High court says masturbation at home not an offence if seen by neighbours
Wendy Cox Canadian Press
January 27, 2005
VANCOUVER (CP) - The Supreme Court of Canada has ruled that masturbating at home is not an offence, even if the activity can be seen by peeking neighbours.
The case centred on whether a private space - Daryl Clark's living room - became public because others could view it. The high court said No in a unanimous ruling Thursday. "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,' " Justice Morris Fish wrote, quoting the Criminal Code.
"I do not believe it (access) 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."
On Oct. 28, 2000, Clark's neighbours across his backyard in Nanaimo, B.C., noticed "some movement" in Clark's living room.
The woman had been watching television with her two young daughters in their family room, a room lit only by a television screen and light from the adjoining kitchen.
The woman moved to another room for a better view, then called her husband. The pair watched Clark for up to 15 minutes from the privacy of their darkened bedroom.
The court found they took care to avoid being seen by Clark, peering out from underneath their partially lowered blinds. Later, the woman's husband fetched a pair of binoculars and a telescope. He also tried, unsuccessfully, to videotape Clark in action, says the judgment.
The judgment notes the pair were "understandably concerned" because they feared Clark was "masturbating to our children."
The neighbours, who are identified only as Mr. and Mrs. S, called police.
The officer was able to see Clark from his belly up from the neighbour's bedroom and from the neck or shoulders up from the street level.
But Clark was charged after the police officer shone his flashlight in Clark's window at close range.
The trial judge concluded he had "converted" his living room into a public place and the B.C. Court of Appeal upheld the conviction.
Clark was given a four-month sentence.
Gil McKinnon, Clark's lawyer, said his client is happy with the outcome and glad to be getting on with his life, but he's not interested in talking about his court fight.
McKinnon said the Supreme Court rejected the notion that people's private living spaces can be turned into public places just because someone can see inside.
"A person has the freedom in his or her own living room to do whatever they choose to do and is not caught by the criminal law if they have no intent to offend or insult someone who may not be on that private property."
The protection isn't extended to someone who commits an indecent act on their own property with the intention of letting the neighbours see it.
But in this case, the evidence suggested Clark had no idea he was being watched, the court found.
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