Her Majesty the Queen - v. -, 2016 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 014 Date: January 21, 2016 Informations: 44841004 & 31503882 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Keith Allaby Appearing: Mr. K. Jones For the Crown Mr. C. Demmans For the Accused TRIAL DECISION M. HINDS, J [ 1 ] INTRODUCTION Robert Keith Allaby is charged in Information 44841004 that between February 15, 2015 and April 8, 2015 at or near Regina, Saskatchewan he did:

(1) Being bound by a probation order made by a judge of the Provincial Court of Saskatchewan on January 16, 2015, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall not attend to schools, children’s playgrounds, community centres, day-cares, swimming areas, public parks and arcades where persons under the age of 16 are present or can be reasonably expected to be present, contrary to

section 733.1(1) of the Criminal Code .

(2) Being a person bound by an order of prohibition made on July 5, 2004, in the Court of Queen’s Bench in Calgary, Alberta prohibiting him from attending at a public park or public swimming area, day care centre, school ground or playground or community centre where persons under the age of 14 years are present or can reasonably be expected to be present, contrary to section 161 (4) of the Criminal Code .

[ 2 ] Mr. Allaby is also charged in Information 31503882 that on or about the 26 th day of June 15 , 2015 at or near Regina, Saskatchewan he did:

(1) Being bound by a probation order made by a judge of the Provincial Court of Saskatchewan on the 16 th of January, 2015, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall not attend to schools, children’s playgrounds, community centres, day-cares, swimming areas, public parks and arcades where persons under the age of 16 are present or can be reasonably expected to be present, contrary to

section 733.1(1) of the Criminal Code .

(2) Being at large on his recognizance entered into before a Justice or a Judge and being bound to comply with a condition thereof, to wit, not attend to schools, children’s playgrounds, community centres, day cares, swimming areas, public parks and arcades where persons under the age of 16 are present or can be reasonably expected to be present, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code .

(3) Being a person bound by an order of prohibition made on the 5 th day of July 2004, in the Court of Queen’s Bench in Calgary, Alberta prohibiting him from attending at a public park or public swimming area, daycare centre, school ground or playground or community centre where persons under the age of 14 years are present or can reasonably be expected to be present, contrary to section 161 (4) of the Criminal Code . [ 3 ] Counsel for the Crown and for Mr.

Allaby agreed to proceed to trial on both Informations simultaneously. [ 4 ] The first two charges set out in Information 44841004 concern allegations that Mr. Allaby breached his probation order and an order pursuant to section 161(4) of the Criminal Code by being at the Regina Public Library between February 15 and April 8, 2015. The Crown takes the position that the Regina Public Library is a “community centre”. Mr.

Allaby acknowledges he was at the Regina Public Library, but he submits it is not a “community centre”. [ 5 ] The second set of three charges set out in Information 31503882 concerns an allegation that Mr. Allaby breached a condition of his recognizance, probation order and an order pursuant to section 161(4) of the Criminal Code by being in Victoria Park on June 26, 2015. Mr. Allaby takes the position that he was not in Victoria Park, but rather was walking on a sidewalk adjacent to Victoria Park on June 26, 2015. [ 6 ] In this case I found that the Regina Public Library is not a community centre.

I also determined that I had a reasonable doubt that Mr. Allaby intended to breach the probation and prohibition orders set out in Information 44841004 . I found him not guilty of these offences. I had a reasonable doubt that Mr. Allaby was in Victoria Park on June 26, 2015. As a result I found him not guilty of the charges set out in Information 31503882. Background [ 7 ] On or about March 1, 2015 , the accused, Mr. Allaby was the subject of two court orders. First, he is subject to an order pursuant to

section 161 of the Criminal Code of Canada . This order was made by the Court of Queen’s Bench of Alberta at the city of Calgary on July 5, 2004 [Exhibit P-1]. It is a lifetime order. This order prohibits Mr. Allaby from attending “at a public park or public swimming area, daycare centre, school ground or playground or community centre where persons under the age of 14 years are present or can reasonably be expected to be present”.

[ 8 ] Mr. Allaby is subject to a probation order which I made on January 16, 2015 [Exhibit P-2]. This order is for a duration of 18 months and contains the following clause: “not attend to schools, children’s playgrounds, community centres, day-cares, swimming areas, public parks and arcades where persons under the age of 16 are present or can be reasonably expected to be present”. [ 9 ] On May 6, 2015 Mr. Allaby was released into the community on a recognizance [Exhibit P-6] which relates to the charges as set out in Information 44841004 (Library Charges) .

T his recognizance contains several conditions including the following: Do not attend any public libraries in Regina, Saskatchewan. Not attend to schools, children playgrounds, community centres, day cares, swimming areas, public parks and arcades where persons under the age of 16 years are present or can be reasonably expected to be present. Facts Relating to Information 44841004 : Mr. Allaby was at the Regina Public Library [ 10 ] Counsel for the Crown and Mr. Allaby filed an agreed statement of facts with the court [Exhibit P-3].

The first four paragraphs of the agreed statement of facts have been summarized in paragraphs 7 & 8 above. The remaining agreed statement of facts are as follows: 5. On April 4, 2015, a library employee saw Mr. Allaby enter the Main Branch of the Regina Public Library, situated at 2311 12 th Avenue. She later told police that she had seen Mr. Allaby in the library almost on a daily basis for a period of approximately 6 weeks prior to April 4, 2015, sometimes in the company of teenage boys or young adults. His visits varied from about 15 minutes to an hour. Mr.

