Mississauga (City) v., 2014 ONCJ 674

Citation: Mississauga (City) v. 1094388 Ontario Limited (o/a Pure Gold Adult Entertainment) , 2014 ONCJ 674 IN THE MATTER OF Mississauga Bylaw 507-2005 (Adult Entertainment Establishment Licensing Bylaw) Between The Corporation of the City of Mississauga Prosecutor and Responding Party and 1094388 Ontario Limited, operating as Pure Gold Adult Entertainment Defendant and Moving Party Ontario Court of Justice Mississauga, Ontario Quon J.P. Ruling on Motion to Quash Information Application Argued: June 27, 2014. Ruling rendered: December 12, 2014.

Charges: two counts of “licensed owner of an adult entertainment parlour did permit services by an entertainer in an area not clearlyvisible from the main stage and patron area, contrary to s. 5(6) of Sched.4 of City of Mississauga Bylaw 507-2005, and thereby didcommit the offence under s. 25(1) of City of Mississauga Bylaw 507-2005”. Counsel: S. Chen and M. Dunlop, prosecutors for the City of Mississauga. T. Simone, counsel for the corporate defendant. Cases Considered or Referred To: (

a) Cases on the need for a factual context before ruling on a constitutional question R. v. DeSousa, (SCC), [1992] S.C.J. No. 77 (QL) (S.C.C.). R. v. Levkovic, 2010 ONCA 830 , [2010] O.J. No. 5252 (QL) (O.C.A.), per Doherty, Armstrong and Watt JJ.A. R. v. Levkovic, 2013 SCC 25 , [2013] S.C.J. No. 25 (QL) (S.C.C.). R. v. Martin, (ON CA), [1994] O.J. No. 1161 (QL) (O.C.A.), per Finlayson, McKinlay and Abella JJ.A. R. v. Mills, (SCC), [1999] S.C.J. No. 68 (QL) (S.C.C.). (

b) Cases on appropriateness of using the Motion To Quash Information for defects apparent on face of information for vagueness doctrine Langille (c.o.b. Rickshaw Runners of Toronto) v. Toronto (City), [2007] O.J. No. 1756 (QL) (S.C.J.O.), per Belobaba J. R. v. 152207 Canada Inc., [2001] O.J. No. 1101 (QL) (S.C.J.O.), per MacDougall J. R. v. J.F. Brennan & Associates Ltd., [1981] O.J. No. 253 (QL) (O.H.C.J.), per Osler J. R. v. Day, [1985] O.J. No. 1798 (QL) (Ont. Dist. Ct.), per Hurley D.C.J. R. v. Maitland Capital Ltd., [2008] O.J. No. 4356 (QL) (O.C.J.), per Sparrow J. R. v. Moore, (SCC), [1988] S.C.J. No. 58 (QL) (S.C.C.).

(

c) Cases on Corporations raising Charter issue under s. 7 Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927 (S.C.C.). Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031 (S.C.C.). R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17 (QL) (S.C.C.). (

d) Cases on the Test For Determining if Impugned Law is Unconstitutionally Vague R. v. Levkovic, 2013 SCC 25 , [2013] S.C.J. No. 25 (QL) (S.C.C.). R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] S.C.J. No. 67 (QL) (S.C.C.). R. v. Morales, (SCC), [1992] S.C.J. No. 98 (QL) (S.C.C.). Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] S.C.J. No. 52 (QL) (S.C.C.). Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031 (S.C.C.). (

d) Cases on Interpreting Legislation Delisle v. Canada (Deputy Attorney General), (SCC), [1999] S.C.J. No. 43 (QL) (S.C.C.). Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031 (S.C.C.). Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (S.C.C.). Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (S.C.C.). R. v. Jarvis, 2002 SCC 73 , [2002] S.C.J. No. 76 (QL) (S.C.C.).

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e) Cases on the Vagueness Doctrine Applied to Municipal Bylaws 2312460 Ontario Ltd. v. Toronto (City), 2013 ONSC 1279 , [2013] O.J. No. 872 (QL) (S.C.J.O), per Himel J. Bell v. Toronto (City), [1996] O.J. No. 3146 (O.C.J.), per Fairgrieve J. R. v. Sandler, (ON SC), [1971] 3 O.R. 614 (O.H.C.J.), per Kelly, Jessup and Brooke JJ.A. R. v. Zanzibar Tavern Inc. (c.o.b. Zanzibar Circus Tavern), [2007] O.J. No. 3381 (QL) (O.C.J.), per Quon J.P. Wainfleet Wind Energy Inc. v. Wainfleet (Township), 2013 ONSC 2194 , [2013] O.J. No. 1744 (S.C.J.O.), per Reid J. Statutes or Regulations Cited: Legislation Act, 2006, S.O. 2006, c. 21,

Schedule F, s. 64(1). Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 33, 34, 35, 36(1), 36(2). Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11,R.S.C. 1985, App. II, ss. 1, 7. Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 52. Bylaws Cited: City of Toronto Municipal Code,

Chapter 545 (Licensing),

Article XXXII (Adult Entertainment Parlours). City of Mississauga (Adult Entertainment Establishment Licensing) Bylaw 507-2005, ss. 1, 25(2), and 30,

Schedule 4, ss. 1(3), 2(4), 5(6), 6, and 7. Reference Material Cited: W.D. Drinkwalter and J.D. Ewart, Ontario Provincial Offences Procedure (Toronto, Canada: The Carswell Company Limited, 1980).

R. Sullivan, Statutory

Interpretation (Toronto, Ontario: Irwin Law Inc., 1997). Exhibits Entered: Exhibit "1" - Toronto Staff Report reviewing the Adult Entertainment Parlour Regulations - Amendments to Toronto Municipal CodeChapter 545, dated October 12, 2012 (84 pages). 1. INTRODUCTION [1] This particular defence motion, which seeks an order to quash the information, is a page out of the “void for vagueness”playbook.

When used to defend against a charge in a criminal or regulatory proceeding, the vagueness doctrine requires a determinationof whether the statutory provision from which the charge emanates is so imprecisely worded that it does not give citizens fair notice ofthe consequences of their conduct or limits the discretion of those charged with its enforcement. And, when a law is impermissiblyvague, it mocks the rule of law and scorns a principle of fundamental justice that no one may be convicted or punished for

an act oromission that is not clearly prohibited by a valid law: R. v. Levkovic, 2013 SCC 25 , [2013] S.C.J. No. 25 (QL) (S.C.C.), atpara. 1. [2] In this prosecution, the City of Mississauga has charged 1094388 Ontario Limited, operating as Pure Gold Adult Entertainment(“the corporate defendant”), as the licensed owner or operator of the adult entertainment establishment located at unit #1, 2630 RoyalWindsor Drive, in the City of Mississauga, with two counts of permitting an entertainer (or exotic dancer) to provide services to a patronon May 4, 2012, in an area of the licensed establishment that is not clearly visible from the main stage and patron area, contrary to s. 5(6)of

Schedule 4 of City of Mississauga Bylaw 507-2005, and thereby committing an offence under section 25(1) of Bylaw 0507-2005. [3] The impugned bylaw that is set out in s. 5(6) of

Schedule 4 of Bylaw 507-2005 provides that: 5. No Owner shall, …

(6) Permit any Entertainer to perform any service in a location which is not clearly visible from the Main Stage and from a patronseating area for that particular floor of the Adult Entertainment Business, and which location is without obstruction by any person orany thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting; [4] As a business endeavour, adult entertainment parlours or establishments are legally permitted to be operated in the City ofMississauga under a municipal licensing scheme.

This licensing scheme is set out in Mississauga Bylaw 507-2005, which is fittinglyentitled the Adult Entertainment Establishment Licensing Bylaw (“Bylaw 507-2005”). Bylaw 507-2005 also regulates and governs theactivities and the nature of the entertainment permitted at these establishments, as well as imposing specific duties on the licensedowners in respect to the operation of these types of establishments.

