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R. v. Moyer, [1994] 2 S.C.R. 899

 

Her Majesty The Queen                                                                   Appellant

 

v.

 

Paul Wayne Moyer                                                                            Respondent

 

Indexed as:  R. v. Moyer

 

File No.:  23712.

 

1994:  June 1; 1994:  September 1.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the court of appeal for ontario

 

                   Criminal law ‑‑ Indignity to human remains ‑‑ Photographs taken at identifiable grave sites of human remains ‑‑ Photographs featuring skinhead wearing neo‑Nazi symbols and simulating urinating on monument in Jewish cemetery ‑‑ Accused choreographing photo shoot and providing props ‑‑ Whether `offering indignities' requires physical contact with human remains ‑‑ Whether indignities can be offered to monuments ‑‑ Criminal Code, R.S.C., 1985, c. C‑46 , s. 182 (b).

 

                   Appeal ‑‑ Charge ‑‑ Amendment of charge ‑‑ Charge as drafted overly broad and capable of encompassing innocent activity ‑‑ Charge as redrafted not prejudicing accused ‑‑ Whether or not charge should be amended by this Court ‑‑ Criminal Code, R.S.C., 1985, c. C‑46 , ss. 683(1) (g), 695(1) .

 

                   Respondent and a young "skinhead" took neo‑Nazi photographs in a Jewish cemetery.  (Skinheads are often identified by their use of clothing with Nazi and white supremacist symbols.)  Respondent choreographed the photo shoot, which included pictures of the skinhead's simulating urinating on actual identifiable gravestones, and supplied the props.  He was charged, on the basis of the photographs, with offering indignities to human remains contrary to s. 182 (b) of the Criminal Code .  The Court of Appeal overturned his conviction.  At issue here was whether `offering indignities' requires physical contact with human remains and whether the section only captures indignities offered to human remains or whether it also captures indignities offered to monuments.  An issue arising at the oral hearing on this appeal involved whether the Court could amend the charge as laid.  The unacceptable implication flowing from conviction on the charges as laid was that the photographing by anyone of a young male offering indignities to human remains in and of itself constitutes offering an indignity to human remains.

 

                   Held:  The appeal should be allowed.

 

                   Physical interference with a dead body or human remains is not necessary under s. 182 (b) and the indignities must be offered to the dead body or human remains (as opposed to monuments per se).  However, where monuments mark the presence of human remains, offering indignities to the monuments constitutes offering indignities to the human remains that are marked by the monuments.  This interpretation is not impermissibly vague ‑‑ the courts can give it clear content.  Nor is this interpretation overbroad for it does not include showing disrespect to a memorial plaque or a photo of the deceased far removed from the human remains but rather is confined to human remains and to grave sites and monuments that mark the final resting place of human remains.

 

                   Respondent's conduct in toto constituted acts of defilement and callous disrespect towards the remains of the individuals buried under the monuments that feature so prominently in his photographs.  Doing what he did with and to the monuments placed on the graves constituted offering indignities to the remains buried below.  If there had been no remains, then his conduct would have been reprehensible but not criminal under s. 182 (b).

 

                   Respondent's claim that he offered indignities to Jewish people in general, as opposed to the remains of any specific Jewish individuals, was not supported by the trial judge's reasons and this finding of fact about his intent should not be disturbed on appeal for no reason.  It did not matter, however, whether the respondent's claim were true.  If he used an individual Jewish person's monument, grave site and human remains as a means to the end of offering indignities to Jewish people in general, then he is guilty.

 

                   The Court of Appeal, pursuant to s. 683(1)(g) of the Code, may amend the charge, where it considers it to be in the interests of justice, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.  The Supreme Court of Canada, pursuant to s. 695(1) , may make any order that the Court of Appeal might have made and may make any rule or order that is necessary to give effect to its judgment.  It was clearly in the interests of justice to amend the charge to conform with the evidence and to describe fully the  activities that constituted the offence.  Furthermore, the respondent at the oral hearing conceded that he had not been misled or prejudiced in his defence or appeal by the charges and would not be prejudiced by the amendments.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C., 1985, c. C‑46 , ss. 182 (b), 683(1) (g) [ad. R.S.C., 1985, c. 27 (1st Supp.), s. 144], 695(1).

