DATE: 19991008
DOCKET: C27253
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., CARTHY and DOHERTY JJ.A.
BETWEEN: )
) Alison Wheeler and
HER MAJESTY THE QUEEN ) Tyler Hodgson appearing as
) amicus curiae
(Respondent) )
)
- and - ) Scott Hutchison and
) Tina Yuen
B. E. * ) for the respondent
)
(Appellant) )
) Heard: March 4-5, 1999
)
On appeal from the verdicts returned on May 6, 1997 by a jury
presided over by Mr. Justice J.A. Forget.
DOHERTY J.A.:
Background:
[1] The appellant was charged with eight offences. Seven of the
charges involved his two sons, J.E. and K.E., and two step-
daughters, M.W. and L.W. The charges alleged:
-
sexual assault of M.W. between February 1, 1987 and March
31, 1987;
-
sexual assault of M.W. between January 1, 1992 and March 2,
1993;
-
sexual assault of his younger step-daughter, L.W., between
January 1, 1992 and March 2, 1993;
-
possession of stolen property;
-
participating in sexual immorality thereby endangering the
morals of M.W. between January 1, 1992 and March 2, 1993;
-
participating in sexual immorality thereby endangering the
morals of L.W. between January 1, 1992 and March 2, 1993;
-
participating in sexual immorality thereby endangering the
morals of his son, J.E., between January 1, 1989 and March 2,
1993; and
-
participating in sexual immorality thereby endangering the
morals of his younger son, K.E., between June 1, 1989 and March
2, 1993.
[2] M.W., the appellant's older step-daughter, was born on
January 15, 1981 and was 16 years old at the time of the
appellant's trial in May 1997. L.W. was born on December 30,
1982 and was 15 at the time of the trial. J.E. was 10 years old
at the trial and his younger brother, K.E., was 8 years old at
that time. The children were living with the appellant and their
mother when the alleged offences occurred. Their mother, the
appellant’s wife, was charged with the appellant on the counts
involving the endangering of the morals of the children.
[3] With the consent of the Crown and the appellant, the three
sexual assault charges were tried prior to the other charges.
The jury convicted the appellant on all three counts.
[4] A second trial on the remaining counts before a different
jury but the same trial judge proceeded immediately after the
completion of the first trial. The appellant pleaded guilty to
the charge of possession of stolen property. The jury convicted
the appellant and his wife on three of the counts alleging the
endangering of the morals of the children. The jury acquitted on
the charge involving K.E., the younger son. He was only three
years old at the end of the time frame specified in the
indictment.
[5] The trial judge sentenced the appellant to two years
consecutive on each of the three sexual assault convictions. He
sentenced the appellant to nine months on each of the three
charges involving endangering the morals of his children. The
sentences on the two charges involving his daughters were made
concurrent to the sentences imposed on the sexual assault
convictions. The nine-month sentence imposed on the charge
involving J.E. was made consecutive to the other sentences. The
trial judge also imposed a sentence of three months consecutive
on the possession of stolen property conviction. In total, the
appellant received a sentence of seven years.
[6] The appellant appealed all of his convictions, except that
of possession of stolen property as well as his sentences. He
subsequently abandoned his appeal from the convictions on the
sexual assault charges. His conviction appeal is now limited to
the convictions on the charges relating to the endangering of the
morals of three of his children. That offence is created by s.
172 of the Criminal Code. The sentence appeal is directed at the
totality of the sentences imposed.
[7] The appellant does not have counsel on the appeal.1 The
appeal proceeded as an inmate appeal.2 When it became apparent
that the appellant intended to challenge the constitutionality of
s. 172 of the Criminal Code, the provision under which he was
charged with endangering the morals of his children, the court
appointed amicus curiae to address the legal issues raised by
that challenge. At the outset of the argument of the appeal, Ms.
Wheeler, who with Mr. Hodgson, appeared as amicus curiae, advised
the court that the appellant had asked her to advance the non-
constitutional grounds of appeal on his behalf as well. Counsel
graciously agreed to do so and the court gratefully accepted
their assistance.
[8] This court has had occasion in the past to acknowledge the
valuable assistance provided by Ms. Wheeler on inmate appeals.
Once again, she (and her colleague, Mr. Hodgson) have acted in
the finest tradition of the bar and provided valuable assistance
to the court.
[9] As in most inmate appeals, a full transcript of the evidence
was not available. The court did, however, have the trial judge’s
charge to the jury and the answer to several factual questions
asked by the jury during their deliberations. Those materials
permit an adequate summary of the evidence and the positions of
the parties.
[10] The Crown relied on the following evidence in support of the
charges involving endangering the morals of the appellant's
children:
-
On one occasion, the appellant and his wife allegedly
engaged in sexual intercourse in the family swimming pool in the
presence of the children. This evidence came from neighbours.
The children could not recall any such incident.
-
The appellant and his wife engaged in various group sexual
activities in the home and videotaped those activities. Copies
of the videotapes were kept in the home.
-
The appellant’s wife participated in lesbian sexual activity
in the house. That activity was videotaped and copies of the
videotapes were kept in the home.
-
The appellant videotaped his wife masturbating with a
vibrator. There was evidence that M.W. saw that videotape.
-
The appellant videotaped himself masturbating and
ejaculating on his wife. There was evidence that one of the
children, J.E., was present when the video was made or that he
saw the video at some point.
-
There were sexually suggestive photos of the appellant’s
wife in the home.
-
There were pornographic videos and books in the home.
-
There were vibrators and other sexual devices in the home.
-
The appellant and his wife placed sexually explicit
advertisements in newspapers.
[11] In addition to this evidence, the Crown relied on the
evidence of M.W. and L.W. that they were repeatedly sexually
assaulted by the appellant during the time frame in the
indictment. These were the same assaults that gave rise to two
of the three sexual assault convictions at the first trial. M.W.
and L.W. said that the appellant repeatedly inserted his finger
in their vaginas and on occasion rubbed his penis between their
legs. M.W. also said that the appellant performed oral sex on
her and inserted a vibrator in her vagina on one occasion. The
appellant’s wife was not implicated in these assaults.
