R. v. Stagnitta, [1990] 1 S.C.R. 1226

Lina Maria Stagnitta Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Nova Scotia,

the Attorney General of Manitoba,

the Attorney General of British Columbia

and the Attorney General for Saskatchewan Interveners

indexed as: r. v. stagnitta

File No.: 20497.

1988: December 1, 2; 1990: May 31.

Present: Dickson C.J. and McIntyre*, Lamer, Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.

on appeal from the court of appeal for alberta

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Vagueness ‑‑ Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution ‑‑ Whether s. 195.1(1)(c) of the Code impermissibly vague ‑‑ Whether s. 195.1(1)(c) of the Code infringes s. 7 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether limit imposed by s. 195.1(1)(c) upon s. 7 justifiable under s. 1 of the Charter.

Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution ‑‑ Whether s. 195.1(1)(c) of the Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether limit imposed by s. 195.1(1)(c) upon s. 2(b) justifiable under s. 1 of the Charter.

Criminal law ‑‑ Prostitution ‑‑ Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution ‑‑ Whether s. 195.1(1)(c) of the Code infringes ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether limit imposed by s. 195.1(1)(c) upon ss. 2(b) and 7 justifiable under s. 1 of the Charter.

The appellant was charged with "communicating in a public place for the purpose of engaging in prostitution" contrary to s. 195.1(1)(c) of the Criminal Code. The trial judge acquitted the appellant holding that s. 195.1(1)(c) infringed the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and was not justifiable under s. 1 of the Charter. The Court of Appeal quashed the appellant's acquittal and entered a conviction. This appeal is to determine whether s. 195.1(1)(c) of the Code infringes ss. 2(b) and 7 of the Charter; and, if so, whether s. 195.1(1)(c) is justifiable under s. 1 of the Charter.

Held (Wilson and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.

Per Dickson C.J. and La Forest and Sopinka JJ.: For the reasons given by the Chief Justice in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter. Section 195.1(1)(c) does not infringe s. 7 of the Charter on the grounds of vagueness or uncertainty.

Per Lamer J.: For the reasons I gave in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter. Section 195.1(1)(c) does not infringe s. 7 of the Charter on the grounds of vagueness or incertainty.

Per Wilson and L'Heureux‑Dubé JJ. (dissenting): For the reasons given by the minority in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes on the right to freedom of expression guaranteed by s. 2(b) of the Charter and cannot be saved by s. 1 of the Charter. Section 195.1(1)(c) does not infringe the right contained in s. 7 of the Charter on the ground that it is so vague as to violate the requirement that the criminal law be clear. Nonetheless, the impugned provision infringes the s. 7 right to liberty in a manner which is not in accord with the principles of fundamental justice. This infringement cannot be justified under s. 1 of the Charter.

Cases Cited

By Dickson C.J.

Applied: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000; referred to: R. v. Skinner, [1990] 1 S.C.R. 000.

By Lamer J.

Applied: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000; referred to: R. v. Skinner, [1990] 1 S.C.R. 000.

By Wilson J. (dissenting)

Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7.

Criminal Code, R.S.C. 1970, c. C‑34, s. 195.1(1)(c) [ad. 1972, c. 13, s. 15; rep. & sub. 1985, c. 50, s. 1].

APPEAL from a judgment of the Alberta Court of Appeal (1987), 1987 ABCA 153, 54 Alta. L.R. (2d) 1, 79 A.R. 44, 43 D.L.R. (4th) 111, 36 C.C.C. (3d) 105, 58 C.R. (3d) 164, 31 C.R.R. 331, setting aside the accused's acquittal and entering a conviction on a charge under s. 195.1(1)(c) of the Criminal Code. Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.

Peter J. Royal, Q.C., and Mona T. Duckett, for the appellant.

Richard F. Taylor, for the respondent.

Graham R. Garton, for the intervener the Attorney General of Canada.

Michael Bernstein, for the intervener the Attorney General for Ontario.

Kenneth W. F. Fiske and Robert E. Lutes, for the intervener the Attorney General of Nova Scotia.

V. E. Toews and Donna J. Miller, for the intervener the Attorney General of Manitoba.

Joseph J. Arvay, Q.C., for the intervener the Attorney General of British Columbia.

Gale Welsh, for the intervener the Attorney General for Saskatchewan.

//The Chief Justice//

The judgment of Dickson C.J. and La Forest and Sopinka JJ. was delivered by

The Chief Justice -- The appellant, Lina Maria Stagnitta, was charged that she:

. . . on or about the 9th day of May, A.D. 1986, at or near the City of Edmonton, in the Province of Alberta, did unlawfully attempt to communicate with Dave PYKE in a public place for the purpose of engaging in prostitution, contrary to section 195.1(1)(c) of the Criminal Code.

Section 195.1 of the Criminal Code, R.S.C. 1970, c. C-34, reads as follows:

195.1 (1) Every person who in a public place or in any place open to public view

(a)stops or attempts to stop any motor vehicle,

(b)impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or

(c)stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

(2) In this section, "public place" includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

According to the agreed statement of facts, Detective Dave Pyke of the Edmonton City Police Department was driving along the west curb of 104th Street north of Jasper Avenue in Edmonton on the 9th of May, 1986 at 10:40 p.m. He was acting in an undercover capacity. He stopped his car and the appellant, Ms. Stagnitta, walked north on the sidewalk twenty feet past his car, turned around and walked back. The Detective opened the passenger window of his car and the appellant leaned in.

The appellant asked Detective Pyke whether he was a police officer and he replied that he was not. The two discussed briefly the possibility that the Detective worked for the Edmonton City Police. After Detective Pyke commented that there were too many police cars around, the appellant got into the Detective's car. The conversation continued and the Detective eventually told the appellant, "Okay, I'm the Chief of Police". The appellant told the Detective that she would "[s]how him a good time" and, with her left hand, grabbed his private parts.

