Court File and Parties

Court: ONTARIO COURT OF JUSTICE Date: 2022-08-08 Court File No.: Halton Info #1211200 1908

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRIAN GRACI

Before: Justice Jennifer Campitelli Heard on: July 27 & 28, 2022 Reasons for Judgment released on: August 8, 2022

Counsel: Victoria Reid, for the Crown Robert Brooks, for the accused Brian Graci

CAMPITELLI J.:

[1] Brian Graci faces one count on the information, which is before the court: That he:

(1) On or about the 1st day of June in the year 2020 at the Town of Oakville in the said region, willfully did an indecent act, to wit: expose his private parts in a public place, to wit: the business DRMG Oakville, in the presence of Corina Sharpe, contrary to section 173(1) of the Criminal Code of Canada.

Factual Background

[2] For the most part, the facts are not in dispute. On June 1, 2020, shortly before 10:15 a.m., Mr. Graci was seated on a rock in a public courtyard at the business address of 240 Wyecroft Road in Oakville, Ontario. While holding his phone in his left hand, he began to masturbate with his right hand. This was an intentional act, which was observed by Corina Sharpe, an employee of DRMG, who observed Mr. Graci from the window of her place of business.

[3] There is no dispute between the parties that Mr. Graci was located in a public place, that the act of masturbation he engaged in was intentional and that it was observed by Corina Sharpe, who was an employee of DRMG, Oakville. The parties agree that the “actus reus” of the offence has been made out on the facts. The issue I have to decide has been narrowed significantly. Specifically, I must determine whether an intention to be seen is required for Mr. Sharpe to be convicted under s. 173(1) of the Criminal Code of Canada. Or, whether an indifference or recklessness as to the presence of others suffices to establish that the indecent act was done “willfully” in the presence of others.

The Evidence of Corina Sharpe

[4] Ms. Sharpe provided evidence to the court in a clear and straightforward manner. Ms. Sharpe testified that she first observed Mr. Graci on June 1, 2020, as he passed by her office window. Under cross examination, Ms. Sharpe testified that she believed Mr. Graci was able to see her as he walked by the doors and thus, became aware of her presence. After careful thought, I have concluded that I do not have enough evidence on this record, either direct or circumstantial, to find as fact that Mr. Graci became aware of Ms. Sharpe’s presence when he walked by the window. I do not have any evidence of the two parties making eye contact or interacting with one another in any way at that time. Moreover, Officer Kenny testified that the glass on the building was reflective in nature. Specifically, the glass made it difficult for observations to be made of the building’s interior.

[5] Once Mr. Graci had caught Ms. Sharpe’s attention that day, she decided to keep her eye on him. She described peeking out of the window periodically and for short periods of time to achieve that purpose. While making her observations of Mr. Graci, in the public courtyard, Ms. Sharpe testified that she was approximately twelve to thirteen feet away.

[6] Initially, Ms. Sharpe observed Mr. Graci urinating on a bush in the courtyard, which caused her some concern. A short time later, Ms. Sharpe made observations, which resulted in her concluding that Mr. Graci was masturbating. Ms. Sharpe testified that Mr. Graci was seated on a rock and turned to face the building where she was located. Ms. Sharpe could see his pants were down around his ankles and from the hand motions Mr. Graci was making in the area of his groin with his right hand, it was clear to Ms. Sharpe that he was masturbating. She immediately notified the Halton Regional Police Service and Officer Kenny arrived approximately five minutes later. Of note, Ms. Sharpe never had to leave her place of business to make any of the observations outlined above.

[7] Ms. Sharpe did not bang on the glass to get Mr. Graci’s attention, nor did she confront Mr. Graci directly about his actions that day. Ms. Sharpe agreed that Mr. Graci was looking at his cell phone while he was masturbating. He was not looking at the building or her personally. Additionally, Ms. Sharpe conceded that, while she had an unobstructed view of Mr. Graci from where she stood, there would be areas of the building where the greenery would cause an obstruction.

The Evidence of Officer Kenny

[8] Office Kenny of the Halton Regional Police Service arrived on the scene at 10:15 a.m. He was looking for a male who was homeless and masturbating. He testified that the public roadway is approximately thirty to thirty-five feet from the font entrance of the building located at 240 Wyecroft Road, Oakville. Officer Kenny described the pedestrian and the vehicle traffic on June 1, 2020 as “medium”. Officer Kenny could not recall if there were any cars in the area of the business; however, he indicated that there was a Burger King thirty to thirty-five feet east of the address, which was operational.

