ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Patrick Quilty, for the Crown/Appellant
Appellant
- and -
MARVIN MCINTYRE
Diana Lumba, for the Accused/Respondent
Accused/Respondent
HEARD: December 15, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of Hawke J., Dated, May 15, 2014]
Justice Thomas A. Bielby
1The trial judge, K. Hawke J., on May 15, 2014, acquitted the respondent of being in breach of a prohibition order issued pursuant to section 161 of the Criminal Code of Canada.
2In September 2012, the respondent pleaded guilty to a number of counts which included sexual assault involving persons under the age of 16. Sentencing took place on October 15, 2012. One of the terms of sentence was a prohibition order, dated October 15, 2012, which prohibited the respondent from attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare center, school ground, playground or community centre, for a period of ten years.
3On January 14, 2014, the respondent was arrested at the Hersey Sports Zone (HSZ), a recreational facility owned by the City of Mississauga, where he was participating in an adult indoor soccer game. He played on a team that was part of an adult league.
4Prior to playing, the respondent contacted the probation office and advised the duty officer of what he was doing. In fact, he called the probation office on two occasions to ensure they had a record of his inquiry. The respondent was advised to leave the facility immediately if a person under the age of 16 was present.
5The HSZ is a multiple function sports/recreation facility and that, while the respondent was playing soccer on the indoor field, in other areas of the same facility, persons under the age of 16 may have been present, for example, playing basketball or participating in gymnastics.
6The respondent’s attendance at the HSZ resulted in the police being called and the respondent was arrested, on the grounds that the HSZ was a community center and, accordingly, the respondent violated the prohibition order.
7The Crown submits that, in acquitting the accused, the trial judge provided three reasons or grounds for the acquittal and that each is vitiated by legal error.
8The Crown submits that the facts are undisputed and that, when the correct law is applied, a conviction is inevitable.
9The Crown seeks a conviction, or in the alternative, a new trial.
10The three grounds enunciated by Hawke J. are as follows:
She noted that the information alleged the prohibition order breached was dated October 12, 2012 when, in fact, the order was issued on October 15, 2012. She held that the Crown had not proven the count as particularized. There was no evidence of a breach of an order, dated October 12, 2012.
She ruled that the term “community centre” as set out in s. 161 of the Code is inoperative.
She ruled that the Crown had failed to prove that the HSZ was a community center.
11With respect to these three reasons and in the order in which they are set out the Crown and the respondent submit the following.
12In regards to the first reason, while acknowledging the principle of particularization, the Crown submits that it is not required to prove information that is not essential to the charge. The Crown is not required to prove mere surplusage. It is submitted the date of the order is surplusage and to find same is not prejudicial to the respondent. The essential elements of the charge only require the Crown to prove that the respondent was bound by a prohibition order at the relevant time and that he breached the prohibition order while subject to it.
13The Crown submits that the respondent conceded at trial that he knew he was bound by the prohibition order on the date it is alleged the breach occurred.
14It is also the submission of the Crown that this ground for the acquittal was not raised at trial or during argument and submissions. As a result, Crown counsel was not allowed to make submissions on this issue, nor was he able to ask that information be amended to reflect the correct date of the prohibition order.
15The Crown submits that it suffered, as result, a denial of natural justice.
16Defence counsel submits the trial judge provided a judicious reason for not inviting submissions. Further, the general rule that the Crown should prove the particulars alleged applies and that, in fact, the Crown did not prove any breach of a prohibition order, dated October 12, 2012. The date of the order in the count was not surplusage but an essential fact.
17In regards to the second reason of the trial judge for acquittal, the Crown submits that the trial judge had no jurisdiction to consider the constitutionality of section 161 and the phrase “community centre”. There was no Notice of a Constitutional Question served and filed prior to the trial and, therefore, the trial judge lacked the jurisdiction to rule the words “community center” were inoperative.
18Further, any challenge to the section should have been made at the sentencing hearing when the prohibition order was made. Challenging the constitutional validity of the order at the trial of the breach amounts to an impermissible collateral attack, as discussed in R. v. Litchfield 1993 44 (SCC), [1993] 4 S.C. R. 333. As noted at paragraph 17 of the Litchfield decision, “…the orderly and functional administration of justice requires that court orders be considered final and binding unless they are reversed on appeal.”
