R. v. Lohnes, [1992] 1 S.C.R. 167
Donald Hector Lohnes Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Lohnes
File No.: 22278.
1991: November 1; 1992: January 23.
Present: L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the nova scotia supreme court, appeal division
Criminal law ‑‑ Disorderly conduct ‑‑ Causing disturbance ‑‑ Accused shouting obscenities at neighbour ‑‑ Meaning of "disturbance" ‑‑ Whether accused caused a disturbance in public place ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 175(1)(a)(i).
The accused was charged with causing a disturbance by using insulting or obscene language contrary to s. 175(1)(a)(i) of the Criminal Code. On two occasions, he went onto the veranda of his house and shouted obscenities at his neighbour across the street. The neighbour filed a complaint and testified for the Crown. No evidence was adduced indicating that anyone else heard the accused's statements or that the neighbour's conduct was affected by them. The trial judge convicted the accused on the ground that his conduct in itself constituted a disturbance within s. 175(1)(a). He found as well that the neighbour was "disturbed" by the accused's conduct. The summary conviction appeal court affirmed the convictions and the Court of Appeal refused leave to appeal from that decision. The only issue before this Court is whether the evidence establishes that the accused's use of insulting and obscene language caused a "disturbance" in or near a public place.
Held: The appeal should be allowed. The convictions should be quashed and acquittals entered in their place.
The weight of the authorities, the principles of statutory construction and policy considerations, taken together, lead to the conclusion that the "disturbance" contemplated by s. 175(1)(a) is something more than mere emotional upset or annoyance. Before an offence can arise under that section, the enumerated conduct must cause an externally manifested disturbance of the public peace, in the sense of an interference with the ordinary and customary use by the public of the place in question. The interference may be minor but it must be present. It may be proven by direct evidence or be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself or it may flow as a consequence of the impugned act. Finally, in accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.
In the case at bar, there was no evidence of a disturbance of the use of the premises in question by anyone. The trial judge applied a mental disturbance test, convicting on the basis that an "ordinary reasonable individual would be disturbed by language of that nature being shouted in a public area". There was no finding that the conduct of the neighbour or anyone else was affected or disturbed by the language. In the absence of such findings, the convictions cannot stand.
Cases Cited
Considered: R. v. C.D. (1973), 13 C.C.C. (2d) 206; R. v. Swinimer (1978), 40 C.C.C. (2d) 432; R. v. Peters (1982), 65 C.C.C. (2d) 83; Skoke‑Graham v. The Queen, [1985] 1 S.C.R.106; referred to: R. v. Wolgram (1975), 29 C.C.C. (2d) 536; R. v. Chikoski (1973), 14 C.C.C. (2d) 38; R. v. Eyre (1972), 10 C.C.C. (2d) 236.
Statutes and Regulations Cited
Act respecting Vagrants, S.C. 1869, c. 28.
Act to amend the Criminal Code, S.C. 1947, c. 55, s. 3.
Criminal Code, R.S.C. 1927, c. 36, Part V.
Criminal Code, R.S.C., 1985, c. C‑46, s. 175.
Criminal Code, S.C. 1953‑54, c. 51, s. 160.
Public Order Act 1986 (U.K.), 1986, c. 64.
Authors Cited
Petit Robert 1. Paris: Le Robert, 1990, "tapage".
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division (1990), 100 N.S.R. (2d) 268, 272 A.P.R. 268, dismissing an application for leave to appeal from a judgment of a summary conviction appeal court, which dismissed the accused's appeal from his convictions on charges of causing a disturbance contrary to s. 175(1)(a) of the Criminal Code. Appeal allowed.
Del Atwood, for the appellant.
Denise C. Smith and Dana W. Giovannetti, for the respondent.
The judgment of the Court was delivered by
McLachlin J. -- This case requires this Court for the first time to consider what constitutes a public disturbance under s. 175(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, which makes it an offence to cause a disturbance in or near a public place by, inter alia, fighting, screaming, shouting, swearing, singing or using insulting or obscene language. Shouting or swearing or singing are not in themselves criminal offences. They become criminal only when they cause a disturbance in or near a public place. What constitutes such a disturbance? For example, does mere annoyance or emotional disturbance of the complainant suffice? Or is something more required?