Allaby sometimes visited the library more than once a day. 6. On April 9, 2015, Mr. Allaby provided a statement to the police. He stated that he had attended the Regina Public Library Main Branch since January 17, 2015. He told police “I go there every day”. Evidence Relating to Information 44841004 : Charges relating to the Regina Public Library Mr. Jeff Barber Director & CEO of the Regina Public Library [ 11 ] Mr. Barber testified in-chief as follows: a. The main branch of the Regina Public Library (RPL) is a three story building. This building was opened in 1962. It consists of 75,000 square feet.

Each of its three floors take up 25,000 square feet. b. The main entry to RPL is situated on Lorne Street. After passing through the

main entry doors a person ends up on a landing area. A secondary entrance to the RPL is situated on 12 th Avenue. It consists of a wheel chair accessible ramp which leads to the second level of the library. c. If one turns to the right off the landing area they can descend a set of stairs to the lower level which contains a sizable Children’s Library as well as washrooms, a film theatre and some back office operations. The RPL monitors the Children’s Library.

If a lone adult enters the Children’s Library, RPL procedures provide that they are to be approached and asked if they need assistance to find something for children. The film theatre shows family orientated films free of charge on Wednesday evenings. An admission fee is charged for films shown in the evenings from Thursday to Sundays. Ninety per cent of these films are adult films. Some children’s programming also takes place in the film theatre. There are some computers in the Children’s Library. d.

If one ascends a set of stairs from the landing they come to an automatic door leading to the main floor or adult level which is predominately the book collection. The Dunlop Art Gallery and public washrooms are also located on the adult level. Any member of the public, children and adults alike can go to the adult level. Children under 10 years of age are to be accompanied by an adult. All physical materials (books, DVDs, CDs., magazines) are returned to the library on the main level. e.

The upper floor is primarily library administration, plus some offices and a mezzanine of non-book materials such as DVDs, CDs, magazines, newspapers and some meetings rooms. This floor also contains computer stations. f. The mandate of the RPL has developed into a broader cultural organization, more so than what people think of a traditional library service. g. The RPL welcomes everyone. There are no restrictions on who can go to the library other than those patrons who are officially barred from library for 3 to 12 months by himself. h.

The RPL offers 5500 to 6500 programs a year which are attended by 120,000 to 140,000 people. Some programs such as reading and writing are offered to pre-schoolers and children. Some programs are offered to teenagers. There is also adult programming which varies from chocolate and wine pairing, learning to knit, quilting to financial management. There is a heavy emphasis on children under 10 or 12 and adults. [ 12 ] Mr. Barber testified on cross-examination as follows: a. The signage at the library as depicted in the photographs [Exhibit P-4] indicates Regina Public Library.

There is also a pedestal on the corner of 12 th Avenue and Lorne Street which has signs for Regina Public Library, Film Theatre and the Dunlop Art Gallery.

b. He agreed that there are no signs identifying this building at 12 th Avenue and Lorne Street as being a community centre. c. There are computers on the main level of the library that card holders can use. Most of these computers can be used to access the internet, facebook and conduct job searches. d. He lives in Regina, Saskatchewan. There are places in Regina which he considers to be community centres and the RPL has branches in a couple of them. Probation Officer, Tracey Stewart [ 13 ] Tracey Stewart testified in-chief as follows: a. She has been a probation officer for 10 years.

As a probation officer she receives probation orders and reviews the conditions of probation with the probationer. She ensures that the probationer complies with the conditions. b. Mr. Allaby was put on her caseload as a client in January 2015. She met with Mr. Allaby and went over the conditions in his probation order [Exhibit P-2] with him. She could not recall her explaining to Mr. Allaby any specific locations he could attend or couldn’t attend. She could not recall the specific conversation she had with Mr. Allaby about the condition dealing with “community centre”. c.

The issue of the library came up after she received a phone call from Corporal Shalansky advising that he had been at the library. Corporal Shalansky asked her if she considered the public library to be a community centre. She told Corporal Shalansky, “Yes”. After Mr. Allaby was charged with the offences before the court, she met with Mr. Allaby and explained to Mr. Allaby that he can’t be at the library because it is a public library which includes a children’s library and children could reasonably be expected to be there. d. Mr.

Allaby was under the impression that he could be at the library and that she told him he could be there. She told him that she could not recall any conversation where she told him he could be at the library. e. She could not recall Mr. Allaby asking her any questions about the probation order. [ 14 ] Tracey Stewart testified on cross-examination as follows: a. She recalled speaking to Mr. Allaby about him seeking employment. He said he was searching for employment on the internet using a computer. He did not indicate where he was using a computer. She does not recall Mr.

Allaby ever telling her he was going to the Regina Public Library to use a computer.

b. She considers the public library to be a community centre. The basis for this opinion is that anyone has access to the public library. She said the “Y” is a public centre. “If anybody can go there and be there at any time and it’s not a privately owned business with private membership, then it’s public, it belongs to the community, the tax payers, then in my opinion it is a community centre.” She doesn’t recall if she gave this definition to Mr. Allaby. c. She agreed that there are places in Regina, such as the Arcola East Community Centre that are specifically labeled “Community Centres”. d.

