Regina et al v. Budreo [Indexed as: Budreo v. R.]
46 O.R. (3d) 481
[2000] O.J. No. 72
Docket No. C23785
Court of Appeal for Ontario
Finlayson, Laskin and Rosenberg JJ.A.
January 19, 2000
*Application for leave to appeal to the Supreme Court was
dismissed without reasons May 3, 2001 (Gonthier, Major and
Binnie JJ.). S.C.C. File No. 28230. S.C.C. Bulletin, 2001,
p. 816.
Charter of Rights and Freedoms -- Fundamental justice -- Section 810.1 of Criminal Code permitting court to impose recognizance on person likely to commit sexual offences against child -- Provision not creating "status offence" -- Section 810.1 preventative provision aimed at assessing risk of harm to children and creating no offence -- Section 810.1(3) allowing recognizance to prohibit person from attending "community centre" overly broad and that description should be struck down from list of potential places included in recognizance -- Section 810.1(2) violating s. 7 of Charter by requiring that provincial court judge "shall" order parties to appear once information received -- Motions judge correctly finding that Charter values preserved by reading down "shall" in s. 810.1(2) to "may" -- Provisions not void for vagueness -- General provisions of Criminal Code applicable to permit judge to issue summons or warrant to compel appearance or to detain person pending hearing under s. 810.0 and not resulting in breach of Charter rights -- Appeal dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 810.1 -- Canadian Charter of Rights and Freedoms, s. 7.
The appellant was a paedophile with a long record of sexual offences against young boys. Following his release from prison, the Crown sought a recognizance under s. 810.1 of the Criminal Code, which permits the court to impose a recognizance on any person likely to commit any one of a number of listed sexual offences against a child under 14 and to prohibit that person for up to one year from engaging in activities or attending places -- a public park, public swimming area, daycare centre, schoolground or playground -- where children under 14 are likely to be present. A recognizance may be imposed though the person has not committed an offence and has no criminal record. If an informant fears on reasonable grounds that the person will commit one of the listed offences and a provincial court judge, after a hearing, is satisfied that the informant has reasonable grounds for the fear, then the person may be ordered to enter into a recognizance. The appellant brought an application to prohibit the provincial court judge from holding the s. 810.1 hearing and for a declaration that s. 810.1 was unconstitutional because it violated ss. 7, 9, 11 and 15 of the Canadian Charter of Rights and Freedoms.
The applications judge concluded that s. 810.1 was constitutional in all respects except two. First, he declared "community centre", one of the places a person could be prohibited from attending under s. 810.1(3), to be inoperative because it was overly broad contrary to s. 7 of the Charter and could not be justified under s. 1. Second, he found that s. 810.1(2), which required the provincial court judge to cause the parties to appear before the court where an information was laid, infringed ss. 7 and 9 of the Charter and could not be justified under s. 1. To remedy this violation, he read down the word "shall" in s. 810.1(2) to read "may". The appellant appealed. He submitted that s. 810.1 violates s. 7 of the Charter in three ways: it creates a status offence; it is impermissibly broad; and it is impermissibly vague. He also submitted that the applications judge erred in reading down "shall" to "may" in s. 810.1(2) and that he should have declared the subsection inoperative.
Finally, he submitted that the applications judge erred in holding that a person subject to a s. 810.1 proceeding can be compelled to court by an arrest warrant under s. 507(4) of the Code and can be detained pending the hearing under s. 515.
Held, the appeal should be dismissed.
Section 810.1 does not violate s. 7 of the Charter by creating a status offence. It does not create an offence of any kind. It is a preventive provision aimed at protecting against future harm to children, not a punitive one.
Section 810.1 is not overbroad. Section 9 of the Charter adds nothing to the appellant's argument so his position is analyzed by applying only the principles applicable to s. 7 of the Charter. The restrictions on a defendant's liberty that may be imposed stop short of detention or imprisonment, and permit a defendant to lead a reasonably normal life. These restrictions are proportional to the important societal objective of protecting young children from the harm resulting from sexual abuse. Accepting the applications judge's deletion of community centres, the restrictions contemplated by s. 810.1 are narrowly targeted to meet Parliament's objective. Section 810.1(3) does not authorize the court to impose broader restrictions on a defendant's liberty than activities, areas or places where children are likely to be found.
While predicting future dangerousness is not an exact science, the impossibility of making exact predictions does not render s. 810.1 overbroad and contrary to the principles of fundamental justice.
Section 810.1 is not overbroad because it fails to require any offending conduct before a recognizance can be ordered. Insisting on a previous record for sexual offences against children before a recognizance can be ordered would undermine the preventive purpose of s. 810.1 and would require a child to be victimized before the Crown could act.
While the provisions for pre-trial arrest and bail which apply to a proceeding under s. 810.1 carry with them the possibility of custody or detention, that possibility does not make the section overbroad. Pre-trial arrest or even pre-hearing detention may be necessary to secure the defendant's attendance at the hearing or to prevent harm to children pending a hearing because of a defendant's unwillingness to comply with reasonable terms of release.
The procedural safeguards in s. 810.1 are adequate.
Section 810.1 is not impermissibly vague. The informant's "fear" that the defendant will commit a sexual offence against children must be "on reasonable grounds". The phrase "fears on reasonable grounds" in s. 810.1(1) connotes a reasonably based sense of apprehension about a future event. Moreover, although an informant's fear triggers an application under s. 810.1, under s-s. (3) a recognizance order can only be made if the presiding judge is satisfied by "evidence" that the fear is reasonably based. The phrase "fears on reasonable grounds" is not so imprecise that it fails to delineate an area of risk or fails to provide an adequate basis for legal debate. Moreover, it is surrounded by requirements in s. 810.1 -- the information, the summons, the hearing itself -- that give the defendant fair notice of the conduct sought to be prevented, and if a recognizance is ordered, the defendant will have fair notice of the conditions imposed and thus will know how to comply.
The applications judge did not err in reading down "shall" to "may" in s. 810.1(2) rather than striking down the entire subsection. "May" in s. 810.1(2) appropriately vindicates Charter values. Giving the presiding judge a discretion whether to summons or arrest a defendant after an information is sworn and received by the judge is an important constitutional safeguard. Thus, the remedy of reading down, while explicitly altering the legislation, preserves statutory objectives within clear constitutional contours. Moreover, recent legislation shows that it can safely be assumed that Parliament would have enacted s. 810.1(2) with the word "may".
The applications judge did not err in holding that ss. 507(4) and 514 of the Criminal Code apply to a proceeding under s. 810.1. Applying those sections to s. 810.1 does not violate s. 7 of the Charter.
