Ipsofactoj.com: International Cases  Part 6 Case 4 [SCC]
SUPREME COURT OF CANADA
- vs -
27 JANUARY 2005
(delivered the judgment of the court)
The appellant stands convicted for having masturbated near the uncovered window of his illuminated living room.
He was first noticed by Mrs. S., a neighbour who was watching television with her two young daughters in their partially lit family room. Mrs. S. moved to another room for a better view and then alerted her husband. Together, they observed the appellant for 10 to 15 minutes from the privacy of their darkened bedroom, across contiguous backyards, from a distance of 90 to 150 feet.
The police were summoned and the appellant was charged under both s. 173(1)(a) and s. 173(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
Section 173(1)(a) makes it an offence to wilfully perform an indecent act "in a public place in the presence of one or more persons"; s. 173(1)(b), on the other hand, makes it an offence to wilfully commit an indecent act "in any place, with intent thereby to insult or offend any person".
According to the trial judge, it did not appear that the appellant knew he was being watched. Nor did the appellant intend "to insult or offend any person". Indeed, the trial judge found that there was "an escalation of [the appellant's] activity" when Mrs. S. left her partially illuminated family room, from which she could presumably be seen by the appellant. "And", the trial judge added, "there is nothing to suggest ..., in fact, to the contrary, that [the appellant] was aware that [Mrs. S.] was watching from the darkened bedroom window".
The trial judge was satisfied, however, that the appellant had "converted" his living room into a public place and had, in that "public place", wilfully committed an indecent act in the presence of one or more persons.
On these findings, the trial judge acquitted the appellant under s. 173(1)(b) but found him guilty under s. 173(1)(a). His appeals to the Supreme Court and Court of Appeal of British Columbia were dismissed.
In affirming the appellant's conviction, the Court of Appeal nonetheless concluded that the appellant "intentionally conducted himself in an indecent way, seeking to draw the attention of others (members of the public) to himself on the evening in question" ((2003), 185 B.C.A.C. 87, 2003 BCCA 408, at para. 10). It was "an inescapable inference from the facts", said the Court of Appeal, "that what the appellant was doing here was acting in an exhibitionist manner and seeking to draw attention to himself in a residential neighbourhood while he was in view of other residents" (para. 5).
The appellant submits that the Court of Appeal, in this regard and in other respects as well, departed impermissibly from the trial judge's appreciation of the evidence. With respect, I agree. But since I would in any event allow the appeal on other grounds, I find it sufficient for present purposes simply to reaffirm the governing principles. Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: see Stein v The Ship "Kathy K",  2 S.C.R. 802; Lensen v Lensen,  2 S.C.R. 672; Geffen v Goodman Estate,  2 S.C.R. 353; Hodgkinson v Simms,  3 S.C.R. 377; Toneguzzo-Norvell (Guardian ad litem of) v Burnaby Hospital,  1 S.C.R. 114; Schwartz v Canada,  1 S.C.R. 254; Housen v Nikolaisen,  2 S.C.R. 235, 2002 SCC 33.
It has not been suggested that the trial judge in this case committed a palpable and overriding error in his appreciation of the evidence. This appeal therefore falls to be decided by applying the law as set out by Parliament to the facts as found by the trial judge.
Section 173(1)(a) of the Code makes it an offence to wilfully perform an indecent act "in a public place in the presence of one or more persons". In virtue of s. 150, "`public place' includes any place to which the public have access as of right or by invitation, express or implied". Parliament has distinguished legislatively in Part V of the Criminal Code -- the context that concerns us here -- between conduct that is prohibited "in a public place" and conduct that is prohibited if it is "exposed to public view". We should not by judicial interpretation frustrate Parliament's manifest intention by merging these two different foundations of criminal liability.
Parliament has also created two different offences in ss. 173(1)(a) and 173(1)(b) of the Criminal Code. The former concerns indecent acts committed in a public place in the presence of one or more persons; the latter, indecent acts committed in any place, public or private, with intent to insult or offend any person. Here, the appellant was acquitted under s. 173(1)(b). His conviction under s. 173(1)(a) can therefore not be supported, as it was to some extent in the Court of Appeal, on grounds that were resolved finally and in the appellant's favour when he was acquitted by the trial judge under s. 173(1)(b).
I agree with the appellant's submission that his living room was not a public place within the meaning of s. 173(1)(a). The living room of his private home was not a place "to which the public [had] access as of right or by invitation, express or implied". From both the text and the context, it seems obvious to me that "access", as used here, means "the right or opportunity to reach or use or visit": The Canadian Oxford Dictionary (2001), p. 7. I do not believe it contemplates the ability of those who are neither entitled nor invited to enter a place to see or hear from the outside, through uncovered windows or open doors, what is transpiring within.