She would consider an event held at Taylor Field which is open to members of the public of any age, at no charge, to be a Community Centre. Corporal Amanda Shalansky [ 15 ] Corporal Shalansky testified in-chief as follows: a. She has been a member of the Regina Police Service for 15 years. b. She has been the High Risk Offender Coordinator since mid January 2015. She supervises individuals placed on

section 161 Court Orders. c. She has been supervising Mr. Allaby since mid January 2015. They have met on a weekly basis at the Regina Police Station. d. On one occasion she had a conversation with Allaby about a place he was not permitted to be. Mr. Allaby told her he had planned on going to a church service with a friend of his named Bill, who was a Chaplain. She told him at that time he would not be allowed to go to church because children would be expected to be there. He agreed with her that would probably be in violation of his conditions. e. Mr.

Allaby was arrested and charged with these offences on April 9, 2015. She was not aware that Mr. Allaby had been attending the RPL until she was approached by a witness. She knew he went to the mall on occasion and Tim Hortons. f. Mr. Allaby did not tell her he was going to the RPL. g, She considers the library to be a community centre.

There is every reason to believe that children attend the library, there are programs there for all ages of children which is publicly advertised and there is an lounging area accessible from both doors to the library where you can encounter children of all ages, from babies to age 16. h. Mr. Allaby told her he wanted to find employment in the food and beverage industry. He told her he prepared a resume, made some phone calls, sent some emails and had some meetings with managers. She could not remember him telling her he was using the internet looking for jobs.

[ 16 ] Corporal Shalansky testified on cross-examination as follows: a. On a few occasions she had discussions with Mr. Allaby about his efforts to find work in Regina. Mr. Allaby had a cell phone with wi-fi connection. b. She is aware that there are computers available at the library for people with a library card. She agreed that public libraries are good destinations for people with no money to hang out because they are free. c. She never gave Mr. Allaby a definition of a community centre. [ 17 ] Robert Allaby testified in his own defence on all the charges.

For ease of reference I will set out his testimony relating to relating to Information 44841004 (Regina Public Library) in paragraphs 18 and 19. I will set out his testimony relating to Information 31503882 (Victoria Park charges) at paragraphs 22 and 23. [ 18 ] On the charges relating to the Regina Public Library Mr. Allaby testified in-chief as follows: a. He is 52 years of age. b. He is aware that he is on a lifetime order pursuant to

section 161 not to go certain places. He plead guilty to a charge of breaching his

section 161 order in January 2015. c. Prior to the charge before the court he did not have any discussions with his probation or parole officers with respect to the meaning of a community centre. d. Prior to the charge before the court he told his probation officer, Ms. Stewart that he was going to the library. Ms. Stewart asked him at one of his visits with her what he does with his days. Mr. Allaby told Ms. Stewart that he spends part of his day at the library going on the internet, looking at job sites and to send off emails for jobs. He also told her he went on facebook and to look for books for reading. e.

He previously lived in Vancouver. While living in Vancouver he had discussions with parole and probation officers about his ability to go to libraries while on the

section 161 order. He was released from custody in June 2008 and was on parole. He lived at a high risk half way house in Vancouver. He had to get written permission before he could go to any place. He also had to sign out where he went. He had written permission to go to the main library in Vancouver. At this half way house he signed out to go to the main library many times. There are similarities between the Vancouver and Regina library. Both have a kid’s

section down stairs. The main and upper floors are open to anyone. He never went to the kid’s

section at the RPL. f. In January 2009 he was placed in a different lower risk half way house in the Mayfair area of Vancouver. He used google to find the closest library to him. He wanted to get reading material. The second half way house also required the residents to sign out where they were going. He signed out to go to the library in his new neighbourhood. He went to the address which he found for the library. The library was located in the lower portion of the building that housed a community centre. The building had a sign on it which said community centre.

He looked around the outside of the building for a way to get into the library. The only entrance he saw was located at the community centre door. He went in this entrance and immediately went to his left to the library where he got some books. The next day his parole officer breached him for being in a community centre. He was incarcerated for 5 months. When he was released

from custody he was arrested and charged by the police for breaching his 161 order for going to the community centre. He was released into the community on house arrest for 6 months. The 161 charge was withdrawn in November 2009. g. On March 17, 2010 the National Parole Board decided to revoke his statutory release and impose special conditions on his statutory release [Exhibit D-1]. A change was made to his parole conditions. Now he was to avoid attending libraries. h. Mr. Allaby came to Regina in April 2014. He believes that he began going to the main branch of the RPL in January 2015.

He went there mostly every day. He was aware that the basement of the Regina Public Library held a children’s section. He did not go to the children’s section. When he went to the RPL he usually stayed there for 15 minutes to 1 hour. He lived at a Salvation Army residence in Regina. The Salvation Army kicked the residents out at 9:00 a.m. He and some other residents would often arrive at the RPL around 9:30 a.m. There were not many people at the RPL at that time of day. i. He was in court when Corporal Shalansky testified. He had a conversation with Corporal Shalansky about where he could go and couldn’t go.

He met a Chaplain while he was in jail about a year ago. The Chaplain invited him to go to a church service with him. He wanted to go to the church service, however, he decided to check with his Probation Officer and Corporal Shalansky first. Both said no. He did not go to a church service. j. Corporal Shalansky never gave him a definition of what a community centre is. ` k. Mr. Allaby and his probation officer had a discussion on what a community centre is after he was arrested for going to the library. He mentioned to his probation officer that he had previously told her that he was going to the library.

