IN THE MATTER OF
Mississauga Bylaw 507-2005 (Adult Entertainment Establishment Licensing Bylaw)
Between
The Corporation of the City of Mississauga Prosecutor and Responding Party
and
1094388 Ontario Limited, operating as Pure Gold Adult Entertainment
Defendant and Moving Party
Ontario Court of Justice Mississauga, Ontario
Quon J.P.
Ruling on Motion to Quash Information
Application Argued: June 27, 2014 Ruling rendered: December 12, 2014
Charges
Two counts of "licensed owner of an adult entertainment parlour did permit services by an entertainer in an area not clearly visible from the main stage and patron area, contrary to s. 5(6) of Sched.4 of City of Mississauga Bylaw 507-2005, and thereby did commit the offence under s. 25(1) of City of Mississauga Bylaw 507-2005".
Counsel
S. Chen and M. Dunlop, prosecutors for the City of Mississauga
T. Simone, counsel for the corporate defendant
Cases Considered or Referred To
(a) Cases on the need for a factual context before ruling on a constitutional question
R. v. Levkovic, 2010 ONCA 830, per Doherty, Armstrong and Watt JJ.A.
R. v. Martin, per Finlayson, McKinlay and Abella JJ.A.
(b) Cases on appropriateness of using the Motion To Quash Information for defects apparent on face of information for vagueness doctrine
Langille (c.o.b. Rickshaw Runners of Toronto) v. Toronto (City), [2007] O.J. No. 1756 (QL) (S.C.J.O.), per Belobaba J.
R. v. 152207 Canada Inc., [2001] O.J. No. 1101 (QL) (S.C.J.O.), per MacDougall J.
R. v. J.F. Brennan & Associates Ltd., [1981] O.J. No. 253 (QL) (O.H.C.J.), per Osler J.
R. v. Day, [1985] O.J. No. 1798 (QL) (Ont. Dist. Ct.), per Hurley D.C.J.
R. v. Maitland Capital Ltd., [2008] O.J. No. 4356 (QL) (O.C.J.), per Sparrow J.
(c) Cases on Corporations raising Charter issue under s. 7
Irwin Toy Ltd. v. Quebec (Attorney General)
Ontario v. Canadian Pacific Ltd.
(d) Cases on the Test For Determining if Impugned Law is Unconstitutionally Vague
R. v. Nova Scotia Pharmaceutical Society
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.)
Ontario v. Canadian Pacific Ltd.
(e) Cases on Interpreting Legislation
Delisle v. Canada (Deputy Attorney General)
Ontario v. Canadian Pacific Ltd.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4
(f) Cases on the Vagueness Doctrine Applied to Municipal Bylaws
2312460 Ontario Ltd. v. Toronto (City), 2013 ONSC 1279, per Himel J.
Bell v. Toronto (City), [1996] O.J. No. 3146 (O.C.J.), per Fairgrieve J.
R. v. Sandler, per Kelly, Jessup and Brooke JJ.A.
R. v. Zanzibar Tavern Inc. (c.o.b. Zanzibar Circus Tavern), [2007] O.J. No. 3381 (QL) (O.C.J.), per Quon J.P.
Wainfleet Wind Energy Inc. v. Wainfleet (Township), 2013 ONSC 2194, per Reid J.
Statutes or Regulations Cited
Legislation Act, 2006, S.O. 2006, c. 21, Schedule F, s. 64(1)
Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 33, 34, 35, 36(1), 36(2)
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 52
Bylaws Cited
City of Toronto Municipal Code, Chapter 545 (Licensing), Article XXXII (Adult Entertainment Parlours)
City of Mississauga (Adult Entertainment Establishment Licensing) Bylaw 507-2005, ss. 1, 25(2), and 30, Schedule 4, ss. 1(3), 2(4), 5(6), 6, and 7
Reference Material Cited
W.D. Drinkwalter and J.D. Ewart, Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980)
R. Sullivan, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997)
Exhibits Entered
Exhibit "1" - Toronto Staff Report reviewing the Adult Entertainment Parlour Regulations - Amendments to Toronto Municipal Code Chapter 545, dated October 12, 2012 (84 pages)
1. INTRODUCTION
[1] This particular defence motion, which seeks an order to quash the information, is a page out of the "void for vagueness" playbook. When used to defend against a charge in a criminal or regulatory proceeding, the vagueness doctrine requires a determination of whether the statutory provision from which the charge emanates is so imprecisely worded that it does not give citizens fair notice of the consequences of their conduct or limits the discretion of those charged with its enforcement. And, when a law is impermissibly vague, it mocks the rule of law and scorns a principle of fundamental justice that no one may be convicted or punished for an act or omission that is not clearly prohibited by a valid law: R. v. Levkovic, 2013 SCC 25, at para. 1.
[2] In this prosecution, the City of Mississauga has charged 1094388 Ontario Limited, operating as Pure Gold Adult Entertainment ("the corporate defendant"), as the licensed owner or operator of the adult entertainment establishment located at unit #1, 2630 Royal Windsor Drive, in the City of Mississauga, with two counts of permitting an entertainer (or exotic dancer) to provide services to a patron on May 4, 2012, in an area of the licensed establishment that is not clearly visible from the main stage and patron area, contrary to s. 5(6) of Schedule 4 of City of Mississauga Bylaw 507-2005, and thereby committing an offence under section 25(1) of Bylaw 0507-2005.
[3] The impugned bylaw that is set out in s. 5(6) of Schedule 4 of Bylaw 507-2005 provides that:
- No Owner shall,
(6) Permit any Entertainer to perform any service in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business, and which location is without obstruction by any person or any thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting;
[4] As a business endeavour, adult entertainment parlours or establishments are legally permitted to be operated in the City of Mississauga under a municipal licensing scheme. This licensing scheme is set out in Mississauga Bylaw 507-2005, which is fittingly entitled the Adult Entertainment Establishment Licensing Bylaw ("Bylaw 507-2005"). Bylaw 507-2005 also regulates and governs the activities and the nature of the entertainment permitted at these establishments, as well as imposing specific duties on the licensed owners in respect to the operation of these types of establishments. Moreover, one of its purposes is to protect the health and safety of entertainers or dancers working in these establishments.
[5] However, the corporate defendant contends that the "unobstructed-visibility" bylaw that is set out in s. 5(6), which the corporate defendant had been charged under, is unconstitutionally vague. To initiate this constitutional challenge, the corporate defendant, after arraignment but prior to plea and prior to any evidence being heard on June 27, 2014, made a motion to quash the information under s. 36(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (" P.O.A. "), by contending that the s. 5(6) bylaw is an invalid or unconstitutional law due to its language or wording being so imprecise that it fails to give the defendant fair notice of what it is that is being prohibited from being done by that specific bylaw, and that its impreciseness also fails to limit enforcement discretion, so that the corporate defendant would be convicted automatically once the charge is laid. Also, in its motion to quash, the corporate defendant is seeking a declaration and a ruling that s. 5(6) is impermissibly vague, and therefore an invalid law, and that since the corporate defendant is not subject to an invalid law, then the information would have to be necessarily quashed and the two charges dismissed against the corporate defendant.
[6] Furthermore, the corporate defendant submits that the impugned information does not contain "an offence know to law", since it is invalid for vagueness. This purported lack of an offence known to law would then be the defect apparent on the face of the information that is being contended in the corporate defendant's motion to quash under s. 36(1). In addition, the corporate defendant argues that the information does not provide sufficient notice of what conduct had been prohibited, so as to be able to defend against the two charges. The corporate defendant also submits the impugned information could not be amended, nor an order for particulars be made under s. 36(2) of the P.O.A., which would satisfy the ends of justice. And, since no amendment or order for particulars would be able to cure an invalid information or unenforceable section of Bylaw 507-2005, then the corporate defendant submits the information should be quashed.
[7] Moreover, in respect to its vagueness claim, the corporate defendant submits that the following phrases in s. 5(6) are particularly uncertain: "any services", "permit services", "from the main stage", "in an area not clearly visible", "patron area", "obstruction" and "location which is without obstruction by any person or anything including but not limited to". The corporate defendant has also provided hypothetical circumstances in its arguments and factum to demonstrate the uncertainty of some of those specific phrases, such as the following:
(i) What part of the "main stage area must be clearly visible"? If the stage is 30 feet long what must be observed and from where and by whom? Does that mean that the By-law officer would have to walk the 30 feet of the main stage and any extended arms of the stage thereof in order to determine whether there is a breach of the section? The wording of the By-law does not provide for any criteria for a determination of' from main stage" nor does it define patron area;
(ii) "without obstruction by any person" -- Does it mean that if a person/patron/waitress etc. is standing in the "location" and having a drink then that would be determined to be an obstruction;
(iii) "inadequate lighting" -- Do we rely on enforcement officers with poor vision, with night vision issues. or other vision issues that prevent that officer from adjusting their eyesight where they enter an establishment from daylight'?
(iv) Section 5(6) of the By-law allows for the owner to be charged if an enforcement officer standing in an area that s/he perceives to be the proper place to stand, which area is not defined, to make a determination of whether there is an obstruction even where "a person" is obstructing his/her view. The By-law allows enforcement officers to decide what the offence is rather than the law determining what the offence is.
[8] Ergo, based on the nature of the constitutional question, the following issues need to be resolved before being able to decide whether the corporate defendant's motion to quash the information should be granted or dismissed: First, it will have to be resolved whether using the motion to quash provided under s. 36 of the P.O.A. is the appropriate mechanism for determining whether the impugned "unobstructed-visibility" bylaw in s. 5(6) is impermissibly vague, considering that there is a presumption that laws are constitutional; that constitutional questions generally require a factual foundation, especially when a motion to quash brought under s. 36 is required to be brought before plea and before any evidence is heard; that regulatory proceedings should not be fragmented by interlocutory proceedings that take on a life of its own; and that constitutional questions should generally be only decided after a factual foundation has been established. Secondly, before deciding on the motion to quash, it will have to be resolved whether a factual foundation is required to be established for this particular case. And, if this motion to quash the information can be decided without a factual foundation, then the third question that needs to be resolved is whether s. 5(6) requires to be fully reviewed and actually interpreted in order to determine if the impugned bylaw is impermissibly vague, or does the test only require finding that the impugned bylaw is capable of being interpreted, as opposed to being actually interpreted.
2. THE CHARGES
[9] The corporate defendant has been charged under s. 5(6) of Schedule 4 of the City of Mississauga Adult Entertainment Establishment Licensing Bylaw 507-2005, as the licensed owner of an adult entertainment parlour located at unit #1, 2630 Road Windsor Drive, Mississauga, with two counts of permitting services by an entertainer in a location that is not clearly visible from the main stage and patron area on May 4, 2012, and thereby committing an offence under s. 25(1) of Bylaw 507-2005. The actual wording of the two charges contained in the information sworn on August 7, 2012, is the following:
(1) 1094388 Ontario Limited, o/a Pure Gold Adult Entertainment, 2630 Royal Windsor Drive, Mississauga, ON L5J 1K7 on or about 4th day of May, 2012, at 2630 Royal Windsor Drive, Mississauga, ON did commit the offence of being the licensed owner of an Adult Entertainment Parlour, did permit services by an entertainer in an area not clearly visible from the main stage area and patron area, contrary to Schedule 4 sec. 5(6) of the City of Mississauga Bylaw 0507-2005, as amended, and thereby did commit an offence under section 25(1) of the City of Mississauga Bylaw 0507-2005, as amended.
(2) AND FURTHER THAT 1094388 Ontario Limited, o/a Pure Gold Adult Entertainment on or about May 4, 2012, at 2630 Royal Windsor Drive, Mississauga, Ontario did commit an offence of being the licensed owner of an Adult Entertainment Parlour, did permit services by an entertainer in an area not clearly visible from the main stage area and patron area, contrary to Schedule 4 sec. 5(6) of the City of Mississauga Bylaw 0507-2005, as amended, and thereby did commit an offence under section 25(1) of the City of Mississauga Bylaw 0507-2005, as amended.
