The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Friday, January 28, 2005

A living room is not a public place, says Supreme Court of Canada 

The Supreme Court of Canada released its decision in R. v. Clark yesterday. The Court reversed lower court decisions that held that a living room may be a "public place" for the purposes of the Criminal Code of Canada.

The question arose in a prosecution of a person who was observed masturbating in his living room through an open window. The lower court convicted him under section s. 173(1)(a) of the Criminal Code, concluding that the accused had made his living room a "public place." The Supreme Court of Canada disagreed, noting that Parliament is free to change to law to refer to a place in public view.

Here's the headnote:

Daryl Milland Clark Appellant


Her Majesty The Queen Respondent


Attorney General of Ontario Intervener

Indexed as: R. v. Clark

Neutral citation: 2005 SCC 2.

File No.: 29976.
2004: November 2; 2005: January 27.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.


Criminal law -- Disorderly conduct -- Indecent Acts -- Criminal Code prohibits wilfully doing an indecent act in a public place -- Whether masturbating in illuminated room before an uncovered window while unknowingly being observed by neighbours is an indecent act in a public place -- Whether living room "a public place" within meaning of ss. 150 and 173(1)(a) of Criminal Code -- Meaning of word "access" in definition of "public place" in s. 150 of the Criminal Code.

The accused was observed masturbating near the uncovered window of his illuminated living room by neighbours from the privacy of their darkened bedroom, across contiguous back yards, from a distance of 90 to 150 feet. The police were summoned. They observed the accused from "just below the navel up" from the neighbour's bedroom and "from about maybe the neck or the shoulders up" from street level. The accused was charged under ss. 173(1)(a) and 173(1)(b) of the Criminal Code. Section 173(1) makes it an offence to wilfully do an indecent act (a) "in a public place in the presence of one or more persons", or (b) "in any place, with intent thereby to insult or offend any person". The trial judge convicted the accused under s. 173(1)(a) after finding he had converted his living room into "a public place" but acquitted him under s. 173(1)(b) after finding that it did not appear the accused knew he was being watched or intended to insult or offend any person. The Supreme Court of British Columbia and the Court of Appeal upheld the conviction. The Court of Appeal concluded that the accused had "intentionally conducted himself in an indecent way, seeking to draw attention of others".

Held: The appeal should be allowed. The accused's conviction is vacated and an acquittal entered.

The facts as found by the trial judge do not support the accused's conviction. The accused's act was not committed in "a public place" within the meaning of ss. 150 and 173(1)(a) of the Criminal Code. A "public place" is defined in s. 150 as "any place to which the public have access as of right or by invitation, express or implied". "Access" means "the right or opportunity to reach or use or visit" and not 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. Interpreting "public place" as contemplating physical as opposed to visual access renders the whole of s. 173(1) more coherent and is consistent with Parliament's legislative distinction in the Criminal Code between conduct that is criminal because it occurs in a public place and conduct that is criminal because it is exposed to public view or open to public view.

The Court of Appeal erred by departing from the trial judge's appreciation of the evidence in the absence of a finding that he had committed a palpable and overriding error. It also erred in finding that the conviction is supported by case law that expands the meaning of "a public place" to include the place where the witnesses to an indecent act are physically situated. Even if correctly decided, this case law does not support the conviction since the accused's act did not occur in a public place within the expanded meaning. Although the definition of "endroit public" in the French version of s. 150 contains no equivalent of the word "includes" found in the definition of "public place" in the English version, there is no need to choose between versions because both contemplate physical as opposed to visual access."

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