WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
Metro North, Toronto Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MOHAMMAD RAFI MAFTOON
Before Justice Cidalia C. G. Faria
Heard April 21, April 23, July 6, August 24, 2021
Reasons for Judgment released November 12, 2021
Brianne Bovell Counsel for the Crown
Stephen Whitzman Counsel for the defendant
Faria J.:
INTRODUCTION
1Mr. Maftoon is charged with committing an indecent act in a public place, and with exposing his genital organs for a sexual purpose to a person under the age of 16 contrary to sections 173(1) and 173(2) of the Criminal Code.
2Counsel for Mr. Maftoon made no submissions on the indecent act count, but disputes whether the Crown has proved beyond a reasonable doubt Mr. Maftoon exposed his genitals for a sexual purpose to the specific child named in the Information.
EVIDENCE
3The Crown called six adult witnesses: two lifeguards; the parents of a ten-year old at the pool; and two arresting officers.
4Four civilian witnesses testified to observing Mr. Maftoon place his hand in his underwear and masturbate and expose his penis and masturbate, while walking on the deck of the busy, family friendly Grandravine Community Centre outdoor swimming pool on July 6, 2019.
5Two officers testified to observing Mr. Maftoon nude and masturbating in the backseat of his vehicle parked within 10 feet of an open linked fence by the pool when they came to investigate the incident.
6None of the witnesses were shaken on cross examination on any substantive point of their evidence.
i. Sarah Pezzutto
7Sarah Pezzutto was the head lifeguard working that day. She described the outdoor, city-run pool as busy with between 45 and 55 patrons on that hot July afternoon. “Families bring their little ones and kids under the age of 10 come there primarily because it’s the shallow, shallowest pool in that area.”
8She testified a patron, later identified to be Mr. Maftoon, attended the pool in his grey underwear. Toward the end of the day she was alerted he had an erection while in the shallow end where smaller children are. She walked to the area, took down an umbrella and while “staring” at her, she saw his “hands enter his grey underpants and he started, like, masturbating inside the pool”. “All the families (were) still in the pool area”, including children.
9Ms. Pezzutto blew her whistle to get everyone out of the pool. She then observed Mr. Maftoon “took down his shorts and started masturbating, like, on the deck where families could see him.” She “clearly saw his hand in his underpants masturbating, and when he was on deck, he pushed his shorts down so I saw his full entire penis.”
10Mothers approached her and she heard a patron yell at Mr. Maftoon. He got dressed and went to his car in the parking lot. She called 911. She observed he “re-parked his car closer to the pool deck”, “shut off his car, and got out of the front seat to go into the back seat of his car” where she “could still see the outline of his taking off his clothes”. Police then arrived.
11Ms. Pezzutto noted Mr. Maftoon was alone, “he was also looking at the younger girls in the pool”, he was “looking at these individual girls and women. His eyes were on their body”, and “he talked to a little girl in the deep end” who was “probably around nine” years old “face-to-face” about a foot apart.
12Ms. Pezzutto was a credible and reliable witness who presented thoughtful and detailed evidence taking care to be accurate. Though she was “scared” at the time, and while testifying articulated her discomfort in Mr. Maftoon’s presence, she was professional and impartial in her testimony. I accept her evidence.
ii. Kelly Hang
13Ms. Hang was also working as a lifeguard at the Grandravine outdoor pool that afternoon and described it as busy with around 30 people including “parents with their kids”.
14Near the end of the day, she described “parents looking at the, a specific side of the pool, very very worried’ and observed parents distressed about a man at the pool. The man, Ms. Hang noted was alone and wearing grey underwear.
15After the whistle blew to get everyone out of the pool before closing, Ms. Hang observed him “walking around the deck area” with his hand “on his penis”, “right inside the underwear area” and his “hand was moving up and down in his pant, in his underwear”. She observed this twice. Once when he was “right behind the guard, the head guard on the pool deck. The second time was when the pool was getting cleared and he walked around the pool deck”. She did not specifically see the man’s penis.
16Testifying in a straightforward manner, Ms. Hang is a credible and reliable witness.
iii. G.M.
17G.M. testified he, his wife, A.B., and their ten-year-old son at the time, D.M., were at the Grandravine outdoor pool the afternoon of July 6, 2019.
18At about 4:45- 5:00pm he was sitting with his wife at the border of the swimming pool when he observed a man, later identified as Mr. Maftoon, take off his shorts, his top, and his sandals, put his keys in his sandals, and enter the pool in his grey boxers. He stated “me, my wife and my son were sitting on the wall with our legs in the pool and he comes down the steps and got in the pool. So, he was about two feet away from us, in front of us.”
19G.M. testified Mr. Maftoon had his hand down his boxers, and stared “between my wife’s legs, touching himself under the water”. He was “jerking off”, “playing with himself”, while his son was “in the pool” “very close by”. He confirmed Mr. Maftoon looked “right in between” Ms. Pezzutto’s legs and was “playing with himself in the water” while staring at her. He also saw and heard Mr. Maftoon speak to a young girl he estimated to be 12- 14 years old.
20After the whistle at the end of the day, G.M. observed Mr. Maftoon “walking toward the opposite side of the pool with his boxers open and his penis hanging out and he was pulling on it” while his son was “on the pool deck, getting prepared to leave”. When asked how long he observed Mr. Maftoon masturbating his exposed penis, he responded “it takes about a minute and half to do that whole wall walk. It’s about a minute and a half, it was out hanging right in the open”.
21G.M. testified his son asked him about the man at the time Mr. Maftoon was walking on the deck with his penis exposed.