She told him that she didn’t recall him saying that to her and if he had she would have told him not to go there. l. For a time when he lived in British Columbia he was allowed to go into a library. He continued going to the library when he came to Regina. He did not understand that the library in Regina was a community centre. When he was released on bail respecting these charges, there was a new condition that he could not go to the library. [ 19 ] On the charges relating to the Regina Public Library Mr. Allaby testified on cross- examination as follows: a. Sometimes he was at the RPL more than one time a day.

He usually went to the RPL at 9:30 a. m. Sometimes he would go to the RPL around 6:30 p.m. He mostly went there with Joey Edwards and an older man. He does not ever recall seeing children at the RPL on the main and second level. He never went to the children’s library in the basement. b. After he was released from custody in Vancouver, the Parole Board added a condition that he was not to attend libraries. As a result he stopped going to the main library in downtown Vancouver. When he moved to Regina he was no longer on parole. c. He agrees his probation officer read the probation order to him. d.

He spoke to his probation officer about attending a church service on the advice of the Chaplain. The probation officer said no. e. It never crossed his mind to check with his probation officer to see if he could

attend the library. f. Sometimes teenagers from Street Culture or that were homeless would say hello to Joey at the library. The teenagers were not there to see him. At the time he and Joey gave people the impression that they were uncle and nephew. If Joey was not with him at the library sometimes teenagers waved at him to acknowledge him. Evidence Relating to Information 44841004 : Mr. Allaby in Victoria Park James Hall [ 20 ] James Hall testified in-chief as follows: a. Mr. Hall is 45 years old and is originally from Texas. He works at Street Culture Emergency Youth Shelter in Regina on 11 th Avenue.

This is a temporary homeless shelter for youth who are between 15 and 18 years of age. b. In April 2015 two police officers came to the Youth Shelter. They showed him a “mugshot” of Robert Allaby and told Mr. Hall his name. The officers and asked if had seen Mr. Allaby and another man around a youth by the name of Joey Edwards who had previously stayed at the shelter and one of Street Culture’s peer homes. He thinks Joey Edwards is now 18 or 19 years of age. He described Joey as being a troubled youth with diminished capacity. c. On June 26, 2015 he was driving to work.

While on his way to work he proceeded north on Albert Street and turned right onto Victoria Avenue. While driving eastbound on Victoria Avenue he drove past Victoria Park. He saw two men with their shirts off, coming out of Victoria Park. One man was young. He recognized him as being Joey Edwards. The other man was older between 50 - 60 years of age. He recognized the older man to be the man in the “mug shot” the police had showed him in April, Mr. Allaby. In addition to having their shirts off, Mr. Hall observed that the two men had their hands down the back of each others jeans up to the mid forearm.

This really grabbed his attention. He had never seen anything like that before in the four years he had lived in Regina. d. “When I saw them they were kind of parallel to the play structure and coming out of the park on an angle, like maybe they cut through or something. I didn’t see them before, so I don’t know.” The men were situated in the eastern, south side of Victoria Park. They were about 15 to 20 yards inside the park. The two men walked on a pathway in the park between two flower beds and onto a sidewalk and then proceeded west on Victoria Avenue towards Albert Street.

He estimates he saw the two men in the park for 5 seconds. e. When he saw the two men in the park there was no one else around them in the immediate area. He recalls seeing a mother and two children in the park around 100 yards away from the two men. f. When he made this observation he was in his car eastbound on Victoria Avenue in the eastbound lane. Along this route he was stopped twice at red lights and he was able to able to observe the two men walking for between 45 to 60 seconds. Once the men were out of his peripheral view, he observed them in his side view mirror. g. He kept on going to work.

At work he spoke to a co-worker, Alecia Moreau about what he had seen. Alecia said she had already spoke to a police officer and asked if she could pass his name along. He said yes and an officer contacted him a few days later. He made a written statement on July 3, 2015.

[ 21 ] Mr. Hall testified on cross-examination as follows: a. This incident occurred on June 26, 2015 around 1:50 p.m. to 1:55 p.m. b. Joey Edwards and Robert Allaby each had their hands down the back of the others jeans. Their arms were in the back of the others jeans to middle of the forearm, roughly between the wrist and the forearm. c. He agreed that when he provided a statement to the police he said the two men had their hands down the back of the others’ jeans up to the wrist. d. When he noticed the two men they were exiting the park at an angle on a pathway. They were about 15 yards into the park.

He saw them in the park for about five seconds. e. When he saw the two men he thought about calling the police. “If I could get them quick enough while they were around the park.” This is because earlier in April the police said they were looking for Joey Edwards. This was also because after the police visit in April he googled Mr. Allaby’s name. Mr. Hall added that after what he saw on the internet he put two and two together and thought Mr. Allaby may be on probation which might prevent him from being around a place where children or youth may congregate. f.

When the police came to Street Culture in April 2015, Mr. Hall viewed the mug shot of Mr. Allaby for approximately 30 seconds. The police officers did not leave the mug shot of Mr. Allaby at Street Culture. However, after this his co-worker, Alecia Moreau showed the staff at Street Culture the same mug shot of Mr. Allaby and posted it on a bulletin board. Mr. Hall saw this picture on a regular basis and became familiar with it. g. When Mr. Hall saw the two men his car came to a complete stop twice. He noticed the two men as he pulled up to the cars stopped in front of him at the first red light.

