CITATION: Chernard and Bunn v. City of Barrie, 2016 ONSC 2120
BARRIE COURT FILE NO.: CV-15-1541
DATE: 20160329
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michel Chenard and Bruce Bunn
Plaintiffs
– and –
City of Barrie
Defendant
Karen Jokinen, for the Plaintiffs
Peter Krysiak, for the Defenant
HEARD: March 2, 2016
REASONS FOR JUDGMENT
CHARNEY J.:
Introduction
[1] This application is brought under Rule 14.05(3)(d) and (h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for a declaration that City of Barrie, By-law 2005-276, A By-law of The Corporation of the City of Barrie to licence and regulate various businesses particularly related to the adult entertainment industry and to repeal By-law 2002-289 (28 November 2005), regulating “adult entertainment establishments” as defined in the by-law is void for vagueness and therefore violates s. 7 of the Canadian Charter of Rights and Freedoms.
Facts
[2] The applicants operate an establishment known as The Spotlight Event Centre in the City of Barrie. This facility is advertised for rental to host various activities. On February 26, 2015, the applicants hosted an event called “Magic Male Review Ladies Night” which consisted of male dancers performing dances for a female audience. Patrons paid an entrance fee to attend the event. Some dancers performed “lap dances” for patrons on stage. These performances involved physical contact between dancers and patrons. It was agreed by counsel that there was no nudity during these performances.
[3] The applicants were charged under the City of Barrie By-law 2005-276 with operating an “Adult Entertainment Establishment – Class B” without a licence. They were also charged with operating an “Adult Entertainment Establishment –Class B” within 300 meters of a residential zone, operating such an establishment within 300 meters of an institutional zone, and failing to post an Adult Entertainment Attendant’s Business licence on the premises.
[4] The trial was originally scheduled to be heard before a justice of the peace in late February 2016, but was adjourned on consent to permit the applicants to bring this application before the Superior Court of Justice in order to question the constitutional validity of the by-law under which the applicants were charged.
Procedure
[5] This application was brought pursuant to Rule 14.05(3)(d) and (h) of the Rules of Civil Procedure, which permit the commencement of an application where the relief claimed is “the determination of rights that depend on the interpretation of a … statute, order in council, regulation or municipal by-law or resolution” or “in respect of any matter where it is unlikely that there will be any material facts in dispute.” In addition, subsection (g.1) expressly authorizes an application “for a remedy under the Canadian Charter of Rights and Freedoms”, and the relief requested in this case is for a declaration that the by-law infringes s. 7 of the Charter.
[6] The void for vagueness argument could have proceeded before the Justice of the Peace assigned to hear the prosecution (see Mississauga (City) v. 1094388 Ontario Ltd. (c.o.b. Pure Gold Adult Entertainment), 2014 ONCJ 674, 325 C.R.R. (2d) 128).
[7] The respondent consents to proceeding under Rule 14.05 to determine the constitutional question rather than arguing the constitutional issue before the Justice of the Peace assigned to hear the case on its merits.
[8] The parties have agreed to proceed under Rule 14.05 because this is the procedure that was followed in the case of 2312460 Ontario Ltd. v. Toronto (City), 2013 ONSC 1279, 115 O.R. (3d) 206. In that case, as in this case, the prosecution of a by-law offence was adjourned pending the outcome of a Rule 14.05 application to the Superior Court.
[9] While Rule 14.05 gives the Superior Court the authority to grant the relief requested in this case, the court retains the discretion to decline to hear the case if it is more appropriately brought in another court or tribunal (R. v. Zundel, 2004 CanLII 15295 (ON SC), 241 D.L.R. (4th) 362). Courts have consistently discouraged litigants from circumventing established procedures or fragmenting the trial process in order to obtain relief prematurely in the Superior Court (see R. v. Multitech Warehouse Direct (Ontario) Inc. (1989), 1989 CanLII 7154 (ON CA), 52 C.C.C. (3d) 175 (Ont. C.A.); Minto Construction Ltd. v. Ontario (Regional Assessment Commissioner, Region No. 3), 1989 CanLII 4252 (ON SC), 68 O.R. (2d) 350 (H.C.); Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257, at paras. 38-45; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 79; DioGuardi Tax Law v. Law Society of Upper Canada, 2015 ONSC 3430, 337 C.R.R. (2d) 101, at paras. 10-15; and C.B. Powell Ltd. v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at paras. 20- 32). While this principle has been most frequently applied to proceedings before administrative tribunals, it also applies to proceedings before inferior courts.
[10] These cases have recognized the practical advantages of having all issues dealt with in one forum rather than bifurcating or fragmenting proceedings. In my view, it would have made far more sense to permit the justice of the peace to hear the constitutional issues raised in this case rather than adjourning those proceedings to bring this application and then returning to the justice of the peace (or proceeding to the Court of Appeal) depending upon the outcome of this application; potentially then returning to the Superior Court if there is an appeal of the justice of the peace’s decision on the merits.