The Facts
The case began as a disagreement between two neighbours in the town of Milton, Nova Scotia. The appellant, Donald Lohnes, lived across the street from a certain Mr. Porter. Mr. Porter, it seems, was given to collecting equipment on his premises and running motors which made loud noises. This disturbed Mr. Lohnes. It disturbed him so much that on two occasions a year apart he went onto the veranda of his house and shouted obscenities at Mr. Porter. The essence of Mr. Lohnes' remarks was that he did not want Mr. Porter "to run that chain saw or that lawn mower or to leave that or have that God-damned junk heap". This was embellished by a string of epithets revealing an impressive command of the obscene vernacular. On the second occasion Mr. Lohnes concluded his oration with the assertion that he would shoot Mr. Porter if he had a gun.
Mr. Porter filed a complaint. He was the only Crown witness. There was no evidence that anyone else heard Mr. Lohnes' statements or that Mr. Porter's conduct was affected by them.
Mr. Lohnes was convicted on the ground that his conduct in itself constituted a disturbance within s. 175(1)(a) of the Criminal Code; the trial judge found, as well, that Mr. Porter was "disturbed" by the impugned conduct. The convictions were upheld by the summary conviction appeal court. The Nova Scotia Supreme Court, Appeal Division refused leave from that decision: (1990), 100 N.S.R. (2d) 268, 272 A.P.R. 268. He now appeals to this Court.
Legislation
Section 175 of the Criminal Code, states:
175. (1) Every one who
(a) not being in a dwelling‑house, causes a disturbance in or near a public place,
(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
. . .
is guilty of an offence punishable on summary conviction.
(2) In the absence of other evidence, or by way of corroboration of other evidence, a summary conviction court may infer from the evidence of a peace officer relating to the conduct of a person or persons, whether ascertained or not, that a disturbance described in paragraph (1)(a) or (d) was caused or occurred.
Analysis
Section 175(1)(a) creates a two-element offence consisting of: (1) commission of one of the enumerated acts; which, (2) causes a disturbance in or near a public place. There is no doubt on the facts of this case that one of the enumerated acts was committed. The only question is whether the evidence establishes that it caused a disturbance in or near a public place.
The word "disturbance" encompasses a broad range of meanings. At one extreme, it may be something as innocuous as a false note or a jarring colour; something which disturbs in the sense of annoyance or disruption. At the other end of the spectrum are incidents of violence, inducing disquiet, fear and apprehension for physical safety. Between these extremes lies a vast variety of disruptive conduct. The question before us is whether all conduct within this broad spectrum elicits criminal liability under s. 175(1), and if not, where the line should be drawn.
The Nova Scotia Supreme Court, Appeal Division in dismissing Mr. Lohnes' application for leave to appeal, agreed with the finding implicit to the judgments below: all that is required to establish an offence under s. 175(1)(a) is one of the forms of prohibited conduct (fighting, screaming, shouting, swearing, singing or using insulting or obscene language) which one ought to know would disturb others. The appellant contends that this interpretation is too broad; there must be some overtly manifested disturbance of the public's use and enjoyment of the public place where the act takes place. The main issue thus turns on how "disturbance" in s. 175(1)(a) is defined; does foreseeable emotional upset suffice, or must there be an externally manifested disturbance of a public nature? The appeal, like the judgments below, focuses upon the requisite actus reus of the offence, although the issue of mens rea, as recognized by the respondent, flows necessarily from a discussion of `disturbance'. A subsidiary issue concerns whether the act itself may constitute the disturbance, or whether a secondary disturbance is required.
The values at stake on this appeal are readily discerned. On the one hand lies the freedom of the individual to shout, sing or otherwise express himself or herself. On the other lies the collective right of every subject to peace and tranquillity. Neither right is absolute. The individual right of expression must at some point give way to the collective interest in peace and tranquillity, and the collective right in peace and tranquillity must be based on recognition that in a society where people live together some degree of disruption must be tolerated. The question is where the line is to be drawn.
