R. v. Couvillon (Courtney)

Date: November 28, 2012

Justice of the Peace: Anna Hampson

Charge and Issues

Courtney Couvillon is charged with the offence of "being an attendant at an adult live entertainment parlour did have physical contact with another person while providing services contrary to the Business Licensing City of London By-Law #L-6, s. 3.8".

There are two issues in this matter: the first issue is with respect to identity. The second issue involves whether this involved an "adult entertainment parlour" and this in turn involves an examination of this particular by-law in terms of statutory interpretation. A review of the evidence is necessary.

Evidence

Officer Kristoff's Testimony

Officer Kristoff, a London police officer, testified that on February 11, 2012 at 10:45 p.m. he was in the Beef Baron, 624 York Street, London, conducting a Liquor Licence Act inspection. He looked around and saw various women. In the back area situated away from where the majority of people sit at the bar, he observed a male sitting on a couch or large chair fully clothed. A female was nude and she was straddling him while seated on his lap. She had one leg on one side of him and her other leg on the other side of him while being seated on his lap facing him. He was about 20' away with nothing to obstruct his view. The woman was thrusting her pelvis "in a manner similar to intercourse" according to the officer and then he saw the female take the male's head with her left arm behind his head and she pulled his head towards her and pressed her head into her breasts. The song that was playing stopped, the woman got off the male, and the officer went over to the woman.

Identification of the Defendant

When asked how he identified the woman, Officer Kristoff testified that there was a photocopy of a passport with a photo that he reviewed and he was satisfied that the photo was consistent with the person he was dealing with. In cross examination, he agreed that the photocopy of the passport was provided by someone else at the bar, Andrew Milton, but that it was at her request as she did not have any identification on her. The woman also identified herself verbally as Courtney Couvillon and provided a date of birth and address which he recorded on the front of the ticket. The officer also had some conversation with her, but no attempt was made to introduce any statement from the defendant.

Based on this evidence, I am satisfied beyond a reasonable doubt that the woman Officer Kristoff was dealing with was Courtney Couvillon, based on her verbal identification of her name and birthday, and thus the defendant is Courtney Couvillon. Although the passport was a photocopy and was provided by someone else and was hearsay, I find that this document was used by the officer to simply confirm the verbal identification provided by the defendant.

Description of the Premises

Officer Kristoff also described what the outside of the premises looked like. He testified that there are signs on the outside indicating non-stop table dancers and the sign itself had a picture of a bikini clad woman on her knees in a suggestive pose, which he testified meant "a sexual pose". Mr. Hardy objected to the officer giving his opinion that this was a "suggestive pose, a sexual pose", and I ruled that the officer was not offering an expert opinion about what this depicted, but that it was his personal view of what it depicted. He further testified that this was merely a drawing "if memory serves me" it's sort of a block drawing with no other details.

When the notes were being qualified, the officer indicated that he made a 3 line addition to his notes on February 14th. When pressed in cross examination about the sign, it became clear that the 3 line addition had to deal with the sign. He testified that he observed the sign when they went in, did not make any notes of the details of the sign at that time, and that he wanted to capture what it was on the sign on 11th in case it changed down the road, so he made the addition to his notes on the 14th but that he did not re-attend on the 14th. He further testified that he may have driven past on the 12th, 13th or 14th as it is in close proximity to the police headquarters, and that all that could be said with respect to the addition to the notes was that they were the best recollection of what he recalled being on the sign on February 11th.

Relevant By-Law Provisions

Section 3.8 - Attendant-Physical Contact-Prohibited

No attendant shall, while providing services as an attendant at an adult live entertainment parlour, touch or have any physical contact with any other person in any manner whatsoever involving any part of that person's body.

Section 3.1 - Definitions

"Adult live entertainment parlour" shall mean any premises or part thereof in which, in pursuance of a business, a live performance appealing or designed to appeal to erotic or sexual appetites or inclinations is provided.

"Live performance" shall mean any performance, exhibition or activity designed to appeal to erotic or sexual appetites or inclinations:

(a) of which a principle feature or characteristic is the nudity or partial nudity of any person; and

(b) in respect of which the word "nude", "naked", "topless", "bottomless", "sexy" or any other word or any picture, symbol or representation having like meaning or implication is used in any sign, advertisement, or advertising device; and

without restricting the generality of the foregoing, includes any performance, exhibition or activity involving striptease dancers, go-go dancers, exotic dancers, table dancers, wet clothing contests or best body parts contests.

Arguments of Counsel

Defence Argument (Mr. Hardy)

Mr. Hardy argues that the prosecution has not proven beyond a reasonable doubt that this was a "live performance" as defined above. Mr. Hardy concedes that there was touching or physical contact, that there was nudity and that the erotic and sexual aspects of the activity were present as well. As a result, the (a) portion of the definition has been made out.

However, he argues that the prosecution has not proven beyond a reasonable doubt that the sign in question falls within the meaning of the definition of a "live performance" for three reasons:

1. The evidence of the officer with respect to the sign is not reliable because the officer made no notes of the details of the sign on the night in question but simply added the details to his notes 3 days later.

2. It was the officer's opinion that the drawing amounted to a "suggestive pose".

3. Even if the court accepts the officer's evidence of the description of the sign, it still does not fall within the meaning of the definition of a "live performance" because the sign would need to say "nude" non-stop table dancers, or "naked" non-stop table dancers, or "topless" non-stop table dancers, "bottomless" non-stop table dancers or "sexy" non-stop table dancers. That is the word "nude" from (b) of the definition plus the word "table dancers" from the last portion of the definition found in the list starting with "striptease dancers" must be on the sign and it is not sufficient if it simply states non-stop "table dancers" due to the presence of the word "and" at the end of (b). On this interpretation, all three components are necessary.

