COURT FILE NO.: 115/14

DATE: 20151026

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty The Queen v. Paolo Novello

BEFORE: K.L. Campbell J.

COUNSEL: Thaddeus J. Ofiara, for the Crown, respondent Philip Norton, for the accused, appellant

HEARD: September 25, 2015

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Paolo Novello, was tried by the Honourable Mr. Justice J.M. Grossman of the Ontario Court of Justice on charges of: (1) wilfully committing an indecent act by masturbating in a public place in the presence of one or more persons, contrary to s. 173(1) of the Criminal Code, R.S.C. 1985, c. C-46; and (2) operating a motor vehicle in a manner that was dangerous to the public, contrary to s. 249(1) of the Criminal Code. These offences allegedly took place in Toronto in mid-March of 2012. In reasons for judgment released on April 28, 2014, the trial judge found the appellant guilty of both offences. Subsequently, on August 28, 2014, Grossman J. imposed a four-month conditional sentence of imprisonment and a three-year term of probation on both charges (concurrent). The trial judge also made an order, pursuant to s. 490.012(3) of the Criminal Code, requiring the appellant to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for the rest of his life.

[2] The appellant appeals against his convictions. He argues that the trial judge erred in convicting him of the “indecent act” offence. He contends that the evidence showed that he tried to conceal his actions in order not to be seen by any other person and, accordingly, he did not have the requisite mental element required for the offence. The appellant also argues that the trial judge erred in convicting him of the “dangerous driving” offence as the evidence established only careless driving on his part, and not the necessary “marked departure” from the standard of care. Finally, the appellant also appeals against his sentence, arguing that the trial judge erred in imposing a lifetime order under the Sex Offender Information Registration Act.

B. The Relevant Factual Background

[3] As a result of a complaint from a citizen, the appellant became the subject of an investigation by the members of the Toronto Police Service (TPS). Commencing on March 14, 2012, the appellant was placed under surveillance by a team of police officers dressed in plain clothes and driving unmarked police cars. Aerial surveillance of the appellant was also conducted. As the trial judge concluded, the police evidence that flowed from this surveillance operation collectively disclosed a “pattern of suspicious behavior” on the part of the appellant. During this surveillance, the appellant frequented “areas adjacent to schools, parks, playgrounds and community centers where he had occasion to observe young girls, or where it was reasonable to expect young children to be.”

[4] On both March 14 and 15, 2012, the appellant was observed masturbating in a public location while watching young children playing. On March 14, 2012, Cst. McCourt saw the appellant park his vehicle at an apartment building and walk into a parkette where a number of young children were playing. The appellant was seen entering an alcove. He then put his hands in the front pockets of his pants and started masturbating. Similarly, on March 15, 2012, Cst. McCourt and Cst. Borg both saw the appellant, from different vantage points, in the vicinity of a soccer pitch, watching two young girls playing soccer together. Both police officers witnessed the appellant put his hands into his pants pockets and start masturbating. In their testimony, both of the officers related their observations in “very descriptive terms.” Based upon this evidence, the trial judge drew the following conclusions:

[The appellant] positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state. Each of the officers testified that they were of the view that he was masturbating. I am satisfied it is reasonable to infer, based on the independent observations of each officer, that [the appellant] was masturbating in a public place in the presence of one or more persons.

A presumption of intent to do an indecent act wilfully, arises where it is seen by another person. (R. v. Parsons, (1963) 1962 CanLII 550 (BC SC), 3 C.C.C. 92). Accordingly, I find [the appellant] guilty of wilfully engaging in an indecent act of masturbation in a public place in the presence of one or more persons contrary to Section 173(1)(a) of the Criminal Code.

[5] During their mobile and aerial surveillance of the appellant, the police also observed the driving behavior of the appellant. For the most part, this driving conduct was unexceptional. However, on March 20, 2012, the driving conduct of the appellant was different. Three police officers observed the appellant’s driving for slightly more than 30 minutes between 6:33 and 7:05 a.m. In “fairly dense fog” the appellant was observed to engage in a variety of unsafe driving practices, including driving at a high rate of speed (i.e. approximately 90-100 kms./hr. in 50-60 km./hr. zone), making an illegal turn, making a quick and abruptly lane change cutting-off another vehicle, driving through two red traffic lights, and making an abrupt turn into a school parking lot with his tires “squealing.” The foggy conditions at the time were described as being like “pea soup” and causing “very limited visibility.” Ultimately, the surveillance of the appellant was discontinued as the police concluded that it was unsafe for them to continue to follow and monitor the appellant in such conditions and while the appellant was driving in such a fashion. One of the police officers described the appellant’s driving as “aggressive, erratic, [and] dangerous” in “horrendous” weather conditions.

