CITATION: London (City) v. Ramirez, 2010 ONCA 307
DATE: 20100430
DOCKET: C51156
COURT OF APPEAL FOR ONTARIO
Sharpe, Blair and MacFarland JJ.A.
BETWEEN
The Corporation of the City of London
Appellant
and
Margarita Vizcaino Ramirez
Respondent
and
Attorney General of Ontario
Intervener
David Cribbs, for the appellant
Michael T. Doi, for the intervener Attorney General of Ontario
Robert Sheppard, for the respondent
Heard & released orally: April 26, 2010
On appeal from the judgment of Justice John L. Getliffe of the Ontario Court of Justice dated August 20, 2009 dismissing an appeal from an acquittal entered by Justice of the Peace M. Miskokomon.
ENDORSEMENT
[1] This is an appeal from the decision of the summary conviction appeal judge dismissing an appeal from an acquittal by a justice of the peace. The charge, laid under the City of London’s Adult Entertainment Parlour Bylaw, was that of being an attendant at an Adult Live Entertainment Parlour and having physical contact with another person while providing service.
[2] Leave to appeal was granted by Cronk J.A. on two grounds: (i) that there was a clear but unstated implication in the appeal judge’s decision that s. 3.8 of Bylaw L-6 is ultra vires the City and (ii) with respect to the interpretation of the elements of the offence prescribed by s. 3.8.
[3] The bylaw in question creates the following offence in s. 3.8:
No attendant shall, while providing services as an attendant at an adult live entertainment parlour, touch or have physical contact with any other person in any manner whatsoever involving any part of that person’s body.
“Attendant” is defined by s. 3.1 as
Any person other than a licensed owner or operator who provides services designed to appeal to erotic or sexual appetites or inclinations at an adult live entertainment parlour, and shall include an entertainer.
[4] With respect to the first ground, it is conceded that the bylaw is not ultra vires. To the extent the summary conviction appeal judge purported to state otherwise, he erred. First, no notice was given to the attorneys general of a constitutional question and second, in any event, it is clear on the jurisprudence of this court that the bylaw is not ultra vires: see Adult Entertainment Assoc. of Canada v. Ottawa (City) (2007), 2007 ONCA 389, 283 D.L.R. (4th) 704 (Ont. C.A.)
[5] With respect to the elements of the offence, the summary conviction appeal judge appears to have endorsed the justice of the peace’s interpretation of the bylaw as requiring proof that the accused was an employee of the establishment.
[6] The respondent accepts the broad definition of services advanced by the City, namely, an act done for the benefit or at the command of another. We agree with the City that given the purpose and content of the bylaw as a whole, the bylaw’s definition of “attendant” does not require proof of any economic or other relationship between the person performing the services and the establishment except for the presence of the person performing the services in the establishment.
[7] For these reasons, the appeal is allowed, the acquittal is set aside and a new trial is ordered. We note however, that the City has indicated its intention not to proceed with a new trial.
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
“J. MacFarland J.A.”