[12] The appellant denied that he sexually assaulted his
daughters. He and his wife also denied that they engaged in
sexual intercourse in the presence of the children in the
swimming pool. They acknowledged that they engaged in various
sexual activities involving other persons in the home. They also
admitted that they made videotapes of some of their sexual
activity. They insisted, however, that the children were not in
the home when this sexual activity occurred and that the
videotapes and other explicit sexual material were stored out of
the reach of the children. They also testified that they were
careful not to have sexually explicit conversations in front of
the children.
The Constitutional Issue
(a) The question to be resolved
[13] At trial, counsel submitted that s. 172 infringed s. 7 and
s. 2(b) of the Canadian Charter of Rights and Freedoms. The s. 7
argument rested on counsel’s claim that the prohibition created
by s. 172 was so vague and so broad as to be incapable of giving
the accused proper notice of the conduct prohibited by the
section. Counsel argued that the broad language of the section
defied meaningful definition and invited arbitrary prosecution.
The trial judge, in careful and thorough reasons, rejected those
submissions and found no violation of s. 7.
[14] The trial judge concluded that s. 172 infringed the
appellant’s right to freedom of expression under s. 2(b) of the
Charter. He further held, however, that s. 172 was not
unconstitutional because the limit it imposed on freedom of
expression was justified within the terms of s. 1 of the Charter.
[15] In their factum, amicus curiae submitted that s. 172
violated s. 2(b), s. 2(d) (freedom of association) and s. 7 of
the Charter. In oral argument counsel abandoned the arguments
except as they related to s. 2(b) of the Charter. The Crown
conceded that s.172 imposed a limit on freedom of expression and
submitted that the trial judge properly held that the limit was
justified under s. 1 of the Charter.
[16] Section 172 of the Code reads:
172. (1) Everyone who, in the home of a child, participates
in adultery or sexual immorality or indulges in habitual
drunkenness or any other form of vice, and thereby endangers the
morals of the child or renders the home an unfit place for the
child to be in, is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
(2) [Repealed.]
(3) For the purposes of this section,
"child" means a person who is or appears to
be under the age of eighteen years.
(4) No proceedings shall be commenced
under subsection (1) without the consent of
the Attorney General, unless they are
instituted by or at the instance of a
recognized society for the protection of
children or by an officer of a juvenile
court.
[17] The section refers to participation in the home of a child
in one of four distinct activities:
-
adultery;
-
sexual immorality;
-
habitual drunkenness; or
-
any other form of vice.
[18] The section also refers to two different consequences of the
prohibited activity:
[19] In their submissions, the amicus curiae and Crown counsel
directed argument to all aspects of s. 172.
[20] The allegations in the indictment are much narrower than the
language of the Code. Each count alleged that the appellant and
his wife:
…did participate in sexual
immorality and did thereby
endanger the morals of the
child …
[21] The charge, as particularized, refers only to sexual
immorality and not to adultery, habitual drunkenness or any other
form of vice. Those alternative means of committing the offence
set out in s. 172 are quite different from conduct which
demonstrates sexual immorality. Similarly, this indictment does
not allege that the conduct rendered the home an unfit place.
That allegation is potentially broader than an allegation that
the conduct endangered the morals of the child.
[22] Given the allegations and counsel's exclusive reliance on s.
2(b) of the Charter, I think it is best to address only the
constitutionality of the section as charged in the indictment.
The other means by which the offence may be committed and the
other prohibited consequence may well give rise to different
constitutional issues. For example, at least one of the other
means of committing the offence, habitual drunkenness, would not
seem to have anything to do with s. 2(b) of the Charter, but may
give rise to arguments under other sections of the Charter.
[23] In Canadian Broadcasting Corp. v. New Brunswick (Attorney-
General) (1996), 110 C.C.C. (3d) 193 (S.C.C.), the trial judge
restricted public access to the courtroom by relying on s. 486(1)
of the Criminal Code, which allowed him to do so “in the interest
of public morals, the maintenance of order or the proper
administration of justice…”. In making his order, the trial
judge relied only on the power to ensure the proper
administration of justice. The appellant appealed the
restriction on public access and challenged the constitutionality
of s.486(1). Argument was directed by the appellant at all three
of the grounds on which the public could be excluded under the
provision. In holding that the court should limit itself to the
constitutionality of the specific part of s. 486(1) relied on by
the trial judge, La Forest J., for the court, said at p. 201:
This court has in the past exhibited a reluctance to
consider the constitutionality of legislative provisions in the
absence of a proper factual foundation; … To accede to the
appellant’s contention that the other grounds be constitutionally
reviewed would require us to conduct such review in the absence
of a factual framework, contrary to this Court’s practice.
Moreover, it would be dangerous to make a determination of the
constitutionality of the other two grounds for exclusion under s.
486(1) by extrapolation from the constitutional review of the
proper administration of justice ground; the values and
interests invoked may differ depending upon the specific
legislative context. It is best, then, to leave to another day
the constitutionality of the other two statutory grounds for
exclusion, and to focus solely on the ground relied on by Rice
Prov. Ct. J., ie., the proper administration of justice.
[24] I think the cautious approach taken by La Forest J. has
application here and that a challenge to the other aspects of s.
172 should await a case where the indictment refers to those
parts of s. 172 and the constitutional challenge goes beyond s.
2(b).
[25] The constitutional question, therefore, becomes:
Is the prohibition against participation in sexual
immorality in the home of a child thereby endangering the morals
of the child an unconstitutional limitation on the right to
freedom of expression?
(b) Does s. 172 as particularized in the indictment
contravene s. 2(b) of the Charter?
[26] The Crown accepts that the trial judge correctly held that
s. 172 limits freedom of expression. That concession is fully
supported by the highest authority: R. v. Butler (1992), 70
C.C.C. (3d) 129 at 152-54 (S.C.C.); Irwin Toy Ltd. v. Quebec
(Attorney-General) (1989), 58 D.L.R. (4th) 577 at 606-7 (S.C.C.).
The effect of s. 172 as pleaded in this indictment is to prohibit
certain non-violent activity which conveys or is intended to
convey meaning. Section 172 as charged, therefore, limits the
appellant’s right to freedom of expression.
(c) Is s. 172 as particularized in the indictment “saved”
by s. 1 of the Charter?
[27] Having found a limitation on freedom of expression, the onus
falls on the Crown to establish on the balance of probabilities
that the limit falls within the scope of s. 1 of the Charter,
which states:
The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a
free and democratic society.
