R. v. Shields Date:, 2014 BCPC 356

Citation: R. v. Shields Date: 20140310 2014 BCPC 0356 File No: 59141-2 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD SHIELDS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: E. Cooper Place of Hearing: North Vancouver , B.C. Date of Judgment: March 10, 2014 [ 1 ] THE COURT: Richard Shields is before the court facing an allegation that on Friday, August 16, 2013, he breached the term of a recognizance of bail. The term in question provides:

You are not to attend at any public park or public swimming area where persons under the age of 14 years are present or can reasonablybe expected to be present or any day care center, school ground, playground or community center. [2] At issue is the meaning of the words attend at as used in that term and whether he committed the actus reus of the offence. Circumstances of the Alleged Offence [3] Mr. Shields was found by a police officer parked on a street which is configured roughly as an "L" shape. West 16th runseast/west and Forbes Street runs north/south.

To the immediate north of 16th Street is Mahon Park, which contains a track and playingfield. At the west corner, the park abuts a seniors' home and daycare centre. On the west side of Forbes, immediately south of thedaycare centre, there is a Navy League of Canada Royal Canadian Sea Cadets Corps facility and, to the south of that, an armoury. [4] Mr. Shields was parked facing southbound on the west side of the street beside the cadet facility. There was a prominent signon the cadet facility which was approximately 10 metres from the passenger side of his car.

The sign states that the facility is for youthaged nine to 13 or youth aged 12 to 19. There is a smaller sign with similar information on a fence to the north of the armoury, whichwould have been to the front right of Mr. Shields' view. The lettering on that sign is much smaller, and although it also has a photo oftwo teen females, the information on this sign would be difficult to discern from where Mr. Shields was parked. [5] There is a prominent sign on the lawn next to the curb at the driveway entrance to the daycare with the words Mahon ParkChildcare Centre and an arrow pointing down that driveway.

On the other half of the sign, with an arrow pointing to an adjacentdriveway to the north, are the words Margaret Fulton Centre, which is a facility for seniors. [6] The driveway and sign for the daycare were approximately 10 metres from the rear of Mr. Shields' car. The sign is placed atan angle across the corner so that it is clearly visible to traffic travelling in either direction. [7] There is a 30-kilometre-an-hour playground speed zone approximately three metres from the corner on the east side of Forbesfor vehicles proceeding north. The spot where Mr.

Shields was stopped using his phone was to the north of that sign and within theplayground speed zone. [8] There is no issue that persons under the age of 14 were present using the park. The daycare centre was in session. [9] The allegation arises at 2:20 p.m. in the afternoon on a dry, summer day during school break. The investigating officer wasissuing a ticket to a driver northbound on Forbes on the east side of the street when he observed Mr. Shields using an electronic devicewhile in the driver's seat of a running car parked at the curb on the opposite side of the street.

He then observed him to pull away whilestill holding the device and decided to issue Mr. Shields a ticket for that violation. [10] Mr. Shields was interviewed by the police. He said he was on his way home and specifically drove to the area of the armouryto play a game on his cell phone that involved "capturing" the armoury. This required him to be in the immediate vicinity with his cellphone on. He drove north on Forbes past the officer and then "realized his mistake," in that he found himself in a 30-kilometre-an-hourzone and turned around in the parking lot of the park.

He headed southbound and pulled over at the side of the road because his cellphone went off. He dealt with his phone and then pulled away and was stopped beside the armoury by the officer. He said he thought itwould be "more wrong to keep driving through." He said he knew he was not supposed to be in a 30-kilometre-an-hour zone. Hebelieved he was out of that zone when he pulled over to deal with his phone. [11] Mr. Shields told the police he was unaware of the daycare centre. He said he used to drive taxi and recalled only a seniors'facility there.

The driveway to the seniors' centre opens into the parking lot to the park and the facility is bounded by the park on twosides. Therefore although he may not have been aware of the daycare centre or cadet facility, the location of Mahon Park was known toMr. Shields before he went to the area. [12] On his own evidence, Mr. Shields would have driven past the daycare centre sign before turning his vehicle around in theparking lot and again as he returned and pulled over on Forbes. He then chose to pull over and remain stationary in his vehicle in thelocation described. Mr.

