R. v. Heywood [1994] 3 S.C.R. 761: Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks -- Convicted sexual offender convicted of loitering by play area in public park -- Definition of "loitering"-- the right not to be subjected to cruel and unusual treatment or punishment, the right not to be arbitrarily detained or imprisoned

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks -- Convicted sexual offender convicted of loitering by play area in public park -- Definition of "loitering" -- Whether infringement of s. 7 (the right to life, liberty and security of the person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence) -- If so, whether justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11(d), (h), 12 -- Criminal Code, R.S.C., 1985, c. C-46, s. 179(1)(b).

Criminal law -- Sexual conviction -- Loitering -- Definition of "loitering" -- Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks -- Convicted sexual offender convicted of loitering by play area in public park -- Whether infringement of s. 7 (the right to life, liberty and security of the person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence) -- If so, whether justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11(d), (h), 12 -- Criminal Code, R.S.C., 1985, c. C-46, s. 179(1)(b).

Respondent's earlier convictions of sexual assault involving children made him subject to the prohibition in s. 179(1)(b) of the Criminal Code that he not commit vagrancy by loitering near playgrounds, school yards or public parks. On two occasions, respondent, who was carrying a camera with a telephoto lens in a public park near to where children were playing, was stopped by police and questioned as to whether he had a criminal record. On the first occasion, he was warned that a convicted sex offender was not permitted to loiter near a public park, school yard or playground. On the second, he was arrested and charged under s. 179(1)(b) of the Code with two counts of vagrancy -- "at or near a playground" and "in or near a public park" -- and the camera and film with frames focusing on the crotch areas of young girls playing in the park with their clothing in disarray were seized.

The respondent was convicted of the first count. The trial judge found that, even though s. 179(1)(b) infringed ss. 7 and 11(d) of the Charter, these infringements were a justifiable limitation under s. 1. The second count was conditionally stayed under the Kienapple principle. An appeal to the British Columbia Supreme Court was dismissed. The Court of Appeal, however, allowed respondent's appeal and quashed the conviction because the breaches of ss. 7 and 11(d) were not justified. The constitutional questions before this Court queried if s. 179(1)(b) infringed several sections of the Charter, and if so, whether those infringements were justifiable under s. 1. The Charter provisions allegedly infringed were: s. 7 (the right to life, liberty and security of the person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if already found guilty and punished for that offence).

Held (La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed. Section 179(1)(b) violated s. 7 of the Charter and was not justified under s. 1.

Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The word "loiter" in s. 179(1)(b) should be given its ordinary meaning -- to stand idly around, hang around, linger, tarry, saunter, delay, dawdle -- and should not be interpreted as requiring a malevolent intent. None of the dictionary definitions requires a malevolent intent or makes any reference to such a requirement and the jurisprudence considering its meaning in other sections of the Code supports the use of the ordinary meaning in s. 179(1)(b). The ordinary definition is also consistent with section's purpose of protecting children from becoming victims of sexual offences by prohibiting any prolonged attendance in areas often frequented by children.

The concept of malevolent intent (as opposed to a narrower formula such as unlawful intent) raises problems of definition which make it unworkable. It is a concept of very broad scope that is extremely difficult to define. Malevolent intent could mean almost anything, and its definition would be dependent upon the subjective views of the particular judge trying the case.

The legislative debates both on the provision's enactment and later on its reconsideration cannot be used to support the notion of some sort of malevolent intent. These debates, assuming admissibility, were inconclusive for the purpose of determining legislative intent. Indeed, legislative history generally is not admissible as proof of legislative intent in the construction of statutes because it is not reliable evidence. Rather, it may be admissible for the more general purpose of showing the mischief Parliament was attempting to remedy with the legislation.

Section 179(1)(b) restricts the liberty of those to whom it applies. Although a prohibition for the purpose of protecting the public does not per se infringe the principles of fundamental justice, the prohibition in s. 179(1)(b) does so because it restricts liberty far more than is necessary to accomplish its goal. It applies, without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review.

Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. They are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth, the means are too sweeping in relation to the objective.

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

Reviewing legislation for overbreadth as a principle of fundamental justice is simply a matter of balancing the state interest against that of the individual. Where an independent principle of fundamental justice is violated, however, any balancing of the public interest must take place under s. 1 of the Charter. In analysing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective.

Section 7 of the Charter has a wide scope. An enactment, before it can be found to be so broad that it infringes s. 7 of the Charter, must clearly infringe life, liberty or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective. In determining whether a provision is overly broad and not in accordance with the principles of fundamental justice, it must be determined whether the means chosen to accomplish the provision's objectives are reasonably tailored to effect its purpose. Where legislation limits the liberty of an individual in order to protect the public, that limitation should not go beyond what is necessary to accomplish that goal.

Section 179(1)(b) suffers from overbreadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice. The section is overly broad in its geographical ambit. The limitation should be more narrowly defined, to apply only to those parks and bathing areas where children can reasonably be expected to be present. It is also overly broad in that it applies for life, with no possibility of review. Without a review a person who has ceased to be a danger to children (or who indeed never was a danger to children) continues to be subject to the prohibition in s. 179(1)(b). A pardon under the Criminal Records Act or the royal prerogative of mercy, while removing only any disqualification flowing from conviction, does not meet the need for review because of inadequate and insufficient availability. Finally, s. 179(1)(b) applies to all persons convicted of the listed offences, without regard to whether they constitute a danger to children and accordingly is also overly broad in respect to the people to whom it applies.

The absence of notice, too, offends the principles of fundamental justice. Great care is taken to give notice in connection with other provisions of the Code.

It is significant that the new s. 161, enacted after the Court of Appeal's decision, applies only to persons who have committed the listed offences in respect of persons under age fourteen. In addition, the order made pursuant to it is discretionary so that only those offenders constituting a danger to children will be subject to a prohibition. Unlike s. 179(1)(b), the new s. 161 provides for both notice and review of the prohibition and accordingly reduces the significance of the overbreadth factor.

Doubts exist as to whether a violation of the right to life, liberty or security of the person which is not in accordance with the principles of fundamental justice can ever be justified, except perhaps in times of war or national emergencies. Overbroad legislation infringing s. 7 of the Charter is even more difficult to justify and would appear to be incapable of passing the minimal impairment branch of the s. 1 analysis.

The objective of s. 179(1)(b) of protecting children from sexual offences is pressing and substantial. The protection of children from sexual offenses is obviously very important to society. Furthermore, the means employed in s. 179(1)(b), at least in some of their applications, are rationally connected to the objective. However, for the same reasons that s. 179(1)(b) is overly broad, it fails the minimal impairment branch of the s. 1 analysis and so cannot be justified under s. 1 of the Charter.

The remedies of reading in or reading down are not appropriate here. The changes which would be required to make s. 179(1)(b) constitutional would not constitute reading down or reading in but rather would amount to judicial rewriting of the legislation and the creation of an entirely new scheme with a completely different approach to the problem.

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): Section 179(1)(b) should be interpreted as prohibiting the persons affected from being in one of the enumerated places for a malevolent or ulterior purpose related to the predicate offences. The purpose and legislative history of s. 179(1)(b), precedent and statutory context support this interpretation.

The legislative history of s. 179(1)(b) indicated that Parliament considered the word "loiter" to have a different meaning from the word "wander" which was removed from earlier versions of the provision. "Wander" connotes movement without specific intent; "loiter", notwithstanding the common element of idleness, is defined more narrowly and has a variable connotation according to the context.

The Crown's expert psychiatric and psychological evidence was of assistance in understanding the purpose and scope of s. 179(1)(b). The evidence on cross-offending and the difficulty of predicting who will cross-offend or repeat offend justifies some form of restriction on the liberty of persons convicted of sexual offences.