In my respectful view, the trial judge thus erred in concluding that the appellant's living room had been "converted" by him into a public place simply because he could be seen through his living room window and, though he did not know this, was being watched by Mr. and Mrs. S. from the privacy of their own bedroom 90 to 150 feet away.
I shall explain more fully below why I would allow the appeal on this ground alone. First, however, a closer look at the facts and the proceedings below.
The appellant was first noticed by Mrs. S. while she was watching television with her two young daughters in their family room, which was lit up only by the television screen and by light from the adjoining kitchen. Mrs. S. agreed with counsel's suggestion that, from there, she "didn't really see anything untoward other than some movement". But for reasons that she explained at trial, Mrs. S. was troubled and, to get "a better angle to view", she "ran" to her bedroom and then summoned her husband.
From that vantage point, Mr. and Mrs. S. observed the appellant for 10 or 15 minutes. Taking care to escape his notice, they looked out through the uncovered part of their bedroom window, below their partially lowered blinds. And, to ensure that the appellant was in fact doing what he appeared to them to be doing, Mr. S. fetched a pair of binoculars and a telescope. He also tried, unsuccessfully, to videotape the appellant in action.
Mr. and Mrs. S. were understandably concerned. In the words of Mr. S., they feared that the appellant was "masturbating to our children". They therefore called the police.
The first officer arrived within five minutes. From the bedroom of Mr. and Mrs. S., the officer could see the appellant from "just below the navel up". The appellant had his hand in front of him "and there was a hand motion consistent with somebody masturbating". At the back of the house, looking up to the appellant's living room from street level, the officer could only see the appellant "from about maybe the neck or the shoulders up because of the angle".
It did not appear to the trial judge "that [the appellant] actually knew he was being watched". There was nothing to suggest, the trial judge said, "that [the appellant] was aware that [Mrs. S.] was watching from the darkened bedroom window". He found that the evidence in fact indicated the contrary. The appellant was, however, seen by Mrs. S. and "could easily have been seen by the children, but apparently was not".
On these facts, the trial judge concluded that the appellant had wilfully committed "an indecent act .... in a public place in the presence of one or more persons", thereby committing the offence set out in s. 173(1)(a) of the Criminal Code.
The trial judge was not satisfied, however, that the appellant had committed this indecent act "with intent thereby to insult or offend any person", as required by s. 173(1)(b) of the Code. He therefore acquitted the appellant of the charge laid against him under that section.
The appellant's conviction under s. 173(1)(a) was affirmed by the Court of Appeal for British Columbia. He now appeals to this Court, with leave, from the decision of the Court of Appeal.
In affirming the appellant's conviction, the Court of Appeal relied primarily on R. v Keir (1919), 34 C.C.C. 164 (N.S.S.C.), and R. v Buhay (1986), 30 C.C.C. (3d) 30 (Man. C.A.).
The accused in Keir had exposed himself while standing in a private lane next to a public street, from which he was seen by passing girls. Harris C.J., in separate but concurring reasons, held that "[i]t was always the law that if this offence was committed in a place visible to any one passing along the streets it was punishable" (p. 166). For this proposition, Harris C.J. relied entirely on English case law, notably R. v Thallman (1863), 9 Cox C.C. 388.
Thallman's Case, however, merely underlines the differences between the English common law and the offence set out in s. 173(1)(a) of the Criminal Code. This distinction was well explained, albeit with some regret, by Middleton J., dealing with the predecessor to s. 173(1)(a) in R. v Clifford (1916), 26 D.L.R. 754 (Ont. S.C.), at pp. 755-56:
In numerous English cases the offence was committed on private property, but in such a place as to be easily visible to passers-by or the occupants of adjacent houses: e.g., Thallman's Case (1863), L. & C. 326.
Unfortunately, in our statute this element of visibility to the public seems to have been lost sight of, and the act is punishable only when committed in any place to which the public have or are permitted to have access.
Harris C.J., relying in Keir on the English common law relating to indecent exposure, failed to appreciate this distinction.
Speaking for the other four judges in Keir, Mellish J. approached the matter differently, at p. 167:
I think this was an indecent act done in the street, a place to which the public have access and that the accused was properly convicted .... The gist of the offence is the exposure and if the exposure is wilful and in sight of persons then in a public place, I think it is an exposure in such place and in the presence of such persons within the meaning of sec. 205 of the Code.
For Mellish J., an indecent act is thus committed not only where the offender is performing it, but also in the place where the witnesses to it are physically situate. I am not at all persuaded that Keir was correctly decided. But even if it was, Keir affords no support for the conviction in this case, since the appellant's indecent act did not occur in a public place, even within the expanded meaning of Keir.
