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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