R. v. Harris Date:, 2016 BCPC 442

Citation: R. v. Harris Date: 20161128 2016 BCPC 442 File No: 218488-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JARED EDWARD HARRIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: D. Moghadamian Counsel for the Defendant: J. Percival Place of Hearing: Surrey , B.C. Date of Hearing: November 17, 2016 Date of Judgment: November 28, 2016

INTRODUCTION [1] On November 17, 2016, I presided over the trial in the matter of R. v. Jared Edward Harris. Today, I will deliver my reasonsfor judgment in that matter. [2] The accused, Jared Edward HARRIS, is charged with one count, of wilfully doing an indecent act, namely, masturbate, in apublic place, in the presence of one or more persons, contrary to Section 173(1) of the Criminal Code. ISSUE [3] The issue to be determined in this case is whether Mr. Harris did an indecent act, that is masturbate, in a public place, in thepresence of one or more persons. [4] The parties take no issue with respect to Mr.

Harris’ identity or that the location at which he is alleged to have committed theindecent act is a public place for purposes of s. 173(1) of the Criminal Code. [5] That leaves the Crown to prove beyond a reasonable doubt that Mr. Harris wilfully committed an indecent act, that ismasturbate, in the presence of one or more persons. [6] I now turn to the analysis of the issue. ANALYSIS Legal framework [7] This case raises issues of credibility and involves the application of the presumption of innocence. This presumption, enshrinedin s. 11(

d) of the Charter of Rights and Freedoms, requires that an accused not be convicted unless each essential element of the offencehas been proven beyond a reasonable doubt. The Crown bears the burden of proof.

The accused need not prove the existence or non-existence of a fact essential to guilt. [8] In a criminal trial, in assessing credibility, the test is not whose evidence I believe – that is, the evidence of the Crown or theaccused – but rather, whether, on the totality of the evidence, viewed as a whole, the Crown has proven each essential element of theoffence beyond a reasonable doubt. [9] In this context, the law concerning credibility assessment is well settled. The analytical framework for such assessment is setout in the decision of the Supreme Court of Canada in R. v.

W.(D)., (SCC), [1991] 1 S.C.R. 742, at p. 757, as augmentedby the decision of the Court of Appeal for British Columbia in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146(C.A.). Based on this framework, I instruct myself as follows: (

a) first, if I believe the evidence of the accused, I must acquit the accused; second, if, after a consideration of all of the evidence, Iam unable to decide whom to believe – the accused or the Crown witnesses, I must acquit the accused; (

b) third, if I do not believe the evidence of the accused, but am left in reasonable doubt by it, I must acquit the accused; and (

c) fourth, even if I am not left in doubt by the evidence of the accused, I must ask myself whether on the basis of the evidence I doaccept, I am convinced beyond a reasonable doubt by that evidence of the accused’s guilt. [10] I now turn to the evidence in this case. Evidence [11] The complainant, Ms. M.F., and Cst. Louis-Philippe Bonneau testified on behalf of the Crown, and the accused, Mr. Harris,testified on his own behalf. The Complainant’s Evidence [12] The complainant is 19 years of age. She works at a bakery from 7:00 a.m. to 2:00 p.m.

Typically, she takes a bus from herworkplace to get to the bus loop at the Scottsdale Exchange on Scott Road, in North Delta, and then takes a second bus to get to herhome. [13] On August 21, 2016, the date of the incident, she arrived at the bus loop at about 2:15 or 2:20 p.m. There was about a 25-minute wait for her second bus. So, she walked across the street to a shaded area to have a smoke. [14] She describes this area as follows: there is a parking lot and a Chevron gas station; there is a driveway for the parking lot and abank across the street.

There are a number of big trees, probably one to two feet apart, lined all the way to the bushes to the right. [15] As she was crossing the street to get to the shaded area, she saw someone sitting on a cement ledge. It was a man whom shehad never seen before. He was sitting, as he would in a chair, and was facing the bus loop. The complainant was walking in thedirection of where this person was sitting, and she saw his front and side profiles.

She also saw other passers-by walking in that area. [16] Once she made it to the other side of the street, she was standing at the back corner of the Chevron by an electrical box inbetween the bushes. She took out a cigarette and was smoking. She then put her purse down to find her phone when she saw someonefrom the corner of her right eye. She saw a man standing with his genitals out. He was stroking his erected penis with his right hand,

and looking straight at her without any facial expression. She clarified that he was not simply holding, but rather stroking, his penis with his right hand. He was three or four steps (or approximately five to 10 feet) away from her. She looked at him for a second or two, but did not make eye contact. [ 17 ] She quickly turned around and walked back across the street and called 911. She was in front of the bank when she called the police.