APPEAL from a judgment of Then J. (1996), 1996 11800 (ON SC), 27 O.R. (3d) 347, 34 C.R.R. (2d) 16, 104 C.C.C. (3d) 245, 45 C.R. (4th) 133 (Gen. Div.) upholding in part the constitutionality of s. 810.1 of the Criminal Code, R.S.C. 1985, c. C-46.
OR. v. Allen (1985), 8 O.A.C. 16, 18 C.C.C. (3d) 155 (C.A.), consd Other cases referred to Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, 99 D.L.R. (4th) 350, 146 N.R. 270, 13 C.R.R. (2d) 65, 78 C.C.C. (3d) 510, 18 C.R. (4th) 374, 93 D.T.C. 5018; Goodyear Tire & Rubber Co. of Canada v. R., 1956 4 (SCC), [1956] S.C.R. 303; R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, 37 O.A.C. 322, 65 D.L.R. (4th) 240, 103 N.R. 86, 45 C.R.R. 278, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281 (sub nom. R. v. Sanelli); R. v. Finlay (1985), 1985 117 (ON CA), 52 O.R. (2d) 632, 11 O.A.C. 279, 23 D.L.R. (4th) 532, 18 C.R.R. 132, 23 C.C.C. (3d) 48, 48 C.R. (3d) 341 (C.A.); R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, 120 D.L.R. (4th) 348, 174 N.R. 81, 24 C.R.R. (2d) 189, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133; R. v. Laba, 1994 41 (SCC), [1994] 3 S.C.R. 965, 120 D.L.R. (4th) 175, 174 N.R. 321, 25 C.R.R. (2d) 92, 94 C.C.C. (3d) 385, 34 C.R. (4th) 360 (sub nom. R. v. Johnson, R. v. Laba); R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439, 163 Sask. R. 161, 157 D.L.R. (4th) 423, 224 N.R. 161, 165 W.A.C. 161, [1999] 4 W.W.R. 589, 50 C.R.R. (2d) 69, 123 C.C.C. (3d) 97, 14 C.R. (5th) 237; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, 82 N.S.R. (2d) 271, 44 D.L.R. (4th) 193, 80 N.R. 161, 207 A.P.R. 271, 32 C.R.R. 41, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1; R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, 144 N.R. 176, 12 C.R.R. (2d) 31, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74; R. v. Mills (1999), 1999 637 (SCC), 180 D.L.R. (4th) 1 (S.C.C.); R. v. S. (S.), 1990 65 (SCC), [1990] 2 S.C.R. 254, 41 O.A.C. 81, 110 N.R. 321, 49 C.R.R. 79, 57 C.C.C. (3d) 115, 77 C.R. (3d) 273 (sub nom. R. v. Sheldon S.); R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 4 O.R. (3d) 383n, 48 O.A.C. 81, 83 D.L.R. (4th) 193, 128 N.R. 81, 6 C.R.R. (2d) 35, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117; R. v. Shubley, 1990 149 (SCC), [1990] 1 S.C.R. 3, 71 O.R. (2d) 63n, 37 O.A.C. 63, 65 D.L.R. (4th) 193, 104 N.R. 81, 46 C.R.R. 104, 52 C.C.C. (3d) 481, 74 C.R. (3d) 1; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 47 O.A.C. 81, 125 N.R. 1, 3 C.R.R. (2d) 1, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253; R. v. Wakelin (1992), 1991 7947 (SK CA), 97 Sask. R. 275, 12 W.A.C. 275, 71 C.C.C. (3d) 115 (C.A.); R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, 24 O.A.C. 321, 61 Sask. R. 105, 45 D.L.R. (4th) 235, 81 N.R. 161, [1988] 1 W.W.R. 193, 32 C.R.R. 219, 37 C.C.C. (3d) 385, 60 C.R. (3d) 193 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11, 15 Constitution Act, 1867, s. 91(27) Constitution Act, 1982, s. 52 Criminal Code, R.S.C. 1985, c. C-46, ss. 487, 494, 495, 507(4), 515, 795, 810, 810.01 (en. 1997, c. 23, s. 19), 810.1 (en. 1993, c. 45, s. 11), 810.2 (en. 1997, c. 23, s. 19) Mental Health Act, R.S.O. 1990, c. M.7 Authorities referred to Roach, Constitutional Remedies in Canada (1999), p. 14.456 Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), pp. 203-09
Julian N. Falconer, Clayton C. Ruby and Richard Macklin, for appellant. David Butt, for respondents. James W. Leising and Jeff Kehoe, for intervenor, Attorney General of Canada. Marilyn L. Pilkington and Stephen Lawrie McCammon, for intervenor, The Canadian Civil Liberties Association.
The judgment of the court was delivered by
LASKIN J.A.: --
INTRODUCTION
1Section 810.1 of the Criminal Code, R.S.C. 1985, c. C-46, enacted by Parliament in 1993, permits the court to impose a recognizance on any person likely to commit any one of a number of listed sexual offences against a child under 14 years of age and to prohibit that person for up to one year from engaging in activities or attending places -- a public park, public swimming area, daycare centre, schoolground or playground -- where children under 14 are likely to be present. [See Note 1 at end of document] A recognizance may be imposed though the person has not committed an offence and has no previous criminal record. If an informant fears on reasonable grounds that the person will commit one of the listed offences and a provincial court judge, after a hearing, is satisfied that the informant has reasonable grounds for the fear, then the person may be ordered to enter into a recognizance. The issue on this appeal is the constitutionality of s. 810.1.
2The appellant Wray Budreo is a paedophile. He has a long record of sexual offences against young boys. In November 1994, he was released from prison after serving a sentence for three convictions for sexual assault. The Crown immediately sought a recognizance under s. 810.1. The appellant brought an application to prohibit the provincial court judge, His Honour Judge Kelly, from holding the s. 810.1 hearing and for a declaration that s. 810.1 was unconstitutional because it violated ss. 7, 9, 11 and 15 of the Canadian Charter of Rights and Freedoms.
3In a lengthy and well reasoned decision, [See Note 2 at end of document] Then J. concluded that s. 810.1 was constitutional except in two respects. First, he declared "community centre," one of the places a person could be prohibited from attending under s. 810.1(3), to be inoperative because it was overly broad contrary to s. 7 of the Charter and could not be justified under s. 1. Second, he found that s. 810.1(2), which required the provincial court judge to cause the parties to appear before the court, infringed ss. 7 and 9 of the Charter and could not be justified under s. 1. To remedy this violation, however, Then J. read down the word "shall" in s. 810.1(2) to read "may".
