Court File and Parties

Court File No.: CR-17-0000119-00AP Date: 2018-07-31 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Kenneth Jones, Respondent

Counsel: F. Schwalm, for the Crown No one appearing for the Respondent

Heard: July 25, 2018

Reasons for Decision

Di Luca J.:

[1] The Crown appeals the dismissal of three charges against the Respondent Mr. Jones, following a trial before Justice R.W. Beninger of the Ontario Court of Justice on April 16 and May 1, 2018. The three charges included one count of failing to comply with a s. 161 order, and two counts of fail to comply with probation. The s. 161 order prohibited Mr. Jones from attending at a number of locations, including a “community centre”. The fail to comply probation charges included terms requiring Mr. Jones to “keep the peace and be of good behaviour”. At trial, it was agreed that a conviction or acquittal on the main count dealing with the alleged breach of the s. 161 order would determine the two remaining counts.

[2] The background facts can be briefly stated as follows. On July 27, 2016, Mr. Jones was convicted of indecent exposure to a person under the age of 16. A s. 161 order was imposed with a duration of 10 years. This order included the statutory term that Mr. Jones not attend at a “community centre”. The order also included an exception that Mr. Jones could attend if he was in direct company of an adult aware of his record for sexual offences.

[3] On January 13, 2017, Mr. Jones attended at the Evinrude Centre in Peterborough to attend an appearance by the Prime Minister. In his testimony at trial, Mr. Jones acknowledged that he was bound by an order prohibiting him from attending at a “community centre”. He also acknowledged that the Evinrude Centre was known to him as a community centre.

[4] Nonetheless, he testified that he attended the centre in order to hear the Prime Minister speak at the Town Hall meeting. He knew it would be a popular event so he sent an email to organizers in advance so as to reserve a spot. He had no intention of being anywhere near the hockey arena or the children who were present.

[5] On the day in question, a school day, there was a children’s hockey tournament going on at the arena that forms part of the community centre. The Prime Minister was scheduled to appear in a banquet or recreation room that is part of the same building, and connected by a doorway to the arena. The arresting officer, who knew Mr. Jones from previous dealings, saw him in line waiting to get into the Prime Minister’s function. The officer arrested him for breaching the s. 161 order.

[6] The trial judge made a number of factual findings.

[7] First, he found that the Evinrude Centre was a community centre as that term is specified in s. 161 of the Code. This finding rests on solid footing as Mr. Jones himself agreed that the Evinrude Centre was known to him as a community centre.

[8] Second, while not directly relevant to issues at trial, the trial judge found that there were children present both at the hockey tournament and at the Prime Minister’s function.

[9] Third, he accepted the Respondent’s evidence relating to what happened, including his purpose for attending the community centre, which was to attend a town hall meeting with the Prime Minister.

[10] The trial judge then went on to assess the issue of mens rea. After referring to the Court of Appeal’s decision in R. v. Perron, 2009 ONCA 498, the trial judge concluded:

Applying the standard applied by the Ontario Court of Appeal in R. v. Perron, I am not sure that I can find that Mr. Jones would reasonably know that he could not attend the Evinrude Centre in these circumstances.

[11] He therefore dismissed the fail to comply with s. 161 charge, and consequently also dismissed the two fail to comply probation charges.

Analysis

[12] The Crown argues that the learned trial judge erred in law on the issue of mens rea. In effect, the trial judge imported an additional mental element into the offence that is not warranted given a proper construction of the offence provision.

[13] For the reasons that follow, I agree.

[14] Orders made under s. 161(1)(a) of the Code prohibit an offender from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre…

[15] The prohibition on attending a park or swimming area is modified by the inclusion of the word “public” and the phrase “where persons under the age of 16 years are present or can reasonably be expected to be present”. Clearly, Parliament did not view the prohibition as applying to all parks or public swim areas, only those which are public and where children under the age of 16 are present or reasonably expected to be present; see R. v. Perron at para. 14 and R. v. D’Angelo (2002), 8 C.R. (6th) 386 (Ont. C.A.).

[16] The phrase “community centre” contains no such modifying language. Community centres perhaps by definition are public, and are areas where children under 16 are reasonably expected to be present. A “community centre” has been interpreted to include a place where people of the community can congregate for various purposes including recreational, social or educational purposes, see R. v. Allaby, 2017 SKCA 25, at paras. 29-38.

[17] The analysis of the Court of Appeal in Perron must be understood in context. The Court was trying to determine what a “public park” was for the purpose of the offence. The Court had to address the fact that a park might refer to a broad range of locations, and that as a matter of fairness an accused needed to be provided with fair notice as to what might or might not fall into the definition. It is within this context that the Court concluded that the accused, who had been found working at a game booth a public fair attended by children, held at a location designated as a public park, would reasonably have known that he could not attend the location.

[18] The Perron decision does not alter the mens rea for the offence of failing to comply with a s. 161 order. Rather, it seeks to define the term “public park” in a manner that is consistent with the intent of the provisions and the requirement of fair notice to an accused.

[19] In this case, there was no issue about whether the place attended by Mr. Jones was a community centre. The trial judge made a factual finding that it was. The Respondent admitted that he knew it was a community centre.

[20] The trial judge appears to have used the Respondent’s evidence regarding his purpose for attending at the community centre as relevant to the Respondent’s knowledge of the nature of the prohibition. Indeed, the trial judge finds or at least has a reasonable doubt that Mr. Jones believed in the circumstances that he could attend the community centre.

[21] The difficulty with this position is that if Mr. Jones knew that the Evinrude Centre was a community centre, his purpose for attending there was not relevant. Simply stated, there would be no circumstances under which he would be permitted to be there – save for example the defence of necessity or the exception permitted within the order itself, which permitted him to attend in the direct company of another adult aware of his criminal record.

[22] In my view, the trial judge erred in law in his interpretation of the Perron decision. This error in law tainted the decision and warrants appellate intervention.

[23] The Crown asks that I substitute findings of guilt on all charges and remit the matter back to the trial judge for sentencing.

[24] In my view, a new trial is required. I say this for the following reasons. First, Mr. Jones advanced a defence relating to the exception in the s. 161 order which permitted attendance at a community centre in the presence of an adult who knew of his criminal record. Mr. Jones was arrested outside the event in the parking lot. While he was alone outside the event, he testified that he intended be in the presence of one of the event organizers who knew him and knew of his criminal record. The trial judge appears to have accepted his evidence. If there was an air of reality to this defence, the Crown would have been required to disprove it beyond a reasonable doubt. The trial judge did not address the issue in his Reasons.

[25] Second, in view of the evidence that was adduced before and accepted by the trial judge, in particular that the Respondent was simply planning to attend a town hall meeting where the Prime Minister was speaking, had notified organizers in advance and was found standing in line with a number of people attending the program, it may be that the Crown should re-consider whether it remains in the public interest to maintain this prosecution in an era of Jordan priorities.

[26] The appeal is allowed, the dismissal of the information is set aside and a new trial is ordered before a different judge of the Ontario Court of Justice.

Justice J. Di Luca

Released: July 31, 2018

NOTE: These written Reasons are to be considered the official version and takes precedent over the oral Reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Reasons that are to be relied upon.