Friday, January 28, 2005

Canadian Justice?

How do you think Scalia & Co would have come out on this one????

Living room window not public, Supreme Court rules
By KIRK MAKIN
From Friday's Globe and Mail

A man's home is his castle — even if he accidentally turns it into a neighbourhood peep show.
A Supreme Court of Canada ruling Thursday found that a Nanaimo, B.C., man was wrongly convicted of committing an indecent act in 2000, after he was spotted masturbating near his living room window.

The accused, Daryl Milland Clark, was reported to police after a neighbouring couple furtively observed him through binoculars for 10 to 15 minutes, then called police.
“This is an important case from the perspective of defining a public place,” Mr. Clark's lawyer, Gil McKinnon, said in an interview.

“People can be comforted to know that a law-abiding citizen who does some kind of act in privacy — without knowledge he is being observed by someone outside — is not at risk of being prosecuted,” Mr. McKinnon said.

Unfortunately, exoneration came too late for the married, retired defendant. Mr. Clark has already served a four-month jail sentence and seen his name etched into law books forever.
Speaking through his lawyer, Mr. Clark said: “Over all, I am very pleased with the outcome and would like to now just put this whole incident behind me. It has been a long struggle for over four years to overturn a conviction I always believed was wrong.”

“I very much appreciate that the Supreme Court decided to hear my appeal and that justice has been served.”

The complainants, a couple who lived next door to Mr. Clark, told police they were worried for the welfare of their two daughters when they spotted Mr. Clark masturbating about 40 metres away, across their contiguous back yards.

Retreating to their darkened bedroom to get a better look, they peered through a chink in the blinds. One of them — identified only as Mr. S. — even fetched binoculars and a telescope.
“He also tried, unsuccessfully, to videotape the appellant in action,” Mr. Justice Morris Fish noted, writing for a 9-0 majority.

After police arrived and shone a flashlight into Mr. Clark's living room, he quickly switched off the lights and left the room.

The court noted that Mr. Clark's trial judge did not believe the defendant was aware he was being watched. In fact, his behaviour was to the contrary.

However, the judge nonetheless convicted him of committing an indecent act, “in a public place, in the presence of one or more persons.”

In doing so, Judge Fish said, the trial judge mistakenly expanded the definition of a public place to include the place where the witnesses of the act were physically situated.
Judge Fish said the indecency law was created to protect the public from offensive acts performed in a public place, or from acts performed in a private place with the intention of offending others.

The 1892 law should not have been extended by Mr. Clark's trial judge to include acts committed in a private place without any intention of being observed, he said.
“The trial judge was satisfied that the appellant had ‘converted' his living room into a public place and had, in that ‘public place,' willfully committed an indecent act in the presence of one or more persons,” Judge Fish said.

He said that the B.C. Court of Appeal compounded the error by jumping to an unwarranted conclusion that Mr. Clark situated himself near the window to draw attention to himself.
“I do not believe it [the law] 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 inside.

“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 bedroom 90 to 150 feet away.”


© 2005 Bell Globemedia Publishing Inc. All Rights Reserved.

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