Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106
Roseanne Skoke‑Graham, Kathryn Doris Skoke, Margaret Martin, Veronica MacFarlane, Christopher MacFarlane and Rosalie Hafey Appellants;
and
Her Majesty The Queen Respondent;
and
The Attorney General of Canada Intervener.
File No.: 17610.
1984: January 26; 1985: March 14.
Present: Ritchie*, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson JJ.
*Ritchie J. took no part in the judgment.
on appeal from the nova scotia supreme court, appeal division
Criminal law ‑‑ Disturbing religious worship ‑‑ Elements of offence ‑‑ Accused kneeling to receive communion instead of standing ‑‑ Whether or not religious service “disturbed” contrary to s. 172(3) of the Code? ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 172(3).
Constitutional law ‑‑ Criminal law ‑‑ Validity of legislation ‑‑ Disturbing religious worship ‑‑ Whether s. 172(3) of the Criminal Code intra vires Parliament ‑‑ Constitution Act, 1867, s. 91(27) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34 , s. 172(3).
Statutes ‑‑ Interpretation ‑‑ Headings ‑‑ Use of headings as an aid for statutory construction.
The appellants are Roman Catholics who were charged, pursuant to s. 172(3) of the Criminal Code, with wilfully disturbing the order or solemnity of an assemblage of persons met for religious worship. The appellants opposed a change in the liturgy, approved by the Bishop, requiring communion to be received by parishioners while standing rather than kneeling as had been the previous practice. As a result of this liturgical change, there had been an ongoing dispute between appellants and their parish priest and other members of the congregation. A diocesan directive, describing in particular the manner communion was to be administered and received, was regularly read at services and twice during mass on the day in question. However, appellants attempted to receive communion in a kneeling position. Each was told by the priest to stand if he wished to receive it. After a few seconds, each one stood and, without having received communion, returned to his seat in an orderly manner. The trial judge convicted the accused, finding their actions hampered the spirituality of this part of the service, held up the communion lines briefly and created a degree of anxiety and tension which distracted the priests and some members of the congregation. Both the County Court and the Nova Scotia Supreme Court, Appellate Division, upheld the conviction.
Held: The appeal should be allowed.
Per Dickson, Beetz, McIntyre, Chouinard and Lamer JJ.: Subsection 172(3) of the Criminal Code is valid federal legislation pursuant to s. 91(27) of the Constitution Act, 1867. This subsection is a prohibition which, by means of summary conviction penalty, protects people, who have gathered to pursue any kind of socially beneficial activity, from being purposefully disturbed or interrupted. This prohibition, with its consequent penal sanctions, serves the needs of public morality by precluding conduct potentially injurious to the public interest. It therefore bears the essential characteristics by which matters falling within the criminal law power of Parliament are commonly identified.
The conduct of the appellants did not violate s. 172(3) of the Criminal Code. Appellants' conduct was undoubtedly wilful and took place at an assemblage of persons met for religious purposes. Conduct producing annoyance, anxiety or emotional upset in the members of the assemblage met for religious worship is not sufficient, however, to found a conviction under the subsection. Where the impugned acts are brief, essentially passive in nature and are voluntarily desisted from, upon request, then there is no crime. Some activity in the nature of a disorder must occur as a result of this type of conduct before a trial judge would be entitled to find the order or solemnity of a meeting had been disturbed.
To found criminal liability under this subsection, the actions must meet a definition of the word "disturbs" suitable in law to the context of the section and the offence thereby enacted. Not all conduct capable of being described as disturbing or creating a disturbance will fall within s. 172(3). The use of the all‑encompassing term "anything", to describe the type of acts that can be the cause of the disturbance, is an indication of the need to restrict the meaning of the word "disturbs". Parliament could not have intended that s. 172(3) could be triggered by conduct which is not disorderly in itself or productive of disorder. The heading of ss. 169‑175 of the Code‑‑Disorderly Conduct‑‑supports this conclusion. There was no identifiable disorder in this case. A brief holdup of the lines and a heightening of the existing atmosphere of tension discerned by some of those present is not evidence of a disorder. The trial judge erred in law in his interpretation of s. 172(3) and wrongly convicted the appellants.
Per Lamer and Wilson JJ.: The trial judge erred in holding that kneeling instead of standing to receive communion fell within the meaning of the word "anything" when properly interpreted in light of the legislative context and legislative history of s. 172(3) of the Criminal Code. The appellants should not have been convicted.
The legislative context and history of the provision dictates that the word "anything" should be given a restricted interpretation consonant with the purpose of the statute. Prior to 1954, a disturbance, interruption or disquiet of a religious assembly was only punishable if it took place "by profane discourse, by rude or indecent behaviour or by making noise". In amending the section in the 1953‑54 Code to its present form, Parliament did not intend to expand its scope to cover peaceful acts of defiance of religious authority. This view is reinforced by the fact that s. 161 of the 1953‑54 Code (like s. 172 of the present Code) is one of a series of offences falling under the heading "Disorderly Conduct". Accordingly, although the trial judge found on proper evidence that the appellants' conduct disturbed the order and solemnity of the service, no offence was committed.
Section 172(3) of the Criminal Code is properly characterized as criminal law since, in substance, it is an enactment to prevent breaches of the public peace and to enable citizens to conduct services of worship without fear of disturbance. Although, as a matter of statutory interpretation, the appellants' conduct is not caught by the section, this does not mean that the Criminal Code could not, if clear and unambiguous language were used for the purpose, characterize such conduct as criminal where the result of it was to disturb the solemnity of a religious service.
Cases Cited
R. v. Lavoie (1902), 6 C.C.C. 39; R. v. Gauthier (1905), 11 C.C.C. 263; Chaput v. Romain, [1955] S.C.R. 834; R. v. Cardinal (1969), 8 C.R.N.S. 325; R. v. Wasyl Kapij (1905), 9 C.C.C. 186; R. v. C.D. (1973), 13 C.C.C. (2d) 206; R. v. Swinimer (1978), 40 C.C.C. (2d) 432; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Attorney‑General of Canada v. Jackson, [1946] S.C.R. 489; R. v. Thompson (1913), 14 D.L.R. 175; R. v. Reed (1983), 8 C.C.C. (3d) 153, aff'd (1984), 10 C.C.C. (3d) 573; Canadian Federation of Agriculture v. Attorney‑General for Quebec, [1951] A.C. 179; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, referred to.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms.