[11] Indeed, in most circumstances I would have dismissed the application notwithstanding the parties’ agreement to proceed in this fashion. Most Charter cases are dependent on the facts of the case, and those facts must be determined by the justice of the peace who hears the charges. The justice of the peace can determine whether to decide the Charter issue at the beginning of the trial or reserve judgment until the end of the case when she has the advantage of having heard all of the evidence in the case (R. v. Levkovic, 2010 ONCA 830, 103 O.R. (3d) 1, at paras. 33-35, aff’d 2013 SCC 25, [2013] 2 S.C.R. 204).
[12] A void for vagueness argument is one of the rare cases in which the specific facts of the case are not central to the determination of whether there has been a violation of the Charter. Under the void for vagueness argument the applicants allege that the words of the by-law are not capable of interpretation. Beyond the need to establish standing to raise the constitutional argument (which has been met in this case because the applicants have both been charged with infringing the impugned by-law) the specific facts in relation to the applicants’ conduct are not relevant. Their point is that regardless of their specific conduct in this case, the by-law is not capable of interpretation.
[13] Accordingly, given the consent of the parties and the unique nature of a void for vagueness argument, I will, with some reservation, consider the merits of the Charter argument raised.
Relevant Statutory Provisions
[14] In order to consider the constitutional issue raised in this proceeding it is necessary to set out the relevant statutory provisions.
[15] In addition to the impugned by-law, consideration must also be given to s. 154 of the Municipal Act, 2001, S.O. 2001, c. 25, which expressly authorizes municipalities to regulate “adult entertainment establishments”:
Restrictions re: adult entertainment establishments:
- (1) Without limiting s. 9, 10 and 11, a local municipality, in a by-law under s. 151 with respect to adult entertainment establishments, may,
(a) despite s. 153, define the area of the municipality in which adult entertainment establishments may or may not operate and limit the number of adult entertainment establishments in any defined area in which they are permitted; and
(b) prohibit any person carrying on or engaged in an adult entertainment establishment business from permitting any person under the age of 18 years to enter or remain in the adult entertainment establishment or any part of it.
Premises
(2) Any premises or any part of them is an adult entertainment establishment if, in the pursuance of a business,
(a) goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations are provided in the premises or part of the premises; or
(b) body-rubs, including the kneading, manipulating, rubbing, massaging, touching or stimulating by any means of a person’s body, are performed, offered or solicited in the premises or part of the premises, excluding premises or part of them where body-rubs performed, offered or solicited are for the purpose of medical or therapeutic treatment and are performed or offered by persons otherwise duly qualified, licensed or registered to do so under a statute of Ontario
Evidence Rule
(4) For the purpose of a prosecution or proceeding under a by-law with respect to adult entertainment establishments, the holding out to the public that the entertainment or services described in subsection (2) are provided in the premises or any part of them is admissible in evidence as proof, in the absence of evidence to the contrary, that the premises or part of them is an adult entertainment establishment.
[16] The City of Barrie by-law at issue defines an “Adult Entertainment Establishment – Class B” as follows:
2.1.2.0.0 ADULT ENTERTAINMENT ESTABLISHMENT – CLASS B – means any premises or part thereof in which entertainment is offered which is designed to arouse or result in an erotic or sexual response or sensation from any person viewing, observing, or otherwise being subjected or exposed to the entertainment. Shall include but is not limited to adult entertainment parlours.[^1]
[17] As can be seen, the Barrie by-law uses a definition of “adult entertainment establishment” that is close to but not identical to the Municipal Act, 2001. The Act uses the phrase “designed to appeal to erotic or sexual appetites or inclinations”, while the Barrie by-law uses the phrase “designed to arouse or result in an erotic or sexual response or sensation”.
[18] The term “entertainment” is defined by clause 2.1.16.0.0 as follows:
ENTERTAINMENT – for the purpose of an Adult Entertainment Establishment – Class A or Adult Entertainment Establishment – Class B, means and shall include but is not limited to performances, the performing of an artistic work, dramatic work, musical work, dance, or similar activity, display by a person, or encounter actually carried on by a person.
[19] The by-law also has a preamble (cl. 1) that is relevant to the interpretation of the by-law as a whole. It sets out the purposes of the by-law, including regular inspections of such premises to ensure the minimum age of employees engaged in adult entertainment, to ensure that such establishments have valid liability insurance, and to “ensure that the health and safety of individuals is protected by prohibiting certain activities which may otherwise lead to the spread of communicable disease through sexual contact”.
[20] The term “sexual contact” is defined by clause 2.1.36.0.0 as:
SEXUAL CONTACT – means, but is not limited to, kissing, licking, fondling, sucking of breasts or genitals, digital penetration, fellatio, cunnilingus, masturbation, ejaculation, or intercourse.
[21] Pursuant to cl. 5.1.0.0.0 of the by-law: “No person shall operate, maintain, carry on, or permit the operation, maintenance or carrying on of an Adult Entertainment Establishment – Class B within the City without first having obtained a licence to do so.”
[22] Persons working as adult entertainers in such establishments are prohibited from touching or having any sexual contact with patrons or other employees (cls. 5.9.5.0.0-5.9.6.0.0).