I propose to consider these issues from the perspectives of the authorities, the principles of statutory construction, and the underlying policy issues. On my reading, these considerations point to the conclusion that s. 175(1)(a) of the Criminal Code requires an externally manifested disturbance in or near a public place, consisting either in the act itself or in a secondary disturbance.
The Authorities
The offence created by s. 175(1)(a) finds its origins in the common law of vagrancy, an `offence against public convenience', which proscribed certain behaviour in order to preserve peace and order in the community: see, for example, An Act respecting Vagrants, S.C. 1869, c. 28. In 1947, the Criminal Code created a new and distinct offence of causing a disturbance; the offence was moved from the section of the Code entitled "Vagrancy" to the nuisance offences falling under Part V labelled "Offences Against Religion, Morals and Public Convenience": S.C. 1947, c. 55, s. 3. Upon the Code's revision in 1955, S.C. 1953-54, c. 51, the offence was included in Part IV, renamed "Sexual Offences, Public Morals and Disorderly Conduct", as s. 160 under the section entitled "Disorderly Conduct".
Our jurisprudence has exhibited two different doctrinal approaches to the offence dating to the first federal vagrancy enactments. The first line of authority adopts an expansive approach to "disturbance"; the second a narrower approach which would limit "disturbance" by requiring external manifestations of disturbance. The different approaches are exemplified in the judgments of the New Brunswick Court of Appeal in R. v. C.D. (1973), 13 C.C.C. (2d) 206 on the one hand; and the judgment of the Nova Scotia Court of Appeal in R. v. Swinimer (1978), 40 C.C.C. (2d) 432, on the other.
Swinimer adopted the expansive approach; "the disturbance is to be found in the doing of any of the specified acts in or near a public place if such disturbs or could reasonably be inferred as disturbing another person or persons": at p. 439, per Macdonald J.A. The court in R. v. C.D., by contrast, saw the offence as involving two elements: the offensive act and a separate resulting disturbance. As Limerick J.A. put it (at p. 213): "`Fighting, screaming . . . using insulting language. . .' mentioned in cl. (a)(i) are not synonymous with creating a disturbance but are the causes of the subsequent disturbance which is the offence". "[T]he mere disturbing of the peace or tranquility of one person's mind" was held insufficient to give rise to the offence (p. 214).
The British Columbia Court of Appeal charted a path between these two approaches in R. v. Peters (1982), 65 C.C.C. (2d) 83. A secondary disturbance was not always required; the act of shouting or swearing or singing itself could constitute the disturbance. At the same time, shouting obscenities in a loud voice at two police officers was held, in this particular case, not to amount to a disturbance `in and of itself'. Therefore, one or more persons must be "affected" by the conduct for there to be a disturbance within the section (p. 91). Taggart J.A. for the court quoted with approval the reasoning Verchere J. had earlier used (R. v. Wolgram (1975), 29 C.C.C. (2d) 536 (B.C.S.C.), at p. 537) for dismissing such a charge:
It was not made to appear that any person or persons were so disturbed by what occurred as to cause some disorder or agitation to ensue or that there was any interference with the ordinary and customary use by the public of a public place; and although the peace and tranquillity of the minds of the police officers and of some, at least, of the onlookers might well have been interrupted, it has been said by high authority that there must be something more. [Emphasis added.]
A review of the authorities would not be complete without mention of the reasons of MacKeigan C.J.N.S. in Swinimer, concurring in the result but taking a different approach to construction of the section. His reasons are important for two assertions. The first is that the Criminal Code speaks of disturbance of a public place, not of someone's mind (at pp. 434-35):
It seems to me that a "disturbance" is an objective term relating to the noise and confusion created by the specified means of fighting, screaming, swearing, etc. The primary definition of "disturbance" in the Oxford Universal Dictionary is -- "The interruption of tranquillity, peace, rest or settled condition". This objective sense is clearly meant in s. 171(1)(d) [now s. 175(1)(d)] which makes it an offence to "disturb the peace and quiet of occupants of a dwelling house by discharging firearms or by other disorderly conduct in a public place". Section 171(2) [now s. 175(2)] refers to whether "a disturbance described in paragraph (1)(a) or (d) was caused or occurred"; the use of the words "disturbance" and "occurred" seems to me to confirm further that objective standards are to be employed.