Constitution Act, 1867, s. 91(27).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 171, 172(2), (3).
Interpretation Act, R.S.C. 1970, c. I‑23, ss. 12, 13.
APPEAL from a judgment of the Nova Scotia Supreme Court, Appeal Division, sub nom. R. v. Hafey (1983), 4 C.C.C. (3d) 344, 32 C.R. (3d) 285, 57 N.S.R. (2d) 100, 120 A.P.R. 100, dismissing appellants' appeal from convictions, on a charge of wilfully disturbing the solemnity of religious meeting contrary to s. 172(3) of the Criminal Code. Appeal allowed.
Roseanne Skoke‑Graham, for the appellants.
Robert E. Lutes and Martin E. Herschorn, for the respondent.
S. Ronald Fainstein, for the intervener.
The judgment of Dickson, Beetz, McIntyre, Chouinard and Lamer JJ. was delivered by
1. Dickson J.‑‑
Part I‑‑Introduction
2. The six appellants are Roman Catholics who were charged, pursuant to s. 172(3) of the Criminal Code, with wilfully doing an act that disturbed the order or solemnity of an assemblage of persons met for religious worship. The charge was laid following their attempt to receive holy communion in a kneeling position, contrary to a diocesan directive that communion would only be given to parishioners who stood to receive it. The accused were convicted at trial. Their convictions were affirmed on appeal by both the Nova Scotia County Court and the Nova Scotia Supreme Court, Appellate Division. This case calls for consideration of the proper interpretation in law to be given s. 172(3) as well as the constitutional validity of this subsection in light of s. 91(27) of the Constitution Act, 1867.
Part II‑‑Background and Facts
3. The facts of the case are straightforward and undisputed. The six appellants are practising members of the Roman Catholic faith. They have for many years attended Our Lady of Lourdes Parish Church in Stellarton, Nova Scotia. Our Lady of Lourdes is one of ninety‑three parishes which make up the Diocese of Antigonish.
4. It has become the custom in this diocese for communion to be received standing by those able to do so. This custom is a relatively recent development. The previous practice had been for communion to be received kneeling. This change has been accepted and approved by the Bishop responsible for the diocese.
5. Nonetheless, the appellants continued to oppose this change in the liturgy. As a result of their opposition, there has been what has been characterized before us as an ongoing dispute between the appellants on the one hand and the priests and other members of this church, on the other hand.
6. To aid in the resolution of this dispute, the parish priest and his assistant drew up a directive concerning the procedures to be followed during mass. This directive dealt in particular with the manner in which communion was to be administered and received. This directive was regularly read during services to the parishioners prior to the day of the alleged offence.
7. On that day as well, this directive was read to the assembled congregation, among whom were then present most, if not all, of the appellants. The directive was again read shortly before communion was administered by which time all appellants were present.
8. When the point in the mass had been reached when communion was to be taken, the appellants, with the other members of the congregation who desired to receive communion, made their way to the back of the church. From there, two lines formed and made their way down the centre aisle towards the three communion stations at or near the altar. The two lines spread into three as they approached these communion stations.
9. As each accused arrived at a communion station, he or she knelt before the priest. They were each told to stand if they wished to receive communion. After a few seconds, each one stood and, without receiving communion, moved off in an orderly manner to the sides of the church and returned to his or her seat.
Part III‑‑Courts Below
10. The appellants were all charged upon informations dated June 30, 1982, alleging that each of the appellants, at the time and place set forth, "did unlawfully at or near a meeting of Religious Worship at Our Lady of Lourdes Parish, did wilfully disturb the order or solemnity of that Religious Worship and Meeting, contrary to section 172(3) of the Criminal Code of Canada".
11. Section 172 of the Criminal Code reads:
172. (1) Every one who
(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or
(b) knowing that a clergyman or minister is about to perform, is on his way to perform, or is returning from the performance of any of the duties or functions mentioned in paragraph (a)
(i) assaults or offers any violence to him, or
(ii) arrests him upon a civil process, or under the pretence of executing a civil process,
is guilty of an indictable offence and is liable to imprisonment for two years.
(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.
(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.
12. A motion for particulars was granted by Judge R. MacEwan of Provincial Magistrate's Court on July 5, 1982. The Crown filed the following reply to this order:
...the defendants failed to take Communion in a manner that was directed and accepted by Our Lady of Lourdes Parish; in that the Defendants kneeled rather than stood for the purpose of receiving Communion, as is the accepted practice, and which kneeling did interfere, and or distract other parishioners who were taking Communion as was directed and accepted for the purpose of enabling said parishioners to celebrate the Mass.
On August 18, 1982, Judge MacEwan convicted the appellants. Sentence was suspended and each of the appellants was placed upon six months probation.
13. The trial judge was of the view that the appellants' refusal to take communion in the manner accepted in the parish amounted to a violation of s. 172(3) because it hampered the spirituality of this part of the service. He concluded that both the order and the solemnity of the meeting had been disturbed because the open defiance of the legitimate authority of the priests was a disruptive act. In his view, it created a degree of anxiety and tension which distracted the priests and the congregation from one of the holiest moments in the mass. In reaching this conclusion, he accepted and relied upon the uncontradicted evidence of the two priests administering mass and three parishioners present during the service as to their reaction to the appellants' attempts to receive communion while kneeling.
14. An appeal against conviction and sentence to the Nova Scotia County Court was dismissed by MacLellan J. He summarized his reasons for denying the appeal against conviction in the following terms:
In the result then I am of the view that the appeal has no merit whatsoever. I think the learned trial Judge, as I have indicated, had ample evidence to support the conclusions that he reached. I see no failure of the evidence to support his finding. I don't consider that his conclusion is unreasonable and in my view there has been no miscarriage of justice. The appeal against conviction is therefore dismissed.
15. A further appeal to the Nova Scotia Supreme Court, Appellate Division, sub nom. R. v. Hafey (1983), 4 C.C.C. (3d) 344, 32 C.R. (3d) 285, 57 N.S.R. (2d) 100, 120 A.P.R. 100, brought with the leave of that court, was also dismissed. Hart J.A., wrote for the unanimous three member panel. I reproduce here the body of his reasoning:
The Criminal Code makes it an offence punishable on summary conviction for anyone to disturb the order or solemnity of a religious meeting, and the trial judge after hearing all of the evidence and arguments of counsel reached the conclusion that the actions of the appellants under all of the circumstances showed a defiance of the authority of their church and constituted a wilful disturbance of the service. There was ample evidence, in my opinion, upon which he could have reached that conclusion, and I have here to consider only whether in law the offence contemplated by the Criminal Code was in fact committed.
