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At trial, Heywood argued that the law violated section 7, 11(d), 12, and 15 of the
Charter. The court found a violation of 7 and 11(d) which was justified under section 1. Heywood was convicted. On appeal to the Supreme Court of the province, then to the provincial Court of Appeal the conviction was
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Cory states that the word should be given its ordinary, dictionary meaning, which is "to stand idly around, hang around, linger, tarry, saunter, delay, dawdle", and it does not contain any element of malevolent intent. He further claims that such a meaning supports the purpose of the section to
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for loitering "at or near a playground" under section 179(1). He had been spotted several times previously near the playground carrying a camera with a telephoto lens. Upon arrest the police got a search warrant and found collections of pictures of children at play.
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The dissent, written by
Gonthier J., with La Forest, L'Heureux-Dubé, and McLachlin JJ. concurring, found that the word "loiter" required an element of "malevolent intent" and therefore was not overbroad and did not violate section 7.
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In 1987, Heywood was convicted under section 246.1(1) (now s. 271(1)) of the
Criminal Code for sexual assault of children. The conviction made him subject to section 179(1)(b) which prevented certain convicted individuals from
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as it is more restrictive than necessary and applies too broadly. That is, "without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review".
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In a 5 to 4 decision, the Court dismissed the appeal, finding a section 7 violation that could not be saved. The majority was written by Cory J. with Lamer C.J., Sopinka, Iacobucci, and Major JJ. concurring.
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upheld. Finally, the
Supreme Court of Canada affirmed the violations of section 7 and 11(d) but also found that they could not be saved under section 1, and so the conviction was overturned.
238:(b) having at any time been convicted of an offence under section ... section 271..., is found loitering in or near a school ground, playground, public park or bathing area.
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protect children. "Malevolent intent" - a lesser degree of intent than unlawful intent - is too broad, vague, and subjective, says Cory.
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was overbroad and thus violated section 7 and could not be saved under section 1.
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Appeal dismissed, s.179(1)(b) of
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of the
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54:Her Majesty The Queen v Robert Lorne Heywood
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