R. v. Isbister, 2019 BCPC 297

Citation: R. v. Isbister 2019 BCPC 297 Date: 20191106 File No: 233869-1A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KELLY GLEN ISBISTER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. FERRISS Counsel for the Crown: J. Ladha Counsel for the Accused: R. Larmer Place of Hearing: Surrey , B.C.

Date of Hearing: October 17, 2019 Date of Judgment: November 6, 2019 [ 1 ] THE COURT: On June 20th, 2018, Judge Ritchie ordered Kelly Glen Isbister to enter into a recognizance after allegation under s. 810.1(1) of the Criminal Code as it was alleged that there was fear he would commit a sexual offence in respect to a person under 14 years of age. [ 2 ] The recognizance contained 19 terms but the relevant term in this proceeding is condition 14. On September 12th, 2018, Judge Ritchie varied that condition, so it now reads of follows:

You must not attend a public park, schoolground, public swimming area, recreational community centre, playground, day care or any other place where children and/or youth under the age of 16 are present or can reasonably be expected to be present ... and there was an exception added on to it. The condition was to be electronically monitored. [ 3 ] It is alleged that Mr. Isbister attended the Cloverdale Flea Market on April 28th, 2019 in breach of condition 14.

The charge reads that, "he committed a breach of the recognizance by attending a place where children and/or youth under the age of 16 years could reasonably be expected to be present". [ 4 ] The Crown is proceeding by indictment with the charge under s. 811 of the Code . [ 5 ] The defence does not dispute that the recognizance was in effect on the day in question or that Mr. Isbister was at the Cloverdale Flea Market. [ 6 ] The issue in this case is: 1. Whether the Cloverdale Flea Market falls within the type of areas that Mr. Isbister is prohibited from attending under the recognizance; 2.

Whether the Crown has proven that Mr. Isbister had the required mens rea beyond a reasonable doubt; and 3. Whether the Crown has proven beyond a reasonable doubt that Mr. Isbister actually was in attendance at the flea market rather than simply passing through. [ 7 ] The facts were provided in testimony by Mr. Isbister's probation officer and the constable that arrested him. Brad Misik (phonetic), Mr. Isbister's probation officer, reviewed both the original recognizance and the variation of condition 14 for Mr.

Isbister and, in particular, he reviewed the area restrictions that applied and told him he was concerned about the large area east of 176th Avenue in Surrey which included the Cloverdale Rodeo and parks in that area. [ 8 ] He told Mr. Isbister that he should not go to that area, although, he could go to the casino as no child would be expected to be present there. He did not specifically tell Mr. Isbister not to go to the Cloverdale Flea Market located near the casino and racetrack because he was unaware of its existence. [ 9 ] Mr. Misik also did not tell Mr.

Isbister not to attend Value Village or Walmart, although, he confirmed there could be children and youth present that were under 16 in those stores. [ 10 ] Cst. Sangra of the Surrey RCMP testified that he arrested Mr. Isbister inside the Cloverdale Flea Market on April 28th, 2019 after he received a call at 1:52 p.m. He said he got to the flea market and there were about 200 people there, including families with children of all ages. There was a sign at one entrance indicating that there was a charge of $1.50 for admission for adults but there was no charge for children under 12. [ 11 ] When Cst.

Sangra located Mr. Isbister, he was standing beside a booth with a variety of items for sale, including a Monster Truck and a couple of other toys, but there is no indication that Mr. Isbister was in contact with anyone under 16 years of age while he was at the flea market. [ 12 ] The defence relies on the Supreme Court of Canada decision in R. v. Heywood and the B.C. Court of Appeal decision in R. v. Lachapelle , and an Alberta Provincial Court decision of R. v. Hornby , as well as a Newfoundland Provincial Court decision in R. v.

Jacobs . [ 13 ] All of the cases relied on by the defence are decided having regard to s. 161 of the Criminal Code and not s. 810.1 but the defence submits that the case law should be applicable to both. [ 14 ]

Section 810.1 of the Criminal Code provides that any person who fears on reasonable grounds that another person will commit certain offences, including certain sexual offences, in respect to one or more persons who are under the age of 16 may lay an Information before a Provincial Court judge. [ 15 ] The Provincial Court judge who receives that Information may require the parties to appear before him or her and the judge on hearing it, and is satisfied that the informant has reasonable grounds for the fear, may order that the defendant enter into a recognizance to keep the peace and be of good behaviour. [ 16 ] Additionally, the Provincial Court judge may add reasonable conditions to that recognizance, including the conditions that Mr.

Isbister was put under in condition 14. [ 17 ]

Section 161 of the Criminal Code says as follows: When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, schoolground, playground or community centre; [ 18 ] The offences under s. 161(1.1) are generally the same as for s. 810.1 and include sexual touching, sexual interference, invitation

to sexual touching, and those sorts of offences. [ 19 ] In my view, the purpose of s. 810.1 and the purpose of s. 161 is the same. It is the protection of children and youth under the age of 16 from a person who has been convicted of one or more of the offences that are listed in the respective sections. [ 20 ] The difference between the two is really just the point in the procedure where a judge can make that order. The order prohibition under s. 161 is made by a sentencing judge after a conviction.