22G.M. observed Mr. Maftoon get dressed, go to his car, reverse it from a parking spot closer to the street, and go into a parking spot next to his own vehicle closer to the pool. Mr. Maftoon then got into the backseat of his vehicle and undressed. When police arrived, G.M. pointed them to Mr. Maftoon’ s vehicle and proceeded to watch police arrest Mr. Maftoon.
iv. A. B.
23A.B. testified she observed Mr. Maftoon get into the pool, walk to her, stare at her and “play with himself”. She observed him speak to a young girl, about 10 years old “around the same age” as her son, while his hand was in his shorts masturbating and while there were “many other children at the pool”.
24She testified he “got out of the pool and went along the back of the pool deck and had his penis out and playing with it. And there’s a bunch of kids there (inaudible) seen the whole thing. Sorry, including my child (inaudible).” “He had his boxers right down and he was, like, he had the whole thing out, and he was just jerking it off all over the deck. Like, he didn’t really care who saw that”. She testified her son, D.M. spoke to her about the incident. A. B. observed Mr. Maftoon get into his car, take off his shirt in the backseat, and believed him to be masturbating again before the police arrived on scene.
25A. B. was careful to testify to only what she clearly recalled. I accept her evidence.
v. Andrew Haworth
26Officer Haworth responded to a 911 call from an employee at the Grandravine pool at 6:03pm on July 6, 2019 and arrived on scene at 6:11pm. He located the black four-door Toyota Corolla described as the vehicle the male complained of had entered. He pulled directly in front of the vehicle. The side windows were tinted. The front windshield was not.
27Officer Haworth saw “a naked male in the backseat of the car through the front windshield”. The “male was playing with his genitals with his right hand.” Officer Haworth directed the male to put on his underwear, unlock the door and get out of the car. “Eventually” the male unlocked the vehicle door and got out wearing black underwear. He was placed under arrest after “pulling away” when being handcuffed.
vi. Richard Dermody
28Officer Dermody arrived with his partner Officer Haworth and approached Mr. Maftoon’ s Toyota Corolla. He saw Mr. Maftoon “lying down in the backseat, fully nude” “stroking his penis”. The rear of the car was about 10 feet from the chain linked fence that surrounds the pool. After Mr. Maftoon put on his boxer shorts and unlocked the vehicle door, Officer Dermody arrested him. Officer Dermody observed children present during this time.
POSITION of the PARTIES
29Counsel for Mr. Maftoon submits there is no evidence Mr. Maftoon intentionally exposed his genitals for a sexual purpose to 10-year-old D.M.
30The Crown submits the testimony of G.M. and A.B. who observed Mr. Maftoon expose his penis and masturbate on the pool deck in the presence of their son D.M. is evidence of the offence.
31In the alternative, the Crown submits Mr. Maftoon took a substantial risk of exposing himself to D.M., one child of many, present at the pool when he exposed his penis and masturbated.
LAW and ANALYSIS
32The relevant section reads:
s. 173. (2) – Every person who, in any place, for a sexual purpose, exposed his or her genital organs to a person who is under the age of 16 years… is guilty of an offence
33It is not challenged Mr. Maftoon exposed his penis and masturbated at a busy pool in the presence of children on July 6, 2019. The issue is whether there is evidence this exposure was for a sexual purpose, and if ten-year old year old D.M. saw this exposure.
34The cases referred to by counsel are not helpful to his position. In B.L. the child testified he dared Mr. B.L. to expose his penis in a game of ‘dare’, and Mr. B.L. did so. There was no evidence of masturbation during the incident. Hobin discusses “sexual purpose” in the context of the specific offence and decides against the defendant. Of note, Hobin states:
“The Crown does not have to prove that the child saw the accused’s genital organs (see R. v GB, 2015 ABQB 221, at paragraph 41)” [1]
“The words ‘sexual purpose’ are much broader in scope and are designed to protect children from genital organ exposure so as to protect their sexual integrity.”[2]
“the purposeful exposing of sexual organs by an adult to a child will almost always be for a sexual purpose.”[3]
35Both Counsel agree the binding authority is Berthe[4]. In that case, Mr. Berthe was convicted of exposing himself for a sexual purpose to two children. Mr. Berthe followed a family: two parents, a 9-year old child and a child in a stroller. While on the streetcar platform of a subway station, Mr. Berthe held a newspaper in front of himself. When the wind blew the newspaper, his exposed erect penis was seen by the parents of the children. His conviction was upheld.
36Justice Code states
“The accused was performing the act in the presence of two children, who were right in front of him, and he must have foreseen the certainty or substantial certainty that he would be seen. Whether they did see him or not is legally irrelevant as it is the accused’s intention that is in issue. There was evidence of an intent to “expose” himself to the children, in the dictionary sense of the word, as he took the substantially certain risk of allowing his penis to be seen. The trial judge was entitled to find, on this record, that there was an intent to expose his genitals to the children.”[5]
37In this case, the evidence is overwhelming. Mr. Maftoon pulled down his grey underwear, exposed his penis, and masturbated on the deck of the busy public pool in the presence of children. His intention and his sexual purpose were abundantly clear.
38Both D.M.’s father and mother testified their young son was present, observed Mr. Maftoon’ s conduct, and spoke to them about it.
39Mr. Maftoon demonstrated a clear and unequivocal intention to expose his genitals for the sexual purpose of masturbating in the presence of children under the age of 16. He also specifically did so to D.M., one of the many children present.
CONCLUSION
40I find Mr. Maftoon guilty of both indecent act in a public place, and of exposing his genitals for a sexual purpose to D.M., a person under the age of 16.
Released: November 12, 2021
Signed: Justice Cidalia C. G. Faria
Footnotes
- Hobin at paragraph 43
- Hobin at paragraph 52
- Hobin at paragraph 55
- R. v. Berthe, 2011 ONSC 6815
- Berthe, at paragraph 36