[9] Officer Kenny testified that he was able to see Mr. Graci seated on the rock in the reflective glass immediately when he pulled into the parking lot. Officer Kenny walked along the building’s sidewalk and approached Mr. Graci. He testified that, once he got within six feet of Mr. Graci, it was evident that he was masturbating with his right hand. Mr. Graci was facing the building and his pants were down. From where Officer Kenny was positioned when he made those observations, he testified that he was able to see the Burger King restaurant. It was also the evidence of this Officer that, not only could he see the restaurant that day, but he could see members of the public at the restaurant. I accept this evidence.

[10] Officer Kenny called out to Mr. Graci and he quickly stopped what he was doing and pulled up his pants. Mr. Graci immediately apologized for his actions. At this point, Officer Kenny indicates he can see the public roadway from where he is standing.

The Applicable Legislation

[11] Section 173 of the Criminal Code of Canada reads as follows:

173. (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or

(b) is guilty of an offence punishable on summary conviction.

[12] Of note, the wording of this offence has been amended. The 1892 wording reads as follows:

205. Every one is guilty of an offence and liable, on summary conviction before two justices, to a fine or fifty dollars or to six months' imprisonment with or without hard labour, or to both fine and imprisonment, who wilfully, . . .

(a) in the presence of one or more persons does any indecent act in any place to which the public have or are permitted to have access;

The Legal Framework

[13] There appears to be an ongoing mens rea legal debate as to whether the word “willfully” in s. 173(1) of the Criminal Code of Canada applies to the commission of the indecent act itself, or whether it also applies to doing so in the presence of one or more persons: R v. Kalas [2017] O.J. No. 5214 at para. 9 (OCJ). After my review of the relevant authorities, I agree with my colleague Justice Letourneau, that there appears to be no binding authority, which compels me to adopt either interpretation. It was Justice Letourneau’s conclusion in Kalas that the mens rea element requires proof of intent to:(a) perform the indecent act; (b) in a public place; and, (c) in the presence of one or more persons: R v. Kalas [2017] O.J. No. 5214 at para. 10 and 35 (OCJ).

[14] In R. v. Sloan, [1994] O.J. No. 758 (ONCA) Justice Galligan finds that there was no intention on the part of the appellant to perform a sexual act in the presence of any person other than the driver of the car. However, in reaching that conclusion, Justice Galligan also points out that, had the police officer not sneaked up on the car to see what was going on inside it, no one would have seen or been aware of the sexual activity taking place: R v. Sloan [1994] O.J. No. 758 at paras. 8 and 9 (ONCA). Moreover, Justice Galligan does not specifically comment on the mens rea requirement of an offence under s. 173 of the Criminal Code of Canada. Certainly, he does not indicate that an indifference or recklessness as to the presence of others would not be sufficient to establish that the indecent act was done “willfully” in the presence of others. Significantly, the facts Sloan are very distinguishable from the facts before me.

[15] The facts in R v. Summers [2007] A.J. No. 562 (Alberta Provincial Court) are very similar to the facts before me. Although I appreciate this judgement is not binding on me in any way, I find the decision of Justice Barley very instructive on these specific facts. In particular, paragraphs 20 and 21:

[20] I find that an intention to be seen is not required for an accused to be convicted under Section 173(1)(a). An indifference or recklessness as to the presence of others must suffice to establish that the act was done wilfully in the presence of others. A person masturbating in a situation in which he could not be sure whether he was being viewed, must be responsible for his actions, if a member of the public does in fact see the indecent act.

[21] There may be instances in which a person could say with absolute certainty that they could not be seen, but the present case is not one of them. Looking to another side does not preclude being approached from the other. More importantly, the accused knew that he faced an office building with windows that would allow a person to see his actions. He clearly hoped that no one would see him, but that hope was not realistic. It might be a different result if the act was performed in the middle of the night, when the presence of others might be extremely unlikely, but masturbating on a bench in a courtyard facing different banks of windows during the lunch hour, when people are sure to be around establishes the requirement that the act be done wilfully in the presence of another. It is not enough to hope that no one can observe the act, and in this case that is all that the accused can say.

[16] Similarly and very recently, on the facts in R. v. D’Allaire [2021] Q.J. No. 187 (Municipal Court of the City of Montreal), the court could not conclude that the evidence established the accused person attempted to expose his indecent actions to other persons voluntarily. However, the court did find that the evidence certainly proved he did so negligently or recklessly. Ultimately, the court found the accused guilty of an offence contrary to section 173 of the Criminal Code of Canada: R. v. D’Allaire [2021] Q.J. No. 187 (Municipal Court of the City of Montreal) at para. 57, 68. That conviction was upheld on appeal: D’Allaire v. R. [2021] Q.J. No. 29735.