The 810.1 recognizance is made by a judge who has heard the allegation of the fear on reasonable grounds. [ 21 ] In my view, both sections are for the same purpose and the condition that Mr. Isbister has been charged with breaching is set out in both of those sections and I can see no reason why the case law provided by the defence regarding s. 161 would not be equally as applicable to s. 810.1 . [ 22 ] Going on further with the cases that were provided, the decision in Heywood dealt with the wording of the former 179(1)(

b) section in the Criminal Code and in that case, the defendant was not to loiter near playgrounds, schoolyards or public parks. The Supreme Court of Canada found that the

section suffered from overbreadth and vagueness and that provision was changed to the current wording we have in s. 161 . [ 23 ] The decision in Lachapelle is from our Court of Appeal and the issues in that case was the meaning of playground in an order under s. 161 . In that case, a carnival or amusement fair came to the town where the defendant resided. It had rides, games and food stands and was held on private property. There was no fee for admission but attendees were charged for food and the like. [ 24 ] The defendant in that case went to the fair and was seen by the police.

He was arrested while standing in line for food and there were no allegations that he had contact with any children but there were children on carnival rides near to the defendant. There was also evidence that there were young unsupervised children at the fair. [ 25 ] The defendant was charged with breaching the order and it appears that the Crown argued in that case that the carnival came under the definition of public park or playground and he was acquitted by the trial judge, and the Court of Appeal upheld that trial judge's acquittal. [ 26 ] After referring to the case of R. v. Perron and Heywood , the B.C.

Court of Appeal noted that there are two areas of tension that arise with respect to the meaning of playground or park. At paragraph 29, they say: First, the cases show the tension between the designation of a space and the activities carried on there. Heywood and Perron illustrate an activity-centred approach that looks to “what goes on there” rather than what the space is called or ‘designated’.

Of course, the activities carried on at a particular site are, as stated in Perron , relevant to whether it qualifies as a “public park” – and indeed the likely presence of children was said by the majority in Heywood to be a necessary element of “public park” in the context of provisions such as the previous s. 179(1).

In this case, however, the Crown’s argument goes further: it says that the fact that children are or may be expected to be present for purposes of recreation, is sufficient by itself to make the site a “playground” (or a “park” for that matter) for purposes of s. 161(1)(a). [ 27 ] The Court of Appeal disagrees with that argument and says at paragraph 31: In my respectful view, we would be permitting context to overwhelm the ordinary and grammatical meaning of the word “playground” if we were to accede to the Crown’s argument.

If it were correct, the term would include a cul de sac at the end of a street where children play hockey, a courtyard between two office towers where older children play with skateboards, or a private driveway with a basketball hoop. In my opinion, these are not ordinarily referred to as “playgrounds” because they are not outdoor areas whose purpose is to provide children with a place to play. I do not suggest that a “playground” must necessarily be a permanent structure or facility, nor that particular facilities or equipment must be provided, but the purpose of the site should be clear...

By keeping sight of this “ordinary sense” of the term, a balance may be achieved between the objective of protection of children and the principle that an offender who is subject to an order under s. 161 should be in a position to know where he is allowed and not allowed to be found. As well, the overbreadth problem found in Heywood may be avoided. [ 28 ] In this case, the charge is not that Mr.

Isbister attended a public park, schoolground, public swimming area, recreation community centre, playground or day care and no evidence was adduced that the Cloverdale Flea Market was located in one of those types of places. The breach he is charged with is that he attended a place where children under 16 could reasonably be expected to be present. [ 29 ] The Crown argued in the Lachapelle case that because a child may be reasonably present, it is enough to make that area a public park, schoolground or other type of location set out in condition 14.

That argument was unsuccessful and I am bound by the Lachapelle decision. [ 30 ] Accordingly, I find that the attendance at a flea market is not a breach of the s. 810.1 recognizance. However, I must say that even if I were to apply the reasoning of Perron and considered the activities being carried out at the flea market, it would be difficult to differentiate between the activities of a flea market from those at a Value Village or a Walmart. The activities being carried out there, in all three of those locations, are the buying and selling of merchandise.

Any other activities involving children and youth under 16 years of age would be incidental to this primary function. [ 31 ] Mr. Misik did not tell Mr. Isbister he was not to attend a Walmart or a Value Village. A person in Mr. Isbister's situation would be likely confused as to what distinction there is between a retail outlet and a flea market, even if he is trying to follow his s. 810.1 recognizance, and any ambiguity must result in Mr. Isbister's favour and I find the Crown has not been able to prove that he had the required mens rea to commit that breach. [ 32 ] Therefore, I find that Mr.

Isbister is acquitted on that charge and the Crown has already stayed Count 2 previously on that

Information. (REASONS FOR JUDGMENT CONCLUDED)