(i) Interpreting s. 172(1)
[28] The reach of s. 172(1) must be measured before one can
decide whether the limit it imposes on freedom of expression is
reasonable: R. v. Butler, supra, at p. 141; R. Heywood (1994),
94 C.C.C. (3d) 481 at 509. This requires an analysis of the
elements of the offence and an interpretation of the language of
the section as reflected in the indictment.
[29] Statutory interpretation demands a reading of the words of a
statute in their ordinary and grammatical sense and in the
context of the entire provision. The purpose of the statute and
the intention of Parliament in enacting the provision must also
inform the interpretation given to the words: R. v. Gladue
(1999), 133 C.C.C. (3d) 385 at 397-98 (S.C.C.). If the language
of the provision suggests two interpretations, one which is
consistent with the Charter and one which is not, the version
which is consistent with the Charter must be preferred. That is
not to say that Charter challenges can be short-circuited at the
interpretative stage by imposing interpretations on the language
which, while consistent with Charter principles, are inconsistent
with the language of the statute: R. v. G.(B.) (1999), 135
C.C.C. (3d) 303, per Bastarche J., for the majority, at pp. 322-
23, per McLachlin J., in dissent, at p. 332; R. v. Nova Scotia
Pharmaceutical Society (1992), 74 C.C.C. (3d) 289 at 326
(S.C.C.).
[30] Section 172 as charged in this case prohibits certain
conduct – participation in sexual immorality - if that conduct
occurs in a certain place – the home of a child - and if that
conduct has a certain consequence – endangering the morals of the
child. The fault element of the offence is not expressly stated
in the section and is not directly an issue on this appeal. At a
minimum, the section requires that an accused have intentionally
engaged in the prohibited conduct: R. v. E. and F. (1981), 61
C.C.C. (2d) 287 (Ont.Co. Ct.). In my view this would include
knowledge (or at least wilful blindness) that the children were
aware of the sexually immoral conduct.
[31] The first interpretative problem arises from the phrase
“sexual immorality.” The amicus curiae submit that the phrase
captures conduct which, while contrary to community norms, does
no harm and poses no risk of harm to anyone. This submission
finds support in dictionary definitions of the word “immorality”
and in some of the case law that has considered the language of
s. 172: eg. see Ducharme v. Ducharme (1972), 7 N.S.R. (2d) 326
(N.S.S.C.T.D.).
[32] I cannot agree with the broad definition of sexual
immorality advanced by the amicus curiae. Words like
“immorality”, “indecency” and “obscenity” when used in the
criminal law context invoke an objective consideration of conduct
by reference to community standards of tolerance. That standard
moves the debate beyond mere considerations of how the community
expects people to act to considerations of what the community can
tolerate. The level of tolerance is tied directly to the harm
caused or threatened by the conduct in issue. In describing how
the community standards test should be applied to obscenity,
Sopinka J. in R. v. Butler, supra, said at pp. 150-51:
The courts must determine as best they can what the
community would tolerate others being exposed to on the basis of
the degree of harm that may flow from such exposure. Harm in
this context means that it predisposes persons to act in an
antisocial manner as, for example, the physical or mental
mistreatment of women by men, or, what is perhaps debatable, the
reverse. Antisocial conduct for this purpose is conduct which
society formally recognizes as incompatible with its proper
functioning. The stronger the inference of risk of harm the
lesser the likelihood of tolerance. …
[33] A harm-based community standard of tolerance approach has
been used to give meaning to the following phrases:
“indecent act” in s. 173 of the Criminal Code: R. v. Jacob
(1996), 112 C.C.C. (3d) 1 at 4 (Ont. C.A.);
"immoral, indecent or obscene performance” in s. 167 of
the Criminal Code: R. v. Mara (1996), 105 C.C.C. (3d)
147 at 153-56) (Ont. C.A.), aff’d. on this issue (1997),
115 C.C.C. (3d) 539 at 550-52 (S.C.C.); R. v. Ludacka
(1996), 28 O.R. (3d) 19 at 25 (C.A.); and
“acts of indecency” used in the definition of common
bawdy house in s. 197(1) of the Criminal Code: R. v.
Tremblay (1993), 84 C.C.C. (3d) 97 at 115-17 (S.C.C.).
[34] There is, however, one important difference where the
community standard of tolerance is applied to allegations of
indecency or immorality as opposed to allegations of obscenity.
Dubin C.J.O. explained that difference in R. v. Ludacka, supra,
at p. 26:
However, there is an important difference in the application
of the community standard of tolerance test when applied to
obscenity as opposed to indecency and immorality. In determining
whether a work is obscene, one considers only the inherent
aspects of the work; the context and the surrounding
circumstances are irrelevant …
Unlike the determination of obscenity,
the determination of indecency and immorality
depends on the context and surrounding
circumstances in which the conduct is being
carried on. Conduct not immoral in some
circumstances, such as when carried on in
private, may become immoral by reason of the
surrounding circumstances and the context in
which it takes place. [Emphasis added.]
[35] In Tremblay, supra, Cory J., for the majority, took a
similar contextual approach in applying the community standard of
tolerance to the word “indecency.” He said at p. 117:
In any consideration of the indecency of an act, the
circumstances which surround the performance of the act must be
taken into account. Acts do not take place in a vacuum. The
community standard of tolerance is that of the whole community.
However, just what the community will tolerate will vary with the
place in which the acts take place and the composition of the
audience. For example, entertainment which may be tolerated by
the community as appropriate for the patrons of a bar may well be
completely inappropriate for an audience of high school students.
What is acceptable in a stage production performed for adults may
be completely unacceptable if performed for elementary school
pupils in a school auditorium. … [Emphasis added.]
[36] I think the phrase “sexual immorality” in s. 172(1) must
refer to some form of conduct since the section prohibits
“participation” in sexual immorality. The conduct must be sexual
in nature and must, considering the circumstances, go beyond what
the community is prepared to tolerate. That determination is
made in part based on the assessment of the harm which may flow
from exposure by the particular audience to the conduct.
[37] I think the trial judge accurately described the concept of
sexual immorality in his instructions to the jury:
Sexual immorality to one person may not be sexual immorality
to the next person. In our case, it falls to you, members of the
jury, to determine objectively whether or not the conduct in
question is or is not sexual immorality.
