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High court says masturbation at home not an offence if seen by neighbours
http://news.yahoo.com ^ | Thu Jan 27, 6:26 PM ET | WENDY COX

Posted on 01/29/2005 12:25:16 PM PST by mastercylinder

VANCOUVER (CP) - The Supreme Court of Canada has ruled that masturbating at home is not an offence, even if the activity can be seen by peeking neighbours.

 

The case centred on whether a private space - Daryl Clark's living room - became public because others could view it. The high court said No in a unanimous ruling Thursday. "The living room of his private home was not a place 'to which the public (had) access as of right or by invitation, express or implied,' " Justice Morris Fish wrote, quoting the Criminal Code.

"I do not believe it (access) contemplates the ability of those who are neither entitled nor invited to enter a place to see or hear from the outside, through uncovered windows or open doors, what is transpiring within."

On Oct. 28, 2000, Clark's neighbours across his backyard in Nanaimo, B.C., noticed "some movement" in Clark's living room.

The woman had been watching television with her two young daughters in their family room, a room lit only by a television screen and light from the adjoining kitchen.

The woman moved to another room for a better view, then called her husband. The pair watched Clark for up to 15 minutes from the privacy of their darkened bedroom.

The court found they took care to avoid being seen by Clark, peering out from underneath their partially lowered blinds. Later, the woman's husband fetched a pair of binoculars and a telescope. He also tried, unsuccessfully, to videotape Clark in action, says the judgment.

The judgment notes the pair were "understandably concerned" because they feared Clark was "masturbating to our children."

The neighbours, who are identified only as Mr. and Mrs. S, called police.

The officer was able to see Clark from his belly up from the neighbour's bedroom and from the neck or shoulders up from the street level.

But Clark was charged after the police officer shone his flashlight in Clark's window at close range.

The trial judge concluded he had "converted" his living room into a public place and the B.C. Court of Appeal upheld the conviction.

Clark was given a four-month sentence.

Gil McKinnon, Clark's lawyer, said his client is happy with the outcome and glad to be getting on with his life, but he's not interested in talking about his court fight.

McKinnon said the Supreme Court rejected the notion that people's private living spaces can be turned into public places just because someone can see inside.

"A person has the freedom in his or her own living room to do whatever they choose to do and is not caught by the criminal law if they have no intent to offend or insult someone who may not be on that private property."

The protection isn't extended to someone who commits an indecent act on their own property with the intention of letting the neighbours see it.

 

But in this case, the evidence suggested Clark had no idea he was being watched, the court found.

John Russell, president of the B.C. Civil Liberties Association, said he was surprised the case got before the courts in the first place.

But he said he was relieved the ruling went the way it did.

If it had gone the other way, "we would have to be a lot more careful about closing the drapes or covering up.

"In fact, most Canadians are careful in those ways and it would appear that the poor man had just failed to take the formal precautions."


TOPICS: Canada; Crime/Corruption
KEYWORDS: manshomeishiscastle; masturbation; nosyneighbors; peepingtoms; pervert; privacy; puritans; sicko
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To: big'ol_freeper

He seems to have gotten a firm grip on the issue at hand.


41 posted on 01/29/2005 1:04:10 PM PST by ichabod1 (The Spirit of the Lord Hath Left This Place)
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To: mastercylinder
The woman moved to another room for a better view

The later moved into the kitchen to tenderize her steak with a hammer.

42 posted on 01/29/2005 1:04:25 PM PST by No Blue States
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To: The Ghost of FReepers Past

Ah, assumes facts not in evidence (or at least not on this thread :).


43 posted on 01/29/2005 1:08:43 PM PST by Ready4Freddy (Veni Vidi Velcro)
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To: mastercylinder

Why is this news? Canadians ARE wankers.


44 posted on 01/29/2005 1:11:27 PM PST by WorkingClassFilth (Bringing the Gospel to idiots one slug in the guts at a time...)
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To: mastercylinder

"The pair watched Clark for up to 15 minutes from the privacy of their darkened bedroom."

15 minutes?! Sounds like they were more interested than upset.


45 posted on 01/29/2005 1:11:30 PM PST by Goldwater4ever (Voted early, voted often... for Bush)
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To: Ready4Freddy

I'm not assuming facts. They were facts I read in another news report. Obviously many thought the man intended to be seen (not just me) or the case would not have made it all the way to the Supreme Court. This story just tells the defense perspective.