Moreover, one of its purposes is to protect the health and safety ofentertainers or dancers working in these establishments. [5] However, the corporate defendant contends that the “unobstructed-visibility” bylaw that is set out in s. 5(6), which the corporatedefendant had been charged under, is unconstitutionally vague. To initiate this constitutional challenge, the corporate defendant, afterarraignment but prior to plea and prior to any evidence being heard on June 27, 2014, made a motion to quash the information under s.36(1) of the Provincial Offences Act, R.S.O. 1990, c.

P.33 (“P.O.A.”), by contending that the s. 5(6) bylaw is an invalid orunconstitutional law due to its language or wording being so imprecise that it fails to give the defendant fair notice of what it is that isbeing prohibited from being done by that specific bylaw, and that its impreciseness also fails to limit enforcement discretion, so that thecorporate defendant would be convicted automatically once the charge is laid.

Also, in its motion to quash, the corporate defendant isseeking a declaration and a ruling that s. 5(6) is impermissibly vague, and therefore an invalid law, and that since the corporate defendantis not subject to an invalid law, then the information would have to be necessarily quashed and the two charges dismissed against thecorporate defendant. [6] Furthermore, the corporate defendant submits that the impugned information does not contain “an offence know to law”, since it

is invalid for vagueness. This purported lack of an offence known to law would then be the defect apparent on the face of the information that is being contended in the corporate defendant’s motion to quash under s. 36(1). In addition, the corporate defendant argues that the information does not provide sufficient notice of what conduct had been prohibited, so as to be able to defend against the two charges. The corporate defendant also submits the impugned information could not be amended, nor an order for particulars be made under s. 36(2) of the P.O.A. , which would satisfy the ends of justice.

And, since no amendment or order for particulars would be able to cure an invalid information or unenforceable

section of Bylaw 507-2005, then the corporate defendant submits the information should be quashed. [ 7 ] Moreover, in respect to its vagueness claim, the corporate defendant submits that the following phrases in s. 5(6) are particularly uncertain: "any services", "permit services", "from the main stage", "in an area not clearly visible", "patron area", "obstruction" and “location which is without obstruction by any person or anything including but not limited to". The corporate defendant has also provided hypothetical circumstances in its arguments and factum to demonstrate the uncertainty of some of those specific phrases, such as the following: (

i) What part of the "main stage area must be clearly visible"? If the stage is 30 feet long what must be observed and from where and by whom? Does that mean that the By-law officer would have to walk the 30 feet of the main stage and any extended arms of the stage thereof in order to determine whether there is a breach of the section?

The wording of the By-law does not provide for any criteria for a determination of' from main stage" nor does it define patron area; (ii) “without obstruction by any person" -- Does it mean that if a person/patron/waitress etc. is standing in the "location" and having a drink then that would be determined to be an obstruction; (iii) “inadequate lighting” -- Do we rely on enforcement officers with poor vision, with night vision issues. or other vision issues that prevent that officer from adjusting their eyesight where they enter an establishment from daylight'? (iv) Section 5(6) of the By-law allows for the owner to be charged if an enforcement officer standing in an area that s/he perceives to be the proper place to stand, which area is not defined, to make a determination of whether there is an obstruction even where "a person" is obstructing his/her view.

The By-law allows enforcement officers to decide what the offence is rather than the law determining what the offence is. [ 8 ] Ergo, based on the nature of the constitutional question, the following issues need to be resolved before being able to decide whether the corporate defendant’s motion to quash the information should be granted or dismissed: First, it will have to be resolved whether using the motion to quash provided under s. 36 of the P.O.A. is the appropriate mechanism for determining whether the impugned “unobstructed-visibility” bylaw in s. 5(6) is impermissibly vague, considering that there is a presumption that laws are constitutional; that constitutional questions generally require a factual foundation, especially when a motion to quash brought under s. 36 is required to be brought before plea and before any evidence is heard; that regulatory proceedings should not be fragmented by interlocutory proceedings that take on a life of its own; and that constitutional questions should generally be only decided after a factual foundation has been established.

Secondly, before deciding on the motion to quash, it will have to be resolved whether a factual foundation is required to be established for this particular case. And, if this motion to quash the information can be decided without a factual foundation, then the third question that needs to be resolved is whether s. 5(6) requires to be fully reviewed and actually interpreted in order to determine if the impugned bylaw is impermissibly vague, or does the test only require finding that the impugned bylaw is capable of being interpreted, as opposed to being actually interpreted. 2.

THE CHARGES [ 9 ] The corporate defendant has been charged under s. 5(6) of

Schedule 4 of the City of Mississauga Adult Entertainment Establishment Licensing Bylaw 507-2005, as the licensed owner of an adult entertainment parlour located at unit #1, 2630 Road Windsor Drive, Mississauga, with two counts of permitting services by an entertainer in a location that is not clearly visible from the main stage and patron area on May 4, 2012, and thereby committing an offence under s. 25(1) of Bylaw 507-2005.

The actual wording of the two charges contained in the information sworn on August 7, 2012, is the following: (1) 1094388 Ontario Limited, o/a Pure Gold Adult Entertainment, 2630 Royal Windsor Drive, Mississauga, ON L5J 1K7 on or about 4 th day of May, 2012, at 2630 Royal Windsor Drive, Mississauga, ON did commit the offence of being the licensed owner of an Adult Entertainment Parlour, did permit services by an entertainer in an area not clearly visible from the main stage area and patron area, contrary to

Schedule 4 sec. 5(6) of the City of Mississauga Bylaw 0507-2005, as amended, and thereby did commit an offence under

section 25(1) of the City of Mississauga Bylaw 0507-2005, as amended.

(2) AND FURTHER THAT 1094388 Ontario Limited, o/a Pure Gold Adult Entertainment on or about May 4, 2012, at 2630 Royal Windsor Drive, Mississauga, Ontario did commit an offence of being the licensed owner of an Adult Entertainment Parlour, did permit services by an entertainer in an area not clearly visible from the main stage area and patron area, contrary to

Schedule 4 sec. 5(6) of the City of Mississauga Bylaw 0507-2005, as amended, and thereby did commit an offence under section 25(1) of the City of Mississauga Bylaw 0507-2005, as amended. 3. FACTUAL CONTEXT [ 10 ] The corporate defendant’s motion to quash the information under s. 36(1) of the P.O.A. is a pretrial and pre-evidence motion. As such, no evidence in respect to the actual charges have been heard or adduced.

The motion to quash was brought according to the procedure set out in s. 36(1), which requires that after arraignment, but prior to the defendant entering a plea, that an objection to the information should be brought at that time. However, as set out in s. 36(2), the information can only be quashed if a division of counts, a n amendment, or particulars under

section 33 , 34 , or 35 of the P.O.A. , respectively, would fail to satisfy the ends of justice : 36(1) An objection to an information or a certificate for a defect apparent on its face shall be taken by a motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court.

(2) The court shall not quash an information or a certificate unless an amendment or particulars under

section 33, 34 or 35 would fail to satisfy the ends of justice. [ 11 ] As such, there is no witness testimony or factual context in respect to the actual charges being prosecuted at bar.

However, this issue of whether a factual foundation is required to be established before deciding whether the impugned bylaw is unconstitutionally vague, will be examined further on in this ruling. [ 12 ] On the other hand, despite there being no evidence adduced pertaining to the actual charges or circumstances surrounding the charges, documentary evidence had been submitted by the corporate defendant in support of its motion to quash.

The document is a staff report dated October 12, 2012, that had been prepared by the Municipal Licensing and Standards Department of the City of Toronto in respect to the Adult Entertainment Parlour regulations under the Toronto Municipal Code,

Chapter 545 (Licensing),

Article XXXII, that the City of Toronto enacted to regulate those specific establishments operating in the City of Toronto (see Ex. 1). This staff report, as highlighted by the corporate defendant, indicates that there had been issues in respect to the enforcement and application of the City of Toronto bylaw in respect to adult entertainment parlours, especially in respect to its “unobstructed-visibility” bylaw, that is analogous to the City of Mississauga’s “unobstructed-visibility” bylaw that is set out in s. 5(6) of

Schedule 4 of City of Mississauga Bylaw 507-2005. [ 13 ] However, it is also noteworthy that the Toronto Staff report also contained a reference at p. 9, that the Adult Entertainment Association of Canada had frequently cited Mississauga Bylaw 507-2005 as a model to consider in re-drafting the Toronto Adult Entertainment Parlour regulations. [ 14 ] Furthermore, the corporate defendant relies on the recommendations and the problems outlined in that Toronto Staff report, especially in respect to the enforcement of the City of Toronto “unobstructed-visibility” bylaw, to support its contention that the impugned Mississauga “unobstructed-visibility” bylaw contained in s. 5(6) is unconstitutionally vague.