19The Crown submits that the issue of whether the words “community center” is inoperative or not should have been argued before the sentencing judge who made the prohibition order and the rule against collateral attack prohibits any consideration of the validity of the prohibition order and the inclusion in it of the words, “community center”.
20Counsel for the respondent submits that the ruling of “inoperative’’ was not the result of constitutional challenge but, rather, was a matter of statutory interpretation. She relies on the authority of Rizzo & Rizzo Shoes Ltd (Re), 1998 837 (SCC), [1998] S.C.J. No. 2, at paragraph 62, wherein the court stated:
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.
21The respondent also relies on the decision in R. v. Sharpe [2001] SCC 2 at paragraph 33, were McLachlin C.J.C. wrote:
Supplementing the [modern] approach is the presumption that Parliament intended to enact legislation in conformity with the Charter…If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted.
22In R. v. Mabior 2012 SCC 47, at paragraph 44, McLachlin C.J.C. noted that Charter values are always relevant to the interpretation of a disputed provision of the Criminal Code.
23The respondent relies on R. v. S.A.C. 2008 SCC 47, paragraph 30-31 which state:
Where the interpretation of penal provisions is concerned, courts must generally ensure that any ambiguity is resolved in favour of the liberty of the accused whose liberty is at stake.
24The consideration of the words may involve restricting or qualifying an over-inclusive provision or a reading down of a provision which violates a legal norm. (Montreal (City) para. 34 and R. v. McKay [1965] S.C.J. No. 51).
25Counsel for the respondent submits that the finding that the words “community center” are inoperative is not a matter of constitutional challenge but is a matter of statutory interpretation, guided by the modern principal set out above.
26It is submitted by counsel for the respondent that section 161(1)(a) should be read down so as not to include community center. The purpose of section 161 is the protection of young persons, under the age of 16, and the words “community center” are ambiguous.
27It is submitted by counsel for the respondent that the presumption of compliance with the Charter and the rule of strict construction of penal statutes lead to the same result as that of the trial judge.
28Relying on R. v. Budreo 1996 11800 (ON SC), [1996] O.J. No. 3, as did the trial judge, the respondent submits that the trial judge declared the words “community center” to be inoperative pursuant to a ruling already made and in the context of proper statutory interpretation.
29With respect to the trial judge’s third reason for acquittal, the Crown submits that the trail judge erred by acquitting on the basis that the Crown was unable to present a working definition of “community center”. The use of the words is lifted from s. 161 and their meaning is a matter of statutory interpretation. It is submitted that the Crown only need to prove that the HSZ is a community center.
30It is submitted that the trial judge should have determined the proper interpretation of “community center” which is a question of law and reviewable on the standard of correctness and then determine whether on the facts the HSZ met the definition.
31Counsel for the respondent submits that the trial judge recognized the onus was on the Crown to prove the actus reus of the offence beyond a reasonable doubt and was correct holding that the Crown was unable to present a workable definition of “community center” and that, even if there was such a definition, the evidence presented fell short of proving “community center” as seen from the fact that the words did not appear in any signage or on any relevant websites.
32The trial judge determined that, in all the circumstances, a person in the respondent’s position would not reasonably know that he was prohibited from attending the HSZ.
33Counsel for the defence submits that the appeal should be dismissed. Alternatively, if the appeal succeeds the appropriate remedy is that of a new trial. In the further alternative, if the appeal is allowed and a conviction entered, the matter should be returned before the trial judge for a sentencing hearing. The record necessary for sentencing is not before this court, particularly with respect to the personal circumstances of the respondent.
34It is conceded by the Crown that, to be successful on this appeal, he must prove that the trial judge erred in all three of her reasons for acquittal. Any one of the reasons, if valid, would lead to an acquittal.
DECISION OF HAWKE J.
35In her written reasons the trial judge discussed the facility known as the HSZ, owned by the City of Mississauga. She referenced the evidence of Mr. Kilmartin who works at the HSZ and who described the facility as a multifunctional recreational centre which provides the citizens of Milton opportunities to play basketball, soccer and gymnastics, as well as other sports. It is next door to the Hersey Centre which contains ice hockey rinks and can be used for entertainment events.
36The HSZ is opened to people of all ages.
37The trial judge, at paragraph 30, made the point that there is no indication of HSZ being a community center by way of its name or signage. On it web pages, the City does not list it as a community center.
