Heywood had been convicted of sexual assault two years before this case. In this case he was charged under s.179(1)(b) of the Code for loitering around a public park (where children would be) while having a record of being a sex offender. He was caught once and warned not to do it, and then caught again and charged. After searching his pictures they found compromising images of minors in public. Heywood was convicted at trial, but the conviction was overturned by the Court of Appeal.
- Is s. 179(1)(b) of the Code consistent with ss.7 and 1 of the Charter?
- What is the definition of "loitering" pursuant to s. 179(1)(b)?
Appeal dismissed, conviction quashed.
Cory, writing for the majority, accepts the dictionary definition of "loitering" as essentially meaning "hanging around" and cite precedence of other cases using this definition. He states that the section in question clearly violates s.7 of the Charter as it restricts the defendant from being in many areas such as parks and beaches for the rest of his life. The question then becomes whether this is saved by s.1.
He does not think that this violation is saved by s.1. The way the section is structured limits offenders' freedom in ways that go beyond what is necessary for justice. He gives four main reasons:
- its geographical limits are too far reaching (includes areas without children);
- the lifetime ban is unreasonable, and should be subject to review;
- it limits all sex offenders, when it should only limit those who abused children; and
- it puts the prohibition in place without notifying the offender first.
Therefore Cory dismisses the appeal and says that the section is unconstitutional. He says that s.161 is a much better law for achieving the same end as it takes many of the above things into consideration.
Gonthier, in the dissent, argues that the definition of "loitering" in the section includes the necessity of having malevolent purposes while "hanging around". Therefore the violation of s.7 is saved by s.1 as protecting society from people with malevolent purposes and a probability that they will commit another crime is in line with the principles of fundamental justice.
There is also a discussion of the relationship between vagueness and overbreadth. A crime that is overly vague is unconstitutional, and one that is overly broad is as well because it does more than is needed to protect justice. With either definition of "loitering" used, this crime is not overly vague, however the way that the majority approaches it makes its reach too broad, while this problem does not exist in the minority's analysis because it only limits those with malicious intentions involved with their loitering.
- "Loitering" does not need any special kind of mental aspect – it just means "hanging around".
- The ways that a law limits one's liberty must be justifiable as being in line with the principles of fundamental justice (s.1) and cannot limit freedoms more than is necessary.
- A crime can be deemed to be unconstitutional for being either too vague or too broad.
- Overbreadth means that the law is too generally sweeping and that it is sometimes too arbitrary or disproportionate to its purpose.