And, as a consequence of this supposed impreciseness, the corporate defendant contends that the information in question would not contain an offence known to law, and as such, the motion to quash the information should be granted. [ 15 ] Moreover, the corporate defendant’s contention that s. 5(6) is impermissibly vague because the prohibited conduct set out in s. 5(6) is not precisely spelled out, is based on challenging the

interpretation and actual meaning of virtually every individual word or phrase set out in s. 5(6) by showing that each word or phrase could have several

interpretations and meanings. [ 16 ] Lastly, the information in question was sworn on August 7, 2012. The amended motion to quash the information was filed on December 4, 2013. The motion and the trial was then set down to be heard on June 27, 2014. As noted earlier, the corporate defendant then, a fter arraignment and p rior to entering a plea, brought this motion to quash the information contending that the “unobstructed-

visibility” bylaw set out in s. 5(6) is unconstitutionally vague. 4. APPLICABLE LAW [ 17 ]

Section 5 of

Schedule 4 of Bylaw 507-2005 places obligations and duties on the owners of adult entertainment establishments in Mississauga not to permit entertainers from having physical contact with patrons, as well as not allowing any of their employees or patrons to touch or have contact with the breasts, buttocks, genital, or pubic areas of any entertainer. In addition, owners must not permit any entertainer to provide any service to a patron in a location that is not clearly visible from the Main Stage and a patron seating area for that particular floor of the Adult Entertainment Business [ emphasis is mine below ]: CONDUCT ON PREMISES 5. No Owner shall,

(1) Permit any individual under the age of eighteen (18) years to enter or remain in the Adult Entertainment Business or any part thereof;

(2) Employ or otherwise use the services of individuals under the age of eighteen (18) years;

(3) Allow any person to act as an Entertainer who is under the age of eighteen (18) years;

(4) Permit any Entertainer to touch, sit, or rest on, or make any physical contact with the breasts, buttocks, genital or pubic areas of any other person;

(5) Permit any employee or patron to touch, sit, or rest on, or make any physical contact with the breasts, buttocks, genital or pubic areas of any Entertainer;

(6) Permit any Entertainer to perform any service in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business, and which location is without obstruction by any person or any thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting;

(7) Permit any person to loiter, create a disturbance or cause undue noise while on the licensed premises;

(8) Advertise or cause or permit to be advertised an Adult Entertainment Business in any way or by any means, or publish anything, erect, post or maintain any sign, notice or any other publication or device, relating to or drawing attention to an Adult Entertainment Business, except as specifically permitted in this By-law; [ 18 ] Similarly, under s. 6 of

Schedule 4 of Bylaw 507-2005, entertainers are prohibited from allowing any person to touch or have physical contact with their breasts, buttocks, genital, or pubic areas, nor are they permitted to touch, sit, rest on, or make any physical contact with the breasts, buttocks, genital, or pubic areas of any other person in the establishment. In addition, entertainers or dancers are prohibited from performing any service in a location which is not clearly visible from the Main Stage and a patron seating area for that particular floor of the Adult Entertainment Business [ emphasis is mine below ]: 6. No Entertainer shall:

(1) Permit any person to touch or make any physical contact with their breasts, buttocks, genital or pubic areas;

(2) Touch, sit, or rest on, or make any physical contact with the breasts, buttocks, genital or pubic areas of any other person; or

(3) Perform any services in a location which is not clearly visible from the Main Stage and from a patron seating area for that particular floor of the Adult Entertainment Business and which location is without obstruction by any p erson or any thing, including but not limited to walls, curtains, glass, enclosures, structures, fog, or inadequate lighting . [ 19 ] In addition, the following

definitions contained in s. 1 of Bylaw 507-2005 are applicable to this proceeding [ emphasis is mine below ]: 1 .

In this by-law: … “Adult Entertainment Business” means any premises or part thereof in which is provided, in pursuance of a trade, calling, business or occupation, services appealing to or designed to appeal to erotic or sexual appetites or inclinations; “Adult Entertainment Establishment” includes an Adult Entertainment Business, Body-rub Business, Adult Book Store or an Adult Videotape Store; … “Entertainer” means a person who , in pursuance to a trade, business or occupation, provides services designed to appeal to erotic or sexual appetites or inclinations at an Adult Entertainment Business ; … “Erotic or sexual appetites” means the bent of mind, desire, inclination or preference to satisfy a craving or desire pertaining to or related to sex; … “Licence” means the certificate issued by the Licence Manager under this By-law; … “Licence Manager” means the Manager of the Compliance and Licensing Enforcement unit of the City’s Enforcement Division and includes his or her designates. (192-08) “Licensing Unit” means the Compliance and Licensing Enforcement Unit of the Corporation's Enforcement Division; “Main Stage” means , in relation to an Adult Entertainment Business, the principal setting, scene or area on any floor in the premise upon which performances, services or an event or a series of events are presented , exclusive of patron seating areas ; … “Owner” means a person who alone or with others, owns and/or has ultimate control over, and/or directs the operation of the trade, calling, business or occupation carried on at an Adult Entertainment Establishment, and includes an owner, lessee, tenant, or licensee of the premises from which the Adult Entertainment Establishment is operated;

… “Premises” include lands, and any fence, buildings, sheds or similar structures situated thereon; … "Services" includes Body-rubs, performances , dances , exhibitions and viewings; “ Services designed to appeal to erotic or sexual appetites or inclinations ” includes services of which a principal feature or characteristic is the nudity or partial nudity of any person , and services in respect of which the word “nude”, “naked”, “topless” “bottomless”, “sexy” or any other word or any picture, symbol or representation having like meaning or implication is used in any advertisement: “Specified Body Areas” means, in the case of a female, her breasts and in the case of all persons, the pubic, perineal and perianal areas and the buttocks; “Specified Sexual Activities” means one or more of the following: actual or simulated sexual intercourse, masturbation, urination, defecation, ejaculation, sodomy, including bestiality, anal intercourse, and oral sexual intercourse, direct physical stimulation of unclothed genital organs, and flagellation or torture in the context of a sexual relationship or activity; “ To provide ” means any one or more of the following: when used in relation to services includes to furnish, perform, solicit, or give such services and "providing" and "provision" have corresponding meanings. when used in relating to any Videotape, means to sell, offer to sell or display for sale by retail, or to rent, offer to rent or display for rental, whether or not the cost, fee or other consideration passes at the time of such rental or sale, or is effected through the cost of membership, subscription, admission or any other manner. when used in relation to any book or magazine means to sell, offer to sell or display for sale by retail or otherwise, such book or magazine, and "provider", "providing" and "provision" shall have corresponding meanings. [ 20 ] Furthermore, the following interpretative tools set out in s. 30 of Bylaw 507-2005 apply to the Bylaw, and will assist in determining whether s. 5(6) is impermissibly vague,: 30

(1) The provisions of the

Interpretation Act R.S.O. 1990, c.I.11 , shall apply to this Bylaw as required.

