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CRIMINAL CODE OFFENCES - Breach of probation

Wednesday, April 19, 2017 @ 9:54 AM  

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Appeal by the Crown from the acquittal of the accused, Allaby, for breach of probation and prohibition orders. The accused was convicted of various sexual offences involving children. In 2004, a lifetime s. 161 order prohibited the accused from attending specified areas in which children were present or reasonably expected to be present. In addition, an 18-month probation order imposed in 2015 prohibited the accused from attending specified areas in which children were present or reasonably expected to be present. The charges arose due to the accused's daily attendance at a downtown public library over a two-month period. The library contained a children's section and a theatre that exhibited family films. Children of all ages frequented every floor of the library. The accused testified that he did not believe the library constituted a "community centre" for the purpose of his probation and prohibition orders. The trial judge concluded that the evidence did not establish the library fell within the definition of a community centre, and that the accused had no intention of breaching the orders. The accused was acquitted. The Crown appealed.

HELD: Appeal allowed. The trial judge erred in law by concluding that the library was not a community centre. The purpose of s. 161 and a related probation order was to restrict an offender's access to children and protect them from victimization by sexual predators. The ordinary and grammatical sense of the term community centre implied a place where people of the community, including children, congregated for various purposes. It was common sense that the provision of activities or resources beneficial to children would result in the presence of children. The trial judge gave no reasons for adopting the definition of a community centre as a place providing social and recreational facilities for a neighbourhood. Given the purpose and objectives of a s. 161 order, it was unreasonable to exclude educational activities from the definition. The accused deliberately chose to attend the library. His mistake of law regarding the ambit of the definition of community centre and the legal consequences of his actions did not operate as a defence or negate his intent. Given the evidence of a possible officially induced error, the appropriate remedy was to grant a new trial.

R. v. Allaby, [2017] S.J. No. 114, Saskatchewan Court of Appeal, J.G. Lane, R.K. Ottenbreit and N.W. Caldwell JJ.A., March 27, 2017. Digest No. TLD-Apr172017007