Counsel for the appellants argues that the bishop of the parish did not have the authority to change the form of liturgy and insist upon the celebration of communion in the new fashion, and that therefore the directive given by the parish priest was not valid. She claims that her clients had the right to receive communion in the kneeling position and had not therefore committed any offence against the Criminal Code. She suggests strongly that the matter is one for determination within the church and that a criminal prosecution should not have been taken, as the acts committed by the appellants were not of a criminal nature of the kind envisioned by the Code as an offence against s. 172.
In my opinion there is no merit to the position taken by counsel for the appellants. It is a criminal offence to disturb the order or solemnity of a religious meeting, and that is exactly what the trial judge found as a fact the appellants had done. If several persons disagree with the form of the religious service they may have the right to withdraw but not to insist upon their procedures against the will of the hierarchy of the church. The actions of the appellants although relatively passive were conducted during the course of a bitter dispute within the church and it was open to the trial judge to find that in these circumstances their actions constituted a disturbance, and, in my opinion, this type of disturbance is the very type of conduct intended to be prohibited by the provisions of the Criminal Code. Feelings were obviously running high among the parishioners and emotions were near the point of explosion. The actions of the appellants could do nothing but disturb the solemnity of the service.
16. Leave to appeal was granted by this Court [1983] 1 S.C.R. xiv. The appeals of all the appellants were treated as one cause, as they had been in the courts below. The Attorney General of Canada intervened in support of the position advanced by the Attorney General of Nova Scotia.
Part IV‑‑Issues
17. The proper resolution of this case necessitates consideration of the following two issues:
1. Whether s. 172(3) is intra vires Parliament of Canada pursuant to s. 91(27) of the Constitution Act, 1867;
2. Whether the courts below have applied the proper legal standard in determining whether the appellant's conduct violated s. 172(3)?
Part V‑‑Constitution Act, 1867: s. 91(27)
18. The first issue then is whether s. 172(3) of the Criminal Code is intra vires the Parliament of Canada. I think it plainly is. The "matter" in relation to which this subsection has been enacted comes within the power granted to Parliament by s. 91(27) of the Constitution Act, 1867 to legislate upon criminal law.
19. Subsection 172(3), much like subs. 172(2), is a prohibition which, by means of summary conviction penalty, protects people, who have gathered to pursue any kind of socially beneficial activity, from being purposefully disturbed or interrupted. The subsection is designed to safeguard the rights of groups of people to meet freely and to prevent the breaches of the peace which could result if these types of meetings were disrupted. Vide R. v. Reed (1983), 8 C.C.C. (3d) 153 (B.C.Co.Ct.), at p. 166, aff'd (1984), 10 C.C.C. (3d) 573 (B.C.C.A.)
20. There is no difficulty in concluding that this prohibition, with its consequent penal sanctions, serves the needs of public morality by precluding conduct potentially injurious to the public interest. It therefore bears the essential characteristics by which matters falling within the criminal law power of Parliament are commonly identified: Canadian Federation of Agriculture v. Attorney‑General for Quebec, [1951] A.C. 179 (P.C.) approving Rand J. in sub nom. Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, at pp. 49‑50.
21. The appellants' argument upon this division of powers question began with the submission that subs. 172(3) was not competent to either Parliament or the provincial legislature in so far as it dealt with religious matters. The argument, framed in this manner, is obviously inapposite to any analysis of which body in the Canadian federal system is empowered to legislate. It will not be competent to either legislative body to enact legislation which contravenes the rights and freedoms guaranteed under the Canadian Charter of Rights and Freedoms. The Charter does not, however, alter the distribution of powers between the provinces and the federal parliament which continues to be governed by ss. 91 and 92 of the Constitution Act, 1867.
22. It is thus my opinion that s. 172(3) is intra vires the Parliament of Canada.
Part VI‑‑Interpretation of s. 172(3)
23. The next issue is whether the courts below have applied the proper legal standard in determining whether the appellants' conduct violated s. 172(3). With due respect to the judges in the courts below, it is my view that the conduct of the appellants did not violate s. 172(3) when that subsection is properly interpreted.
24. Although s. 172(3) of the Code has a long legislative history it has received little judicial consideration. In R. v. Lavoie (1902), 6 C.C.C. 39 (Que. Rec. Ct.) the accused was charged with having unlawfully and wilfully disturbed, by rude behaviour and by making noise, an assemblage of persons met for a social purpose, to wit, the holding of a meeting in a hall on Bonsecours Street in the City of Montréal. He was acquitted on the ground that s. 173 of the 1892 Criminal Code did not apply to a meeting of electors of a city ward called in aid of a candidate for election. In the view of the recorder, the section was not intended for the preservation of order at political or municipal meetings.
25. In R. v. Gauthier (1905), 11 C.C.C. 263 (Que. K.B.), the accused was convicted on appeal of disturbing the order or solemnity of a meeting for religious worship. The accused entered a meeting of the Salvation Army in a rented hall in the Municipality of St. Louis du Mile End. The meeting was already in progress. He moved to the front, turned and asked all French speaking people to rise, and when the majority arose, he invited them to leave on the basis that the meeting was no place for French Roman Catholics like himself. Most of the people in the room began to leave, alarming the chairman of the meeting who attempted to prevent them.
26. The presence of the Salvation Army in the community had raised some hostile feelings and there was a large crowd of some 1200 people gathered outside. As the people began to leave the meeting, the crowd began to throw objects through the windows of the hall, one of which hit the chairman in the face. The crowd eventually dispersed. The accused, acquitted at trial, was convicted on appeal to the King's Bench. Hall J. concluded that "...the members of the [Salvation] Army had the right to the audience they had secured and no man had a right to go there and by a peremptory command or even by personal influence to interfere with that audience and take them away".
27. See also Chaput v. Romain, [1955] S.C.R. 834, per Taschereau J. at p. 842; R. v. Reed, supra; R. v. Cardinal (1969), 8 C.R.N.S. 325 (Alta. Mag. Ct.); R. v. Wasyl Kapij (1905), 9 C.C.C. 186 (Man. C.A.)