4The appellant Budreo appealed and was supported in his appeal by the intervenor, The Canadian Civil Liberties Association. In oral argument the appellant narrowed the focus of his appeal to three main issues. First, he submitted that s. 810.1 violated s. 7 of the Charter. In his submission, s. 810.1 deprived him of his liberty contrary to the principles of fundamental justice in three ways: s. 810.1 creates a status offence; it is impermissibly broad; and it is impermissibly vague. Second, he submitted that Then J. erred in reading down "shall" to "may" in s. 810.1(2) and that he should instead have declared the subsection inoperative. Third, he submitted that Then J. erred in holding that a person subject to a s. 810.1 proceeding can be compelled to court by an arrest warrant under s. 507(4) of the Code and can be detained pending the hearing under s. 515. As part of this third submission the appellant asked us to reconsider this court's decision in R. v. Allen (1985), 18 C.C.C. (3d) 155, 8 O.A.C. 16 (C.A.) in the light of the Charter.
5I would dismiss the appellant's appeal. Because I agree substantially with the reasons of Then J., I will limit my own reasons to summarizing the main points on which I rely, focusing on the specific arguments that were made before us.
BACKGROUND FACTS
Background Facts
6The appellant is 55 years old. He has been diagnosed as a paedophile. He has an extensive criminal record dating back to 1961, which includes many convictions for indecent assault and sexual assault committed against young boys. These convictions, in the main, have resulted from the "physical touching" of boys between five and 17 years of age. Of the appellant's 36 convictions, 26 have been for the physical touching of young males.
7On November 18, 1994, the appellant was released from the Kingston Penitentiary, after having served a six-year sentence for three counts of sexual assault. These sexual assault convictions concerned three incidents in which the appellant convinced the victims -- young boys -- to lay down in a park and then fondled their bare stomachs, and in two cases their genitals. In sentencing the appellant, Webber D.C.J. wrote, "Clearly, Mr. Budreo is a person who has a paedophiliac problem which has existed for many, many years and it appears that there is very little that has been done for him and there is very little that he has done for himself, except on a spasmodic and irregular basis."
8On his release, at the request of the Correctional Service of Canada, the appellant submitted to a psychiatric assessment under the Mental Health Act, R.S.O. 1990, c. M.7 to determine whether he was certifiable. The psychiatrist with the Correctional Service who did the assessment declined to certify the appellant. The psychiatrist concluded that the appellant did not pose a sufficient risk of serious harm to himself or to members of the public, that he had made considerable gains toward rehabilitating himself, and that he was "well motivated". Doctors at the Clarke Institute of Psychiatry also concluded that the appellant did not pose a danger to himself or others and, thus, should not be admitted under the Mental Health Act.
9Since his release, the appellant has followed a treatment plan devised for him. The treatment plan consists of continued psychiatric counselling directed by a doctor at the Clarke Institute and monthly injections of the anti-androgen drug Luperon.
10Nonetheless, the appellant's release from prison sparked considerable publicity, most of it negative. The appellant had gone first to Peterborough and then to Toronto. He was under continuous police surveillance in both cities and press releases were issued to tell the public of his whereabouts.
11Within three days of his release, the Crown began proceedings under s. 810.1 of the Criminal Code. The Crown acknowledges that it sought a recognizance under s. 810.1, not because the appellant had done anything improper or illegal since his release from prison, but because of his criminal record and his diagnosis as a paedophile.
12On November 20, 1994, Detective Wendy Leaver of the Metropolitan Toronto Police Service asked the appellant to agree to enter into recognizance under s. 810.1. The appellant was apparently unwilling to do so. The s. 810.1 application was then scheduled for November 22, 1994 and the appellant was told to obtain counsel.
13Detective Leaver swore an information under s. 810.1 in which she said she feared, on reasonable grounds, that the appellant would commit any one of a number of specified sexual offences against children under the age of 14. She said that her fear was based on the appellant's psychiatric reports between 1963 and 1993, his criminal record, numerous hospital and parole board reports and a conversation with the appellant's treating psychiatrist at the Clarke Institute, who considered the appellant a high-risk paedophile if he did not take Luperon.
14Detective Leaver attended before Judge Kelly on November 22, 1994. The appellant came to court voluntarily. Nonetheless, Detective Leaver asked the appellant to leave the courtroom, and once he had done so, arrested him under s. 507(4) of the Criminal Code.
15The appellant was then in custody. The Crown therefore proceeded with a show cause hearing before Judge Kelly to determine whether the appellant would be released on bail pending the s. 810.1 application. The appellant had met with a lawyer the evening before, but that lawyer had not been retained to conduct the show cause hearing. The lawyer did ask that the hearing be adjourned 48 hours and that, in the interim, the appellant be released from custody. The Crown opposed the adjournment. Judge Kelly refused the adjournment request, saying that he would grant it only if the appellant remained in custody. The lawyer then withdrew. The appellant, unrepresented, agreed to the conditions of his release on bail sought by the Crown.
16These conditions included that he not engage in any activity involving contact with persons under the age of 14 unless in the presence of and under the supervision of Reverend Hugh Kirkegaard and another adult; that he not be at or be within 50 metres of a public park, swimming area, daycare, school ground, playground, community centre or any other place where persons under 14 can reasonably be expected to be found, except in the presence of and under the supervision of Reverend Kirkegaard and another adult; that he continue to take Luperon (or Provera) at least once a month; and that he continue counselling or treatment at the Clarke Institute. The s. 810.1 hearing was adjourned to November 28, 1994.
17On November 28, 1994, Judge Kelly varied the appellant's bail conditions. At the same time, the appellant brought an application for prerogative relief to prevent Judge Kelly from proceeding with the s. 810.1 hearing and for a declaration that ss. 810.1 and 507(4) of the Code violated ss. 7, 9, 11 and 15 of the Charter. Pending the resolution of the constitutional issues, the s. 810.1 hearing has been adjourned.
18However, on December 13, 1994, the appellant's bail conditions were further varied by Hoilett J. Under the amended conditions, the appellant continues to be prohibited from activities involving contact with persons under 14 years of age unless in the presence of an adult who does not have a criminal record, he continues to be restricted in his movement in parks and community centres, and he continues to be required to take counselling. The material in the record shows that the appellant was continuing his counselling at the Clarke Institute and was continuing to take Luperon.
