r v. PAUL D, 2021 QCCM 2

R. c. D'Allaire 2021 QCCM 2 MUNICIPAL COURT OF THE CITY OF MONTRÉAL CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL N o : 120-042-155 DATE: January 14, 2021 ______________________________________________________________________ BY THE HONOURABLE GABRIEL BOUTROS ______________________________________________________________________ THE QUEEN Prosecutor v. PAUL D’ALLAIRE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I. INTRODUCTION [ 1 ] Mr.

D’Allaire is charged with having voluntarily committed an indecent act in a public place in the presence of one or more persons, in contravention of sec. 173(1) (

b) Criminal Code (Cr. C.), as well as with having exposed his sexual organs to a person who was less than 16 years old, in contravention of sec. 173(2) Cr. C. [ 2 ] At his trial, Mr. D’Allaire did not testify or call any witnesses. The prosecution’s evidence, which was uncontested, proved that on November 4, 2019, at around 4 p.m., Mr. D’Allaire was in the women’s restroom in a McDonald’s Restaurant located at 1472 Ste- Catherine Street West. [ 3 ] There, inside a locked cubicle, he proceeded to masturbate for several minutes.

At least two women saw what he was doing through a small opening, between the door and the wall of the cubicle. They called the police who arrived while Mr. D’Allaire was still in the same cubicle and proceeded to his arrest. [ 4 ] The defence did not contest that, by masturbating, Mr. D’Allaire committed an indecent act, or that he had done so in the presence of one or more persons. What was contested was whether a locked stall in a restaurant restroom can be considered a public place. II.

THE FACTS [ 5 ] The facts in this case can be resumed as follows: [ 6 ] The McDonald’s restaurant in question is located on Ste-Catherine Street, near Concordia University. On the day in question, it was extremely crowded, full of families, university students, shoppers and tourists. [ 7 ] Ms. Serine Zerdani testified that she was with her sister and some friends in the crowded restaurant. She had to go to the ladies’ restroom where she used the toilet in one of the stalls.

She was in there for two or three minutes, during which time she heard heavy breathing and the sound of movement from the stall beside hers. [ 8 ] Once she was finished in the stall, she came out and went to wash her hands in a sink. The wall of the stall was within one foot of this sink. She continued to hear the same sounds of heavy breathing and movement from inside the stall. [ 9 ] She went to the sink, which was directly next to the stall, to wash her hands. While there she turned her head and could see directly into the stall through an opening between the stall and the wall.

She testified that this opening was about one inch wide. [ 10 ] When she looked in the stall she saw that a man was sitting on the toilet bowl, with his pants and underwear pulled down, in the process of masturbating. As she described it, the actions she saw matched the sounds that she heard. [ 11 ] She quickly looked away, before looking back into the stall. She explained that she looked a second time because she had not believed what she had seen the first time, and not because she had to make any special effort to see what was going on inside the stall.

She could see easily into the stall simply by turning her head while standing at the sink.

[ 12 ] She left the restroom and told her sister and friends what she had seen, and then reported the incident to the restaurant manager who then called the police. She estimated that it took about 30 minutes between the time she first saw the man in the stall and the arrival of the police on the scene. [ 13 ] A few minutes after she came out of the bathroom, she saw that a girl about 10 or 12 years old was heading to the restroom. She asked her sister, Ms. Melisse Zerdani, to accompany the younger girl. [ 14 ] Ms.

Melisse Zerdani testified that she went into the ladies’ restroom after being told by her sister what had happened. She makes no mention of the younger girl going in at the same time as her. She pretended to wash her hands at the sink and was able to see into the stall through the above-mentioned opening. [ 15 ] Ms. Melisse Zerdani recorded the scene in the stall through this opening, using her cell phone. The video, which was filed into evidence, is only about 5 seconds long. While not affording the best view of what the man was doing, the Court could make out that someone was sitting down in the stall.

A bare leg could be seen, as well as a hand moving up and down near the top of the leg. [ 16 ] Ms. Melisse Zerdani, confirmed that the man in the cubicle was masturbating. She left the restroom and returned a short time later with the police. [ 17 ] A third woman, Ms. Audrey Pellerin, testified that she was in the stall next to the one that was occupied by the man in question. She heard grunting coming from this stall.