3. FACTUAL CONTEXT
[10] The corporate defendant's motion to quash the information under s. 36(1) of the P.O.A. is a pretrial and pre-evidence motion. As such, no evidence in respect to the actual charges have been heard or adduced. The motion to quash was brought according to the procedure set out in s. 36(1), which requires that after arraignment, but prior to the defendant entering a plea, that an objection to the information should be brought at that time. However, as set out in s. 36(2), the information can only be quashed if a division of counts, an amendment, or particulars under section 33, 34, or 35 of the P.O.A., respectively, would fail to satisfy the ends of justice:
36(1) An objection to an information or a certificate for a defect apparent on its face shall be taken by a motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
(2) The court shall not quash an information or a certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.
[11] As such, there is no witness testimony or factual context in respect to the actual charges being prosecuted at bar. However, this issue of whether a factual foundation is required to be established before deciding whether the impugned bylaw is unconstitutionally vague, will be examined further on in this ruling.
[12] On the other hand, despite there being no evidence adduced pertaining to the actual charges or circumstances surrounding the charges, documentary evidence had been submitted by the corporate defendant in support of its motion to quash. The document is a staff report dated October 12, 2012, that had been prepared by the Municipal Licensing and Standards Department of the City of Toronto in respect to the Adult Entertainment Parlour regulations under the Toronto Municipal Code, Chapter 545 (Licensing), Article XXXII, that the City of Toronto enacted to regulate those specific establishments operating in the City of Toronto (see Ex. 1). This staff report, as highlighted by the corporate defendant, indicates that there had been issues in respect to the enforcement and application of the City of Toronto bylaw in respect to adult entertainment parlours, especially in respect to its "unobstructed-visibility" bylaw, that is analogous to the City of Mississauga's "unobstructed-visibility" bylaw that is set out in s. 5(6) of Schedule 4 of City of Mississauga Bylaw 507-2005.
[13] However, it is also noteworthy that the Toronto Staff report also contained a reference at p. 9, that the Adult Entertainment Association of Canada had frequently cited Mississauga Bylaw 507-2005 as a model to consider in re-drafting the Toronto Adult Entertainment Parlour regulations.
[14] Furthermore, the corporate defendant relies on the recommendations and the problems outlined in that Toronto Staff report, especially in respect to the enforcement of the City of Toronto "unobstructed-visibility" bylaw, to support its contention that the impugned Mississauga "unobstructed-visibility" bylaw contained in s. 5(6) is unconstitutionally vague. And, as a consequence of this supposed impreciseness, the corporate defendant contends that the information in question would not contain an offence known to law, and as such, the motion to quash the information should be granted.
[15] Moreover, the corporate defendant's contention that s. 5(6) is impermissibly vague because the prohibited conduct set out in s. 5(6) is not precisely spelled out, is based on challenging the interpretation and actual meaning of virtually every individual word or phrase set out in s. 5(6) by showing that each word or phrase could have several interpretations and meanings.
[16] Lastly, the information in question was sworn on August 7, 2012. The amended motion to quash the information was filed on December 4, 2013. The motion and the trial was then set down to be heard on June 27, 2014. As noted earlier, the corporate defendant then, after arraignment and prior to entering a plea, brought this motion to quash the information contending that the "unobstructed-visibility" bylaw set out in s. 5(6) is unconstitutionally vague.
4. APPLICABLE LAW
[17] Section 5 of Schedule 4 of Bylaw 507-2005 places obligations and duties on the owners of adult entertainment establishments in Mississauga not to permit entertainers from having physical contact with patrons, as well as not allowing any of their employees or patrons to touch or have contact with the breasts, buttocks, genital, or pubic areas of any entertainer. In addition, owners must not permit any entertainer to provide any service to a patron in a location that is not clearly visible from the Main Stage and a patron seating area for that particular floor of the Adult Entertainment Business:
CONDUCT ON PREMISES
- No Owner shall,
(1) Permit any individual under the age of eighteen (18) years to enter or remain in the Adult Entertainment Business or any part thereof;
(2) Employ or otherwise use the services of individuals under the age of eighteen (18) years;
(3) Allow any person to act as an Entertainer who is under the age of eighteen (18) years;
(4) Permit any Entertainer to touch, sit, or rest on, or make any physical contact with the breasts, buttocks, genital or pubic areas of any other person;
(5) Permit any employee or patron to touch, sit, or rest on, or make any physical contact with the breasts, buttocks, genital or pubic areas of any Entertainer;
(6) Permit any Entertainer to perform any service in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business, and which location is without obstruction by any person or any thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting;
(7) Permit any person to loiter, create a disturbance or cause undue noise while on the licensed premises;
(8) Advertise or cause or permit to be advertised an Adult Entertainment Business in any way or by any means, or publish anything, erect, post or maintain any sign, notice or any other publication or device, relating to or drawing attention to an Adult Entertainment Business, except as specifically permitted in this By-law;
[18] Similarly, under s. 6 of Schedule 4 of Bylaw 507-2005, entertainers are prohibited from allowing any person to touch or have physical contact with their breasts, buttocks, genital, or pubic areas, nor are they permitted to touch, sit, rest on, or make any physical contact with the breasts, buttocks, genital, or pubic areas of any other person in the establishment. In addition, entertainers or dancers are prohibited from performing any service in a location which is not clearly visible from the Main Stage and a patron seating area for that particular floor of the Adult Entertainment Business:
- No Entertainer shall:
(1) Permit any person to touch or make any physical contact with their breasts, buttocks, genital or pubic areas;
(2) Touch, sit, or rest on, or make any physical contact with the breasts, buttocks, genital or pubic areas of any other person; or
(3) Perform any services in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business and which location is without obstruction by any person or any thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting.
[19] In addition, the following definitions contained in s. 1 of Bylaw 507-2005 are applicable to this proceeding:
- In this by-law:
"Adult Entertainment Business" means any premises or part thereof in which is provided, in pursuance of a trade, calling, business or occupation, services appealing to or designed to appeal to erotic or sexual appetites or inclinations;
"Adult Entertainment Establishment" includes an Adult Entertainment Business, Body-rub Business, Adult Book Store or an Adult Videotape Store;
"Entertainer" means a person who, in pursuance to a trade, business or occupation, provides services designed to appeal to erotic or sexual appetites or inclinations at an Adult Entertainment Business;
"Erotic or sexual appetites" means the bent of mind, desire, inclination or preference to satisfy a craving or desire pertaining to or related to sex;
"Licence" means the certificate issued by the Licence Manager under this By-law;
"Licence Manager" means the Manager of the Compliance and Licensing Enforcement unit of the City's Enforcement Division and includes his or her designates. (192-08)
"Licensing Unit" means the Compliance and Licensing Enforcement Unit of the Corporation's Enforcement Division;
"Main Stage" means, in relation to an Adult Entertainment Business, the principal setting, scene or area on any floor in the premise upon which performances, services or an event or a series of events are presented, exclusive of patron seating areas;
"Owner" means a person who alone or with others, owns and/or has ultimate control over, and/or directs the operation of the trade, calling, business or occupation carried on at an Adult Entertainment Establishment, and includes an owner, lessee, tenant, or licensee of the premises from which the Adult Entertainment Establishment is operated;
"Premises" include lands, and any fence, buildings, sheds or similar structures situated thereon;
"Services" includes Body-rubs, performances, dances, exhibitions and viewings;
"Services designed to appeal to erotic or sexual appetites or inclinations" includes services of which a principal feature or characteristic is the nudity or partial nudity of any person, and services 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 advertisement:
"Specified Body Areas" means, in the case of a female, her breasts and in the case of all persons, the pubic, perineal and perianal areas and the buttocks;
"Specified Sexual Activities" means one or more of the following: actual or simulated sexual intercourse, masturbation, urination, defecation, ejaculation, sodomy, including bestiality, anal intercourse, and oral sexual intercourse, direct physical stimulation of unclothed genital organs, and flagellation or torture in the context of a sexual relationship or activity;
"To provide" means any one or more of the following: when used in relation to services includes to furnish, perform, solicit, or give such services and "providing" and "provision" have corresponding meanings. when used in relating to any Videotape, means to sell, offer to sell or display for sale by retail, or to rent, offer to rent or display for rental, whether or not the cost, fee or other consideration passes at the time of such rental or sale, or is effected through the cost of membership, subscription, admission or any other manner. when used in relation to any book or magazine means to sell, offer to sell or display for sale by retail or otherwise, such book or magazine, and "provider", "providing" and "provision" shall have corresponding meanings.
[20] Furthermore, the following interpretative tools set out in s. 30 of Bylaw 507-2005 apply to the Bylaw, and will assist in determining whether s. 5(6) is impermissibly vague:
30(1) The provisions of the Interpretation Act R.S.O. 1990, c.I.11, shall apply to this Bylaw as required.
(2) In this By-law, unless the context otherwise requires, words imparting the singular number shall include the plural, and words imparting the masculine gender shall include the feminine and further, the converse of the foregoing also applies where the context so requires.
[21] Moreover, the corporate defendant had been required, when it had first applied for an Adult Entertainment Business Owner's License, to provide floor plans depicting the location of the Main Stage in relation to all patron seating areas in its establishment to the Licensing Unit. This condition is set out in s. 1(3) of Schedule 4 of Bylaw 507-2005:
- In addition to the general licensing provisions contained in this By-law, every applicant for a new Adult Entertainment Business Owner's Licence shall submit;
(3) A floor plan of the Adult Entertainment Business, in a fashion acceptable to the Licence Manager, which clearly depicts where the Main Stage is in relation to all patron seating areas in the Adult Entertainment Business;
[22] In addition, s. 2(4) of Schedule 4 of Bylaw 507-2005 indicates that an adult entertainment establishment is eligible to be operated at the municipal address of Unit 1, 2630 Royal Windsor Drive, in the City of Mississauga:
- No licence will be issued or renewed under this By-law and this Schedule unless;
(4) Despite section 2(3), the following premises in actual use as an Adult Entertainment Business will be permitted and are hereby defined as a premise in which one (1) Adult Entertainment Business is, if in compliance with all other law, eligible to apply for and be considered for an Owner's licence:
(1) 7222 Torbram Road
(2) 7040 Torbram Road, Unit 1
(3) 2630 Royal Windsor Drive, Unit 1
(4) 1820 Dundas Street East
[23] Furthermore, s. 7 of Schedule 4 of Bylaw 507-2005 prohibits an owner of an adult entertainment establishment licensed in Mississauga from making or causing to be made any alterations to the composition, design, or location of the Main Stage of the establishment without first receiving approval from the Licence Manager for such alterations:
- No Owner shall make or cause to be made a Main Stage or make or cause to be made any alterations to the composition, design or location of the Main Stage for the Owner's Adult Entertainment Business without first receiving approval from the Licence Manager for such alterations.
[24] And, the penalty that can be imposed on the corporate defendant for being convicted of contravening any provision of Bylaw 507-2005 is a maximum fine of $50,000, which is set out in s. 25(2) of that Bylaw:
25(1) Every person who contravenes any provision of this By-law, and every director or officer of a corporation who concurs in such contravention by the corporation is guilty of an offence and on conviction is liable to a fine, exclusive of costs, not exceeding $25,000 or to imprisonment for a term not exceeding one year, or to both.
(2) If a corporation is convicted the maximum penalty, exclusive of costs, that may be imposed is $50,000.
5. ISSUES
[25] The following issues have arisen in this motion to quash the information:
(a) Is it appropriate to use the motion to quash provision provided for under s. 36(1) of the P.O.A. as the mechanism for determining whether a particular bylaw is unconstitutionally vague?
(b) Do the circumstances in the case at bar require that the trial be held first to establish a factual foundation, before determining whether the s. 5(6) bylaw is void for vagueness?
(c) What is the criteria that should be used to determine whether s. 5(6) is unconstitutionally vague?
(d) For the particular circumstances of this motion to quash the information, does s. 5(6) have to be actually interpreted, or does the test used to determine whether the language set out in s. 5(6) is sufficiently precise only require finding that it is capable of being interpreted?
6. ANALYSIS
[26] The corporate defendant submits there are three grounds for its contention that s. 5(6) is impermissibly vague, namely that:
(a) the Information on its face does not give sufficient information to enable the defendant to know what conduct is prohibited and to defend the allegation and is therefore void for vagueness;
(b) the Information does not disclose an offence known to law as Section 5(6) of the Adult Entertainment Bylaw is void for vagueness; and
(c) Schedule 4, Section 5(6) of the By-law allows for arbitrary and discriminatory application that can be taken by by-law enforcement officers and is therefore void for vagueness.