19Fresh evidence filed on appeal showed that the appellant brought a further application to vary the conditions of his bail, which was opposed by the Crown. In a decision dated October 1, 1998, Keenan J. refused the application. In his reasons, he noted that the appellant's bail conditions were virtually identical to the recognizance conditions under s. 810.1; that but for a single breach of the condition not to consume alcohol, the appellant had complied with all the conditions of his bail for four years; that he had co-operated with a Circle of Support and Accountability organized by volunteers of the Mennonite faith; and that, indeed, Detective Leaver had participated in the Circle to supervise the appellant and assist in his treatment. Nonetheless, Keenan J. could find "no basis for varying the recognizance of bail". I turn now to the constitutional issues in this appeal.
DISCUSSION
First Issue -- Does s. 810.1 Violate s. 7 of the Charter?
Discussion
20Sections 810.1(1), (2) and (3) provide:
810.1(1) Any person who fears on reasonable grounds that another person will commit an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 170 or 171, subsection 173(2) or section 271, 272 or 273, in respect of one or more persons who are under the age of fourteen years, may lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.
(2) A provincial court judge who receives an information under subsection (1) shall cause the parties to appear before the provincial court judge.
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order the defendant to enter into a recognizance and comply with the conditions fixed by the provincial court judge, including a condition prohibiting the defendant from engaging in any activity that involves contact with persons under the age of fourteen years and prohibiting the defendant from attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, for any period fixed by the provincial court judge that does not exceed twelve months.
21The appellant's main constitutional attack on s. 810.1 is that it violates s. 7 of the Charter. Section 7 provides:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
22To make out a violation of s. 7 the appellant must show first that s. 810.1 deprives him of his right to life, liberty or security of the person; and second, that this deprivation is contrary to the principles of fundamental justice.
23The Crown acknowledges that the appellant meets the first branch of the s. 7 test. Section 810.1 deprives the appellant of his liberty. The conditions in s. 810.1 prevent the appellant from going to many places that other Canadians can freely go to and thus prevent the appellant from participating fully in a community's activities. Although not as serious an intrusion on his freedom as detention or imprisonment, these conditions in s. 810.1 still restrict the appellant's "liberty" under s. 7 of the Charter. [See Note 3 at end of document] Whether these restrictions on the appellant's liberty are in accordance with the principles of fundamental justice is at the heart of this appeal. The appellant argues that s. 810.1 contravenes the principles of fundamental justice for three reasons: it creates an offence based on status; it is overbroad; and it is void for vagueness.
(i) Does s. 810.1 create a status offence?
(i) Does s. 810.1 create a status offence?
24The appellant submits that s. 810.1 creates an offence based on a person's status alone, that is based on a person's medical diagnosis or even on a person's past criminal record but without any current offending conduct. The appellant argues that s. 810.1 is punitive, that it punishes a person though that person may have done nothing wrong. An offence based on status alone, according to the appellant, is contrary to the principles of fundamental justice.
25Accepting that a status offence contravenes fundamental justice, there are two answers to the appellant's submission. The main answer is that s. 810.1 does not create an offence. It is a preventive provision, not a punitive provision. It aims not to punish past wrongdoing but to prevent future harm to young children, to prevent them from being victimized by sexual abusers. The second answer is that s. 810.1 is not about a person's status. It is about assessing the present risk of a person committing a sexual offence against young children.
26Whether s. 810.1 is punitive or preventive permeated the argument of this appeal. Indeed, characterizing s. 810.1 as punitive is central to the appellant's position. If s. 810.1 is punitive, if it creates an offence, then the appellant fairly argues that it contains inadequate constitutional safeguards. Then J., however, held that s. 810.1 was a preventive measure aimed at the protection of children, and I agree with him.
27The criminal justice system has two broad objectives: punish wrongdoers and prevent future harm. A law aimed at the prevention of crime is just as valid an exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867, as a law aimed at punishing crime. [See Note 4 at end of document] Thus, the appellant has not argued, nor could he, that Parliament cannot validly pass a law to prevent future harm to children.
28What the appellant does argue is that the law Parliament did pass, s. 810.1, is more punitive than preventive, and thus creates an offence, based solely on a person's status. Some aspects of s. 810.1 are punitive or coercive: the availability of an arrest warrant; detention pending a hearing unless the defendant is released on bail; and jail on the defendant's refusal to enter into a recognizance. These coercive aspects, however, are necessary to preserve the integrity of the s. 810.1 proceedings. By themselves, they do not turn s. 810.1 into a punitive provision. Nor does the stigma that undoubtedly accompanies a s. 810.1 proceeding make the proceeding punitive. That stigma will attach whether the section is preventive or punitive.
29To characterize s. 810.1 as punitive, as creating an offence, the appellant would have to show that its purpose is "to mete out criminal punishment" [See Note 5 at end of document] or that it has a "true penal consequence". A true penal consequence, according to the Supreme Court of Canada in R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541 at p. 561, 52 C.C.C. (3d) 385 is "imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large."
30By these standards, s. 810.1 does not create an offence. Its purpose is not to punish crime but to prevent crime from happening. Its sanctions are not punitive, nor are they intended to redress a wrong; they are activity and geographic restrictions on a person's liberty intended to protect a vulnerable group in our society from future harm.
31As Then J. observed, s. 810.1 is analogous to s. 810, the peace bond provision of the Criminal Code. Typically, s. 810 is used to protect an identified victim, a person already harmed, from further harm where evidence points to the likelihood of danger to the victim from continuing contact with another person. Courts have consistently held that s. 810 is a preventive measure, that it does not create an offence or mete out a criminal punishment. [See Note 6 at end of document] The appellant did not suggest otherwise. Nor indeed did the appellant suggest that s. 810 was unconstitutional. Instead, he sought to distinguish s. 810 by arguing that it is meant to address breaches of the peace between citizens, and thus it amounts to a private remedy to ensure that named individuals remain law abiding.
32I see nothing "private" in s. 810. It authorizes a recognizance order in the same way as does s. 810.1. Both are concerned with preventing victimization. The main differences between s. 810 and s. 810.1 are the group of likely victims and the breadth of restrictions that may be imposed. A recognizance order under s. 810 aims to prevent harm to named individuals and the restrictions are tailored to prevent contact between those persons and the likely perpetrator. A recognizance order under s. 810.1 aims to prevent harm to a large group of children, identified only by their age, and the restrictions must necessarily be more extensive to prevent contact between this large group of children and the likely perpetrator. Section 810.1 is therefore broader than s. 810. But the two sections are similar enough that if s. 810 does not create an offence, it is hard to see how s. 810.1 does either.