He had the full cycle of the light to observe the two men walking. As the men left his sight and he went to the next red light, he observed the two men in his rear view mirror. The closest distance between the two men and Mr. Hall would have been the width of three normal car lanes or approximately twenty five to thirty feet. Mr. Hall estimated that he had 10 seconds to view the men`s face straight on, 10 additional seconds to view the side of the men`s faces and another 10 seconds to view the back of the men. h. Mr. Hall first noticed that the two men were shirtless and of different ages.

At this time he did not observe where their hands were. Mr. Hall saw where the men’s hands were when they walked by five seconds later. i. Mr. Hall observed a woman with a stroller and two children aged approximately 3-4 and 2 in the southwest quarter of Victoria Park. Robert Allaby [ 22 ] On the charges relating to being in Victoria Park Mr. Allaby testified in-chief as

follows: a. He is familiar with Victoria Park in Regina. b. He and Joseph Edwards are in a same sex partner relationship. c. He has kidney disease. On Friday June 26, 2015 he went to see his kidney specialist with Joseph Edwards. His appointment was at 10:45 a.m. This doctor’s office is located on 11 th Avenue and Winnipeg Street in Regina. The doctor was running very late. He and Joseph left the doctor’s office around 1:50 p.m. d. After leaving the doctor’s office he and Joseph walked to Victoria Avenue. They walked westbound on Victoria Avenue to the downtown area.

They were on their way to the Safeway in the Cathedral area of Regina to meet Mr. Allaby’s niece Shawna around 2:00 p.m. e. It was a beautiful day. He and Joey were shirtless and holding hands as they walked. The two men walked on the sidewalk as they passed by Victoria Park. f. He denied that he and Joey Edwards had their hands down each others’ pants as they walked. He and Joey Edwards did not go into Victoria Park that day. g. He met Joey at the Salvation Army homeless shelter. Joey was 18 years of age. They were getting to know each other. He and Joey would go to the library and Tim Horton’s often.

Joey introduced Mr. Allaby to his friends. He would always ask Joey’s friends how old they were due to his conditions. The youngest friend was 16. A couple of Joey’s friends were 20. Mr. Allaby told Joey why he was asking people their age. Some of Joey’s friends were from Street Culture which he found out was a homeless shelter for youth. h. Joey and Mr. Allaby would often spend their evenings with an older man at a concrete bandstand on 12 th Avenue. He and Joey would hold hands. One evening a round 7:00 p.m. a woman he came to know as Alecia Moreau approached Joey and Mr. Allaby at the bandstand. She knew Joey.

She asked the two men if they were father and son. Joey said “No, we have pride”. Alecia asked what that meant. Mr. Allaby told her that this means we are gay. Ms. Moreau asked for their ages. They said they were 52 and 18. Ms. Moreau said that what they were doing would be frowned upon quite heavily in Regina, particularly in this area of downtown. She said that they should be careful. He understands that Alecia Moreau runs a soup kitchen and is associated with Street Culture. i. Around 9:30 p.m. that same evening two police officers came to the Salvation Army. He and Joey were outside with some other people.

The officers came over to the group and asked “Who was Joey?” One officer pulled Joey aside. One Sergeant pulled Mr. Allaby aside and asked for his name. He gave the officer his name. The officer asked Mr. Allaby if he knew anything about Joey threatening a street youth with a pogo stick. He told the officer he did not. The officer told Mr. Allaby that he got a phone call from a street culture lady that one of her youth had called and said Joey had threatened him with a pogo stick. He also told the officer that he was on a

section 161 order. The officers then left. j. In January 2015 Mr. Allaby entered 3 guilty pleas to charges of breaching his condition not to be in parks. At that time he had served the equivalent of 11 months in custody as a result of guilty pleas. Under no circumstances would he go into a park again. [ 23 ] Mr. Allaby testified on cross-examination on the Victoria Park charges as follows: a. He heard the testimony of Mr. Hall. He acknowledges that he was in the area of

Victoria Park on June 26, 2015. It was hot. He did not have his shirt on. b. His niece was getting her nails done at the Cathedral area of the city. He and Joey were going to meet her at the Safeway in Cathedral at 2:00 p.m. They did not arrive at 2:00 p.m., they were running late. c. He denied having his hand down Joey’s pants. He denied being in Victoria Park. He and Joey walked on the sidewalk on Victoria Avenue on the same side of the street that the park is on. He did not stand on the edge of the park or on the grass. d. The first time he heard that Alecia was showing his picture and a newspaper

article about him to people at Street Culture was from a 27 year old female acquaintance of Joey. She said she had just been at Street Culture. e. He still has a relationship with Joey. f. He suggested to his then lawyer, Jennifer Calderbank to find out if there is any video surveillance of Victoria Park. He also asked his Chaplain if he would walk the area, look at buildings and in the park to see if there were any cameras. He was told the Hotel Saskatchewan has a video camera which only shows one lane of traffic on Victoria Avenue. It does not show the park.

He was also told that the Canada building has a video camera that points to the park. But he is not sure that it has video of June 26, 2015. g. He has never met Mr. Hall before. Joey Edwards [ 24 ] Joey Edwards was subpoened by the defence. Mr. Edwards testified in-chief as follows: a. He is 19 years of age. He turned 19 on June 4, 2015. b. He knows Robert Allaby. He and Mr. Allaby are in a loving and caring relationship at the moment. He was in a relationship with Mr. Allaby in June 2015. c. On June 26, 2015 he and Mr. Allaby were walking on the sidewalk on Victoria Avenue.