28. To be guilty of an offence under s. 172(3) the following elements must be present:
(1) A person must wilfully do "anything";
(2) at or near "an assemblage of persons met for religious worship or a moral, social or benevolent purpose";
(3) that "disturbs the order or solemnity of the meeting".
29. There can be no dispute, as the trial judge concluded, that the appellants' conduct was wilful. They deliberately and purposefully knelt to receive communion in acknowledged defiance of the priest's direction that they stand.
30. It is equally plain that the appellants' actions took place at an assemblage of persons met for religious worship. They were in church during the celebration of mass at which some 100 to 200 persons were in attendance.
31. I am not persuaded, however, that the appellants' conduct could be said in law to have disturbed the order or solemnity of the meeting. I have come to the conclusion that the trial judge erred in law in his interpretation of the subsection and that he was wrong in convicting the appellants. I have done so on the basis of the description given at trial of the appellants' conduct and the reaction to it.
32. The following are the facts, the only facts, upon which the trial judge found a disturbance: (i) the appellants held up the communion lines briefly and inconvenienced, to some degree, one or two handicapped people who were behind them in line, (ii) their actions created some anxiety or tension in the priests administering the communion as well as those communicants who observed what took place.
33. 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 or 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.
34. There was no identifiable disorder in this case. A brief holdup of the lines and a heightening of the existing atmosphere of tension discerned by some of those present is not evidence of a disorder.
35. The trial judge, however, accepted the definitions of "disturb" and "disturbance" given in the Shorter Oxford English Dictionary and Black’s Law Dictionary. The Shorter Oxford English Dictionary defines "disturb" as, inter alia:
3. To interfere with the settled course or operation of; to interrupt, hinder, frustrate...
Black’s Law Dictionary (5th ed. 1979) defines "disturbance" as:
Any act causing annoyance, disquiet, agitation, or derangement to another, or interrupting his peace, or interfering with him in the pursuit of a lawful and appropriate occupation or contrary to the usages of a sort of meeting and class of persons assembled that interferes with its due progress or irritates the assembly in whole or in part.
36. I recognize that the appellants' conduct could fall within the ordinary meaning of the word "disturb". Equally, it could be embraced by the definition of "disturbance" given in Black’s Law Dictionary. (I would point out that the American context from which the Black’s Law Dictionary definition appears to be drawn is markedly different from the Canadian one, particularly, s. 172(3): see 12 Am. Jur. 2d 661 "Breach of Peace and Disorderly Conduct".) Not all conduct capable of being described as disturbing or creating a disturbance will fall within s. 172(3). To found criminal liability under this subsection, the actions must meet a definition of the term "disturbs" suitable in law to the context of the section and the offence thereby enacted. It is necessary for the conduct to be disorderly in itself or productive of disorder to be rendered criminal. Conduct which falls below this threshold will not be caught by the subsection.
37. Parliament could not have intended that s. 172(3) of the Criminal Code could be triggered by conduct which is not disorderly in itself or productive of disorder. The use of the all‑encompassing term "anything" to describe the type of acts that can be the cause of the disturbance is an indication of the need to restrict the meaning of the word "disturb". If "disturb" in the context of s. 172(3) is taken to encompass annoyance, anxiety or emotional upset, then "anything", no matter how trivial, which would lead to such annoyance, anxiety or emotional upset would be caught by the provision: a man might be convicted under the section for failing to take his hat off in a church, or failing to keep it on in a synagogue.
38. This interpretation of the word is strengthened by the context in which s. 172(3) of the Code is found. The heading for ss. 169‑175 of the Code is "Disorderly Conduct". Some assistance in interpreting the word "disturb" may be gained from the use of the words "disorderly conduct" in the heading.
39. The role of headings in statutory construction has been thoroughly canvassed by Mr. Justice Estey in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357. Estey J. noted that neither the Canadian, English, nor American jurisprudence expresses any definite canon of construction applicable to statute headings.
40. Estey J. states at p. 376:
The question of the role of the heading in the interpretation of statutes appears to be open.
He then continues, with reference to the Charter, at p. 377:
At a minimum the heading must be examined and some attempt made to discern the intent of the makers of the document from the language of the heading. It is at best one step in the constitutional interpretation process. It is difficult to foresee a situation where the heading will be of controlling importance. It is, on the other hand, almost as difficult to contemplate a situation where the heading could be cursorily rejected although, in some situations, such as, in the case of "Legal Rights", which in the Charter is at the head of eight disparate sections, the heading will likely be seen as being only an announcement of the obvious.
41. The principles stated by Estey J. with reference to headings in constitutional provisions are equally applicable to enactments of Parliament such as the Criminal Code. Kellock J. in Attorney‑General of Canada v. Jackson, [1946] S.C.R. 489, in a concurring opinion on a point not discussed by the majority, stated (at pp. 495‑96):
Where the language of a section is ambiguous, the title and the headings of the statute in which it is found may be resorted to to restrain or extend its meaning as best suits the intention of the statute, but neither the title nor the headings may be used to control the meaning of enacting words in themselves clear and unambiguous.
It should be noted that the Interpretation Act, R.S.C. 1970, c. I‑23, refers only to marginal notes and preambles and therefore does not preclude the use of headings as an aid for statutory construction (see ss. 12 and 13).
42. In my opinion, reliance may be placed upon the heading of ss. 169‑175 of the Code as an aid in interpreting the word "disturb" in s. 172(3). The heading supports the conclusion that Parliament intended only to proscribe conduct which is either disorderly in itself or productive of disorder.
43. It is therefore my view that the trial judge incorrectly interpreted the kind of conduct which is capable in law of amounting to a disturbance of the order or solemnity of an assemblage of persons met for religious worship. Applying the interpretation of the subsection I have outlined above, there was clearly no evidence available to the trial judge upon which the appellants could have been convicted.
Part VII‑‑The Constitutional Questions
44. Prior to the hearing of the appeal, the late Chief Justice Laskin granted an order stating the following constitutional questions for the purpose of serving notice upon the Attorney General of Canada and upon the Attorneys General of the Provinces:
(a) Is Section 172(3) of the Criminal Code of Canada, as adopted by the Nova Scotia Court of Appeal, in this decision, intra vires the Criminal Code of Canada?