33Moreover, I do not regard s. 810.1 as authorizing court-ordered restrictions on a person's liberty because of that person's status. Section 810.1 looks not to a person's status but to a person's present risk of future dangerousness. That risk will have to be assessed by looking at all relevant factors in a person's life, factors that are not immutable but will change over time.
34Thus, I conclude that s. 810.1 does not create a status offence. It is a preventive measure. Indeed, if the preventive aspect of the federal criminal law power is going to be used anywhere, I cannot think of a more important use than the protection of young children from likely sexual predators. However, although s. 810.1 is properly characterized as a preventive measure, to be constitutionally valid, it must be neither overbroad nor vague.
(ii) Is s. 810.1 overbroad?
(ii) Is s. 810.1 overbroad?
35The appellant submits that s. 810.1 is overbroad contrary to ss. 7 and 9 of the Charter. Because I do not think that s. 9 adds anything to the appellant's position, I will focus only on s. 7.
36That a law not be overbroad is now accepted as a principle of fundamental justice: Heywood, supra. "Overbreadth" looks at the means a legislature has chosen to achieve a legitimate objective. The means chosen must be sufficiently tailored or narrowly targeted to meet their objective. If the means chosen are too broad or too wide, if the law goes further than necessary to accomplish its purpose, the law becomes arbitrary or disproportionate. A person's rights will be limited without good reason. The principles of fundamental justice will be violated.
37I accept the legitimacy, and indeed the importance, of Parliament's objective in passing s. 810.1 of the Criminal Code. Children are among the most vulnerable groups in our society. The sexual abuse of young children is a serious societal problem, a statement that needs no elaboration. A sizeable percentage of the sexual offences against children -- according to the record, approximately 30 per cent -- occurs in public places, the very places specified in s. 810.1. The expert evidence shows that recidivism rates for sexual abusers of children are high and that keeping high-risk offenders away from children is a sound preventive strategy. Parliament thus cannot be faulted for its objective in enacting s. 810.1. The state should not be obliged to wait until children are victimized before it acts. The societal interest in protecting children from sexual abuse supports Parliament's use of the preventive part of its criminal law power.
38Even accepting the legitimacy of Parliament's purpose, the appellant submits that the means it has chosen in s. 810.1 to achieve that purpose are too broad. The appellant focuses on four aspects of s. 810.1: the extent of the restrictions on his liberty, the imposition of these restrictions without a requirement of any previous offending conduct, the pre-hearing arrest and detention provisions to which he was subjected, and the extent of the procedural protections he was afforded. I will deal with each of these. Overall, however, I am not persuaded that s. 810.1 is overbroad. Parliament might have chosen other means to achieve its objective but the means that it did choose are reasonable and in accordance with the principles of fundamental justice.
- Extent of restrictions does not make s. 810.1 overbroad
1. Extent of restrictions does not make s. 810.1 overbroad
39If a recognizance is ordered, a defendant may be restricted from participating in any activities or from attending a public park or public swimming area where children under 14 may reasonably be expected to gather or a daycare centre, schoolground or playground. In my view, these restrictions, although limiting a defendant's liberty, are not overbroad. I say that for three reasons. First, the restrictions stop short of detention or imprisonment. I think it fair to conclude that detention or imprisonment under a provision that does not charge an offence would be an unacceptable restriction on a defendant's liberty and would be contrary to the principles of fundamental justice. But as Then J. observed, the restrictions contemplated by s. 810.1 permit a defendant to lead a reasonably normal life.
40Second, these restrictions on a defendant's liberty are proportional to the important societal interest in s. 810.1, the protection of young children. As McLachlin J. observed in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 at p. 603, 66 C.C.C. (3d) 321, [See Note 7 at end of doucment] "the principles of fundamental justice reflect a spectrum of interests, from the rights of the accused to broader societal concerns. Section 7 must be construed having regard to those interests . . . ." The defendant's right to liberty is not the only s. 7 interest at stake in s. 810.1. The societal interest in protecting young children from harm must also be taken into account. Section 810.1 attempts to balance these two interests: the interest of likely child sexual abusers in going where they please, including places where young children gather, and the interest of the state in ensuring that young children can go safely and securely to places typically associated with children's activities. In my view, s. 810.1 strikes a reasonable compromise betw een these two interests. It provides a measured intrusion into a defendant's liberty consistent with protecting young children from harm.
41Third, accepting Then J.'s deletion of community centres, the restrictions contemplated by s. 810.1 are narrowly targeted to meet Parliament's objective. The only places a defendant may be prohibited from going are where children under age 14 are or can reasonably be expected to be present; and the only activities a defendant may be prohibited from engaging in are those involving contact with children under 14. By limiting the scope of s. 810.1 in this way, I do not accept the submission of the provincial Crown that s. 810.1(3) authorizes the court to impose broader restrictions on a defendant's liberty than activities, areas or places where children are likely to be found. Section 810.1(3) provides that a judge may "order the defendant to enter into a recognizance and comply with the conditions fixed by the provincial court judge, including" the specified conditions (emphasis added). The specified conditions following the word "including" are examples of the kinds of conditions t hat can be imposed. The context of s. 810.1 and its overall purpose suggest that the word "including" is used to limit the scope of the general term "conditions" to those conditions similar to the specified examples. [See Note 8 at end of document] On this interpretation, a judge could prohibit a defendant from going to a recreation hall where young children were likely to be present but could not, for example, require a defendant to take the drug Luperon, however desirable that may be. This interpretation, in my view, not only appropriately reflects the context and purpose of s. 810.1, it also accords with Charter values. A broader interpretation, permitting the judge to order a defendant to take a course of treatment or to take a particular drug, under a provision that does not create an offence would raise serious Charter concerns. Under the narrower interpretation I have adopted, the restrictions contemplated by s. 810.1 are not overbroad.
- Lack of a requirement of a previous criminal record does not make s. 810.1 overbroad
2. Lack of a requirement of a previous criminal record does not make s. 810.1 overbroad
42A recognizance order may be imposed on a defendant who has no previous criminal record, who has committed no overt sexual act, who has seemingly done nothing wrong. All that is required is for the presiding judge to be satisfied the informant has reasonable grounds for the fear that the defendant will commit a sexual offence against a child under 14. The appellant submits that without a triggering requirement of some previous offending conduct, s. 810.1 is overbroad because it applies to too many people. I do not accept this submission.