(2) In this By-law, unless the context otherwise requires, words imparting the singular number shall include the plural, and words imparting the masculine gender shall include the feminine and further, the converse of the foregoing also applies where the context so requires. [ 21 ] Moreover, the corporate defendant had been required, when it had first applied for an Adult Entertainment Business Owner’s License, to provide floor plans depicting the location of the Main Stage in relation to all patron seating areas in its establishment to the Licensing Unit. This condition is set out in s. 1(3) of

Schedule 4 of Bylaw 507-2005 [ emphasis is mine below ]: 1 . In addition to the general licensing provisions contained in this By-law, every applicant for a new Adult Entertainment Business Owner’s Licence shall submit ; …

(3) A floor plan of the Adult Entertainment Business, in a fashion acceptable to the Licence Manager, which clearly depicts where the Main Stage is in relation to all patron seating areas in the Adult Entertainment Business;

[ 22 ] In addition, s. 2(4) of

Schedule 4 of Bylaw 507-2005 indicates that an adult entertainment establishment is eligible to be operated at the municipal address of Unit 1, 2630 Royal Windsor Drive, in the City of Mississauga [ emphasis is mine below ]: 2 . No licence will be issued or renewed under this By-law and this

Schedule unless; …

(4) Despite section 2(3), the following premises in actual use as an Adult Entertainment Business will be permitted and are hereby defined as a premise in which one

(1) Adult Entertainment Business is, if in compliance with all other law, eligible to apply for and be considered for an Owner’s licence: (1) 7222 Torbram Road (2) 7040 Torbram Road, Unit 1 (3) 2630 Royal Windsor Drive, Unit 1 (4) 1820 Dundas Street East [ 23 ] Furthermore, s. 7 of

Schedule 4 of Bylaw 507-2005 prohibits an owner of an adult entertainment establishment licensed in Mississauga from making or causing to be made any alterations to the composition, design, or location of the Main Stage of the establishment without first receiving approval from the Licence Manager for such alterations: 7 .

No Owner shall make or cause to be made a Main Stage or make or cause to be made any alterations to the composition, design or location of the Main Stage for the Owner's Adult Entertainment Business without first receiving approval from the Licence Manager for such alterations. [ 24 ] And, the penalty that can be imposed on the corporate defendant for being convicted of contravening any provision of Bylaw 507-2005 is a maximum fine of $50,000, which is set out in s. 25(2) of that Bylaw [ emphasis is mine below ]: 25

(1) Every person who contravenes any provision of this By-law, and every director or officer of a corporation who concurs in such contravention by the corporation is guilty of an offence and on conviction is liable to a fine, exclusive of costs, not exceeding $25,000 or to imprisonment for a term not exceeding one year, or to both.

(2) If a corporation is convicted the maximum penalty, exclusive of costs, that may be imposed is $50,000 . 5. ISSUES [ 25 ] The following issues have arisen in this motion to quash the information: (

a) Is it appropriate to use the motion to quash provision provided for under s. 36(1) of the P.O.A. as the mechanism for determining whether a particular bylaw is unconstitutionally vague?

(

b) Do the circumstances in the case at bar require that the trial be held first to establish a factual foundation, before determining whether the s. 5(6) bylaw is void for vagueness? (

c) What is the criteria that should be used to determine whether s. 5(6) is unconstitutionally vague? (

d) For the particular circumstances of this motion to quash the information, does s. 5(6) have to be actually interpreted, or does the test used to determine whether the language set out in s. 5(6) is sufficiently precise only require finding that it is capable of being interpreted? 6. ANALYSIS [ 26 ] The corporate defendant submits there are three grounds for its contention that s. 5(6) is impermissibly vague, namely that: (

a) the Information on its face does not give sufficient information to enable the defendant to know what conduct is prohibited and to defend the allegation and is therefore void for vagueness; (

b) the Information does not disclose an offence known to law as Section 5(6) of the Adult Entertainment Bylaw is void for vagueness; and (

c) Schedule 4, Section 5(6) of the By-law allows for arbitrary and discriminatory application that can be taken by by-law enforcement officers and is therefore void for vagueness. [ 27 ] In its oral argument and factum that s. 5(6) is not constitutionally precise, the corporate defendant has methodically identified or pointed to specific words or phrases set out in s. 5(6) that it contends are lacking precise or interpretable meaning.

Moreover, the corporate defendant’s contentions of uninterpretable meanings were virtually made in respect to most of the words and phrases set out in s. 5(6). [ 28 ] In response to the vagueness argument, the prosecution submits that the s. 5(6) bylaw under which the corporate defendant had been charged is not impermissibly vague, as it does provide both sufficient notice of what the prohibited act is and does limit enforcement discretion, when the entire Bylaw regulating Adult Entertainment Establishments in Mississauga, as well as its purpose and its

definitions are considered together for interpreting the meaning of s. 5(6). [ 29 ] In addition, the prosecution submits that before the corporate defendant had been issued a municipal license by the City of Mississauga to operate the adult entertainment establishment known as Pure Gold Adult Entertainment, s. 1(3) of

Schedule 4 required the corporate defendant to prepare and submit to the Mississauga Licensing Department, as part of the requirements to obtain the license, a set of floor plans which would clearly depict and set out where the main stage on which entertainers or exotic dancers would perform is situated in relation to all patron seating in the establishment [ emphasis is mine below ]: 1 . In addition to the general licensing provisions contained in this By-law, every applicant for a new Adult Entertainment Business Owner’s Licence shall submit ; …

(3) A floor plan of the Adult Entertainment Business, in a fashion acceptable to the Licence Manager, which clearly depicts where the Main Stage is in relation to all patron seating areas in the Adult Entertainment Business; [ 30 ] Furthermore, the prosecution points out that s. 7 of Bylaw 507-2005 prohibits the corporate defendant from making or causing alterations to the composition, design or location of the Main Stage for the establishment without first receiving approval from the License Manager for such alterations:

7. No Owner shall make or cause to be made a Main Stage or make or cause to be made any alterations to the composition, design orlocation of the Main Stage for the Owner's Adult Entertainment Business without first receiving approval from the Licence Manager forsuch alterations. [31] As such, the prosecution submits that because the corporate defendant had to prepare and submits floor plans of its establishmentto the Licensing Department, the corporate defendant would know, or ought to have known, or be aware of where the location of themain stage and the patron areas are within its own establishment. (

A) Is Using The Motion To Quash Provision Set Out In S. 36 of The P.O.A.

The Appropriate Mechanism For DeterminingWhether A Statutory Provision Is Unconstitutionally Vague? [32] Although the prosecution had agreed to and supported the corporate defendant bringing this application to challenge theconstitutionality of the s. 5(6) bylaw through a Motion to Quash the information under s. 36 of the P.O.A., this mechanism may not beappropriate for the particular circumstances of this case, since constitutional challenges generally require an evidentiary or factualcontext before they are to be decided. [33] However, this is not to say that this pre-evidence motion to quash an information under s. 36 for unconstitutional vaguenessshould never be used, as there may be an exceptional situation or a set of circumstances where it would be appropriate to considerwhether a statutory provision is unconstitutionally vague before hearing any evidence. [34] In addition, the corporate defendant contends that the information fails to disclose any offence known to law because the s. 5(6)bylaw is impermissibly vague, as the defect apparent on the face of the information cannot be amended or that an order for particulars bemade that would not be unjust. [35] Furthermore, it should also be pointed out that when s. 36 of the P.O.A. was first enacted that the Ontario Legislature had notintended this specific mechanism for quashing defective certificates or informations to be used for complicated determinations, such aswhether a particular law is unconstitutionally vague, and that only simple and “apparent” defects on the certificate or information thatcould not be amended or remedied with particulars would be the intended defects on the face of the certificate or information that couldbe quashed.

This is in accord with the P.O.A. being enacted as a procedural statute for regulatory prosecutions in Ontario, which hadbeen distinguished from regulatory offences being prosecuted under the old

summary conviction procedures of the Criminal Code. Inshort, the purpose of the P.O.A. had been intended to make the prosecutions of regulatory offences in Ontario be more expeditious andexpedient without sacrificing justice, and had also envisioned expeditious determinations of a charge on the merits: Drinkwalter andEwart’s Ontario Provincial Offences Procedure (1980) textbook, at p. 23. [36] Moreover, s. 36(2) of the P.O.A. intended that certificates and informations would not be quashed, unless amendments orparticulars would fail to satisfy the ends of justice.

