Ontario Court of Justice
His Majesty the King v. David Hunte-Green
Date: 2025-07-22
Location: Toronto
Before Justice Mara Greene
Counsel:
- For the Crown: M. Rieger
- For David Hunte-Green: B. Irvine
Reasons for Judgment
Greene, J:
[1] Mr. Hunte-Green is charged with committing an indecent act in a public place and two counts of breaching probation. It is alleged that on May 7, 2024, Mr. Hunte-Green masturbated under his clothes in a public elevator in front of Ms. Ginsberg. He was on multiple probation orders at the time to keep the peace and be of good behaviour. Two issues arose at trial. First, whether the Crown proved beyond a reasonable doubt that Mr. Hunte-Green did in fact masturbate in that elevator and second, whether masturbating under one’s clothes in a public elevator is in fact an indecent act. On June 26, 2025 I found Mr. Hunte-Green guilty with reasons to follow. These are my reasons.
[2] On May 7, 2024, Ms. Ginsberg attended at an office building located at 27 Queen Street East to meet with suppliers and an appraiser. Mr. Hunte-Green entered the elevator after Ms. Ginsberg. The doors closed with only the two of them in the elevator.
[3] Ms. Ginsberg testified that upon entering the elevator, she pressed the button for the 14th floor. Mr. Hunte-Green, who was unknown to Ms. Ginsberg at the time, entered the elevator seconds after she did. He pressed the button for the 12th floor. According to Ms. Ginsberg, Mr. Hunte-Green had a condom wrapped around two of his fingers on his left hand. He then put his hand into his pants and started to masturbate. Even though Mr. Hunte-Green’s penis was not exposed, Ms. Ginsberg testified that she knew he was masturbating because she saw him put his right hand into his pants and touch what Ms. Ginsberg described as a bulge in his pants. He then moved his hand back and forth rubbing the bulge.
[4] Ms. Ginsberg exited the elevator when the doors opened on the 12th floor in order to get away from Mr. Hunte-Green as she was scared. Despite having pressed the 12th floor, Mr. Hunte-Green did not exit the elevator on this floor.
Issues raised at trial
A) Has the Crown proven beyond a reasonable doubt that Mr. Hunte-Green did in fact masturbate in the elevator?
B) Does Mr. Hunte-Green’s conduct amount to an indecent act in law?
A) Has the Crown proven that Mr. Hunte-Green masturbated in the elevator?
[5] In every case the Crown is required to prove every essential element of the offences beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Hunte-Green is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
[6] In the case at bar, Ms. Ginsberg testified that in her opinion Mr. Hunte-Green masturbated in the elevator under his clothes. Her opinion was based on her observation of Mr. Hunte-Green putting his hand in his pants, putting his hand on his penis and rubbing it. When asked to explain why she believed Mr. Hunte-Green was masturbating, Ms. Ginsberg testified that she could see the action through his pants. She saw a bulge in his pants, Mr. Hunte-Green put his hand over the bulge and then moved his hand back and forth. While there was a video of the inside of the elevator, it did not capture Mr. Hunte-Green’s actions. What is visible from the elevator video is that Ms. Ginsberg was very close to Mr. Hunte-Green and had a good opportunity to observe him. She had an unobstructed view of the front of his body for the 50 seconds that they were in the elevator.
[7] In my view the Crown has proven beyond a reasonable doubt that Mr. Hunte-Green was masturbating under his clothes. I found Ms. Ginsberg to be an honest and reliable witness, who took great care in explaining her observation and the reasons for her conclusion. She had an unobstructed view of Mr. Hunte-Green for approximately 50 seconds and described seeing a bulge in Mr. Hunte-Green’s pants that Mr. Hunte-Green proceeded to rub. I accept Ms. Ginsberg’s evidence and have no doubt that what she witnessed was Mr. Hunte-Green rubbing his penis under his pants.
B) Has the offence of Indecent Act been made out?
[8] Counsel for Mr. Hunte-Green argued that even if Mr. Hunte-Green did masturbate under his clothes in the elevator, this does not make out the offence of indecent act since his penis was never exposed.
[9] In R. v. Labaye, 2005 SCC 80 at paragraph 62, the Supreme Court of Canada summarized the test for indecency 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 persons 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.
Step 1 – Conduct causes harm or presents a significant risk to individuals.
[10] There are a number of cases where the courts have found that masturbating in public with genitals exposed is an indecent act. For example, in R. v. Smith, 2021 ONCJ 650, Silverstein J. held that masturbating in a public place with one’s penis exposed is an indecent act as it “clearly confronts members of the public with conduct that significantly interferes with their autonomy”. The case at bar differs from all these cases in that Mr. Hunte-Green’s penis was not exposed.
[11] Both counsel referred me to the case of R. v. Pierce, 2017 ONCJ 875. This is because in Pierce there was an allegation that the accused masturbated in public without exposing his genitals, which is similar to the case at bar. In Pierce, Pringle J. found that given the specific facts of her case, the conduct did not meet the test for indecency as there was no evidence of harm or risk of harm. Pringle J. stated at para 27:
Taking all of the evidence into account, I am not satisfied that 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.
