R. v. Leblanc, 2016 ONSC 7547

R. v. Leblanc, 2016 ONSC 7547

CITATION: R. v. Leblanc, 2016 ONSC 7547

COURT FILE NO.: 13-5102

DATE: 2016/12/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MATHIEU LEBLANC

Appellant

Moiz Karimjee, for the Crown

Ronald G. Guertin, for the Appellant

HEARD: November 9, 2016

On appeal from the decision of the Honourable Madam Justice C. Dorval of the Ontario Court of Justice on September 21, 2015.

REASONS on appeal

maranger j.

1On September 21, 2015 Justice C. Dorval of the Ontario Court of Justice found Mathieu Leblanc guilty of 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 of Canada, R.S.C. 1985, c. C-46, and granted him a conditional discharge and placed him on probation. Mathieu LeBlanc, “the appellant,” appeals his conviction.

2While the notice of appeal listed four separate specified grounds of appeal, at the outset of the hearing, it became clear that the principal ground of appeal relied upon was that the learned trial judge erred in law in her application of the doctrine of wilful blindness and the finding that the doctrine was applicable in the circumstances of the case.

Background:

3The factual basis for the indecent act charge was the appellant’s irresponsible decision to masturbate at his workplace. He did so in a common area at the end of the workday whilst erroneously believing that no one else was present.

4The workplace was the 12th floor of an office building located at 580 Booth Street, Ottawa. The area consisted of a series of enclosed work cubicles, and was shared with the Office of Energy Efficiency, the Department of Parliamentary Affairs, and Natural Resources Canada.

5The complainant was a videographer with Natural Resources Canada. In this case, she did not actually see or realize that the accused was in fact masturbating at the time in question. She reported what she believed was suspicious activity that may involve someone trying to steal her expensive video equipment. One thing led to another (including liquid being examined on the floor which turned out to be the accused’s semen) which resulted in an investigation and ultimately the arrest of the accused.

Evidence at Trial:

6The evidence called a trial can be summarised as follows:

• The complainant, Camillle Ansar was a videographer for Natural Resources Canada and she was working on August 22, 2013 .

• She testified that her department consisted of pods of cubicles on the 12th floor, and that that floor also shared space with the Department of Parliamentary Affairs and the office of energy efficiency.

• She testified that on the night in question, she was alone in her cubicle talking to a friend on the phone when in the corner of her eye she saw something moving up and down which basically “resembled a hot dog.” She told her friend to hold on “something weird is going on.” The movement stopped and then she heard footsteps go around her cubicle toward a location near a window at the corner of the building. She walked around her cubicle, came upon a man standing at the window. She asked if she could help him. He said he was checking traffic.

• She testified that the person must have withdrawn when he heard sounds.

• She testified that it was uncommon to see people at the office at 5:30 at night.

• Her belief at the time was that someone was trying to steal or going to steal her expensive video equipment.

• The evidence supports the proposition that the complainant in this case did not know or believe that what she saw was someone masturbating on the evening in question.

• The appellant the time of the trial was 34 years old, married with one child of four and half and his wife was expecting their second child at that point in time.

• At the time of the event, he was employed as an environmental assessment officer reviewing energy projects that produced electricity from renewable resources (wind/water etc.)

• His shift usually ran from 9 AM to 5:30 PM. The building where he worked had a gym and he worked out a couple of times a week.

• On August 22, 2013, he was at his workplace, it was the end of the day, he had just finished working out, his routine was that he would pick up his wife after work and that depending on the flow of traffic it would take between 15 to 25 minutes to do so. On the date in question, he walked to the end of the building, looked out the window to check on the flow of traffic.

• As he proceeded to the end of the building, he got the urge to masturbate he testified that he believed he was alone. All of his coworkers had already left. He also testified he panicked when he found out someone might be in the area.

• He testified that if he had known it was somebody else in the area, he would not have masturbated. Furthermore, he was relieved when he discovered that she had not seen him.

Analysis:

7The essential part of the trial judge’s reasons indicated the following:

The elements of the offence in this case are, (1) wilfully committed an indecent act, (2) that that act took place in a public place, and (3) that it was in the presence of one or more persons. The masturbation comes within the definition of an indecent act, and I won’t spend much time on that. The real issues in this case were with respect to whether or not the second or third element had been established beyond a reasonable doubt. Public place, as defined in section 150 as “any place was the public has access as of right or by invitation express or implied.”

