Indecent Acts…..Investigative Steps Not to Forget

R. v. Novello, [2015] O.J. No. 5563 – this was an appeal by the accused from convictions for commission of an indecent act by masturbating in a public place in the presence of others and dangerous driving (this post will not discuss the latter). As a result of a complaint from a citizen, the appellant became the subject of an investigation by the members of the Toronto Police Service (TPS). The appellant was placed under surveillance by a team of police officers dressed in plain clothes and driving unmarked police cars. On both March 14 and 15, 2012, the appellant was observed masturbating in a public location while watching young children playing. On March 14, 2012, an officer saw the appellant park his vehicle at an apartment building and walk into a parkette where a number of young children were playing. The appellant was seen entering an alcove. He then put his hands in the front pockets of his pants and started masturbating. Similarly, on March 15, 2012, two officers saw the appellant, from different vantage points, in the vicinity of a soccer pitch, watching two young girls playing soccer together. Both police officers witnessed the appellant put his hands into his pants pockets and start masturbating. In their testimony, both of the officers related their observations in “very descriptive terms.” The trial judge concluded it was reasonable to infer, based on the independent observations of each officer, that the appellant was masturbating in a public place in the presence of one or more persons.

To reiterate, back in 2012, Section 173(1) of the Code stated:

Everyone who wilfully does an indecent act

(a) in a public place in the presence of one or more persons, or

(b) in any place, with intent to insult or offend any person, is guilty of an….

The relevant provisions have since changed to now read:

Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months.

Section 173 in 2012 provided that an indecent act may be a crime in one of two ways, and it still does, except now it is no longer a summary conviction offence, but a hybrid or “crown elected” offence, and it is no longer separated as paragraph (a) or (b) as different offences; the difference today is to be reflected in the charge wording itself, and not delineated by paragraph (a) or (b) as different charges as they were in 2012.  Only after the crown election does the (a) or (b) matter now and that is in terms of trial procedure and sentencing, etc. So, for the remainder of this post, when paragraphs (a) or (b) are mentioned, know that although the delineation is no longer there in 2015, the principles discussed are still the same.

The mental element of “wilfully” applies to both subsections (a) and (b). No further mental element is required under subsection (a). The intention of the “actor” does not determine the indecent quality of the act. The subsection also requires that the act occur in a public place. In contrast, subsection (b) requires a mental element in addition to wilfulness. The act must be done with the intention to insult or offend another person. It may take place either in public or in private. The intention of the “actor” to insult or offend determines the indecent quality of the act.

I won’t discuss the issues of “community standard of tolerance” or whether or not the acts require a sexual context in this post because I simply want to discuss some investigative steps that as officers, we must not forget to cover; the standard of tolerance issue and sexual context issue are for the Crown to argue. According to Justice Campbell of the ONSC in Novello, the trial judge made a legal error in finding that a “presumption of intent to do an indecent act wilfully arises where it is seen by another person,” and that the appellant was, accordingly, guilty of “wilfully engaging in an indecent act of masturbation in a public place in the presence of one or more persons” (as cited from R. v. Parsons, [1963] 3 C.C.C. 92 (B.C.S.C.)). 

In this context, “wilfully” seems to serve two purposes: first, the person must have wilfully committed the act of masturbation (which was easy to prove here); second, however, addresses the wilful nature of the “presence” of one or more persons itself. Justice Campbell said two points have to be considered: (1) whether or not an accused is, in fact, observed by another engaged in an indecent act; and (2) whether or not the accused wilfully engaged in that indecent act in the presence of another person. For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.

As officers, although the offence is no longer delineated as (a) and (b) in 2015, our investigation must be catered to what the offence elements are for the charge. Did the person wilfully do an indecent act in a public place in the presence of one or more persons, or did they do it in any place with intent to insult or offend any person? Through our investigation, when it is a charge under what was 173(1)(a), we should cover off whether or not the person knew they were being observed by another; did he or she attempt to catch the eye of the complainant or anyone else, for example? In reading this case, I recalled another case I read a while back in which the person was convicted of an offence under 173(1)(a) of the Code (R. v. Gill, [2010] B.C.J. No. 2005, 2010 BCPC 256) in which the female complainant and the defendant were stopped at a red light (separate vehicles). The complainant felt as if someone was watching her, looked to the vehicle on her left, and saw the defendant masturbating and the defendant looked towards her. She and the defendant made direct eye contact with each other; she testified that the defendant was “very obviously” trying to get her attention. After the initial eye contact, he covered his penis and then re-exposed his penis as he stared at her through the passenger window of his vehicle. The trial judge found that Mr. Gill’s conduct was wilful in masturbating in the driver’s seat of his car while stopped at a traffic light on a busy Surrey street, and while he was deliberately making eye contact with the complainant, and as such was an indecent act in the presence of one or more persons. The only reasonable inference to be drawn from the proven facts was that Mr. Gill would be seen by the female complainant and he knew it. The exhibitionist nature of this conduct was, said the trial judge, further clear evidence of the intention of Mr. Gill.

Whereas, in another case I read (R. v. Sloan, [1994] O.J. No. 758, 89 C.C.C. (3d) 97 (Ont. C.A.)), a car parked in a secluded corner of a parking lot over 100 feet away from other cars, such that ordinary passer by would not have been able to see into the car, was not an indecent act because it did not fit the meaning of a “public place”. The ONCA is Sloan ruled that surreptitious surveillance cannot turn what is essentially an act done in private into one which takes place in public (per Galligan J.A.).

If the offence is under the old 173(1)(b), the indecent act was done wilfully with the intent to insult or offend, so the investigation must be conducted to uncover those elements of the offence. In contrast, s. 173(2), which deals with the exposure of genital organs to a person under 16 years of age, explicitly requires that the exposure be for a sexual purpose. This suggests that Parliament was alert to the prospect that some, but not all, indecent acts have a sexual purpose. Parliament did not use similar language in respect of the purpose of the acts targeted in s. 173(1)(a) or (b).

Back to the case at hand; in Novello, the trial judge found that [the appellant] positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state. But since there was no evidence to infer or suggest that the appellant knew he was being observed or watched, Justice Campbell said there was no legal presumption that, where an accused was engaged in some indecent act and was, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person.

Justice Campbell said instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another. As a result, the conviction for the offence of indecent act was set aside and a new trial ordered.

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