38The trial judge notes that there was some evidence of youth activities going on adjacent to, but separate from, the indoor soccer field.
39At page seven of her judgment, the trial judge begins providing her reasons for her finding of not guilty. She states at paragraph 37 that the breach, as particularized, was in relation to an order made October 12, 2012. She acknowledges no submissions were made on this point, that the Crown did not ask for an amendment and the defence did not raise a non-suit application. She found that it was clear that the defence was holding the Crown to the strict proof of the elements of the charge.
40The trial judge found the date of the order was necessary for factual sufficiency and was not surplusage (para. 40) and that a conviction on the count of breaching an order dated October 12, 2012 would be incorrect since the order binding the respondent was dated October 15, 2012 (para. 42).
41It is noted that the trial judge referred to the text, Criminal Procedure in Canada (2011), by Rondinelli and Stribopoulos, page 587, paragraph 11.22 wherein it is stated:
Details will be surplus if their inclusion in the charge could not have misled the accused as to the nature of the charge or the identity of the transaction.
42At paragraph 44, the trial judge references her second reason for committal. She references the decision of Then J. in Budreo v. The Queen in 1996, a decision upheld by the Court of Appeal. In relation to section 810.1(3) as it then was, Then J. ruled that the words “community center” as set out in section 810.1(3) of the Criminal Code of Canada were inoperative as the only reasonable interpretation of the words was overly broad and in violation of section 7 of the Charter.
43The wording of section 810.1(3) was almost identical to the wording in issue in section 161. The trial judge noted that Parliament had taken the words community center out of section 810 but not out of section 161. The trial judge agreed with the submissions of defense counsel that, if the words “community center” were inoperative in section 810, they should also be inoperative in section 161. At paragraph 48 the trial judge wrote:
In any event, given the matching wording and purpose between section 810.1(3), as it then was, and section 161, I am unable to come to any other conclusion than to find the words “community centre” inoperable. Given that the charge and the evidence are restricted to suggesting that the defendant was at a community center, an acquittal must follow.
44At paragraph 49, the trial judge sets out her third reason for acquittal, assuming the words “community center” are not inoperable. She held that the Crown had not proven the HSZ was a community center as it was unable to present a workable definition and, even if it had, the evidence presented to prove it was a community center was weak. The words community center did not appear in the name, on signage nor on relevant websites.
ANALYSIS
45With respect to the first ground and the fact the charge set out the wrong date of the prohibition order, I agree with the submissions of the Crown. The date when the order was made is not essential to the charge. What is essential is that the order was in place when the alleged breach occurred. The respondent was aware of the order and that he was prohibited from attending any community center. Accordingly, there would be no prejudice to him.
46The date of the order can be considered to be surplusage as it was not essential to constitute the offence (R. v. Vezina 1986 93 (SCC), [1986] 1 S.C.R. 2, para. 49).
47As argued by the Crown, had the wording of the count excluded the date of the order, the remaining wording would be sufficient particularization.
48More importantly, at trial, this point was not specifically raised by counsel and, by relying on this ground when writing her decision, the trial judge failed to allow Crown counsel to make submissions and to seek an amendment.
49As noted in R. v. Griffiths 2013 ONCA 510, [2013] O.J. no. 3565 (ONCA), at paragraph 32:
I have two concerns with the manner in which the trial judge exercised his discretion in this case. These concerns lead me to find that he erred in law in entering an acquittal. One concern is procedural and has to do with the requirements for natural justice; the other is with the remedy chosen by the trial judge.
50At paragraph 33, it was held that the failure to allow counsel, particularly the Crown, to make submissions was a denial of natural justice.
51As noted in R. v. Irwin 1998 2957 (ON CA), [1998] O.J. No. 627 (ONCA), at paragraph 9, the court has broad powers of amendment to promote the determination of criminal matters on their merits and avoid a multiplicity of proceedings.
52I accept, therefore, that the trial judge erred in law in relation to her ruling that the offence was not proven, as particularized. At the very least, she should have asked for submissions and should have allowed the Crown to make an application to amend the information by correcting the date. The failure to do so was a denial of natural justice.
