DATE: 20050318
DOCKET: C41268 and C41269
COURT OF APPEAL FOR ONTARIO
MOLDAVER, MACPHERSON and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
ROBERT WARE and 564163 ONTARIO LIMITED (STUDIO FOUR)
Appellants
Anthony G. Debly for the respondent
Michael H. Gordner for the appellants
Heard: February 24, 2005
On appeal from the judgment of Justice Micheline A. Rawlins of the Ontario Court of Justice dated November 19, 2003, upholding the conviction entered by Justice of the Peace Holly R. DeBacker of the Ontario Court of Justice on November 9, 2000.
MACPHERSON J.A.:
A. INTRODUCTION
[1] The appellants were convicted of violating a Windsor by-law that prohibited adult entertainment parlours from knowingly permitting their dancers to touch patrons during their performances. The principal issue presented by this appeal is whether the 'no touching' component of the by-law applies at all times or only when the dancers are nude or partially nude.
B. FACTS
(1) The parties and the events
[2] In 1998, the appellant 564163 Ontario Limited was carrying on business as an adult entertainment parlour under the name Studio Four. The business premises were located at 1415 Huron Church Road in the City of Windsor. The appellant Robert Ware was the day manager of Studio Four.
[3] In Windsor, there is a by-law that regulates adult entertainment parlours: By-law 5900 of the Corporation of the City of Windsor. Section 1.A.(12)(a) defines "adult entertainment parlour" as "any premises ... on which is provided ... services appealing to or services designed to appeal to erotic or sexual appetites or inclinations".
[4] Studio Four is a typical adult entertainment parlour. It is licensed to sell alcoholic beverages. There is a stage where dancers perform and there is music provided by a deejay. There are managers, bartenders, servers and bouncers.
[5] Studio Four employs about 50 house dancers who perform regularly in the parlour. In addition, each night there is a feature dancer who usually works on a one-week contract. These dancers often come from other cities, including Montreal and Calgary, and other countries, including the United States and countries in Southeast Asia and South America. Studio Four engages in extensive advertising of its feature dancers in the Windsor and Detroit areas.
[6] On November 26, 1998, the feature dancer was Carrie Eklund, a 21-year old woman from Calgary who danced using the stage name Delicia D'Angelo. She went on stage at approximately 9:30 p.m. The typical routine of a feature dancer is three short dances lasting a total of about seven or eight minutes. The dancer discards her clothing during the routine and is often completely nude at its conclusion.
[7] Jim Evans, a staff sergeant with the Windsor Police Service, and Harold Puyda, a liquor inspector, came to Studio Four at about 9:35 p.m. on November 26, 1998. Evans testified that he saw Carrie Eklund on stage wearing a red and black bikini type costume, with the bottom part of the costume exposing her bare buttocks. With her palms on the floor, Eklund wrapped her legs in a scissors lock around the neck of a patron who was sitting on a chair near the stage. She then moved forward and sat on the patron's face for about five seconds and took some money from his mouth with her hand. She got up and rubbed the patron's face in the top portion of the cleavage of her breasts and kissed him on the face. According to Evans, the touching between the dancer and the patron lasted about two minutes.
[8] Evans also testified that he watched Eklund perform two more dances. She removed her bra during the second dance and became totally nude during the third dance. Evans did not see her touch any patrons during these dances.
[9] Shortly after Evans and Puyda arrived at Studio Four, Robert Ware was notified. He left his office and came to the stage area of the parlour. He saw Evans and noticed that Eklund was dancing.
[10] Ware's description of Eklund's attire and conduct during the first dance is very different from Evans' testimony. Ware testified that Eklund was dancing to the first song in her routine. She was not partially nude. She was wearing a blue sequined police outfit, including a jacket, pants and a hat. She put the hat on the patron's head and, according to Ware"she wiggles her bottom on the top of the hat and at that point Jim Evans, is like up near the corner stage, just went - well, I don't know if it's appropriate to use these words, but he used the 'F' word. He said, 'What the F is that?', okay."
[11] Ware's description of the second and third dances accords with Evans' testimony.