In order to help you make that
determination on a objective basis, a test
known as the community standard of tolerance
test has been developed. That test is not
found on your own personal tastes but is
based on a contemporary standard of tolerance
of the Canadian community as a whole. It
matters not what you think is right for
yourselves to be exposed to but, rather, what
you would not tolerate other Canadians being
exposed to. Given that the standard is
tolerance and that what matters is what
others may be exposed to, the audience
allegedly exposed to sexual immorality is
relevant. You must therefore also consider
that tolerance will vary depending upon the
audience and the circumstances. You must
determine, as best you can, what the
community would tolerate others being exposed
to on the basis of the degree of harm that
may flow from such exposure.
Harm in this context means that it
predisposes persons to act in an antisocial
manner; in other words, a manner which
society formally recognizes as incompatible
with its proper functioning. The stronger
the inference of a risk of harm, the lesser
the likelihood of tolerance. You must
consequently ask yourselves if you think that
Canadians as a whole would tolerate their
children being exposed to the activities and
materials admitted into evidence during the
course of this trial. [Emphasis added.]
[38] Section 172 does not criminalize mere participation in
sexual immorality. That participation must produce a specific
prohibited consequence – the endangerment of the morals of the
child. To endanger is to put at real risk.
[39] The word “morals” presents the second interpretative problem
raised by s. 172(1). In giving meaning to the word “morals” in
the phrase “the morals of the child”, the approach used in
defining words like “indecent” and “obscene” should be followed.
When used in the criminal law context, "morals" cannot refer
simply to societal norms or values that society views as proper
and good. The term must have a more restricted meaning and refer
only to those core values which are central to the maintenance of
a free and democratic society. Sopinka J. aptly drew the
distinction between morality in the broad sense and morality for
criminal law purposes in two passages in R. v. Butler, supra, at
pp. 156-57:
To impose a certain standard of public and sexual morality,
solely because it reflects the conventions of a given community,
is inimical to the exercise and enjoyment of individual freedoms,
which form the basis of our social contract. …
On the other hand, I cannot agree with
the suggestion of the appellant that
Parliament does not have the right to
legislate on the basis of some fundamental
conception of morality for the purpose of
safeguarding the values which are integral to
a free and democratic society. …
As the respondent and many of the
interveners have pointed out, much of the
criminal law is based on moral conceptions of
right and wrong and the mere fact that a law
is grounded in morality does not
automatically render it illegitimate.
…
… First, the notions of moral corruption
and harm to society are not distinct, as the
appellant suggests, but are inextricably
linked. It is moral corruption of a certain
kind which leads to the detrimental effect on
society. … [Emphasis added.]
[40] These passages indicate that the concept of morality for
criminal law purposes must be restricted to those core values
which are integral to the existence of a free and democratic
society -- a society in which personal autonomy has priority
except where the exercise of that autonomy poses a real risk of
harm to others. In my view, conduct that endangers the morals of
a child is that which poses a real risk that the child will not
develop those values which are essential to the operation of a
free and democratic society. Many of those values are reflected
in the Charter: R. v. Oakes (1986), 24 C.C.C. (3d) 321 at 346.
[41] The morals of a child will be endangered by sexual
immorality where sexual conduct presents a real risk that the
child will not develop an understanding that exploitive or non-
consensual sexual activity is wrong. Similarly, if the conduct
degrades or dehumanizes women, it endangers the morals of the
child in that the child will not develop an understanding that
all persons are equal and worthy of respect regardless of gender.
Furthermore, to the extent that the conduct actively involves the
child, it may endanger the morals of that child by leaving him or
her without a proper sense of his or her own self worth and
autonomy. Finally, to the extent that the conduct imperils the
child's understanding of parents’ responsibilities to protect and
nurture their children, it may also imperil the morals of a
child.
[42] In any case, the trier of fact will have to decide whether
the sexually immoral conduct posed a real risk to the child’s
development of those values which are essential to the
maintenance of a free and democratic society. As a first step,
the trier of fact will have to decide whether the child was aware
of the conduct and was able to appreciate the conduct to the
extent that it could influence the development of the child’s
value system. I do not regard this inquiry as significantly
different than that required by the harm-based community standard
of tolerance test. Like that test, this inquiry involves a
determination of the risk of harm flowing from the conduct in
question. In the case of the s. 172 inquiry, that harm is
encompassed by the phrase “endangers the morals of the child.”
(ii) The section 1 inquiry
[43] Having determined the scope of the prohibition established
by s. 172(1), I now undertake the s. 1 analysis required under
the Charter.
[44] I am satisfied, as is hopefully evident from my analysis of
the elements of the offence created by s. 172, that the language
of the section at least in so far as it is reflected in this
indictment, is sufficiently clear and intelligible so as to
constitute a limit “prescribed by law” within the meaning of s.
1: see R. v. Butler, supra, at 154-55.
[45] The language of s. 1 is necessarily general as it must be
applied in an infinite variety of situations. The Supreme Court
of Canada has developed a two-step approach to the inquiry
required under s. 1. The first step looks to the objective of
the impugned legislation and asks whether that objective is
sufficiently pressing and substantial to warrant some limitation
on the individual rights and freedoms protected by the Charter.
The second step, which is reached only if the legislation passes
the first, is essentially a cost-benefit analysis and asks
whether the benefit to society accruing from the legislation
demonstrably justifies the limitation on individual rights and
freedoms flowing from the legislation. The Crown carries the
burden of proof and must justify the limitation on the balance of
probabilities: R. v. Oakes, supra at 345-49; R. v. Keegstra et
al. (1990), 61 C.C.C. (3d) 1 at 27-30, 35, 46; Vriend v.
Alberta, [1998] 1 S.C.R. 493 at 554; R. v. Lucas (1998), 123
C.C.C. (3d) 97, per McLachlin J., concurring on this issue, at p.
133; R. v. Sharpe (1999), 136 C.C.C. (3d) 97, per Rowles J.A.,
concurring, at p. 155 (B.C.C.A.).
(iii) Is the objective pressing and substantial?
[46] The first step of the s. 1 analysis requires a determination
of the purpose of the impugned legislation. As Dickson C.J.C.
said in R. v. Big M Drug Mart Ltd. (1985), 18 C.C.C. (3d) 385 at
417:
Purpose is a function of the intent of those who drafted and
enacted the legislation at the time, and not of any shifting
variable.