Looking under the wall between the stalls she saw that the man’s feet were pointing toward the toilet, as if he was then standing in position to urinate. [ 18 ] The grunting went on for approximately ten minutes, much too long for someone who was urinating to still be there. She could tell from the sounds that the man in the other stall was masturbating. [ 19 ] While the Zerdani sisters described a man who was sitting on the toilet, the Court considers this difference to be irrelevant, as there is no reason that Mr.

D’Allaire should have remained in the same position the entire time he was in the stall. [ 20 ] While Ms. Pellerin was in her stall she noticed one or two young women enter and leave the restroom. At one point she noticed that a young girl (“ petite fille ”) was also in the ladies’ restroom. [ 21 ] When Ms. Pellerin came out of her stall she stood four or five feet away and looked through the crack between the wall of the stall and the stall door. She estimated that the opening was about five millimeters wide.

She could tell that the man’s pants were pulled down, but she could not see more than that. [ 22 ] Although it will not make a difference in the final outcome of this trial, the Court notes that Ms. Pellerin does not seem to be speaking of the same opening as the Zerdani sisters. Both of the sisters looked through an opening while standing at the sink which was beside the stall, and Ms.

Serine Zerdani described the opening as being between the stall and the restroom wall. [ 23 ] When the police eventually arrived they were accompanied by one of the women who had been in the restroom earlier. [ 24 ] Constable Gabriel Cormier-Côté testified last. He and his partner, Constable Abuassally, received a call at 4:29 p.m.

When they got to the restaurant they spoke to the manager and the woman who called 9-1-1. [ 25 ] Constable Abuassally, who is female, entered the ladies’ restroom, while her partner stayed at the open door from where he could see and hear what was happening inside. [ 26 ] Constable Abuassally banged on the door of the stall and ordered the man who was still inside to come out. There was a short delay before the man, who would later be identified as Mr. D’Allaire, came out.

He was arrested at 4:36 p.m. [ 27 ] At the end of the prosecution’s case the defence announced that no witnesses would be called. [ 28 ] The prosecution argued briefly on the second count in the information, that Mr. D’Allaire exhibited his genital organs to a child under the age of 16. [ 29 ] The evidence established that the young girl who went into the restroom (and was described by Ms. Serine Zerdani as 10 to 12 years old) was under the age of 16. None of the evidence, however, indicated that she saw Mr.

D’Allaire’s genitals while she was in the ladies’ restroom. [ 30 ] The Court cannot speculate that she stood at the same spot as the other witnesses from where they could see inside the closed stall, or that she saw his genitals in any other way. There was no evidence as to what she did inside the ladies’ restroom, or how long she was in there. [ 31 ] In the circumstances, the prosecution failed to prove the offence under sec. 173(2) Cr. C . beyond a reasonable doubt, and, as was already stated to the parties, Mr. D’Allaire must be acquitted of count #2. III.

THE APPLICABLE LAW [ 32 ] There remains the first count under sec. 173(1) (

b) Cr. C. which makes it an offence for anyone to “[...] wilfully (do) an indecent

act in a public place in the presence of one or more persons [...]”. [ 33 ] The defence does not contest that the act of masturbation in the context of this case is an indecent act and the Court agrees with this position. It is important to remember that

an act becomes indecent depending on the context in which it takes place. « Contrairement à l'obscénité ou à l'immoralité où l'auditoire n'a aucune pertinence puisque c'est le comportement lui-même ou sa représentation qui est condamnable et doit être proscrit, il en est autrement, il me semble, lorsqu'il s'agit d'indécence. Dans ce dernier cas l'auditoire, s'il y en a un, le lieu et le contexte de la représentation deviennent des éléments essentiels à la détermination de l’indécence […] ». [1] [ 34 ] Therefore,

an act which may not be indecent in one context, for example, in the privacy of one’s home, can become indecent in other circumstances, such as when done in a public place in front of a person or persons who may have no desire to witness it. [ 35 ] Sec. 150 Cr. C . defines a public place as including “any place to which the public have access as of right or by invitation.” Therefore, a place must have the quality of being accessible by the public in order to be characterized as a public one. [ 36 ] The Supreme Court of Canada dealt with the meaning of the expression “a public place” in the case of Clark [2] .