In my view, working place where a number of offices are situated with the number of employees circulating is a public place. The employees have access as of right. That part of the 12th floor can be accessed by anyone with access to the building, and therefore a number of employees who work within the building have access to the 12th floor, any area of the 12th floor. At 5:30 in the afternoon, the nature of the office is not changed. I therefore find that the office space on the 12th floor was a public place.

The offence is that of wilfully committing an indecent act in a public place in the presence of one or more persons. Mr. Leblanc needs to have had knowledge of the presence of at least one person, or to have been wilfully blind as to her presence in order for the Crown to establish this offence. In this case, Ms. Ansar testified that her working hours are 9:30 to 5:30, and were, at the relevant time 9:30 to 5:30, and therefore, this was not something new to that week or to that day.

She stated that she was on the phone with a friend speaking with a normal tone of voice at the time that she made the observation in her peripheral vision. Ms. Ansari does not work in the accused’s unit. He, therefore, would not have been aware of her working hours.

Willful blindness constitutes more than recklessness. It applies only in circumstances which cry out for a question to be asked, an inquiry to be made, but where the person chooses not to make that inquiry, in this case before me, when the accused decided to masturbate right outside Ms. Ansar’s cubicle at 5:30 in the afternoon, while she’s on the telephone, without verifying the presence of any person within the cubicle, he was wilfully blind as to her presence, and, therefore I do find that the Crown has made all of the elements of the offence and the accused evidence does not raise a reasonable doubt I find him guilty.

8The basis of the conviction is predicated on a finding that the accused had a positive obligation to explore the area to ensure that no one else was around before he decided to masturbate and that his failure to do so constituted wilful blindness. In Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570 the Supreme Court of Canada defined wilfull blindness as follows:

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. Cases such as R. v. Wretham (1971), 16 C.R.N.S. 124 (Ont. C.A.); R. v. Blondin (1970), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), appeal dismissed in this Court at (1971), 1971 1411 (SCC), 4 C.C.C. (2d) 566 (see: [1971] S.C.R. v, unreported); R. v. Currie (1975), 1975 1347 (ON CA), 24 C.C.C. (2d) 292 (Ont. C.A.); R. v. McFall (1975), 1975 1426 (BC CA), 26 C.C.C. (2d) 181 (B.C.C.A.); R. v. Aiello (1978), 1978 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.); Roper v. Taylor's Central Garages (Exeter), Ltd., [1951] 2 T.L.R. 284, among others illustrate these principles. The textwriters have also dealt with the subject, particularly Glanville Williams (Criminal Law: The General Part, 2nd ed., 1961, at pp. 157‑160).

9At the trial of this matter the accused testified on his own behalf and the following is an excerpt from his testimony:

Q. Okay. Now, alright, so you say that you felt the urge to masturbate. Were you aware that anyone was in the area?

A. I was aware that there was nobody in the area. I was certain.

Q. And when-okay, if we, I can’t ask you the time but I, it, it appears that at some point you became aware there was someone-how’d you, how did you become aware there was someone in the area?

A. I heard some noise like a shuffling or like some moving, and I just panic. I got mortified there was someone else. I was super embarrassed that I- I was like Oh my God I’m not alone, there was someone So, yeah, I, I panicked and I retreated to the window…

Q. All right. If you had known that there was someone else in the area would you have masturbated?

A. Never.

10In my review of the transcripts of the evidence at trial, this testimony by the accused was unshaken by the Crown in cross-examination.

11In the decision of R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada set out the manner in which a court is to consider and approach testimony from an accused person: You first ask whether you believe the accused and if you do you must acquit, if you disbelieve the accused you must still ask whether his/her evidence nonetheless leaves you with a reasonable doubt about his/her guilt and if it does you must acquit, and finally even when the accused’s evidence does not raise a reasonable doubt, the court must still consider whether the totality of the evidence has proven guilt beyond a reasonable doubt.

12The Crown has to prove each element of the offence beyond a reasonable doubt. In the bizarre circumstances of this case, they had to prove that the accused “deliberately failed to make an inquiry while knowing an inquiry needed to be made.”

13To find that this element had been established beyond a reasonable doubt would have required an analysis of why the learned trial judge did not believe the accused. His testimony concerning his reaction, what he did and when he did it, in effect negates a finding of wilful blindness. It, at a minimum, raises a reasonable doubt that the Crown has made this element out. The reasons provided make no comment whatsoever on the credibility, or reliability of the accused’s evidence.

14This constitutes an error of law. The conviction is quashed and a new trial is ordered.

Maranger J.