[6] Based upon this evidence from the police surveillance officers, the trial judge drew the following conclusions:

In considering the totality of the evidence as it relates to March 20, 2012, I find that, viewed objectively, [the appellant] was driving in a manner that was dangerous to the public having regard to all of the circumstances. He was operating a motor vehicle at a high rate of speed. He cut across lanes of traffic forcing other vehicles to stop. He continued at a high rate of speed driving through a red light at a time in the morning on a work day when it was reasonable to expect traffic. Indeed, while the traffic wasn’t heavy, there was traffic and other vehicles had to brake to avoid a collision when [the appellant] cut across lanes. I consider the manner in which the vehicle was operated as the important issue, not the consequence of the driving.

The aggressive nature of the driving continued less than half an hour later when [the appellant] was observed to make a hard left into a public school parking lot at his speed causing his tires to squeal. He left to enter [a named street] and travel through a red light at 7:02 a.m. without breaking in a school zone in very heavy fog conditions.

I am satisfied that his conduct amounted to a marked departure from the standard of care that a reasonable person would observe in [the appellant’s] situation. (R. v. Hundal, 1993 CanLII 120 (SCC), [1993] S.C.R. 867, 79 C.C.C. (3d) 97). Accordingly, I find [the appellant] guilty of dangerous driving.

C. Analysis

1. The Indecent Act Offence

[7] In finding that the appellant had the necessary mental element for the “indecent act” offence, the trial judge, relying upon R. v. Parsons, 1962 CanLII 550 (BC SC), [1963] 3 C.C.C. 92 (B.C.S.C.), noted that a “presumption of intent to do an indecent act wilfully arises where it is seen by another person,” and he concluded that the appellant was, accordingly, guilty of “wilfully engaging in an indecent act of masturbation in a public place in the presence of one or more persons.” In my view, this analysis reflects a legal error on the part of the trial judge.

[8] First, there is no legal presumption that, where an accused is engaged in some indecent act and is, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person.

[9] The decision in Parsons, properly understood, does not suggest otherwise. Parsons was a stated case appeal to the British Columbia Supreme Court. The accused was seen, on a number of occasions, naked and masturbating in the window at the rear of his residence. The trial judge acquitted the accused, in part, because there was “no evidence” that he had performed the indecent act “wilfully.” On appeal, Wootton J. concluded that the trial judge had reached the wrong conclusion as there was, in fact, some evidence to be considered on the question of the wilfulness of the conduct of the accused. Further, Wootton J. suggested that, if the indecent acts were seen by any person, that would “raise a presumption of intent to perform indecent acts wilfully, in that such an observation was “sufficient to make a prima facie case.” While his use of the term “presumption” in this context was unfortunate, the common sense principle articulated by Wootton J. in Parsons is effectively that where a witness observes an accused engaging in an indecent act, one reasonable inference that may be drawn from that evidence is that the accused was engaged in that indecent act wilfully.

[10] The Parsons decision, as I read it, goes no further. Indeed, it cannot go any further as there is simply no logical connection between: (1) whether or not an accused is, in fact, observed by another engaged in an indecent act; and (2) whether or not the accused wilfully engaged in that indecent act in the presence of another person. For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.

[11] One of the key issues at the trial of this matter was whether the appellant “wilfully” engaged in his indecent acts of masturbation in the presence of others. The parties advanced divergent positions on this issue. While it was certainly open to the trial judge to conclude, based upon the evidence at trial, that he was satisfied beyond a reasonable doubt that the Crown had established the necessary mental element of the offence, the trial judge was not legally bound to reach that conclusion. Depending upon his analysis of the evidence and the presumption of innocence, the trial judge might have had a reasonable doubt on that important issue. In any event, in order to reach a just and proper verdict in this case, the trial judge was obliged to consider and weigh the evidence relevant to the topic. Instead, the trial judge found the appellant guilty based upon his application of a “presumption of intent to do an indecent act wilfully” that “arises where [the indecent act] is seen by another person.” This was flawed and erroneous reasoning.

