DATE: 20021113
DOCKET: C36984
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER AND MACPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Stacey D. Young for the appellant
Appellant
- and -
ANDREW JEFFREY D’ANGELO
Peter L. Hatch for the respondent
Respondent
Heard: October 29, 2002
On appeal from the acquittal by Justice Maryka Omatsu of the Ontario Court of Justice on August 3, 2001.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The Crown appeals from the acquittal of Andrew D’Angelo (“D’Angelo”) on charges of failure to comply with a probation order and breach of a prohibition order relating to children, contrary to ss. 733.1(1) and 161(4) of the Criminal Code, respectively. The charges arose from an incident in which D’Angelo went swimming at the Crescent Town Club, a recreation facility and pool in the condominium and apartment complex where he lives. The sole issue raised by the appeal is the meaning of the words “public swimming area” in s. 161(1)(a) of the Code.
B. FACTS
[2] On February 9, 1998, D’Angelo was found guilty by Hamilton J. of sexual interference for touching A.M., a minor under 14 years of age, with his mouth and penis. On March 5, 1998, Hamilton J. sentenced D’Angelo to 12 months imprisonment to be served in the community, a 3 year probation order and a 10 year prohibition order under s. 161 of the Code. The prohibition order tracked the precise wording of s. 161 and prohibited D’Angelo from:
(a) attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre; or
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of fourteen years. [Emphasis added.]
The probation order included a term “not to associate with children under the age of 14”. The prohibition order was effective from March 5, 1998 to March 4, 2007. The probation order commenced March 5, 1999 (after the expiration of the 12 month conditional sentence) and was operative until March 4, 2002. Both orders were in force on May 23, 2001 when D’Angelo decided to go swimming in the pool at the Crescent Town Club.
[3] By 2001, D’Angelo had been a resident of the Crescent Town Community for about 25 years. The Community contains seven high-rise buildings and numerous townhouses and has a population of about 8000 people. The Community is a mix of owner-occupied and rental units.
[4] There is a 25 meter swimming pool in one of the Community’s buildings. It is operated by the Crescent Town Club, a non-profit corporation whose purpose is to provide recreational facilities to the Community. The club is owned by York Condominium Corporation #76 and Pine Dale Properties Ltd., the owners of, respectively, the condominium corporation and the rental units in the Community.
[5] D’Angelo is a member of the club. Membership is automatic, if requested, for persons who either own a condominium or lease a rental property. D’Angelo rents an apartment. He has a valid membership card. The cost of his membership is included in the rent he pays for his apartment.
[6] On May 23, 2001, at approximately 5:00 p.m., D’Angelo entered the club and went swimming. He was at the shallow end of the pool. There were other swimmers in the area, including children under fourteen. The manager of the club, who was aware of D’Angelo’s probation and prohibition orders, called the police. An officer arrived and arrested D’Angelo. He was charged with failing to comply with his probation order and breach of his prohibition order.
[7] At his trial, D’Angelo testified that he knew the terms of his probation and prohibition orders. He knew that he was not supposed to be in a public swimming area where children under 14 might be present and he knew that the club provided swimming classes and programs for children. However, in his opinion the orders did not affect his use of the facilities. He had lived in the community for years, was a member of the club, and paid a membership fee as part of his rent. Thus, he believed that the swimming pool was a private one.
[8] The trial judge agreed with D’Angelo’s position. She applied the definition of “public place” from s. 150 of the Code - “any place to which the public have access as of right or by invitation, express or implied” - and concluded that the community pool did not constitute a public swimming area because “the owners of the club have not opened to the general public the use of its facilities”. Accordingly, she acquitted D’Angelo of both charges.
C. ISSUE
[9] The sole issue on the appeal is whether the trial judge erred in her interpretation and application of the words “public swimming area” in s. 161 of the Criminal Code.
D. ANALYSIS
[10] D’Angelo’s central submission, advanced with candour and clarity by his counsel, is that the word “public” in s. 161 means a facility operated and/or funded by government. Applying this definition, D’Angelo would not be permitted to attend the many public beaches and swimming pools operated by the city; however, he would be at liberty to attend such privately owned facilities as Wet and Wild Kingdom and Canada’s Wonderland, which has a large swimming pool component.
[11] The respondent’s submission has the attraction of simplicity. It would signal clearly to a person subject to probation and prohibition orders the range of permissible conduct. In the end, however, I would reject it. In my view, the bright line the respondent attempts to draw would result in an overly narrow definition of the word “public” in s. 161 of the Code.