Therefore, the facial defects that had been envisioned to make certificates orinformations quashable under s. 36 would have to be “apparent” defects that are easily identified, such as the missing signature of theenforcement officer on the certificate or information, or obvious defects that go to the jurisdiction of the court to hear the matter. [37] Furthermore, this notion that there would be very few defects that would have provided the basis for quashing a certificate orinformation after the enactment of the P.O.A. had been acknowledged by Hurley J. in R. v. Day, [1985] O.J. No. 1798 (QL) (Ont. Dist.Ct.).

At paras. 21, 34, and 35 of that judgment, Hurley J. noted that in their textbook, “Ontario Provincial Offences Procedure (1980)”,the authors, Drinkwalter and Ewart, had commented that the presence of s. 36 had been a clear direction to the courts that defectiveinformations were not to be quashed except in unusual circumstances, and that perhaps the only basis that remained for quashing aninformation is a failure to relate to an offence known to law, which is what the corporate defendant in the case at bar contends is theapparent defect on the face of the information [emphasis is mine below]: In R. v. Sault Ste.

Marie, (SCC), [1978] 2 S.C.R. 1299, in dealing with a duplicity argument, Dickson J., as he then was,said this at p. 38: "The rule developed during a period of extreme formality and technicality in the preferring of indictments and laying of informations. Itgrew from the humane desire of judges to alleviate the severity of the law in an age when many crimes were still classified as felonies,for which the punishment was death by the gallows. The slightest defect made an indictment a nullity. That age has passed.

Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments andinformations that the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities." … The parallel sections of the Criminal Code and the Provincial Offences Act are compared in Drinkwalter and Ewart, Ontario ProvincialOffences Procedure (1980), at p. 139, et seq., and at pp. 336-37. In the authors' view (at p. 143), "The Act has mandated an entirely new philosophy on this subject, the application of which governs, and is crucial to the

interpretationof these provisions ... . ... This

section constitutes a clear, unequivocal direction to the courts that defective informations are not to be quashed, except in unusualcircumstances." I extract two further quotations from that text, the first at p. 147 and the second at p. 149: "It is therefore clear that even in criminal matters defects in language do not make informations void. Perhaps the only basis now for quashing an information is a failure to relate to an offence known to law.

If it relates to an offence, butsimply misdescribes it or leaves out one or more essential elements or is duplicitous, an information is defective, but is not a nullity. Itcan and should be amended. ... Generally speaking it would appear that only types of defects which might not fall within the ambit of s. 35 would be amendments tocharge an entirely different offence... ." [38] Moreover, in R. v. DeSousa, (SCC), [1992] S.C.J.

No. 77 (QL), Sopinka J., writing for the Supreme Court ofCanada, noted at paras 14 to 16, that the main purpose behind the rule that required an objection for a defect apparent on the face of theindictment be brought before hearing any evidence in respect to the charge, had been to ensure that defects that are curable byamendment are attacked before pleading, since if the defect is not cured by a proposed amendment, then the defect may be considered tobe waived by the plea entered by the accused.

On the other hand, he also acknowledged that where the motion to quash challenges thevalidity of the law under which the accused is charged, then the requirement to bring this motion before pleading has no application, assuch defect goes to the jurisdiction of the court to proceed with the charge and would not be subject to that temporal restriction.

Instead,he confirmed that challenging the validity of the law could be brought at any time [emphasis is mine below]: The respondent submits that the learned trial judge erred in ruling on the application by the appellant to declare that s. 269 of theCriminal Code was of no force or effect before hearing the evidence at trial. It is clear that as the liberty interest of the appellant isultimately at risk in this appeal, the appellant has the right to question the constitutional validity of the provision under which he ischarged.

This is the case even though the unconstitutional effects may not be directed at the appellant per se (R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, at p. 63). The appellant submits that this Court has the power and the duty to review the elementsof criminal offences and this is not disputed by the Crown. As the elements of the offence necessarily affect adjudication under it, anaccused has standing to contest the elements of any provision under which he or she is charged.

While it is incumbent on a court toconsider such issues at some point in its deliberations, it is less clear in what circumstances this review must or should be done prior tohearing evidence. The general rule with respect to attacking an indictment by reason of a defect in law is that a motion to quash the indictment for a defect

apparent on the face thereof must be made before pleading. This rule is subsumed in the provisions of s. 601(1) of the Code, whichrequires the motion to be made before the plea, and thereafter only with leave of the court. The main purpose of the rule, and of s.601(1) to the extent that it embodies the rule, is to ensure that defects curable by amendment are attacked before pleading, since if notcured by amendment they may be waived by a plea. (See R. v. Côté, (SCC), [1978] 1 S.C.R. 8, at p. 15; R. v. Villeneuve(1984), 1984 ABCA 232 , 54 A.R. 265 (C.A.), at p. 267; R. v.

Cook (1985), (BC CA), 20 C.C.C. (3d) 18(B.C.C.A.), at pp. 30-31 and 40; R. v. R.I.C. (1986), (ON CA), 17 O.A.C. 354, at pp. 357-58; R. v. Peremiczky (Zoly)(1973), (BC SC), 25 C.R.N.S. 399 (B.C.S.C.), at p. 400; and R. v. Denton (1990), (NS SC), 100N.S.R. (2d) 174 (Co. Ct.), at p. 176.) The temporal requirement of moving before pleading has no application, however, to a motion to quash which questions the validity ofthe law under which the accused is charged. I expressly refrain from addressing the effect of a plea of guilty. (See R. v.

Tennen, (ON CA), [1959] O.R. 77 (C.A.), aff'd (SCC), [1960] S.C.R. 302, at p. 83 O.R., and R. v. Sarson (1992), 73C.C.C. (3d) 1 (Ont. Gen. Div.). Such a defect goes to the jurisdiction of the court to proceed with the charge and is not subject to thetemporal restriction in s. 601(1). Such an application may be brought at any time. Indeed, where the trial court is a court of inferiorjurisdiction, a motion may be brought before trial to prohibit the trial court from proceeding.

See Canadian Broadcasting Corp. v.Attorney-General for Ontario, (SCC), [1959] S.C.R. 188, rev'g (ON CA), [1958] O.R. 55 (C.A.), whichaff'd (ON SC), [1957] O.R. 466 (H.C.). There is no question, therefore, that the trial judge has jurisdiction to hear anddispose of a motion to quash the indictment on the grounds of constitutional invalidity. Whether he or she is bound to do so or whether asa matter of practice should do so is more problematic. [39] As well, in R. v. Martin, (ON CA), [1994] O.J.

No. 1161 (QL), the Court of Appeal for Ontario, at paras. 10and 11, had been concerned with the propriety of the lower court judge dealing with a challenge to the constitutionality of a particularsection of the governing legislation, on a pre-trial motion, before any plea had been entered or any evidence adduced. They concludedthat for such cases, the trial judge should not have entertained or disposed of an application to enforce a remedy under the Charter at thisearly stage, except in those cases where it is abundantly clear that a constitutional right has been infringed or threatened.

Moreover, theCourt of Appeal emphasized that it would have been preferable for the trial judge to have declined to enter into the constitutional issue atthe pre-trial motion stage and to leave such issue to be raised by the accused by way of defence at the conclusion of the evidence at trial[emphasis is mine below]: Before leaving this matter, I feel compelled to address the propriety of the procedure followed in this case. This case comes before thiscourt for a second time: see R. v. Martin (1991), (ON CA), 63 C.C.C. (3d) 71 (Ont. C.A.), affirmed (1992) (SCC), 71 C.C.C. (3d) 572 (S.C.C.).

The first occasion was also on a constitutional issue raised before the taking of a plea.The argument that the trial judge then gave effect to was that s. 13 of the Act created an offence of absolute liability and, sinceimprisonment was available as a possible punishment, violated s. 7 of the Charter. At the end of his reasons disposing of the first appeal,Griffiths J.A. stated at p. 85: Although I have dealt with this appeal on the merits, there is one further matter on which Iwish to comment.

