Crown:  J. Chaffe, Assistant Crown Attorney, Toronto
Defence:  C. Penney, Toronto Sex Crimes Lawyer, Brampton

¶ 1  THE COURT:  The defendant, G.M., stands charged that on or about June the 7th, 1994, wilfully did an indecent act, in particular engage in act of masturbation in a public place, to wit, Morningside Park situated at Morningside Avenue south of Ellesmere in the City of Scarborough in the presence of [the first officer] who the evidence indicates was an undercover peace officer in "civvies".

¶ 2   Because a lot focuses in on whether or not the elements of the offence have been made out, it's important to read s. 173(1)(a): "Everyone who wilfully does an indecent act in a public place in the presence of one or more persons."

¶ 3  There is a lot of the evidence that does not conflict and that evidence, in brief and skeletal form, is as follows: On June 7th, 1994, Mr. G.M. went to Morningside Park hoping to meet someone. [The first officer] and Officer C*** went to Morningside Park in the execution of their duties at approximately 12:45 p.m. [The first officer] then entered from the most westerly parking area — as it turns out an area that had served as the arrival point of Mr. G.M. — and proceeds into an open area.

¶ 4   [The first officer] observes Mr. G.M. At this time, [the first officer]'s escort, [the second officer], walks past the defendant and [the first officer] on the main path. This last bit was not recalled by [the first officer], i.e., the movement of [the second officer].

¶ 5   It was after that a series of activities were observed by [the first officer], none of which, in any significant degree, is disputed by Mr. G.M.: namely, that they observed each other: that they did proceed along what is in Exhibit One called "the path", followed by [the first officer].

¶ 6   After the passing by of Officer C***, Mr. G.M. put his hands in his pockets, that is the pockets of his pants, and he watched [the first officer], moved his hands around, and eventually, fondled himself while being observed by [the first officer]. There certainly was an exchange of glances between the two in the eyes and crotch area.

¶ 7  Mr. G.M. took one hand out of his pocket and rubbed his crotch area with his hand. [The first officer] appeared to watch. Mr. G.M. turned around and undid his zipper. He then turned towards [the first officer] who, at this time, was ten to fifteen feet from Mr. G.M. withdrew his penis and scrotum and continued to rub it in the belief that [the first officer] was observing him. A moment later, [the first officer], in the evidence of Mr. G.M., came closer. It's fair to say, at some time, [the first officer] did have to come closer to affect an arrest.

¶ 8   At this particular time, and it's acknowledged by Mr. G.M., he was masturbating himself. After a brief conversation, he was placed under arrest and charged with the offence.

¶ 9  I think there is no disputing that indeed there was an indecent act as defined by the jurisprudence and admitted, but one must look at all elements of the offence.

¶ 10   The defence relies on argument to the effect that the actus reus [the act] and mens rea [the intent] were not made out. The Crown maintains that they were. It's clear that, at the critical time, the place is not a totally open area. It's a treed area. We do not know where the nearest other person is other than Mr. G.M. and [the first officer].

¶ 11  The foolishness of such activity in a public park where members of the public are invited, including families, is acknowledged. However, at this particular point in time, there is just the two individuals present.

¶ 12  Obviously, there has to be some evaluation of the credibility of the two principal witnesses. I turn my mind to the usual criteria for evaluating credibility and whether or not the evidence was given in a forthright fashion, whether there was any bias, whether or not in respect to the stories of the key witnesses on critical points have a ring of truth to them.

¶ 13  With regards to the evidence of [the first officer], he gave his evidence in a direct and forthright fashion. He did not recall [the second officer] coming through. That may have been just a slip of recollection, although I would have thought that [the second officer] would have come through just as security, knowing how officers are legitimately concerned about the safety for one another rather than just to see what is happening. However, I didn't hear any evidence to that effect, but I thought he would have come through. I certainly find to the extent it's not necessary for real findings that [the second officer] did indeed walk past them and out of sight again.

¶ 14  Mr. G.M., equally, in my opinion, gave his evidence in a direct and forthright fashion. That is buttressed by my observations of his conduct in the witness stand. It certainly would lead me to believe that he was in some discomfort giving his evidence. This is understandable given the nature of the evidence.

¶ 15  This case differs somewhat from the "run-of-the-mill" cases that we see in these Courts in that the officer didn't arrive on the scene and see some indecent activity taking place. He was around for three to five minutes in his evidence, and a little longer in the evidence of the defendant. I didn't get an explanation as to why the officer was there for one hour and five minutes. On the only evidence I have as to the time, [the first officer] arrived at 12:45 to, in the evidence of [the second officer] and exited the area at 13:50. It might have been helpful to have some explanation as to what he was doing for one hour and five minutes.

