Court of Appeal for Ontario

Date: 2002-01-17 Docket: C34672, C34671, C34673, C34674, C34669, C35231, C34670 and C34675

Before: Weiler, Sharpe and Simmons JJ.A.

Between:

Her Majesty the Queen Appellant

• and -

Riccardo DiGiuseppe, C34672 Respondent

• and -

Linda DiGiuseppe, C34671 Respondent

• and -

Aldo Vitale, C34673 Respondent

• and -

Gerrard Belliveau, C34674 Respondent

• and -

Sean Ainsworth, C34669 Respondent

• and -

Paul Trask, C35231 Respondent

• and -

Mark Wakelin, C34670 Respondent

• and -

Aldo Collarile, C34675 Respondent

Counsel: Christine Bartlett-Hughes for the Appellant Morris Manning, Q.C. for Riccardo DiGiuseppe, Michael Cooper and Ontario Corporate Number 102856 Chris Kostopoulos for Aldo Vitale

On appeal from the order of Justice William A. Gorewich dated June 23, 2000.

Docket: C35935, C33839, C33840, C33857, C33879 and C33880

And Between:

Her Majesty the Queen Appellant

• and -

Michael Cooper, C33840 Respondent

• and -

Ontario Corporate Number 102856 o/a The Brass Rail Tavern Limited, C35935 Respondent

• and -

Paul Dellanno, C33839 Respondent

• and -

Edward Ahearn, C33857 Respondent

• and -

Martin Train, C33879 Respondent

• and -

Paul Harrigan, C33880 Respondent

Heard: December 05, 2001

On appeal from the order of Justice Lauren E. Marshall dated February 10, 2000.

Reasons for Decision

SHARPE J.A.:

[1] The issue on these appeals is whether the offence of keeping a common bawdy-house under s. 210 of the Criminal Code is unconstitutionally vague, contrary to s. 7 of the Canadian Charter of Rights and Freedoms. The respondents were charged as operators of adult entertainment parlours. At trial, the respondents brought preliminary motions to stay the charges before any evidence was called. In both proceedings, the trial judge ruled that "acts of indecency" and "prostitution", defining elements of the offence of keeping a common bawdy-house, are so vague and ill-defined that the definition of the conduct prohibited by s. 210 fails to meet the standard required by s. 7 of the Charter. The Crown appeals to this court, asking that the stays be set aside and that the charges be permitted to proceed to trial.

FACTS

[2] In view of the nature of the proceedings in the Ontario Court of Justice, there are few facts in the record before us. There are two sets of appeals. The Cooper appeals relate to the "Brass Rail Tavern" in Toronto and the DiGuiseppe appeals relate to two establishments"Fantasia" in Richmond Hill and "Bunnies" in Markham. In all prosecutions the respondents are charged with keeping a common bawdy-house contrary to s. 210 of the Criminal Code which states:

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

[3] Common bawdy-house is defined by s. 197 (1) of the Criminal Code:

197. (1) In this Part

"common bawdy-house" means a place that is

(a) kept or occupied, or

(b) resorted to by one or more persons

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

[4] In the DiGiuseppe matters, there are a number of other charges for prostitution-related and other offences. Although no evidence was called prior to the rulings at issue, it is common ground that all three establishments operate as municipally licensed "adult entertainment parlours" featuring entertainment and activities designed to appeal to and satisfy the sexual interests and appetites of their customers. There is nothing in the record to indicate the precise nature of the entertainment or activities offered by the respondents.

PROCEEDINGS BEFORE THE ONTARIO COURT OF JUSTICE

(a) R. v. Cooper et al: Ruling of Marshall J. [2000] O.J. No. 896.