[23] Finally, cl. 3.62.0.0.0 provides for a maximum penalty of $25,000 or imprisonment for a term not exceeding one year, or both. The availability of a term of imprisonment as a potential penalty engages the right to liberty under the Charter, s. 7.
Void for Vagueness
[24] The cases dealing with vagueness must be divided into two categories: those decided prior to 1992 and those decided after the Supreme Court of Canada’s decision in R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606. The pre-1992 decisions must be approached with some caution because the Supreme Court’s explanation of the constitutional principle of vagueness in Nova Scotia Pharmaceutical represented a significant departure from the analysis employed in some of the previous cases. This distinction was with respect to both the meaning of “void for vagueness” and the application of that principle to different kinds of laws. Prior to Nova Scotia Pharmaceutical the threshold for finding a law void for vagueness appears to be much lower, and the threshold for municipal by-laws appears to be even lower.
[25] In Nova Scotia Pharmaceutical the court synthesized the previous decisions relating to vagueness and developed five propositions with respect to the vagueness jurisprudence. The two propositions most relevant to the present case are, at para. 28:
The “doctrine of vagueness” is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion….
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….
[26] The court concluded, at para. 42, that “the threshold for finding a law vague is relatively high. … the content of the notion has evolved around intelligibility.”
[27] One important aspect of the principle is, at para. 53:
A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute. Such is the crux of the concern for limitation of enforcement discretion. When the power to decide whether a charge will lead to conviction or acquittal, normally the preserve of the judiciary, becomes fused with the power to prosecute because of the wording of the law, then a law will be unconstitutionally vague.
[28] The court gave as an example of a vague law a vagrancy ordinance in which the “words of the ordinance had no substance to them, and they indicated no particular legislative purpose. They left the accused completely in the dark, with no possible way of defending himself before the court” (at para. 54). This vagrancy example was derived from the United States Supreme Court decision in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), in which the ordinance included among its definitions of vagrants “rogues and vagabonds”, “habitual loafers” and “persons wandering or strolling around from place to place without any lawful purpose or object”. In Papachristou, Justice Douglas concluded, at para. 162, that the law was vague both in the sense that it failed to give fair notice and because it encouraged “arbitrary and erratic arrests and convictions.”
[29] In Nova Scotia Pharmaceutical the Supreme Court of Canada recognized that vagueness requires unintelligibility, not simply uncertainty. A law should not be declared void simply because it requires judicial interpretation in order to determine its application to a particular situation. Interpretation of general provisions in particular cases is precisely the role of the judiciary, at paras. 60–63:
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. [Emphasis added.]
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.
[30] This analysis gave substantive meaning to the principle of vagueness. Vagueness requires unintelligibility rather than imprecision or flexibility. The fact that some words in a statute may give rise to legal debate does not make them vague. The fact that a law creates areas of risk and legal consequences cannot always be predicted with certainty does not make a law void for vagueness. The court summed up the doctrine of vagueness, at para. 71: “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.”
[31] In addition to the substantive content of the vagueness doctrine the court also recognized that this one standard applied to all enactments “irrespective of whether they are civil, criminal, administrative or other”, at para. 70:
The citizen is entitled to have the State abide by constitutional standards of precision whenever it enacts legal dispositions. In the criminal field, it may be thought that the terms of the legal debate should be outlined with special care by the State. In my opinion, however, 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.
[32] This last principle becomes important to the analysis in the case at hand because the language employed by the impugned Barrie by-law is almost identical to s. 154 of the Municipal Act, 2001. As indicated above, the Municipal Act, 2001 uses the term “designed to appeal to erotic or sexual appetites or inclinations”, while the by-law uses the term “designed to arouse or result in an erotic or sexual response or sensation”. If the by-law is void for vagueness, then the same language in the Municipal Act, 2001, which purports to authorize the Barrie by-law (and the by-laws regulating adult entertainment establishments in other municipalities), would be equally suspect.
[33] The principles set out in Nova Scotia Pharmaceuticals have been consistently reaffirmed by the Supreme Court of Canada. In Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031, at para. 47, the court stated:
In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision. This is because the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an “area of risk”. This does not necessitate an exercise in strict judicial line-drawing because, as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibited conduct. In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the “mediating role” of the judiciary (Nova Scotia Pharmaceutical Society, supra, at p. 641). Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate.
[34] The court emphasized the “mediating role” of the judiciary to interpret the words of the statute in order to determine the application in particular fact situations, at para. 49:
The use of broad and general terms in legislation may well be justified, and s. 7 does not prevent the legislature from placing primary reliance on the mediating role of the judiciary to determine whether those terms apply in particular fact situations.
In particular, a deferential approach should be taken in relation to legislative enactments with legitimate social policy objectives, in order to avoid impeding the state’s ability to pursue and promote those objectives…. The s. 7 doctrine of vagueness must not be used to straight-jacket the state in social policy fields.
[35] The court in Canadian Pacific also discusses, at para. 73, a concept it refers to as “peripheral vagueness, which arises where a statute applies without question to a core of conduct, but applies with uncertainty to other activities.” Justice Gonthier, at para. 73, noted “that the core-periphery problem is encountered in relation to virtually every legislative provision, and is an inevitable result of the imprecision of human language.”