Shields did not make any effort to ensure he was outside the playground speed zone area when he stopped todeal with his phone even though he had seen the playground speed zone sign just moments before and specifically took the steps he saidhe did to immediately remove himself from that zone. The place where he stopped was in the corner of the "L," and so the location ofthe sign would have clearly been in front of him to the south on the other side of the street. Issue [13] The phrase at issue is attend at any public park, etc. which is similar to the provisions of s. 161(1)(

a) of the Criminal Code,being an order of prohibition imposed following conviction for sexual offences involving children. The Code provision is worded attenda public park etc. The word a, as used in the Code itself, is an indefinite

article and does not require

interpretation. The word any, asused in the bail term, is a determiner and refers to each and every or all. [14] The words which require

interpretation are attend and at. The phrase attend at must also be examined to determine if the twowords used together results in a different

interpretation. Principles of Statutory

Interpretation [15] The principles of

interpretation of statutes and, in particular, penal statutes are applicable in this matter. I am grateful to counselwho provided the court with a number of helpful authorities. [16] In R. v. Hasselwander, (SCC), [1993] S.C.J. No. 57, the Supreme Court of Canada dealt with the meaning ofthe word capable as used in the definition of a prohibited weapon in s. 84(1) of the Code. At paragraph 30, Mr. Justice Cory, writing forthe majority, said:

30 More recently, Martin J.A., writing for the Ontario Court of Appeal in R. v. Goulis (1981), (ON CA), 125D.L.R. (3d) 137, employed this approach in interpreting the meaning of a word in the Criminal Code. He stated at pp. 141-42: This Court has on many occasions applied the well-known rule of statutory construction that if a penal provision is reasonably capable oftwo

interpretations, that

interpretation which is the more favourable to the accused must be adopted: see, for example, R. v. Cheetham(1980), (ON CA), 53 C.C.C. (2d) 109, 17 C.R. (3d) 1; R. v. Negridge (1980), (ON CA), 54 C.C.C.(2d) 304, 17 C.R. (3d) 14, 6 M.V.R. 255. I do not think, however, that this principle always requires a word which has two acceptedmeanings to be given the more restrictive meaning. Where a word used in a statute has two accepted meanings, then either or bothmeanings may apply. The Court is first required to endeavour to determine the sense in which Parliament used the word from the contextin which it appears.

It is only in the case of an ambiguity which still exists after the full context is considered, where it is uncertain inwhich sense Parliament used the word, that the above rule of statutory construction requires the

interpretation which is the morefavourable to the defendant to be adopted. [Emphasis added.] Thus, the rule of strict construction becomes applicable only when attempts at the neutral

interpretation suggested by s. 12 of theInterpretation Act still leave reasonable doubt as to the meaning or scope of the text of the statute. As Professor Côté has pointed out, thismeans that even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goalsapplied. (See, for example, R. v. Johnston (1977), (NWT CA), 37 C.R.N.S. 234 (N.W.T.C.A.), aff'd (SCC), [1978] 2 S.C.R. 391; R. v. Philips Electronics Ltd. (1980), (ON CA), 116 D.L.R. (3d) 298 (Ont. C.A.), aff'd (SCC), [1981] 2 S.C.R. 264; R. v. Leroux, [1974] C.A. 151, and R. v.