(b) Was the subject matter of the offence of which the Applicants were convicted, within the scope of the criminal law power or was it in any event an offence known to law; and did the decision constitute a breach of the Applicants rights as guaranteed under Section 11(g) of the Canadian Charter of Rights and Freedoms (Constitution Act, 1982)?
(c) Did the Decision infringe the Applicants religious rights and freedoms as declared in the Canadian Bill of Rights; and did this infringement render Section 172(3) of the Criminal Code of Canada inoperable?
(d) Did the Decision infringe the Applicants religious rights and freedoms as guaranteed under the Canadian Charter of Rights and Freedoms (Constitution Act, 1982); and did this infringement render Section 172(3) of the Criminal Code of Canada inoperable?
45. As Mr. Justice Beetz has recently noted in Bisaillon v. Keable, [1983] 2 S.C.R. 60 at p. 71, this Court is not bound to answer constitutional questions when it may dispose of the appeal without doing so. In view of my conclusion that the appellants' conduct did not violate s. 172(3) when that section is properly interpreted, it is not necessary to deal with the other constitutional issues this case may raise.
Part VIII‑‑Conclusion
46. I would allow the appeal, quash the convictions and acquit the appellants. I would order the restoration to the appellants of the $150 awarded as costs to the Crown by Judge MacLellan.
The reasons of Lamer and Wilson JJ. were delivered by
47. Wilson J.‑‑The appellants were charged on informations dated June 30, l982 that on or about June 27, l982 they "unlawfully at or near a meeting of Religious Worship at Our Lady of Lourdes Parish did wilfully disturb the order or solemnity of that Religious Worship and meeting, contrary to section 172(3) of the Criminal Code of Canada". They were convicted on August 18, 1982 in the Provincial Magistrate's Court and given suspended sentences. An appeal was taken to the County Court and dismissed by His Honour Judge R. F. MacLellan. A further appeal to the Nova Scotia Supreme Court, Appellate Division, was likewise dismissed. Leave to appeal to this Court was granted on April 27, 1983.
1. The Facts
48. The appellants are Roman Catholics and for many years have attended Our Lady of Lourdes Parish Church in Stellarton, a small town in Pictou County, Nova Scotia. In recent years the manner in which communion is administered has been changed by the parish priests with the approval of the Bishop. Members of the congregation must now stand to receive communion rather than kneel as was the prior custom and, although the parishioners are given a choice whether to accept the host in the hand or on the tongue, they are not given a choice whether to stand or kneel.
49. The appellants have opposed this change in liturgy and have apparently been quite obstinate in their opposition. This dispute between the appellants and the priests and other members of the congregation had been going on for at least two years when, in an attempt to end it, a directive was drawn up by the priest and his assistant and approved by the Bishop of the Diocese. This directive made it clear that from then on communicants were to stand for communion. The directive was made known to the parishioners.
50. On the day of the offence under appeal the directive was read before the commencement of mass and persons who were unwilling to comply were instructed either to remain in their seats during communion or to leave when communion was being served. The directive was read again just before the parishioners were summoned to take communion. The appellants proceeded to the front of the church along with the other parishioners but, when they presented themselves to receive communion, they knelt. They were informed that they were causing a disturbance and that they would not receive communion in that position. They were instructed to return to their seats and they did so.
51. The evidence revealed that the acts of the appellants, although peaceful in nature, upset the parish priest and his assistant and upset some members of the congregation as well. There was some suggestion also that the conduct of the appellants disturbed the order of the service by slowing the progress of the lines of communicants. However, I think it is fair to say that the principal disturbance was to the solemnity rather than to the order of the service. This stemmed from the fact that the appellants' defiance of the priest's directive caused a certain amount of unease and tension on the part of other participants in the service. The appellants' conduct did not, on the other hand, produce any overt reaction on the part of other participants either in word or conduct.
52. Several brief observations may be made about these facts. The first is that reasonableness and a spirit of accommodation do not appear to have been features of either side's conduct in this liturgical dispute. The church has three aisles and, if traffic management were the real reason for the liturgical change, one would have thought it possible to accommodate those who wanted to kneel for communion by having them use only one of the three aisles. On a perusal of the evidence one is left with the suspicion that the contest of standing versus kneeling represents only the tip of an iceberg in the dispute between the appellants and church authorities.
53. This suspicion would appear to be confirmed by the manner in which the informations were laid. The incidents in question took place on June 27, 1982 and six informations were sworn out by one Ken Francis of Stellarton on June 30, 1982. In his testimony at trial one of the parishioners, Mr. Gregory MacDonald, testified that he had been asked to observe the order of mass on the day in question. Mr. DiPersio gave a rather evasive answer when he was asked whether he had been requested to take note of the proceedings. While one cannot say so with certainty, it does appear that the appellants' defiance of the directive was something that had been anticipated and that some members of the congregation at least had hit upon the idea of making use of s. 172 of the Criminal Code before the incident in question ever took place. If this is in fact the case, it lends some credence to the appellants' contention that the essence of what is being done here is the use of the Criminal Code to sanction the appellants for their obstinacy in refusing to obey the directive.
54. At a more concrete level I think it is important to note that the appellants' act of defiance of the priest's directive was done deliberately with the knowledge that it would, or at least was likely to, produce an adverse reaction in the priest, his assistant and other members of the congregation. This seems to be the way in which the Provincial Court Judge interpreted the concept of wilfulness in his factual finding that the appellants' acts were wilful within the meaning of s. 172(3) of the Code. On the other hand, I do not think that there is any finding that the sole or primary intent of the appellants was to disturb the service. At most the disturbing of the service was a natural and foreseeable consequence of their conduct.
55. Finally, I would make particular note of the existence of concurrent findings of fact in the courts below on the issue of whether or not the service was disturbed. The Provincial Court Judge reviewed the evidence in some detail and I think it is implicit in his findings that he found all the witnesses to be credible. After instructing himself on the dictionary definition of "disturb" and "disturbance" he found that the order and solemnity of the service had been disturbed. He made particular reference to the existence of tension and anxiety as a result of the appellants' acts and concluded that the spirituality of the service had been impaired and that the priest and the people had been distracted. County Court Judge MacLellan commended the trial judge on these findings. They were accepted also in the Appellate Division of the Nova Scotia Supreme Court (1983), 4 C.C.C. (3d) 344, 32 C.R. (3d) 285, 57 N.S.R. (2d) 100, 120 A.P.R. 100.