While talking to the police, she saw the same man sitting back down on the original spot on the cement ledge. [ 18 ] She described in detail the physical features of this man and his clothing that day and that he had a black back-pack.

She confirmed that it was the same man whom she saw sitting on the ledge and standing close to her, stroking his exposed, erected penis with his right hand. [ 19 ] After reporting the incident to the police which took about 10 minutes or so, she walked over to the gas station, behind the bushes, and took a picture of him with her phone so that in the event he left the scene, the police would have something to assist them in locating him. [ 20 ] She then walked back to the bus loop and waited for her second bus to get home. She waited for about five or 10 minutes before getting on the bus.

While waiting and when she got on the bus, she could still see the man sitting at the same place on the ledge. [ 21 ] This man has been identified as the accused. Since the accused’s identity is not at issue, I will not go into the details of his physical features or what he was wearing that day other than to note that the complainant’s evidence is that the accused was overdressed on that day, even though it was a sunny day in August. Cst. Bonneau’s Evidence [ 22 ] After receiving the complainant’s report of the indecent act, Cst. Bonneau was dispatched to the location at about 2:32 p.m.

He first had difficulty locating the Chevron station and the male he was looking for at the address he was given, but later he managed to get to the Chevron station in question. [ 23 ] When he arrived at the Chevron station, he found the accused sitting on the cement ledge. After checking his identification, Cst. Bonneau inspected the area behind the grey box (the northeast side of the building) where the accused had directed him to look. Cst. Bonneau did not see any urine, but he did not feel the ground to see if it was wet.

He did not use tissue to take any samples. [ 24 ] He then arrested the accused, and another officer transported the accused to the police station. Later that afternoon, he took the complainant’s statement. He did not take any pictures of the location or return to the location with the complainant for further inspection. He then prepared a report to Crown counsel. The Accused’s Evidence [ 25 ] The accused is 39 years of age and does not work. He is on disability due to injuries from a motor vehicle accident he was involved in when he was about 15 years of age.

He had brain damage and continues to suffer from epilepsy and short term memory loss. His left eye was damaged. The vision from his left is very blurry, and he has double vision. His right eye appears to be fine. His parents have passed away and he has been homeless for some time, although he could not recall for how long.

Some of his belongings are stored in his grandmother’s house, some in his uncle’s house and some on himself. [ 26 ] He is very familiar with the Chevron station and the surrounding areas as he always goes there to go to the Home Depot where his aunt works to say hi to her, and also to go to his grandmother’s house which is just up the road from the Chevron station. He also uses the bathroom at the gas station. [ 27 ] On the incident date, he went to the area in question around noon to go over to his grandmother’s house to take a shower.

Because his grandmother does not get home until later in the afternoon, he was sitting on the ledge by the Chevron station. He had a smoke. He then went to the Chevron station to use the bathroom, but it was closed. So, around 2:00 or 2:30 p.m. (he says he could not remember the exact time), he went behind the dumpsters, right beside the electrical box, and urinated on the electrical box which was in front of him. He then zipped up his pants, and turned around about half a foot, when he saw a female in front of him, about 20 to 30 feet away talking on the phone. He does not remember what this person looked like.

At no point did he see anyone before or while he was urinating, but only after he zipped up his pants and turned around in a fluid motion. He then walked back to the original spot and sat on the ledge, talking to himself. [ 28 ] The police then arrived and arrested him. He was co-operative throughout the arrest and booking process.

Defence’s Submissions [ 29 ] The defence submits as follows: that the complainant was obviously upset when she saw the accused with his penis out; she made an honest mistake in assuming that when the accused had his right hand on his penis, he was masturbating rather than urinating; the accused was relieving himself in a secluded area where there are trees and an electrical box; it was not his intention to do it in a public place in the presence of anyone; he did not see anyone; the complainant was 10 feet away; the accused did not accost the complainant; he did not show any expression; men who publicly engage in indecent acts do it for attention, but that is not the case here; the accused and the complainant did not make eye contact; the complainant only saw him for a couple of seconds and she looked away; and the accused co-operated with the police – behaviour that is consistent with someone who has not done anything wrong. [ 30 ] Therefore, the defence submits the accused’s evidence should raise a reasonable doubt for the court.

