Living Rooms Are Not Public Spaces Says the Supreme Court of Canada

More than 30 years after Prime Minister Pierre Trudeau pronounced that the state has no business in the bedrooms of the nation, the Supreme Court of Canada has found that it has no business in its living rooms either. In The Queen v Clark, the appellant, Clark, had been convicted at trial of wilfully performing an indecent act in a public place in the presence of one or more persons. Specifically, he had been accused of masturbating near the uncovered window of his illuminated living room at night, where he had been noticed by his neighbours. Section 173(1)(a) of the Criminal Code makes it an offence to wilfully perform an indecent act "in a public place in the presence of one or more persons", while section 173(1)(b) makes it an offence to wilfully commit an indecent act "in any place, with intent thereby to insult or offend any person". At trial, the judge acquitted the appellant under section 173(1)(b) because he found that the accused had not intended to insult or offend any person and had been unaware that his neighbours had observed him. However, the judge did find Clark guilty under section 173(1)(a), by concluding that the appellant had "converted" his living room into a public place and had, in that public place, wilfully committed an indecent act in the presence of one or more persons. Clark's appeals to the provincial Supreme Court and, further, to the British Columbia Court of Appeal were dismissed. In affirming the appellant's conviction, the Court of Appeal found that it was "an inescapable inference from the facts that what the appellant was doing here was acting in an exhibitionist manner and seeking to draw attention to himself in a residential neighbourhood while he was in view of other residents." In overturning the conviction, Justice Fish, writing for a unanimous Supreme Court of Canada, found that the B C Court of Appeal had departed impermissibly from the trial judge's appreciation of the evidence. Further, said the Supreme Court of Canada, the trial judge had erred in finding that the appellant had "converted" his living room into a public place, simply because he could be seen through his living room window and was thus observed, unawares, by his neighbours, who stood some 90 to 150 feet away. Section 150 of the Criminal Code defines "public place" as "a place to which the public have access as of right or by invitation, express or implied." In common usage, "access" to a place to which one is invited or where one has a right to be refers to entering, visiting or using that place and not to looking or listening in from the outside. Interpreting "public place" in a manner consistent with physical, as opposed to visual access, rendered the whole of section 173(1) more coherent. For these reasons, Mr. Clark's living room could not be a place "to which the public [had] access as of right or by invitation, express or implied". The Court also noted that in drafting section 173(1), Parliament had distinguished between conduct that is criminal because it occurs in a public place and conduct that is criminal because it is exposed to public view. Interpreting access as coincident with observation would render the definition of "public place" much broader than Parliament had ever intended. The text of the decision can be found at: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc002.wpd.html. For a CBC News article on the case, visit: http://makeashorterlink.com/?N2F612E6A. Summary by: Jason Young