Her Majesty the Queen - v. -, 2014 SKPC 144

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 144 Date: August 14, 2014 Information: 24502064 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Graham Blake Justason Appearing: Brian Hendrickson, Q.C. For the Crown Self-Represented For the Accused JUDGMENT M.

GORDON , J [ 1 ] Graham Blake Justason is charged that on or about the 17 th day of September A.D. 2013, at or near Assiniboia in the Province of Saskatchewan wilfully did an indecent act to wit expose his penis in a public place to wit 100 block of 4 th Avenue West in Assiniboia, Saskatchewan in the presence of Rebecca Peter contrary to s. 173(1) of the Criminal Code . [ 2 ] The Crown elected to proceed summarily. Mr. Justason is self-represented. A pre-trial was held.

The purpose of the pre- trial is to ensure an unrepresented accused has full disclosure, knows how to subpoena witnesses and is informed about the trial procedure. The trial proceeded on June 12, 2014. Mr. Shaw from Legal Aid offered to speak to Mr. Justason prior to trial about the matter. Mr. Justason clearly and emphatically indicated he had spoken briefly to Legal Aid and was prepared to and wanted to proceed

on his own. [ 3 ] There were two witnesses called for the Crown, Constable Marshall and a civilian witness Rebecca Peter. I have no hesitation in accepting the evidence of these two witnesses. [ 4 ] A complaint came into the Assiniboia Detachment of the RCMP about 1:13 in the afternoon describing an older grey-haired male wearing blue plaid pajama pants and a brown t-shirt who had exposed his penis. This man was seen walking in the vicinity of 4 th Avenue West, the park and the post office areas of Assiniboia. The officer drove to this area and tried to locate someone of that description.

He returned to the detachment and spoke to the officer who took the call. The secretary at the detachment provided a possible name of a man fitting that description. As a result, Cst. Marshall went to the home of Mr. Justason, knocked on the door and a gentleman came to the door who identified himself as Graham Justason. This person was wearing pajama pants as had been described to the officer. Cst. Marshall told the male of the complaint and asked him to come down to the detachment. Mr. Justason did come to the detachment later that afternoon. [ 5 ] After a voir dire , I determined that the statement Mr.

Justason made to the officer was voluntary and admitted it into evidence in the trial proper. Mr. Justason was adamant that his penis was not out of his pants. He had gone to the library to use the computer and was on his way home. He said he may or may not have been viewing pornography. However Mr. Justason was adamant that he had no erection and repeated his penis was not outside of his pants, at least he did not think so. Mr. Justason said that he was not in the park and noted there were no other people around.

He said he had been walking down the street on his way home. [ 6 ] Rebecca Peter testified that on September 17, 2013, she was angle parked in front of the Parks and Recreation Building in Assiniboia. She had a parcel she had obtained from the post office and she was putting it in the front passenger seat. She noticed a man further down the street by the park and something seemed strange or off to her. She thought to herself “what has he got hanging around his waist”. As this man approached, walking from west to east along the sidewalk towards the post office, he passed in front of her.

She looked up and observed his penis was erect, protruding from his pajama pants. She provided additional details in that the right side of the shaft of his penis was erect and easily visible. He just walked past her. At this point she shut the passenger door of her vehicle and drove home and phoned the RCMP. [ 7 ] She provided a description of this individual; an older man with grey hair wearing blue plaid pajama pants and a brown t- shirt. She said perhaps it was a lighter t-shirt, tan not brown. It was neutral though. He was also wearing a ball hat. He was of average height and had a smaller build.

He was not clean shaven and was a bit scruffy. She said she was within eight feet or closer to this individual. The door of her vehicle was between them. She identified the accused in Court. She did not notice anyone else around and said this happened about midday. She did not notice where the accused’s hands were at the time. [ 8 ] Mr. Justason spent some time cross-examining this witness but no further relevant evidence was elicited from this witness. [ 9 ] That was the case for the Crown.

The defence decided not to call any evidence. [ 10 ] The Crown argued that it has proven beyond a reasonable doubt the elements of the offence. It was a public place, on a street in Assiniboia, Saskatchewan, the accused had been identified. It is an indecent act. There is no explanation that would go to intent. The evidence of Ms. Peter, who did not know this individual and just observed this incident, reported it to the police. Her evidence was very straightforward and compelling. She was very clear and provided sufficient detail. [ 11 ] Mr.