This sidewalk is located on the same side of the street as Victoria Park across the street from the Hotel Saskatchewan. They did not go into the park. They went to the Safeway on 13 th Avenue in the Cathedral neighbourhood. They were coming from Mr. Allaby’s kidney doctor which is located on 11 th Avenue. d. As he and Mr. Allaby were walking they were holding hands. He does not recall how he and Mr. Allaby were dressed. e. They walked on the sidewalk along Victoria Avenue until they came to Albert

Street. They then turned onto Albert Street and then 13 th Avenue. They went to the Safeway. [ 25 ] Joey Edwards testified on cross-examination on the Victoria Park charges as follows: a. He met Mr. Allaby in January 2015 in Regina. They began a relationship about 2 months later. He is still in a relationship with Mr. Allaby now. b. He has never discussed the incident of June 26, 2015 with Robert Allaby. He has not talked to Robert about his testimony today. Robert has not talked to him or suggested some answers. c. He doesn’t keep track of time. This happened around noon, mid day. d.

It was sunny out, mid temperature. He doesn’t remember what he was wearing. He denied that he and Robert’s hands were down the back of each other’s jeans. They were holding hands. e. He said Street Culture started to spread a bunch of rumours about Mr. Allaby. No one showed him a picture of Mr. Allaby at Street Culture. He just heard about a picture of Mr. Allaby at Street Culture. f. There is no possibility when he was walking down Victoria Avenue that he stepped into the park. He grew up in Regina. He has never been in Victoria Park. He has been past Victoria Park, he has never been through it.

ISSUES [ 26 ] There are several issues before the court for determination: Information 44841004

(1) Is the main branch of the Regina Public Library a community centre?

(2) Has the Crown proved beyond a reasonable doubt that the accused attended the RPL?

(3) If the answer to issue 2 is “Yes”, is there proof beyond a reasonable doubt that the accused intended to breach his two court orders? Information 31503882

(1) Whether the Crown has proved beyond a reasonable doubt that Mr. Allaby was in Victoria Park on June 26, 2015? ANALYSIS on the charges set out in Information 44841004 Is the main branch of the Regina Public Library a community centre? [ 27 ] In R v McIntyre, 2015 ONSC 70 [McIntyre ] the court considered the meaning of the words “community centre”. In McIntyre , the accused was subject to an order issued pursuant to

section 161 of the Criminal Code which prohibited him from attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare center, school ground, playground or community centre, for a period of ten years. The accused was arrested at the Hersey Sports Zone (HSZ), a recreational facility owned by the City of Mississauga, where he was participating in an adult indoor soccer game. He played on a team that was part of an adult league.

The court determined that the HSZ is a multiple function sports/recreation facility for children and adults. The trial judge ruled that the Crown had failed to prove that the HSZ was a community centre. On appeal Justice Bielby found otherwise at paragraphs 60 -74: 60 The trial judge's third ground for acquitting the respondent is her determination that the HSZ has not been proven to be a community center. 61 In the Concise Oxford English Dictionary, thumb index edition, community center is defined as a place providing educational or recreational activities for a neighbourhood.

Clearly, the HSZ provided recreational activities and the neighbourhood, in this case, is the City of Mississauga. 62 I can only conclude, given the purpose of

section 161, that is, the protection of persons under the age of 16 from sexual predators, that community centers were included because they would be places where children would likely attend. 63 While "community center" is not defined in the Code , applying the ordinary meaning to words suggests the HSZ is a community center. The fact that the words "community center" were not included in the signage or on the website for the City of Mississauga is not determinative of the issue. What is determinative is the use of the facility and the intended target group which includes children.

64 If we are to interpret statutes using ordinary language, the HSZ is a community centre and there is likelihood that persons under the age of 16 are present within the facility. It is to be used by and for the benefit of the citizens of Mississauga and the activities therein are for persons both over and under the age of 16. 65 There is evidence that, while the respondent was present at the soccer field, persons under the age of 16 were enjoying activities in other parts of the HSZ.

The adult league played between the hours of 3:00 p.m. and 5:00 p.m. weekdays, at a time of day when children have finished school and would be able to participate in activities at the facility. 66 Mr. Kilmartin, who works at the HSZ, testified that it is a multi-sport facility owned by the City of Mississauga. He testified that it is open to members of the public. The City operates a number of programs and tenants also operate programs. He described the programs as both drop in and league based. 67 Mr.

Kilmartin testified that participants are "from age two and a half, three years old, right up to the oldest participant who is in his seventies". 68 R. v. Peron [2009] O.J. No. 2534 is a decision of the Ontario Court of Appeal. In that case, the issue was whether or not the Super Ex held at Landsdowne Park was a public park as referenced in section 161(1)(a). 69 At paragraph 12, the Appeal Court sets out the approach to statutory

interpretation as follows, as referenced herein, at paragraph 20. 70 From paragraph 13, I quote: The purpose of section 161(1)(

a) is to protect children from becoming the victims of sexual offences at the hand of those who have previously committed certain specified offences. The protection of this particularly vulnerable group in Canadian Society must inform the task of construing the phrase in issue in this appeal. 71 From paragraph 14, I quote: Section 161(1)(

a) addresses the legislative objective by specifying a number of locations that an offender can be prohibited from attending... In other words Parliament has specified locations in s. 161(1)(

a) because of what goes on there makes it likely that young children will be present.

