an offence or attempt to commit an offence mentioned in section 146 (sexual intercourse with a female under fourteen or between fourteen and sixteen), 149 (indecent assault on a female), 156 (indecent assault on a male) or 157 (gross indecency).
Judgments
Provincial Court (Filmer Prov. Ct. J.)
The trial judge found that s. 179(1)(b) of the Code violated s. 7 of the Charter because it was "an impediment on the freedom and liberty of persons who have been previously convicted of the enumerated sections of the Criminal Code ". He also found that s. 179(1) (b) violated s. 11 (d) of the Charter . However, he concluded that s. 179(1) (b) could be saved under s. 1 of the Charter .
The trial judge found that the word "loiter" in s. 179(1) (b) did not connote innocent behaviour; rather, there must be an untoward or improper motive. In his opinion that motive did not need to be illegal. It was sufficient if it was "malevolent", or something a reasonable person would not consider innocent. In light of this interpretation of the word "loiter", the trial judge found that s. 179(1) (b) was justified under s. 1 of the Charter . He held that the objective of the section, namely protecting children and vulnerable persons from those within the community who might be sexually predatory, was pressing and substantial and that the means chosen were rationally connected to this objective.
Based on the evidence of the photographs taken by the respondent, the trial judge found that the respondent did not have an innocent purpose for being in the park. He stated:
It is my view that the conduct of [the respondent] transcended the bounds of what is harmless and innocent. His conduct pandered to a purely prurient interest; that is, it arose from indulgence in lewd ideas. Lewd in this context means that it involved obscenity, indecency, or lasciviousness of thought. Such conduct is so reprehensible in my view no reasonable person could characterize it as innocent or lawful. As I said when reviewing the constitutionality of this section, the section is not intended to limit innocent attendances or attendances where a lawful purpose is involved. I cannot find such a purpose exists here.
He further noted that the provisions of the Criminal Records Act, R.S.C., 1985, c. C‑47 , applied to permit a person who was subject to s. 179(1) (b) to obtain a pardon so that they would no longer be subject to the prohibition. He found that this provision acted as a safeguard against the unfair application of s. 179(1) (b).
Supreme Court (1991), 65 C.C.C. (3d) 46 (Melvin J.)
Melvin J. held at p. 56 that the meaning of the word "loiter" should be determined "by reference to the general use of the word in everyday language as found in dictionaries, other sections in the same statutory enactment, and in the context of the offence section itself". He found, at pp. 57-58, that:
I am satisfied that the word "loiter" in s. 179(1) (b) requires the existence of some unlawful, or evil, or malevolent intention or purpose on the part of the accused to complete the offence. Such an interpretation of the section demonstrates that a guilty mind is an essential component of the offence which must be established beyond a reasonable doubt. It is not sufficient to convict an individual under this section, in my view, of loitering on the basis that he attended at a park and sat watching flowers grow or ducks swim. There must be more to his conduct which will demonstrate an untoward or improper purpose.
He then concluded that the respondent's purpose was not innocent and it was that purpose or state of mind which brought him within the definition of "loitering" in s. 179(1) (b).
The appeal before Melvin J. was argued on the basis that the trial judge was correct to find violations of ss. 7 and 11 (d) of the Charter . On this basis, he accepted that s. 179(1) (b) violated ss. 7 and 11 (d) of the Charter . However, after reviewing the expert evidence he was satisfied that s. 179(1) (b) was justified under s. 1 of the Charter . He stated, at p. 63, that:
The objective, namely, the controlling of the impulses of potential reoffenders and the protection of the public, is of great importance and clearly justifies overriding a constitutionally protected right or freedom, such as found in s. 7 or s. 11 (d) of the Charter . When one considers the means chosen under those circumstances, if the section contains an evil or malevolent intent as a component to be demonstrated by the evidence led on behalf of the [appellant], then the proportionality test in R. v. Oakes is satisfied as the measures are designed to achieve their objective and are rationally connected with that objective and have little impairment of the rights or freedom in question.
As a result of his conclusions he dismissed the respondent's appeal.