 

Authors Cited

 

Black's Law Dictionary, abridged 5th ed.  St. Paul, Minn.:  West Publishing Co., 1983. 

 

Concise Oxford Dictionary, 8th ed.  Edited by R. E. Allen.  Oxford:  Clarendon Press, 1990.

 

Dictionnaire Quillet de la langue française.  Paris:  Librairie Aristide Quillet,             1975.

 

Grand Larousse de la langue française, t. 4.  Paris:  Librairie Larousse,         1975.

 

Oxford English Dictionary, 2nd ed., vol. 7.  Prepared by J. A. Simpson and

            E. S. C. Weiner.  Oxford:  Clarendon Press, 1989. 

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1993), 64 O.A.C. 389, 83 C.C.C. (3d) 280, 25 C.R. (4th) 115, allowing an appeal from conviction by Cavarzan J.  Appeal allowed.

 

                   Rosella Cornaviera, for the appellant.

 

                   Bruce Duncan, for the respondent.

 

                   The judgment of the Court was delivered by

 

                   Lamer C.J. --

 

I.                 Factual Background

 

                   Early in the fall of 1990, the respondent met S.B. on a street in Hamilton when the respondent mistook S.B. for someone else and approached him.  At the time of this meeting, S.B. had very short "buzz-cut" hair and was wearing black "Doc Marten" boots with white laces.  His appearance identified him as a "skinhead" -- i.e., an individual, usually between the ages of 13 and 35 with "buzz-cut" hair, black leather clothes (sometimes with Nazi symbols on them), and black "Doc Marten" boots with white laces.  The white laces symbolize a belief in white supremacy.

 

                   The respondent and S.B. discussed their shared interest in photography and the respondent told S.B. that he wanted him to pose for some photographs.  One week later, S.B. called the respondent and they discussed going to the Jewish Cemetery on Limeridge Road in Hamilton to "make some photos that were like neo-nazi".  That same day, they got together at a restaurant, looked at each other's photographs (the respondent's were of "skinheads" and S.B.'s were of "streetkids"), and decided to go to the Jewish Cemetery to take some photographs.

 

                   They drove to the Jewish Cemetery in the respondent's car and took the cameras and props out of that car.  These props included a Nazi dagger, a Nazi tie pin, a bottle of yellow-dyed water, a "Happy Birthday" banner, a pair of ladies underwear, and an empty beer cup.  The respondent gave S.B. a T-shirt to wear.  The T-shirt had "Fuck Off and Die" written on the front of it.

 

                   The respondent took a number of photographs that were entered into evidence at trial.  Three of these photographs are directly relevant to this appeal.  The first featured S.B. standing beyond the gravestone of S.L., turned to his right, exposing his penis towards the gravestone, and wearing the T-shirt inscribed "Fuck Off and Die".  The second featured S.B., from the upper thigh down, sitting on the gravestone of N.S., wearing his "Doc Marten" boots with the white laces, holding a Nazi dagger, with a stream of yellow liquid simulating urine pouring down in front of the gravestone.  The third featured a small bird impaled by a Nazi tie pin with a swastika on it, lying on the gravestone of O.G. next to a piece of paper with the words "Oi! Skins" (a "skinhead" battlecry) written on it.

 

                   For the first two of these photographs, the respondent supplied the props, directed the actions of S.B., and operated the camera.  For the last photograph, the respondent supplied and set up the props and operated the camera.

 

                   In mid-October 1990, the manager of the photography department at a store in the Limeridge Mall called the police to report seeing prints made for a customer which depicted animal abuse and satanism.  The police reviewed four sets of photos of 36 prints each, all in the name of the respondent, and retained six to ten prints, six of which were introduced as evidence at trial.

 

                   On October 21, 1990, the respondent was charged with six counts of indecently offering indignities to human remains contrary to s. 182 (b) of the Criminal Code, R.S.C., 1985, c. C-46 .

 

II.                Relevant Statutory Provisions

 

Criminal Code, R.S.C., 1985, c. C-46 :

 

                          182.  Every one who

                                                                   . . .

 

(b)               improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not,

 

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 

                   683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

 

                                                                   . . .

 

(g)               amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.