[47] The intent of the drafters for s. 1 purposes is determined
primarily by the language of the enactment, although resort to
other sources such as legislative history and parliamentary
debates is permissible: R. v. Heywood, supra, at pp. 512-13; R.
v. Zundel (1992), 75 C.C.C. (3d) 449 (S.C.C.). I see no need to
go beyond the words of the statute to determine the purpose of s.
172.3 It is intended to protect children, a very vulnerable
segment of our society, from exposure to behaviour which is below
community standards of tolerance and which puts the moral
development of a child at risk. By moral development, I mean the
development of those core values which are essential to the
maintenance of a free and democratic society. In short, s. 172
seeks to protect children from the harm specified in the section.
[48] I cannot accept the submission of the amicus curiae that the
purpose of s. 172 is to “enforce majoritarian concepts of
morality.” That contention, while reflecting some of the
statements made by members of Parliament when the crime was first
enacted, cannot stand in light of my interpretation of the phrase
“sexual immorality” and the word “morals” in s. 172(1). It is no
doubt true that community standards of tolerance have changed in
the 80 years since the legislation was enacted. It may also be
that the concept of the morals of a child have evolved over that
time. Neither change affects the overriding objective of the
provision. It was and remains the protection of children from
harmful conduct.
[49] This characterization of the objective of the legislation
does not violate the "shifting purpose" doctrine articulated in
Big M, supra. In Butler, supra, at p. 157, Sopinka J.
acknowledged that the purpose for which the obscenity provision
in s. 163 of the Criminal Code was originally enacted was to
advance a particular conception of morality -- an objective that
is no longer defensible in light of the Charter. He concluded,
however, that the overriding objective of s. 163 was no longer
moral disapprobation but rather the avoidance of harm to society.
Sopinka J. then rejected the view, "…that to identify the
objective of the impugned legislation as the prevention of harm
to society, one must resort to the 'shifting purpose' doctrine"
(at p. 157). Sopinka J.'s analysis applies with equal force to
s. 172.
[50] The protection of children from harmful conduct is a
pressing and substantial concern. One need look no further than
the parens patriae jurisdiction of courts for proof that the
protection of children from harmful conduct is a paramount
concern of the law. As L’Heureux-Dubé J. said recently in Baker
v. (Canada) Minister of Citizenship and Immigration (1999), 174
D.L.R. (4th) 193 at 230:
… Children’s rights and attention to their interests, are
central humanitarian and compassionate values in Canadian
society.
[51] Clearly, if children’s rights and interests are central,
protection of those same children from harm is critically
important: see also R. v. Sharpe, supra, at pp. 155-158;
Ontario (Attorney General) v. Langer (1995), 97 C.C.C. (3d) 290
at 321-22 (Ont. Gen. Div.), leave to appeal to Supreme Court of
Canada refused (1995), 100 C.C.C. (3d) vi.
[52] More specifically, the protection of children from the harm
identified in s. 172 is a pressing and substantial concern to the
community. Lessons learned in the home have a lot to do with how
children behave. Anyone who has spent any time in the criminal
courts knows only too well the incalculable harm caused by and to
persons whose home environment has left them without an adequate
moral compass, or even a most rudimentary appreciation of the
rights of others or the legitimate limitations on conduct in a
free and democratic society.
(iv) The proportionality component of s. 1
[53] The second inquiry required under s. 1 is essentially a cost-
benefit analysis. Societal interests enhanced by limiting the
right in question are measured against the effect of the
limitation on the right and tested by the standard established in
s.1. In undertaking this analysis where s. 2(b) is infringed,
courts have recognized that this right encompasses almost the
full ambit of expression, from the uplifting and eloquent through
the harmless and banal to the false and hurtful. The nature of
the expression limited by the law under scrutiny is an important
contextual feature of the proportionality analysis. If the
expression affected by the legislation reflects values which are
at the heart of s. 2(b), it will be more difficult for the
prosecution to justify any limit on the expression: see R. v.
Lucas, supra, at p. 114; R. v. Butler, supra, at pp. 161-62, 167-
68; R. v. Sharpe, supra, at pp. 158-159.
[54] For expressive conduct to be caught by s. 172(1), it must be
established that it constitutes “sexual immorality.” The conduct
includes only sexual activity which falls below that which the
community is prepared to tolerate. It is the kind of activity
which Sopinka J. in R. v. Butler, supra, at p.168 described as
appealing “…only to the most base aspect of individual
fulfillment….” The expression potentially criminalized by s. 172
exists at the outer precincts of s. 2(b).
[55] While the nature of the expression captured by s. 172
favours the Crown’s efforts to justify the limitation on freedom
of expression imposed by that section, a second facet of s. 172
suggests that the Crown’s task is more difficult. The section
requires that the conduct occur “in the home of a child.” It
thus criminalizes essentially private activity. The right to
self expression without state regulation reflects our commitment
to personal autonomy and privacy. Interference with expression
that occurs in a private place like the home and that does not
involve publication or dissemination to a broader audience is
harder to justify under s. 1 of the Charter than are limitations
on the public exercise of the right to freedom of expression: R.
v. Butler, supra, at p.166; R. v. Sharpe, supra, at pp. 163-166;
R. v. Keegstra, supra, at p. 56.
[56] Bearing in mind the base nature of the expression forbidden
by s. 172(1) and its reach into the home where privacy is most
valued, I turn to the three issues that a court must address in
the proportionality phase of the s. 1 inquiry.
[57] First, the Crown must show a rational connection between the
objective of the legislation, the protection of children from
harm, and the crime created by s. 172(1). I have no difficulty
in finding that connection. The section specifically targets
activity which causes harm to children by endangering their
morals. The criminal prohibition operates only where the harm
has occurred. The connection between the object - the
protection of children from harm, and the means – the
criminalization of activity which causes harm, is direct and self-
evident: R. v. Lucas, supra, per Cory J., at pp. 118-19.
[58] Having shown a rational connection between the purpose and
the means, the Crown must next demonstrate that s. 172(1)
minimally impairs the right to freedom of expression. Several
points based on my interpretation of the language of the section
must be made here. The term "sexual immorality" as used in the
section reaches only conduct which falls below the community
standard of tolerance. No other form of sexual expression is
forbidden. The section is triggered only if sexually immoral
conduct actually endangers the morals of a child. It is not
enough that the activity might put the morals of a child at risk.