[5] The trial judge observed in her oral reasons for granting the stay that in R. v. Mara and East (1996), 1996 1504 (ON CA), 105 C.C.C. (3d) 147, a decision of this court upheld by the Supreme Court of Canada, 1997 363 (SCC), [1997] 2 S.C.R. 630, sexual touching between a dancer and a customer in a public bar was held to be "indecent" for purposes of the offence of offering an indecent theatrical performance. The argument that "indecent" was unconstitutionally vague was rejected. However, the trial judge noted that in the absence of specific legislation, the courts had proven incapable of providing a precise or consistent definition of what acts are indecent or amount to acts of prostitution: "[W]e find ourselves in shoals of quicksand in defining prostitution and community standards of tolerance... The courts have been struggling with the interpretation of that standard which is not nationally consistent or even temporarily stable." The trial judge highlighted the decision of the Supreme Court of Canada in R. v. Pelletier, 1999 644 (SCC), [1999] 3 S.C.R. 863, which reversed a decision of the Quebec Court of Appeal and restored an acquittal at trial. Pelletier involved sexual touching of dancers by clients in partially enclosed booths in exchange for a fee. In the trial judge's view, Pelletier appeared to lay down a different standard from that in Mara where the Supreme Court found that similar touching in similar circumstances was unacceptably degrading to women and thus constituted indecency. The trial judge concluded as follows:

Section 7 of the Charter requires that liberty issues be dealt with in accordance with the concepts of fundamental justice. This requires a more particular statutory definition of the offence as alleged here against the people involved in the operation of a licensed business. We cannot expect respect for the law when no one can say with certainty what the law is. It is not within our legal tradition to say that we cannot tell you where the line is until later, it is proven that you have crossed it. There must be a certainty and predictability of the alleged criminal conduct to give fair notice to the citizen, and I find it sufficiently lacking here. There must be at least an objective framework before the citizen can be exposed to criminal liability and fair notice of the definition of prostitution and of lewd or indecent act in licensed business premises is lacking. Therefore, the charges are stayed.

(b) R. v. DiGuiseppe et al: Ruling of Gorewich J. (2000), 2000 50755 (ON CJ), 38 C.R. (5th) 83.

[6] In the DiGuisseppe matters, the trial judge gave extensive written reasons, following the result in Cooper, and stayed the charges. The trial judge thoroughly reviewed the authorities dealing with the offence of keeping a common bawdy-house, the community standard of tolerance test, the definition of acts of indecency and prostitution, as well as the relevant Charter principles. As in Cooper, particular emphasis was placed on Pelletier and on the Supreme Court's finding in that case that acts involving sexual touching were not indecent, contrary to its conclusion on the same issue in Mara. The trial judge concluded that the meaning of "acts of indecency" and "prostitution" as interpreted by the courts was so unclear and uncertain that the charges were unconstitutionally vague.

ISSUE

[7] The following issue arises on these appeals:

Are "acts of indecency" and "prostitution" unconstitutionally vague as defining elements of the offence of keeping a common-bawdy house contrary to s. 210 of the Criminal Code?

ANALYSIS

(a) "Acts of indecency"

[8] It is common ground that the phrase "acts of indecency" is to be interpreted according to the community standard of tolerance test. There is considerable force to the proposition advanced by the respondents and accepted by both trial judges that the community standard of tolerance test has been susceptible to varying interpretations, leading to a significant element of uncertainty in the application of the law. I believe, however, that it is not open to us at this stage to find that uncertainty of interpretation or variation in the application of the community standard of tolerance test renders the offence of keeping a common bawdy-house in relation to adult entertainment parlours unconstitutionally vague. Despite the very able and thorough arguments presented by both counsel relating to the constitutional principle of vagueness and its application to the offence of keeping a common bawdy-house, I do not propose to engage in a detailed consideration of that debate. In my view, these appeals must be allowed on the ground that there is binding authority holding that the offence of keeping a common bawdy-house, as well as the elements of that offence"acts of indecency" and "prostitution", are not unconstitutionally vague.

[9] This court squarely addressed the issue in Mara. Writing for a five-judge panel, Dubin C.J.O. disposed of the issue in the following manner at pp. 152-3:

It is well established that the void for vagueness doctrine is not to be applied to the bare words of a statutory provision but, rather, to the provision as interpreted and applied to judicial decisions. In determining what conduct is indecent, judicial decisions have determined the appropriate test to be applied, and have provided sufficient guidelines for legal debate.