72 At paragraph 20, the appeal court stated: In my view, to breach this term of a prohibition order under s.161(1)(a), the person bound by it must be attending at a defined or discrete location that is accessible to the public for recreational use that involves or is reasonably likely to involve children under the specified age...Construed in this way, the phrase "public park...where persons under the age of fourteen years are present or can reasonably be expected to be present" best serves the legislative purpose and is most faithful to the ordinary and grammatical sense of the words in their legislative context.

Moreover, it provides the clarity necessary for the person bound by the order to know the locations that must be avoided. 73 While I recognize that the words "community center" are not included in the same clause of section 161(1)(a), the same logic prevails. The intention of the

section is to protect children so it refers to locations where persons under the age of 16 are likely present. In considering whether the HSZ is a community center as referenced in the section, there would have to be likelihood that persons under the age of 16 would be present at the HSZ. 74 Given the nature of the facility and its use and the evidence presented, I find that it is a community center within the meaning of section 161(1)(

a) and that the trial judge erred in that regard. [ 28 ] If I were to follow the definition of community centre and approach taken in McIntyre this would lead me to conclude that the RPL is a community centre. [ 29 ] The purpose of the prohibition and probation orders is to protect children from becoming the victims of sexual offences at the hand of those who have previously committed certain specified offences. I agree that the protection of children in Canadian Society should inform the task of construing the phrase community centre.

Construed in this way, the phrase "community centre(s)...where persons under the age of fourteen years (or under the age of 16 years) are present or can reasonably be expected to be present" best serves the legislative purpose and is most faithful to the ordinary and grammatical sense of the words in their legislative context. [ 30 ] Mr. Barber testified that the RPL is both a library in the traditional sense of lending books, DVDs, CDs and magazines and that it has developed into a broader cultural organization .

In addition to housing a separate Children’s Library, the Dunlop Art Gallery and a film theatre the RPL offers 5500 to 6500 programs a year which are attended by 120,000 to 140,000 people. Some programs such as reading and writing are offered to pre-schoolers and children. Some programs are offered to teenagers and adults. The RPL is open to all age groups. [ 31 ] I am of the view that the evidence of Mr.

Jeff Barber establishes that the RPL is a place that provides educational and recreational activities for the neighbourhood, in this case, the city of Regina. [ 32 ] However, I prefer a different definition of community centre and approach to interpreting those words. [ 33 ] The Canadian Oxford Dictionary 1998, Oxford University Press defines community centre as follows:

n. a place providing social and recreational facilities for a neighbourhood. [34] I am of the view that Mr. Jeff Barber ‘s evidence does not clearly establishes that the RPL is a place that provides social and recreational activities for the neighbourhood, in this case, the city of Regina. [35] Moreover, while I do not discount that the need to protect children must inform the task of construing the phrase communitycentre, I am mindful of other law which is applicable to the

interpretation of these words. In R v Jacobs [2014] N.J. No. 10 JudgeWalsch states as follows at paragraphs 23 to 26: 23 When dealing with statutory

interpretation, the Supreme Court of Canada stated the following in the case of Bell ExpressVu LimitedPartnership v. R., 2002 SCC 42 , [2002] S.C.J. No. 43, at para. 26: ... Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 24 In R. v. McIntosh (1995), (SCC), 95 C.C.C. (3d) 481, the Supreme Court of Canada stated the statute's words areto be given their plain meaning: 18 In resolving the interpretive issue raised by the Crown, I take as my starting point the proposition that where noambiguity arises on the face of a statutory provision, then its clear words should be given effect.

This is another way of asserting what issometimes referred to as the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plainmeaning of its terms. 25 Chief Justice Lamer, writing for the majority, went on to make the following observations at paragraphs 27 and 38 with respect tostatutory

interpretation: 27 Third, in this case we cannot lose sight of the overriding principle governing the

interpretation of penal provisions. In Marcotte v.Deputy Attorney General for Canada, (SCC), [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle asfollows, at p. 115: Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal I would have to find for theappellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority isneeded for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statuteaffecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought tobe enforced. ... 38 As stated above, the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved

in a manner most favourable to accused persons. Moreover, in choosing between two possible

interpretations, a compelling consideration must be to give effect to the

interpretation most consistent with the terms of the provision. As Dickson J. noted in Marcotte , supra, when freedom is at stake, clarity and certainty are of fundamental importance. He continued, at p. 115: If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication. 26 The same holds true, I find, in the case of court orders. [emphasis added] [ 36 ] Construed in this way, given the nature of the RPL, and its use I find that the Regina Public Library is not a community centre within the meaning of the

section 161 Prohibition Order (Exhibit P-1) and the clause 5 of the Prohibition Order (Exhibit P-2). This is consistent with Mr. Allaby’s experience in Vancouver. [ 37 ] In the event I am wrong with respect to my decision as to the meaning of the words community centre, I will now turn to the rest of the analysis.

(2) Has the Crown proved beyond a reasonable doubt that the accused attended the RPL? [ 38 ] The evidence clearly reveals that Mr. Allaby attended the RPL between February 15, 2015 and April 8, 2015.

(3) If the answer to issue 2 is “Yes”, is there proof beyond a reasonable doubt that the accused intended to breach his two court orders? [ 39 ] In R v Eby 2007 ABPC 81 the court held that a breach of probation offence, contrary to

section 733.1 of the Criminal Code was not proven unless the Crown demonstrated the accused knowingly acted contrary to the probation order or was wilfully blind and engaged in conduct that was contrary to the probation order. I am also of the view that this reasoning also applies to offences contrary to section 161(4) of the Criminal Code . [ 40 ] Mr. Allaby’s uncontradicted evidence revealed he was released on parole for a period of time in 2008 and he had written permission to go to the main library in Vancouver. He went to the main library in Vancouver many times without incident or charge. Mr.