Nittolo, [1978] C.A. 146.) [17] The British Columbia Court of Appeal considered the meaning of the word playground, as used in s. 161, in R. v. Lachapelle,2009 BCCA 406. The issue is whether the accused's attendance at a carnival was a breach of the prohibition against attending aplayground. At paragraphs 16 and 30, the court observed: 16] The Court of Appeal noted the "modern rule" of statutory

interpretation formulated by Professor Driedger, which has beenadopted and applied by the Supreme Court of Canada on many occasions: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (See R. v. Clark, supra, and Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at para. 21.) The Court of Appealnoted that Parliament's intention in enacting s. 161 was the protection of children from sexual predators and that as suggested inHeywood, only those public parks where children are present or could reasonably be expected to be present can be included in aprohibition order. In other words, the Court said, "Parliament has specified locations in s. 161(1)(

a) because what goes on there makes itlikely that young children will be present." (My emphasis.) On the other hand, the Court noted that an individual bound by a prohibitionorder should be able to know what it requires and prohibits and that, as stated in R. v. Tremblay, 2008 ONCA 24 , [2008] 89O.R. (3d) 48 (C.A.), if real ambiguities are found, or doubts of substance arise, a statute should be applied so as to favour the personagainst whom it is sought to be enforced. ... [30] This brings us to the deeper tension between the ordinary or grammatical meaning of a word and the context in which it is used. The "modern rule" of statutory

interpretation of course engages and reconciles both the "literal meaning" rule and the "mischief rule"(see E.A. Driedger, Construction of Statutes (2nd ed., 1983) at 1-2 and 81-7); but I do not read cases such as Rizzo Shoes or Clark, supra,as inconsistent with, or intended to modify, the statement made in Heywood quoted earlier in these reasons, namely: When a statutory provision is to be interpreted the word or words in question should be considered in the context in which they are used,and read in a manner which is consistent with the purpose of the provision and the intention of the legislature: Elmer A.

Driedger,Construction of Statutes (2d ed., 1983) at p. 87; R. v. Hasselwander, (SCC), [1993] 2 S.C.R. 398. If the ordinarymeaning of the words is consistent with the context in which the words are used and with the object of the act, then that is theinterpretation which should govern. [At 784; emphasis added.] [18] R. v.

Tremblay, 2008 ONCA 24, is a decision of the Ontario Court of Appeal interpreting the meaning of a release term whichprovided: "You must report any relationships entered into with females to your supervisor." At paragraph 10, the court said: [10] That said, we must also be mindful that failure to comply with the condition constitutes a serious criminal offence carrying aperiod of up to ten years imprisonment and that it must be interpreted according to applicable legal principles. In particular, the appellantis entitled to the benefit of the principle explained by Dickson J. in Marcotte v.

Canada (Deputy Attorney General), (SCC), [1976] 1 S.C.R. 108, [1974] S.C.J. No. 142, at p. 115 S.C.R.:

No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction andapplication of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the personagainst whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it inexpress terms, and not, at most, by implication.

Grammatical and Ordinary Meaning Meaning of the word attend [19] The Oxford English Dictionary defines attend in relation to a place or event as "to be present at." I was not able to locate anyother pertinent definition in any other dictionary save for the Cambridge Dictionary which defined it as "to go to." Meaning of the word at [20] In R. v. Spencer, 2003 BCSC 805, Mr.

Justice McKinnon considered the meaning of the word at in the context of then s. 244(c)of the Code which stipulated: Every person who, with intent to prevent the arrest or detention of any person discharges a firearm at any person... [21] The circumstances of the alleged offence were that the accused fired shots at a civilian who was following the accused after hecommitted a robbery. The accused said in his statement that he fired the shots to scare the civilian and did not intend to hit him.

Thecourt was required to determine whether this constituted discharging a firearm at any person. [22] At paragraphs 45 to 46, the court canvassed the dictionary

definitions of the word and, at paragraph 46, said: [46] When one considers these

definitions, against the mischief Parliament must have intended to address, coupled with a commonsense approach, the word "at" must be interpreted as synonymous with "towards", "in the direction of" or "in the general vicinity of". [23] The foregoing analysis and conclusion is helpful in interpreting the word at when used in relation to a specific location andproceeded by the word attend. I find that in the context of the term in question, the word at means in the general vicinity of. Meaning of the phrase attend at [24] The Code provision would appear to be the more grammatically correct construction.

