Court Information
Ontario Court of Justice
Date: December 22, 2017
Court File No.: Toronto Region #17-15006147
Parties
Between:
Her Majesty the Queen
— AND —
Ryan Pierce
Judicial Officer and Counsel
Before: Justice H. Pringle
Heard on: November 21, 2017
Reasons for Judgment released on: December 22, 2017
Counsel:
- A. Leggett, for the Crown
- J. Di Cecca, for the defendant
Judgment
Pringle J.:
Introduction
[1] Ryan Pierce pled not guilty to one count of Committing an Indecent Act in a Public Place contrary to s. 173(1) of the Criminal Code and one count of Failing to Comply with a Probation Order contrary to s. 733.1 of the Criminal Code. On the first count, the Crown says the defendant exposed his penis and masturbated both inside and outside a coffee shop, thereby committing an indecent act. On the second count, the Crown says that the defendant failed to keep the peace and good behaviour. Aside from the allegation of exposure and masturbation, the defendant was shouting and disturbing customers inside that Coffee Time. Indeed, a breach of the peace was conceded by the defence.
[2] The defence says that the sole civilian witness who testified was unreliable. He points to material inconsistencies in her account, and submits the Crown has not proven the components of an indecent act. The defence also argues a reasonable doubt exists as to whether the defendant understood the conditions of his probation, and that he should be acquitted.
[3] After considering the testimony of the three Crown witnesses – Masoumeh Babzadeh, PC Chase, and the defendant's probation officer – I have found the defendant not guilty of the offence of Indecent Act, but guilty of Failing to Comply with Probation by failing to keep the peace. These are my reasons.
Evidentiary Overview
[4] Back in 2015, Ms. Babzadeh, the sole civilian witness, ran a Coffee Time at Bloor and Jane in Toronto. She was most familiar with the defendant, who would come into the shop sometimes "ten times a day". He was a frequent and irritating presence there. Ms. Babzadeh believed the defendant to have some kind of mental health issue. She thus responded to the defendant's presence with patience, tolerance, and compassion. One only need look to her behaviour on the alleged offence date to see that.
[5] On September 7, 2015 at 6:30 a.m., Ms. Babzadeh started her shift at the coffee shop. The shop remained empty until about 7:00 a.m., when the defendant entered. He "did what he usually did when he came in", he laughed or smiled, and said something she did not understand. Ms. Babzadeh didn't know if he was speaking another language or mumbling to himself. When she came from behind the counter to serve, the defendant was seated. According to her testimony, his pants were unzipped, he was touching his penis and he was saying something unintelligible to her.
[6] Ms. Babzadeh was asked to explain this observation in detail throughout her evidence, and during her narrative I noted material inconsistencies to her account. For example, she initially testified that at approximately 7:30 a.m., when more and more customers were entering the store, the defendant unzipped his pants and started masturbating his exposed penis. Later in her evidence, she inconsistently said that no customers were in the store when this happened:
When he was in the shop making motion with pants, and you saw his penis, how many people were in the shop at this point?
At that time, it was least crowded time in the shop, there was nobody else in the shop at the time.
Just the two of you?
Yes.
[7] Contrary to her earlier testimony that she saw the defendant's exposed penis when she came from behind the counter to serve, Ms. Babzadeh also said that when she first made this observation, she was behind the counter and some 20 feet away.
[8] By the completion of her direct examination, Ms. Babzadeh was quite certain she had observed the defendant's pants unzipped and quite certain she had seen his exposed penis protruding from his pants. However, at the start of her testimony she said that when the defendant unzipped his pants, "I didn't look, exactly, but I guessed that he wasn't wearing any underwear and that he kept playing with his penis". She then described what she saw as "It looked like he was holding something and he kept rubbing it up and down".
[9] She also testified that she saw the tip of his penis in the shop, and after seeing this, she did not want to look in that area again for fear of encouraging him. Finally, in cross-examination, she acknowledged that she never told police she saw the defendant's penis at all, despite being asked this directly. When the police asked, "Did he expose his penis to you?", Ms. Babzadeh acknowledged her response was "I'm scared I didn't want to look, he just kept smiling at me while he was touching himself." Ms. Babzadeh explained this inconsistency by saying that she was too shy to talk, with police, about the defendant's penis. While I appreciate she is a modest woman, the fact that she selectively chose what version to tell police did not imbue her testimony with reliability.
[10] Ms. Babzadeh testified that she believed that the defendant was masturbating for 20 to 30 minutes. However she only saw the defendant make the "up and down" motion 3 or 4 times before asking him to leave. It was clear from her evidence that this 20 to 30 minute estimate was based on speculation, as opposed to observing it happen for 20 or 30 minutes.
