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Tuesday, 01 February 2005

OTTAWA (Reuters) -
A Canadian who masturbated at a window in his house won his appeal against a conviction for indecency on Thursday after Canada's top court ruled there was no evidence of intent to commit an indecent act, and a home was not a public place.

The Supreme Court of Canada noted that British Columbian, Daryl Clark, had agreed it was an indecent act to have masturbated "in an illuminated room near an uncovered window visible to neighbors."

But Justice Morris Fish, writing the 9-0 decision, said such acts have to be done in public places to be a crime -- and a home was not a public place. The law also says indecent acts are only crimes in every location if the person intends to give offense.

Clark was convicted of an indecent act in a public place and given a four-month sentence after a prosecution that followed complaints from his neighbor, named in court documents only as Mrs. S.

The woman said she spotted Clark while she was watching television with her two young daughters in their family room.

She alerted her husband, and the couple observed Clark from their darkened bedroom for 10 or 15 minutes -- also using binoculars and a telescope -- before summoning the police, who said the upper part of Clark's body was visible from just below the navel.

"In my respectful view, the trial judge ... 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," Fish wrote.

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