[12] This case is not unlike the decision of Howden J. in R. v. Simon, 2010 ONSC 6207, [2010] O.J. No. 4986. In that case the accused was observed masturbating at a concert. He was seated in the last row of the theatre, and kept a towel over his lap. The male complainant, who witnessed the indecent act from his location a few seats away, was not insulted or offended by the accused’s conduct, but he complained about the conduct as he was concerned about what the accused might do elsewhere, “on the street with kids.” Like the trial judge in the present case, the trial judge in Simon cited Parsons in support of the proposition that “a presumption of intent to do the indecent act wilfully arises where it is seen by another person,” held that it was “still good law in this country,” and concluded that “the intent required … is established by that case.”

[13] On appeal, Howden J. observed, at para. 10, that one of the main issues in the case was whether the Crown “could prove beyond a reasonable doubt the specific intent beyond whether the act was “wilful,” by proving whether the accused “intended by his actions to offend” the complainant. Howden J. then concluded that the law in Ontario on this topic was not established by the British Columbia decision in Parsons, which “at best addresses” only the “wilfulness” of the indecent act. Howden J. noted that there was no question that the act of masturbation by the accused was “wilful, not accidental,” and that the “primary issue” was whether the Crown had established the necessary “specific intent” to the criminal standard of proof. Howden J. then concluded that the trial judge cited Parsons “as authority for the proposition that the required intent could be presumed from the combination of the public nature of the occurrence and that it was visible to others,” the necessary intent being “established by that case.” Howden J. ultimately concluded, at paras. 12-13, that the trial judge had legally erred in his consideration of the specific intent required to be proven by the Crown, in that he failed to find that an essential element of the alleged offence had been established to the applicable criminal standard of proof beyond a reasonable doubt.

[14] In my view, the trial judge in the present case committed the same legal error as the trial judge in Simon. Instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another.

[15] This error requires that the conviction for the offence of indecent act be set aside and a new trial ordered. In these circumstances it becomes unnecessary to consider the appellant’s argument in relation to the fitness of the lifetime order made under the Sex Offender Information Registration Act. That ancillary sentencing order disappears with the setting aside of the conviction for the indecent act offence.

2. The Dangerous Driving Offence

[16] The appellant also contends that the trial judge erred in convicting him of the “dangerous driving” offence. The appellant argues that the evidence does not prove the required “marked departure” from the standard of care of a reasonable driver, but proves only that the appellant was driving carelessly. I disagree.

[17] In my view, based upon all of the evidence in this case, it was open to the trial judge to conclude that the legal elements of the offence of dangerous driving were established by the Crown in this case beyond a reasonable doubt, and he committed no error, legal or factual, in rendering a guilty verdict in relation to this charge.

[18] In other words, in my opinion, the trial judge committed no error in concluding that: (1) viewed objectively, the appellant’s driving was dangerous to the public having regard to all of the circumstances, including the nature, condition and use of the roads where the vehicle was being operating and the amount of traffic that might reasonably be expected; and (2) the appellant’s driving amounted to a marked departure from the standard of care that a reasonably prudent driver would observe in the circumstances. See R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at pp. 883-886; R. v. Beatty, 2008 SCC 5, [2008] S.C.R. 49, at paras. 6-8, 20-21, 27-49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 1-2, 27-28, 30-42; R. v. Reynolds, 2013 ONCA 433, 309 O.A.C. 14, at paras. 17-22; R. v. Ferguson, 2014 ONCA 673, [2014] O.J. No. 4608, at paras. 6-11.

[19] I can discern no proper basis upon which to interfere with the reasonable verdict reached by the trial judge in relation to the conviction for dangerous driving.

D. Conclusion

[20] In the result, the appeal against the conviction for the indecent act offence is allowed, the conviction is set aside and a new trial is ordered. The appeal against the conviction for the dangerous driving offence is, however, dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: October 26, 2015