[11] According to Ms. Babzadeh, the defendant left the shop when requested to do so, but then continued the same thing outside. More particularly, he stood outside the window, one hand knocking on the glass pane, the other hand in his pants. His pants were up, but the fly was unzipped and, Ms. Babzadeh asserted, he was touching his penis outside. Later, Ms. Babzadeh clarified that due to something blocking part of the window, she could not see the defendant's exposed penis, just the hand motion. This behaviour went on for a few minutes.
[12] For the next 3 or 4 hours, the defendant remained on scene and consistently aggravated Ms. Babzadeh's customers. He would come into the shop and tap his fingers on customers' tables. Ms. Babzadeh would ask him to leave, he would comply, and then he would come back in and do it again. Ms. Babzadeh testified that she was personally not afraid of the defendant. However, she feared losing business. So when customers asked her to call police, she called dispatch and sought some kind of mental health assistance. An ambulance attended, but when the defendant refused to go with them voluntarily, they left. The defendant then went back inside the coffee shop. He was shouting, swearing, and using the "f-word" frequently. Ms. Babzadeh called police again, they attended, and the defendant was arrested.
[13] Ms. Babzadeh was the only civilian witness called in this trial. PC Chase also testified for the Crown, as the officer on scene who responded to this second call. He arrived shortly before 11:30 a.m. There was a high volume of pedestrian and vehicle traffic. Across the street from the Coffee Time, near a bar called the Dark Horse, PC Chase saw the defendant. He had his hand down the front of his track pants, and was rubbing his pelvic region back and forth. PC Chase assumed the defendant's hand was gripping his penis, but this was an assumption only: the defendant's hand was inside the front of his sweatpants and thus entirely obstructed by fabric. PC Chase could not say whether the penis was erect or not, for the same reason. He also could not say whether the defendant was masturbating or pretending to masturbate. The defendant was agitated, yelling and then calm, and then yelling again. He kept his hand in his pants until PC Chase made a demand for him to remove it. The defendant complied, and then was arrested for Indecent Act and Fail to Comply Probation.
[14] Suzanne Narciso was the defendant's probation officer. She supervised him from January 18, 2015 until July 2016. One condition of this probation was that the defendant keep the peace and be of good behaviour. She met with him on February 12, 2015, to review the conditions of this order including the term to keep the peace and be of good behaviour. Mr. Pearce signed a document affirming that he understood the conditions he was bound by. He also indicated verbally that he understood the conditions. Each time she met with him afterwards, Ms. Narciso reviewed the conditions with the defendant to ensure he understood. Sometimes during their meetings, she acknowledged, the defendant would not appear to understand what was going on. When that happened, she would repeat herself. Her evidence did not establish any link between her review of the conditions with the defendant and the occasions when he appeared not to understand what was going on.
[15] The defendant elected not to testify or to call evidence.
Credibility and Reliability Findings
[16] All three of the Crown witnesses presented as credible, believable people. However, Ms. Babzadeh's evidence left me with reliability concerns. These were based upon:
(i) The inconsistencies about whether or not she actually saw the defendant's exposed penis, and her initial qualification that she didn't really look and that she was guessing;
(ii) The inconsistencies about whether customers were in the shop or not when she first observed the defendant with his hand in his pants;
(iii) The inconsistency between whether she was behind the counter serving customers, or had come from behind the counter to serve in the seating area, when she first observed the defendant with his hand in his pants;
(iv) Her occasional tendency to state her assumptions as fact. For example, she testified the defendant was masturbating for 20-30 minutes when clearly she was not looking at him for anywhere close to that period of time. Similarly, she asserted that the defendant was masturbating his penis while standing outside the coffee shop window, but then clarified that she could not see below his waist due to an obstruction across the window;
(v) Her explanation for the inconsistency between her statement to police and her trial testimony. As I stated above, I appreciate she may have been too shy to say words like penis to the police, but the fact was that she was directly asked if she saw his penis and she acknowledged in her testimony that she was not entirely forthright with police;
(vi) The lack of clarity on how, as she testified in re-examination, she could not see the defendant's hand because it was entirely inside his pants, but somehow could see the defendant's exposed penis which was held by that same hand. The inability to see the hand suggested to me that the defendant's hand was actually shoved down the waistband of sweatpants, like PC Chase later observed;
(vii) The minor difference I find between her description of the defendant's pants and PC Chase's description. Ms. Babzadeh said the pants remained up around the defendant's waist but were unzipped in the front. PC Chase described the pants as "track pants", and described the male with his hand down the waistband of his pants and that the hand was obstructed by the sweat pants.