[12] Ware and Studio Four were charged with violating s. 27 of the Windsor by-law:
- No owner or operator of a licensed adult entertainment parlour shall knowingly permit any dancer, while providing services as a dancer, to touch or be touched by or have physical contact with any other person in any manner whatsoever involving any part of that person's body.
Studio Four was charged as an owner, Ware as an operator.
[13] The by-law defines "dancer" in s. 1.A.(12)(b)(i):
"Dancer" means any person who, in an adult entertainment parlour, provides services appealing to or designed to appeal to erotic or sexual appetites or inclinations.
[14] The by-law further defines "services designed to appeal to erotic or sexual appetites or inclinations" in s. 1.A.(12)(b)(vi) as including:
(a) Services of which a principal feature or characteristic is the nudity or partial nudity of any person. For the purposes of this clause "partial nudity" shall mean less than completely and opaquely covered:
(i) human genitals or human pubic region;
(ii) human buttocks; or
(iii) female breasts below a point immediately above the top of the areola.
(2) The legal proceedings
(a) The trial
[15] The trial judge, Justice of the Peace DeBacker, convicted both appellants.
[16] With respect to the actus reus for the offences, she reviewed the conflicting testimony of Evans and Ware and said:
The Court finds an explanation for the differences in the activities described by these witnesses. That explanation is that both incidents occurred. Mr. Ware surely seen the whole of what Sergeant Evans described by his own evidence that when he arrived and watched the dancer was more clothed [sic]. Sergeant Evans chose only to describe and contest what he had seen as the most significant incident of contact. He focused on the absolute blatant, offensive aspects of what most offended the by-law.
The Court finds there absolutely was physical contact between the dancer Carrie Eklund and a patron that day. The Court finds the prosecution has proven beyond a reasonable doubt there was touching between dancer and patron as alleged. The Court further finds that Mr. Ware viewed the said physical contact.
[17] The trial judge did not determine if the offence created by s. 27 of the by-law was a strict liability or a full mens rea offence. Rather, she stated that "in consideration of all of the evidence, the Court's decision would be the same with respect to either test level of proof - mens rea or strict liability."
[18] The trial judge held that both appellants knowingly permitted the offence to take place. Central to this conclusion was the trial judge's strongly expressed view that the appellants had misinterpreted the by-law. The clear evidence at the trial was that Studio Four carefully instructed its dancers to have no physical contact with patrons while dancing if they were nude or partially nude. If a dancer was fully clothed, physical contact was permitted. The basis of this policy was Studio Four's interpretation of the by-law as consisting of the offence in s. 27 and the definitions of "dancer" and "services designed to appeal to erotic or sexual appetites or inclinations" in s. 1.A.(12)(b)(i) and (vi).
[19] The trial judge rejected this reading of the by-law:
The Court finds this policy to be erroneous. The Court finds the by-law's definitions that include a description of services of a dancer, namely Section 12(b), subsection (vi) is not a limited or restrictive list. These definitions in no way set out in black and white any differences whatsoever of the application of the prohibition of physical contact or touching between patrons and dancers when dancers are either clothed, nude or partially nude. The Court finds a dancer is in fact a person who provides services for a specific purpose. Further, the clothing, partial clothing, or nudity of the dancer is irrelevant. So long as the services are provided for the purpose set out, the prohibition of physical contact remains an absolute prohibition with no exceptions [emphasis added].
[20] By way of sentence, the trial judge imposed fines on Ware and Studio Four of $750 and $4000 respectively.
(b) The appeal
[21] The appellants appealed their convictions and sentences. Rawlins J. of the Ontario Court of Justice dismissed the appeals.
[22] With respect to the actus reus, she held that the trial judge had accepted Sergeant Evans' evidence that there was physical contact between the dancer and the patron.
[23] On the question of mens rea, the appeal judge shared the trial judge's view that the appellant had misinterpreted the by-law. She described Studio Four's interpretation as one that led to "erroneous and unlawful instructions" to its dancers.
(c) The leave application
[24] The appellants applied for leave to appeal to this court. Moldaver J.A. granted leave to appeal the convictions and denied leave with respect to the sentences. In his endorsement, Moldaver J.A. identified the central issue in this fashion:
Special leave is granted. In particular, the points of special interest relate to the Trial Judge's interpretation of the by-law and in particular her reading out as "unnecessary" from the definition of "Services designed to appeal to the erotic or sexual appetites or inclinations" the state of dress at the time of the touching as set out in s. 12(b)(vi)(a). Reading those words out may impact on the constitutionality of the provision and render it void for vagueness.