53On the second ground relating the trial judge’s determination that the words, “community center” are inoperable because they violated section 7 of the Charter, I find that such a finding arises from a constitutional challenge. No formal notice was given to the Attorney Generals of the Government of Canada and the Government of Ontario. Without such notice, the trial judge had no jurisdiction to consider such a challenge and rule the words “community center” inoperative.
54The trial judge, as noted, relied on the Budreo case, a decision of Then J. of the then Ontario Court (General Division), as authority that the words “community center” are inoperative. At paragraph 64 in Budreo, Then J. wrote:
Accordingly, in my view, the inclusion of “community center” in the restrictions imposed, without its being tempered by a requirement that children be reasonably expected to be there, is overly broad and therefore in violation of s. 7. I am mindful that the majority in Heywood (1994) 1994 34 (SCC), 3 S.C.R. 761) at pp. 801-802 in examining the identical wording respecting community centers found in s. 161(1)(a), found that section was clearly limited “to clearly defined geographical areas where children are or can reasonably be expect to be present”. But the court did not purport to offer the type of detailed analysis of the wording in question that I am compelled to attempt with respect to s. 810.1.
55In the Heywood matter, Cory J. of the Supreme Court of Canada, at page 801 considered section 161. He stated at page 802:
It can be seen that this section is limited to clearly defined geographical areas where children are or can reasonably be expected to be present.
56In Budreo, Then J. ruled that, in relation to section 810.1
…the inclusion of “community center” in the restrictions imposed, without its being tempered by a requirement that children be reasonably expected to be there, is overly broad and therefore in violation of s. 7. (para. 64).
57The trial judge in the Budreo decision was dealing with a properly initiated constitutional challenge and the consideration of whether the words “community center” in section 161 are inoperative would require the same procedure, especially given the comments in the Heywood case.
58By declaring the words “community center” inoperative, the trial judge made an error in law in relation to her second reason or ground for acquittal.
59As a result of this conclusion, I need not consider whether or not the collateral attack rule is applicable.
60The trial judge’s third ground for acquitting the respondent is her determination that the HSZ has not been proven to be a community center.
61In the Concise Oxford English Dictionary, thumb index edition, community center is defined as a place providing educational or recreational activities for a neighbourhood. Clearly, the HSZ provided recreational activities and the neighbourhood, in this case, is the City of Mississauga.
62I can only conclude, given the purpose of section 161, that is, the protection of persons under the age of 16 from sexual predators, that community centers were included because they would be places were children would likely attend.
63While “community center” is not defined in the Code, applying the ordinary meaning to words suggests the HSZ is a community center. The fact that the words “community center” were not included in the signage or on the website for the City of Mississauga is not determinative of the issue. What is determinative is the use of the facility and the intended target group which includes children.
64If we are to interpret statutes using ordinary language, the HSZ is a community centre and there is likelihood that persons under the age of 16 are present within the facility. It is to be used by and for the benefit of the citizens of Mississauga and the activities therein are for persons both over and under the age of 16.
65There is evidence that, while the respondent was present at the soccer field, persons under the age of 16 were enjoying activities in other parts of the HSZ. The adult league played between the hours of 3:00 p.m. and 5:00 p.m. weekdays, at a time of day when children have finished school and would be able to participate in activities at the facility.
66Mr. Kilmartin, who works at the HSZ, testified that it is a multi-sport facility owned by the City of Mississauga. He testified that it is open to members of the public. The City operates a number of programs and tenants also operate programs. He described the programs as both drop in and league based.
67Mr. Kilmartin testified that participants are “from age two and a half, three years old, right up to the oldest participant who is in his seventies”.
68R. v. Peron [2009] O.J. No. 2534 is a decision of the Ontario Court of Appeal. In that case, the issue was whether or not the Super Ex held at Landsdowne Park was a public park as referenced in section 161(1)(a).
69At paragraph 12, the Appeal Court sets out the approach to statutory interpretation as follows, as referenced herein, at paragraph 20.
70From paragraph 13, I quote:
The purpose of section 161(1)(a) is to protect children from becoming the victims of sexual offences at the hand of those who have previously committed certain specified offences. The protection of this particularly vulnerable group in Canadian Society must inform the task of construing the phrase in issue in this appeal.
71From paragraph 14, I quote:
Section 161(1)(a) addresses the legislative objective by specifying a number of locations that an offender can be prohibited from attending… In other words Parliament has specified locations in s. 161(1)(a) because of what goes on there makes it likely that young children will be present.