As stated by Lamer J. in Reference re ss. 193 and 95.1(1)(c) of the Criminal Code (Man.) (1990), 1990 105 (SCC), 56 C.C.C. (3d) 65 at p. 90, [1990] 1 S.C.R. 1123, 77 C.R. (3d) 1:

The fact that a particular legislative term is open to varying interpretations by the courts is not fatal. As Beetz J. observed in R. v. Morgentaler (1988), 1988 90 (SCC), 37 C.C.C. (3d) 449at p. 505, 44 D.L.R. (4th) 385, [1988] 1 S.C.R. 30"[f]lexibility and vagueness are not synonymous". Therefore the question at hand is whether the impugned sections of the Criminal Code can be or have been given sensible meanings by the courts. In other words, is the statute so pervasively vague that it permits a "standardless sweep" allowing law enforcement officials to pursue their personal predilections?: see Smith v. Goguen, 415 U.S. 566 at p. 575 (1974), and Kolender v. Lawson, 461 U.S. 352 at pp. 357-8 (1983).

Indecency and synonymous terms are an important part of the Criminal Code, appearing in several sections, as Lamer C.J.C. explained in the Prostitution Reference, supra. The terms are defined by the community standard of tolerance. They are not easy terms to apply, but neither are they impermissibly vague.

In R. v. Butler (1992), 1992 124 (SCC), 70 C.C.C. (3d) 129 89 D.L.R. (4th) 449, [1992] 1 S.C.R. 452, Sopinka J. identified the question as being whether the law provides an intelligible standard for judicial decision-making. He stated at p. 155 C.C.C., p. 475 D.L.R.:

Standards which escape precise technical definition, such as "undue", are an inevitable part of the law. The Criminal Code contains other such standards. Without commenting on their constitutional validity, I note that the terms "indecent""immoral" or "scurrilous", found in ss. 167, 168, 173 and 175, are nowhere defined in the Code. It is within the role of the judiciary to attempt to interpret these terms. If such interpretation yields an intelligible standard, the threshold test for the application of s. 1 is met. In my opinion, the interpretation of s. 163(8) in prior judgments which I have reviewed, as supplemented by these reasons, provides an intelligible standard. [Emphasis added.]

More recently, in R. v. Canadian Pacific Ltd., a judgment of the Supreme Court of Canada, released July 20, 1995 [now reported 1995 112 (SCC), 99 C.C.C. (3d) 97, 125 D.L.R. (4th) 385, [1995] 2 S.C.R. 1028 and 1031 Sub nom. Canadian Pacific Ltd. v. Ontario] [reported at 1995 111 (SCC), 41 C.R. (4th) 147], the Supreme Court of Canada again reviewed the appropriate approach to a s. 7 vagueness claim. Gonthier J., writing for the majority, states at p. 13 [p. 125 C.C.C., p. 413 D.L.R., para. 47]:

In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision. This is because the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an "area of risk". This does not necessitate an exercise in strict judicial line-drawing because, as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibited conduct. [Emphasis added.]

I am satisfied that the relevant judicial decisions provide sufficient guidance for legal debate as to the scope of the prohibited conduct set forth in s. 167(1) of the Criminal Code, and that the section is not void for vagueness, nor does it contravene s. 7 of the Charter.

[10] The respondents submit that Mara does not deal explicitly with the community standard of tolerance test. I cannot accept that proposition. It has long been established that the phrase "acts of indecency" is to be interpreted and applied by means of the community standard of tolerance test, and that basic principle could not have escaped the five judges who decided Mara. Indeed, as appears from the passage I have quoted, Dubin C.J.O. made explicit reference to the community standard of tolerance test in his reasons for judgment.

[11] Mara was affirmed by the Supreme Court of Canada. The appellants did not raise the issue of vagueness before the Supreme Court of Canada; accordingly, this court's disposition of the issue went unchallenged and was not addressed by Sopinka J., who wrote the court's unanimous judgment and on this point simply stated at p. 636:

The [Court of Appeal] then analyzed whether s. 167 of the Criminal Code violated s. 7 of the Canadian Charter of Rights and Freedoms for vagueness. In this Court, the appellants do not raise this issue, or any other Charter issue, so I will simply note that in a thorough analysis of vagueness doctrine, the court concluded that the terms in s. 167, while not mathematically precise, were not impermissibly vague.

