Gagnon, Gagné, Cournoyer

Appeal from a judgment of the Superior Court dismissing an appeal from a conviction. Dismissed.

The Court of Québec convicted the appellant of breaching an order rendered under section 161(1)(a) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) prohibiting him, “for life”, from attending a “public park” where persons under the age of 14 years are present or can reasonably be expected to be present. The trial judge found that the park where the appellant had been stopped was a “public park” within the meaning of this provision and, given the layout of the premises, persons under the age of 14 years could reasonably be expected to be present. The Superior Court dismissed the appeal from the conviction.

The summary conviction appeal judge applied the wrong standard for intervention to decide whether the trial judge’s statutory interpretation was correct. However, the conclusion in the Superior Court judgment should be upheld because the outcome is the same when the stricter standard of correctness is applied to the trial judgment.

The Court considers that there are three ways to establish the offender’s failure to comply with the condition not to attend a “public park” where persons under the age of 16 years (the threshold of 14 years was raised to 16 years in 2008) can reasonably be expected to be present.  First, it may be done by a witness who can testify on who regularly uses a given “public park”. Second, it may be based on the intrinsic characteristics of the “public park” in question. The more the park is designed to encourage its use by persons under the age of 16 years, the greater the inference that persons of this age can reasonably be expected to be present. Third, the law also allows a judge to consider elements that are peripheral or extrinsic to a “public park”. This extrinsic evidence includes elements within its immediate surroundings that establish that a “public park” is a place where persons under the age of 16 years can reasonably be expected to be present. This evidence requires proof of a close connection between the “public park” and the related extrinsic elements.

The trial judge was correct to find that the park where the appellant had been stopped was a “public park” and that its immediate surroundings were relevant to determining whether persons under the age of 14 years could reasonably be expected to be present. In this case, the park where the appellant was stopped is in a residential area. There is a public school in its immediate surroundings where some of its students cross the street with the help of a school crossing guard. There is also a pool accessible to the public nearby. These surroundings are admissible and relevant evidence. Moreover, the testimony of the two police officers that children use the park supported the finding that the park was one of those contemplated under fell within section 161 Cr. C.

Legislation interpreted: s. 161(1)(a) Cr. C.

Text of the decision: http://citoyens.soquij.qc.ca