This requirement also presupposes awareness of the conduct by the
child said to be affected by it. In so far as s. 172(1) is
concerned, anyone can engage in any kind of conduct, even
sexually immoral conduct, as long as he or she does not expose a
child in the home to that activity. Finally, the section refers
to a specific location, the home of a child, and leaves untouched
conduct in any other location.
[59] The elements of the offence in s. 172(1) as described in
this indictment are carefully confined to a very specific type
of conduct committed in a specific location and which produces a
specific harm. No doubt as with any penal statute, prosecutorial
authorities may overestimate the scope of s. 172(1) and launch
prosecutions which are not properly brought under the section.
The potential for misuse of the sanction does not, however, mean
that it cannot meet the minimal impairment standard: R. v.
Keegstra, supra, at p. 64. Moreover, prosecutorial discretion is
limited by s. 172(4), which provides that proceedings under s.
172 may not be commenced without the consent of the Attorney
General, unless they are instituted by or at the instance of a
recognized society for the protection of children or by an
officer of a juvenile court.
[60] Amicus curiae raised a further argument in support of the
claim that the section could not pass the minimal impairment
stage of the proportionality inquiry. She submitted that
provincial welfare legislation exists which allows the state to
intervene to protect children by removing them from the home in
the circumstances contemplated by s.172(1).4 Counsel argued that
such legislation provides the necessary protection for children.
She further argued that it renders the imposition of a criminal
sanction unnecessary and the consequent limitation on freedom of
expression constitutionally excessive. In effect, counsel
submits that, since other less intrusive means are available to
provincial governments to protect children in the home,
Parliament’s resort to the heavy hand of the criminal law is an
unnecessary and overly intrusive legislative response.
[61] Assuming that provincial child welfare legislation permits
the state to intervene and remove children from the home in the
circumstances captured by s. 172(1) as pleaded in this case, I
would still reject this submission. Section 172 and child
welfare legislation share the same ultimate purpose in that both
seek to prevent harm to children in the home. They strive to
reach that goal, however, by very different means. Provincial
child welfare legislation removes the child from the source of
the harm. Section 172 punishes those who have inflicted the
harm. By invoking the criminal law, Parliament seeks to afford
added protection to children by deterring through punishment and
denouncing through the stigma of criminalization.
[62] In R. v. Keegstra, supra, Dickson C.J.C. dealt with a
similar argument to that advanced by amicus curiae. In that case
counsel argued that non-criminal federal legislation served the
same purpose as the criminal prohibition against the wilful
promotion of hatred of identifiable groups. It was argued that
because the non-criminal legislation served those same purposes,
the limitation on freedom of expression flowing from the criminal
sanction could not be justified under s. 1. The Chief Justice
rejected that argument and said at p. 65:
In assessing the proportionality of a legislative enactment
to a valid governmental objective, however, s. 1 should not
operate in every instance so as to force the government to rely
upon only the mode of intervention least intrusive of a Charter
right or freedom. It may be that a number of courses of action
are available in the furtherance of a pressing and substantial
objective, each imposing a varying degree of restriction upon a
right or freedom. In such circumstances, the government may
legitimately employ a more restrictive measure, either alone or
as part of a larger programme of action, if that measure is not
redundant, furthering the objective in ways that alternative
responses could not, and is in all other respects proportionate
to a valid s. 1 aim.
[63] In my opinion, the analysis in Keegstra is applicable here.
By employing the criminal sanction, Parliament furthers the
objective of preventing harm to children in a way that is
different from and that augments the protection afforded to
children by provincial child welfare legislation.
[64] I find further support from my conclusion in R. v. Lucas,
supra. In Lucas, the appellant argued that the defamatory libel
provisions of the Criminal Code could not meet the minimal
impairment standard because the same conduct was actionable
through the tort of libel. In rejecting that argument, Cory J.
said at p. 122:
The continued existence of parallel but distinct civil and
criminal laws concerning defamatory libel reflects the view of
Parliament that while victims of such wrongs may well deserve to
be compensated, perpetrators who wilfully and knowingly publish
lies deserve to be punished for their grievous misconduct.
[65] The same can be said of s. 172 and child welfare
legislation. Provincial governments exercising their legislative
powers seek to protect children from harm by removing them from
the home. Parliament seeks to reach the same objective by
punishing those who have created the harm.
[66] I have a second difficulty with amicus curiae's submission.
I do not see how a valid exercise of the federal government’s
criminal law power (no one suggests this is not a valid exercise
of that power) can become unconstitutional because valid
provincial legislation authorizes some other form of state
intervention in circumstances captured by the language of the
Criminal Code. To hold that provincial legislation directed at
the same conduct somehow demonstrates that the criminal law is
not a minimal impairment of a right is to introduce an aberrant
form of the paramountcy doctrine into the s. 1 proportionality
inquiry. On this approach, provincial legislation would
effectively render federal legislation inoperative. As Professor
Hogg said, albeit in a somewhat different context:
A related point concerns the accommodation by the Charter of
federal values. A strict application of the least-drastic-means
requirement would allow only one legislative response to an
objective that involved the limiting of a Charter right. The law
that least impaired the Charter right would be acceptable; all
alternatives would fail. In a federal country like Canada, there
ought to be some room for distinctive provincial responses to
similar social objectives. The uniformity of provincial laws that
would be entailed by a stringent requirement of least drastic
means is in conflict with the federal values of distinctiveness,
diversity and experimentation. If s. 1 is to permit some
accommodation of these federal values, the judges have to allow
provincial Legislatures a “margin of appreciation”, a zone of
discretion within which different legislative choices in
derogation of a Charter right could be tolerated.5
[67] Just as the Charter should accommodate diversity of
provincial responses to particular problems, it must recognize
the division of powers between the federal and provincial
governments under which our federal system operates. I do not
think that the proportionality inquiry can be used to indirectly
reconfigure that division of powers.
[68] The third and final phase of the proportionality inquiry
measures the deleterious effects flowing from the restriction on
the right against the salutary effects of the legislation.
Professor Hogg, supra, at p. 883, describes this final phase as
asking,
…whether the Charter infringement is too high a price to pay
for the benefit of the law.