C. ISSUES
[25] I would frame the issues as follows:
(1) Did the trial and appeal judges err in their interpretation of the actus reus for the offence in s. 27 of the by-law?
(2) If the answer to (1) is negative, did the trial and appeal judges err in their interpretation of the "knowingly permits" component of the by-law?
D. ANALYSIS
(1) The actus reus issue
[26] Both the trial judge and the appeal judge held that the state of dress of the dancer was irrelevant for the purpose of interpreting the Windsor by-law. An infraction was made out if the dancer touched a patron (s. 27) while providing services appealing to or designed to appeal to erotic or sexual appetites or inclinations (s. 1.A.(12)(b)(i)). Importantly, while this interpretation links the provision creating the offence (s. 27) to one of the definitions in the by-law, namely, the definition of "dancer" in s. 1.A.12(b)(i), it fails to link s. 27 with another definition in the same by-law, namely, the definition of "services designed to appeal to erotic or sexual appetites or inclinations" in s. 1.A.12(b)(vi). This exclusion of the second definition removes the "nudity or partial nudity" context from the offence. In practical terms, it means that all touching of patrons by a dancer in a Windsor adult entertainment parlour, while providing services as a dancer, would constitute an offence that potentially would give rise to liability for an owner or operator through s. 27.
[27] The basis for the distinction drawn by the judges below is the word "includes" in s. 1.A.12(b)(vi). According to the trial judge"Section 12(b), subsection (vi) is not a limited or restrictive list."
[28] It is true that the word "includes" in a definition section often suggests that the enumerated list that follows is not intended to be a comprehensive expression of the defined word or phrase. However, in other contexts"includes" suggests a comprehensive description of the definition. The difference between the two possible interpretations was well-described by Lord Watson in Dilworth v. New Zealand Commissioner of Stamps, [1899] A.C. 99 at 105-06 (P.C.):
The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of a statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include" and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.
See also: R. v. Loblaw Groceteria Co. (Manitoba), [1961] S.C.R. 138.
[29] In my view, the word "includes" in s. 1.A.12(b)(vi) of the by-law must be interpreted in the exclusive or comprehensive "mean and include" fashion. I reach this conclusion for two reasons.
[30] First, without the "nudity or partial nudity" overlay to the definition of "services designed to appeal to erotic or sexual appetites or inclinations", the by-law would be void for vagueness in a constitutional law sense: see Re Hamilton Independent Variety & Confectionary Stores Inc. and City of Hamilton (1983), 143 D.L.R. (3d) 498 (Ont. C.A.) and Niagara Falls (City) v. Jorgensen (1995), 84 O.A.C. 149.
[31] Second, an absolute prohibition against all touching by dancers in adult entertainment parlours is precluded by this court's decision in Ontario Adult Entertainment Bar Assn. v. Metropolitan Toronto (Municipality) (1997), 151 D.L.R. (4th) 158, which dealt with a Toronto by-law that was virtually identical to the Windsor by-law in issue in this appeal. The court rejected a 'void for vagueness' challenge and affirmed the constitutionality of the Toronto by-law.
[32] In the course of his reasons, Finlayson J.A. stated that the by-law did not prohibit all touching by dancers (they were described as "attendants" in the Toronto by-law). One of the goals of the by-law was to avoid health and safety concerns for the dancers. Touching that raised these concerns was prohibited by the by-law, but other forms of touching were permitted. As expressed by Finlayson J.A. at p. 175:
[T]he municipal by-law is limited to that conduct, touching during the performance of "services" as defined, which may give rise to certain negative consequences. Not all touching is caught by the by-law [emphasis added].
[33] The "as defined" component of the definition of "services" in the Toronto by-law included wording identical to some of the wording in the Windsor by-law, namely"services of which a principal feature or characteristic is the nudity or partial nudity of any person." Accordingly, Ontario Adult Entertainment stands for the proposition that a proper interpretation of the Windsor by-law must also take account of the same language in s.1.A.(12)(b)(vi) of the by-law.