43What s. 810.1 is trying to measure is a defendant's present likelihood of future dangerousness or present risk of committing a sexual offence against children in the future. Predicting future dangerousness is not an exact science. However, the impossibility of making exact predictions does not render s. 810.1 overbroad and contrary to our principles of fundamental justice. La Forest J. addressed this point in dealing with the dangerous offender legislation in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 at pp. 364-65, 37 C.C.C. (3d) 1:
However, as Holmes has reminded us, the life of the law has not been logic: it has been experience. The criminal law must operate in a world governed by practical considerations rather than abstract logic and, as a matter of practicality, the most that can be established in a future context is a likelihood of certain events occurring.
. . . It seems to me that a "likelihood" of specified future conduct occurring is the finding of fact required to be established; it is not, at one and the same time, the means of proving that fact. Logically, it seems clear to me that an individual can be found to constitute a threat to society without insisting that this require the court to assert an ability to predict the future.
So too did Lamer C.J.C. in dealing with the bail system in R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711 at p. 739, 77 C.C.C. (3d) 91:
The bail system has always made an effort to assess the likelihood of future dangerousness while recognizing that exact predictions of future dangerousness are impossible. The Report of the Canadian Committee on Corrections (Ouimet Report (1969)), one of the studies which led to the current bail system, recognized the impossibility of precise predictions at p. 110:
It has been argued that there is no accurate way of predicting the accused's behaviour pending trial. Even if a measure of predictability could be achieved, any fact-finding process for determining this issue would be so time-consuming as to nullify the purpose of bail.
We think the issued [sic] involved are no more difficult than others which courts are constantly called upon to resolve in other areas of the law. Some reasonable assessment of the probability of the accused's behaviour pending trial is not impossible. If the prosecution does not make out a reasonable cause for denial of bail, it follows that it should be granted.
The bail system does not aim to make exact predictions about future dangerousness because such predictions are impossible to make. However, Lyons demonstrates that it is sufficient to establish a likelihood of dangerousness, and that the impossibility of making exact predictions does not preclude a bail system which aims to deny bail to those who likely will be dangerous.
44A previous criminal record for sexual assault against children will no doubt be relevant to predicting future dangerousness in many cases. But insisting on a previous record before a recognizance can be ordered would undermine the preventive purpose of s. 810.1. It would require a child to be victimized before the Crown could act, even if the Crown had highly reliable evidence of dangerousness. If some previous offending conduct were required before a recognizance could be ordered, then the Crown could not protect children from child sexual abusers known to medical authorities but not yet charged or from sexual abusers who could not be charged because the victim was too traumatized to testify or because the victim could not be found. Instead of requiring some previous offending conduct, s. 810.1 invites the presiding judge to consider all the relevant evidence on whether a defendant will commit a sexual offence against children. I agree with Then J.'s summary of the kinds of evidence likely to be led before the presiding judge (at p. 365):
For instance, evidence may be led that the defendant has made a threat or sexual proposition to a specific child or a group of children. More common, no doubt, will be cases where evidence will be led at the hearing concerning the individual's general proclivity to abuse children sexually. This could be based on a relevant criminal record and past behaviour around children. Evidence of a diagnosed medical mental disorder that predisposes the defendant to be sexually attracted to children might weigh in favour of ordering a recognizance, just as evidence of continuing successful treatment will be in the defendant's favour. On the very wording of the section, no one factor can be determinative.
45This passage reflects a sensible approach to a proceeding under s. 810.1. Requiring a criminal record or some other offending conduct as a condition of a recognizance order under s. 810.1 is at odds with the preventive purpose of the section. I conclude that s. 810.1 is not overbroad because it fails to require any offending conduct before a recognizance can be ordered.
- The pre-hearing provisions for arrest and bail do not make s. 810.1 overbroad
3. The pre-hearing provisions for arrest and bail do not make s. 810.1 overbroad
46The provisions for pre-trial arrest and bail -- which, as I will discuss later in these reasons, apply to a proceeding under s. 810.1 -- carry with them the possibility of a sanction more severe -- custody or detention -- than any sanction that may be imposed as a result of a hearing under s. 810.1. That possibility, however, does not make the section overbroad. Pre-trial arrest or even pre-hearing detention may be necessary to secure the defendant's attendance at the hearing or to prevent harm to children pending a hearing because of a defendant's unwillingness to comply with reasonable terms of release. In short, as I have already said, pre-trial arrest and detention may be needed in some cases to ensure the integrity and viability of the s. 810.1 proceedings themselves.
- Procedural safeguards are sufficient to not make s. 810.1 overbroad
4. Procedural safeguards are sufficient to not make s. 810.1 overbroad
47The procedural safeguards in s. 810.1 are adequate. Anyone subjected to a s. 810.1 application receives notice of the hearing. The hearing must meet the procedural fairness requirements of a summary conviction trial. No order can be made until after the hearing is completed. The presiding provincial court judge has discretion to limit the restrictions imposed. Any order made is not a lifelong injunction; it can last no longer than a year and may be renewed only after an entirely new hearing. A person subjected to a s. 810.1 order may appeal the order and may, at any time, seek to vary the conditions.
48I therefore conclude that s. 810.1 is not overbroad. Instead, it strikes a reasonable balance between the liberty interest of the defendant and the state's interest in protecting young children from harm. A defendant's liberty interest may be restricted only after a hearing complying with the requirements of natural justice and only to the extent needed to avoid unreasonably jeopardizing the safety and security of young children.
(iii) Is s. 810.1 void for vagueness?
(iii) Is s. 810.1 void for vagueness?
49Like the overbreadth principle, the void for vagueness principle is also concerned with whether the legislature has used precise enough means to achieve its objective. But whereas overbreadth is concerned with whether the legislation is targeted sufficiently narrowly, vagueness is concerned with whether the legislation is defined with sufficient clarity. The rationale for the void for vagueness principle is that, unless a law sufficiently delineates the area of risk of unlawful conduct, citizens will not have the fair notice of the law to which they are entitled, and police officers and others will have too much discretion in deciding how and when to enforce the law. Thus, a law must provide "an intelligible standard according to which the judiciary must do its work" and "an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria." [See Note 9 at end of document] Otherwise, the law will be impermissibly vague contrary to the principles of fundamental justice .
50The appellant submits that s. 810.1 does not sufficiently delineate an area of risk of unlawful conduct, and thus does not provide fair substantive notice to a citizen, because it allows for restrictions on liberty on an informant's fear on reasonable grounds. The appellant argues that the word "fear" should be contrasted with the word "belief", which is used in Criminal Code provisions authorizing an arrest or a search. [See Note 10 at end of doucment] "Fear", according to the appellant, can be irrational or emotional and is invariably subjective, while "belief" can be assessed objectively.