In that case, the defendant was observed masturbating in the living room of his home through an uncovered window by neighbours who looked in from their darkened bedroom next door. The distance between the two sets of windows was between 90 and 150 feet and the neighbours had to use some sort of binoculars or telescope to see into his house. [ 37 ] In Clark , the word “access” in sec. 150 Cr. C. was interpreted as meaning “the right or opportunity to reach or use or visit” a place [3] . The Supreme Court specified that sec. 173(1) Cr.

C. contemplates physical access to the place in which the impugned act was committed; visual access alone was not deemed sufficient [4] . For this reason, a man who was masturbating in his own home while he was visible to his neighbours was not considered to be in a public place. [ 38 ] In the earlier Supreme Court decision of Hutt v. The Queen [5] , it was held that a place over which a person has “sole control” – like a car – might also not be a public place under sec.150 Cr.

C . [ 39 ] Taking these two criteria together, one can conclude that an indecent act occurs in a public place if the act was done in a place to which the public has the right or invitation to physically reach, use, or visit (i.e. “access”), and the person doing the act did not have sole control over the place. [ 40 ] In 1970, the Ontario Court of Appeal held that

an act done “in a locked cubicle in a public washroom” that was “readily accessible to members of the general public who could see into the cubicles even though they were locked” was

an act of gross indecency in a public place [6] . [ 41 ] The Quebec Court of Appeal, in the case of Srei , [7] was called on to decide whether certain indecent acts were committed in a public place. In that case, a police officer caught two men in flagrante delicto inside an adult movie theatre.

The Court convicted the appellant because it concluded that any person could have been a witness to the indecent act which was being committed in that place without having to make any extraordinary effort (moyens extraordinaires) to observe the said act [8] . [ 42 ] The Court went on to add: « En d’autres mots, un accusé pourrait ne pas être coupable de l’infraction en cause si l’acte indécent, posé dans un endroit public, n’avait pas pu être constaté autrement que par une personne qui aurait fait exprès pour le faire et qui aurait pris des moyens que normalement une personne ne prend pas.

En revanche, celui qui, dans un endroit public, pose un acte indécent qui peut être constaté d’une façon normale et qui, volontairement, ou par négligence ou insouciance, expose son acte à toute personne qui peut normalement arriver est coupable de l’infraction.» [9] [ 43 ] In other words, the prosecution needs not to prove that an accused intended that his indecent act be witnessed by other persons, or even that he would be aware that other persons are observing this act.

It suffices, if he is in a public place, that he is negligent or reckless as to whether other persons who may normally find themselves in that place are exposed to his indecent act [10] . [ 44 ] Anyone committing an indecent act in a situation where he could not be sure whether he was being viewed or not, must therefore be responsible for his actions if a member of the public does in fact see the indecent act [11] . [ 45 ] As for the term “ insouciance ” or recklessness, it was defined by the Supreme Court in the case of Sansregret [12] as the conduct of someone who knows that there is a risk that his conduct will bring about a result that is prohibited by law, and yet persists in that conduct anyway. [ 46 ] In a recent decision by the Superior Court [13] , a man was convicted with having committed an indecent act in a public place for having masturbated in while standing beside another person at a urinal in the restroom of a department store.

During his analysis the judge distinguished this situation from another where members of the public would have to make extraordinary efforts to witness the indecent act: « On peut penser, par exemple, à une personne posant un acte indécent dans un cabinet d’aisance fermé qui ne pourrait être vu par une autre personne que si celle-ci passait la tête sous la porte du cabinet. » [14] [ 47 ] In this hypothetical example the person committing the indecent act would not necessarily be considered to be in a public place since members of the public could not see into the cubicle without taking the extraordinary step of looking under door.

IV. APPLICATION OF THE LAW TO THE FACTS

[ 48 ] The ladies’ restroom in the McDonald’s Restaurant is a public place. No argument was made against this self-evident fact. The defence, however, argued that a closed stall in the said restroom was a private space. [ 49 ] The evidence in our case has established that while Ms. Serine Zerdani was standing at the sink to wash her hands, she saw inside the closed stall where Mr. D’Allaire was masturbating simply by looking to her side.

She looked away in disbelief and then glanced again to confirm what she had seen the first time. [ 50 ] In other words, she did not take any “ moyen extraordinaire ” to see inside the stall. Furthermore, the evidence makes it clear that she had no interest or desire to witness what she did, and was extremely upset by it. The Court is convinced that she did not go out of her way in order to observe what Mr. D’Allaire was doing. [ 51 ] The fact that the opening that she looked through was fairly small is not relevant, as she could clearly see what the man was doing.