 

                   695. (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

 

III.               Judgments Below

 

                   A.  Ontario Court of Justice (General Division) (Cavarzan J.)

 

                   Cavarzan J. found that there was no doubt that the respondent was guilty as charged on three of the six counts.  He had no doubt that the respondent actually took the photographs and that he intended to offer an indignity to the human remains of S.L., N.S., and O.G.: "[t]here can be no reasonable doubt that the accused intended to show disrespect" and "[the respondent] wanted to get across as much neo-Nazi disrespect to Jews as possible, short of doing actual damage to the grave sites".

 

                   Cavarzan J. convicted the respondent on the following counts:  indecently offering an indignity to the human remains of S.L., by photographing a young male in front of the gravestone while the male was exposing his penis towards the stone wearing a T-shirt inscribed "Fuck Off and Die", contrary to the provisions of s. 182 (b) of the Criminal Code ; indecently offering an indignity to the human remains of N.S., by photographing a young male sitting on the gravestone urinating and holding a Nazi style bayonet in front of the deceased's name, contrary to the provisions of s. 182 (b) of the Criminal Code ; and, indecently offering an indignity to the human remains of O.G., by photographing the gravestone after placing a dead bird on the stone with a Nazi Swastika pinned to it, contrary to the provisions of s. 182 (b) of the Criminal Code .

 

                   B.  Court of Appeal (1993), 64 O.A.C. 389

 

                   (1) Austin J.A. (for the majority)

 

                   Austin J.A. stated that "[i]n the present case the central issue is whether physical contact or involvement [with the human remains] is necessary" for "offering an indignity".

 

                   Austin J.A. concluded at p. 394 that:

 

. . . in enacting s. 182 (b) it was Parliament's intention to codify the common law and that the offence includes neither more nor less than it did at common law.  Section 182 (b) therefore does not include the conduct in issue here however vicious and abhorrent it may be. 

 

                   Expressing contempt, by acts or gesture, for what a deceased person stood for, is not, in my opinion, offering an indignity to that person's remains, whether it is done at the gravesite, within the confines of the cemetery where that person is buried; or anywhere else.  It is an affront to the memory of that person, a vicious and repugnant affront in this case, but not an affront to the physical remains.  Section 182  of the Criminal Code  does not include any notion of personhood in the expression "a dead human body or human remains".  The French version of s. 182  uses the expression "cadavre" for dead human body.  That confirms, in my opinion, that the Code did not mean to extend the definition of the offence beyond what it was at common law, and that there has to be an indecency or indignity offered to the physical human remains for the offence to be committed.

 

                   Austin J.A. therefore allowed the appeal, set aside the convictions, and entered acquittals.

 

                   (2) Catzman J.A. (dissenting)

 

                   Catzman J.A. stated that the essential question in this appeal is whether, in furtherance of the respondent's intention to show as much disrespect to Jews as possible short of doing actual damage to the gravestones or sites, the respondent offered an indignity to human remains within the contemplation of s. 182 (b) of the Criminal Code .

 

                   Catzman J.A. acknowledged that there was no direct physical contact with the bodies of the deceased in the case at bar.  However, he rejected as sophistry the respondent's argument that the indignity which he offered was addressed not to human remains but rather to gravestones as Jewish symbols.  Catzman J.A. held at p. 395 that "[t]he function of a tombstone is  to designate the place where the remains of the deceased are buried and to perpetuate his or her name and memory" and concluded:

 

In my view, a person offering an indignity to such tombstones offers an indignity to the human remains which they mark.

 

. . . the "indignity" contemplated by the section embraces conduct that is dishonourable, disgraceful or unworthy, acts of abuse, defilement or callous disrespect.  All of those terms apply to the [respondent's] conduct in the present case as much as they applied to the physical indignities described in the reported decisions.

 

                   Accordingly, I agree with the trial judge that the [respondent's] actions constituted the offering of indignity to human remains.  I would dismiss the appeal.

 

IV.              Analysis

 

                   At issue here is the meaning of s. 182(b) of the Code.  Specifically, "does `offering indignities' require physical contact with human remains?" and "does the section only capture indignities offered to human remains or does it also capture indignities offered to monuments?"  Within the category of monuments, I include stones and other structures placed over a grave to mark the final resting place of human remains as well as commemorative stones or structures far removed from any actual human remains.  I will conclude that physical interference with a dead body or human remains is not necessary under s. 182 (b) and that the indignities must be offered to the dead body or human remains (as opposed to monuments per se).  However, where monuments mark the presence of human remains, offering indignities to the monuments constitutes offering indignities to the human remains that are marked by the monuments.