Justason argued that the evidence had been exaggerated by the witness and maybe his penis might have popped out if a button had been undone. If anything happened, it was accidental. He stressed that he did not do anything improper toward this witness and that his hands were not on his penis. He denied that his penis would have been erect. He said he had just gone to the library that morning, used the computer and was walking home. [ 12 ] The issue is has the Crown proved beyond a reasonable doubt the elements of the offence.

ANALYSIS [13] Ms. Peter’s evidence was clear and detailed with respect to the incident. She saw Mr. Justason walking on the sidewalk in theTown of Assiniboia. The post office, recreational centre and public park were all within close proximity. The fact that there were noother individuals around makes no difference. Her first glance at the accused walking down the street indicated to her that somethingseemed a bit off. As he approached, she clearly saw the accused’s penis was protruding from his pajama pants. The penis was erect.

She clearly described how she saw the right hand side or shaft of his penis. [14] In R. v. Parsons, (BC SC), [1963] 3 C.C.C. 92 (BCSC), the Court stated that a presumption of intent to dothe indecent act wilfully arises where it is seen by another person. There is no other credible evidence that I accept to suggest that thereis another explanation or that Ms. Peter was possibly mistaken. [15] The final question is whether the description of this event is an indecent act as defined by the Criminal Code and subject tocriminal sanctions. [16] In R. v.

Carruthers, 2004 SKPC 75, Judge Lavoie was dealing with charges of indecent acts in public. At paragraph 19, hediscussed the proof that is required for a charge under s. 173 of the Criminal Code and stated as follows: The decisions of R. v. Mailhot, (QC CA), (1996) 108 C.C.C. (3d) 376 (Que. C.A.) and R. v. Jacob, (ONCA), (1996) 112 C.C.C. (3d) 1 (Ont. C.A.) discuss in depth proof of the intent required for a charge under s. 173(1)(a). In this case,the accused did a wilful act in relation to his genitals in a public washroom in the presence of one or more persons. The issue is whetherthe acts were an indecent act.

In R. v. Jacob, supra, Osborne J.A. in writing for the majority, held that to be an indecent act under s.173(1)(

a) of the Criminal Code, the act need not have a sexual context. Further, the community standard of tolerance test should be usedto determine whether the act was indecent. At page 12, paragraph d, in reviewing what Sopinka J. held in R. v. Butler, (SCC), (1992), 70 C.C.C. (3d) 129 (S.C.C.), he wrote: He made it clear that the community standard tolerance test is a contemporary, national test that measures not what Canadians willtolerate for themselves but what they will tolerate for others.

Further, at page 12, paragraph g, he states: It follows from Butler that in applying the community standard of tolerance test, the court must consider what harm will accrue fromexposure to the allegedly obscene act or material. The correlation is inverse in the sense that the greater the harm that may flow from aparticular exposure, the less the community will tolerate others being exposed to it. Tolerance cannot be assessed independently of harm. [17] Judge Lavoie went on at paragraph 27 to emphasize that the burden remains throughout with the Crown to prove each elementof the offence beyond a reasonable doubt.

That includes the necessary intent and whether the acts in question were wilful and indecentwithin the context envisioned by s. 173(1)(

a) of the Criminal Code. [18] In R. v. Ziegler, 2008 SKPC 94, Judge Gray when dealing with a charge under the same

section stated at paragraph 19: I find the reasoning in R. v. Summers, 2007 A.J. No. 562 (ABPC), to be correct. Unlike

section 173(

b) which requires proof of anintention to insult or offend, the

section with which the accused has been charged does not require proof of an intention to be seen or tocommit the act knowing of the presence of others; it requires only that the act be committed in the presence of another. An indifferenceor recklessness as to the presence of others must suffice to establish the offence if the act was in fact seen by a member of the public; onemay be presumed to intend the natural consequences of one’s actions. [19] Indecency is contextual and depends on the circumstances.

Applying the test as stated in the above noted cases, I find that theCrown has proved its case beyond a reasonable doubt. I accept that Ms. Peter found the conduct inappropriate and indecent. She tooknote, called the RCMP as soon as she got home, and testified in Court today. From her demeanour on the witness stand and herevidence, I conclude she is a sensible and reasonable person. Her concern was that the accused was on a public street in an area of town

that has many services including the library and post office. It was midday in small town Saskatchewan. Mr. Justason does not dispute the fact he was walking home but suggested in argument without giving evidence that it might have been accidental if his penis was out at all. He did not challenge Ms. Peter in her evidence. Therefore I find Mr. Justason guilty as charged. M. Gordon, J