[27] In its oral argument and factum that s. 5(6) is not constitutionally precise, the corporate defendant has methodically identified or pointed to specific words or phrases set out in s. 5(6) that it contends are lacking precise or interpretable meaning. Moreover, the corporate defendant's contentions of uninterpretable meanings were virtually made in respect to most of the words and phrases set out in s. 5(6).
[28] In response to the vagueness argument, the prosecution submits that the s. 5(6) bylaw under which the corporate defendant had been charged is not impermissibly vague, as it does provide both sufficient notice of what the prohibited act is and does limit enforcement discretion, when the entire Bylaw regulating Adult Entertainment Establishments in Mississauga, as well as its purpose and its definitions are considered together for interpreting the meaning of s. 5(6).
[29] In addition, the prosecution submits that before the corporate defendant had been issued a municipal license by the City of Mississauga to operate the adult entertainment establishment known as Pure Gold Adult Entertainment, s. 1(3) of Schedule 4 required the corporate defendant to prepare and submit to the Mississauga Licensing Department, as part of the requirements to obtain the license, a set of floor plans which would clearly depict and set out where the main stage on which entertainers or exotic dancers would perform is situated in relation to all patron seating in the establishment:
- In addition to the general licensing provisions contained in this By-law, every applicant for a new Adult Entertainment Business Owner's Licence shall submit;
(3) A floor plan of the Adult Entertainment Business, in a fashion acceptable to the Licence Manager, which clearly depicts where the Main Stage is in relation to all patron seating areas in the Adult Entertainment Business;
[30] Furthermore, the prosecution points out that s. 7 of Bylaw 507-2005 prohibits the corporate defendant from making or causing alterations to the composition, design or location of the Main Stage for the establishment without first receiving approval from the License Manager for such alterations:
- No Owner shall make or cause to be made a Main Stage or make or cause to be made any alterations to the composition, design or location of the Main Stage for the Owner's Adult Entertainment Business without first receiving approval from the Licence Manager for such alterations.
[31] As such, the prosecution submits that because the corporate defendant had to prepare and submits floor plans of its establishment to the Licensing Department, the corporate defendant would know, or ought to have known, or be aware of where the location of the main stage and the patron areas are within its own establishment.
(A) Is Using The Motion To Quash Provision Set Out In S. 36 of The P.O.A. The Appropriate Mechanism For Determining Whether A Statutory Provision Is Unconstitutionally Vague?
[32] Although the prosecution had agreed to and supported the corporate defendant bringing this application to challenge the constitutionality of the s. 5(6) bylaw through a Motion to Quash the information under s. 36 of the P.O.A., this mechanism may not be appropriate for the particular circumstances of this case, since constitutional challenges generally require an evidentiary or factual context before they are to be decided.
[33] However, this is not to say that this pre-evidence motion to quash an information under s. 36 for unconstitutional vagueness should never be used, as there may be an exceptional situation or a set of circumstances where it would be appropriate to consider whether a statutory provision is unconstitutionally vague before hearing any evidence.
[34] In addition, the corporate defendant contends that the information fails to disclose any offence known to law because the s. 5(6) bylaw is impermissibly vague, as the defect apparent on the face of the information cannot be amended or that an order for particulars be made that would not be unjust.
[35] Furthermore, it should also be pointed out that when s. 36 of the P.O.A. was first enacted that the Ontario Legislature had not intended this specific mechanism for quashing defective certificates or informations to be used for complicated determinations, such as whether a particular law is unconstitutionally vague, and that only simple and "apparent" defects on the certificate or information that could not be amended or remedied with particulars would be the intended defects on the face of the certificate or information that could be quashed. This is in accord with the P.O.A. being enacted as a procedural statute for regulatory prosecutions in Ontario, which had been distinguished from regulatory offences being prosecuted under the old summary conviction procedures of the Criminal Code. In short, the purpose of the P.O.A. had been intended to make the prosecutions of regulatory offences in Ontario be more expeditious and expedient without sacrificing justice, and had also envisioned expeditious determinations of a charge on the merits: Drinkwalter and Ewart's Ontario Provincial Offences Procedure (1980) textbook, at p. 23.
[36] Moreover, s. 36(2) of the P.O.A. intended that certificates and informations would not be quashed, unless amendments or particulars would fail to satisfy the ends of justice. Therefore, the facial defects that had been envisioned to make certificates or informations quashable under s. 36 would have to be "apparent" defects that are easily identified, such as the missing signature of the enforcement officer on the certificate or information, or obvious defects that go to the jurisdiction of the court to hear the matter.
[37] Furthermore, this notion that there would be very few defects that would have provided the basis for quashing a certificate or information after the enactment of the P.O.A. had been acknowledged by Hurley J. in R. v. Day, [1985] O.J. No. 1798 (QL) (Ont. Dist. Ct.). At paras. 21, 34, and 35 of that judgment, Hurley J. noted that in their textbook, "Ontario Provincial Offences Procedure (1980)", the authors, Drinkwalter and Ewart, had commented that the presence of s. 36 had been a clear direction to the courts that defective informations were not to be quashed except in unusual circumstances, and that perhaps the only basis that remained for quashing an information is a failure to relate to an offence known to law, which is what the corporate defendant in the case at bar contends is the apparent defect on the face of the information:
In R. v. Sault Ste. Marie, in dealing with a duplicity argument, Dickson J., as he then was, said this at p. 38:
"The rule developed during a period of extreme formality and technicality in the preferring of indictments and laying of informations. It grew from the humane desire of judges to alleviate the severity of the law in an age when many crimes were still classified as felonies, for which the punishment was death by the gallows. The slightest defect made an indictment a nullity. That age has passed.
Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is no longer to bind us.
We must look for substance and not petty formalities."
The parallel sections of the Criminal Code and the Provincial Offences Act are compared in Drinkwalter and Ewart, Ontario Provincial Offences Procedure (1980), at p. 139, et seq., and at pp. 336-37. In the authors' view (at p. 143),
"The Act has mandated an entirely new philosophy on this subject, the application of which governs, and is crucial to the interpretation of these provisions....
This section constitutes a clear, unequivocal direction to the courts that defective informations are not to be quashed, except in unusual circumstances."
I extract two further quotations from that text, the first at p. 147 and the second at p. 149:
"It is therefore clear that even in criminal matters defects in language do not make informations void.
Perhaps the only basis now for quashing an information is a failure to relate to an offence known to law. If it relates to an offence, but simply misdescribes it or leaves out one or more essential elements or is duplicitous, an information is defective, but is not a nullity. It can and should be amended.
Generally speaking it would appear that only types of defects which might not fall within the ambit of s. 35 would be amendments to charge an entirely different offence...."
[38] Moreover, in R. v. DeSousa, Sopinka J., writing for the Supreme Court of Canada, noted at paras 14 to 16, that the main purpose behind the rule that required an objection for a defect apparent on the face of the indictment be brought before hearing any evidence in respect to the charge, had been to ensure that defects that are curable by amendment are attacked before pleading, since if the defect is not cured by a proposed amendment, then the defect may be considered to be waived by the plea entered by the accused. On the other hand, he also acknowledged that where the motion to quash challenges the validity of the law under which the accused is charged, then the requirement to bring this motion before pleading has no application, as such defect goes to the jurisdiction of the court to proceed with the charge and would not be subject to that temporal restriction. Instead, he confirmed that challenging the validity of the law could be brought at any time:
The respondent submits that the learned trial judge erred in ruling on the application by the appellant to declare that s. 269 of the Criminal Code was of no force or effect before hearing the evidence at trial. It is clear that as the liberty interest of the appellant is ultimately at risk in this appeal, the appellant has the right to question the constitutional validity of the provision under which he is charged. This is the case even though the unconstitutional effects may not be directed at the appellant per se (R. v. Morgentaler). The appellant submits that this Court has the power and the duty to review the elements of criminal offences and this is not disputed by the Crown. As the elements of the offence necessarily affect adjudication under it, an accused has standing to contest the elements of any provision under which he or she is charged. While it is incumbent on a court to consider such issues at some point in its deliberations, it is less clear in what circumstances this review must or should be done prior to hearing evidence.
The general rule with respect to attacking an indictment by reason of a defect in law is that a motion to quash the indictment for a defect apparent on the face thereof must be made before pleading. This rule is subsumed in the provisions of s. 601(1) of the Code, which requires the motion to be made before the plea, and thereafter only with leave of the court. The main purpose of the rule, and of s. 601(1) to the extent that it embodies the rule, is to ensure that defects curable by amendment are attacked before pleading, since if not cured by amendment they may be waived by a plea. (See R. v. Côté; R. v. Villeneuve (1984), 1984 ABCA 232; R. v. Cook (1985); R. v. R.I.C. (1986); R. v. Peremiczky (Zoly) (1973); and R. v. Denton (1990).)
The temporal requirement of moving before pleading has no application, however, to a motion to quash which questions the validity of the law under which the accused is charged. I expressly refrain from addressing the effect of a plea of guilty. (See R. v. Tennen, aff'd , and R. v. Sarson (1992), 73 C.C.C. (3d) 1 (Ont. Gen. Div.).) Such a defect goes to the jurisdiction of the court to proceed with the charge and is not subject to the temporal restriction in s. 601(1). Such an application may be brought at any time. Indeed, where the trial court is a court of inferior jurisdiction, a motion may be brought before trial to prohibit the trial court from proceeding. See Canadian Broadcasting Corp. v. Attorney-General for Ontario, rev'g , which aff'd . There is no question, therefore, that the trial judge has jurisdiction to hear and dispose of a motion to quash the indictment on the grounds of constitutional invalidity. Whether he or she is bound to do so or whether as a matter of practice should do so is more problematic.
[39] As well, in R. v. Martin, the Court of Appeal for Ontario, at paras. 10 and 11, had been concerned with the propriety of the lower court judge dealing with a challenge to the constitutionality of a particular section of the governing legislation, on a pre-trial motion, before any plea had been entered or any evidence adduced. They concluded that for such cases, the trial judge should not have entertained or disposed of an application to enforce a remedy under the Charter at this early stage, except in those cases where it is abundantly clear that a constitutional right has been infringed or threatened. Moreover, the Court of Appeal emphasized that it would have been preferable for the trial judge to have declined to enter into the constitutional issue at the pre-trial motion stage and to leave such issue to be raised by the accused by way of defence at the conclusion of the evidence at trial:
Before leaving this matter, I feel compelled to address the propriety of the procedure followed in this case. This case comes before this court for a second time: see R. v. Martin (1991), affirmed (1992). The first occasion was also on a constitutional issue raised before the taking of a plea. The argument that the trial judge then gave effect to was that s. 13 of the Act created an offence of absolute liability and, since imprisonment was available as a possible punishment, violated s. 7 of the Charter. At the end of his reasons disposing of the first appeal, Griffiths J.A. stated at p. 85:
Although I have dealt with this appeal on the merits, there is one further matter on which I wish to comment. At the opening of this appeal, all members of the court expressed their concern about the propriety of the lower court judge dealing with a challenge to the constitutionality of s. 13 of the Act, on a pre-motion hearing, before any plea had been entered or any evidence adduced. In my view, the court should not, at this early stage, entertain or dispose of an application to enforce a remedy under the Charter, except in those cases where it is abundantly clear that a constitutional right has been infringed or threatened. In my opinion, this case does not fall into that category and it would have been preferable for the trial judge to decline to enter into the constitutional issue at the stage of a pre-trial motion and to leave such issue to be raised by the appellant by way of defence at the conclusion of the evidence at trial. It is, of course, quite possible that the appellant might have succeeded on some other line of defence at trial, rendering the Charter challenge entirely moot.
Whenever possible, the trial process should not be fragmented with appeals being launched at the conclusion of each stage. In my opinion, when an appeal is taken to this court, the trial record should be complete so that all grounds of appeal and not only those relating to Charter challenges may be completely and finally dealt with in one hearing.