This is very different from the example cited in Martin [15] , in which a person would have had to bend over and look under the stall door to see the man committing the indecent act. [ 52 ] As in the case of Srei [16] , Mr. D’Allaire’s conduct could be noticed without any special effort being made by members of the public (peut être constaté d’une façon normale). Furthermore, considering the noises that were described by two of the witnesses who were just outside the stall, the Court concludes that they did not intentionally (fait exprè

s) attempt to notice or discern the actions inside the stall. They seem to have had little choice in the matter. [ 53 ] It should be noted that sec. 173(1) Cr. C. makes it illegal to commit an illegal act in “the presence” of other persons, which is broader than requiring that the act be in the view of other persons. The Oxford English Dictionary defines “presence” as “the state or fact of being present,” and “a person or thing that exists in a place but is not seen.” [ 54 ] In our case, all the civilian witnesses heard at trial could at least hear Mr.

D’Allaire, and two of them could see what he was doing without making any extraordinary effort. They were therefore clearly in his presence while he was masturbating in the stall. [ 55 ] As for Mr. D’Allaire’s mens rea, it is true, even if clichéd, that a person’s intentions can be deduced from his actions. In our case, the Court concludes that Mr.

D’Allaire, who spent between 10 and 30 minutes masturbating in the stall of a ladies’ restroom in a crowded family restaurant, all the while grunting and breathing heavily, did not intend to conceal his actions from discovery. [ 56 ] The Court disagrees with the defence’s contention that by closing and locking the stall door he had any expectation of privacy.

Not only is the Court convinced that he did not expect privacy, the Court is also convinced that he had no wish for it either. [ 57 ] If the evidence does not prove that he actively attempted to expose his actions to other persons voluntarily, he certainly did so negligently or recklessly (par negligence ou insouciance) as set out in Srei [17] . [ 58 ] There were small openings between the stalls door and its walls, as well as between the stall walls and the bathroom walls. People came into the restroom and went out constantly, using the stall beside the one in which Mr.

D’Allaire had put himself, or the sink which was just outside this stall. [ 59 ] Ms. Pellerin, in the stall beside his, could also see women and girls who entered and left the restroom. If someone inside a stall could see out, logically anyone outside the stall could be expected to be able to see into it. [ 60 ] It would be reckless, to say the least, for Mr.

D’Allaire to commit his indecent act in this stall without considering the high probability that many other persons would be in his presence at one point or another, and would be able to discern (constater) what he was doing. [ 61 ] The Court also rejects the defence argument that the closed stall was not a public place, because members of the public did not have access to it. The stall in question was not a separate room inside the restroom, but merely part of it.

Members of the public, at least female, had a right of access to the restroom, making the restroom as a whole a public place. [ 62 ] The closed stall in which Mr. D’Allaire found himself was intended to be used by anyone who had access to the restroom, even if that person had to wait for her turn to use it. The stall was not a private or members-only part of the restroom. [ 63 ] The walls and doors of the stall were thin and anything but sound-proofed.

They neither reached down to the floor or up to the ceiling, adding to the sense that the stall was a part of, and not apart from, the rest of the restroom. [ 64 ] The main reasons anyone would enter a public restroom would be to use a stall or to use the sink, and often both these uses would be combined. Stalls are therefore integral to public restrooms, without which members of the public would have much less use for them. [ 65 ] Furthermore, the Court does not find that Mr. D’Allaire’s temporary presence in the stall gave him the kind of sole control of that space which would make it a private space.

The stall was his to use only while he was in it; not before he entered or after he left, which would normally have been after a few minutes. [ 66 ] Therefore both in its physical form and its practical function, the closed stall was still part of the public place that was the ladies’ restroom. [ 67 ] Mr. D’Allaire committed an indecent act in the presence of more than one person in that public place. He knew he was in the presence of these persons, or was at the least extremely reckless about being in their presence, and yet he continued to commit the indecent act.

V. CONCLUSION [ 68 ] Considering the evidence heard in the present case, the Court finds Mr. D’Allaire guilty of the first count in the information, and acquits him on the second count. __________________________________ GABRIEL BOUTROS, J.M.C.C.M. M e Maryse Paquette For the prosecution M e Iza-Li Ouimet For the defence Date of hearing: November 12, 2020