R. v. Jackson, 2023 BCPC 55

Citation: R. v. Jackson 2023 BCPC 55 Date: 20230315 File No: 31211-2-C Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. DION EVAN JACKSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: K.J. Schille Counsel for the Defendant: E.C. Strain Place of Hearing: Prince Rupert , B.C. Date of Hearing: March 14, 15, 2023 Date of Judgment: March 15, 2023

Introduction [ 1 ] THE COURT: These are my reasons for judgment. I reserve the right to order a transcript and edit these reasons for judgment to make them grammatically correct or more readable, but the result and substance of my decision will not change. [ 2 ] Mr. Jackson is charged that: … on or about the 1st day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, did for a sexual purpose, expose his genital organs to SD and PE, persons who are under the age of sixteen years, contrary to Section 173(2) of the Criminal Code . [ 3 ] Section 173(2) states: Exposure

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days. [ 4 ] The trial occurred on March 14 and 15, 2023, in Prince Rupert, British Columbia. The BC Prosecution Service called five witnesses. The defence elected to call no evidence.

Facts [ 5 ] On Sunday, May 1, 2022, a cloudy overcast day, 12-year-old S.D. and 13-year-old P.E., cousins and good friends, were dropped off before 6:00 p.m. at Pacific Mariners Memorial Park in Prince Rupert, British Columbia, by S.D.'s brother. [ 6 ] After a quick trip to the Safeway store across the street, the girls returned to Pacific Mariners Memorial Park. They got onto either side of the teeter-totter that is positioned north to south with the Pacific Ocean to the west and 1st Avenue East to the east. P.E. was on the south end of the teeter-totter.

S.D. was on the north end of the teeter-totter. [ 7 ] To the north of S.D., approximately 50 metres away, the defendant was standing on the Pacific side of the Kazu Maru Boat Memorial, a memorial to mariners who have lost their lives in the Pacific Ocean. P.E. could see the defendant, who was staring at her and masturbating. P.E. saw the defendant's erect penis, which he was moving quite aggressively in his hands, which P.E. described as an "up and down" motion. She looked at the defendant for approximately 30 seconds, then looked away, then looked at him again.

Shocked and wanting confirmation that she was seeing the defendant masturbating, she asked S.D., "Come over here to make sure you're seeing what I'm seeing." P.E. wanted S.D. to confirm that the man dressed in black was staring at them while masturbating. [ 8 ] When S.D. looked at the defendant, she immediately noticed two things: he was staring at the girls and masturbating. S.D. saw the defendant's hand moving back and forth. S.D. also saw the defendant's penis out of his pants and in his hand as he masturbated.

P.E. told S.D., "We should leave and call your mom." [ 9 ] S.D. used P.E.'s telephone to phone her mom. S.D.’s mom directed her to walk down the street to The Wheelhouse Brewing Company, across from the north end of Pacific Mariners Memorial Park, and wait for her there. The girls walked north along the sidewalk past the defendant and the Kazu Maru Boat Memorial to The Wheelhouse Brewing Company parking lot. [ 10 ] Some five to 20 minutes later, S.D.'s parents arrived at The Wheelhouse Brewing Company. The defendant was still standing beside the Kazu Maru Boat Memorial.

S.D.'s mom, S.F., and her father, O.D., asked the girls questions to ensure they had seen a man masturbating in Pacific Mariners Memorial Park. Either the mom or dad called the police. [ 11 ] Dad drove the family Ford Flex across the street and parked on 1st Avenue East, approximately 10 metres to the east of the Kazu Maru Boat Memorial, facing the defendant. Dad got out of the Ford Flex and walked around the park to the Pacific side, using his camera phone to try and take a discreet picture of the defendant. He was unsuccessful. [ 12 ] Dad returned to the Ford Flex and sat in the driver's seat.

Mom was in the front passenger seat. S.D. and P.E. were in the back seat, crouching down, when they noticed some 13-year-old girls they knew walking south on the sidewalk beside the park and the Kazu Maru Boat Memorial. [ 13 ] All four occupants of the Ford Flex saw the defendant looking at the 13-year-old girls as they walked by the Kazu Maru Boat Memorial. S.D., P.E., mom and dad all saw the defendant masturbating as the girls walked by. [ 14 ] The defendant's body hunched, leaning forward, his hand moving forward, cupped around his penis, with vigorous movement, stated Mom.

She also stated that she could see everything. While she does not know whether the defendant was erect, she was confident that his zipper was undone and "Anyone who looked would know exactly what he was doing." [ 15 ] Constable Wong arrived shortly after that. He approached the defendant and explained that he was responding to a complaint that the defendant was masturbating in the park. Constable Wong asked the defendant to leave the park. Discussion

[ 16 ] Both girls were confident and unmoved from their position on cross-examination that the defendant's penis was in his hands and that he was masturbating while staring at them. There were some slight discrepancies in their evidence, consistent with two individuals recounting the same event, now some ten months after. [ 17 ] S.D., P.E., mom and dad all testified that they saw the defendant masturbating as the girls walked by. They all made independent but consistent observations of the defendant masturbating. S.D., P.E. and mom denied that the defendant could have been urinating.

Dad agreed with defence counsel that the defendant might have been urinating but was very confident that the defendant was masturbating, not urinating. [ 18 ] The evidence of all four witnesses was consistent and believable. Nothing arose from the cross-examination of the four eyewitnesses to raise doubt about what the witnesses observed. All four witnesses observed the defendant masturbating. The girls and mom saw the defendant's penis.

There was no doubt in any of the witnesses' minds that they had seen the defendant masturbating as the girls walked by. [ 19 ] The video and still photograph in Picture 5 of Exhibit 1 do not assist the BC Prosecution Service case, but neither do they take away from the prosecution case. Regardless of who took the still photo, the result is the same: the defendant was precisely where the witnesses all say he was, with a hand in his crotch area. Decision [ 20 ] The extensive cross-examination of the witnesses did not raise a reasonable doubt about what the defendant was doing in the park.

He was masturbating with his penis exposed for a sexual purpose. Accordingly, I find Mr. Jackson guilty of the single count before the court. (REASONS FOR JUDGMENT CONCLUDED)