Thursday, October 28, 2004

Supreme Court to Consider Home Indecency

Supreme court to hear masturbator case
Sue Bailey
Canadian Press
Wednesday, October 27, 2004

OTTAWA (CP) -- Canada's top court will be asked to decide whether public indecency can begin at home.
The bizarre case of a B.C. man convicted of masturbating in a public place -- his own living room -- will be heard Tuesday at the Supreme Court of Canada.
Daryl Clark was convicted of the offence after a neighbour spotted him manually stimulating himself in his house in Nanaimo.
It was dark and after 9 p.m. on Oct. 28, 2000.
A mother watching TV with her young children about 15 metres away could see Clark through her sliding glass doors.
She moved to a darkened bedroom to get a better view. Convinced that Clark was masturbating, she called to her husband.
He described the scene as "like having a spotlight on a person on a stage. He was lit up, completely visible, quite amazingly visible," says a court summary of the case.
The couple concluded that Clark was moving from side to side to maintain his view of something. They became alarmed that he was looking at their children and moving as a tree branch blocked his view.
The couple, who cannot be identified because of a publication ban, called police. An officer witnessed the same behaviour, and flickered his flashlight at Clark's window to get his attention.
Clark stepped back and immediately turned off his living room lights.
He was convicted of wilfully committing an indecent act in public and sentenced to four months in jail.
The high court will be asked how a "public place" as defined in the criminal code should be interpreted.
Several other offences, including disorderly conduct and displaying an indecent exhibition, could be affected.
Also at issue is the legal test for defining when an act should be considered to have been wilfully committed in public. In other words, at one point should Clark have realized that he was likely to be seen by someone outside?
Clark won't be in court Tuesday, said his lawyer, Gil McKinnon.
He'll argue on Clark's behalf that lower courts were wrong to conclude his client meant to turn his private room into a public stage.
McKinnon would not comment on Clark's occupation, his age, or whether he has a prior record. His appeal was dismissed last year by the British Columbia Court of Appeal.