At the opening of this appeal, all members of the court expressed their concern about the propriety of the lower courtjudge dealing with a challenge to the constitutionality of s. 13 of the Act, on a pre-motion hearing, before any plea had been entered orany evidence adduced. In my view, the court should not, at this early stage, entertain or dispose of an application to enforce a remedyunder the Charter, except in those cases where it is abundantly clear that a constitutional right has been infringed or threatened.

In myopinion, this case does not fall into that category and it would have been preferable for the trial judge to decline to enter into theconstitutional issue at the stage of a pre-trial motion and to leave such issue to be raised by the appellant by way of defence at theconclusion of the evidence at trial. It is, of course, quite possible that the appellant might have succeeded on some other line of defenceat trial, rendering the Charter challenge entirely moot. Whenever possible, the trial process should not be fragmented with appeals being launchedat the conclusion of each stage.

In my opinion, when an appeal is taken to this court, the trial record should be complete so that allgrounds of appeal and not only those relating to Charter challenges may be completely and finally dealt with in one hearing. We were advised by counsel on this appeal that neither trial counsel brought this case, and particularly the above quoted portion of thereasons of Griffiths J.A., to the attention of the trial judge. This is inexplicable. There was no reason for refusing to hear the evidencebefore dealing with the merit of the constitutional argument.

We do not even have any assurance that this is the last preliminaryobjection to be taken to these charges. In the result, another trial date has been wasted and the charges will have to be listed for hearingfor yet a third time. [40] And, more recently, the Court of Appeal for Ontario in R. v. Levkovic, 2010 ONCA 830 , [2010] O.J. No. 5252, atparas. 33 to 35 and 38 and 43, confirmed the general rule that a trial judge is entitled to reserve judgment until the end of the case on anyapplication made at the outset of trial proceedings.

In particular, the Court of Appeal indicated that the trial judge may decline to rule onthe application until all the evidence has been heard, and confirmed that the decision on whether to rule on the application at the outset,

or to await the introduction and conclusion of the evidence, rests within the discretion of the trial judge. The Court also referred to R. v.DeSousa, (SCC), [1992] S.C.J. No. 77 (QL) (S.C.C.), and noted that the exercise of this discretion is informed by twopolicy considerations: the policy that discourages adjudication of constitutional challenges without a factual foundation and the policythat enjoins fragmentation of criminal proceedings by interlocutory proceedings that take on a life of their own.

As such, the Court ofAppeal confirmed that both these policies favoured disposition of the application being made at the end of the evidence in the case. Moreover, it was also pointed out that a trial judge should not depart from these policies in the absence of a strong reason for doing so.

However, the Court also recognized that this general rule is not inflexible or intolerant of an exception in individual cases, so that thedetermination of whether the application would be immediately decided or determined at the end of hearing the evidence would depend,to some extent, on the nature of the challenge advanced, the interest at stake, and the likelihood or improbability that the evidence to beadduced at trial would assist in the resolution of the issue.

Furthermore, the Court of Appeal also suggested that evidence should havebeen heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge.

However, the Courtnoted that the constitutional challenge in that particular case had been directed principally at the language of the offence-creatingprovisions, which would infer that a factual foundation was not necessarily required before deciding on the application [emphasis is minebelow]: It is well-settled that, as a general rule, a trial judge is entitled to reserve judgment on any application made at the outset of trialproceedings until the end of the case. In other words, the judge may decline to rule on the application until all the evidence has beenheard: DeSousa at p. 954.

The decision whether to rule on the application at the outset, or to await the introduction and conclusion ofthe evidence, rests within the discretion of the trial judge: DeSousa at p. 954. The exercise of this discretion is informed by two policy considerations: the policy that discourages adjudication of constitutionalchallenges without a factual foundation and the policy that enjoins fragmentation of criminal proceedings by interlocutory proceedingsthat take on a life of their own: DeSousa at p. 954.

Both of these policies favour disposition of the application at the end of the evidencein the case: DeSousa at p. 954. A trial judge should not depart from these policies in the absence of a strong reason for doing so:DeSousa at p. 954. Sometimes it will be more economical to decide constitutional questions before proceeding to trial on the evidence relied upon in supportof the allegations.

Within this exception to the general rule may be an apparently meritorious Charter challenge of the law under whichan accused is charged that does not depend on facts to be elicited during the trial: DeSousa at p. 955; Mills at para. 37. … The appellant advanced a tepid submission that the trial judge erred in embarking on the constitutional challenge to s. 243 without asatisfactory evidentiary foundation for the claim. I would not give effect to this submission for several reasons.

First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that thegeneral rule is not inflexible or intolerant of exception in individual cases: DeSousa at p. 954; Mills at para. 38. To some extent, thenature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial wouldassist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined:DeSousa at p. 955; Mills at para. 41.

Second, counsel at trial agreed on the procedure followed. To be more specific, the prosecutor did not ask the trial judge to reserve hisdecision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the respondent at trialsuggest that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for thechallenge. Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated wasthe prospect of imprisonment on conviction.

The flaw alleged was that the prohibition was overbroad and void for vagueness, not as itapplied to the respondent, but in its general operation. Finally, as it turned out, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been establishedmay not have advanced the inquiry into constitutionality significantly at all events.

(1) Quashing informations for apparent defects on its face under the Provincial Offences Act, R.S.O. 1990, c. P.33, [41] According to s. 36(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“P.O.A.”), which is the statute that governsregulatory proceedings in Ontario, a certificate or information may only be quashed if there is a defect apparent on its face where anamendment or order for particulars would fail to satisfy the ends of justice.

In addition, the procedure set out in s. 36(1) requires that anobjection to an information for a defect apparent on its face shall be taken by a motion to quash the information before the defendant haspleaded, and thereafter only by leave of the Court: 36(1) An objection to an information or a certificate for a defect apparent on its face shall be taken by a motion to quash the informationor certificate before the defendant has pleaded, and thereafter only by leave of the court.

(2) The court shall not quash an information or a certificate unless an amendment or particulars under

section 33, 34 or 35 would failto satisfy the ends of justice. [42] Ergo, for the purposes of s. 36(1), would an unconstitutionally imprecise law be an “apparent” defect on the face of theinformation? [43] In R. v. 152207 Canada Inc., [2001] O.J.

No. 1101 (QL) (S.C.O.), MacDougall J., at para. 39, held that s. 36(1) of the P.O.A.limits the trial justice to quashing an information for only irremediable defects “apparent” on the face of the information and not from anerror in process that had resulted from inquiry into the circumstances surrounding the reception of informations by the issuing justice: There were no defects apparent on the face of the Informations before the hearing justice. Section 36(1) of the POA limits the power ofa Justice at trial to quash an Information to defects apparent on the face of the Information.

As confirmed in Whitmore, supra, thehearing justice was without jurisdiction to conduct an inquiry into the circumstances surrounding the reception of Informations by theissuing justice. [44] Furthermore, in R. v. Maitland Capital Ltd., [2008] O.J.

No. 4356 (QL) (O.C.J.), at paras. 9 to 12, Sparrow J. held that s. 36(1)limits the trial justice to quash an information for only irremediable defects or errors “apparent” on the face of the information and notfor errors that are not on the face of the information [emphasis is mine below]: I agree with the prosecutor that the information can only be quashed by this Court for a defect apparent on its face. This issue wasaddressed squarely by Ewaschuk J. in Regina v. Whitmore, (ON SC), 41 C.C.C. (3d) 555 (Ont.

S.C.), who states: "It is undoubted that a provincial court judge conducting a preliminary inquiry or a trial on an information has jurisdiction to do soprovided the information is valid on its face." "The only way an information laid before a justice may be later attacked for a defect not apparent on the face of the information is bymotion to the issuing justice or by extraordinary remedy." In other passages, Ewaschuk J. states that the Justice of the Peace's function is ministerial in swearing the information, and that Reginav.

Allen, (1974) (ON CA), 20 C.C.C. (2d) 447, supports his conclusion that if the Justice has erred in issuing process,the reviewing Superior Court is entitled to quash only the Justice's process, and not the information. I also note that in Regina v. 152207 Canada Inc., [2001] O.J. No. 1101, McDougall J. of the Ontario Superior Court ordered a Justiceof the Peace to continue a trial after she quashed the information due to evidence that the informant had made an incorrect statement tothe Justice of the Peace issuing process.

