Case

J. Clarke was convicted of sexual assaults involving children. After serving a short jail sentence, he was prohibited from loitering near any playgrounds, school yards or public parks. This prohibition was made subject to a special provision of the Criminal Code.

On two occasions, Clarke was stopped by police who noticed him carrying a camera with a telephoto lens in a public park; he was near a place where children were playing. Police asked if he had a criminal record; he replied honestly. On the first occasion, he was warned that a convicted sex offender was not permitted to loiter near a public park, school yard or playground. On the second occasion, he was arrested and criminally charged.

At his new trial, Clarke argued that the Criminal Code provision allowing for the prohibition against loitering near any playgrounds, school yards or public parks infringed his right to liberty under section 7 of the Charter, because it included too broad a range of places that he could no longer visit.

Question

Assume that the court agrees that Clarke has presented a prima facie violation of section 7 of the Charter. What happens next? Explain the legal questions that must be answered. Describe the arguments that both Clarke and the Crown Prosecutor would likely make in relation to those legal questions.

Do not concern yourself with the prima facie violation, since it relates to a section of the Charter (section 7) not explicitly addressed in this course. This problem probes whether you have correctly understood the structure of a Charter claim. Therefore, you need not reach a conclusion about whether Clarkes Charter argument is correct. Similarly, you need not concern yourself with possible remedies that the court might impose.