[12] In my view, the facts in the case at bar differ from those in Pierce. Firstly, in Pierce, the trial judge had a doubt as to whether Mr. Pierce masturbated or merely simulated masturbation. Secondly, observations of Mr. Pierce were limited to a few seconds. Thirdly, no one expressed any fear as a result of his actions. In my view, given the facts of this case, the Crown has proven beyond a reasonable doubt that Mr. Hunte-Green committed an indecent act when he masturbated under his clothing while in elevator alone with Ms. Ginsberg. In my view two types of harm are engaged in this case: harm to Ms. Ginsberg’s autonomy and harm to participating individuals.
[13] In relation to the harm that the Supreme Court of Canada referred to as harm to one’s autonomy, in Labaye, supra, at para 40, the Supreme Court of Canada explained that “indecent acts are banned because they subject the public to unwanted confrontation with inappropriate conduct”. The Court went on to state in the same paragraph, “the value or interest protected is the autonomy and liberty of members of the public, to live within a zone that is free from conduct that deeply offends them.”
[14] While harm to personal autonomy can meet the test for criminality, it often will not. The Supreme Court of Canada stated that it is a high standard because “tolerance requires that only serious and deeply offensive moral assaults can be kept from public view on pain of criminal sanction” (Labaye, supra, at para 41). This does not mean that even in a tolerant society, all acts of public sexual conduct are permissible. The Supreme Court of Canada stated that “the loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond. If the risk of harm is significant enough, it may rise to the degree of the test for criminal indecency in Butler – conduct which society formally recognizes as being incompatible with its proper functioning” (Labaye, supra at para 41).
[15] To make out harm or risk of harm based on harm to one’s autonomy, the Court must find that the exposure is unwanted or that the victim or public will be forced to significantly change their conduct to avoid being exposed.
[16] In my view, not all instances of masturbation where genitals are not exposed will amount to indecent acts. This is because in some cases, the conduct may not be willful (see R. v. Simon, 2010 ONSC 6207) or the conduct is so fleeting that there is no reasonable risk of harm to anyone (see Pierce, supra). In the case at bar, however, the circumstances of the masturbation are such that, even without exposure of his genitals, I am satisfied that the conduct involved meets the test for indecency as it had a significant impact on Ms. Ginsberg’s autonomy and safety. I reach this conclusion for a number of reasons. Firstly, they were in an enclosed space – the elevator with limited options to escape. Secondly, Mr. Hunte-Green was positioned relatively close to Ms. Ginsberg. Thirdly, Mr. Hunte-Green did not turn his body away from Ms. Ginsberg or make any attempt to conceal what he was doing. Fourthly, Mr. Hunte-Green had a condom wrapped around his finger making it a more sexualized event. Fifthly, Ms. Ginsberg testified that she was fearful. Lastly, I am satisfied that Ms. Ginsberg suffered real harm by this action. When testifying about the event, Ms. Ginsberg became tearful and was clearly still troubled by what took place.
[17] It is my view that Mr. Hunte-Green’s conduct also caused harm to “a participating individual”. In Labaye, supra, the Supreme Court of Canada explained that this harm relates to unwanted sexual activity and the harm associated with unwanted sexual activity. I am mindful that Mr. Hunte-Green did not speak to Ms. Ginsberg nor did he touch her. No sexual assault occurred in this case, however, given the close proximity of Mr. Hunte-Green to Ms. Ginsberg, the fact that Mr. Hunte-Green chose to continue facing outwards as opposed to turning his back to Ms. Ginsberg while masturbating in the elevator and the condom on his fingers all contributed to making this a sexualized event. As Ms. Ginsberg was a nonconsenting party to this, in my view, this type of harm is also engaged.
Step II: The harm engaged was of a degree that is incompatible with the proper functioning of society.
[18] In my view, the degree of harm engaged by Mr. Hunte-Green’s conduct is incompatible with the proper functioning of society. Given the proximity between Mr. Hunte-Green and Ms. Ginsberg at the time of the masturbation, the sexualized nature of the conduct, the fact that they were in a confined space and Ms. Ginsberg’s evidence that she was fearful, it is my view that the conduct was of a degree that is incompatible with the proper functioning of society. People taking public elevators in office buildings should not have to be subjected to such conduct. When I consider all the evidence it is my view that Mr. Hunte-Green’s conduct had a direct and significant impact on Ms. Ginsberg’s autonomy.
[19] I therefore find that the Crown has proven that Mr. Hunte-Green’s conduct amounts to an indecent act. I find him guilty of this offence. It is conceded that Mr. Hunte-Green was on probation at the time to keep the peace and be of good behaviour so I find him guilty of these two offences as well.
Released July 22, 2025
Justice Mara Greene