2. The Issues
56. The issues in this case may be conveniently addressed under two headings namely (1) statutory interpretation and (2) constitutional aspects.
(1) Statutory interpretation
57. The appellants rely on two general propositions with respect to the interpretation of criminal statutes. They are:
(a) the subject is entitled to rely on the strict words of the statute i.e. even if the statute was arguably intended to prohibit the conduct engaged in by the accused, if the conduct is not prohibited by the express words of the statute, criminal liability will not ensue; and
(b) the subject is entitled to argue that even though the conduct engaged in might be prohibited by the express words of the statute, it does not fall within the spirit of the enactment and the statute should be construed accordingly.
For these propositions the appellants rely upon the case of R. v. Thompson (1913), 14, D.L.R. 175 (S.C. Alta.) The Crown does not appear to contest these propositions and I think they are sufficiently well established in our criminal law that no further authority need be cited in support of them. The question is: how do they apply to s. 172(3) of the Criminal Code?
58. Section 172 of the Code is one of a group of seven sections, ss. 169 to 175, placed under the heading "Disorderly Conduct". The section in its entirety reads as follows:
172. (1) Every one who
(a) by threats or force, unlawfully obstructs or prevents or endeavours to obstruct or prevent a clergyman or minister from celebrating divine service or performing any other function in connection with his calling, or
(b) knowing that a clergyman or minister is about to perform, is on his way to perform, or is returning from the performance of any of the duties or functions mentioned in paragraph (a)
(i) assaults or offers any violence to him, or
(ii) arrests him upon a civil process, or under the pretence of executing a civil process,
is guilty of an indictable offence and is liable to imprisonment for two years.
(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.
(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.
For present purposes there are three elements to an offence under s. 172(3) namely (i) wilfulness; (ii) doing "anything"; and (iii) disturbing the order or solemnity of a religious service. I propose to examine each of these elements in turn.
(i) Wilfulness
59. There are in this case concurrent findings of fact in the courts below that the appellants' acts were wilful. These findings do not, however, preclude this Court from allowing the appeal if the courts below misdirected themselves as to the legal test for wilfulness under the subsection.
60. It might be argued that to constitute a wilful disturbance the acts done by the appellants would have to have been done for the specific purpose of causing a disturbance. There is no finding in the courts below to this effect. Accordingly, if the element of wilfulness is construed in this fashion the appellants' convictions could not stand. I do not believe, however, that such a construction can be supported either in light of s. 172(2) or in light of the authorities. The difference between s. 172(2) and s. 172(3) is immediately apparent: in the former, the disturbance or interruption of the assembly must be wilful; in the latter, only the act which disturbs the order or solemnity of the meeting need be wilful. It appears to me, however, that wilfulness in the latter context must imply both deliberation and knowledge that the act would, or was likely to, disturb the service. Thus, as MacLellan Co. Ct. J. pointed out, s. 172(3) cannot apply to involuntary acts such as coughing or sneezing. Equally, in my view, the subsection cannot apply to voluntary acts which are done in ignorance of the fact that they are likely to disturb the service. Thus a person who was ignorant of a particular religious custom could not be convicted for violation of the custom even if this caused a disturbance unless he persisted in violating the custom after he had been informed of the offensive nature of his behaviour. In the present case the appellants' act satisfies both the test of voluntariness and the test of knowledge of its likelihood to disturb the service. In my view, therefore, the courts below quite properly interpreted the section in this respect.
61. The authorities, such as they are, seem to support this conclusion. In R. v. Gauthier (1905), 11 C.C.C. 263 (Que. K.B.), the accused was a French Canadian Roman Catholic who interrupted a Salvation Army meeting by addressing the other French Canadians and Roman Catholics in the meeting hall and telling them that they ought to leave with the result that the meeting was broken up. The accused argued that his intention was not to break up the meeting but merely to withdraw from the meeting those whom he thought were his co‑religionists and particularly young people whom he feared might be subjected to violence if they stayed. Hall J. had some doubts about this version of the facts but, even giving the accused the benefit of the doubt, he found that he had disturbed the order and solemnity of the meeting. Although this prosecution took place under s. 173 of the 1892 Code and this provision was worded somewhat differently from the present section, the element of wilfulness must, in my view, be construed in the same way under s. 172(3) of the present Code.
(ii) Doing "anything" that disturbs
62. Under s. 172(3) the accused must do something that disturbs the service. His mere presence would not, it seems, be sufficient even although this was disturbing to the meeting. On the other hand the appellants here did something which the trial judge found disturbed the service, namely kneeling to take communion contrary to express instructions not to do so. The word "anything" is certainly sufficiently broad on its face to cover these acts. Indeed, nothing could be broader than "anything". On the other hand, as I have already indicated, an accused is entitled to argue that the intendment of the Act is narrower than the words construed in their ordinary sense might indicate. If the entire context raises a doubt as to the meaning of the section the courts are entitled to adopt a narrower construction more consonant with the purpose of the statute.
63. It seems to me that there are strong policy reasons for concluding that passive or trivial acts are not encompassed by the word "anything" as used in the section. I believe also that the legislative history of s. 172(3) affords a basis for a narrower construction of the word "anything".
64. The Crown has conveniently set out the legislative history of the section on pp. 6 and 7 of its factum and I reproduce them here. The emphasis is my own.
A. An Act Respecting Offences Against The Person S.C. 1869, c. 20, s. 37 (Note: a similar provision was found in the English Statute Offences Against The Person Act 1861, s. 36 (11 Halsbury 4th Ed. Para. 1010)):
37. Whosoever wilfully disturbs, interrupts, or disquiets any assemblage of persons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude, or indecent behaviour, or by making a noise, either within the place of such meeting or so near it as to disturb the order or solemnity of the meeting, may be arrested on view by any peace officer present at such meeting or by any other person present thereto verbally authorized by any Justice of the Peace present thereat, and detained until he can be brought before a Justice of the Peace; and such offender shall, upon conviction thereof before a Justice of the Peace, on the oath of one or more credible witnesses, forfeit and pay such sum of money, not exceeding twenty dollars, as the said Justice may think fit, and costs, within the period specified for the payment thereof, by the convicting Justice at the time of the conviction‑‑and in default of payment, such Justice shall issue his warrant to a constable to levy such fine and costs within a time to be specified in the warrant, and if no sufficient distress can be found, such Justice shall commit the offender to the common gaol of the District, County or place wherein the offence was committed, for any term not exceeding one month, unless the fine and costs be sooner paid.