McDougall J. ruled that she had no jurisdiction to quash as the error was not on the face of theinformation.

In my view, given the decisions in Whitmore , 152207 Canada Inc. and the plain wording of s. 36, this Court would only have jurisdiction to quash the information if there was a defect apparent on its face . No such defect has been demonstrated. The information clearly enumerates offenses under the Ontario Securities Act . it is properly before this Court and therefore provides, rather than deprives, the Court of jurisdiction. [ 45 ] Additionally, in their tome entitled, Ontario Provincial Offences Procedure (1980) textbook, at pp. 143 and 144, authors W. D. Drinkwalter and J. D.

Ewart, who were both on the committee involved in designing and reforming the procedure for provincial offences in Ontario and the creation of the first Provincial Offences Act , commented on the role of the amendment and particulars provisions in that statute in respect to its application to s. 37 (which is presently s. 36) that refers to quashing an information for an defect on its face, and reasoned that defective informations are not to be quashed except in unusual circumstances, and that the broad curative powers dealing with amendments and particulars set out in the Provincial Offences Act should be used instead of quashing the information [emphasis is mine below ]: … The Act has mandated an entirely new philosophy on this subject, the application of which governs, and is crucial to the

interpretation of these provisions. ... This

section constitutes a clear, unequivocal direction to the courts that defective informations are not to be quashed, except in unusal circumstances . Instead, the broad curative powers set out in ss. 34 to 36 [now ss. 34 and 35 ] are to be used . … … But of greater significance is the Act’s clear statutory enunciation of a dramatic departure from the previous prevailing rules . Such a deliberate, marked legislative change requires an

interpretation by the courts which is consistent with both its letter and underlying spirit. If this spirit is put into practice by the courts, then there will be very few, if any, informations quashed . The rule in s. 37(2) [now s. 36(2) ] applies to all defects, substantive as well as technical. While the power to quash is left open in limited circumstances, it is expressly restricted to cases in which the application of ss. 34b to 36 [now ss. 34 and 35 ] would fail to satisfy the ends of justice .

When it is considered that those sections permit amendments, for example, to cure a failure to state “anything that is requisite to charge the offence”, or “is in any defective in substance”, then the breadth of the Legislature’s intention becomes apparent. …. … ….

The intention is to ensure a trial on its merits in lieu of an acquittal based on a technicality . … there is a clear recognition that the administration of justice suffers serious harm if technicalities prevail over substantive justice. [ 46 ] Furthermore, in the Ontario Provincial Offences Procedure (1980) textbook, at p. 147, the authors concluded that even in criminal matters, defects in language do not make informations void, and that perhaps the only basis now for quashing an information is a failure to relate to an offence known to law, which is indeed what the corporate defendant is contending in the case at bar that the impugned information is facially defective as it does not relate to an offence known to law, since s. 5(6) is impermissibly vague [ emphasis is mine below ]: "It is therefore clear that even in criminal matters defects in language do not make informations void.

Perhaps the only basis now for quashing an information is a failure to relate to an offence known to law . If it relates to an offence, but simply misdescribes it or leaves out one or more essential elements or is duplicitous, an information is defective, but is not a nullity. It can and should be amended. [ 47 ] However, the P.O.A. , as the procedural statute that governs the prosecution of regulatory offences in Ontario, had been enacted before the advent of the Charter of Rights and Freedoms.

Thus, the P.O.A. , especially s. 36, should now also be interpreted in conjunction with the Charter. [ 48 ] In conclusion, because laws are presumed to be enacted so as not to infringe the Charter or to be unconstitutional, and that there generally be established a factual or evidentiary context before deciding constitutional questions, then challenging a particular law as being unconstitutionally vague should normally not be decided within a motion to quash under s. 36 without factual context. Rather it

should be raised as a defence at the end of the evidence. Most importantly, permitting constitutional challenges for impermissiblevagueness to be determined before evidence is heard would cause regulatory trial courts to be overwhelmed with cases in which theywould have to first decide whether a law is of sufficient precision for legal debate before a charge would be allowed to proceed to trial.

This would then invariably cause delay in the prompt adjudication of the merits of the case. [49] Therefore, deciding whether a regulatory law is impermissibly vague, should generally be considered after the evidence is heardin a regulatory prosecution, and only in rare and exceptional cases should the vagueness question be considered in a motion to quash theinformation before any evidence is heard. (

B) For The Present Circumstances, Is A Factual Foundation Necessary To Decide The Constitutional Question Pertaining ToWhether S. 5(6) Is Unconstitutionally Vague? [50] Although a factual foundation is generally required before deciding constitutional questions, the prosecution did not object to orcontest the corporate defendant using the quashing provision set out in s. 36(1) of the P.O.A., as the proper mechanism to argue theunconstitutionality of s. 5(6), despite the lack of an evidentiary record.

Rather, the prosecution agreed and supported the corporatedefendant’s use of this pre-trial procedure to deal with the constitutional question of vagueness before any evidence had been heard. Assuch, there is a limited evidentiary record in respect to the corporate defendant’s actual charges. [51] Furthermore, in respect to whether the present motion to quash the information based on vagueness should be decided without afactual foundation, the Supreme Court in R. v. DeSousa, (SCC), [1992] S.C.J.

No. 77 (QL) (S.C.C.), at paras. 17 and 18,held that a trial judge is empowered to reserve on any application until the end of the case, and is also not obliged to rule on a motion toquash for invalidity of the indictment until the end of the case after the evidence has been heard. In addition, the Supreme Court heldthat the decision whether to rule on the application or reserve until the end of the case is a discretionary one that should be exercised inregard to two policy considerations.

The first consideration is that criminal proceedings should not be fragmented by interlocutoryproceedings which take on a life of their own. And the second policy consideration, which relates to constitutional challenges,discourages adjudication of constitutional issues without a factual foundation.

Furthermore, the Supreme Court held that both thesepolicies favour disposition of applications at the end of the case, and in exercising this discretion, the trial judge should not depart fromthese policies, unless there is a strong reason for so doing, which would include an apparently meritorious Charter challenge of the lawunder which the accused is charged that would not be dependent on facts [emphasis is mine below]: With rare exceptions that do not apply here a trial judge is empowered to reserve on any application until the end of the case.

He or sheis not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has beenheard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised havingregard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings whichtake on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters. See Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863.

The second, which relates to constitutional challenges, discourages adjudication ofconstitutional issues without a factual foundation. See, for instance, Moysa v. Alberta (Labour Relations Board), (SCC),[1989] 1 S.C.R. 1572, and Danson v. Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086. Both these policiesfavour disposition of applications at the end of the case. In exercising the discretion to which I have referred the trial judge should notdepart from these policies unless there is a strong reason for so doing. In some cases the interests of justice necessitate an immediatedecision.

Examples of such necessitous circumstances include cases in which the trial court itself is implicated in a constitutionalviolation as in R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, or where substantial on-going constitutional violations requireimmediate attention as in R. v. Gamble, (SCC), [1988] 2 S.C.R. 595. Moreover, in some cases it will save time to decideconstitutional questions before proceeding to trial on the evidence.

An apparently meritorious Charter challenge of the law under whichthe accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule.(See Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110, at p. 133.) This applies withadded force when the trial is expected to be of considerable duration. See, for example, R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606. In this case no objection was taken at trial to the procedure adopted by the trial judge.

The Charter challenge was not without meritnotwithstanding its fate in this Court. I am satisfied that the evidence at trial would not have assisted in the resolution of theconstitutional question given the nature of the appellant's submissions. The Court of Appeal stated that it was "purely speculative at thisstage whether the facts at trial will establish a mental element compatible with criminal and constitutional requirements ofblameworthiness for a finding of guilt under this section" (p. 96).