 

                   A.  Statutory Interpretation

 

                   182. Every one who

                                                                   . . .

 

(b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not,

 

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 

                   The words "interferes with or offers any indignity" reveal that physical interference is a sufficient but not a necessary element of this offence.  The use of the disjunctive "or" indicates that interference and the offering of an indignity are different.  Furthermore, the use of the word "indignity" indicates that contact with the body is not necessary.  Consider the following definitions of "indignity":

 

The Oxford English Dictionary (2nd ed. 1989):

 

                   1. The quality or condition of being unworthy; unworthiness.  In pl., Unworthy qualities; undeserving traits. . . .

 

                   2. The quality or condition of being unbecoming, dishonourable, or disgraceful; want or loss of dignity or honour. b. Conduct involving shame or disgrace; a disgraceful act. . . .

 

The Concise Oxford Dictionary (8th ed. 1990):

 

1 unworthy treatment. 2 a slight or insult. 3 the humiliating quality of something. . . .

 

Black's Law Dictionary (abridged 5th ed. 1983):

 

In the law of divorce, a species of cruelty addressed to the mind, sensibilities, self-respect, or personal honor of the subject, rather than to the body.

 

The ordinary sense of "indignity" clearly does not require any physical contact with a body.

 

                   It should be noted that the French text does not include physical interference: "commet tout outrage, indécence ou indignité".  This makes my claim that physical contact is not necessary even stronger.

 

                   The words "whether buried or not" also reveal that physical contact is a sufficient but not a necessary element of this offence.  Parliament clearly contemplated the offering of indignities taking place when the body or human remains were buried.  That is, Parliament contemplated the offering of indignities to human remains separated from an accused by six feet of dirt.

 

                   The words "whether buried or not" also indicate that Parliament did not intend to catch interfering with or offering indignities to monuments per se --  monuments are not buried.  However, in cases involving buried remains but not involving physical contact with those remains, it would be impossible to distinguish between indignities being offered to the grave site or the monument marking the human remains and indignities being offered to the actual human remains.  Therefore, I believe that it is reasonable to assume that Parliament intended that indignities offered to the grave site and the monument marking the human remains should be considered indignities offered to the human remains.

 

                   On the basis of this exercise of statutory interpretation, I conclude that: (1) s. 182 (b) does not require physical interference or contact with a dead body or human remains; and (2) s. 182 (b) does not apply to offering indignities to monuments per se; however, (3) s. 182 (b) does apply to offering indignities to monuments that mark human remains because to offer indignities to such monuments is to offer indignities to the remains themselves.

 

                   Unlike the respondent, I do not think that this interpretation is impermissibly vague -- the courts can give it clear content.  Nor do I think that this interpretation is overbroad -- it does not include showing disrespect to a memorial plaque or a photo of the deceased hundreds of kilometres from the human remains.  It is confined to human remains and grave sites and monuments that mark the final resting place of human remains.

 

                   B.  Application of the Statutory Interpretation to the Facts

 

                   The respondent offered indignities to human remains contrary to s. 182 (b) of the Criminal Code .  He went to the grave sites of specific identified Jewish individuals and choreographed and took neo-Nazi photographs using props and a "model" whom he had brought to the cemetery.  His conduct in toto constituted acts of defilement and callous disrespect towards the remains of the individuals buried under the monuments that feature so prominently in his photographs.  Doing what he did with and to the monuments placed on the graves constituted offering indignities to the remains buried below.  

 

                   If there had been no remains (e.g., if the respondent had chosen to take neo-Nazi photographs at the Washington Memorial to the victims of the Holocaust), then his conduct would have been reprehensible but not criminal under s. 182 (b).  However, in the case at bar, the monuments marked the final resting place of human remains and his conduct can and should be characterized as being directed at those remains and thus reprehensible as well as criminal under s. 182 (b).

 

                   At this point, I would like to respond to the respondent's claim that he offered indignities to Jewish people in general as opposed to the remains of any specific Jewish individuals.  This claim is not supported by the trial judge's reasons.  For example, the trial judge explicitly said:  "Nor am I left with any doubt that the accused intended to offer an indignity to the human remains of [S.L.]."  This is a finding of fact made by a trial judge about the intent of the respondent.  There is no reason for this Court to disturb this finding of fact. 

