Judge reinforces wilfulness requirement in indecent act cases

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.

Free newsletter

The Canadian Legal Newswire is a FREE weekly newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered every two weeks, providing targeted news and information of interest to in-house counsel.

Please complete the form below to receive the weekly Canadian Legal Newswire and/or the Canadian Inhouse Legal Newswire.

Recent articles & video

Law careers may start on Instagram…

Top Intellectual Property and Labour and Employment Boutiques survey closes on Friday

Differentiating common law from marriage in family law

Insights on Quebec’s plan to restrict the sale of cannabis edibles

Make legal aid an election issue

Move slow and fix things

Most Read Articles

True North and Rebel News seek judicial review on press accreditation denial for debates

EY Law overtakes PwC in global alternative legal services rankings

Convicted person has right to lesser of two punishments existing at time of commission or sentencing

How much does the GC at News Corp earn?