In Buhay, supra, the accused was charged under the predecessor to s. 173(1)(a). Standing in the front doorway to his house, he had exposed himself to two boys on the street. The trial judge acquitted Mr. Buhay on the ground that he had been charged under the wrong provision: while a lewd comment uttered by the accused in that case afforded sufficient evidence of his intent to insult or offend, warranting a conviction under the predecessor to s. 173(1)(b), the indecent act did not occur in a public place and was therefore not caught by what is now s. 173(1)(a).
The Court of Appeal allowed the Crown's appeal, relying essentially on Keir, supra. For the reasons explained, I find that Keir does not support a conviction in the present case. Neither does Buhay, since it rests on the same inapplicable considerations.
With respect, the authorities relied on here by the Court of Appeal in affirming the appellant's conviction are thus of no comfort to its conclusion.
The appellant does not contest the trial judge's finding that he committed an "indecent act", within the meaning of s. 173(1)(a) of the Criminal Code. He concedes, at least implicitly, that masturbating in an illuminated room near an uncovered window visible to neighbours can be "indecent" within the meaning of that section.
The appellant contends, however, that he did not wilfully commit this indecent act "in a public place, in the presence of one or more persons", as required by s. 173(1)(a). He raises three grounds:
first, that his living room was not a "public place" within the meaning of s. 173(1)(a);
second, that the complainants were "surreptitiously watching him from beneath the blinds of a window in their own private bedroom some distance away" - and, therefore, not "in his presence", as likewise required by s. 173(1)(a);
third, that he cannot be said to have wilfully committed an indecent act in the presence of anyone, since the trial judge found there was no evidence that he knew he was being observed.
The appellant argues, in addition, that the Court of Appeal erred in resting its conclusion of guilt on its own view of the evidence, which differed in important respects from the findings of the trial judge. I find it unnecessary to add here to what I have said earlier concerning this branch of the matter.
The appellant submits that his appeal succeeds if any one of his grounds is maintained. I agree and, as mentioned earlier, I would allow the appeal on the first ground - that the act imputed to him was not committed "in a public place", within the meaning of ss. 150 and 173(1)(a) of the Criminal Code. While there is thus no need to canvass the remaining grounds, I should not be understood to have concluded that they are without merit.
It is common ground that the appeal must succeed if the appellant did not commit an indecent act in a public place within the meaning of ss. 150 and 173(1)(a) of the Criminal Code.
These provisions read:
In this Part,
Les définitions qui suivent s'appliquent à la présente partie
"public place" includes any place to which the public have access as of right or by invitation, express or implied;
« endroit public » Tout lieu auquel le public a accès de droit ou sur invitation, expresse ou implicite.
It will be immediately noticed that the French version of s. 150 contains no equivalent of "includes" in the English text. The appellant submits that the French definition is thus exhaustive in its terms, narrower than the English and common to both versions. The French definition, in the appellant's view, must therefore prevail: R. v Daoust,  1 S.C.R. 217, 2004 SCC 6, at paras. 26-37.
The respondent considers that there is "no discordance between the French and English text on the characteristics that make a place `public'"(emphasis in original). In the respondent's words, the issue is whether "private property, when exposed to public view, is a `place' to which the `public have access as of right or by invitation, express or implied'".
There is thus no need to choose in this case between the English and French versions of s. 150. The parties agree that both versions require public access by right or invitation: their disagreement is limited to the meaning of "access" in this context.
On that issue, which is decisive in this case, the appellant submits that ss. 150 and 173(1)(a) contemplate physical access to the place in which the impugned act was committed; the respondent, that visual access is sufficient. In my view, the appellant's position is supported by the prevailing rules of statutory construction. The respondent's position is not.
It is now well established that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Limited Partnership v Rex,  2 S.C.R. 559, 2002 SCC 42, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C.R. 27, at para. 21.
As a matter of semantics, the "ordinary" meaning of a disputed term will, of course, often vary with the context in which it is being used. Thus, for example, "access" has one "ordinary meaning" in relation to the rights of non-custodial parents, another as regards on-line computing, and yet another with respect to a place.
Section 150 of the Criminal Code uses the word "access" in reference to a "place"- in this case, a private home. And our concern is with access to that place "as of right or by invitation". In common usage, "access" to a place to which one is invited or where one has a right to be refers to entering, visiting or using that place - and not, as I said earlier, to looking or listening in from the outside. When we are told that someone has access, as of right or by invitation, to an apartment, a workshop, an office, or a garage, this does not signify to us a mere opportunity or ability to look through a window or doorway and to see what is happening inside.
This "grammatical and ordinary sense" of "access" in relation to a place must, of course, be read harmoniously with the legislative context that concerns us here and the intention of Parliament as it appears from the Criminal Code: Bell ExpressVu, supra; Rizzo & Rizzo Shoes, supra.