We were advised by counsel on this appeal that neither trial counsel brought this case, and particularly the above quoted portion of the reasons of Griffiths J.A., to the attention of the trial judge. This is inexplicable. There was no reason for refusing to hear the evidence before dealing with the merit of the constitutional argument. We do not even have any assurance that this is the last preliminary objection to be taken to these charges. In the result, another trial date has been wasted and the charges will have to be listed for hearing for yet a third time.
[40] And, more recently, the Court of Appeal for Ontario in R. v. Levkovic, 2010 ONCA 830, at paras. 33 to 35 and 38 and 43, confirmed the general rule that a trial judge is entitled to reserve judgment until the end of the case on any application made at the outset of trial proceedings. In particular, the Court of Appeal indicated that the trial judge may decline to rule on the application until all the evidence has been heard, and confirmed that the decision on whether to rule on the application at the outset, or to await the introduction and conclusion of the evidence, rests within the discretion of the trial judge. The Court also referred to R. v. DeSousa, and noted that the exercise of this discretion is informed by two policy considerations: the policy that discourages adjudication of constitutional challenges without a factual foundation and the policy that enjoins fragmentation of criminal proceedings by interlocutory proceedings that take on a life of their own. As such, the Court of Appeal confirmed that both these policies favoured disposition of the application being made at the end of the evidence in the case. Moreover, it was also pointed out that a trial judge should not depart from these policies in the absence of a strong reason for doing so. However, the Court also recognized that this general rule is not inflexible or intolerant of an exception in individual cases, so that the determination of whether the application would be immediately decided or determined at the end of hearing the evidence would depend, to some extent, on the nature of the challenge advanced, the interest at stake, and the likelihood or improbability that the evidence to be adduced at trial would assist in the resolution of the issue. Furthermore, the Court of Appeal also suggested that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge. However, the Court noted that the constitutional challenge in that particular case had been directed principally at the language of the offence-creating provisions, which would infer that a factual foundation was not necessarily required before deciding on the application:
It is well-settled that, as a general rule, a trial judge is entitled to reserve judgment on any application made at the outset of trial proceedings until the end of the case. In other words, the judge may decline to rule on the application until all the evidence has been heard: DeSousa at p. 954. The decision whether to rule on the application at the outset, or to await the introduction and conclusion of the evidence, rests within the discretion of the trial judge: DeSousa at p. 954.
The exercise of this discretion is informed by two policy considerations: the policy that discourages adjudication of constitutional challenges without a factual foundation and the policy that enjoins fragmentation of criminal proceedings by interlocutory proceedings that take on a life of their own: DeSousa at p. 954. Both of these policies favour disposition of the application at the end of the evidence in the case: DeSousa at p. 954. A trial judge should not depart from these policies in the absence of a strong reason for doing so: DeSousa at p. 954.
Sometimes it will be more economical to decide constitutional questions before proceeding to trial on the evidence relied upon in support of the allegations. Within this exception to the general rule may be an apparently meritorious Charter challenge of the law under which an accused is charged that does not depend on facts to be elicited during the trial: DeSousa at p. 955; Mills at para. 37.
The appellant advanced a tepid submission that the trial judge erred in embarking on the constitutional challenge to s. 243 without a satisfactory evidentiary foundation for the claim.
I would not give effect to this submission for several reasons.
First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that the general rule is not inflexible or intolerant of exception in individual cases: DeSousa at p. 954; Mills at para. 38. To some extent, the nature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial would assist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined: DeSousa at p. 955; Mills at para. 41.
Second, counsel at trial agreed on the procedure followed. To be more specific, the prosecutor did not ask the trial judge to reserve his decision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the respondent at trial suggest that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge.
Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated was the prospect of imprisonment on conviction. The flaw alleged was that the prohibition was overbroad and void for vagueness, not as it applied to the respondent, but in its general operation.
Finally, as it turned out, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been established may not have advanced the inquiry into constitutionality significantly at all events.
(1) Quashing informations for apparent defects on its face under the Provincial Offences Act, R.S.O. 1990, c. P.33
[41] According to s. 36(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (" P.O.A. "), which is the statute that governs regulatory proceedings in Ontario, a certificate or information may only be quashed if there is a defect apparent on its face where an amendment or order for particulars would fail to satisfy the ends of justice. In addition, the procedure set out in s. 36(1) requires that an objection to an information for a defect apparent on its face shall be taken by a motion to quash the information before the defendant has pleaded, and thereafter only by leave of the Court:
36(1) An objection to an information or a certificate for a defect apparent on its face shall be taken by a motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.
(2) The court shall not quash an information or a certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice.
[42] Ergo, for the purposes of s. 36(1), would an unconstitutionally imprecise law be an "apparent" defect on the face of the information?
[43] In R. v. 152207 Canada Inc., [2001] O.J. No. 1101 (QL) (S.C.O.), MacDougall J., at para. 39, held that s. 36(1) of the P.O.A. limits the trial justice to quashing an information for only irremediable defects "apparent" on the face of the information and not from an error in process that had resulted from inquiry into the circumstances surrounding the reception of informations by the issuing justice:
There were no defects apparent on the face of the Informations before the hearing justice. Section 36(1) of the POA limits the power of a Justice at trial to quash an Information to defects apparent on the face of the Information. As confirmed in Whitmore, supra, the hearing justice was without jurisdiction to conduct an inquiry into the circumstances surrounding the reception of Informations by the issuing justice.
[44] Furthermore, in R. v. Maitland Capital Ltd., [2008] O.J. No. 4356 (QL) (O.C.J.), at paras. 9 to 12, Sparrow J. held that s. 36(1) limits the trial justice to quash an information for only irremediable defects or errors "apparent" on the face of the information and not for errors that are not on the face of the information:
I agree with the prosecutor that the information can only be quashed by this Court for a defect apparent on its face. This issue was addressed squarely by Ewaschuk J. in Regina v. Whitmore, who states:
"It is undoubted that a provincial court judge conducting a preliminary inquiry or a trial on an information has jurisdiction to do so provided the information is valid on its face."
"The only way an information laid before a justice may be later attacked for a defect not apparent on the face of the information is by motion to the issuing justice or by extraordinary remedy."
In other passages, Ewaschuk J. states that the Justice of the Peace's function is ministerial in swearing the information, and that Regina v. Allen, (1974), supports his conclusion that if the Justice has erred in issuing process, the reviewing Superior Court is entitled to quash only the Justice's process, and not the information.
I also note that in Regina v. 152207 Canada Inc., [2001] O.J. No. 1101, McDougall J. of the Ontario Superior Court ordered a Justice of the Peace to continue a trial after she quashed the information due to evidence that the informant had made an incorrect statement to the Justice of the Peace issuing process. McDougall J. ruled that she had no jurisdiction to quash as the error was not on the face of the information.
In my view, given the decisions in Whitmore, 152207 Canada Inc. and the plain wording of s. 36, this Court would only have jurisdiction to quash the information if there was a defect apparent on its face. No such defect has been demonstrated. The information clearly enumerates offenses under the Ontario Securities Act. it is properly before this Court and therefore provides, rather than deprives, the Court of jurisdiction.
[45] Additionally, in their tome entitled, Ontario Provincial Offences Procedure (1980) textbook, at pp. 143 and 144, authors W. D. Drinkwalter and J. D. Ewart, who were both on the committee involved in designing and reforming the procedure for provincial offences in Ontario and the creation of the first Provincial Offences Act, commented on the role of the amendment and particulars provisions in that statute in respect to its application to s. 37 (which is presently s. 36) that refers to quashing an information for an defect on its face, and reasoned that defective informations are not to be quashed except in unusual circumstances, and that the broad curative powers dealing with amendments and particulars set out in the Provincial Offences Act should be used instead of quashing the information:
… The Act has mandated an entirely new philosophy on this subject, the application of which governs, and is crucial to the interpretation of these provisions.
This section constitutes a clear, unequivocal direction to the courts that defective informations are not to be quashed, except in unusal circumstances. Instead, the broad curative powers set out in ss. 34 to 36 [now ss. 34 and 35] are to be used.
… But of greater significance is the Act's clear statutory enunciation of a dramatic departure from the previous prevailing rules. Such a deliberate, marked legislative change requires an interpretation by the courts which is consistent with both its letter and underlying spirit.
If this spirit is put into practice by the courts, then there will be very few, if any, informations quashed. The rule in s. 37(2) [now s. 36(2)] applies to all defects, substantive as well as technical. While the power to quash is left open in limited circumstances, it is expressly restricted to cases in which the application of ss. 34b to 36 [now ss. 34 and 35] would fail to satisfy the ends of justice. When it is considered that those sections permit amendments, for example, to cure a failure to state "anything that is requisite to charge the offence", or "is in any defective in substance", then the breadth of the Legislature's intention becomes apparent. ….
…. The intention is to ensure a trial on its merits in lieu of an acquittal based on a technicality. … there is a clear recognition that the administration of justice suffers serious harm if technicalities prevail over substantive justice.
[46] Furthermore, in the Ontario Provincial Offences Procedure (1980) textbook, at p. 147, the authors concluded that even in criminal matters, defects in language do not make informations void, and that perhaps the only basis now for quashing an information is a failure to relate to an offence known to law, which is indeed what the corporate defendant is contending in the case at bar that the impugned information is facially defective as it does not relate to an offence known to law, since s. 5(6) is impermissibly vague:
"It is therefore clear that even in criminal matters defects in language do not make informations void. Perhaps the only basis now for quashing an information is a failure to relate to an offence known to law. If it relates to an offence, but simply misdescribes it or leaves out one or more essential elements or is duplicitous, an information is defective, but is not a nullity. It can and should be amended.
[47] However, the P.O.A., as the procedural statute that governs the prosecution of regulatory offences in Ontario, had been enacted before the advent of the Charter of Rights and Freedoms. Thus, the P.O.A., especially s. 36, should now also be interpreted in conjunction with the Charter.
[48] In conclusion, because laws are presumed to be enacted so as not to infringe the Charter or to be unconstitutional, and that there generally be established a factual or evidentiary context before deciding constitutional questions, then challenging a particular law as being unconstitutionally vague should normally not be decided within a motion to quash under s. 36 without factual context. Rather it should be raised as a defence at the end of the evidence. Most importantly, permitting constitutional challenges for impermissible vagueness to be determined before evidence is heard would cause regulatory trial courts to be overwhelmed with cases in which they would have to first decide whether a law is of sufficient precision for legal debate before a charge would be allowed to proceed to trial. This would then invariably cause delay in the prompt adjudication of the merits of the case.
[49] Therefore, deciding whether a regulatory law is impermissibly vague, should generally be considered after the evidence is heard in a regulatory prosecution, and only in rare and exceptional cases should the vagueness question be considered in a motion to quash the information before any evidence is heard.
(B) For The Present Circumstances, Is A Factual Foundation Necessary To Decide The Constitutional Question Pertaining To Whether S. 5(6) Is Unconstitutionally Vague?
[50] Although a factual foundation is generally required before deciding constitutional questions, the prosecution did not object to or contest the corporate defendant using the quashing provision set out in s. 36(1) of the P.O.A., as the proper mechanism to argue the unconstitutionality of s. 5(6), despite the lack of an evidentiary record. Rather, the prosecution agreed and supported the corporate defendant's use of this pre-trial procedure to deal with the constitutional question of vagueness before any evidence had been heard. As such, there is a limited evidentiary record in respect to the corporate defendant's actual charges.
[51] Furthermore, in respect to whether the present motion to quash the information based on vagueness should be decided without a factual foundation, the Supreme Court in R. v. DeSousa, at paras. 17 and 18, held that a trial judge is empowered to reserve on any application until the end of the case, and is also not obliged to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard. In addition, the Supreme Court held that the decision whether to rule on the application or reserve until the end of the case is a discretionary one that should be exercised in regard to two policy considerations. The first consideration is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. And the second policy consideration, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. Furthermore, the Supreme Court held that both these policies favour disposition of applications at the end of the case, and in exercising this discretion, the trial judge should not depart from these policies, unless there is a strong reason for so doing, which would include an apparently meritorious Charter challenge of the law under which the accused is charged that would not be dependent on facts:
With rare exceptions that do not apply here a trial judge is empowered to reserve on any application until the end of the case. He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised having regard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters. See Mills v. The Queen. The second, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. See, for instance, Moysa v. Alberta (Labour Relations Board), and Danson v. Ontario (Attorney General). Both these policies favour disposition of applications at the end of the case. In exercising the discretion to which I have referred the trial judge should not depart from these policies unless there is a strong reason for so doing. In some cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include cases in which the trial court itself is implicated in a constitutional violation as in R. v. Rahey, or where substantial on-going constitutional violations require immediate attention as in R. v. Gamble. Moreover, in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule. (See Manitoba (Attorney General) v. Metropolitan Stores Ltd., at p. 133.) This applies with added force when the trial is expected to be of considerable duration. See, for example, R. v. Nova Scotia Pharmaceutical Society.