[12] While I can understand the difficulty expressed by the trial judges in distinguishing the facts of Mara from the facts of Pelletier, in my view, it was not open to them to find that the decision in Pelletier has so confused the issue as to render the offence of keeping a common bawdy-house unconstitutionally vague. The trial in Pelletier occurred prior to the Supreme Court's decision in Mara. The trial judge acquitted the accused adult entertainment parlour operator on a charge of keeping a common bawdy-house. The Quebec Court of Appeal (unreported decision dated Sept. 29, 1998) found that the acts in issue constituted acts of indecency, a finding consistent with the decisions of the Supreme Court of Canada in Mara and R. v. Tremblay, 1993 115 (SCC), [1993] 2 S.C.R. 932. The acquittal was reversed and a conviction entered. An appeal by the accused to the Supreme Court of Canada was allowed by a 3 to 2 majority. The very brief majority judgment in Pelletier expressly referred to Mara without in any way qualifying or altering the legal test it laid down. The majority found at p. 864 that "the trial judge carefully considered all relevant factors in analyzing the standard of tolerance" and concluded that the trial judge had committed no error of law in his assessment of the standard as it was subsequently developed by the Court in Mara.

[13] I would add here that the community standard of tolerance test has been a feature of this area of the law for almost 40 years. It was introduced in R. v. Brodie, 1962 80 (SCC), [1962] S.C.R. 681 and it has been applied, adapted and refined in a number of Supreme Court of Canada decisions in subsequent years: see especially R. v. Towne Cinema Theatres Ltd., 1985 75 (SCC), [1985] 1 S.C.R. 494; R. v. Tremblay, supra; R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120.

[14] In my view, we are foreclosed by the rule of stare decisis from entertaining the submission that these charges should be stayed on the ground that "acts of indecency", as defined by the community standard of tolerance test, is unconstitutionally vague as a defining element of the offence of keeping a common bawdy-house.

(b) "Prostitution"

[15] In Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123, the majority of the Supreme Court of Canada rejected the argument that the term "prostitution" was an unconstitutionally vague element of the offence of keeping a common bawdy-house. Dickson C.J.C. wrote at p. 1141 that "[t]he terms 'prostitution', 'keeps' a bawdy-house, 'communicate' and 'attempts to communicate' are not so imprecise, given the benefit of judicial interpretation, that their meaning is impossible to discern in advance." Lamer J. wrote as follows at pp. 1159-60:

In respect of the term "indecency", it and variations of it are used in numerous other sections of the Criminal Code, including those pertaining to immoral, indecent or obscene performances, mailing obscene materials, indecent acts, public decency, and indecent exhibition. The appropriate test to apply in this area is the "community standard of tolerance" similar to the test used in obscenity cases which this and other courts have interpreted and applied without insurmountable difficulty. Finally I wish to make reference to a pre-Charter case dealing with s. 193 of the Code, R. v. Hislop, Ont. C.A., September 22, 1980, unreported (summarized 5 W.C. B. 124). In dismissing the challenge to the offence of keeping a common bawdy-house, MacKinnon A.C.J.O. stated the following at page 4 of the court's reasons:

The words attacked have been in the Criminal Code since 1917 and have been interpreted and applied by our courts without difficulty for years. We do not think the words are vague, uncertain or arbitrary.

I can do no better than to agree with this statement. As I have stated, the interpretation of legislation has long been a task left to courts. ... Of course, the very nature of language will always mean that there will be a certain area of flexibility open to interpretation and judicial appreciation. This does not equate with impermissible vagueness. I conclude that s. 193 of the Criminal Code is not impermissibly vague as courts have and continue to give the words and phrases found therein sensible meaning. The requirements of fair notice and guarding against arbitrary enforcement have been met.

[16] In view of these unequivocal statements from the Supreme Court, the rule of stare decisis precludes us from entertaining the submission that these charges should be stayed on the ground that "prostitution" is unconstitutionally vague as a defining element of the offence of keeping a common bawdy-house.

CONCLUSION

[17] I conclude, accordingly, that that the appeals must be allowed, the stays of proceedings set aside, and the matters remitted to the Ontario Court of Justice for trial.

"Robert J. Sharpe J.A."

"I agree K.M. Weiler J.A."

"I agree J.M. Simmons J.A."

Released: January 17, 2002