[69] Like Professor Hogg, I have some difficulty distinguishing
this phase of the proportionality inquiry from the sum total of
the other two. In Dagenais v. The Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835 at 889, Lamer C.J.C. described it in these
terms:
I would, therefore, rephrase the third part of the Oakes
test as follows: there must be a proportionality between the
deleterious effects of the measures which are responsible for
limiting the rights or freedoms in question and the objective,
and there must be a proportionality between the deleterious and
salutary effects of the measures.
[70] As I understand Dagenais, the cost-benefit analysis in the
final stage of the proportionality inquiry requires one to
measure the value inherent in the objective (the protection of
children from harm) against the harm inherent in the limitation
on freedom of expression, and the actual benefits to society
accruing from the operation of the section against the actual
harm caused to individuals’ right to freedom of expression.
[71] For the reasons already advanced, I see little harm inherent
in the limitation on the right to freedom of expression imposed
by s. 172. The limitation is a narrow one and reaches only
expression which is of limited value in a free and democratic
society. The objective is a very important one and promotes
values which are central to a free and democratic society. If
those values are to persevere, the law must protect children from
those who have done harm to them.
[72] In concluding that the objective outweighs the harm done to
the right protected by s. 2(b), I have considered that s. 172
reaches inside the home. That reach is a significant aggravating
feature when considering the harm done by the section to the
right of freedom of expression. That same feature, however, is
essential if the section is to serve its purpose. Unfortunately,
it is in the home where children are most susceptible to the
kinds of conduct at which s.172 is aimed. The section could not
prevent the harm at which it is directed unless it is aimed at
conduct occurring in the homes of children.
[73] I confess to some difficulty in attempting to measure the
actual harm to the right protected by s. 2(b) that is caused by
the section and the actual benefit flowing to the community from
the section. I strongly suspect that the section, far from
having a chilling effect on the exercise of the right to freedom
of expression, barely produces a faint shiver. I also doubt that
s. 172 does much to deter those who are otherwise inclined to
engage in the conduct forbidden by the section. This formulation
of the cost-benefit analysis is of little assistance in this
case.
Conclusion on the Constitutional Issue
[74] Like the trial judge, I am satisfied that although s.172 as
pleaded in the indictment limits freedom of expression, it does
so in a manner which is consistent with s. 1 of the Charter. The
prohibition against participation in sexual immorality in the
home of a child thereby endangering the morals of that child is a
constitutional limitation on the right to freedom of expression.
The Other Grounds of Appeal
[75] In addition to the constitutional challenge, amicus curiae
raised six grounds of appeal on behalf of the appellant. Four
arise out of the trial judge’s instructions to the jury. Counsel
also argues that the Crown could not make out its case without
expert evidence as to the effect of the appellant’s conduct on
his children. Finally, she submits that the broad sweep of the
allegations offended the single transaction rule set out in s.
581(1) of the Criminal Code.
[76] I think two of the submissions relating to the trial judge’s
instructions to the jury must succeed. I would not give effect
to the other submissions and do not propose to address them in
these reasons.
(i) The instructions on the meaning of “the morals of the child”
[77] Counsel submits that the trial judge’s definition of the
word “morals” was much too broad and invited the jury to apply
personal standards in deciding what was “right and good.”
[78] The trial judge told the jury:
“Morals” means relating to principles of right and wrong in
behaviour, or relating to or acting on the mind, the character or
the will, a mode of conduct conforming to a standard of what is
right and good.
[79] I agree with amicus curiae’s contention. The instructions
quoted above failed to draw the distinction between morality in
the broad sense as it might be defined in the dictionary and its
much more limited meaning in the criminal law context as
explained in R. v. Butler, supra. The trial judge effectively
drew that distinction in his instructions with respect to the
meaning of the phrase “sexual immorality”, but did not do so when
instructing the jury as to the meaning of the word “morals.”
This distinction is crucial if s. 172 is to remain within
constitutional limits.
[80] The trial judge should have instructed the jury that the
phrase “morals of the children” refers to those fundamental
values which are essential to the maintenance of our free and
democratic society. In the circumstances of this case, those
values are:
-
an appreciation that exploitive or non-consensual sexual
activity is wrong;
-
an appreciation that conduct which dehumanizes or degrades
women is wrong;
-
an appreciation by the children of their own self worth and
personal autonomy; and
-
an appreciation of the responsibility of parents to protect
and nurture their children.
[81] The jury should have been told that unless the Crown proved
beyond a reasonable doubt that the conduct of the appellant,
which the jury concluded constituted sexual immorality, created a
real risk that the children would not develop those values, the
appellants could not be convicted regardless of the jury’s view
of their worth as parents.
[82] The failure to properly limit the meaning of the word
“morals” constitutes misdirection and an error in law.
(ii) The non-direction as to the children’s awareness of the conduct
[83] The second submission which I am satisfied must succeed
alleges non-direction with respect to the requirement that the
children be aware of the conduct relied on to establish sexual
immorality. Amicus curiae submits that the appellant's conduct
could have the potential to endanger the morals of his child only
if that child were aware of the conduct. She contends that the
jury had to be told that they could consider only conduct which
they were satisfied the child was aware of in determining whether
the conduct endangered the morals of that child. Counsel submits
that this instruction was particularly important in this case for
two reasons. First, the appellant’s defence with respect to much
of the conduct turned exclusively on whether the children were
aware of the conduct. The appellant and his wife acknowledged
that much of the conduct occurred. Second, the evidence as to
conduct to which the children were exposed varied with each child
and was the subject of contradictory evidence in some respects.
[84] The Crown agrees that the morals of a child could only be
endangered by sexually immoral conduct if the child is aware of
that conduct and capable of appreciating it to the extent that it
could endanger the morals of the child. He submits that the
trial judge made this clear to the jury in his instructions on
the applicable law and in his review of the position of the
defence. Crown counsel places some reliance on the fact that the
appellant was acquitted on a charge involving the younger son.
Counsel suggests that this acquittal is explained on the basis
that the jury was not satisfied that the younger son, unlike his
older siblings, was able to appreciate the nature of the conduct
to which he was exposed.
[85] After reviewing the instructions, I am not satisfied that
the trial judge made it clear to the jury that they could only
consider conduct of which the child was aware in determining
whether the Crown had established the appellant’s guilt on the
counts relating to each child.