In this case no objection was taken at trial to the procedure adopted by the trial judge. The Charter challenge was not without merit notwithstanding its fate in this Court. I am satisfied that the evidence at trial would not have assisted in the resolution of the constitutional question given the nature of the appellant's submissions. The Court of Appeal stated that it was "purely speculative at this stage whether the facts at trial will establish a mental element compatible with criminal and constitutional requirements of blameworthiness for a finding of guilt under this section" (p. 96). The fact that the appellant's conduct would attract criminal responsibility because the mental element conforms to constitutional requirements would not resolve the issue if the section in its other applications criminalized conduct that did not meet constitutional standards. We have not adopted the "constitutional as applied" approach that is prevalent in the United States. See R. v. Smith, at p. 1078, per Lamer J. (as he then was), and p. 1113, per Le Dain J. Accordingly, I conclude that the trial judge did not err in disposing of the appellant's motion before hearing evidence.
[52] Furthermore, in R. v. Mills, McLachlin and Iacobucci JJ., at para. 38, acknowledged the importance of having a factual basis in Charter cases, which are composed of legislative and adjudicative facts:
This Court has often stressed the importance of a factual basis in Charter cases. See, for example, MacKay v. Manitoba, at p. 361; R. v. Edwards Books and Art Ltd., at pp. 762 and 767-68, per Dickson C.J.; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), at p. 83; Danson v. Ontario (Attorney General), at p. 1099; Baron v. Canada, at p. 452; DeSousa, supra, at p. 954; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), at para. 15. These facts have been broken into two categories: legislative and adjudicative. In Danson, supra, at p. 1099, Sopinka J., for the Court, outlined these categories as follows:
These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis' words, "who did what, where, when, how, and with what motive or intent...." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, per McIntyre J., at p. 318.
[53] Even recently, the Supreme Court of Canada in R. v. Levkovic, 2013 SCC 25, at para. 18, had considered and identified the concern that there had been no factual context or foundation before the trial justice, who had ruled on the constitutionality of the legislation for vagueness, as well as noting that the facts alleged by the Crown had still remained unproven to this day:
By agreement, the appellant's constitutional challenge to s. 243 was heard and decided by the trial judge before any evidence was called. Accordingly, the facts alleged by the Crown remain to this day unproven and are thus conditionally relevant here as a matter of context only.
[54] Moreover, in considering the argument that the trial judge had been in error in not requiring a factual foundation, the Court of Appeal for Ontario in R. v. Levkovic, 2010 ONCA 830, at paras. 27 to 35 and 38 to 43, had summarized the law on the extent of the requirement for a factual foundation in order to determine the constitutionality of legislation, and held that the authorities which had insisted upon an adequate factual foundation to ground a constitutional challenge, had also recognized equally that the general rule is not inflexible or intolerant of exception in individual cases: DeSousa at p. 954; Mills at para. 38. In deciding that a factual foundation was not specifically required in R. v. Levkovic before deciding on the constitutional question of vagueness, the Court of Appeal had held that the grounds for not requiring a factual foundation included, that counsel at trial agreed on the procedure that had been followed; that the prosecutor did not ask the trial judge to reserve his decision on the constitutional challenge until the conclusion of the evidence adduced at trial, nor did defence counsel at trial suggest that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge; that the constitutional challenge had been directed principally at the language of the offence-creating provisions as being overbroad and void for vagueness; and that what could have been established evidentially may not have advanced the inquiry into the constitutional question:
The preliminary issues raised in this case invite recall of the principles governing the extent of factual foundation required to determine the constitutionality of legislation and those that define the limits of judicial notice.
The Need For An Adequate Factual Foundation
It is difficult to understate the importance of a factual basis in constitutional challenges: R. v. Mills, at para. 38; R. v. DeSousa, at p. 954. Two kinds of facts are involved:
- legislative facts
- adjudicative facts
Danson v. Ontario (Attorney General), at p. 1099.
Adjudicative facts concern the immediate parties to the prosecution. They respond to the query "Who did what to whom, where, when, how and with what intent or motive?": Danson at p. 1099. Adjudicative facts are specific to the case being prosecuted, thus must be established by evidence that is relevant, material and admissible: Danson at p. 1099; Mills at para. 38.
Legislative facts help to establish the purpose and background of legislation, including the social, economic and cultural context in which the legislation was enacted. Of necessity, these facts are of a more general nature. The admissibility requirements for legislative facts are less rigorous than those that govern adjudicative facts: Danson at p. 1099; Mills at para. 38.
Social facts are cousins of legislative facts. Each is relevant to the reasoning process and may involve policy considerations: R. v. Spence, 2005 SCC 71, at para. 58. Evidence of social facts is social science research engaged to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case: Spence at para. 57.
In this case, the respondent brought her constitutional challenge immediately after arraignment and plea. The hearing followed over three days. The trial judge reserved his decision on the challenge. No evidence was adduced in support of the allegations contained in the indictment. Four and one-half months later, the trial judge released his reasons in response to the constitutional challenge. The prosecutor gave a brief summary of the nature of his case, offered no evidence in support of it, and invited the trial judge to acquit the respondent. The trial judge did so.
It is well-settled that, as a general rule, a trial judge is entitled to reserve judgment on any application made at the outset of trial proceedings until the end of the case. In other words, the judge may decline to rule on the application until all the evidence has been heard: DeSousa at p. 954. The decision whether to rule on the application at the outset, or to await the introduction and conclusion of the evidence, rests within the discretion of the trial judge: DeSousa at p. 954.
The exercise of this discretion is informed by two policy considerations: the policy that discourages adjudication of constitutional challenges without a factual foundation and the policy that enjoins fragmentation of criminal proceedings by interlocutory proceedings that take on a life of their own: DeSousa at p. 954. Both of these policies favour disposition of the application at the end of the evidence in the case: DeSousa at p. 954. A trial judge should not depart from these policies in the absence of a strong reason for doing so: DeSousa at p. 954.
Sometimes it will be more economical to decide constitutional questions before proceeding to trial on the evidence relied upon in support of the allegations. Within this exception to the general rule may be an apparently meritorious Charter challenge of the law under which an accused is charged that does not depend on facts to be elicited during the trial: DeSousa at p. 955; Mills at para. 37.
The Principles Applied
The appellant advanced a tepid submission that the trial judge erred in embarking on the constitutional challenge to s. 243 without a satisfactory evidentiary foundation for the claim.
I would not give effect to this submission for several reasons.
First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that the general rule is not inflexible or intolerant of exception in individual cases: DeSousa at p. 954; Mills at para. 38. To some extent, the nature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial would assist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined: DeSousa at p. 955; Mills at para. 41.
Second, counsel at trial agreed on the procedure followed. To be more specific, the prosecutor did not ask the trial judge to reserve his decision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the respondent at trial suggest that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge.
Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated was the prospect of imprisonment on conviction. The flaw alleged was that the prohibition was overbroad and void for vagueness, not as it applied to the respondent, but in its general operation.
Finally, as it turned out, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been established may not have advanced the inquiry into constitutionality significantly at all events.
[55] Therefore, although the Supreme Court of Canada has clearly emphasized and stated that an evidentiary and factual context is generally required before a constitutional question can be resolved, there are exceptional cases in which the constitutional challenge can be determined without necessarily having the trial completed to establish a factual foundation when, as in the case at bar, there may be an apparently meritorious Charter challenge of the law under which the accused is charged, which is not dependent on facts to be elicited during the trial; when counsel at trial have agreed to have the constitutional question dealt with before the trial is completed; when the constitutional challenge had been directed principally at the language of the offence-creating provisions, such as a claim that the legislation is overbroad and void for vagueness; and that what could have been established at trial may not have advanced the inquiry into the constitutional question.
[56] However, ruling on the application to quash the information for a constitutional challenge being made before the trial, or at the end of the trial after a factual foundation has been established, is still at the trial justice's discretion. In the present case, ruling on the motion to quash the information base on the constitutional challenge that s. 5(6) is constitutionally vague can be determined exceptionally at the outset of the trial, since the present determination only requires a determination of whether s. 5(6) is sufficiently precise to allow for legal and intelligible debate, which does not necessarily require an actual interpretation of the meaning of s. 5(6) to be made, nor the hearing of evidence of the actual charge.
(1) Is the corporate defendant contending that the information contains no known offence to law as the basis for quashing the information or is the corporate defendant contending that the information fails to provide sufficient details of the two charges that the corporate defendant is facing in order to properly put up a defence?
[57] The corporate defendant contends that the information is uncertain and does not contain sufficient notice of the prohibited conduct to be able to defend against the two charges. If it is the sufficiency of the two charges at issue then particulars could be ordered so the defendant could defend against the charges. In other words, if the corporate defendant's concern is with the two charges being misdescribed, defective in language, or that an essential element of the charge is left out, or is duplicitous, the information is not void since amendments and particulars could be made to remedy the defects in the actual charges. Vagueness, on the other hand, is in respect to the actual wording or language contained in s. 5(6), the bylaw under which the two charges have been laid.
[58] In their argument at para. 30 of the defence factum, the corporate defendant submits that the mere generic words "any entertainer" to perform "any service" must be identified in the charge to the corporate defendant in order that it may have certainty as to the offence that they must defend For this particular argument, the issue is not the vagueness of s. 5(6) that is being contended, but rather, it concerns the sufficiency of notifying the corporate defendant of the circumstances of the actual charges in the information that have been laid against the corporate defendant, which can be remedied by particulars being provided to the corporate defendant, if such circumstances have not already been disclosed to the corporate defendant in the prosecution's disclosure of the evidence that the prosecution will rely on, so that the corporate defendant can defend against the charge and make full answer and defence.
(C) What Is The Test For Determining Whether A Particular Law Is Unconstitutionally Vague?
[59] The Supreme Court has indicated in R. v. Nova Scotia Pharmaceutical Society, at para. 42, that the bar is set relatively high for finding that a particular law is unconstitutionally vague:
As was said by this Court in Osborne and Butler, the threshold for finding a law vague is relatively high. So far discussion of the content of the notion has evolved around intelligibility.
(1) presumption of constitutionality
[60] In addition, in Delisle v. Canada (Deputy Attorney General), Cory and Iacobucci JJ., at para. 76, held that a Charter claimant has the onus on a balance of probabilities to establish that the impugned legislation infringes a Charter right or freedom, and if alleging the legislation has an improper purpose, to also establish that invalid purpose. Moreover, they concluded that the evidence to establish that improper purpose must be able to rebut the presumption of constitutionality that the legislation enacted by Parliament or a legislature does not violate the constitution:
A Charter claimant who seeks to establish that impugned legislation infringes a Charter right or freedom by virtue of its purpose bears the onus of establishing the alleged invalid purpose on a balance of probabilities. The ordinary rules of evidence applicable in civil trials apply. Accordingly, it cannot be assumed that the purpose of a law is invalid solely because an invalid purpose is a plausible purpose of the law. There must be clear evidence that an invalid purpose is probable. In addition, the evidence must rebut the presumption of constitutionality. That is, if there are two equally probable purposes for the impugned legislation, and one of these purposes is valid and is not inextricably linked to the invalid purpose, then the valid purpose is presumed to apply: Slaight Communications, supra, at p. 1078, per Lamer J. (as he then was); Canada (Attorney General) v. Mossop, at pp. 581-82, per Lamer C.J. However, where the Charter claimant is able to adduce a preponderance of evidence of the invalid purpose, the presumption of constitutionality is rebutted and the court is required to find an infringement of the Charter.
(2) What gives the corporate defendant standing to challenge the constitutionality of the City of Mississauga bylaw contained in s. 5(6)?
