Court of Appeal for Ontario

CITATION: R. v. Perron, 2009 ONCA 498

DATE: 20090619

DOCKET: C48739

Goudge, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald Perron

Appellant

Howard L. Krongold, for the appellant

Joanne Stuart, counsel for the respondent

Heard: March 23, 2009

On appeal from the order of Justice Lise Maisonneuve of the Ontario Court of Justice dated December 18, 2007.

Goudge J.A.:

OVERVIEW

[1] On August 18, 2006, the appellant was arrested while working in a game booth at the Super Ex, a fair being held on the grounds of Lansdowne Park in Ottawa. He was charged with breach of a prohibition order made pursuant to s. 161(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, which prohibited him from attending a public park where persons under the age of fourteen years were present or could reasonably have been expected to be present.

[2] It was conceded that the Super Ex at Lansdowne Park was accessible to the public and was a place where persons under the age of fourteen years were present or could reasonably have been expected to be present. The contested issue was whether the appellant was attending a park.

[3] In thoughtful reasons, the trial judge found that the Super Ex at Lansdowne Park was a public park as that phrase is used in s. 161(1)(a) of the Code. She convicted the appellant. The appellant appeals his conviction.

FACTS

[4] The facts are essentially uncontested. In the spring of 2006, the appellant pleaded guilty to one count of sexual interference and one count of sexual touching. The complainants were between the ages of 12 and 14. The appellant’s sentence included an order pursuant to s.161(1)(a) of the Code, prohibiting him from attending a public park where persons under the age of fourteen are present or can reasonably be expected to be present.

[5] Section 161(1)(a) reads:

Order of Prohibition

161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a prohibition order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of fourteen years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender 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;[^1]

[6] Lansdowne Park contains a football stadium, a civic centre with a hockey arena, and several other buildings. There are trees and grassy areas around the perimeter of the property, and surrounding some of the buildings. There is also an extensive paved area that serves as a parking lot for events. The grounds are surrounded by a fence and are accessible to the public through several gates. There is an admission fee to gain entry.

[7] The Super Ex at Lansdowne Park included mid-way rides, game booths, concert areas, food courts, and a petting zoo. The appellant was found working at a game booth that involved throwing darts at balloons. It was on the north side of the fairgrounds in a long corridor of game booths lined with stuffed animals and other trinkets that could be won as prizes. The corridor, like most areas where people walked during the Super Ex, was on the paved area. The Super Ex was attended by what was described as a very young crowd, with a lot of young people who appeared to be between 12 and 16 years of age or even younger.

ISSUE

[8] In this court, the appellant did not contest that he was found in a place that was accessible to the public, and that it was a place where persons under the age of fourteen were present or could reasonably be expected to be present. Nor did he suggest that s. 161(1)(a) was unconstitutionally vague or overbroad.

[9] The only issue he raises is whether the Super Ex was a “park” and therefore a place he was prohibited from attending because of the s. 161(1)(a) order. The appellant’s position is that it was not. He says that “park” ordinarily, in its regular everyday use, refers to a green space, such as an area with lawns and gardens or forests and trees, which is set aside and maintained for recreational use by the public. What is in essence a parking lot cannot be turned into a park by virtue of the way it is being used.

[10] The respondent’s position is that in light of the purpose of s. 161(1)(a), the meaning to be given to “public park” cannot be circumscribed by the physical geography of the land but must be significantly informed by the use made of it. Approached this way, the appellant was properly found to be at a public park on August 18, 2006, contrary to the prohibition order by which he was bound.

ANALYSIS

[11] The issue in this appeal is whether the appellant was attending a “public park… where persons under the age of fourteen are present or can reasonably be expected to be present” when he was found at the Super Ex at Lansdowne Park on August 18, 2006. This requires an analysis of the meaning of these words, and particularly “public park” as that phrase is used in s. 161(1)(a) of the Code.

[12] The Code does not contain a definition of “public park”. In construing the words in s. 161(1)(a), the well known approach described by Professor Driedger in his Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, is to be used:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[13] The purpose of s. 161(1)(a) is to protect children from becoming victims of sexual offences at the hands of those who have previously committed certain specified offences. The protection of this particularly vulnerable group in Canadian society must inform the task of construing the phrase in issue in this appeal. See R. v. D’Angelo (2002), 2002 CanLII 12379 (ON CA), 8 C.R. (6th) 386 (Ont. C.A.).

[14] Section 161(1)(a) addresses the legislative objective by specifying a number of locations that an offender can be prohibited from attending. The context provided by the full list of locations is of assistance in construing the phrase in issue here. Some locations such as day care centers or school grounds are places where children will inevitably be present because of the activities carried on there. However, this is not necessarily so for other locations such as public parks. As the Supreme Court of Canada said in R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, not all public parks are places where children are likely to be found. Wilderness parks for example are public parks where nothing goes on that is likely to attract children. However, consistent with the legislative objective, only public parks where children are present or can reasonably be expected to be present can be included in a prohibition order. In other words, Parliament has specified locations in s. 161(1)(a) because what goes on there makes it likely that young children will be present.