The Crown’s Submissions [ 31 ] The Crown, on the other hand, submits as follows: the complainant provided a detailed account of what she observed on the

incident date; she did not know the accused, and she has no motive to lie; she had an unobstructed view of what the accused was doing; she felt that he was approaching her; she felt threatened; her evidence is completely reliable whereas the accused’s evidence is not as he suffers from short term memory loss, and he could not remember much of what happened on the incident date. [ 32 ] Furthermore, the Crown submits that the defence’s references to accosting and men engaging in indecent acts to seek attention are not proper considerations before the court, as accosting is not an element of the offence to be proven and there is no expert evidence before the court with respect to the latter reference.

I agree with the Crown’s submissions on these points. Findings [ 33 ] In reviewing the evidence of all three witnesses, I find that Cst. Bonneau’s evidence is not of much assistance in the determination of the issue. Between the evidence of the complainant and the accused, there are some similarities, such as the general location of where the alleged indecent act took place and that the complainant and the accused did not make eye contact or say anything to each other. However, there are a number of differences in their evidence. [ 34 ] Overall, I found the complainant to be a credible witness.

She provided a detailed account of what she saw on the incident date and the steps she took to report and document the events. She was coherent and I did not find any inconsistencies within her own testimony. [ 35 ] However, I cannot say the same of the accused. He suffers from brain damage, short-term memory loss and limited vision in his left eye. He could not remember the day the incident took place, what type of a day it was or details of what happened before or after the incident. He said he saw a female, the complainant, but he could not describe what she looked like.

However, he seemed very sure of, and described, what he did. [ 36 ] For the reasons I am about to state, I neither believe the accused’s evidence nor am I left in reasonable doubt by it. After considering all of the evidence before me, and on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt that the accused did wilfully commit an indecent act, that is masturbate, in the presence of one or more persons. [ 37 ] My reasons are as follows: (

a) The day the incident happened, it was sunny, and the complainant had an unobstructed view of the accused: initially, when he was sitting on the cement ledge; then when the complainant walked across the street to the shaded area, the accused was only about three to four steps, or five to 10 feet from her, and she clearly saw the accused standing with his genitals out. He was stroking his erected penis with his right hand, and looking straight at her without any facial expression. She clarified that he was not simply holding his penis, but rather was stroking it, with his right hand.

The accused was looking straight at her, and she felt he was approaching her which caused her to feel threatened. She said she had never seen anything like that before. So, she quickly turned around and walked back across the street and phoned the police. She then took another path and discreetly took a photograph of the accused to assist with the police investigation. She said she has since avoided going to the bus loop. (

b) The complainant’s behaviour appears to be consistent with what a reasonable person witnessing a shocking and threatening event would have done. Her behaviour does not accord with what a reasonable person who witnessed someone urinating in a secluded area where no one else was present would have done. (

c) The accused, of course, claims that he only urinated in a secluded area where no one else was present. He says at no point did he see anyone before or while he was urinating, but he saw a female in front of him only after he zipped up his pants and turned around in a fluid motion about half a foot. If that was the case, then the complainant could not have seen his penis, but she did see him stroking his erected penis. There does not appear to be any logical reason or evidence as to why she would make such a statement and go to the extent of reporting to the police and testifying at the trial. The accused is a complete stranger to her. She had never seen him before. (

d) The accused also says when he saw the female, she was about 20 to 30 feet away, right in front of him, talking on the phone. This also does not accord with the complainant’s testimony as she was on the phone to the police only after she had walked back across the street. With the accused’s poor vision, he could not have seen the complainant that far away. (

e) Neither the complainant nor Cst. Bonneau saw any urine at the scene. When cross-examined, the complainant testified that she did not see any semen at the scene either. However, masturbation does not always lead to ejaculation. The verb “masturbate” is defined as “stimulate one’s own genitals for sexual pleasure”. I am satisfied that that is what the complainant observed the accused doing. Therefore, I find that the accused was masturbating. (

f) This was not an involuntary act. The accused knew that he had his penis out and his hand was on it. He was doing this in the presence of the complainant, and the complainant testified that there were other passers-by in the area. Therefore, I find that the accused willfully masturbated in the presence of one or more persons. (

g) Defence admitted that the location at issue was a public place. Being a gas station, with a parking lot in front, near a bus loop, no one can doubt that the public have access to it. The accused knew this as he testified that he goes there all the time and is very familiar with the area. CONCLUSION [ 38 ] In conclusion, I am satisfied that on the totality of the evidence before me, viewed as a whole, the Crown has proven beyond a reasonable doubt that the accused wilfully committed an indecent act, that is masturbate, in the presence of one or more persons. [ 39 ] For the reasons stated above, I find Mr. Harris guilty as charged. The Honourable Judge V. Chettiar

Provincial Court of British Columbia