AuthorHandlarski, Ryan

    In this paper, I contend that the rules of statutory interpretation should exclude places such as amusement parks, public exhibition centers, sports stadiums, and other locations from the definition of a "public park" in section 161(1)(a) of the Criminal Code. The case law around section 161(1)(a) of the Criminal Code indicates that some courts are taking a broad interpretation of the places restricted to sexual offenders, including public parks, playgrounds, and public swimming pools. It is my contention that this section was intended to be interpreted narrowly and that the purpose of this provision is to express a qualified ban on a limited set of places, which have either been specifically set aside for children or are particularly dangerous to permit sexual offenders. The term "public park" in this section should be applied as a single compound concept, "public park", rather than breaking it down into any "park" that is "public". I argue that the compound concept "public park" has a particular meaning that is understood in law and that there is no urgent need to extend the term "public park" beyond its ordinary limits. Parliament has provided other provisions with broader restrictions within this same section, namely section 161(1)(b) and section 161(1)(c), which are potential alternatives that would restrict a former offender from interacting with underage children in other circumstances and situations.

    If the purpose of the statute and the ordinary meaning produce an ambiguity about how this provision applies, it should be resolved in favour of the person accused of violating section 161(1)(a). This is a well-accepted rule of statutory interpretation, as penal legislation is generally interpreted narrowly. To do otherwise would be unfair to former offenders who would have no way of knowing which places are restricted to them.

    My approach contrasts with the argument advanced by the Crown in R v Perron, (1) which was ultimately adopted by the Ontario Court of Appeal (ONCA). However, it is supported by the British Columbia Supreme Court (BCSC) and the BC Court of Appeal (BCCA) in R v Lachapelle, (2) both of whom cited the same statutory principle concerning narrower interpretations for ambiguities. In the 10 years since both Perron and Lachapelle, there has been no Supreme Court of Canada (SCC) decision to resolve these two different interpretive approaches to section 161(1)(a). Nor has Parliament clarified the statutory language around either "parks" or "playgrounds", leaving a gap in the legislation with regard to carnivals, amusement parks, public exhibitions, sports stadiums, and other similar places.

    In the final section of this paper, I examine some of the cases which have interpreted section 161(1)(a) in vastly inconsistent ways. According to the case law, "public park" has been variously interpreted as an agricultural exhibition, a shopping mall outlet, and a parking lot--and yet not a camping ground or a parking lot. I also extend my inquiry to the confusing case law around the term "playground", under section 161(1)(a), which has been applied to a hockey rink--and yet not to a carnival, a flea market, or a children's play centre. These interpretations cannot be principled, as they are the result of stretching the statutory language beyond its intended application. As a result, both Crown and defence attorneys have run into challenges in preparing cases on this provision. What is most concerning about the current state of the law is that it is near impossible for anyone under a section 161(1)(a) prohibition to reasonably predict how this section would apply to them.


    Section 161(1)(a) of the Criminal Code states:

    161(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years (3), the court that sentences the offender or directs that the accused be discharged [...] shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from (a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre[.] (4) This paper will focus on how courts have applied the provision regarding the term "public park", but my discussion will also be relevant to the other enumerated places under the same provision. The final section of this paper discusses the application of section 161(1)(a) more broadly, namely for the terms "playground" and "community centre", and the manner in which case law demonstrates the confusion around this section of the Criminal Code.

    In its 2009 decision, R v Perron, the ONCA had the opportunity to determine whether the outdoor Super Ex fair, set up on a paved area within Ottawa's Lansdowne Park, should be considered a "public park" under section 161(1)(a) of the Criminal Code. Perron was a former sex offender who was operating a carnival booth on the paved area of Ottawa's Lansdowne Park during its annual Super Ex fair. (5) He was convicted at trial for violating the terms of section 161(1)(a), as he was at a public space designated "Lansdowne Park" which was in close proximity to children under the age of fourteen. (6)

    On appeal, the accused's position was that a "park" indicated some form of green space that was set aside and maintained for public recreational use. (7) The Crown's position was that a "public park" was not limited by markers of physical geography, but rather by the manner in which the place was used. (8) Since the Super Ex was being used to provide some form of public recreation similar to a public park, the Crown argued that Perron had violated the order under section 161(1)(a). The ONC A ultimately upheld the Crown's position, stating:

    The legislative purpose, the kinds of locations that can be included in a prohibition order, and the ordinary grammatical meaning of the words clearly focus on the kinds of recreational activities that the public can engage in at the particular location and whether they are likely to involve the presence of young children. There is nothing to suggest that a particular physical geography is a vital characteristic. Indeed there are many locations commonly referred to as parks which exhibit little if any greenery. Skateboard parks are but one example. While in a particular case the presence of greenery may help in identifying a location as a public park for the purposes of a prohibition order under s. 161(1)(a), I do not think that the absence of greenery necessarily excludes it. In my view, to breach this term of a prohibition order unders. 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. (9) Based upon the above definition of the term "public park", the Court concluded that Perron was in breach of his prohibition order. The Court noted that the Super Ex at Lansdowne qualified as a defined or discrete location as described above--it had some peripheral greenery around the edges of the pavement and the wider location was publicly designated "Lansdowne Park". (10)

    At almost the same time, in R v Lachapelle, the BCSC and the BCCA came to the opposite conclusion on whether carnivals and amusement parks should be considered public parks. Lachapelle was a former sex offender who worked as a companion to an elderly woman. (11) He and his employer visited a travelling carnival set up on a private field, for the sole purpose of eating dinner. (12) Lachapelle was then arrested for violating the prohibition under section 161(1)(a). The BCSC noted that the carnival was set up on a private field, that Lachapelle was only attending the carnival to eat dinner, and that he did not realize he was in violation of his prohibition order. (13) The Court further noted:

    The determination as to whether a place has been set aside or designated as a public park would normally be uncontroversial. The conclusions reached through the situational analysis required by the Crowns interpretation would be much less consistent. In other words, if the Crowns interpretation was accepted, the ambit of s. 161 would be difficult to define and would no longer be "limited to clearly defined geographical areas". Vagueness and uncertainty would creep back into the geographical ambit of a prohibition order. (14) Ultimately, the Court concluded that Lachapelle had not violated the prohibition and that a travelling carnival on a private field was not a "public park". (15) The BCCA upheld this decision on the interpretation of "park", and further upheld the BCSC decision that the carnival also did not constitute a "playground". (16) Applying the same line of reasoning for the latter argument, the BCCA clarified that a location's purpose and distinctive characteristics were the key to understanding whether it was a park or a playground, rather than the types of activities that took place at the time of the alleged offence. (17)

    In isolation, Perron and Lachapelle do not necessarily conflict with each other, as they can be distinguished on certain key points. For instance, Perron involved a public parking lot within a place designated as a "park", whereas Lachapelle involved a private field with no such designation. Perron involved a man working at a booth within the outdoor amusement area, where children could be expected to attend, whereas Lachapelle involved a man who dropped by the carnival to eat dinner, while acting as a companion to an elderly woman. Perron focused its discussion on whether greenery was a necessary condition of public parks, whereas Lachapelle...

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