The appellant asked the Detective, "How much money do you have?", to which the Detective replied that he had $500. She said, "Okay, let's go", and the Detective said that he had a hotel room. The Detective asked what he would get for his money to which the appellant responded, "A good time".

The Detective indicated that he would like to drive around and think about it, and shortly thereafter, the appellant was arrested and charged.

The appellant challenged the constitutionality of s. 195.1(1)(c) of the Criminal Code as her defence. She was acquitted in Alberta Provincial Court. The court found that s. 195.1(1)(c) of the Criminal Code infringed freedom of expression as defined in s. 2(b) of the Canadian Charter of Rights and Freedoms, and that it was not saved by s. 1 of the Charter.

Section 2 of the Charter guarantees that everyone has, among others, the following fundamental freedom:

2. . . .

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Section 1 of the Charter provides that:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Alberta Court of Appeal allowed an appeal by the respondent. The appellant's acquittal was quashed, a conviction was entered, and the appellant was sentenced to a fine of $100 and, in default, to one day imprisonment: (1987), 1987 ABCA 153, 54 Alta. L.R. (2d) 1. The court found that s. 195.1(1)(c) of the Criminal Code was inconsistent with s. 2(b) of the Charter, but that it was demonstrably justified according to s. 1. This Court granted leave to appeal that decision, [1987] 2 S.C.R. x.

The appeal was heard together with Reference re ss. 193 and 195(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000, and R. v. Skinner, [1990] 1 S.C.R. 000. The appellant Stagnitta challenges s. 195.1(1)(c) of the Criminal Code as constituting a violation of ss. 2(b) and 7 of the Charter.

In my view, this appeal fails for the reasons I have set out in detail in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra.

The constitutional questions to be answered are the following:

1.Does s. 195.1(1)(c) of the Criminal Code infringe or deny the right of freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?

2.Does s. 195.1(1)(c) of the Criminal Code infringe or deny the right guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms on the grounds of vagueness or uncertainty?

3.If the answer to either Questions 1 and 2 is yes, is s. 195.1(1)(c) of the Criminal Code justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

I would answer these questions as follows:

1. Yes

2. No

3. Yes

I would accordingly dismiss the appeal.

//Lamer J.//

The following are the reasons delivered by

Lamer J. -- This appeal was heard together with two other cases, Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000, and R. v. Skinner, [1990] 1 S.C.R. 000, judgments which were rendered this day. The case at bar deals with somewhat narrower issues in that only s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C‑34, and ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms are under consideration. Kerans J.A. for the Court of Appeal for Alberta concluded that the impugned section restricts freedom of expression under s. 2(b) of the Charter. He then went on to consider whether the section could be saved by s. 1 of the Charter. Kerans J.A. held that Parliament can, with the intention of preventing a nuisance, forbid any act which it demonstrated on sound evidence to be an essential pre-requisite to the nuisance, and where it was shown that a nuisance is a very likely consequence of the act. He concluded, therefore, that the restriction imposed by s. 195.1(1)(c) is a reasonable and justified limit: (1987), 1987 ABCA 153, 54 Alta. L.R. (2d) 1.

The following constitutional questions were stated by the Chief Justice on November 2, 1987:

1.Does s. 195.1(1)(c) of the Criminal Code infringe or deny the right of freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?

2.Does s. 195.1(1)(c) of the Criminal Code infringe or deny the right guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms on the grounds of vagueness or uncertainty?

3.If the answer to either Questions 1 and 2 is yes is s. 195.1(1)(c) of the Criminal Code justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

These issues have received full consideration in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, and therefore I need not repeat the analysis here, except to state that my reasons are equally applicable to this appeal. Therefore I would answer the constitutional questions as follows:

1. Yes

2. No

3. Yes

The appeal is, accordingly, dismissed.

//Wilson J.//

The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

Wilson J. (dissenting) -- For the reasons set out in my judgment in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 000, it is my view that s. 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-34, infringes on the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and cannot be saved by s. 1 of the Charter.

As my reasons in the Reference make clear, it is my view that s. 195.1(1)(c) does not infringe the right contained in s. 7 of the Charter on the ground that it is so vague as to violate the requirement that the criminal law be clear. Nonetheless, the impugned provision infringes the s. 7 right to liberty in a manner which is not in accord with the principles of fundamental justice. This infringement cannot be justified under s. 1 of the Charter. I would therefore allow the appeal, set aside the order of the Court of Appeal and restore the acquittal.

I would answer the constitutional questions as follows:

1.Does s. 195.1(1)(c) of the Criminal Code infringe or deny the right of freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms?

A. Yes.

2.Does s. 195.1(1)(c) of the Criminal Code infringe or deny the right guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms on the grounds of vagueness or uncertainty?

A.For the reasons set out in my judgment in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), although s. 195.1(1)(c) is not vague or uncertain, it nevertheless infringes s. 7 of the Charter.

3.If the answer to either Questions 1 and 2 is yes, is s. 195.1(1)(c) of the Criminal Code justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

A. No.

Appeal dismissed, Wilson and L'Heureux‑Dubé JJ. dissenting.

Solicitors for the appellant: Freeland, Royal & McCrum, Edmonton.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.

Solicitor for the intervener the Attorney General of Canada: The Deputy Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Nova Scotia: The Attorney General of Nova Scotia, Halifax.

Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener the Attorney General for Saskatchewan: The Attorney General for Saskatchewan, Regina.

*McIntyre J. took no part in the judgment.