[61] At para. 28, in R. v. Nova Scotia Pharmaceutical Society, the Supreme Court held that unconstitutional vagueness can be raised in three contexts under the Charter. First, they indicated that vagueness can raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. They also held that it can be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Thirdly, they reasoned that vagueness is also relevant to the "minimal impairment" stage of the Oakes test. On the other hand, the Supreme Court also recognized that in applying the vagueness doctrine, that drafting legislation to achieve absolute certainty is an impossibility; that there is the need for flexibility and the interpretative role of the courts in determining the meaning of particular legislation when necessary; that using a standard of intelligibility in respect to whether legislation is impermissibly vague is more appropriate; and that there exists the possibility that there are many varying judicial interpretations of a given disposition that could co-exist:
The foregoing may be summarized by way of the following propositions:
Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Furthermore, vagueness is also relevant to the "minimal impairment" stage of the Oakes test (Morgentaler, Irwin Toy and the Prostitution Reference).
The "doctrine of vagueness" is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement [page627] discretion (Prostitution Reference and Committee for the Commonwealth of Canada).
Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist (Morgentaler, Irwin Toy, Prostitution Reference, Taylor and Osborne).
Vagueness, when raised under s. 7 or under s. 1 in limine, involves similar considerations (Prostitution Reference, Committee for the Commonwealth of Canada). On the other hand, vagueness as it relates to the "minimal impairment" branch of s. 1 merges with the related concept of overbreadth (Committee for the Commonwealth of Canada and Osborne).
The Court will be reluctant to find a disposition so vague as not to qualify as "law" under s. 1 in limine, and will rather consider the scope of the disposition under the "minimal impairment" test (Taylor and Osborne).
[62] And, even though the Supreme Court has held that s. 7 of the Charter does not apply to corporations, it nevertheless has recognized that corporations, like natural persons, can rely on s. 52 of the Constitution Act, 1982 to defend against a regulatory or criminal charge, by arguing that the law under which the charge is brought is constitutionally invalid, and therefore, of no force or effect. In other words, as confirmed in Ontario v. Canadian Pacific, at para. 7, the Supreme Court has indicated on many occasions that a corporate accused is entitled to challenge the constitutionality of the law under which it was charged, notwithstanding the fact that the constitutional challenge was based on s. 7, which does not grant rights to corporations:
This Court, however, has adopted a different approach to the question of standing in Canada, in recognition of the Canadian constitution's distinct structure -- in particular, the existence of s. 52 of the Constitution Act, 1982, which declares that laws that are inconsistent with the provisions of the Constitution are "to the extent of the inconsistency, of no force or effect". As Dickson J. observed in R. v. Big M Drug Mart Ltd., at pp. 313-14:
Section 52 [of the Constitution Act, 1982] sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent [Big M] did not come to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional. If it had been engaged in such "public interest litigation" it would have had to fulfill the status requirements laid down by this Court in the trilogy of "standing" cases ... but that was not the reason for its appearance in Court.
Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.
This principle has been reconfirmed by this Court on many subsequent occasions. For instance, in R. v. Morgentaler, Dr. Morgentaler was allowed to argue that the law under which he was charged violated s. 7 as a consequence of its impact on some women, and his acquittal was restored. Similarly, in R. v. Wholesale Travel Group Inc., the Court confirmed that a corporation was entitled to challenge the constitutionality of the law under which it was charged, notwithstanding the fact that the constitutional challenge was based on s. 7, which does not grant rights to corporations (see Irwin Toy Ltd. v. Quebec (Attorney General)). In my view, this principle applies equally to s. 7 vagueness challenges. That is, a person charged with an offence need not demonstrate that the law at issue directly infringes his or her constitutional rights in order to obtain standing to raise a constitutional challenge. That is not to say, however, that the fact that an accused's conduct clearly falls within the ambit of the law is irrelevant to the question of whether the law is unconstitutionally vague -- rather, the fact that there is some identifiable "core" of activity prohibited by the law will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate. Furthermore, the fact that an accused has standing to challenge a law does not inevitably mean that he or she will benefit from a finding that the law is unconstitutional, since there is always the possibility that a court might be able to sever or read down the offending provision so as to maintain its applicability to the accused's particular case (whether this is possible will, of course, depend on how the principles I set out in Schachter v. Canada, at pp. 705ff, apply to the particular piece of legislation at issue). Depending on the circumstances, the fact that the impugned law is directed at an identifiable "core" of conduct may be a factor to consider in deciding whether either of these remedial alternatives are appropriate. Of course, if it proves necessary to strike the offending law down in its entirety, this invalidation will apply to the prosecution of the accused's case: see Wholesale Travel, supra, at pp. 179ff.
[63] As such, the corporate defendant has standing to challenge the constitutionality of the s. 5(6) bylaw, as being invalid for impermissible vagueness, by reason of s. 52 of the Constitutional Act, 1982.
(3) The Vagueness Doctrine
[64] In R. v. Nova Scotia Pharmaceutical Society, at paras. 39 to 41, Gonthier J. writing for the Supreme Court, noted that the "doctrine of vagueness" is a single concept, whether invoked as a principle of fundamental justice under s. 7 of the Charter or as part of s. 1 of the Charter in limine. In addition, he explained that vagueness may be raised under the substantive sections of the Charter whenever these sections comprise some internal limitation, which would rank it among the principles of fundamental justice. However, he then explained that where the constitutional challenge is not based on a limitation of a Charter right or freedom, then the proper place for raising the vagueness argument would be under s. 1 in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law":
Under the Charter, however, given the statements of Lamer J. in the Prostitution Reference, at p. 1155, I would consider that the "doctrine of vagueness" is a single concept, whether invoked as a principle of fundamental justice under s. 7 of the Charter or as part of s. 1 of the Charter in limine. Indeed from a practical point of view this makes little difference in the analysis, since a consideration of s. 1 in limine would follow immediately the determination of whether s. 7 has been violated. No intermediate step is lost. From a theoretical perspective, the justifications invoked for the doctrine of vagueness under both s. 7 and s. 1 are similar. A reading of the aforementioned cases shows that the rationales of fair notice to the citizen and limitation of enforcement discretion are put forward in every discussion of vagueness, irrespective of where it occurs in the Charter analysis. I see no ground for distinguishing them.
Vagueness may be raised under the substantive sections of the Charter whenever these sections comprise some internal limitation. For example, under s. 7, it may be that the limitation on life, liberty and security of the person would not otherwise be objectionable, but for the vagueness of the impugned law. The doctrine of vagueness would then rank among the principles of fundamental justice. Outside of these cases, the proper place of a vagueness argument is under s. 1 in limine.
I would therefore conclude that:
What is referred to as "overbreadth", whether it stems from the vagueness of a law or from another source, remains no more than an analytical tool to establish a violation of a Charter right. Overbreadth has no independent existence. References to a "doctrine of overbreadth" are superfluous.
The "doctrine of vagueness", the content of which will be developed shortly, is a principle of fundamental justice under s. 7 and it is also part of s. 1 in limine ("prescribed by law").
[65] And, more recently, in deciding whether a particular statutory provision set out in the Criminal Code had been impermissibly vague, the Supreme Court of Canada in R. v. Levkovic, 2013 SCC 25, at paras. 39 and 40, specifically noted that where no Charter violation had been established, then there would be no need to consider s. 1 of the Charter, and that additional precision-based arguments relating to the scope of the provision should be considered in an overbreadth analysis:
As this Court held in Nova Scotia Pharmaceutical, "once the minimal general standard has been met, any further arguments as to the precision of the enactments should be considered at the 'minimal impairment' stage of s. 1 analysis" (p. 643). Or, in this case, where no Charter violation has yet been established and there is therefore no need to consider s. 1, additional precision-based arguments relating to the scope of the provision should be considered in an overbreadth analysis.
Where a law meets the minimum standard of precision required by the Charter, it may nevertheless by "[g]enerality and imprecision of language ... fail to confine the invasion of a Charter right within reasonable limits. In this sense vagueness is an aspect of overbreadth": Osborne v. Canada (Treasury Board), at pp. 94-95.
[66] And, as stated earlier, the protection of life, liberty, and security of the person under s. 7 of the Charter is not available to corporations. Moreover, economic interests or property rights are not guaranteed or protected under s. 7: Irwin Toy Ltd. v. Quebec (Attorney General). However, despite the corporate defendant being unable to contend that its own s. 7 rights have been infringed by the impugned bylaw, the corporate defendant nevertheless may still defend against its two charges by invoking s. 52 of the Constitutional Act, 1982, by contending that it cannot be convicted of an unconstitutional law that is invalid because of impermissible vagueness.
(a) Whether hypothetical circumstances should be considered in determining whether an impugned law is impermissibly vague
[67] In its contention that s. 5(6) is unconstitutional, the corporate defendant has provided hypothetical circumstances to support its argument that particular words or phrases set out in s. 5(6) are impermissibly vague. However, in Ontario v. Canadian Pacific Ltd., at para. 5, Lamer C.J. specified that arguments based on hypothetical fact situations will generally have little or no bearing on the analysis that is required when assessing s. 7 vagueness claims. He also emphasized that in determining whether the words chosen by the legislature provide an adequate foundation upon which to anchor an interpretation of the law in question, so as to provide adequate notice of the prohibited conduct and to guard against "standardless sweeps", the test or analysis to be used is whether the impugned law is capable of being interpreted in this manner, which is a distinct process from actually interpreting the law. Furthermore, Lamer C.J. reasoned that when a court is analyzing whether a law is capable of being interpreted, then recourse to such hypotheticals will often be unnecessary, since all that is required is that it be established that the law provides sufficient guidance to direct the interpretive exercise. On the other hand, he commented that when a court is called upon to actually interpret the law, then a consideration of how the impugned law would apply to hypothetical fact situations will often be a useful analytical tool, since the court will usually be required to draw lines separating prohibited from non-prohibited conduct:
I agree with Gonthier J.'s conclusion that arguments based on hypothetical fact situations will generally have little or no bearing on the analysis that is required when assessing s. 7 vagueness claims. I wish to emphasize, however, that this results from the nature of the s. 7 vagueness analysis itself, as set out in Nova Scotia Pharmaceutical Society, supra, rather than as a consequence of any limitations on standing akin to those found in American case law. As Nova Scotia Pharmaceutical Society indicates, the task of a court conducting s. 7 vagueness analysis is to determine whether the law at issue provides "sufficient guidance for legal debate". Put another way, the court must determine whether the words chosen by the legislature provide an adequate foundation upon which to anchor an interpretation of the law that provides adequate notice of prohibited conduct and guards against "standardless sweeps". Determining whether a law can be interpreted in this manner is, however, a distinct process from actually interpreting the law. While a court that actually interprets a law also demonstrates in the process that the law is capable of interpretation, the converse is not true -- it is possible to establish that a law is capable of being interpreted while leaving for another day the actual problem of interpreting it. When called on actually to interpret a law, a court will usually be required to draw lines separating prohibited from non-prohibited conduct. In so doing, considering how the law would apply to hypothetical fact situations will often be a useful analytical tool. In contrast, when analyzing whether a law is capable of being interpreted, recourse to such hypotheticals will often be unnecessary, since all that is required is that it be established that the law provides sufficient guidance to direct the interpretive exercise.
(b) In determining whether s. 5(6) is impermissibly vague, does s. 5(6) have to be actually interpreted, or does it only have to be decided whether the language used in s. 5(6) is capable of being interpreted in order to provide sufficient guidance for legal debate?