[36] The reference to “peripheral vagueness” is relevant to the regulation of adult entertainment establishments because the applicants’ argument in this application is one of peripheral vagueness. There is no question that the definition in the by-law would apply to establishments in which female dancers remove all or most of their clothing (full or partial nudity), but, the applicants argue, the provision is vague as applied to other establishments such as a club with male dancers.
[37] In addition, the court stated, at para. 78, that an analysis of “reasonable hypotheticals” had no place in vagueness analysis under Charter s. 7 (unlike, for example, the analysis under Charter s. 12). The court described the focus of the vagueness analysis, at para. 79, as follows:
Where a court is faced with a vagueness challenge under s. 7, the focus of the analysis is on the terms of the impugned law. The court must determine whether the law provides the basis for legal debate and coherent judicial interpretation. As I stated above, the first task of the court is to develop the full interpretive context surrounding the law, since vagueness should only be assessed after the court has exhausted its interpretive function. If judicial interpretation is possible, then an impugned law is not vague. A law should only be declared unconstitutionally vague where a court has embarked upon the interpretive process, but has concluded that interpretation is not possible. In a situation, such as the instant case, where a court has interpreted a legislative provision, and then has determined that the challenging party’s own fact situation falls squarely within the scope of the provision, then that provision is obviously not vague.
[38] Similarly, in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, the Supreme Court considered the term “reasonable under the circumstances” in s. 43 of the Criminal Code, R.S.C. 1985, c. C-46, which provided a defence to a charge of assault for teachers and parents who apply reasonable force by way of correction against children. In its analysis, at para. 17, the majority distinguished between “ad hoc discretionary decision making” and judicial interpretation, and reiterated the principle that the existence of “areas of uncertainty” does not condemn a law as vague:
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.
[39] Finally, a helpful explanation of “void for vagueness” can be found in the Court of Appeal for Ontario’s decision in Cochrane v. Ontario, 2008 ONCA 718, 92 O.R. (3d) 321, at para. 44, where the court sets out the following summary of the Supreme Court’s vagueness principles:
These cases demonstrate that a law will not be struck down as being vague simply because reasonable people might disagree as to its application to particular facts. No doubt individuals, even experts, may disagree about what is in the “best interests of the child”, whether a particular contract would “unduly” lessen competition, whether a specific political issue is “particularly associated” with a given political party, or whether a dominant characteristic of a publication is the “undue exploitation of sex”. Yet each one of those phrases has been held to have sufficient precision to survive s. 7 scrutiny. In these and other areas of social or regulatory policy, the fact that identification and classification does not lend itself to linguistic certainty will not defeat laws which provide a degree of clarity capable of supporting intelligible debate.
[40] The Court of Appeal’s reference to “undue exploitation of sex” is derived from the definition of obscenity in s. 163(8) of the Criminal Code, which was upheld by the Supreme Court of Canada in R v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452. While not a Charter s. 7 case, the court’s s. 1 analysis did include a vagueness component. Notwithstanding the unending legal debate and uncertainty regarding the interpretation of this phrase, the Supreme Court held that it was capable of legal interpretation. Courts continue to grapple with the interpretation of this provision and its application to specific facts (see R. v. Smith, 2005 CanLII 23805 (ON CA), 76 O.R. (3d) 435, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 70).
[41] It is significant that the Supreme Court of Canada has never invalidated a law as being void for vagueness despite numerous cases where the issue is raised (see Cochrane, at para. 43, for a “long list of laws” upheld by the Supreme Court). This demonstrates that the Supreme Court meant what it said when it stated in Nova Scotia Pharmaceuticals, at para. 42, “the threshold for finding a law vague is relatively high.”
Vagueness and Municipal By-laws
[42] The applicants, however, point to a number of lower court decisions in which by-laws with similar wording to the Barrie by-law have been invalidated on vagueness grounds. An examination of these cases indicates that they all have their genesis in a 1983 decision of the Court of Appeal for Ontario, which predated Nova Scotia Pharmaceuticals by nearly a decade, and, in my view, relied on a vagueness analysis with a much lower threshold than the one later adopted by the Supreme Court of Canada.
[43] In Hamilton Independent Variety and Confectionary Stores Inc. v. Hamilton (City) (1983), 1983 CanLII 3114 (ON CA), 143 D.L.R. (3d) 498 (Ont. C.A.), the Court of Appeal considered the validity of a Hamilton by-law that regulated the provision of erotic “goods”, including magazines. The by-law at issue in that case was not concerned with the provision of erotic “services” or “entertainment”.
[44] In Hamilton Independent Variety the Hamilton by-law was authorized by the 1978 version of the Municipal Act, R.S.O. 1970, c. 284, as amended by S.O. 1978, c. 17. Section 368b(9) of that Act defined “adult entertainment parlour” as “any premises or part thereof in which is provided, in pursuance of a trade, calling, business or occupation, goods or services appealing to or designed to appeal to erotic or sexual appetites or inclinations.”
