Court File and Parties

Ontario Court of Justice

Date: 2016-09-28

Court File No.: Oshawa 2811-998-14-14787-00

Between:

Her Majesty the Queen

— and —

Robert Chang

Before: Justice M. Block

Heard on: June 13, 2016 and September 8, 2016

Reasons for Judgment released on: September 28, 2016

Counsel:

G. Hendry — counsel for the Crown

F. Glaizghi — counsel for the accused Robert Chang

Judgment

Block J.:

[1] At 11:41 AM on November 30, 2016 Robert Chang attended the La Senza store at 1899 Brock Road, Pickering. La Senza is a well-known retail chain which exclusively sells women's undergarments. Ms S.B., attending the store in the company of her eleven year old daughter, made a complaint to the store manager that Mr Chang exposed his erect penis in their immediate presence. Police attended and Mr Chang was arrested and removed from the store at 1:16 PM. He stands charged with wilfully committing an indecent act in a public place in the presence of one or more persons contrary to section 173(1) of the Criminal Code.

[2] The store manager, Ms Nicole Blake, testified. She did not see the alleged exposure. She recalled that Mr Chang wore unusual yellow pants. After the defendant had been in the store for approximately 30 minutes Ms Blake, as a result of information of his behaviour that she had received, attempted to keep an eye on him by means of the store video system. She said that her view of Mr Chang was obscured by merchandise bins, "dead zones" in the surveillance system and the defendant's practise of keeping a garment in front of his trousers. She did see Mr Chang move throughout the store for approximately 45 minutes.

[3] Ms S.B. was in a lingerie aisle with his daughter. Their attention was drawn to Mr Chang standing in the same aisle with his erect penis exposed approximately three feet away. She did not know whether the penis was displayed through an open fly or over the top of Mr Chang's yellow K-Way type pants. Under cross-examination Ms S.B. rejected the suggestion that she saw a dildo. She was certain the object in question was a penis.

[4] She was shocked at this conduct but it was apparent that her account was not warped by her outrage. She told the court that she did not want this episode to be her daughter's first encounter with an erect penis. Her evidence was given without any apparent exaggeration. Indeed it was not contended by the defence that her account was inaccurate or mistaken except in one essential respect: The defendant maintained that the object viewed by Ms S.B. and her daughter was not his penis but a penis-shaped six inch lump of brown silicon caulking.

[5] The defendant said that the caulking was a by-product of his work preparing houses for sale. A tube of silicon caulking had broken and the contents had hardened into the suggestive shape described above. This event had caused general merriment at work. It was unclear why Mr Chang had kept this item or why he had it in his vehicle on the date of the alleged offence. He testified that he had entered the store with the intention of buying matching erotic lingerie for himself and his new girlfriend. He brought the caulking into the store so that he would be able to see how his penis looked in the lingerie.

[6] Mr Chang contended that he would have been unable to produce the erection in question. He said he has suffered from erectile dysfunction well before the alleged offence. He was adamant that this condition has been an ever-present impediment to successful relationships in his adult life. He testified that because of this issue he sought to delay the initiation of any sexual component to his relationship with his new girlfriend. His counsel entered into evidence several documents indicating that he had reported erectile dysfunction to medical professionals in the relevant time period. There is no independent confirmation, either in these exhibits or by other evidence, that the defendant actually has these difficulties on either a constant or intermittent basis.

[7] The evidence advanced by the defendant begged the question of why it was necessary to buy the lingerie sought, much less manipulate the lingerie around a crude artificial erection in a public area. The defendant was unable to coherently respond to pointed cross-examination on this issue.

[8] The defendant testified that his penis was of very modest dimensions and would not have been visible beyond the fly of his trousers even in an erect state. I found that this evidence undermined his earlier claim that he required a six-inch silicon facsimile of his penis to model lingerie.

[9] The defendant testified that he left the lingerie-wrapped caulking in one of the merchandise bins while being escorted from the store on arrest. A store video entered into evidence captured the sequence of events immediately after Mr Chang's arrest. In the video, Mr Chang is seen holding what appears to be a pair of trousers in front of his waist as he is being lead from the store. As he left he deposited the trousers on top of a merchandise bin. This evidence contradicts the defendant's testimony.

[10] After this incident store staff searched the areas of the store and the merchandise bins where Mr Chang lingered or travelled. They found much underwear left in an unmarketable condition, but they found no silicon dildo.

[11] On search subsequent to arrest Mr Chang was found to be wearing no underwear.

[12] A criminal trial is not a credibility contest. If I accept the evidence proffered by the prosecution and reject the defence evidence, I must still acquit if the totality of the evidence leaves me with a reasonable doubt.

[13] I found the account of Ms S.B. to be accurate, reliable and undamaged by cross-examination. I have no doubt that this mature woman saw Mr Chang's erect exposed penis and not a crude silicon facsimile. The circumstances under which she saw it could only be consistent with an intent by the defendant to cause shock and dismay in those who encountered him in that state.

[14] The defendant remained in the store for an unusually long amount of time for a man who said he was interested in garments only for his stated purpose. He was aware La Senza carried only feminine lingerie and was patronized by an overwhelmingly female clientele. I don't believe that Mr Chang's decision to go "commando-style" was a coincidence. The absence of underwear would have facilitated rapid deployment of his genitalia. The garment held in front of his waist area would have screened his exposed penis until his audience was in immediate proximity. Mr Chang's account of the use of the purported caulking was a farcical concoction. His testimony was riddled with bizarre contradictions. I reject his evidence in every respect. It leaves me with no doubt of his guilt whatsoever. He stands convicted.

Released: September 28, 2016

Signed: Justice M. Block