R. v. Levkovic (I.), 2010 ONCA 830

• Judge: Doherty, Armstrong and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 08, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 830;(2010), 271 O.A.C. 177 (CA)

R. v. Levkovic (I.) (2010), 271 O.A.C. 177 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.015

Her Majesty The Queen (appellant) v. Ivana Levkovic (respondent)

(C49523; 2010 ONCA 830)

Indexed As: R. v. Levkovic (I.)

Ontario Court of Appeal

Doherty, Armstrong and Watt, JJ.A.

December 7, 2010.

Summary:

The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child. Under the definition of the offence, it had always been immaterial whether the child died before, during or after birth.

The Ontario Superior Court held that the words "died before ... birth" in s. 243 of the Code were unconstitutionally vague. He severed "before" from the section, leaving it to read in its material part "whether the child died during or after birth". The prosecutor acknowledged that he could not establish either the cause or the time of death. Thus he offered no evidence in support of the allegation in the indictment. The court acquitted the accused. The Crown appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The court held that the trial judge erred in holding in concluding that the "before birth" reference was unconstitutionally vague.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - The Ontario Court of Appeal stated that "Vague laws violate the principles of fundamental justice. If a vague law causes or amounts to a deprivation of a person's life, liberty or the security of his or her person, the law offends s. 7 of the Charter. Vague laws offend two fundamental values of our legal system. They do not provide fair notice of what is prohibited, thus making compliance with the law difficult. Further, they do not provide clear standards for those entrusted with their enforcement to enforce them. As a result, vague laws contribute or lead to arbitrary enforcement." - See paragraphs 86 and 87.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - The Ontario Court of Appeal reviewed case law that considered complaints of constitutional infringement based on vagueness - The court set out the principles that emerged from the cases - See paragraphs 88 to 97.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - The Ontario Court of Appeal stated that the core values protected by the rule against vagueness was fair notice to citizens and corresponding limitations on law enforcement discretion - A law was unconstitutionally vague if it failed: (1) to give fair notice about the conduct prohibited by the law; or (2) to impose real limitations on the discretion of those charged with enforcement - See paragraph 95.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child - Under the definition of the offence, it had always been immaterial whether the child died before, during or after birth - The trial judge held that the words "died before ... birth" in s. 243 of the Code were unconstitutionally vague - He severed "before" from the section, leaving it to read in its material part "whether the child died during or after birth" - The prosecutor acknowledged that he could not establish either the cause or the time of death - Thus he offered no evidence in support of the allegation in the indictment - The court acquitted the accused - The Crown appealed - The Ontario Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge erred in concluding that the "before birth" reference was unconstitutionally vague - See paragraphs 51 to 122, 124 and 125.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle - The Ontario Court of Appeal stated that "Overbreadth is a discrete ground upon which a law may be constitutionally unsound. It is related to vagueness because both overbreadth and vagueness emanate from a common source - a lack of legislative precision in the means used to accomplish the legislative objective ... Overbreadth refers to a law that restricts liberty more than is necessary to accomplish its purpose. Overbreadth is established only where the adverse effect of the legislation on individuals subject to it is grossly disproportionate to the state interest that the legislation seeks to protect or achieve ... The 'grossly disproportionate' standard accords substantial elbow room to the legislature's assessment of the risk to public safety and the need for the law under siege ..." - See paragraphs 98 and 99.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle - The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child - Under the definition of the offence, it had always been immaterial whether the child died before, during or after birth - The trial judge held that the words "died before ... birth" did not render s. 243 constitutionally infirm on the basis of overbreadth - The Ontario Court of appeal agreed - The inclusion of the impugned words did not overshoot the purpose of the prohibition by including within it conduct beyond what was necessary to achieve the purpose for which the section was enacted - See paragraph 123.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 8586 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child - Under the offence's definition, it had always been immaterial whether the child died before, during or after birth - The trial judge held that the words "died before ... birth" in s. 243 of the Code were unconstitutionally vague - He severed "before" from the section, leaving it to read in its material part "whether the child died during or after birth" - The prosecutor acknowledged that he could not establish either the cause or the time of death - Thus he offered no evidence in support of the allegation in the indictment - The court acquitted the accused - The Ontario Court of Appeal allowed a Crown appeal and ordered a new trial - However, the court rejected the Crown's "tepid" submission that the trial judge erred in embarking on the constitutional challenge to s. 243 without a satisfactory evidentiary foundation - The court stated that "First, the authorities that insist upon an adequate factual foundation to ground a constitutional challenge recognize equally that the general rule is not inflexible or intolerant of exception in individual cases ... To some extent, the nature of the challenge advanced, the interest at stake and the likelihood or improbability that the evidence to be adduced at trial would assist the resolution of the issue are of importance in determining whether the immediate challenge will be permitted or determined ... Second, counsel at trial agreed on the procedure followed. ...  the prosecutor did not ask the trial judge to reserve his decision on the constitutional challenge until the conclusion of the evidence adduced at trial. Nor did counsel for the respondent at trial suggest that evidence should have been heard or an Agreed Statement of Facts be filed to provide a factual foundation or context for the challenge. Third, the challenge here was directed principally at the language of the offence-creating provisions. The liberty interest implicated was the prospect of imprisonment on conviction. The flaw alleged was that the prohibition was overbroad and void for vagueness, not as it applied to the respondent, but in its general operation. Finally, as it turned out, when the prosecutor summarized his evidence after the trial judge's ruling, what could have been established may not have advanced the inquiry into constitutionality significantly at all events." - See paragraphs 38 to 43.