[45] This definition is substantially similar to the current definition in s. 154(2) of the Municipal Act, 2001: “goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations are provided in the premises or part of the premises”. The phrase “designed to appeal to erotic or sexual appetites or inclinations” appears in both versions.
[46] The 1978 version of the Municipal Act defined “services designed to appeal to erotic or sexual appetites or inclinations” to include “services of which a principal feature or characteristic is the nudity or partial nudity of any person”. This latter definition does not appear in the Municipal Act, 2001.
[47] The Hamilton by-law at issue repeated verbatim the Municipal Act definition of the phrase “adult entertainment parlour”.
[48] The Court of Appeal stated, at para. 17:
[T]he principle flaw in the appellant municipality’s attempt to licence and control the sale of “erotic” magazines is the vagueness and lack of certainty in the definition of “erotic” goods. As pointed out earlier, the only definition of such goods in the by-law is taken, verbatim, from the definition of “adult entertainment parlour” in s. 368b(9)(a). In relation to services appealing or “designed to appeal to erotic or sexual appetites or inclinations”, the legislature and the by-law have been specific enough to include services of which a principal feature or characteristic is the nudity or partial nudity of any person or services advertised in a certain way. In relation to goods, there is no definition, amplification or description of what magazines are meant to be included in the general words “appealing to or designed to appeal to erotic or sexual appetites or inclinations.”
[49] The court concluded, at para. 19, that “[i]t is impossible for a store owner reading this by-law to decide whether he is in fact selling ‘erotic’ magazines covered under it.”
[50] This conclusion was bolstered by the position of counsel for the municipality that a store selling Playboy and Penthouse magazines would not come under the regulation. The court was understandably puzzled by this position and stated, at para. 19, “[i]f these well-known magazines are not covered by the by-law’s broad definition, how is the … licence holder to determine what publications are covered and required to be wrapped and placed beyond the reach of children?”
[51] The Court of Appeal’s decision relies on the common law rule and a number of pre-Charter cases that a municipal council framing its by-laws “is to express its meaning with certainty” (at para. 20) and that the “obligation of clarity is to enable every citizen to understand the by-law in order to comply with it” (at para. 21). The court also ventured into free expression analysis affirming, at para. 25, “the necessity of explicitness and specificity so that the ‘well-intentioned citizen’ of common intelligence will not have to guess at the meaning of a by-law is particularly important in a by-law purporting to license and regulate the sale of magazines.”
[52] It is immediately apparent that the test for vagueness relied on by the Court of Appeal in Hamilton Independent Variety is not the same as the test for vagueness developed by the Supreme Court of Canada in Nova Scotia Pharmaceuticals and its progeny. The Court of Appeal test requires “certainty” so that “every citizen” will know how to comply with the by-law. In contrast, the Supreme Court of Canada expressly rejected certainty as an unrealistic standard in legislative drafting, and speaks instead of “risk zone”, “area of risk”, “sufficient guidance for legal debate” and acknowledges that in many circumstances “no definite prediction can be made”.
[53] In addition, the Court of Appeal appears to hold the municipal by-law to a higher standard than the provincial legislature. The court states, at para. 26:
[I]t is no answer to the vagueness and uncertainty argument in this case to say that the by-law incorporates the exact definitions of the Municipal Act. While the definition in an enabling legislation may deal in generalities when broadly granting the power to enact a by-law, the by-law itself must be sufficiently specific to enable the proposed licensee to perceive his obligations in advance. The mere repetition of the formula or definition in the Municipal Act, without specifying particulars, fails to give any indication of the scope of the by-law.
[54] This conclusion appears to conflict with the Supreme Court of Canada’s decision in Nova Scotia Pharmaceuticals, at para. 70, where “irrespective of whether [the enactments at issue] are civil, criminal, administrative or other” there is one “minimal general standard”. Indeed, if the words of the by-law are actually “unintelligible” it is difficult to see how the exact same words in the provincial legislation can provide an intelligible standard for delegating by-law making authority to the municipality. The Supreme Court has held that “municipalities derive their legislative powers from the Provincial Legislature and must, consequently, frame their by-laws strictly within the scope delegated to them by the Legislature” (City of Verdun v. Sun Oil Co., 1951 CanLII 53 (SCC), [1952] 1 S.C.R. 222, at p. 228). Accordingly, if the provincial legislation authorizing the by-law is unintelligible and void for vagueness, then the municipality has no valid authority to enact the by-law regardless of the precision it employs. On the other hand, if the court can interpret the words in the provincial legislation, it should be able to give some meaning to the same words in the municipal by-law.
[55] Hamilton Independent Variety was followed by the Court of Appeal in the case of Niagara Falls (City) v. Jorgensen, 1995 CanLII 7021 (ON CA), 84 O.A.C. 149. In that case the Court of Appeal held that the phrase “goods or services appealing to or designed to appeal to erotic or sexual appetites or inclinations” was void for vagueness as applied to “goods” but not “services” because the by-law contained a definition of services—services of which a principal feature or characteristic is the nudity or partial nudity of any person—but did not contain a definition of “goods”. The Court of Appeal followed Hamilton Independent Variety, but made no reference to the Supreme Court of Canada’s decision in Nova Scotia Pharmaceuticals.