Allaby subsequently breached a condition of his parole when he lived in another area of Vancouver by going through the door to a community centre, that also housed a library. The National Parole Board’s decision of March 17, 2010 [Exhibit D-1] reveals that Mr. Allaby began a statutory release on December 31, 2009. His statutory release was suspended less than a week later after he attended a community centre which also contained a library. The National Parole Board revoked his parole on March 17, 2010 and imposed a new condition on his next statutory release that he was to avoid libraries. When Mr.

Allaby moved to Regina in 2014 he was no longer on parole. As a result, he understood that he no longer had to avoid libraries. [ 41 ] The evidence also reveals that neither his probation officer, Ms. Stewart or Corporal Shalansky provided Mr. Allaby with a definition of “community centre”.

[42] In the present case I find that when Mr. Allaby attended the RPL he believed he was in a public library and not a community centre. His past experience while living in Vancouver supports his belief that a library is distinct from community centre. As a result, I am of the view that the Crown has not proved the mens rea component of the chargesbefore me. Put another way, I am not satisfied beyond a reasonable doubt that Mr. Allaby knowingly acted contrary to the prohibitionand probation order or was wilfully blind and engaged in conduct that was contrary to the prohibition and probation order.

As a result Ifind him not guilty of the offences set out in Information 44841004. ANALYSIS on the charges set out in Information 31503882 Whether the Crown has proved beyond a reasonable doubt that Mr. Allaby was in Victoria Park on June 26, 2015? [43] In this case there are two different accounts as to the precise location of Mr. Allaby on the afternoon of June 26, 2015. On the one hand there is the evidence of Mr. Hall who testified that he saw Mr. Allaby and JoeyEdwards coming out of Victoria Park. On the other hand there is the evidence of Mr.

Allaby and Joey Edwards that they were walkingon the sidewalk next to Victoria Park and at no time went into Victoria Park. [44] In this case I must consider the doctrine of reasonable doubt as it applies to the issue of credibility and reliability of witnesses. As explained in R v Klemenz, 2015 SKCA 89, according to the Supreme Court of Canadadecision in R v W(D), (SCC), 1991, 63 CCC (3d) 397, [W(D)] there are 2 situations where the trier of fact must acquit: (

i) if they believe the accused, and (ii) even if they do not believe the accused, if they have a reasonable doubt about his guilt based on the evidence as a whole [45] W(

D) listed the questions as follows: First, if you believe the accused, obviously you must acquit; Secondly, if you do not believe the evidence of the accused, but you are left in reasonable doubt by it, you must acquit; Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [46] In this case Mr. Allaby testified in a straight-forward manner both in-chief and on cross-examination.

He accounts for his time prior to and following the alleged incident in Victoria Park on June 26, 2015. He testified that he was at his kidney doctor’s office on 11th Avenue and Winnipeg Street from 10: 45 a.m. until about 1:50 p.m. He indicated that he and Joey Edwards were making their way by foot to the Safeway on 13th Avenue to meet his niece. He detailed the path theyfollowed, including their shirtless walk along the sidewalk adjacent to Victoria Park on Victoria Avenue. He denies being insideVictoria Park. He also denies Mr.

Hall’s assertion that he and Joey Edwards had their hands down the back of each others pants. Hemaintains that he and Joey were holding hands. He testified that he sought out video surveillance footage of Victoria Park that day butwas unsuccessful. This was corroborated by Corporal Shalansky. Mr. Allaby candidly admitted that he had previously intentionally

gone into a park and did not want to repeat this act as it had resulted in a period of incarceration. There is no detail in his testimony which is inconsistent or that I can point to that suggests he is being untruthful other than his obvious self interest in avoiding another criminal conviction for being in a park. [ 47 ] Mr. Allaby’s testimony that he was not in Victoria Park is corroborated by Joey Edwards. Mr. Edwards also testified the two men were walking on the sidewalk next to Victoria Park. He also maintained that he and Mr. Allaby were holding hands and were not otherwise touching one another.

Given his relationship with Mr. Allaby it is not inconceivable that he would have no desire to implicate Mr. Allaby in any crime. However, there is nothing in the evidence to suggest he is being untruthful. [ 48 ] The evidence of Mr. Hall was very detailed both on direct and on cross- examination. He likewise testified in a straight-forward manner. There is no detail in his testimony which is inconsistent. However, the evidence in my view, does reveal that Mr. Hall rightly or wrongly has a negative bias towards Mr. Allaby. Mr. Hall described Joey as being a troubled youth with diminished capacity.

In April 2015 police attended Street Culture and showed Mr. Hall what he described as a “mugshot” of Mr. Allaby who is much older than Joey. After the police visit Mr. Hall googled Mr. Allaby’s name and after what he saw on the internet he put two and two together and thought Mr. Allaby may be on probation which might prevent him from being around a place where children or youth may congregate. He was right. [ 49 ] In this case I do not believe all the evidence of the accused, however, I am left with a reasonable doubt about his guilt based on the evidence as a whole. As a result, I find the accused not guilty.

Conclusion [ 50 ] I find the accused not guilty of all the charges before the court. _____________________________ M. Hinds, J