[17] As a result, I was not satisfied that the defendant had exposed his penis or that Ms. Babzadeh had ever seen his exposed penis that day. I simply could not safely and reliably draw that conclusion to be fact based on her testimony alone. I could also not determine whether the defendant had his penis exposed while standing at the window, given Ms. Babzadeh's qualification that because of the obstruction, she could not see below the defendant's waist. She also fairly admitted that while the defendant was standing at the window, she was moving around the coffee shop, distracted to some extent by serving customers.
[18] Were Ms. Babzadeh the only Crown witness, the indecency count would have ended there. However, PC Chase corroborated Ms. Babzadeh's testimony to some degree, despite the temporal separation between the two witnesses' observations. I have accepted his testimony as accurate and true. Shortly before 11:30 a.m., PC Chase saw the defendant, across the street, with his hand inside his pants and making a 'back and forth' motion. Although PC Chase assumed the defendant was masturbating, in cross-examination he acknowledged that because the hand and penis was entirely covered, the defendant could have been faking it.
[19] Considering all the evidence, but particularly the inconsistencies in Ms. Babzadeh's account, PC Chase's description of the defendant's sweat pants entirely covering his hand and his genitals, I have found as fact that inside the Coffee Time, the defendant had his hand down the waistband of his pants and was making arm gestures similar to masturbation. Inside the Coffee Time, I have found the evidence established only a brief timeframe for this behaviour – although Ms. Babzadeh presumed the defendant had been masturbating for 20 or 30 minutes, she actually saw only 3 or 4 arm motions before she asked him to leave.
[20] I am not confident about what the defendant was doing while standing outside the window, except that he was tapping on it and disturbing the peace immensely. I do accept PC Chase's testimony about what he saw at 11:30 am as true and accurate, as well as his qualification that the defendant may or may not have been masturbating.
Legal Framework: The Test for Criminal Indecency
[21] This left me with this question – if the defendant was faking or simulating masturbation, did it constitute an indecent act? Unsurprisingly, the Crown said yes and the defence said no. Both referenced the seminal case of our Court of Appeal in R. v. Jacob (1996), 112 C.C.C.(3d) 1 (Ont. C.A).
[22] The appellant in Jacob was a young lady who, on a hot summer day while walking down the street, took her shirt off. Unlike two males walking on the same streets with their shirts off, Jacob got arrested and charged with committing an indecent act. The arresting officer explained the gender difference to Ms. Jacob by stating "society doesn't view that as that act (the shirtless males) being wrong". One local resident scurried to get her young children away, and expressed the opinion it was "dirty" for women to expose their breasts. Another confronted the appellant to ask if she had "any decency". Clearly, the immediate community around Ms. Jacob felt that she was acting indecently.
[23] This small political protest, or simple attempt to cool off on a hot day, depending on how one looks at it, turned into levels of court analyzing the meaning of an 'indecent act'. At the Court of Appeal level, the answer was not found in the personal opinions of the witnesses that what Ms. Jacob was doing was "indecent", "dirty", or "disgusting". In order for an act to be 'indecent', that act must exceed the community standard of tolerance. This, in turn, must be necessarily grounded in some evidence of harm (at paras. 35-36, 41-42):
In Butler, Sopinka J. plainly stated that the concept of 'harm', is central to the community standard of tolerance analysis. He said at p. 150:
The courts must determine as best as they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse…The stronger the inference of a risk of harm the lesser the likelihood of tolerance. The inference may be drawn from the material itself or from the material and other evidence.
It follows from Butler that in applying the community standard of tolerance test, the court must consider what harm will accrue from exposure to the allegedly obscene act or material. The correlation is inverse in the sense that the greater the harm that may flow from a particular exposure, the less the community will tolerate others being exposed to it. Tolerance cannot be assessed independently of harm."
In R. v. Mara, Dubin C.J.O., after referring to Butler and Towne Cinema Theatres Ltd. v. R., [1985] 1 S.C.R. 494, concluded that the community standard of tolerance test was the relevant test for indecency and that harm as defined in Butler was central to the community standard of tolerance analysis. He said at p. 650:
In my opinion, the same test of harm [as in Butler] applies in determining whether a performance is indecent.
In R. v. Hawkins (1993), 86 C.C.C. (3d) 246, leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi (S.C.C.), this court held that it was incumbent upon the Crown to prove that the impugned material created "a substantial risk of harm".
[24] The end result in Jacob was that, despite the opinions of various community members that the appellant's act lacked 'decency', she was acquitted because there was "no evidence of harm (that was) more than grossly speculative". (para. 53).
