The accused, Robert Lorne Heywood, an individual with a previous conviction for sexual assault, was charged under Section 179(1)(b) of the Criminal Code with “loitering at or near a school ground, playground, public park or bathing area.” Mr. Heywood argued that the section infringed his rights under Section 7 of the Charter and overstepped its legislative intention, namely the protection of children from sexual predators.
Although the trial judge found that Section 179(1)(b) could be justified as a “reasonable limit” within the meaning of Section 1 of the Charter, the Court of Appeal and Supreme Court of Canada overruled this conclusion, finding that the legislation was overbroad and failed the proportionality requirement in the Oakes test:
“Here, s. 179(1)(b) was overly broad for a number of reasons. It applied to all public parks and beaches, no matter how remote and devoid of children. The prohibition applied for life without any process for review. It applied to all persons convicted of the listed offences without regard to whether they constituted a danger to children. There was no provision of notice to the accused.”
The Supreme Court found that it could not read down the Section to make it constitutional, as such would involve the judicial re-writing of legislation, something which is outside the mandate of the courts.
Decided by the Supreme Court of Canada on November 24, 1994.
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