[56] The issue of the vagueness of the phrase “services designed to appeal to erotic or sexual appetites or inclinations” also arose in the case of R. v. Ware, 2005 CanLII 21094 (ON CA), 197 C.C.C. (3d) 198. In that case, the Court of Appeal for Ontario considered a Windsor by-law that prohibited adult entertainment parlours from knowingly permitting their dancers to touch patrons during performances. The principal issue presented was whether the “no touching” component of the by-law applied at all times or only when the dancers were nude or partially nude. The by-law defined “services designed to appeal to erotic or sexual appetites or inclinations” as “including services of which a principal feature or characteristic is the nudity or partial nudity of any person” (at para. 14). The issue was whether the use of the word “including” was intended as a comprehensive definition or just a possible example of a more expansive definition.
[57] The Court of Appeal held, at para. 29, that “the word ‘includes’ in … the by-law must be interpreted in the exclusive or comprehensive ‘mean and include’ fashion.” One of the reasons for reaching this conclusion was that “without the ‘nudity or partial nudity’ overlay to the definition of ‘services designed to appeal to erotic or sexual appetites or inclinations’, the by-law would be void for vagueness in a constitutional law sense” (at para. 30).
[58] Again, the Court of Appeal followed the Hamilton Independent Variety decision without any consideration of the Supreme Court of Canada’s decision in Nova Scotia Pharmaceuticals.
[59] None of these decisions invalidated the phrase “services designed to appeal to erotic or sexual appetites or inclinations”, although they do indicate that this is because this phrase was defined to mean “services of which a principal feature or characteristic is the nudity or partial nudity of any person”, a definition which, as indicated above, was in s. 225(9) of the Municipal Act, R.S.O. 1990, c. M-45, but was not included in the revised Municipal Act, 2001. The applicants take the position that these cases stand for the proposition that without this definition, the term “services designed to appeal to erotic or sexual appetites or inclinations” in a by-law cannot survive a vagueness challenge.
[60] The most recent decision to follow Hamilton Independent Variety is 2312460 Ontario Ltd. v. Toronto (City). This case considered a City of Toronto by-law that prohibited adult entertainment establishments as defined by the Municipal Act, 2001. The establishment in question sold “adult novelties” and did not offer any services.
[61] The Superior Court found, at para. 12, that “the City’s position that the by-law is legal as its definition of an ‘adult entertainment establishment’ is the same as in the Municipal Act, 2001 is untenable given the jurisprudence.” The court set out a comprehensive analysis of the Court of Appeal by-law cases described above, and compared them to the Supreme Court’s void for vagueness analysis in Nova Scotia Pharmaceuticals and succeeding cases. As a result, the court concluded that the Supreme Court’s void for vagueness analysis was not significantly different than the analysis applied by the Court of Appeal in Hamilton Independent Variety, at para. 34:
Applying the jurisprudence concerning the test for vagueness in a zoning by-law, the issue is whether a reasonably intelligent person could determine whether or not they were in violation of the by-law. The by-law must be clear enough that citizens can know what behaviour is impermissible under the by-law. … I do not consider the approach in the Supreme Court decisions, which consider vagueness with reference to the Charter, and the decisions of the Ontario Court of Appeal which consider vagueness of zoning by-laws with reference to the rule of law or common law principles to be significantly different. Whether a law is being declared void for vagueness contrary to the Charter or through the operation of the rule of law, the analysis is similar. The object of the exercise is to decide whether the law is sufficiently clear to allow a citizen to understand it in order to comply with it. To decide whether it is clear, the court is to consider the provisions in the context and to recognize the mediating role of the judiciary.
[62] Accordingly, the court found that the by-law at issue in that case was “vague and void for uncertainty”, at para. 36:
For example, the by-law does not define the word “goods”. Moreover, what a person considers to be erotic or appealing to their sexual appetites or inclinations can vary widely. It is unclear, in fact, whose erotic or sexual appetites or inclinations the by-law is referring. The court in Hamilton dealt with a by-law which incorporated the same section of the Municipal Act as the by-law at issue in this case. The Court of Appeal was unable to determine what was meant by “appealing to erotic or sexual appetites or inclinations.” In Hamilton, storeowners were placed in the same situation as magazine vendors. As there was no definition, amplification or description of what magazines were meant to be included in the general words “appealing to or designed to appeal to erotic or sexual appetites or inclinations”, the court concluded that it was impossible for a store owner reading this by-law to decide whether he was in fact selling “erotic” magazines covered under it. Similarly, in the provisions of the by-law before me, it is impossible to tell whether an item meets the definition of “erotic”. There is no guidance in the by-law on the term “designed to appeal.” That term could relate to the design of the goods, packaging, marketing, location or function of the item. In my view, no reasonably intelligent person could determine when he was violating the by-law with any degree of certainty.