[25] Subsequent to Jacob, the Supreme Court in R. v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728, analyzed the test for criminal indecency and also found in favour of a harm-based approach, while shaking loose the label of "community standards of tolerance". In Labaye the Court considered whether a members-only swingers club was guilty of keeping a common bawdy house for the practice of acts of indecency. McLachlin J. for the majority summarized the test to be met as follows:
[62] Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:
- That by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b) predisposing others to anti-social behaviour, or
(c) physically or psychologically harming involved in the conduct, and
- That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.
At para. 70, McLachlin J. also noted that where the evidence established no actual harm, the risk of harm presented by the activity must be a substantial risk or this essential element would not be met.
Application of the Test to the Case at Bar
[26] The harm-based analytical framework in Labaye is binding upon me[1], and I must apply it to the evidence in the defendant's case. Again, I have concluded that inside the Coffee Time, the evidence established at its highest that Ms. Babzadeh saw the defendant with his hand inside his pants and observed a few seconds of arm motions consistent with masturbation or simulated masturbation before she stopped looking. Outside the Coffee Time, hours later, PC Chase saw the defendant with his hand inside his pants and also observed a few seconds of arm motion consistent with either actual or simulated masturbation.
[27] Taking all of the evidence into account, I am not satisfied the Crown proved either actual harm or a substantial risk of harm here. This is not to say that actual or even simulated masturbation is never a criminally indecent act, but rather that on this evidentiary record, the offence was not made out. Ms. Babzadeh was the only civilian to testify. She may have been the only person inside the coffee shop when she first observed the defendant appearing to masturbate. She was not afraid of the defendant. She did not seem to take what he was doing to be some kind of sexual message or response to her, and although a sexual context is not required to establish an indecent act, the absence of any perceived sexual context remains relevant to the consideration of harm.
[28] In Ms. Babzadeh's first call to 911, she sought medical assistance for some kind of perceived mental health issue. Clearly, from her own perspective she saw what was going on, initially, as requiring medical intervention as opposed to police intervention. There was no evidence the masturbation or simulated masturbation was curbing customer traffic, and no evidence that anyone else even noticed it. While hearsay evidence referenced one customer in the coffee shop who was perturbed by the defendant's general behaviour, I could no more rely on that than I could the hearsay statement from the Dark Horse bartender that he observed no indecent act.
[29] My finding that there was no evidence of harm or risk of harm is fatal to the Crown's case on indecent act. I could not find that a criminally indecent act, as defined in the jurisprudence, was made out on this evidence beyond a reasonable doubt. To be clear, this conclusion is case-specific and not intended to have wider application. It may be the case that on some other evidence, simulated masturbation in a public place will constitute an indecent act. But not in this case.
[30] I have based this conclusion on the factors set out above in paragraph 26, as well as on the following additional factors: the evidence did not establish his penis was exposed in the coffee shop; at its highest the defendant had his hand down the front of his sweatpants like PC Chase described; the act itself was brief; and that it was unclear whether the defendant was masturbating or simulating it, or even, given that the defendant kept his hand in his pants after PC Chase arrived, scratching a persistent itch or rash. Harm or substantial risk of harm being an essential element in proving criminal indecency, it follows that the defendant must be found not guilty on the Indecent Act count.
Failing to Comply with Probation
[31] I reach a different conclusion on the Fail to Comply with Probation charge. Setting aside whatever was happening with the defendant's hand and his pants entirely, his behaviour in the coffee shop was an obvious breach of the peace. The defence properly conceded this. The defendant was shouting, using loud profanities, and tapping at the customers' tables. This went on for hours before Ms. Babzadeh called 911 for medical help.
[32] The only real issue advanced by the defence on this count was that it was possible the defendant had not understood the conditions when they were explained to him. Although the defendant's probation officer testified that occasionally the defendant seemed not to comprehend what she was saying, there was no link between those moments where he appeared to lack comprehension and the times she reviewed his probation conditions with him. To the contrary, he signed a document affirming his understanding of the conditions and told her he understood. She reviewed the conditions not once, but each time they met.
[33] I am convinced that the defendant understood he was bound by a probation order and that he knew what those conditions were, including the fact that he was bound to keep the peace and be of good behaviour. His behaviour inside and outside the coffee shop breached the peace without reasonable excuse.
Verdict
[34] Accordingly, the defendant will be found guilty on the count of Fail to Comply Probation and not guilty of the count of Indecent Act.
Released: December 22, 2017
Signed: Justice Heather Pringle
[1] For specific application of the Labaye test to s. 173 of the Criminal Code, see R. v. Coldin, [2012] O.J. No. 1009 (C.J.), at paras. 56 and 57; affirmed on other grounds [2013] ONSC 6602.