Masturbating in a public space doesn’t necessarily constitute a wilful indecent act if the person doing it never intended for others to notice, an Ontario Superior Court Judge has found.
On Monday, Justice Kenneth Campbell set aside the conviction of a Toronto man found guilty of wilfully committing an indecent act because a lower court judge had assumed that just because others witnessed the act it meant the man had intended for people to see him or to offend them.
Counsel for the appellant argued his client, Paolo Novello, had tried to cover himself when undercover police officers spotted him masturbating in public places near schools, parks, and playgrounds.
“First, there is no legal presumption that, where an accused is engaged in some indecent act and is, 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,” wrote Campbell, who noted a person might not know someone else is around.
“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.”
Criminal lawyer Daniel Brown says cases of indecent exposure don’t arise often and that when they do, it seems like there has been confusion over what the jurisprudence says about the presumption of wilfulness.
“This decision by Justice Campbell clarifies any confusion that might have otherwise existed,” says Brown.
“If you are being seen, maybe a judge can conclude that was your intention, but it isn’t something that should necessarily flow from being seen,” he adds.
In R. v. Novello, the trial judge concluded 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.”
Campbell, however, ordered a new trial in the case after setting aside Novello’s conviction.
“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,” he wrote.