Crown Argument (Mr. Byskal)

Mr. Byskal argues that the prosecution has proven beyond a reasonable doubt that this was a "live performance" as defined. He argues that it is not necessary for the sign to indicate "nude" and "non-stop table dancers", or "naked" and "non-stop table dancers", etc. because the wording "without limiting the generality of the foregoing" does not impose a requirement for there to be both the word "nude" and "table dancers" and that the words "table dancing" is sufficient.

He further argues in the alternative, that the officer's evidence about the drawing on the sign, namely, an outline of a woman in her knees in a bikini, would be "a representation of like meaning or implication" and thus would satisfy the (b) portion of the definition.

Interpretation of the By-Law

In Berjawi v. Ottawa (City), 2011 ONSC 236, Justice Hackland, Sup Ct. held:

The Supreme Court of Canada held in Montreal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141 that the same general principles of statutory interpretation apply to zoning by-laws as to any other legislation. A proper approach to the interpretation of a municipal zoning by-law is one that takes into account the words used, the intent of council, and the purpose and schemes of the by-law as a whole. The Court stated:

As this Court has reiterated on numerous occasions, "[t]oday 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" (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). This means that, as recognized in Rizzo & Rizzo Shoes "statutory interpretation cannot be founded on the wording of the legislation alone" (para. 21).

Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation. The fact that a municipal by-law is in issue rather than a statute does not alter the approach to be followed in applying the modern principles of interpretation: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 24.

In our view, although it appears to be clear, the provision is in fact ambiguous. In interpretation legislation, the guiding principle is the need to determine the lawmakers' intention. To do this, it is not enough to look at the words of the legislation. Its context must also be considered.

I agree with the City's submission that although zoning by-laws affect the rights of landowners by restricting what they might otherwise be entitled to do with their property, the purpose of such by-laws is to set standards for the entire community and to ensure that the development of the community proceeds in a manner consistent with the municipality's planning policies. There is a large component of public interest at play in decisions made by a Chief Building Official. The Chief Building Official must in fact consider the public interest particularly to the community specifically involved.

Also of significance is the Municipal Act 2001, Section 8, which provides:

(1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues.

Court's Analysis

In applying these principles to the facts before me, I have come to the conclusion that the proper way to interpret the definition of "live performance" is to read it in the entire context and in the grammatical and ordinary sense, harmoniously with the intention of the by-law.

The grammatical use of the colon (to introduce a list) after the word "inclinations" as well as the semi-colon (to join 2 complete sentences or long thoughts) after the word "person" in (a) as well as the semi-colon after the word "device" in (b) shows that a live performance can occur in one of three different ways:

1. Performance with Nudity

"Live performance" shall mean any performance, exhibition or activity designed to appeal to erotic or sexual appetites or inclinations of which a principle feature or characteristic is the nudity or partial nudity of any person; and

2. Performance with Signage

"Live performance" shall mean any performance, exhibition or activity designed to appeal to erotic or sexual appetites or inclinations in respect of which the word "nude", "naked", "topless", "bottomless", "sexy" or any other word or any picture, symbol or representation having like meaning or implication is used in any sign, advertisement, or advertising device; and

3. Performance by Type

"Live performance" shall mean any performance, exhibition or activity designed to appeal to erotic or sexual appetites or inclinations without restricting the generality of the foregoing, includes any performance, exhibition or activity involving striptease dancers, go-go dancers, exotic dancers, table dancers, wet clothing contests or best body parts contests.

The by-law is to regulate behaviour within establishments, and not simply the signage that can be used outside of an establishment. As a result:

• If the erotic performance involves nudity, it is a live performance.
• If the erotic performance is at a place where a sign was used that had naked etc. or a picture etc., it is a live performance.
• If the erotic performance was a striptease, table dancer etc., it is a live performance.

The prohibition is against an attendant having physical contact with a customer during a live performance, wherever that performance may be. The by-law is drafted in such a manner to apply to all live performances at adult entertainment locations.

To give effect to the position of the defendant would mean that one could avoid a violation by simply having a sign that did not comply (i.e. don't say anything about it being naked) and thus could engage in the activity of being naked and touching patrons while performing table dances, strip teases, etc. Clearly, this is not what was intended by the drafters of the by-law.

Findings and Conclusion

In the present circumstances, I have already made the finding that I was satisfied beyond a reasonable doubt that the defendant was the person who performed. There is no dispute that there was touching, and I make that finding. There is no dispute that the performance was designed to appeal to erotic or sexual appetites and I make that finding. There is no dispute that defendant was nude and I make that finding. As a result, this was a live performance as set out in category 1 above and I make that finding.

I also accept the officer's evidence with respect to the sign, namely that it said "non-stop table dancers" and also consisted of a drawing of a woman in a bikini on her knees. Although he made the notes 3 days after the incident, I accept his evidence as to the description of the sign and find it reliable and credible. He did not specifically go to the premises 3 days later and make the notes but made the addition based upon his memory of the incident. If there had been no notation of the description of the sign and the officer testified as to his memory only, I may not have found this evidence reliable and credible.

I also find that this representation of a bikini clad woman on her knees to be of a sexual nature. He was not offering an expert opinion of this representation, but merely his personal view. This is something that any member of the public may express a view. A bikini by its very nature is a garment that covers a female's breasts and pubic area leaving the rest of the body uncovered and exposed. As a result, this would also be a "live performance" as set out in category 2 above and I make that finding.

I therefore find that the prosecution has proven all of the essential elements of the offence beyond a reasonable doubt, and I find the defendant, Courtney Couvillon, guilty of the offence of "being an attendant at an adult live entertainment parlour did have physical contact with another person while providing services contrary to the Business Licensing City of London By-Law #L-6, s. 3.8".