51I do not accept the appellant's argument. The word "fear" or "fears" should not be considered in isolation but together with the modifying words in s. 810.1(1) "on reasonable grounds". Fear alone connotes a state of belief or an apprehension that a future event, thought to be undesirable, may or will occur. But "on reasonable grounds" lends objectivity to the apprehension. In other words, the phrase "fears on reasonable grounds" in s. 810.1(1) connotes a reasonably based sense of apprehension about a future event, or as Then J. put it, it "equates to a belief, objectively established, that the individual will commit an offence" (at p. 381).
52Moreover, although an informant's fear triggers an application under s. 810.1, under s-s. (3) a recognizance order can only be made if the presiding judge is satisfied by "evidence" that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in s-s (1). Although the "evidence" the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy.
53Despite the need for the informant's state of belief to be objectively assessed and for the presiding judge to come to an independent conclusion, I acknowledge some imprecision in the phrase "fears on reasonable grounds". But some imprecision is to be expected because s. 810.1 requires a prediction about future dangerousness. So too does s. 810, which uses the same phrase. The phrase is not so imprecise that it fails to delineate an area of risk or fails to provide an adequate basis for legal debate. Moreover, it is surrounded by requirements in s. 810.1 -- the information, the summons, the hearing itself -- that give the defendant fair notice of the conduct sought to be prevented; and if a recognizance is ordered, the defendant will have fair notice of the conditions imposed and, thus, will know how to comply. The threshold for declaring a law void for vagueness is appropriately high. Section 810.1 does not pass this threshold. I would not give effect to this ground of appeal.
Second Issue -- Did Then J. Err in Reading Down "Shall" to "May" in s. 810.1(2) of the Code?
Second Issue -- Did Then J. Err in Reading Down "Shall" to "May" in s. 810.1(2) of the Code?
54Section 810.1(2) provided that "a provincial court judge who receives an information under s-s. (1) shall cause the parties to appear before the provincial court judge" (emphasis added). Then J. held that, in the context of a preventive provision like s. 810.1, making the issuance of process on a defendant mandatory violated ss. 7 and 9 of the Charter and could not be justified under s. 1. In his view, "an automatic issuance of process, with the potential arrest of the defendant, is excessive and unwarranted". It provides "no control on obviously unfounded informations under which a person may be summonsed or arrested" (at pp. 399-401). Thus, it subjects the ordinary citizen to capricious or unjustifiable detention. In Then J.'s view, and relying on the Supreme Court's decision in Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, 78 C.C.C. (3d) 510, "a residual discretion is a constitutional requirement." The Crown does not take issue with Then J.'s holding that "shall" in s. 810.1(2) is unconstitutional.
55The appellant, however, takes issue with Then J.'s remedy. Having found that a discretion was a constitutional requirement, Then J. applied s. 52 of the Constitution Act, 1982, and read down "shall" to "may". The appellant submits that he should simply have declared the subsection inoperative.
56The Supreme Court refused to read down "shall" to "may" in Baron itself, and in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 63 C.C.C. (3d) 481. Then J. distinguished Baron on the grounds that the Attorney General in that case had not asked for the remedy of reading down and that, unlike the provision challenged in Baron, s. 810.1(2) was not central to the legislative regime in s. 810.1. I think it fair to say, however, that when legislation expressly excludes a judicial discretion, courts have been reluctant to read one in as a constitutional remedy. Nonetheless, in my view, Then J. was correct to read down "shall" to "may" in this case.
57In deciding on the appropriate remedy under s. 52 for a Charter breach, "the court must apply the measures which will best vindicate the values expressed in the Charter while refraining from intrusion into the legislative sphere beyond what is necessary." Before reading down or reading in, the court must ask "whether it is safe to assume that the legislature would have enacted the legislation in its altered form." [See Note 11 at end of document] Here, "may" in s. 810.1(2) appropriately vindicates Charter values. Giving the presiding judge a discretion whether to summons or arrest a defendant once an information is sworn is an important constitutional safeguard. Thus, the remedy of reading in "may", although explicitly altering the legislation, will "preserve statutory objectives within clear constitutional contours."12
58Recent legislation shows that we can safely assume Parliament would have enacted s. 810.1(2) with the word "may". In 1997 Parliament added two new provisions to the Criminal Code similar to s. 810.1, and in each new provision used the word "may" instead of "shall". Section 810.01 authorizes a recognizance order against a person likely to commit "a criminal organization offence", and s. 810.2 authorizes a recognizance order against a person likely to commit "a serious personal injury offence." Sections 810.01 and 810.2 are worded similarly to s. 810.1 with necessary modifications for their context. Sections 810.01(2) and s. 810.2(2) are identical to s. 810.1(2) except that in place of "shall cause the parties to appear before the provincial court judge," in the two new provisions Parliament has used "may cause the parties to appear before the provincial court judge." Because Parliament itself has enacted s. 810.01 and s. 810.2 to conform to Then J.'s decision, we can safely assume that reading down "shall" to "may" does not unnecessarily intrude into the legislative domain. I would not give effect to this ground of appeal.
Third Issue -- Do ss. 507(4) and 515 of the Criminal Code Apply to a Proceeding under s. 810.1?
Third Issue -- Do ss. 507(4) and 515 of the Criminal Code Apply to a Proceeding under s. 810.1?
59In R. v. Allen, this court held that what is now s. 507(4) of the Code, allowing for the issuance of a warrant for the arrest of the accused, applies to s. 810 of the Code. Section 507(4) provides:
507(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.
60In Allen, the accused argued that s. 507(4) applied to "a charge of an offence" and thus could not apply to a proceeding under s. 810, which did not create an offence. Goodman J.A., writing for the court, rejected this argument. Section 507(4) is in Part XVI of the Code; s. 810 is in Part XXVII dealing with summary convictions. Section 795 of the Code, which is also in Part XXVII, states that the provisions of Part XVI "with respect to compelling the appearance of an accused before a justice . . . in so far as they are not inconsistent with the Part, apply, with such modifications as the circumstances require to proceedings under this Part." In Goodman J.A.'s view, s. 795 made s. 507(4) applicable to a proceeding under s. 810 even though s. 810 "does not create an offence" (at p. 158).
61Section 515, the provision permitting bail pending trial, also is in Part XVI of the Code; and s. 810.1 is in Part XXVII of the Code. Therefore, applying Allen, both ss. 507(4) and 515 apply to proceedings under s. 810.1.