[63] Indeed, the court went so far as to determine that the words of s. 154 of the Municipal Act, 2001 were themselves unintelligible, stating, at para. 37, “no citizen would be able to appreciate what is meant by the words ‘adult entertainment establishments as defined by the Municipal Act, 2001’”. If this is true, then the provisions of s. 154 of the Municipal Act, 2001 would themselves be void for vagueness, and there would be no way to know whether any municipal by-law regulating adult entertainment establishments was actually intra vires the Municipal Act, 2001.
[64] As I have indicated above, at paras. 52-54, I do not agree that the approach taken by the Supreme Court of Canada in Nova Scotia Pharmaceutical is the same as that taken by the Ontario Court of Appeal in Hamilton Independent Variety. As the Supreme Court makes clear in Nova Scotia Pharmaceutical, at para. 62, “[i]t 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.”
[65] The approach taken by the court in 2312460 Ontario Ltd. v. Toronto (City) is the one take by the Court of Appeal in Hamilton Independent Variety and requires a higher degree of precision than is required by the Supreme Court. The court in 2312460 Ontario Ltd. v. Toronto (City) relies on Hamilton Independent Variety, to conclude, at para. 40, that “[t]he duty of a municipal council in framing a by-law is to express its meaning with certainty”. But the Supreme Court of Canada rejected certainty as a standard, noting, at para. 28, “the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate”. The fact that reasonable people (and even experts) will disagree about what may be “appealing to or designed to appeal to erotic or sexual appetites or inclinations” does not render the phrase void for vagueness. No doubt the City of Toronto could have used more precise words and specific definitions to give more precision to its by-law, but that is not the test under Nova Scotia Pharmaceutical.
[66] The court in 2312460 Ontario Ltd. v. Toronto (City) proffers as a hypothetical, at para. 37, that a “good such as a dog collar and leash could be viewed as erotic or appealing to the sexual appetite by one person and considered not erotic by another.” I do not know whether that really qualifies as a reasonable hypothetical; recall, however, the Supreme Court of Canada’s admonition in Canadian Pacific, at para. 78, that “reasonable hypotheticals have no place in the vagueness analysis under s. 7” of the Charter. One can always imagine hypothetical absurdities where some level of judicial interpretation or mediation will be required to add precision to the words used. As the Supreme Court stated in Canadian Pacific, at para. 73, “the core-periphery problem is encountered in relation to virtually every legislative provision”. That is not, however, sufficient for the judiciary to throw up its hands and declare a statute beyond interpretation.
Application of the Vagueness Principles
[67] Applying the void for vagueness principles as set out in Nova Scotia Pharmaceuticals, and subsequent cases, to the impugned by-law, I conclude that the challenged definition sufficiently delineates an area of risk and provides a basis for intelligible debate and interpretation.
[68] It is well established that statutes should be interpreted contextually, according to their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the legislating body (see Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, and cases cited there).
[69] In R. v. Levkovic, at paras. 47-48, the Supreme Court of Canada stated:
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.
[70] The impugned by-law must be viewed in the context of the regulation as a whole, which includes both the preamble to the by-law and s. 154 of the Municipal Act, 2001 that authorizes the by-law.
[71] Section 154 of the Municipal Act, 2001 is particularly important because in R. v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674, at p. 689, the Supreme Court of Canada held that “municipal by-laws are to be read to fit within the parameters of the empowering provincial statute where the by-laws are susceptible to more than one interpretation.”
[72] Section 154(2)(a) of the Municipal Act, 2001 defines “adult entertainment establishment” as one that provides “goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations are provided in the premises or part of the premises.” As indicated above this definition is closely tracked by the impugned Barrie by-law. I will not undertake to consider whether any differences between the two versions are significant; that will be a task for the court that hears the prosecution. My analysis will be restricted to a determination of whether the Municipal Act, 2001 definition assists in the interpretation of the Barrie by-law.
[73] Prior to the 2001 amendments to the Municipal Act this would have been straightforward because s. 225(9) the Municipal Act included the very definition the applicants complain is lacking in this case: “services of which a principal feature or characteristic is the nudity or partial nudity of any person”. It is the lack of this definition that the applicants, based on Hamilton Independent Variety and Ware, rely on to support their vagueness claim.
[74] It is not clear why this definition was deleted from the Municipal Act, 2001. I was not provided with any Hansard that explained this amendment. It could be that the Legislature wanted to give municipalities the scope to provide their own definition, although, as indicated above, this assumes that the courts can construe some intelligible interpretation of the words “designed to appeal to erotic or sexual appetites or inclinations” so as to know whether any particular by-law falls within the intended scope of the authorizing legislation.
[75] Reading s. 154(4) together with s. 154(2), the easiest definition of an “adult entertainment establishment” under the Municipal Act, 2001 is an establishment that “holds out to the public” that it provides services or entertainment that are “designed to appeal to erotic or sexual appetites or inclinations” or offers “body rubs” or “massaging”. That definition alone delineates a core area of risk for most adult entertainment establishments. In a world in which it pays to advertise, most adult entertainment establishments such as strip clubs and body rub parlours are not shy about self-identifying. That well-defined core is not exhaustive, but it provides a point of reference that identifies the essential features of an adult entertainment establishment.