72At paragraph 20, the appeal court stated:
In my view, to breach this term of a prohibition order under s.161(1)(a), the person bound by it must be attending at a defined or discrete location that is accessible to the public for recreational use that involves or is reasonably likely to involve children under the specified age…Construed in this way, the phrase “public park…where persons under the age of fourteen years are present or can reasonably be expected to be present” best serves the legislative purpose and is most faithful to the ordinary and grammatical sense of the words in their legislative context. Moreover, it provides the clarity necessary for the person bound by the order to know the locations that must be avoided.
73While I recognize that the words “community center” are not included in the same clause of section 161(1)(a), the same logic prevails. The intention of the section is to protect children so it refers to locations where persons under the age of 16 are likely present. In considering whether the HSZ is a community center as referenced in the section, there would have to be likelihood that persons under the age of 16 would be present at the HSZ.
74Given the nature of the facility and its use and the evidence presented, I find that it is a community center within the meaning of section 161(1)(a) and that the trial judge erred in that regard.
75Accordingly, I find that the trial judge erred in law in regards to all three reasons for acquitting the respondent.
REMEDY
76However, while allowing the appeal, I am not prepared to enter a conviction and I direct that the matter be sent back for a new trial.
77As noted by counsel for the respondent, the trial judge never made a finding as to whether the respondent acted with due diligence to avoid breaching his prohibition order. I accept that he contacted the probation office on more than one occasion and spoke to someone in authority. He advised whomever he spoke to that his intention was to play in an indoor adult soccer league at the HSZ. He was advised to leave the area if a person under 16 years of age was in the area.
78Given the advice he was given, it seems apparent that whomever he talked to knew that the respondent could not be in such place if children are present. Regardless of whether or not the probation office had a copy of the prohibition order, it would seem that they were aware of its terms.
79Counsel for the respondent provided the court with the authority R. v. Custance 2005 MBCA 23 (ManCA) in which the defence of lawful excuse is discussed. From paragraph 24, I quote:
Once the Crown proves the elements of the offence beyond a reasonable doubt, the onus shifts to the accused to provide a lawful excuse, on a balance of probabilities. When the issue of lawful justification or use arises, the trial judge must consider if the accused has proved a defence of lawful justification or excuse by a preponderance of evidence.
80From paragraph 26, I quote:
In this case conviction may have been avoided if the accused established a lawful excuse by a showing of due diligence to satisfy the obligation.
81In R. v. Baclzo 2013 ONSC 6326, Fragomeni J. was hearing the matter on a summary conviction appeal. In his decision, he discusses the defence of officially induced error. At paragraph 8, he set out the six elements which must be proven by an accused if the defence is to be made out. They are:
That an error of mixed law and fact was made out;
That the person who committed the act considered the legal consequences of his or her actions;
That the advice obtained came from an appropriate official;
That the advice was reasonable;
That the advice was erroneous; and
That the person relied on the advice in committing the act.
82At paragraph 18, Fragomeni J. refers to the decision of Sproat J. in R. v. Halloran [2010] O.J. No. 3346, paragraphs 4 to 9. Justice Sproat references R. v. Jorgensen 1995 85 (SCC), and states:
In my opinion it is clear from the authorities cited by Chief Justice Larmer, and his reasons, that officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted.
83Justice Sproat also notes that Larmer C.J. cited an article by Justice Kastner which discusses the defence in terms of the offender in good faith is duly diligent in attempting to guide his conduct by the law as stated by a party in the know.
84Accordingly, the defence of reasonable excuse and/or officially induced error may be available to the respondent and a new trial is needed for that reason alone.
85A further reason for a new trial is the issue regarding the constitutional challenge. If the respondent wishes to pursue this remedy, a new trial will permit the giving of proper notice.
ORDER
The appeal is allowed and a new trial is ordered. The matter is to be returned to court room 104 in the Ontario Court of Justice, at Brampton, to be spoken to.
Justice Thomas A. Bielby
Released: January 6, 2015
CITATION: R. v. McIntyre, 2015 ONSC 70
COURT FILE NO.: SCA(P) 346/14
DATE: 20150106
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
MARVIN MCINTYRE
Accused/Respondent
REASONS FOR JUDGMENT
Bielby J.
Released: January 6, 2015