Thus, if the Queen's peace has been disturbed, it should not be necessary to prove that any particular onlooker was emotionally upset or might reasonably have been so upset. It should be enough to show beyond a reasonable doubt, from the nature and degree of the fighting, shouting, etc., that the "peace and quiet" of the area had been disturbed. It thus would not be a defence, which it would be if a subjective test is used, for the accused to get all persons who heard or saw the episode to testify that they were not "disturbed". Indeed, one can imagine a case such as this where all the spectators were hard-boiled individuals, who far from being emotionally "disturbed" enjoyed and applauded the disturbers and their abuse of the police. [Emphasis in original.]
The second is the assertion that "[w]hether a disturbance has occurred is a question of fact and depends on the degree and intensity of the activity complained of, and on the degree and nature of the `peace' which should be expected to prevail in the particular public place at the particular time" (p. 435). The latter comment suggests that formulae based on descriptions of conduct without more may be inadequate; the context in which the activity takes place must be considered so that the countervailing interests can be duly weighed. The lawful jangling of the street musician at an urban intersection at noon may become criminal if conducted outside a citizen's bedroom window at three o'clock in the morning.
One more case must be considered. It is the decision of this Court in Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106. While the charges were under a different section, disrupting the solemnity of a religious gathering, the judgments of Dickson J. (as he then was) and Wilson J., concurring in result, offer insights into the proper balance between the competing interests in public order and personal liberty and their reconciliation with the practical exigencies of prosecution and defence. The section made it an offence to "wilfully disturb" a religious gathering. Both Dickson and Wilson JJ. rejected the contention that unmanifested annoyance or upset could constitute a disturbance, Wilson J. commenting that on the Swinimer test, "anyone in any given situation would act at the risk of causing some unmanifested emotional upset or `disturbance' to another person" (p. 131). In this, as well as in the acceptance that the disturbance may arise either from the act itself or from its secondary effect (per Dickson J. for the majority), the pronouncements resemble those made in R. v. Peters, supra. As Dickson J. put it at p. 118:
In my opinion, it is not sufficient to found a conviction under s. 172(3) that an accused's conduct produce annoyance, anxiety, or emotional upset in the members of the assemblage met for religious worship. Where the impugned acts are brief, essentially passive and peaceful in nature and are voluntarily desisted from, upon request, as they were in this case, then there is no crime. There must be some activity in the nature of a disorder which occurs as a result of this conduct before a trial judge would be entitled to find the order of solemnity of a meeting had been disturbed. Where, on the other hand, the impugned actions are not passive nor peaceful in nature, they may in themselves constitute activity in the nature of a disorder sufficient to found a conviction under this subsection.
Whatever their theoretical pronouncements, Canadian courts have entered few if any convictions under (what is now) s. 175(1)(a) absent an overtly manifested disturbance which affected people's conduct, be it found in the act itself or in its effect. In Swinimer the accused's fighting, shouting and obscene language in front of his residence interfered with the usual activities of a neighbour as well as her children, to judge from her testimony that she had to return to the bedroom during the episode to calm the children down. The conviction in R. v. Allick (cited in R. v. Peters, supra, at p. 90) arose from a spirited barroom brawl. In R. v. Chikoski (1973), 14 C.C.C. (2d) 38 (Ont. Prov. Ct.), the police officer testified that the obscenities which the accused had shouted at him not only offended and disturbed him but caused a group of men working in a field some 200 feet away to stop their work and look up towards the place where the police officer and the accused were standing. In R. v. C.D., the trial judge found that the accused caused an affray in the street by shouting and ramming his car into the back of another car, reducing the wife of the owner to tears. Yet, the Court of Appeal overturned even this conviction, finding that the interruption of `tranquility' of mind or the `emotional upset' caused the owner and his wife was insufficient to constitute a `disturbance'. Shouting abusive language without more was held not to trigger the section in R. v. Eyre (1972), 10 C.C.C. (2d) 236 (B.C.S.C.) and R. v. Peters. In R. v. Wolgram, supra, shouting obscenities at police in a barroom was similarly held not to offend the section because "[i]t was not made to appear that any person or persons were so disturbed by what occurred as to cause some disorder or agitation to ensue or that there was any interference with the ordinary and customary use by the public of a public place" (p. 537).