Position of the Parties

[17] On behalf of the crown, Ms. Reid argues that Mr. Graci became aware that Ms. Sharpe was at her place of business when he initially passed by her office window. Consequently, she submits the crown has proven Mr. Graci intentionally masturbated in her presence. In the alternative, Ms. Reid argues the crown has proven Mr. Graci was at least reckless with respect to the presence of others when he performed the indecent act. In particular, Ms. Reid draws the court’s attention to the fact that this event took place just after ten o’clock in the morning, in an area where Officer Kenny described the vehicle and pedestrian traffic level as “medium”. She further highlights Mr. Graci’s proximity to the public roadway and the Burger King restaurant, which Officer Kenny indicated was operational on June 1, 2020. Moreover, Ms. Reid submits Mr. Graci’s positioning on the rock, with his body facing the office building is critical to my analysis. It is the crown’s position that being indifferent or reckless as to the presence of others is sufficient to establish that the indecent act was done “willfully” in the presence of others.

[18] On behalf of Mr. Graci, Mr. Brooks urges me to adopt Justice Letourneau’s interpretation of the applicable mens rea requirement in R. v. Kalas. Mr. Brooks stresses that Mr. Graci is homeless and has no privacy available to him. He argues this event took place in the midst of the COVID-19 pandemic, when there was very little public activity. Moreover, Mr. Brooks points out that Mr. Graci was looking at his phone and was completely unaware that he was being observed, which is why he was so startled when Officer Kenny called out to him. Mr. Brooks doesn’t dispute Mr. Graci was clearly visible to Ms. Sharpe; however, encourages the court to consider that he would not have been observable from all angles. Mr. Brooks stresses that Ms. Sharpe fairly conceded the courtyard would have provided some obstruction depending on the individual vantage point.

Analysis/Conclusion

[19] Since both parties agree that the actus reus of the offence has been made out, I will focus my analysis on the mens rea element. Determinations of this nature will always involve a fact specific, contextual analysis. On the specific facts before me, shortly after ten o’clock in the morning, in a public courtyard, a mere twelve to thirteen feet from Ms. Sharpe’s place of business, Mr. Graci began to masturbate. His pants were around his ankles, and he was positioned to face the building where DRMG Oakville is located. I have nothing on the evidence before me to suggest that Mr. Graci made any attempt to conceal the indecent act, he was participating in. If he was obstructed in any way by the greenery in the courtyard that morning, it was due to chance and individual vantage points. What is clear, is that he was approximately thirty to thirty-five feet away from a public roadway and an operational Burger King restaurant. The vehicle and pedestrian traffic in the area that morning was described as “medium”.

[20] Ms. Sharpe observed Mr. Graci masturbating from the window in the reception area located at her place of employment. She did not sneak up on Mr. Graci or require the use of binoculars to make the observations that she did. She merely had to peek out of the window at her place of business, during regular business hours. I find these facts are significant to the analysis I must engage in.

[21] I am not able to find that Mr. Graci intentionally masturbated in the presence of Ms. Sharpe on June 1, 2020. On the facts before me, I cannot conclude that he became aware of her presence when he initially passed by her office window. However, I do find that he was indifferent or reckless as to the presence of others, including Ms. Sharpe. In the result, I have concluded that is sufficient to establish that the indecent act was done “willfully” in the presence of others on these facts. If Mr. Graci hoped that his actions would not be observed by a member of the public that morning, that hope was ill-founded.

[22] The facts before me demonstrate that a purposive approach to the legislative framework is required in order to determine whether the indecent act was done “willfully” in the presence of others. Similar to Justice Osborne’s dissent in R. v. Sloan, I find Parliament’s amendment to this section to be instructive on the analysis I must undertake to determine whether the mens rea element of the offence has been met. The rewording of this section, in particular the re-positioning of the term “willfully” within the wording of s. 173(1), demonstrates Parliament’s intention to criminalize intentional acts of indecency committed in places where the public could reasonably have access to: R. v. Sloan, [1994] O.J. No. 758 at paras. 42, 44, 46 (ONCA). Interpreted in this manner, the mischief sought to be prevented by the provision – indecent acts committed in public view – is fully addressed.

[23] In the result, I find Mr. Graci guilty.

Released: August 8, 2022 Justice Jennifer Campitelli