 

                   In any event, it does not matter whether the respondent's claim is true.  If he used an individual Jewish person's monument, grave site, and human remains as a means to the end of offering indignities to Jewish people in general, then he is guilty.

 

                   C.  Amending the Indictment

 

                   It was recognized at the oral hearing in the case at bar that there was a problem with two of the three charges upon which the respondent was convicted.  These charges read as follows:

 

3. And further, on or about the same time and place, in the said Region, unlawfully did indecently offer an indignity to the human remains of [S.L.], by photographing a young male in front of the headstone while the male was exposing his penis towards the stone wearing a T-shirt inscribed Fuck off and Die, contrary to the provisions of Section 182 (b) of the Criminal Code  of Canada.

 

4. And further, on or about the same time and place, in the said Region, unlawfully did indecently offer an indignity to the human remains of [N.S.], by photographing a young male sitting on the headstone urinating and holding a Nazi style bayonet in front of the deceased [sic] name, contrary to the provisions of Section 182 (b) of the Criminal Code  of Canada. 

 

For this Court to enter convictions on these charges would be to imply that photographing a young male offering indignities to human remains itself constitutes offering an indignity to human remains.  This is not an acceptable implication.  If it were, then a newspaper reporter who happened upon the scene and took photographs of the respondent and S.B. would be guilty of offering indignities to human remains.  I think that it is clear that Parliament did not intend such conduct to be captured by this section of the Criminal Code 

                   However, it was proven at trial that the respondent did more than simply take photographs.  He organized the photographic session, provided the props, and directed S.B.'s actions.  He choreographed the entire event and thus he offered indignities to human remains. 

 

                   Therefore, the charge should have been amended at trial or at the Court of Appeal to conform with the evidence and to describe fully the activities that constituted the offence.

 

                   Fortunately, the problem with the charge is soluble.  According to s. 683(1) (g) of the Criminal Code , the Court of Appeal may, where it considers it in the interests of justice, amend the charge, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal.  According to s. 695(1) , the Supreme Court of Canada may make any order that the Court of Appeal might have made and may make any rule or order that is necessary to give effect to its judgment.

 

                   It is clearly in the interests of justice to amend the charge to conform with the evidence and to describe fully the activities that constituted the offence.  Furthermore, the respondent at the oral hearing conceded that he had not been misled or prejudiced in his defence or appeal by the charges and would not be prejudiced by the amendments.

 

                   Accordingly, acting under ss. 683(1) (g) and 695(1)  of the Criminal Code , I amend two of the three charges upon which the respondent was convicted as follows:

 

3. And further, on or about the same time and place, in the said Region, unlawfully did indecently offer an indignity to the human remains of S.L., by photographing a young male in front of the headstone while the male was exposing his penis towards the stone wearing a T-shirt inscribed Fuck off and Die and by supplying the props and directing the actions of the young male (i.e., choreographing the event), contrary to the provisions of Section 182 (b) of the Criminal Code  of Canada.

 

4. And further, on or about the same time and place, in the said Region, unlawfully did indecently offer an indignity to the human remains of N.S., by photographing a young male sitting on the headstone simulating urinating and holding a Nazi style bayonet in front of the deceased's name and by supplying the props and directing the actions of the young male (i.e., choreographing the event), contrary to the provisions of Section 182 (b) of the Criminal Code  of Canada. 

 

 

V.                Disposition

 

                   First, acting under ss. 683(1) (g) and 695(1)  of the Criminal Code , I amend charges three and four against the respondent as set out above.  I direct that the amendment shall be endorsed on the charge as part of the record.

 

                   Second, I conclude that s. 182 (b) of the Criminal Code  does not require physical interference and it does not capture offering indignities to monuments to the dead that do not mark the final resting place of human remains.  However, it does capture offering indignities to monuments to the dead that mark the final resting place of human remains.  The conduct in the case at bar constituted offering indignities to human remains under s. 182 (b) of the Criminal Code .  I therefore allow the appeal, set aside the acquittals of the Court of Appeal, and reinstate the convictions of the trial judge.

 


                   Appeal allowed.

 

                   Solicitor for the appellant:  The Attorney General for Ontario, Toronto.

 

                   Solicitors for the respondent:  Burke-Robertson, Ottawa.

 

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