[68] Lamer C.J., in Ontario v. Canadian Pacific Ltd., at para. 8, held that s. 7 vagueness analysis only requires courts to establish whether or not a given law is capable of being interpreted and does not demand that courts take the next step and actually provide an interpretation. Moreover, Lamer C.J. emphasized that once a law is determined to be capable of being interpreted, so as to provide sufficient guidance for legal debate, then an accused person can still argue that they did not commit the prohibited conduct, or that the law does not prohibit their conduct, or that it does not apply to their conduct. These types of arguments would then comprise this "legal debate" that is being comprehended or referred to, after the law is determined to be sufficiently certain and not invalid in law:
It should be noted that although s. 7 vagueness analysis itself requires courts only to establish whether or not a given law is capable of being interpreted, and does not demand that courts take the next step and actually provide an interpretation, vagueness claims will often be raised in conjunction with other arguments that do require courts actually to engage in the interpretive process. Once it has been established that a given law provides sufficient guidance for legal debate, many accused persons will attempt to argue that the law, when properly understood, does not prohibit their conduct. Alternatively, they may argue that while the law does apply to them on its face, the law itself is unconstitutionally overbroad (see R. v. Heywood) and thus violates s. 7. In order to resolve these claims, it will generally be necessary for a court actually to interpret the law and identify the boundary between prohibited and non-prohibited conduct. When conducting this analysis, it will often prove necessary to consider hypotheticals, even when this is not required at the s. 7 vagueness analysis stage.
[69] Moreover, at paras. 15 to 18, in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, the Supreme Court noted that it is the nature of our legal system that areas of uncertainty exist, and that judges clarify and augment the law on a case-by-case basis. Moreover, they recognized that judicial decisions may properly add precision to a statute, since legislators in enacting legislation can never foresee all the situations that may arise. The Court also held that a law is unconstitutionally vague if it does not provide an adequate basis for intelligible or legal debate and analysis, or it does not sufficiently delineate any area of risk, or that the judiciary cannot grasp a meaning for that impugned law:
The Standard for "Vagueness"
A law is unconstitutionally vague if it "does not provide an adequate basis for legal debate" and "analysis"; "does not sufficiently delineate any area of risk"; or "is not intelligible". The law must offer a "grasp to the judiciary": R. v. Nova Scotia Pharmaceutical Society, at pp. 639-40. Certainty is not required. As Gonthier J. pointed out in Nova Scotia Pharmaceutical, supra, at pp. 638-39,
conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances. [Emphasis added.]
A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it. The two are interconnected. A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application": Grayned v. City of Rockford, 408 U.S. 104 (1972), at p. 109.
Ad hoc discretionary decision making must be distinguished from appropriate judicial interpretation. Judicial decisions may properly add precision to a statute. Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out. It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.
It follows that s. 43 of the Criminal Code will satisfy the constitutional requirement for precision if it delineates a risk zone for criminal sanction. This achieves the essential task of providing general guidance for citizens and law enforcement officers.
[70] As well, at paras. 58 and 60 to 63, in R. v. Nova Scotia Pharmaceutical Society, Gonthier J., writing for the Supreme Court, concluded that an unintelligible provision that fails to provide a sufficient guidance or an adequate basis for legal debate would be unconstitutionally vague. Moreover, he indicated that a law would provide sufficient guidance for legal debate in respect to its application to a specific fact situation, if the court, by reasoned analysis that involves applying legal criteria, would be able to reach a conclusion as to the law's meaning:
This leads me to synthetize these remarks about vagueness. The substantive notice and limitation of enforcement discretion rationales point in the same direction: an unintelligible provision gives insufficient guidance for legal debate and is therefore unconstitutionally vague.
Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. In the meanwhile, conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances.
By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens.
Indeed no higher requirement as to certainty can be imposed on law in our modern State. Semantic arguments, based on a perception of language as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective …
A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary. This is an exacting standard, going beyond semantics. The term "legal debate" is used here not to express a new standard or one departing from that previously outlined by this Court. It is rather intended to reflect and encompass the same standard and criteria of fair notice and limitation of enforcement discretion viewed in the fuller context of an analysis of the quality and limits of human knowledge and understanding in the operation of the law.
[71] Accordingly, the vagueness analysis only requires determining whether s. 5(6) is capable of being interpreted, so as to provide adequate notice of the prohibited conduct and to limit enforcement discretion, and not the next step of actually interpreting the meaning of s. 5(6).
(c) Determining whether s. 5(6) in impermissibly vague does not involve simply looking at or interpreting a particular word or phrase in isolation.
[72] In its contention that s. 5(6) is impermissibly vague, the corporate defendant points out that certain words or phrases found in s. 5(6) are not defined in Bylaw 507-2005, such as the phrase "any service".
[73] However, under s. 1 of Bylaw 507-2005, the word, "Services" and the phrase "Services designed to appeal to erotic or sexual appetites or inclinations" is defined and means:
"Services" includes Body-rubs, performances, dances, exhibitions and viewings;
"Services designed to appeal to erotic or sexual appetites or inclinations" includes services of which a principal feature or characteristic is the nudity or partial nudity of any person, and services 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 advertisement:
[74] Furthermore, s. 30 of Bylaw 507-2005 provides the following interpretive tools, including that the Interpretation Act R.S.O. 1990, c.I.11, which has now been superseded by the Legislation Act, 2006, c. 21, Sched. F, applies to Bylaw 507-2005 as required, and that "words imparting the singular number shall include the plural":
30(1) The provisions of the Interpretation Act R.S.O. 1990, c.I.11, shall apply to this Bylaw as required.
(2) In this By-law, unless the context otherwise requires, words imparting the singular number shall include the plural, and words imparting the masculine gender shall include the feminine and further, the converse of the foregoing also applies where the context so requires.
[75] Thus, the phrase "any service" is defined in Bylaw 507-2005, by reference to and by necessary implication from the word "services" that is defined in s. 1 of Bylaw 507-2005.
[76] And, in respect to the other words or phrases contained in s. 5(6) that are not defined in Bylaw 507-2005, they are to be interpreted with the aid of the following interpretive tools and guidance from the Supreme Court of Canada for interpreting legislation that is found in a compendium of their decisions.
[77] Specifically, interpreting the impugned bylaw for a precise meaning does not simply require looking at the plain meaning of each individual word within s. 5(6) in isolation. As the Supreme Court held in Rizzo & Rizzo Shoes Ltd. (Re), at pp. 40-41, courts should use the modern principled approach instead of the plain meaning approach, when they are required to interpret or construe the meaning of a particular statutory provision, which requires that 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 the legislators who enacted the statutory provision:
Although much has been written about the interpretation of legislation (see, e.g. Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
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.
[78] Furthermore, s. 64(1) of the Legislation Act, 2006, c. 21, Sched. F, states that a fair, large, and liberal interpretation of Ontario statutes should be made to best ensure the attainment of the object of a statute:
Rule of liberal interpretation
64(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
[79] Moreover, the Supreme Court of Canada in R. v. Jarvis, 2002 SCC 73, at para. 77, reaffirmed that the proper approach in seeking the legislative intent of a statutory provision is by reading the words in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute:
The approach to statutory interpretation can be easily stated: one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and the object of the statute (Interpretation Act, R.S.C. 1985, c. I-21, s. 12; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Rizzo & Rizzo Shoes Ltd. (Re); R. v. Gladue; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
[80] Similarly, the "ejusdem generis" rule for determining the grammatical meaning of a phrase or clause provides that ambiguous phrases or clauses derive their meanings from the specific context in which they appear.
[81] Furthermore, in her textbook, Statutory Interpretation (Toronto, Ontario: Irwin Law Inc., 1997), at pp. 54, 134, and 137, Professor Ruth Sullivan emphasized that interpreters of legislative text must identify and take into account the purpose of legislation and by analyzing the words to be interpreted in context, and that modern legislation is also written in a form that lends itself to purposive analysis:
The meaning of a legislative text is determined by analysing the words to be interpreted in context. Words are analysed in their immediate context by focusing on the specific provision in which the words appear and attempting to understand the reasons why the legislature has chosen this combination of words, this structure, this punctuation, and so on. Words are also analysed in larger contexts by comparing the wording of the provision to be interpreted with the wording of provisions elsewhere in the same or other Acts and by considering the role of the provision in the scheme to which it belongs.
To achieve a sound interpretation of a legislative text, interpreters must identify and take into account the purpose of legislation. This includes the purpose of the provision to be interpreted as well as larger units - parts, divisions, and the Act as a whole. Once identified, the purpose is relied on to help establish the meaning of the text. It is used as a standard against which proposed interpretations are tested: an interpretation that promotes the purpose is preferred over one that does not, while interpretations that would tend to defeat the purpose are avoided.
Purposive analysis has become a staple of modern interpretation. It is used not only where the language of a text is found to be ambiguous but in every case and at every stage of interpretation. This reliance is justified by the interaction between language and purpose that is present in all communication, including legislation. The listener or reader infers the purpose from what is being said and at the same time understands what is being said in light of the purpose.
A strong emphasis on purpose is also justified by a number of legal considerations. First, a purposive approach has been mandated by the legislature. There is a provision in every Canadian Interpretation Act directing interpreters to give to every enactment "such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." Second, much modern legislation is written in a form that lends itself to purposive analysis. Modern provisions tend to be drafted in general terms and many confer broad powers or discretion on officials. For courts to discern the proper scope of such provisions, they must know their purpose. A third factor is the Canadian Charter of Rights and Freedoms, which came into force in 1982. In its earliest Charter decisions the Supreme Court of Canada emphasized the need for purposive analysis both to give definite meaning to the broad language and complex ideas found in the Charter and to test whether legislation found to violate its provisions might be justified under section 1. In working with the Charter, Canadian courts have become accustomed to the techniques of purposive analysis.
Most often the purpose of legislation is established simply by reading the words of the text. More precisely, the purpose is inferred by reading the text in the context of the interpreter's common sense as well as his or her individual knowledge, values, and beliefs. Interpreters rely on this contextual material, first, to surmise what effects are likely to result from the operation of the legislation and, second, to conclude which possible effects are desirable. The desirable effects are presumed to be the intended goals of the legislation.
[82] In addition, in R. v. Levkovic, 2013 SCC 25, at para. 78, Fish J. confirmed that a contextual and purposive analysis must be undertaken in determining whether the impugned law meets a minimum standard of precision under the Charter:
The foregoing contextual and purposive analysis persuades me that s. 243 meets the minimum standard of precision required by the Charter.
[83] Furthermore, in R. v. Levkovic, at paras. 10 and 11, Fish J. held that in determining whether the impugned law affords fair notice to citizens and limits enforcement discretion will require judicial examination of the impugned law's test and context:
There is otherwise no dispute regarding the analytical framework for determining whether a statutory provision is void for vagueness. Nor is there any dispute as to the governing criteria: In a criminal context, the impugned provision must afford citizens fair notice of the consequences of their conduct and limit the discretion of those charged with its enforcement.
Whether the provision satisfies these essential requirements will be judicially determined by examination of both its text and context. Normally, in making that determination, the court will first consider the plain meaning of the words used by Parliament to define the essential elements of the offence. In this regard, the requirement of a specific intent, as in this case, will often shed light on the intelligibility of the terms used to describe the prohibited act or omission.
[84] In addition, Fish J., at paras. 47 and 48 in R. v. Levkovic, held that a court tasked with determining whether a law in unconstitutionally vague can only make that conclusion after exhausting its interpretive function with a fully developed interpretive context, which includes considering prior judicial interpretations, the legislative purpose, the subject matter and nature of the law in question, societal values, and related legislative provisions:
A court can conclude that a law is unconstitutionally vague only after exhausting its interpretive function. The court "must first develop the full interpretive context surrounding an impugned provision": Canadian Pacific, at paras. 47 and 79.
To develop a provision's "full interpretive context", this Court has considered: (i) prior judicial interpretations; (ii) the legislative purpose; (iii) the subject matter and nature of the impugned provision; (iv) societal values; and (v) related legislative provisions: Canadian Pacific, at paras. 47 and 87.
[85] However, in the instant case, many of the corporate defendant's arguments pertaining to the contention that s. 5(6) is unconstitutionally vague actually fall within the scope of legal or intellectual debate where particular factual circumstances of the charge have to be determined, such as the quality of the enforcement officer's vision in regards to the ability to properly observe the event in question, the nature of any obstruction that may affect the enforcement officer's ability to clearly view any part of the room or area containing the Main stage and seating for patrons, or the nature of the service being provided by an entertainer to a patron. These type of questions form part of the determination that the trier of fact undertakes in determining whether the prosecution has proven that the accused has committed the actus reus of the offence beyond a reasonable doubt.
(d) Does s. 5(6) indicate that the view of an entertainer providing services to a patron has to be taken from the Main Stage?