The fact that the appellant's conduct would attract criminalresponsibility because the mental element conforms to constitutional requirements would not resolve the issue if the

section in its otherapplications criminalized conduct that did not meet constitutional standards. We have not adopted the "constitutional as applied"approach that is prevalent in the United States. See R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1078, per Lamer J.(as he then was), and p. 1113, per Le Dain J. Accordingly, I conclude that the trial judge did not err in disposing of the appellant'smotion before hearing evidence.

[52] Furthermore, in R. v. Mills, (SCC), [1999] S.C.J. No. 68 (QL) (S.C.C.), McLachlin and Iacobucci JJ., at para.38, acknowledged the importance of having a factual basis in Charter cases, which are composed of legislative and adjudicative facts[emphasis is mine below]: This Court has often stressed the importance of a factual basis in Charter cases. See, for example, MacKay v. Manitoba,(SCC), [1989] 2 S.C.R. 357, at p. 361; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, at pp. 762 and767-68, per Dickson C.J.; Rio Hotel Ltd. v.

New Brunswick (Liquor Licensing Board), (SCC), [1987] 2 S.C.R. 59, at p.83; Danson v. Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086, at p. 1099; Baron v. Canada, (SCC), [1993] 1 S.C.R. 416, at p. 452; DeSousa, supra, at p. 954; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480, at para. 15. These facts have been broken into two categories: legislative andadjudicative.

In Danson, supra, at p. 1099, Sopinka J., for the Court, outlined these categories as follows: These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts inCharter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis'words, "who did what, where, when, how, and with what motive or intent ...." Such facts are specific, and must be proved by admissibleevidence.

Legislative facts are those that establish the purpose and background of legislation, including its social, economic and culturalcontext. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-InflationAct, (SCC), [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, (SCC), [1984] 1 S.C.R. 297, per McIntyre J., at p. 318. [53] Even recently, the Supreme Court of Canada in R. v.

Levkovic, 2013 SCC 25 , [2013] S.C.J. No. 25 (QL) (S.C.C.), atpara. 18, had considered and identified the concern that there had been no factual context or foundation before the trial justice, who hadruled on the constitutionality of the legislation for vagueness, as well as noting that the facts alleged by the Crown had still remainedunproven to this day [emphasis is mine below]: By agreement, the appellant's constitutional challenge to s. 243 was heard and decided by the trial judge before any evidence wascalled.

Accordingly, the facts alleged by the Crown remain to this day unproven and are thus conditionally relevant here as a matter ofcontext only. [54] Moreover, in considering the argument that the trial judge had been in error in not requiring a factual foundation, the Court ofAppeal for Ontario in R. v. Levkovic, 2010 ONCA 830 , [2010] O.J.

No. 5252 (QL) (O.C.A.), at paras. 27 to 35 and 38 to 43,had summarized the law on the extent of the requirement for a factual foundation in order to determine the constitutionality oflegislation, and held that the authorities which had insisted upon an adequate factual foundation to ground a constitutional challenge, hadalso recognized equally that the general rule is not inflexible or intolerant of exception in individual cases: DeSousa at p. 954; Mills atpara. 38. In deciding that a factual foundation was not specifically required in R. v.

Levkovic before deciding on the constitutionalquestion of vagueness, the Court of Appeal had held that the grounds for not requiring a factual foundation included, that counsel at trialagreed on the procedure that had been followed; that the prosecutor did not ask the trial judge to reserve his decision on theconstitutional challenge until the conclusion of the evidence adduced at trial, nor did defence counsel at trial suggest that evidenceshould have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge; that theconstitutional challenge had been directed principally at the language of the offence-creating provisions as being overbroad and void forvagueness; and that what could have been established evidentially may not have advanced the inquiry into the constitutional question[emphasis is mine below]: The preliminary issues raised in this case invite recall of the principles governing the extent of factual foundation required to determinethe constitutionality of legislation and those that define the limits of judicial notice.

The Need For An Adequate Factual Foundation It is difficult to understate the importance of a factual basis in constitutional challenges: R. v. Mills, (SCC), [1999] 3S.C.R. 668, at para. 38; R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, at p. 954. Two kinds of facts are involved: * legislative facts * adjudicative facts Danson v. Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086, at p. 1099.

Adjudicative facts concern the immediate parties to the prosecution. They respond to the query "Who did what to whom, where, when,how and with what intent or motive?": Danson at p. 1099. Adjudicative facts are specific to the case being prosecuted, thus must beestablished by evidence that is relevant, material and admissible: Danson at p. 1099; Mills at para. 38. Legislative facts help to establish the purpose and background of legislation, including the social, economic and cultural context inwhich the legislation was enacted. Of necessity, these facts are of a more general nature.

The admissibility requirements for legislativefacts are less rigorous than those that govern adjudicative facts: Danson at p. 1099; Mills at para. 38. Social facts are cousins of legislative facts. Each is relevant to the reasoning process and may involve policy considerations: R. v.Spence, 2005 SCC 71 , [2005] 3 S.C.R. 458, at para. 58. Evidence of social facts is social science research engaged to constructa frame of reference or background context for deciding factual issues crucial to the resolution of a specific case: Spence at para. 57.

In this case, the respondent brought her constitutional challenge immediately after arraignment and plea. The hearing followed overthree days. The trial judge reserved his decision on the challenge. No evidence was adduced in support of the allegations contained inthe indictment. Four and one-half months later, the trial judge released his reasons in response to the constitutional challenge. Theprosecutor gave a brief

summary of the nature of his case, offered no evidence in support of it, and invited the trial judge to acquit therespondent. The trial judge did so. It is well-settled that, as a general rule, a trial judge is entitled to reserve judgment on any application made at the outset of trialproceedings until the end of the case. In other words, the judge may decline to rule on the application until all the evidence has beenheard: DeSousa at p. 954.

The decision whether to rule on the application at the outset, or to await the introduction and conclusion ofthe evidence, rests within the discretion of the trial judge: DeSousa at p. 954. The exercise of this discretion is informed by two policy considerations: the policy that discourages adjudication of constitutionalchallenges without a factual foundation and the policy that enjoins fragmentation of criminal proceedings by interlocutory proceedingsthat take on a life of their own: DeSousa at p. 954.

Both of these policies favour disposition of the application at the end of the evidencein the case: DeSousa at p. 954. A trial judge should not depart from these policies in the absence of a strong reason for doing so:DeSousa at p. 954. Sometimes it will be more economical to decide constitutional questions before proceeding to trial on the evidence relied upon in supportof the allegations.

Within this exception to the general rule may be an apparently meritorious Charter challenge of the law under whichan accused is charged that does not depend on facts to be elicited during the trial: DeSousa at p. 955; Mills at para. 37. … The Principles Applied The appellant advanced a tepid submission that the trial judge erred in embarking on the constitutional challenge to s. 243 without asatisfactory evidentiary foundation for the claim. I would not give effect to this submission for several reasons.

First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that thegeneral rule is not inflexible or intolerant of exception in individual cases: DeSousa at p. 954; Mills at para. 38. To some extent, thenature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial wouldassist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined:DeSousa at p. 955; Mills at para. 41.

Second, counsel at trial agreed on the procedure followed. To be more specific, the prosecutor did not ask the trial judge to reserve hisdecision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the respondent at trialsuggest that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the

challenge. Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated wasthe prospect of imprisonment on conviction. The flaw alleged was that the prohibition was overbroad and void for vagueness, not as itapplied to the respondent, but in its general operation.

Finally, as it turned out, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been establishedmay not have advanced the inquiry into constitutionality significantly at all events. [55] Therefore, although the Supreme Court of Canada has clearly emphasized and stated that an evidentiary and factual context isgenerally required before a constitutional question can be resolved, there are exceptional cases in which the constitutional challenge canbe determined without necessarily having the trial completed to establish a factual foundation when, as in the case at bar, there may bean apparently meritorious Charter challenge of the law under which the accused is charged, which is not dependent on facts to be elicitedduring the trial; when counsel at trial have agreed to have the constitutional question dealt with before the trial is completed; when theconstitutional challenge had been directed principally at the language of the offence-creating provisions, such as a claim that thelegislation is overbroad and void for vagueness; and that what could have been established at trial may not

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