I begin with the immediate legislative context.
First, interpreting "public place" in a manner consistent with physical as opposed to visual access, renders the whole of s. 173(1) more coherent. The offences under ss.173(1)(a) and 173(1)(b) are circumscribed in distinct ways. Section 173(1)(a) prohibits indecent acts in public places, while s. 173(1)(b) prohibits indecent acts in any place - public or private - when they are committed with intent to insult or offend.
Moreover, as I mentioned earlier, Parliament has distinguished in the Code between conduct that is criminal because it occurs in a public place and conduct that is criminal because it is exposed to public view. Section 173(1)(a), as we have seen, grounds liability in the fact that the prohibited act is committed in a public place. The offence of nudity is set out in the very next section of the Code:
Every one who, without lawful excuse,
is guilty of an offence punishable on summary conviction.
Section 174(1) makes it perfectly clear that the definition of "public place" in s.150 of the Criminal Code was not meant to cover private places exposed to public view. Were it otherwise, s. 174(1)(b) would be entirely superfluous.
Section 150 applies equally to s. 174(1) and s. 173(1)(a). If "public place" does not, for the purposes of s. 174(1), include private places exposed to public view, this must surely be the case as well for s. 173(1)(a). And I hasten to emphasize that ss.173(1) and 174 of the Criminal Code were enacted in their present form simultaneously, as ss. 158 and 159, when the present Code was revised and enacted as S.C. 1953-54, c.51. Parliament could not have intended that identical words should have different meanings in two consecutive and related provisions of the very same enactment.
Section 213(1) of the Code provides further support, if any were needed, for the proposition that the grammatical and ordinary meaning I have ascribed to "access" is consistent with its legislative context and with Parliament's intention in enacting s. 150. Section 213(1) makes it an offence for anyone "in a public place or in any place open to public view" to commit certain specified acts for the purposes of prostitution.
The underlined, alternative route to liability in s. 213 was added by R.S.C. 1985, c. 51 (1st Supp.) s. 1. Parliament shortly thereafter directed its attention to s. 173, adding subs. (2): see R.S.C. 1985, c. 19 (3rd Supp.), s. 7. The respondent notes, correctly, that s. 213, unlike s. 173, is not in Part V of the Criminal Code and suggests that it was amended in response to comments by this Court in Hutt v The Queen,  2 S.C.R. 476. This may well be so, but Parliament is deemed to act deliberately. It is therefore not unreasonable to suppose that Parliament, when it expanded s. 213 to include places open to public view, did not add similar language to s. 173(1)(a) because it did not intend acts committed in such places to be caught under the latter section.
I think it inappropriate for this Court to do now what Parliament declined to do then and remains free in its wisdom to do still.
For all of these reasons, as indicated at the outset, I would allow the appeal, vacate the appellant's conviction and enter an acquittal.
R. v Keir (1919), 34C.C.C.164; R. v Buhay (1986), 30C.C.C.(3d)30; Reg. v Thallman (1863), 9Cox C.C.388; Stein v The Ship "KathyK",  2S.C.R.802; Lensen v Lensen,  2S.C.R.672; Geffen v Goodman Estate,  2S.C.R.353; Hodgkinson v Simms,  3S.C.R.377; Toneguzzo-Norvell (Guardian ad litem of) v Burnaby Hospital,  1S.C.R.114; Schwartz v Canada,  1S.C.R.254; Housen v Nikolaisen,  2S.C.R.235, 2002SCC33; R. v Clifford (1916), 26D.L.R.754; R. v Daoust,  1S.C.R.217, 2004SCC6; Bell ExpressVu Limited Partnership v Rex,  2S.C.R.559, 2002SCC42; Rizzo & Rizzo Shoes Ltd. (Re),  1S.C.R.27; Hutt v The Queen,  2S.C.R.476.
An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c.19 (3rd Supp.), s.7.
An Act to amend the Criminal Code (prostitution), R.S.C. 1985, c.51 (1st Supp.), s.1.
Criminal Code, R.S.C.1985, c. C-46, ss.150, 173(1), 174(1), 213.
Criminal Code, S.C.1953-54, c. 51, ss.158, 159(1).
Authors and other references
Canadian Oxford Dictionary, 2nded. Edited by Katherine Barber. Toronto: Oxford University Press, 2004, "access".
Driedger, ElmerA. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
GilD.McKinnon, Q.C., for the appellant (instructed by GilD.McKinnon, Q.C., Vancouver)
JoyceDeWitt-VanOosten and KennethD.Madsen, for the respondent (instructed by Ministry of the Attorney General of British Columbia, Vancouver)
ChristineBartlett-Hughes, for the intervener (instructed by Ministry of the Attorney General of Ontario, Toronto).
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