[34] In summary, the nudity or partial nudity of a dancer who touches a patron while performing the services of a dancer is a crucial component of the sections regulating the conduct of dancers, owners and operators in adult entertainment parlours in Windsor. In this respect, the trial and appeal judges misinterpreted the by-law and, therefore, misstated the actus reus of the offence in s. 27. Accordingly, to establish a contravention of the by-law, the touching in issue must occur while the dancer is nude or partially nude.
[35] However, the respondent advances an alternative submission which must be addressed. The respondent acknowledges that there is a clear conflict in the testimony of Evans and Ware on the issue of whether Eklund was partially nude when she touched the patron. The respondent asserts that the trial judge resolved this conflict by accepting Evans' testimony. The respondent points, in particular, to the trial judge's statement: "Mr. Ware surely seen the whole of what Sergeant Evans described by his own evidence that when he arrived and watched the dancer was more clothed." The respondent also relies on the analysis of the appeal judge:
Sergeant Evans was focused and described in detail the touching which occurred. The Justice of the Peace not only accepted Sergeant Evans' evidence, but found in fact "there absolutely was physical contact between the dancer Carrie Eklund and a patron and that this had been proven beyond a reasonable doubt."
[36] I do not agree with the respondent's submissions for three reasons.
[37] First, I do not think that the passages set out above constitute clear support for the respondent's argument. I find the trial judge's description of what Ware saw somewhat awkward and confusing. As for the appeal judge's reasons, she links her comment about the trial judge's acceptance of Evans' evidence to only the touching issue, not to the partial nudity issue.
[38] Second, I think a fair observation is that both the trial and appeal judges were preoccupied in their reasons with the interpretation of the by-law. They were forcefully of the view that the dancer's state of dress was irrelevant. Accordingly, they did not focus on and address carefully the crucial, and conflicting, testimony about whether Eklund was partially nude when she touched the patron.
[39] Third, although I appreciate that the factual findings of a trial judge are entitled to great deference, based on my review of the testimony of Evans and Ware I am troubled (I put it no higher) by the trial judge's conclusion:
The Court finds an explanation for the differences in the activities described by these witnesses. That explanation is that both incidents occurred.
[40] Both Evans and Ware testified that they came together near the stage during Eklund's first dance and that they stayed until the conclusion of her third dance. Evans said that he arrived at 9:35 p.m. and that Ware joined him by 9:36 or 9:37 p.m. Ware testified that when he came out of his office and reached the main area of the club "breezing past me, in a hurried fashion is Staff Sergeant Jim Evans and he seems visibly perturbed and he passes past me and goes up along the carpeted glass wall towards the stage". Ware also testified that he thought that he was with Evans just about the entire time that Evans was in the club and that Evans "had time to walk across the back section of the club and meet me at the corner and then he headed for the stage and I followed".
[41] From the testimony of both men, it would appear that they were together almost immediately after Evans' arrival. They also agree that they were both watching Eklund's first dance. However, their description of what Eklund was wearing during this dance is strikingly different - red and black bikini outfit exposing bare buttocks (Evans), full police costume, including jacket, pants and hat (Ware).
[42] In light of the timing agreed to by Evans and Ware and their agreement that they were watching together Eklund's first dance, I have difficulty accepting the trial judge's conclusion that both incidents occurred, i.e. the touching of a patron while wearing both costumes.
[43] For these reasons, I conclude that the trial and appeal judges erred in their interpretation of the actus reus for the offence in s. 27 of the by-law, and that the error is not overcome by any of the factual findings of the trial judge.
(2) The mens rea issue
[44] In light of my conclusion on the actus reus issue, it is not necessary or desirable to consider this issue.
E. DISPOSITION
[45] The appellant contends that, if the appeal is allowed, acquittals should be ordered. I disagree. The testimony of Staff Sergeant Evans, if accepted, would provide a potential basis for convictions against the appellants in a trial premised on the proper interpretation of the by-law.
[46] I would allow the appeals, set aside the convictions, and order a new trial.
Signed: "J.C. MacPherson J.A."
"I agree M.J. Moldaver J.A."
"I agree E.A. Cronk J.A."
RELEASED: "MJM" March 18, 2005