[12] I note that the phrase “public swimming area” is not defined in the Code. The trial judge resorted to the definition of “public place” in s. 150 of the Code to provide assistance. In my view, she was correct to do so. That definition - “any place to which the public has access as of right or by invitation, express or implied” - does not adopt the government/private sector dichotomy suggested by the respondent. Indeed, this wording suggests something quite different, namely that the word “public” is linked to the notions of invitation and access, more so than ownership or control.
[13] Having rejected the government/private sector dichotomy, the question becomes: what factors should be considered when defining the phrase “public swimming area” in s. 161 of the Code? In its helpful factum, the Crown answers this question in this fashion:
[I]n determining what constitutes a public swimming area, the court should have regard to the definition of a ‘public place’ in s. 150 of the Code, the purpose of the legislation, the ordinary meaning of the words, and the individual facts of the case. Facts that should be considered in determining if there is a right of access, either express or implied, include the number of people with access, the particular community, ownership, limitations or restrictions on access, the conduct of owners and the manner in which the place is used.
I agree with this suggested analytical framework and will attempt to apply it to the circumstances of this case.
[14] I begin with the phrase in s. 161 of the Code - “public swimming area”. There is no dispute in this case that the club’s pool constitutes a swimming area. The contentious word is “public”.
[15] The New Oxford Dictionary of English (Oxford: Clarendon Press, 1998) defines “public” as “of or concerning the people as a whole” and “open to or shared by all the people of an area”. These definitions fit the swimming pool operated by the club in the present case. Membership in the club is open to all of the 8000 residents of the Crescent Club Community; it is also available to people from the neighbouring communities. Indeed, no outside applicant for membership in the club has been turned down in the last 10 years.[^1]
[16] Similar observations can be made about the phrase “public place” which is found in many sections of the Criminal Code (see ss. 159, 173, 174, 175, 178, 197, 206 and 213). This phrase is given a statutory definition in s. 150 (and s. 197) - “any place to which the public have access as of right or by invitation, express or implied”. Dictionary definitions are similar. For example, the Dictionary of Canadian Law, 2d ed., (Scarborough, Ont.: Carswell, 1995) defines a “Public Place” as:
- Includes any place to which the public have access as of right or by invitation, express or implied. Criminal Code, R.S.C. 1985, c.C-46, s. 150. 2. Includes any place, building or convenience to which the public has, or is permitted to have, access, and any highway, street, lane, park or place of public resort or amusement . . . . [Emphasis added.]
[17] The swimming pool at the Crescent Town Community comes easily within these statutory and dictionary definitions. The principal users of the pool are the residents of the Community itself. That community is a large one, about 8000 people; indeed, it is worth noting that the Crescent Town Community is larger than many Ontario villages and towns. Moreover, there are many secondary and tertiary users of the pool. The secondary users are people from neighbouring communities who purchase club memberships. The tertiary users are non-members who use the pool for various classes and programs.
[18] Importantly, many of the users in all of these categories are children. The club’s manager testified that many children use the pool, especially after school, which is when D’Angelo came to the pool:
A. . . . A lot more younger people take swimming lessons, of course . . . You could probably say of the children coming in, my estimate would probably be forty to fifty per cent of the children coming in are going swimming.
Q. And what is the - or do you have an idea of when the main time would be for the children in the afternoon?
A. Yes, generally after school - 3:30 and on. Once they get out of school they either - that’s when the children start coming in of course. Attendance really picks up after that time.
[19] Finally, I turn to a consideration of the purpose of s. 161 of the Code. Section 161 is contained in Part V of the Code which deals with, inter alia, sexual offences. Many of the provisions in this part of the Code are designed to protect children from sick adults who prey on them for purposes of selfish sexual gratification. Adopting a narrow definition of “public swimming pool” - for example, one which excluded such large facilities as Wet and Wild Kingdom or Canada’s Wonderland - would be a disservice to a particularly vulnerable group in Canadian society.
[20] In R. v. Budreo (2000), 2000 5628 (ON CA), 142 C.C.C. (3d) 225 (Ont. C.A.), an important case dealing with another provision of the Criminal Code designed to protect children, Laskin J.A. said, at pp. 239-40:
I 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 percent – 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.
I agree with this forceful statement. In my view, it is as applicable to the interpretation of s. 161 of the Code as it was to s. 810.1.
[21] For these reasons, I am of the view that the trial judge erred in concluding that the swimming pool in the Crescent Town Community condominium and apartment complex was not a “public swimming area”. Accordingly, I would allow the appeal, set aside the acquittals and order a new trial.
RELEASED: November 13, 2002
“J. C. MacPherson J.A.”
“I agree John I. Laskin J.A.”
“I agree M. J. Moldaver J.A.”
[^1]: I list these factors in this paragraph because they are the factors present in this case. I do not intend that they be interpreted to stand for the proposition that all of these factors must be present before a swimming pool could be found to be “public”.