[15] The grammatical and ordinary sense of the words in s. 161(1)(a) is informed by the definitions of “park” found in the Canadian Oxford English Dictionary, 2nd ed. (Oxford University Press, 2004):

park/ park/ n. 1 a piece of land usu. with lawns, gardens, etc. in a town or city, maintained at public expense for recreational use. 2 a large area of government land kept in its natural state for recreational use, wildlife conservation, etc. 3 a large enclosed area of land etc., either public or private, used to accommodate wild animals in captivity (wildlife park). 4 (usu. in combination) a an area devoted to a specified purpose (industrial park). b an area developed for a particular form of recreation (snowboard park; water park; theme park). 5 N. Amer. an enclosed arena, area, stadium, etc. for sports events (esp. ballpark). 6 an area for motor vehicles etc. to be left in (trailer park). 7 the gear position or function in an automatic transmission in which the gears are locked, preventing the vehicle’s movement. 8 a large enclosed piece of ground, usu. with woodland and pasture, attached to a stately home etc.

[16] The first six are of relevance here. All are specified locations characterized by what goes on there. For most of the six, it is some form of recreational activity.

[17] Finally, in construing the phrase describing the location that the appellant is prohibited from attending, sufficient clarity must be given. An individual bound by a prohibition order should be able to know what it requires, since breach of the order constitutes a criminal offence. In R. v. Tremblay (2008), 2008 ONCA 24, 89 O.R. (3d) 48 (C.A.), at para. 10, my colleague Sharpe J.A. put the point this way in interpreting a term in a long-term supervision order:

That said, we must also be mindful that failure to comply with the condition constitutes a serious criminal offence carrying a period of up to ten years imprisonment and that it must be interpreted according to applicable legal principles. In particular, the appellant is entitled to the benefit of the principle explained by Dickson J. in Marcotte v. Canada (Deputy Attorney General), 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, [1974] S.C.J. No. 142, at p. 115 S.C.R:

No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

[18] In light of these considerations how are we to construe the prohibition from attending a “public park… where persons under the age of fourteen years are present or can reasonably be expected to be present”?

[19] The appellant argues that only a green space qualifies. I cannot agree. The legislative purpose, the kinds of locations that can be included in a prohibition order, and the ordinary grammatical meaning of the words clearly focus on the kinds of recreational activities that the public can engage in at the particular location and whether they are likely to involve the presence of young children. There is nothing to suggest that a particular physical geography is a vital characteristic. Indeed there are many locations commonly referred to as parks which exhibit little if any greenery. Skateboard parks are but one example. While in a particular case the presence of greenery may help in identifying a location as a public park for the purposes of a prohibition order under s. 161(1)(a), I do not think that the absence of greenery necessarily excludes it.

[20] In my view, to breach this term of a prohibition order under s. 161(1)(a), the person bound by it must be attending at a defined or discrete location that is accessible to the public for recreational use that involves or is reasonably likely to involve children under the specified age. In particular cases, other factors may also be relevant, such as the presence of greenery or the public designation of the location as a park. Construed in this way, the phrase “public park… where persons under the age of fourteen years are present or can reasonably be expected to be present” best serves the legislative purpose and is most faithful to the ordinary and grammatical sense of the words in their legislative context. Moreover, it provides the clarity necessary for the person bound by the order to know the locations that must be avoided.

[21] The appellant places significant reliance on R. v. Lachapelle, 2008 BCSC 511, where the British Columbia Supreme Court determined that a prohibition order in the same terms as the one in this case did not extend to a vacant private field where a travelling carnival with amusement rides was being held. As I read the decision, the determining factor seems to be that the location was a vacant private field. If so, I agree with the result. If, however, the decision stands for the proposition that the nature of the activities taking place at the location is irrelevant, then respectfully, I disagree with it for the reasons I have indicated.

CONCLUSION

[22] Construing the phrase in issue in this appeal as I have described above, I agree with the trial judge that the appellant was in breach of his prohibition order when he was found attending the Super Ex at Lansdowne Park on August 18, 2006. He was at a defined location to which the public had access for recreational use that included or could reasonably be expected to include the presence of persons under the age of fourteen years. Moreover, in this case, there was some greenery at the location although it was peripheral. Finally, the location itself was publicly designated as a park. A person in the appellant’s position would reasonably know that he cannot attend that location in those circumstances.

[23] The appeal must be dismissed.

RELEASED: June 19, 2009 “STG”

“S.T. Goudge J.A.”

“I agree E.A. Cronk J.A.”

“I agree H.S. LaForme J.A.”

[^1]: The section was amended in 2008 to raise the age from 14 years to 16 years.