Courts - Topic 585.1

Judges - Duties - Respecting findings of fact - The Ontario Court of Appeal stated that "Adjudicative facts concern the immediate parties to the prosecution. They respond to the query 'Who did what to whom, where, when, how and with what intent or motive?' ... Adjudicative facts are specific to the case being prosecuted, thus must be established by evidence that is relevant, material and admissible ... Legislative facts help to establish the purpose and background of legislation, including the social, economic and cultural context in which the legislation was enacted. Of necessity, these facts are of a more general nature. The admissibility requirements for legislative facts are less rigorous than those that govern adjudicative facts ... Social facts are cousins of legislative facts. Each is relevant to the reasoning process and may involve policy considerations ... Evidence of social facts is social science research engaged to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case ... It is the reality in many Charter challenges that the social or legislative facts are likely to prove dispositive ... While the limits of judicial notice outside the realm of adjudicative facts are inevitably somewhat elastic, the application of the doctrine, which dispenses with the need for formal proof of facts that are clearly uncontroversial or beyond reasonable dispute, is not unprincipled ... It is also worth reminder that simply labelling an issue as one involving a 'social fact' or a 'legislative fact' does not afford a court carte blanche to put aside the need to examine the trustworthiness of the 'facts' sought to be judicially noticed. Neither may counsel bootleg 'evidence in the guise of authorities' ..." - See paragraphs 28 to 31, 36 and 37.

Courts - Topic 2009

Jurisdiction - General principles - Factual basis for issues raised - [See Civil Rights - Topic 8586 ].

Criminal Law - Topic 1450.7

Concealing dead body of child - Legislation - Interpretation - [See fourth Civil Rights - Topic 3107 ].

Criminal Law - Topic 1450.7

Concealing dead body of child - Legislation - Interpretation - Section 243 of the Criminal Code provided that "Every one who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years." - The Ontario Court of Appeal held that "For the purposes of establishing liability for an offence under s. 243 in cases involving death before birth or those in which the time of death in relation to birth is unclear, a foetus becomes a child when it (the foetus) has reached a stage in its development when, but for some external event or other circumstances, it would likely have been born alive." - See paragraph 115.

Evidence - Topic 2200

Special modes of proof - Judicial notice - General principles - General - [See Courts - Topic 585.1 ].

Evidence - Topic 2245

Special modes of proof - Judicial notice - Particular matters - Judicial proceedings (incl. fact findings in) - [See Courts - Topic 585.1 ].

Evidence - Topic 2260

Special modes of proof - Judicial notice - Particular matters - Social conditions - [See Courts - Topic 585.1 ].

Practice - Topic 9038

Appeals - Evidence on appeal - Use of authorities - [See Courts - Topic 585.1 ].

Words and Phrases

Child - The Ontario Court of Appeal discussed the meaning of "child" as found in s. 243 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 78 to 81 and 111 to 116.

Cases Noticed:

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 28].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109, refd to. [para. 28].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 28].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150, refd to. [para. 31].

R. v. Advance Cutting and Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1, refd to. [para. 36].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [1999] 3 S.C.R. 845; [1999] N.R. Uned. 167, refd to. [para. 37].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 46].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1, refd to. [para. 46].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1987] 3 F.C. 593; 78 N.R. 180 (F.C.A.), refd to. [para. 48].

R. v. Berriman (1854), 6 Cox C.C. 388, appld. [para. 63].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 83].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 83].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 83].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 84].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 85].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 85].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 85].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 85].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 85].

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [para. 90].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 91].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 91].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 92].

R. v. Lindsay (S.P.) et al. (2009), 251 O.A.C. 1; 245 C.C.C.(3d) 301 (C.A.), refd to. [para. 93].

R. v. Devries (K.) (2009), 252 O.A.C. 34; 95 O.R.(3d) 721 (C.A.), refd to. [para. 94].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 95].

Ruffo (Juge) v. Conseil de la magistrature et autres, [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 96].

Cochrane v. Ontario (Attorney General) (2008), 242 O.A.C. 192; 92 O.R.(3d) 321 (C.A.), refd to. [para. 96].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 98].

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; 119 N.R. 353; 46 O.A.C. 13; 73 Man.R.(2d) 1; 3 W.A.C. 1, refd to. [para. 100].

R. v. Fink - see Lavallee, Rackel & Heintz et al. v. Canada (Attorney General).

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 100].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 100].

R. v. Sullivan and Lemay, [1991] 1 S.C.R. 489; 122 N.R. 166, refd to. [para. 105].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 243 [para. 72].

Counsel:

Brian McNeely and Gillian Roberts, for the appellant;

Delmar Doucette and Jessica Orkin, for the respondent.

This appeal was heard on March 8, 2010, by Doherty, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the court on December 7, 2010.