MEMORANDUM

TO:

FROM:

DATE:

RE: J. Clarke Sexual Assault Case

Question Presented

According to Section 7 of the Charter of Rights of Freedom, is J. Clarke’s liberty being

infringed upon due to the criminal charges that prohibit him from loitering near public parks,

schools, and/or playgrounds? Will J. Clarke’s alleged infringement constitute a gross violation of

his constitutional rights? Are the means of the infringement reasonable and demonstrably

justified?

Brief Answer

For the Crown Prosecutor

Clarke’s rights were not violated and his arrest is justified. Being previously convicted

with sexual assault involving children, his visit to the playground is prohibited by Section 179

(1) (b) of the Criminal Code.

For J. Clarke

Clarke’s rights have been violated. The over breadth of the criminal code in without

possibility for review infringes the very essence of fundamental justice.

Facts of the Case

Since J. Clarke was previously convicted of sexual assaults involving children, he was

prohibited from “loitering” near any playgrounds, schoolyards, or public parks. On two

occasions, Clarke was stopped by police who noticed him carrying a camera with a telephoto

lens in a public park. It is notable that he was near a place where children were playing. The

apprehending police officer inquired if he had a criminal record; Clarke replied honestly. Since it

was the first occasion, the police officer only let him off with a warning. However, Clarke

reappeared in the park. This time, he was arrested and criminally charged.

During trial, Clarke argued that the Criminal Code provision prohibiting him from

visiting near any playgrounds, schoolyards, or public parks is too broad to the point that it

infringes his right to liberty as guaranteed by Section 7 of the Charter.

Discussion

For J. Clarke

It is clear in Section 7 of the Canadian Charter of Rights and Freedoms that an

individual’s right to life, liberty and security may only be deprived when the principle of

fundamental justice is violated. However, that is not the case of J. Clarke. Section 179 (1) (b) of

the Canadian Criminal Code, which prompted the arrest of the accused, is too broad and vague

which results into a constitutional breach. Explained further, there are four surrounding reasons

for the inapplicability of Section 179 (1) (b): (1) the geographical limits can become unlimited to

the point that areas without children may be covered; (2) the period of effectivity, which lasts a

lifetime, is unreasonable and should be subject to review; (3) the limitation covers all sex
offenders, even those who have not abused children; and, (4) the prohibition operates without

notifying the offender beforehand (R v Heywood, 1994).

Section 179 (1) (b) is drafted to prohibit offenders from loitering in the designated areas

and protect the public. However, this statute should not go beyond its purpose. The areas in the

statute, which includes all public parks, bathing areas, school grounds and playgrounds, are

places where children would be present but not all the time. Until a more specific and reasonable

regulation is completed, Section 179 (1) (b) will continue to infringe J. Clarke's constitutional

right. It is also important to highlight that everyone has the right to be presumed innocent until

proven otherwise (Section 11, Charter of Rights and Freedoms). The accused's previous

conviction is not an automatic determinant that he will commit the crime again. Him being

around areas where children may be present should not paint a picture that he will commit

lascivious acts automatically. The prejudice, though probable, is not a ground to defeat his

freedom and liberty to visit local and public areas.

For the Crown Prosecutor

The key activity for the perfection of the crime proscribed in Section 179 (1) (b) is

loitering. In a normal sense, loitering simply means "hanging around". Nowhere in the law

requires that the offender should possess a malicious intent to sexually assault children. From

there, it can be ascertained that the mere presence of the offender is sufficient for him to be

guilty and thus, arrested. Such is the case of J. Clarke. He was seen twice in an area where he is

prohibited from visiting. He was already warned during his first visit but that did not prevent him

from coming back. While Section 179 (1) (b) is quite presumptive, it is with a heavy cause -

prevention. In the areas mentioned by the law, like public parks, bathing areas, school grounds
and playgrounds, these places usually attract children. And it is only natural to assume that

pedophiles would scout these areas for their next victims. J. Clarke, due to his persistence,

displayed a predatory behavior.

Contrary to the promulgation in R v Heywood, the accused may not be priorly and

formally notified of the existing criminal laws. After all, ignorance of the law excuses no one

from violating it (Section 19, Canadian Criminal Code).

Conclusion

There are several principles embodied in Section 7 of the Charter of Rights of Freedom,

one of the most fundamental is the concept of overbreadth. Under this principle, there are two

main points. One, a person's right to life, liberty, and security may only limited in cases violative

of the fundamental justice. The other one concentrates on the purpose of the means used in

limiting such a person's rights and freedom in order to preserve fundamental justice. In

discerning J. Clarke's case, it is critical to establish first that Section 179 (1) (b) of the Criminal

Code passed the overbreadth test to effect a conviction.

References

Constitution Act, 1982, Section 7.

https://laws.justice.gc.ca/eng/Const/Const_index.html

Constitution Act, 1982, Section 11. Retrieved from

https://laws.justice.gc.ca/eng/Const/Const_index.html
Criminal Code, RSC 1985, c. C - 46, as amended. Retrieved from https://laws-

lois.justice.gc.ca/eng/acts/c-46/

R v Heywood [1994], 3 S.C.R. 761. Retrieved from https://scc-csc.lexum.com/scc-csc/scc-

csc/en/item/1198/index.do