[76] Whether or not there is a reference to “nudity or partial nudity” in the statutory definition, it is open to a court to consider the presence or absence of nudity or partial nudity in determining whether the entertainment or services are “designed to appeal to erotic or sexual appetites or inclinations”. Establishments providing entertainment or services characterized by performances that feature nudity or partial nudity are aware that their activities fall within the core area of risk. On the other hand, in the absence of nudity or partial nudity, the City of Barrie may find it very difficult to prove that a service or entertainment is “designed to appeal to erotic or sexual appetites or inclinations” and obtain a conviction. As Chief Justice McLachlin said in Canadian Foundation for Children, at para. 16: “Judicial decisions may properly add precision to a statute.”
[77] The preamble to the by-law sets out its legitimate social policy objectives including to ensure the minimum age of employees engaged in adult entertainment and to “ensure that the health and safety of individuals is protected by prohibiting certain activities which may otherwise lead to the spread of communicable disease through sexual contact”: “sexual contact” is defined as “means, but is not limited to, kissing, licking, fondling, sucking of breasts or genitals, digital penetration, fellatio, cunnilingus, masturbation, ejaculation, or intercourse.” This preamble and definition may also assist a court in deciding whether a service or entertainment fits within the purpose of the by-law and fall within the definition of “designed to appeal to erotic or sexual appetites or inclinations”.
[78] Also relevant to the interpretative undertaking is the fact that the words “designed to appeal to the erotic or sexual appetite” have been interpreted in previous decisions. See for example the Court of Appeal for Ontario’s decision in Las Vegas Restaurant & Tavern Ltd. v. Zanzibar Tavern Inc., 1996 CanLII 1019 (ON CA), 90 O.A.C. 172, at para. 7, aff’g (1995) 27 M.P.L.R. (2d) 272 (Ont. Gen. Div.), which upheld the trial judge’s decision that a “head-shop” selling drug paraphernalia, rock posters, T-shirts and some accessories and goods with sexual connotations did not qualify as an adult entertainment parlour because there was “no full nudity and little if anything that could be said to be designed to appeal to the erotic or sexual appetite. … The use established … was not the sale of goods designed to appeal to erotic or sexual appetites or inclinations.”
[79] The Court of Appeal concluded that the findings of the trial judge were fully supported by the evidence. This decision indicates that while there will inevitably be areas of risk and uncertainty, courts are able to interpret the words “designed to appeal to erotic or sexual appetites or inclinations” and apply them to specific fact situations.
[80] The language in s. 154 of Municipal Act, 2001 is close enough to the language of the impugned Barrie by-law—“designed to arouse or result in an erotic or sexual response or sensation”—that if the former provides sufficient guidance for judicial interpretation, so too must the latter. As indicated above, the Supreme Court of Canada’s decision in Greenbaum holds that if there is any ambiguity in this regard, the municipal by-law is to be read to fit within the parameters of the empowering provincial statute.
[81] One significant difference between the two is that s. 154 refers only to “designed”, whereas the Barrie by-law refers to “designed … or result in”. Both are, in part, questions of evidence. The onus is on the city to show that the service or entertainment was designed to arouse or result in an erotic or sexual response or sensation. The farther the activity is removed from the core of the area of risk, the more difficult it will be for the municipality to prove a violation of the by-law. This is not a case, like the vagrancy law in the Papachristou case, where a conviction will automatically flow from the decision to prosecute. I do not know, for example, what evidence the city would rely on to prove that a service or entertainment “resulted in” an erotic or sexual response. To the extent that the definition of “adult entertainment establishment” extends beyond strip clubs and body rub parlours, the reference to “designed to arouse or result in an erotic or sexual response or sensation” is capable of limiting the reach of the by-law.
[82] For example, the applicants’ counsel takes the position that, due to differences in male and female sexuality, entertainment that may be “designed to arouse or result in an erotic or sexual response or sensation” in men would result in laughter or amusement among women. She gives as an example the topless lap-dancers at issue in this case. That may be a valid argument, but it is one that the Justice of the Peace who hears this case can consider in deciding whether the city has met its onus to prove a violation of the by-law on the facts of this particular case.
Conclusion
[83] For these reasons I would dismiss the application.
[84] If the parties cannot agree on costs the respondent City of Barrie may file submissions in the court office of no more than three pages plus a bill of costs within 20 days of the release of this decision, and the applicants may reply on the same terms within 10 days of receiving the respondent’s submissions.
Justice R.E. Charney
Released: March 29, 2016
CITATION: Chernard and Bunn v. City of Barrie, 2016 ONSC 2120
BARRIE COURT FILE NO.: CV-15-1541
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Michel Chenard – and – Bruce Bunn
Plaintiffs
– and –
City of Barrie
Defendant
REASONS FOR JUDGMENT
Justice R.E. Charney
Released: March 29, 2016
[^1]: A Class A adult entertainment establishment sells or rents goods and includes establishments such as adult novelty shops and video shops. This class of licenses and the definition is not at issue in this case.