¶ 16  Mr. G.M. was saying that in his mind, there was evidence in the conduct of [the first officer] that led him to believe that [the first officer] was interested in him sexually. For that, he relies upon the time period for which the officer was observing him, and the fact that after initially coming closer, [the first officer] did not leave. In his evidence, he had his hand in his pocket, that is [the first officer] had his left hand in his pocket. That is not seriously in dispute. The officer doesn't say he did not have his hands in his pocket. He said that he may have, but he does deny having a water bottle in his right hand.

¶ 17   It is also clear that Mr. G.M., by this escalating conduct, was trying to test the interest that he observed of [the first officer], at [the first officer] having his hands in his pockets, then moving to fondle himself through his pants pockets, and moving to unzipping his front, putting his hand inside and eventually extracting his penis and scrotum to proceed in masturbating himself.

¶ 18  Indeed, we have his equivocal statement to the officer when the officer approached and said, "Are you having fun". Mr. G.M. looked at the ground and said, "Yeah, let me see yours." The next thing he saw was police I.D. That's not conclusive. There's certainly some equivocal evidence both ways.

¶ 19  The defence indicates that this conduct that I've referred to, plus the remaining there on the part of [the first officer], was enough to induce an honest but mistaken belief in the mind of the defendant that [the first officer] was interested in him in a sexual way. The Crown says that that evidence, at its highest, is one of wilful blindness that, in essence, he was viewing the conduct of the officer in a fashion that was favourable to him and was overlooking the overall conduct that may have suggested otherwise and relies in particular on the evidence of [the first officer] for that.

¶ 20  If I consider all the evidence, plus the characterization I've given to it, to the extent that I reviewed it, and in considering the applicable law to which counsel has directed me to today, I find that there indeed was an indecent act. That indecent act was committed in a public place. It was in the presence of at least one person, and that's all that is required. Whether or not there was the requisite mens rea [intent] really depends upon the findings of fact. Although, I sense in part that there was some viewing of the conduct of [the first officer] by Mr. G.M. in a manner favourable to his view, at the same time, it certainly is, in my mind, and I so find some objective basis for Mr. G.M. M.'s mistaken belief.

¶ 21  The officer's job is to go and patrol the park and make sure no crimes are being committed. Why he would linger even three to five minutes — and I find that it is probably closer to ten minutes given the amount of time he was in there. I have an hour and five minutes from the arrival to the time of coming out of the area back to the car which is unexplained. His remaining in the area and indeed moving closer to Mr. G.M., and there has been an exchange of glances which they both have acknowledged. I do find he had his hand in his pocket, that is [the first officer]. If no act was being committed, why he didn't keep going, I don't know. I think he thought he had a "live one" here and perhaps could carry this matter a little further and see how far it did go, and in so doing, I find that the Crown's witness, that is [the first officer], induced an honest and mistaken belief as to the Crown's witness' willingness or seeking to become involved in some sexual activity in the very least induces an honest and mistaken belief in the mind of the defendant that the officer was interested in becoming sexually involved.

¶ 22  Having so found, I find that the totality of the evidence does not make out all the requirements of the section. I am satisfied of that conclusion beyond a reasonable doubt, and accordingly, the charge will be dismissed.

¶ 23  In so doing, I'm going to take the defendant at his counsel's word, and I'm going to direct him to enter into a peace bond in the exercise of the Court's common law jurisdiction. There is absolutely no basis for someone working in Newmarket coming down to that park in the middle of the day — a public park. I'm going to direct you to enter into a peace bond for a period of twelve months.

¶ 24  MR PENNEY:  Brief indulgence, Your Honour, so I can explain to him exactly what that is. Yes, Your Honour, he's content to do that.

¶ 25  THE COURT:  A peace bond for a period of twelve months to keep the peace and be of good behaviour in the sum of five hundred dollars, no surety, no deposit. He is not to be at or in Morningside Park in Scarborough. Does he wish to show cause, Mr. Penney?

¶ 26  MR PENNEY:  No, Your Honour. I believe Mr. G.M., in fact, has been banned for life. I spoke to [the first officer] about this at one point in the past, and they've been designated as officers or agents for the city, and, in fact, he's been notified that he's banned from the park and he'll be violating the trespass to property act if he goes back, but we're still content, of course, to enter the common law peace bond.