Court of Appeal (1992), 77 C.C.C. (3d) 502
Hutcheon J.A., Rowles J.A. concurring
In the Court of Appeal the Crown accepted the trial judge's finding that the provisions of s. 179(1) (b) violated ss. 7 and 11 (d) of the Charter . Hutcheon J.A. proceeded on this basis and as a result dealt only with the question as to whether the section was saved by s. 1 of the Charter . He concluded that it was not.
Hutcheon J.A. carefully reviewed the jurisprudence pertaining to the word "loiter" and determined that there was no support for the position that the word implies an evil or malevolent intent. He wrote at p. 509:
I cannot find any support in those authorities for the proposition that the word "loiter" implies an evil or malevolent intent or purpose or an untoward or improper motive. Moreover, I question whether the taking of the photographs would qualify as an evil or malevolent intent. To be a criminal offence under the Criminal Code , the intent must be directed toward the corruption of others, not oneself.
He observed that the objectives of s. 179(1) (b) were to control the impulses of potential re‑offenders and to protect the public. However, he found at p. 511 that the lack of a provision for notice in s. 179(1) (b) caused the means chosen to achieve the objectives of s. 179(1) (b) "to be unfair and not carefully designed to achieve the two objectives". Thus, they were not justified under s. 1 . Hutcheon J.A. stated that the Crown could not invoke s. 19 of the Code since s. 179(1) (b) was not a provision applicable to everyone. He concluded, at p. 511, that:
Our system of criminal justice could not operate if accused persons could raise the defence that they did not know it was contrary to the law to steal or to assault someone or to defraud. But if the fundamental liberty of movement of a particular group, convicted sexual offenders, is to be controlled, proper notice of the prohibition to the members of that group is an essential element of the control. Because of lack of a provision for notice I have concluded that s. 179(1) (b) is inconsistent with the Constitution, in the words of s. 52, and is of no force and effect. Section 179(1) (b) is not the law of which one could be ignorant.
In other words, s. 19 has no application if no offence has been committed and that is the result in this case of declaring s. 179(1)(b) to be of no force or effect. Nothing of s. 179(1) (b) is left to be saved by s. 19 .
Southin J.A. (concurring)
Southin J.A. agreed with Hutcheon and Rowles JJ.A. that the word "loiter" did not imply any evil or malevolent intent. She then considered whether s. 179(1) (b) violated either ss. 7 or 11 (d) of the Charter . She found that the section did not violate s. 11 (d) because the Crown had to prove the prior conviction and that the accused was "loitering" at one of the prohibited places.
Southin J.A. was of the view at p. 523 that Parliament, in the exercise of the authority conferred by s. 91(27) of the Constitution Act, 1867 , could "attach new disabilities to persons convicted of a crime". Southin J.A. stated that, although s. 179(1) (b) did not expressly say that a person convicted of a sexual crime could not go to certain places, she was proceeding on the basis that it was a form of prohibition. She found that a measure imposing a disability has aspects of both punishment and prevention. She noted that the purpose of s. 179(1) (b) was to protect young persons from sexual attacks.
Southin J. approached the question of whether s. 7 was violated by making commendable use of analogy to case law under s. 12 with respect to minimum sentences. She considered whether s. 179(1) (b) was grossly disproportionate to its purpose, and whether it was necessary to achieve a valid criminal law purpose. In her opinion although the purpose of the section was valid, the means were not proportional. She found that the deprivation of liberty in s. 179(1) (b) was not in accordance with the principles of fundamental justice because it is for life, and there is no avenue of review to relieve those covered by the section in whole or in part from the disability. She was not satisfied that the s. 7 breach due to the lack of a review process could be justified under s. 1 .
Constitutional Questions
On October 18, 1993 the Chief Justice stated the following constitutional questions:
1.Does s. 179(1)(b) of the Criminal Code, R.S.C., 1985, c. C‑46 , limit the right of the respondent to life, liberty and security of the person as guaranteed by s. 7 of the Charter ?
2.If the answer to question 1 is yes, is the limitation one which is reasonable, prescribed by law and demonstrably justified pursuant to s. 1 of the Charter ?
3.Does s. 179(1)(b) of the Criminal Code, R.S.C., 1985, c. C‑46 , limit the right of the respondent to be presumed innocent until proven guilty according