[86] Although the test in determining whether s. 5(6) is unconstitutionally vague does not require an actual interpretation of s. 5(6), but only finding that s. 5(6) is sufficiently precise to be capable of being interpreted in order to provide fair notice and to limit enforcement discretion, it may be nonetheless appropriate based on the nature of one of the corporate defendant's contentions in this case, to actually interpret just one aspect of s. 5(6) that appears to be at issue. This aspect is in respect to where the visibility of an entertainer providing services to a patron is to be viewed from. The corporate defendant raises this question that it is uncertain whether the view is to be taken from the middle of the stage, on the stage, or near the stage, since this issue had arisen in respect to the City of Toronto "unobstructed-visibility" bylaw commented on in the City of Toronto Staff Report (Ex. 1).
(e) Usefulness of the Toronto Staff Report (Ex. 1)
[87] In challenging the constitutional validity of s. 5(6), the corporate defendant relies on a staff report prepared by City of Toronto officials (Ex. 1) to support its argument that the phrase "in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor" is impermissibly vague, and further questioned whether the determination of whether an entertainer providing a service to a patron had been visible had to be determined by standing on the main stage, in front of the stage, or in the middle of the stage, or in some other part of the establishment.
[88] In addition, the corporate defendant also referred to the City of Toronto council subsequently adopting the definition for a "designated entertainment area", which it suggests would remove the enforcement confusion that had been created by the previous provision of the bylaw, which had required that "services are permitted only within the plain and unobstructed view of the main stage".
[89] Furthermore, the corporate defendant referred to at p. 12 of the Toronto Staff Report recommendations on proposed changes to the "unobstructed-visibility" bylaw used in Toronto to demonstrate that the issue concerning where the visibility of an entertainer providing a service to a patron had to be viewed or taken from, had been a problem that had resulted from uncertainty in the meaning of that particular Toronto provision, which by analogy would also be a similar problem of interpretation that would affect s. 5(6):
The current provision states that services are permitted only within the plain and unobstructed view of the main stage.
Staff is recommending that this provision be amended to ensure the conditions are relevant, enforceable and reflective of the current state of the industry. It will include the addition of a definition for a designated entertainment area and other related amendments.
Provision proposed:
Services would be permitted in a designated entertainment area and not permitted in any portion of the premises that is fully obstructed from the view of patrons, entertainers or security personnel.
The intent of the bylaw is to provide for a safe environment for the entertainers who perform services in close proximity of patrons. The reference to the main stage in the current by-law is not practical, as the construction of many clubs does not always permit a view of performances in all club areas from the main stage. This reference also creates confusion as to the interpretation when determining compliance. The proposed amendment will address the safety concerns of the entertainers and provide clarity.
[90] Furthermore, the corporate defendant referred to comments made by the Toronto Police Service in respect to the "unobstructed-visibility" bylaw that had been outlined in p. 73 of the Toronto Staff Report (Ex. 1), which indicated that some judges had ruled that the enforcement officer should be on the stage when making the determination if the performance is within the view of the main stage:
the unobstructed view from the main stage as a reference point, has resulted in some judges ruling that the officer should be on the stage when making the determination if the performance is within the view of the main stage.
[91] However, in regards to the present motion to quash the information, the City of Toronto Staff Report (Ex. 1) carries very little weight and is also not very useful as evidence that s. 5(6) is impermissibly vague. First, the comparable unobstructed-visibility provision in the City of Toronto legislation is not similarly worded as the provision in the City of Mississauga bylaw contained in s. 5(6). Thus, relying on the City of Toronto Staff Report to contend that s. 5(6) is too vague is not a reasonable or relevant comparison, since it would not be comparing "apples to apples", but "apples to oranges". The Toronto bylaw required that "services are permitted only within the plain and unobstructed view of the main stage". In other words, the Toronto bylaw specified a particular point of reference for the determination of whether there had been an unobstructed view, while the Mississauga bylaw contained in s. 5(6) does not specify a particular point of reference for determining whether the entertainer's services to a patron were in a location that was not visible.
[92] It is also curious that the corporate defendant relies on the Toronto Staff Report to condemn s. 5(6) as being an invalid law because of its contended impermissibly vagueness, yet at p. 9 of the same report it is mentioned that the Adult Entertainment Association of Canada had frequently cited the City of Mississauga's Bylaw 507-2005 as a model to consider for re-drafting the Toronto Adult Entertainment Parlour regulations:
The Adult Entertainment Association of Canada has frequently cited the Mississauga bylaw as a model to consider when re-drafting the Toronto AEP regulations. As such, staff has conducted a more in-depth review into the applicable provisions in this particular jurisdiction.
… Under this bylaw, the entertainer is prohibited to "touch, sit, rest on, or make any physical contact with the breast, buttock, genital or pubic areas of any person". Services must be rendered within a clear and unobstructed view from the main stage and from a patron seating area. Peel Regional Police Service (PRPS) identifies poor lighting conditions in the clubs as an impediment that often prevents the officers from clearly seeing the actual contact between the entertainer and the patron.
[93] Accordingly, just because the City of Toronto had concerns and difficulties in enforcing its unobstructed-visibility bylaw because of the particular wording contained in the Toronto bylaw does not mean the same problem or difficulties in interpretation exist in respect to Mississauga's "unobstructed-visibility" bylaw under s. 5(6).
(f) What does "in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business" refer to?
[94] To reiterate, even though an actual interpretation is not required to resolve whether s. 5(6) is impermissibly vague, since the test for vagueness only requires finding that s. 5(6) is sufficiently precise to be capable of being interpreted to allow for fair notice and to limit enforcement discretion, it would nevertheless be useful to interpret one of the principal elements or phrases of the prohibited conduct set out in s. 5(6), namely the phrase "in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business".
[95] The prosecution also submits that certain terms used in s. 5(6) have been defined in the definitions section of Bylaw 507-2005, and that when s. 5(6) is read in conjunction with the entirety of Bylaw 507-2005 and the disclosure provided by the prosecution, and considered in light of the requirement that the corporate defendant had to submit a floor plan of the defendant's adult entertainment establishment indicating the location of the "main stage" area and the patron area in order to obtain an operator's license for the establishment, then the corporate defendant would have had fair notice of what conduct is prohibited under s. 5(6).
[96] Once again, s. 5(6) states that:
- No Owner shall,
(6) Permit any Entertainer to perform any service in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business, and which location is without obstruction by any person or any thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting;
[97] Hence, the key word in this particular phrase "in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business", is the presence of the word or conjunction, "and". Specifically, since there is the presence of the conjunction "and" between the words "Main Stage" and the phrase "from a patron seating" in the phrase "the "Main Stage and from a patron seating area", the phrase is to be treated as one element. Both "Main Stage" and "from a patron seating" are nouns that are used as adjectives to modify the noun "area". It is further described by the prepositional phrase "for that particular floor of the Adult Entertainment Business". Thus, the "area" of concern is an area on a particular floor that contains the Main Stage and seating for patrons. This would be in distinction to a room, for example, that would not be part of the area that contains the Main Stage and seating for patrons, such as the kitchen or the washrooms. Moreover, when the particular phrase, "the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business", is interpreted in accordance with the underlying purpose of Bylaw 507-2005, the definitions contained in Bylaw 507-2005, the entirety of Bylaw 507-2005, and in the context of the surrounding provisions of the part that contains s. 5(6), then the phrase refers to the area situated in the establishment where patrons or the public have access to watch exotic dancers or entertainers perform, dance, or provide services that are not prohibited under Bylaw 507-2005. It is also the area in the establishment where there is the Main Stage and seating for patrons where the entertainers' or exotic dancers' performances or dances can be observed by other entertainers, patrons, security personnel of the operator, management or supervisory staff, wait staff, and inspectors or police officers who happened to be on the premises. In short, this means the area or an identifiable room in the establishment that contains the Main Stage and seating for patrons where the public is permitted access, as opposed to an area in the establishment in which the public is not permitted access, such as in the kitchen or storage rooms of the establishment.
[98] Additionally, the corporate defendant in its argument points out that s. 5(6) has no defining criteria as to where the enforcement officer would have to stand in order to make the assessment concerning visibility, and questions whether the enforcement officer is required stand on the main stage. And, if so, at what part of the stage? Or, is it the whole of the main stage that the enforcement officer has to make their observation from? Or can the determination be made standing around the main stage or by standing in front of the main stage?
[99] However, the corporate defendant's concern appears predicated on how the City of Toronto unobstructed-visibility bylaw had been previously worded, in which the visibility of an entertainer providing services to a patron had to be viewed "from the main stage". In comparison, s. 5(6) does not specify that an enforcement officer's view of the performance or services provided by the entertainers or exotic dancers to a patron must be taken actually from the main stage of the establishment, as had been the requirement in the Toronto unobstructed-visibility bylaw.
[100] In other words, the element of the offence to be proven in s. 5(6) is not predicated on where specifically the visibility is to be determined from, such as from the main stage, but that the location of the performance or service being provided by an entertainer to a patron is visible from any part of the room or area which contains the Main stage and seating for patrons for a particular floor of the establishment, which allows for the protection of the health and safety of entertainers providing services to patrons. Hence, the enforcement officer's view of the entertainer providing services to a patron could be taken from anywhere in the room or area on particular floor of the establishment that contains both the Main Stage and seating for patrons.
[101] Furthermore, since the corporate defendant had been required to file a set of floor plans for the establishment that set out the location of the Main Stage in reference to the seating for patrons on a particular floor of the establishment, before obtaining the license to operate the adult entertainment establishment, then the corporate defendant would know, or ought to have known, where the area or room for a particular floor of its establishment that contains both the Main Stage and seating for patrons.
[102] Ergo, this interpretation of the phrase, "the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business", is in accord with the purpose of Bylaw 507-2005, which is set out in the preamble of Bylaw 507-2005. That preamble states that one of the purposes behind the Bylaw is to protect the health and safety of or to prevent hazard conditions, injury, illness, or loss to persons in these adult entertainment establishments, especially entertainers providing services to patrons:
AND WHEREAS the Council of the City of Mississauga considers it desirable and necessary to license, regulate and govern Adult Entertainment Establishments for the purpose of Health and Safety to ensure that the business is conducted in a fashion and manner that will not adversely affect or could possibly adversely affect the health and safety of person(s) or result in illness, hazardous conditions, injury or loss;
[103] Moreover, as one aspect of Bylaw 507-2005's objective, s. 5(6) was enacted to protect the safety of entertainers or exotic dancers from unwanted touching or from being assaulted or sexually assaulted by patrons, since such activity could occur in dark and isolated areas of the adult entertainment establishment where the view of this type of activity would be shielded from the view of other patrons, exotic dancers, wait staff, security staff, or from the establishment's management personnel. This similar concern about the health and safety of entertainers or exotic dancers in respect to no-touching and unobstructed-visibility provisions were also highlighted in the Toronto Staff Report (Ex. 1) at p. 9, in respect to the Toronto legislation:
Both the physical layout of the clubs (i.e. secluded private rooms/booths), physical proximity of the dancers to their customers, consumption of alcohol, as well as the polices of management towards dancers and customers can contribute to the likelihood of assault or harassment of the entertainers. Dancers report that stressful work conditions related to patrons' expectations of physical contact have an adverse effect on their rental health and may contribute to depression, use of drugs and overuse of alcohol, and sleeping problems. Entertainers are frequently reluctant to contact the authorities to report an assault or any misconduct committed by patrons or management/employees of the club. Amendments to the no-touch and unobstructed-view provisions, as well as to the construction standards of private rooms, booths and cubicles are focussed on addressing these health and safety risks …
[104] In sum, the condition under s. 5(6) is that an entertainer is not permitted to perform any service in a location that is not clearly visible from any point within the room or area on a particular floor of the establishment, which contains both the Main Stage and seating for patrons. This requirement would protect the health and safety of the entertainer from illness or injury.
7. DISPOSITION
[105] Accordingly, for the reasons set out, the corporate defendant's motion to quash the information for being unconstitutionally vague is dismissed, since the scope of s. 5(6) of Schedule 4 of Bylaw 507-2005 is sufficiently precise or reasonably delineated to allow for intelligible or legal debate in its application to specific fact situations.
Dated at the City of Mississauga on December 12, 2014.
QUON J.P.
Ontario Court of Justice