I conclude that the weight of the authority, whether viewed from the point of view of theory or result, suggests that before an offence can arise under s. 175(1) of the Criminal Code, the enumerated conduct must cause an overtly manifested disturbance which constitutes an interference with the ordinary and customary use by the public of the place in question. This may be proved by direct evidence or inferred under s. 175(2). It is not necessary that there be a separate disturbance secondary to the disturbing act; the act itself may in some cases amount to a disturbance and "cause" it in this sense. Finally, the principle of legality, alluded to in the judgment of Wilson J. in Skoke‑Graham suggests that only conduct which may reasonably be expected to cause such a disturbance in the particular circumstances of the case falls within s. 175(1)(a) (see p. 000, below).
Principles of Statutory Construction
The word "disturbance" is capable of many meanings. The task is to choose the meaning which best accords with the intention of Parliament.
The following arguments support the conclusion that "disturbance" in s. 175(1)(a) involves more than mere mental or emotional annoyance or disruption.
First, the noun "disturbance" may have a different connotation than the verb "to disturb". Not everything that disturbs people results in a disturbance (e.g., smoking). A definition which posits identity between "disturb" and "disturbance" is contrary to ordinary usage, the most fundamental principle of statutory construction. This is not to say that one cannot speak of a purely emotional disturbance, but rather that "disturbance" has a secondary meaning which "disturb" does not possess; a meaning which suggests interference with an ordinary and customary conduct or use.
Second, the context of "disturbance" in s. 175(1)(a) suggests that Parliament did not intend to protect society from mere emotional disturbance. Had Parliament sought to protect society from annoyance and anxiety, the section would not be confined to acts occurring in or near a public place, nor would it single out particular forms of objectionable conduct -- many other types of conduct disturb us. Parliament could have expressly protected against emotional disturbance, as was done in the Public Order Act 1986 (U.K.), 1986, c. 64. But, to borrow the language of MacKeigan C.J.N.S. in Swinimer, supra, Parliament chose to speak of a disturbance in or near a public place, not in someone's mind. By addressing "disturbance" in the public context, Parliament signalled that its objective was not the protection of individuals from emotional upset, but the protection of the public from disorder calculated to interfere with the public's normal activities.
Third, interpretative aids suggest that s. 175(1)(a) is directed at publicly exhibited disorder. As noted in Skoke-Graham, supra, headings and preambles may be used as intrinsic aids in interpreting ambiguous statutes. Section 175(1)(a) appears under the section "Disorderly Conduct". Without elevating headings to determinative status, the heading under which s. 175(1)(a) appears supports the view that Parliament had in mind, not the emotional upset or annoyance of individuals, but disorder and agitation which interfere with the ordinary use of a place.
Fourth, the word used for disturbance in the french version of s. 175(1), "tapage", connotes an externally manifested disturbance involving violent noise or confusion disrupting the tranquillity of those using the area in question. For example, Le Petit Robert 1 (1990) defines the term as: "1o Bruit violent, confus, désordonné produit par un groupe de personnes . . . Tapage injurieux ou nocturne: consistant à troubler la tranquillité des habitants en faisant du bruit, sans motif légitime". (Emphasis in original.)
Finally, it can be argued that the reference in s. 175(2) to an inference of disturbance from evidence "relating to the conduct of a person or persons" is consistent with the finding that Parliament had in mind the effect of the shouting, swearing or singing, for example, on the conduct of persons other than the accused. In short, Parliament was concerned with how members of the public other than the accused may have been affected by the impugned act.
Policy
Considerations pertaining to the practical application of the criminal law suggest that the narrower "public disturbance" interpretation of s. 175(1)(a) is preferable to the broader "emotional disturbance" standard.