B. An Act Respecting Offences Against Religion, R.S.C. 1886, c. 156, s. 2:
2. Every one who wilfully disturbs, interrupts or disquiets any assemblage of persons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude or indecent behavior, or by making a noise, either within the place of such meeting or so near it as to disturb the order or solemnity of the meeting, is guilty of a misdemeanor and liable, on summary conviction, to a penalty not exceeding twenty dollars and costs, and, in default of payment, to imprisonment for a term not exceeding one month,‑‑and may be arrested on view by any peace officer present at such meeting, or by any other person present, verbally authorized thereto by any justice of the peace present thereat, and detained until he can be brought before a justice of the peace. 32‑33 V., c. 20, s. 37.
C. Criminal Code, S.C. 1892, c. 29, s. 173:
173. Every one is guilty of an offence and liable, on summary conviction, to a penalty not exceeding fifty dollars and costs, and in default of payment to one month's imprisonment, who wilfully disturbs, interrupts or disquiets any assemblage of persons met for religious worship, or for any moral, social or benevolent purpose, by profane discourse, by rude or indecent behaviour, or by making a noise, either within the place of such meeting or so near it as to disturb the order or solemnity of the meeting. R.S.C., c. 156, s. 2.
D. R.S.C. 1906, c. 146, s. 201 (Same as 1892, s. 173).
E. R.S.C. 1927, c. 36, s. 20l (Same as 1892, s. 173).
F. S.C. 1953‑54, c. 51, s. 161(2) and (3):
s. 161(2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.
s. 161(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.
G. R.S.C. 1970, c. C‑34, s. 172(2) and (3) (Same as 1953‑54).
65. It is noteworthy that in legislation dating from 1869 disturbance, interruption or disquiet of a religious assembly was only punishable if it took place "by profane discourse, by rude or indecent behaviour, or by making a noise". The Crown argues that the 1953‑54 amendment to the section, as part of a major revision to the Criminal Code, broadened the section and such restrictions are no longer applicable. This does not, however, appear to have been Parliament's intention.
66. It seems to me that all Parliament intended to do in enacting s. 161(3) of the 1953‑54 Code was to use general rather than specific words to cover the types of things which were considered capable of disturbing the order or solemnity of a meeting. I do not believe they were seeking to expand the scope of the provision to cover peaceful acts of defiance of religious authority. I am reinforced in this view by the fact that s. 161 of the 1953‑54 Code (like s. 172 of the present Code) is one of a series of offences falling under the heading "Disorderly Conduct". I believe, therefore, that the word "anything" must be read down so as to extend only to things in the nature of profane discourse, rude or indecent behaviour or making a noise. Where, as in this case, the appellants' acts were peaceful and orderly I would be reluctant to find that an offence had been committed even if the acts did disturb the order or solemnity of the service to the minimal extent found by the trial judge.
(iii) Disturbance of the order or solemnity of a meeting
67. There has been a fair measure of judicial debate as to the nature and extent of the disturbance which must be caused by an accused charged under one of the "Disorderly Conduct" provisions of the Criminal Code. By way of illustration s. 171 of the Code which deals with causing a disturbance in a public place or a dwelling house has been interpreted in New Brunswick as requiring some externally manifested disturbance on the part of observers or passersby (R. v. C.D. (1973), 13 C.C.C. (2d) 206 (N.B.C.A.)), but has been perceived in Nova Scotia as requiring only that the accused's act cause an emotional disturbance in the mind of observers (R. v. Swinimer (1978), 40 C.C.C. (2d) 432 (N.S.C.A.)). Given that s. 171 is aimed at acts creating disturbances in public places or dwelling houses without reference to any specific context in which the observer is disturbed, the reasoning of Hughes C.J.N.B. in R. v. C.D., supra, is probably correct in its assessment that in the absence of any actual "activities in the nature of a disorder" on the part of observers the act cannot be said to be the type of disorderly conduct at which the provision is aimed. Otherwise, anyone in any given situation would act at the risk of causing some unmanifested emotional upset or "disturbance" to another person.
68. When considering s. 172(3), however, this reasoning does not appear to be appropriate. This subsection expressly provides a context in which the disturbance takes place (i.e. a religious service) and makes explicit the fact that the act may be offensive if it disturbs the "solemnity" of the meeting. Thus, it is not confined, as is s. 171, to the causing of an actual physical disturbance. Rather, the disruption might well be to the emotional state of the observers or other participants in the service since emotional upset would certainly serve to break the solemn mood of a religious service. Accordingly, it would seem that the reasoning pursued by Chief Justice Hughes in R. v. C.D., supra, is not persuasive when applied to s. 172(3), as the two statutory contexts are not analogous. Indeed, one might even say that the fact that s. 171 is restricted in application to acts which cause, in the words of Hughes C.J.N.B., "... a tumult, an uproar, a commotion and any other disorder", leads one to the conclusion that s. 172(3) is not so restricted. By specifying that the proscribed act is one which either disturbs the order or the solemnity of a religious meeting, Parliament has made it clear that the offence might either cause the same type of disruption in a religious place as that described in s. 171 with regard to public places and dwelling houses or it might cause a silent, emotional disturbance to the solemnity of the moment in a way specific to religious services.
69. As I have indicated above, MacEwan Prov. Ct. J. made factual findings that both the order and the solemnity of the service were disturbed by the appellants' actions. The disturbing of the order flowed from the slowing down of the lines and the disturbing of the solemnity from the upsetting and distracting effect of the appellants' conduct on the priests and other worshippers. I have already referred to the minor delay in the serving of the other communicants which occurred as a result of the kneeling. The trial judge found that this disturbed the order of the service. The disturbing of the solemnity of the service must presumably be assessed in terms that are subjective, solemnity itself being in significant measure a subjective concept. It seems to me that the trial judge's finding that the solemnity and spirituality of the service were disturbed in the eyes of the priest and parishioners cannot be contested. Since they are the persons whose notions of solemnity are protected by the section it would seem to follow that the courts below correctly focused on the question whether their sense of the solemnity of the occasion had been disturbed.