62The appellant asked us to reconsider Allen on its own terms or in the light of the Charter. In my view, Allen was correctly decided. Applying provisions relating to a charge against an accused (ss. 507(4) and 515) to a proceeding commenced by the laying of an information (s. 810.1) is a modification contemplated by s. 795 of the Code. I am supported in this conclusion by the decision of the Saskatchewan Court of Appeal in R. v. Wakelin (1992), 1991 7947 (SK CA), 71 C.C.C. (3d) 115, 97 Sask. R. 275 (C.A.), which reached a similar result.
63Allen, however, was decided without reference to the Charter. The appellant submits that applying ss. 507(4) and 515 to a s. 810.1 proceeding violates s. 7 of the Charter. The argument has two branches: both permitting pre-hearing arrest and detention because of a fear of future misconduct and permitting a more severe sanction pending the hearing than could be ordered at the conclusion of the s. 810.1 hearing violate the principles of fundamental justice. I disagree.
64First, the presiding judge has a discretion whether to issue a warrant for the arrest of a defendant or to detain a defendant pending a hearing. If a defendant is released pending a hearing, the judge has discretion concerning the bail conditions to be imposed. The existence of this judicial discretion is, as I have already said, an important constitutional safeguard and procedural protection for the defendant. The presiding judge has ample authority to balance the interests of the defendant and the interests of the public pending a s. 810.1 hearing and to ensure that the hearing is held promptly. Second, and repeating what I said earlier, provision for pre-hearing arrest and detention is needed to preserve the integrity of the s. 810.1 proceedings. The court may need the power of arrest and detention to ensure the attendance of a defendant at the hearing or to protect children from the possibility of serious harm pending the hearing.
65Moreover, s. 810.1 is not rendered unconstitutional because, in a particular case, an arrest warrant may have been improvidently issued or inappropriate bail conditions may have been imposed pending the hearing. Support for this view may be found in the decision of this court in R. v. Finlay (1985), 1985 117 (ON CA), 52 O.R. (2d) 632, 23 C.C.C. (3d) 48 (C.A.), where it was argued that the provisions of former s. 178.13 of the Criminal Code, which gave a judge the power to issue a wiretap authorization, were unconstitutional because the broadly-worded provision did not comply with minimum constitutional standards for search and seizure. [See Note 13 at end of document] Martin J.A. held that, properly interpreted, the provision complied with the Charter (at p. 70 C.C.C.). The requirement that the authorization be granted only where to do so was in "the best interests of the administration of justice" imported the requirement that the judge be satisfied the granting of the authorization would further or advance the objectives of justice, and, therefore, imported a requirement to balance the state's interest in law enforcement and the individual's interest in privacy. These requirements, in turn, called on the judge to apply minimum constitutional standards under s. 8 of the Charter.
66The same analysis applies to the arrest and release procedure imported into s. 810.1. Under s. 507(4), the justice is to compel the defendant's attendance by means of a summons only, unless the allegations of the informant or the evidence "discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused." Because a hearing under s. 810.1 can only result in the defendant being required to enter into a recognizance, the circumstances in which it would be "necessary in the public interest" to issue an arrest warrant will be limited to cases where that process is necessary to preserve the integrity of the s. 810.1 proceedings. The justice will require the informant to make out a case that the defendant will not otherwise attend court or that the defendant poses an imminent risk to the safety of children, which s. 810.1 is designed to protect.
67If the justice does issue an arrest warrant, s. 515 of the Criminal Code directs the justice to release the defendant on a simple undertaking without conditions, unless the prosecutor shows cause why some more intrusive order -- such as a recognizance with conditions -- is required. The discretion under s. 515 must be exercised judicially and bearing in mind the limited conditions that can be imposed following a successful s. 810.1 application.
68Finally, although s. 515 provides that the justice may order the detention of the defendant pending the s. 810.1 hearing, that discretion is circumscribed by the provisions of s. 515(10), which authorize detention only where necessary to ensure the defendant's attendance at court, for the protection or safety of the public or "any other just cause", including the maintenance of confidence in the administration of justice. Again, in the light of the limited consequences of a successful s. 810.1 application, only in unusual circumstances will the justice be entitled to order the detention of the defendant pending the hearing. Indeed, it will be a rare case where it would enhance confidence in the administration of justice to detain a defendant who is not alleged to have committed any crime and who can only be required to enter into a recognizance at the conclusion of the proceedings.
69So interpreted, these various provisions of the Code strike the appropriate balance between the public interest in the protection of children and the liberty interest of the defendant.
70For these reasons, I view ss. 507(4) and 515 in their application to s. 810.1 as being in accordance with the principles of fundamental justice. Therefore, I would not give effect to this ground of appeal.
CONCLUSION
Conclusion
71I would dismiss the appeal. I am grateful to all counsel for their oral and written submissions.
Appeal dismissed.
Notes
Note 1: S.C. 1993, c. 45, c. 11.
Note 2: (1996), 1996 11800 (ON SC), 27 O.R. (3d) 347, 104 C.C.C. (3d) 245 (Gen. Div.).
Note 3: R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, 120 D.L.R. (4th) 348.
Note 4: Goodyear Tire & Rubber Co. of Canada v. R., 1956 4 (SCC), [1956] S.C.R. 303; R. v. S.(S.), 1990 65 (SCC), [1990] 2 S.C.R. 254, 57 C.C.C. (3d) 115.
Note 5: R. v. Shubley, 1990 149 (SCC), [1990] 1 S.C.R. 3 at pp. 20-21, 65 D.L.R. (4th) 193.
Note 6: In R. v. Allen, supra, this court said expressly that what is now s. 810 does not create an offence, at p. 158.
Note 7: See also R. v. Mills, an unreported judgment of the Supreme Court of Canada, November 25, 1999 [now reported 1999 637 (SCC), 180 D.L.R. (4th) 1].
Note 8: Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan (Toronto: Butterworths, 1994), at pp. 203-09.
Note 9: The applicable principles on vagueness are summarized by Cory J. in R. v. Lucas, 1998 815 (SCC), [1998] 1 S.C.R. 439 at pp. 457-58, 123 C.C.C. (3d) 97.
Note 10: E.g., ss. 494 or 495 (arrest without warrant) or s. 487 (information for search warrant).
Note 11: R. v. Laba, 1994 41 (SCC), [1994] 3 S.C.R. 965 at p. 1013, 94 C.C.C. (3d) 385.
Note 12: Roach, Constitutional Remedies in Canada (1999), at p. 14.546.
Note 13: This interpretation was subsequently approved by the Supreme Court of Canada in R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30 at pp. 55-56, 53 C.C.C. (3d) 1.