[86] I accept that awareness of the conduct is implicit in the
requirement that the conduct “thereby endangers the morals of the
child.” I also accept that the trial judge’s description of the
defence position implied that the Crown had to establish
awareness by the child of the appellant's conduct. Nowhere,
however, did the trial judge expressly draw this requirement to
the attention of the jury. Nor did he review the evidence as it
related to the different conduct to which the various children
were exposed. Furthermore, his description of the position of
the Crown suggests that awareness of the conduct was not a
condition precedent to liability. In reviewing the Crown’s
position, he said:
… He [Crown counsel] refers to sexual activities in the home
of the children with multiple partners, its videotaping, the
advertisements placed by the accused, lesbian sexual activities
in the home also videotaped, other sexual videotaping in the
home, their possession of sexually explicit videos, all of which
exposing the child to seeing all or any of the above. [Emphasis
added.]
[87] Potential exposure to sexually immoral conduct is not enough
and misconstrues the meaning of the word “endangers” in s. 172.
[88] The jury should have been expressly told that in deciding
the appellant’s liability on each count, they could consider only
conduct that the child named in that count was actually aware of.
For example, the jury should have been told that before it could
rely on any of the videotapes involving the appellant’s wife to
convict on any count, they had to be satisfied that the child
named in that count had seen the video. The instruction was
especially important in light of the defence advanced to some of
the conduct relied on by the Crown. The failure to give this
instruction constituted non-direction amounting to an error in
law.
[89] The demonstration of these errors in law shifts the onus to
the Crown to demonstrate that the errors occasioned no
substantial wrong or miscarriage of justice. I am satisfied that
the verdicts on the two counts involving the step-daughters would
have been the same had the errors not been made. The step-
daughters testified that they were subjected to repeated and
serious sexual assaults throughout the time frame described in
the counts alleging the endangerment of their morals. The
veracity of their allegations cannot be realistically challenged
at this point given the appellant’s abandonment on his appeal
from the sexual assault convictions. Standing alone, those
assaults constituted sexually immoral conduct endangering the
morals of the step-daughters. Indeed, counsel for the appellant
at trial conceded that if the jury found that the assaults
occurred they would necessarily find that the appellant engaged
in sexually immoral conduct.
[90] Once the assaultive conduct against the step-daughters is
acknowledged, the evidence of their awareness of the other sexual
activity becomes relatively unimportant. Nor could the trial
judge’s failure to properly limit the meaning of the word
“morals” have any impact on the jury’s consideration of the
counts involving the step-daughters once the assaultive behaviour
was accepted. The prolonged abuse of M.W. and L.W. endangered
the development of all of the fundamental values described above.
I would apply the curative proviso and affirm the convictions on
the counts involving the two daughters.6
[91] The conviction on the count involving the older son, J.E.,
is a different matter. That conviction rested entirely on sexual
activity apart from the assaults on the step-daughters. The two
errors in law described above take on some significance on this
count. I cannot say that the verdict would necessarily have been
same had the jury been properly instructed on these two issues.
I would quash the conviction on the count involving J.E.
The Sentence Appeal
[92] The appellant received a total sentence of six years on the
charges involving his step-daughters. A nine month sentence was
imposed on the charge involving his older son and a three month
sentence on the charge involving the possession of stolen
property. As I would quash the conviction on the charge
involving the older son, I need not consider the fitness of that
sentence. I do not understand the appellant to challenge the
three month sentence imposed on the possession of stolen property
charge.
[93] I have no hesitation in concluding that the total sentence
(six years) imposed for the offences relating to the two step-
daughters was appropriate. The appellant’s heinous conduct
towards his two young step-daughters fully warranted a
denunciatory sentence.
[94] Viewed in isolation, the sentence imposed on each of the
sexual assault charges (two years), would be inadequate.
Considered in their totality, the sentences are within the
appropriate range.
[95] I would grant leave to appeal sentence, but would dismiss
the sentence appeal.
The Appropriate Order
[96] I would dismiss the appeal from the sexual assault
convictions as an abandoned appeal. I would dismiss the appeal
from the convictions on the charges of endangering the morals of
M.W. and L.W. I would allow the appeal from the conviction on
the charge of endangering the morals of J.E., and quash that
conviction. I would grant leave to appeal sentence but would
dismiss the sentence appeal. In the result, the appellant’s
sentence is six years and three months. The Crown may proceed
with a new trial on the charge involving the older son, if so
inclined.
Released: October 8, 1999
“Doherty J.A.”
“I agree R. McMurtry C.J.O.”
“I agree J.J. Carthy J.A.”
_______________________________
* The non-publication order made at trial remains in force.
1 The appellant’s wife has also appealed her convictions. She is
represented by counsel. For some reason, that appeal has
proceeded separately. The wife chose not to participate in the
constitutional arguments raised by the appellant.
2 “Inmate” appeals are governed by Rules 25-27 of the Criminal
Appeal Rules S.I./93-169 Can. Gaz. Part II, P. 3540 and refer to
appeals taken by persons who are in custody and not represented
by counsel.
3 The section was first enacted in 1918 as s. 220(a); by aAn act
to amend the Criminal Code, 8 and 9 Geo. V., chap. 16. The
section has been amended six times, but none of those amendments
figure in my constitutional analysis. They are collected in G.
Rodrigues ed., Crankshaw’s Criminal Code of Canada, Vol. I, 1993
at pp. 5-104, 25-105.
The Parliamentary debates upon the introduction of s. 220(a) in
1918 suggest that all appreciated that the purpose of the section
was to protect children from harmful conduct. It also seems that
allit was accepted that such purpose asis a legitimate criminal
law purpose. There was considerable debate about the generality
of some of the language used in the section, eg. the words “any
other form or vice”, andas well as a the danger of unfounded
complaints being brought by “social reformers.” The last
objection was addressed by an amendment which required that the
Attorney General or a child welfare agency authorize a
prosecution under the section: see Hansard, Vvol. 133 (1918), at
pp. 1704-1710.
4 Eg. see Child and Family Services Act, R.S.O. 1990, c. C. 11,
Part III.
5 P. Hogg, Constitutional Law of Canada, 4th Eed., (Scarborough:
Carswell, 1997) at p. 894.
6 It was not argued that convictions for corrupting the morals of
the daughters based on the evidence of the sexual assaults would,
given the convictions on the sexual assault charges, infringe the
rule against multiple convictions for the same delict. The trial
judge recognized the very close connection between the offences
by imposing concurrent sentences. |