70. However, accepting these findings of the trial judge that the order and solemnity of the service were, as a factual matter, disturbed, it does not in my opinion follow that the acts in question are the type of acts prohibited by the section. I believe that this is a proper case for the application of the principle relied on by the appellants, namely that while their conduct falls within the strict wording of the subsection when read in the broadest way possible in that it was conduct which disturbed the order or solemnity of the service, it does not fall within the narrower meaning intended by Parliament. I rely for this conclusion partly on the legislative context and legislative history of the statutory provision as already discussed but partly also on the factual context of the events.
71. These appellants may have been violating a new form of liturgical practice and flouting the authority of their Church. They may be obstinate, insubordinate and disobedient parishioners but I find it difficult to see them as criminals. I may say that I find it equally difficult to see their fellow parishioners as informants instigating criminal proceedings against them but such is the case.
72. I have no doubt that the insistence of the appellants in kneeling to receive communion, because it was an overt act of disobedience and defiance of church authority, disturbed the solemnity of the service and disturbed some of the worshippers as the learned trial judge found. It is also clear, however, that their conduct was intended as a formal expression of their convictions and not as a means of disrupting the service. The physical disruption was negligible. They responded immediately and silently to the priest's refusal of communion and instruction to return to their seats. As for the disturbing of the worshipful atmosphere in the church, one might well wonder, in light of the evidence of some of the witnesses and the fact that the informations were laid so precipitously thereafter, just how worshipful it was. But be that as it may, I do not believe that kneeling to receive communion as a result of firmly‑held convictions is within the spirit of s. 172(3) of the Code even if it is within its literal wording.
73. I expressed the view earlier that there were strong policy grounds for limiting the scope of the word "anything" in s. 172(3). I think such a limitation is required in order to avoid a weakening of the authority of the criminal law by its application to trifles. While it may be true that the only acceptable definition we can give of a crime is an act which is prohibited by the legislature with penal consequences, when the legislature employs language as broad as it has here, I think it is open to the Court to refine it in light of what it perceives to be the degree of public condemnation any impugned conduct would be likely to attract. I believe also that an interpretation of "anything" which would make the criminal law available as a tool for the enforcement of liturgical practice or the settlement of liturgical disputes may represent an extension of the arm of the law into areas which a substantial segment of the public (although apparently not the informants) would find unacceptable. For these policy reasons, therefore, as well as for reasons arising from the legislative context and history of s. 172(3), I find that the conduct impugned here is not caught by the subsection.
(2) Constitutional aspects
74. The constitutional aspects of this case are reflected in the questions stated by the late Chief Justice Laskin:
a) Is Section 172(3) of the Criminal Code of Canada, as adopted by the Nova Scotia Court of Appeal, in this decision, intra vires the Criminal Code of Canada?
b) Was the subject matter of the offence of which the Applicants were convicted, within the scope of the criminal law power or was it in any event an offence known to law; and did the decision constitute a breach of the Applicants rights as guaranteed under Section 11(g) of the Canadian Charter of Rights and Freedoms (Constitution Act, 1982)?
c) Did the Decision infringe the Applicants religious rights and freedoms, as declared in the Canadian Bill of Rights; and did this infringement render Section 172(3) of the Criminal Code of Canada inoperable?
d) Did the Decision infringe the Applicants religious rights and freedoms as guaranteed under the Canadian Charter of Rights and Freedoms (Constitution Act, 1982); and did this infringement render Section 172(3) of the Criminal Code of Canada inoperable?
Notice of these questions was given to the Attorney General of Canada and to the Attorneys General of the Provinces. The Attorney General of Canada chose to intervene and was heard in support of the submissions of the respondent that s. 172(3) was valid and enforceable criminal legislation and that the appeal should be dismissed.
75. I do not find it necessary to deal with the questions raised under the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms since I have already found that the word "anything" must be given a restricted interpretation and that, in light of that restricted interpretation, the subsection does not apply to this case. It may be appropriate, however, to say a brief word about question (a) and the first part of (b) in order to highlight the important distinction that needs to be made in this case between interpretation and constitutional validity.
76. The argument of the appellants is that certain acts are not criminal in nature and that the mere provision of penal consequences for the doing of such acts does not render them criminal and thus bring them within the legislative competence of Parliament under s. 91(27) of the Constitution Act, 1867.
77. For division of powers purposes it has certainly been recognized that the mere labelling of something as criminal does not entitle Parliament to assert legislative jurisdiction over it. As with all questions of characterization for constitutional purposes it is a matter of ascertaining the "pith and substance" of the legislation. However, it seems to me that the Crown's submission that s. 172 is properly characterized as criminal law is correct since in substance it is an enactment to prevent breaches of the public peace and to enable citizens to conduct services of worship without fear of disturbance.
78. The appellants argue that they have been convicted of the act of kneeling in church and that such an act is not capable of being the subject of a criminal offence. I agree, however, with His Honour Judge MacLellan that the actus reus here is not the act of kneeling but doing so in a certain context i.e. where it was known that to do so would disturb the solemnity of a religious service. Just as an act which is guilty in one context may be quite innocent in another, so also an act which is innocent in one context may be guilty in another. To use a simple example, it may be an offence to use foul and abusive language in a courtroom but it may be inoffensive to do the same thing in a noisy tavern or in the privacy of one's own home. While it is, in my view, sound to interpret the Criminal Code in such a way that the appellants' conduct is not characterized as criminal, it is a much more radical step to assert that the Criminal Code could not characterize the appellants' conduct as criminal where the result of such conduct is to disturb the carrying on by their fellow parishioners of their religious services. I would be hesitant, indeed, to accept such a submission.
79. I would allow the appeal and quash the convictions against the appellants on the ground that s. 172(3) of the Criminal Code does not extend to the conduct alleged against the appellants. I would order the restoration to the appellants of the $150 awarded as costs to the Crown by His Honour Judge MacLellan. Otherwise I would make no order as to costs. If it is necessary to make an order to this effect, I would order that the criminal record of the appellants be expunged.
Appeal allowed.
Solicitor for the appellants: Roseanne Skoke‑Graham, Stellarton.
Solicitor for the respondent: Robert E. Lutes, Halifax.
Solicitor for the intervener: Roger Tassé, Ottawa.