The first consideration pertains to fundamental justice, and in particular the principle of legality, which affirms the entitlement of every person to know in advance whether their conduct is illegal. As Wilson J. points out in Skoke-Graham, supra, application of the internal test would mean that "anyone in any given situation would act at the risk of causing some unmanifested emotional upset or `disturbance' to another person" (p. 131). Read thus, s. 175(1)(a) imposes a duty to ascertain whether one's conduct disturbs or can reasonably be expected to disturb the "mental" or "emotional" tranquillity of others. Such a burden, dependant as it is on time, place, circumstance and the sensitivities of others, verges on the capricious. It may well be questioned whether it could ever be discharged with certainty.
The second consideration is that the narrower "public disturbance" test permits a more sensitive balancing between the countervailing interests at stake. As MacKeigan C.J.N.S. points out in Swinimer, the test for a disturbance in or near a public place under s. 175(1)(a) should permit the court to weigh the degree and intensity of the conduct complained of against the degree and nature of the peace which can be expected to prevail in a given place at a given time. A test which accepts mental or emotional disturbance as sufficient to establish the offence does not permit such balancing; all that is required is that the accused should have known that someone might be internally disturbed. A test, on the other hand, which turns on whether the effect of the conduct was such as to interfere with the ordinary and customary use of the premises at the time and place in question, permits the countervailing factors to be weighed and balanced. As such, it arguably strikes a more sensitive balance between the individual interest in liberty and the public interest in going about its affairs in peace and tranquillity.
The final policy consideration takes us into the more precarious terrain of pondering the proper goals and limits of the criminal law. The Swinimer standard, adopted by the courts below, would make it a criminal offence to sing or shout in circumstances where a person has reason to believe that his or her conduct might annoy or upset someone else, even though no one may have heard the sound, much less have been affected by it. In support of this interpretation, it was argued that such a stringent standard is necessary in order to nip disturbances in the bud before they become truly disruptive to the public. But it is far from self-evident that the goal of peace and order in our public places requires the criminal law to step in at the stage of foreseeability of mental annoyance. Indeed, our society has traditionally tolerated a great deal of activity in our streets and byways which can and does disturb and annoy others sharing the public space. Given the intrusion on public liberty and the uncertainty in the criminal law which such a rule would introduce, it is arguable that some external manifestation of disorder in the sense of interference with the normal use of the affected place should be required to transform lawful conduct into an unlawful criminal offence.
Conclusion on the Ambit of Section 175(1)(a)
The weight of the authorities, the principles of statutory construction and policy considerations, taken together, lead me to the conclusion that the disturbance contemplated by s. 175(1)(a) is something more than mere emotional upset. There must be an externally manifested disturbance of the public peace, in the sense of interference with the ordinary and customary use of the premises by the public. There may be direct evidence of such an effect or interference, or it may be inferred from the evidence of a police officer as to the conduct of a person or persons under s. 175(2). The disturbance may consist of the impugned act itself, as in the case of a fight interfering with the peaceful use of a barroom, or it may flow as a consequence of the impugned act, as where shouting and swearing produce a scuffle. As the cases illustrate, the interference with the ordinary and customary conduct in or near the public place may consist in something as small as being distracted from one's work. But it must be present and it must be externally manifested. In accordance with the principle of legality, the disturbance must be one which may reasonably have been foreseen in the particular circumstances of time and place.
Disposition of the Appeal
There was no evidence of a disturbance of the use of the premises in question by anyone in the case at bar. The trial judge applied a mental disturbance test, convicting on the basis that an "ordinary reasonable individual would be disturbed by language of that nature being shouted in a public area". The convictions were upheld. In denying leave to appeal, the Court of Appeal agreed that language such as that used by the accused was "inherently disturbing and was of itself a disturbance" (p. 270). There was no finding that the conduct of the complainant or anyone else was affected or disturbed by the language. In the absence of such findings, the convictions cannot stand.
I would allow the appeal, quash the convictions, and substitute acquittals in their place.
Appeal allowed.
Solicitor for the appellant: Del Atwood, Bridgewater.
Solicitor for the respondent: The Attorney General of Nova Scotia, Halifax.