The word at in the bail term issuperfluous given the ordinary meaning of attend which incorporates the concept of at. Contextual Analysis [25] The word or words under consideration understood in the grammatical and ordinary sense do not create any ambiguity inmeaning and are not capable of two

interpretations. I find that the sense in which Parliament used the word or words can be determinedfrom the context in which it appears. [26] The term was imposed to protect children from a person alleged to have offended in a sexual manner involving children. Themischief the bail term was intended to address was to prevent a person accused of a sexual offence involving children from being inplaces where children could reasonably be expected to be. Places such as public parks and playgrounds are generally in the open.

Itmust be assumed that legislators and the judge or justice who imposed the bail term based on s. 161 of the Code contemplated thatchildren could reasonably be expected to be in the immediate vicinity of the enumerated places in order to have access to them. Inparticular, children could reasonably be expected to access public parks and playgrounds on foot or by bicycle as well as by car. [27] An absurd result would follow if the term attend a or attend at a or attend any public park or other enumerated location set outin s. 161 meant "attend within the lands or premises of a public park etc." Such an

interpretation would allow for those charged orconvicted of a sexual offence involving children to be able to loiter in the immediate vicinity of an enumerated location, creating the veryreal risk of having direct contact with children as they make their way to or from a public park etc. Had the legislators intended thatmeaning, the prohibition as set out would read "attend in." [28] In R. v. D'Angelo, (ON CA), the Ontario Court of Appeal considered whether a pool in a housing complexwas a "public swimming area" within the meaning of s. 161.

The court determined that although the pool was privately operated, itallowed for members of the public to attend by invitation and through purchasing memberships and was therefore a public swimmingarea. [29] The purpose of the prohibition from attending the enumerated places in s. 161 was expressed at paragraphs 19 and 20: [19] Finally, I turn to a consideration of the purpose of s. 161 of the Code.

Section 161 is contained in

Part V of the Code which dealswith, inter alia, sexual offences. Many of the provisions in this part of the Code are designed to protect children from sick adults whoprey on them for purposes of selfish sexual gratification. Adopting a narrow definition of "public swimming pool" - for example, onewhich excluded such large facilities as Wet and Wild Kingdom or Canada’s Wonderland - would be a disservice to a particularlyvulnerable group in Canadian society. [20] In R. v. Budreo (2000), (ON CA), 142 C.C.C. (3d) 225 (Ont. C.A.), an important case dealing with another

provision of the Criminal Code designed to protect children, Laskin J.A. said, at pp. 239-40: I accept the legitimacy, and indeed the importance, of Parliament's objective in passing s.810.1 of the Criminal Code . Children are among the most vulnerable groups in our society. The sexual abuse of young children is a serious societal problem, a statement that needs no elaboration. A sizeable percentage of the sexual offences against children – according to the record, approximately 30 percent – occurs in public places, the very places specified in s.810.1 .

The expert evidence shows that recidivism rates for sexual abusers of children are high and that keeping high-risk offenders away from children is a sound preventive strategy. Parliament thus cannot be faulted for its objective in enacting s.810.1. The state should not be obliged to wait until children are victimized before it acts. The societal interest in protecting children from sexual abuse supports Parliament's use of the preventive part of its criminal law power. I agree with this forceful statement. In my view, it is as applicable to the

interpretation of s. 161 of the Code as it was to s. 810.1 . Meaning of attend at or attend a or attend at any [ 30 ] I find that the term imposed should be interpreted to mean to be present in the general vicinity of a public park. For the purposes of these reasons, I need not attempt to define what the general vicinity of a public park means other than to consider if being parked immediately adjacent to a public park or daycare centre falls within that prohibition. Application of

Interpretation to the Facts [ 31 ] I find that Mr. Shields was physically in violation of the condition "you are not to attend at any public park or daycare centre by being stopped in his vehicle within the street immediately adjacent to Mahon Park and within the playground speed zone and immediately adjacent to the childcare centre. I therefore find that Crown has proven the actus reus beyond a reasonable doubt. (REASONS CONCLUDED)