The section has at its foundation a concern for public safety and a desire to aid in the treatment and rehabilitation of offenders. It applies broadly to all persons convicted of the enumerated offences and therefore provides protection not only to children but also to others who could be victims of sexual assault in the listed areas. The areas where the prohibition applies are places where people will generally lower their guard.

A caveat to the general rule that words be given their ordinary meaning arises because the sense of the term "loiter" varies according to its context. The absence of purpose element in the ordinary meaning of loiter can have no application in the context of s. 179(1)(b). Parliament clearly intended to include conduct of convicted sex offenders whose purpose was related to re-offending.

The prohibition contained in s. 179(1)(b) should be narrowed to render the prohibition less intrusive and to tailor it more carefully to the objectives being pursued. Not all loitering should be caught by its prohibition contained in s. 179(1)(b). Rather, the intrusion into the activities of individuals should be tied to some reason of public order. The concern to exclude presence in the enumerated areas for legitimate purposes from criminal prohibition is well-founded. The restriction created by s. 179(1)(b) will not be the same in each of the listed areas.

Analysis of the interaction of other provisions of the Code dealing with a similar subject-matter supports the interpretation that loitering as used in s. 179(1)(b) requires a malevolent purpose. Sections 179(1)(b) and 810.1 read together, however, produce a similar result to that achieved by s. 161 in relation to those convicted prior to the enactment of s. 161. (Section 161 allows a court at the time of sentencing to make an order prohibiting a sexual offender from attending day care centres, school grounds, playgrounds, community centres, or any public park or swimming area where persons under the age of 14 years are present or can reasonably be expected to be present. The s. 161 prohibition is available only in relation to persons who have committed offences against children under age 14.) Section 810.1 allows an application to be made to the provincial court, where there are reasonable grounds to fear that someone will commit certain sexual offences, for an order prohibiting that person from attending areas where children under age 14 are likely to be present. Section 179(1)(b) allows the police to take immediate preventative steps before a previous offender re-offends.

The two primary Charter concerns raised in relation to s. 179(1)(b) pertain to vagueness and overbreadth. Defining loitering in that section as being in an enumerated place for a malevolent or ulterior purpose related to the predicated offences avoids both these problems. A lifetime prohibition of activities with a malevolent or ulterior purpose related to re-offending is not objectionable or over-broad. Such a prohibition would impose a restriction on the liberty of the affected individuals to which ordinary citizens are not subject, but that restriction is directly related to preventing re-offending. The affected persons' history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re-offending justify this minor intrusion which does not breach the principles of fundamental justice.

Section 7 of the Charter was not violated by the absence of any notice of the prohibition contained in s. 179(1)(b). Even though formal notice of the content of s. 179(1)(b) might be preferable, Parliament's decision to provide notice in respect of certain Criminal Code prohibitions cannot be transformed into a principle of fundamental justice.

The allegation that s. 179(1)(b) violates ss. 9, 11(d), (h) and 12 of the Charter are without foundation. The absence of notice, for reasons similar to those relating to overbreadth, did not violate the s. 9 Charter guarantee against being arbitrarily detained or imprisoned. The s. 11(d) Charter right to be presumed innocent until proven guilty was not infringed either for s. 179(1)(b) does not assume recidivism but rather provides the means to prevent it. Anyone charged under s. 179(1)(b) will be presumed innocent and the burden remains on the Crown to prove beyond a reasonable doubt that the accused committed the offence as interpreted. The s. 11(h) right against double jeopardy was not violated. Section 179(1)(b) applies to persons identified by the fact of having been convicted of one of the enumerated offences. Any conviction under that section, however, will be based on violating its terms and not of having been convicted of one of the enumerated offences. Finally, the respondent was not the subject of cruel and unusual treatment or punishment contrary to s. 12 of the Charter. Such punishment or treatment must be "so excessive as to outrage the standards of decency" or have an effect "grossly disproportionate to what would have been appropriate". The lifetime prohibition of activities with a malevolent or ulterior purpose related to re-offending, however, is both a minor and justifiable restraint of the affected persons' liberty.

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