46 posted on 01/29/2005 1:11:34 PM PST by The Ghost of FReepers Past (Legislatures are so outdated. If you want real political victory, take your issue to court.)
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To: Still in Denial
In the privacy of your own home!

See, that's just the thing. Was it in fact in the privacy of his home? We agree it was in his home, but is everything inside your home private?

If you play loud music from inside your home, that's not "private," because the neighbors can hear. Likewise, it you put on a display in front of the windows, it's no longer private.

If he closed his blinds before he got his jerk on, it would be private; if he does it in front of the window, it's somewhat public.

People have a lot of rights inside their homes that they don't have out on the streets. One of those rights is to sexual activity in private. But another one of those rights is to be free from offensive displays, to a certain degree.

47 posted on 01/29/2005 1:21:01 PM PST by xm177e2 (Stalinists, Maoists, Ba'athists, Pacifists: Why are they always on the same side?)
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To: big'ol_freeper

hehe.....nice play on words......I wonder if it still applies if you are doing it on the roof


48 posted on 01/29/2005 1:23:14 PM PST by NorCalRepub
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To: The Ghost of FReepers Past

I would be very interested to see what the other news report had to say. based on this, it sounds like the neighbors are the ones who should be charged with a crime. They were the peeping toms, hiding behind their blinds, using binoculars and a freaking telescope, trying to tape it....seriously, WTF? Sounds like they were going out of their way to watch something that ordinarily wouldn't be noticable. NOw if the man was actually standing in front of the window on purpose, that's a whole different story. But if he was so clearly visible to the neighbors, why did they need binoculars?


49 posted on 01/29/2005 1:24:31 PM PST by sassbox
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To: The Ghost of FReepers Past

'tis OK to post a link to the other stoy(ies) for us.....


50 posted on 01/29/2005 1:27:55 PM PST by Ready4Freddy (Veni Vidi Velcro)
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To: mastercylinder

I remember another story. This elderly woman called the police to complain that she could see her neighbor walking naked in his apartment across the street from her bedroom. When the police came to her home, they could only see the top half of his body and told her he's not doing anything wrong since his genitals couldn't be seen.

The old lady then replied, "Stand on the bed, stand on the bed!"


51 posted on 01/29/2005 1:27:57 PM PST by Edward Watson
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To: WorkingClassFilth

Hey, I'm a Canadian you Yanker.


52 posted on 01/29/2005 1:30:55 PM PST by Edward Watson
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To: Edward Watson

Hey, I was just jerking your chain. Besides, you guys can't play hockey and deserve scorn.


53 posted on 01/29/2005 1:33:57 PM PST by WorkingClassFilth (Bringing the Gospel to idiots one slug in the guts at a time...)
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To: Normal4me

I'm surprised they didn't get him on an animal cruelty
charge, for choking the chicken.


54 posted on 01/29/2005 1:34:30 PM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: Lokibob

Did his hand go to sleep after he was done?



They did notice it was holding a cigarette though.


55 posted on 01/29/2005 1:35:30 PM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: Fintan

You're a sicko!

for posting that before I got a chance to
;op
56 posted on 01/29/2005 1:35:53 PM PST by yooling (Now, go away or I shall taunt you a second time!)
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To: WorkingClassFilth

Don't worry, I'm not offended. Just couldn't resist the play on words with "Yank" as a description for Americans.


57 posted on 01/29/2005 1:38:04 PM PST by Edward Watson
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To: sassbox
But if he was so clearly visible to the neighbors, why did they need binoculars?

Maybe he just looked teeny wienie? Obviously he didn't make a deep impression.
58 posted on 01/29/2005 1:38:39 PM PST by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: Edward Watson

You guys can handle the stick pretty well, it's just that you seem forget the goal. We're talkin' hockey, of course. ;)


59 posted on 01/29/2005 1:41:08 PM PST by WorkingClassFilth (Bringing the Gospel to idiots one slug in the guts at a time...)
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To: mastercylinder

60 posted on 01/29/2005 1:42:47 PM PST by Happygal (liberalism - a narrow tribal outlook largely founded on class prejudice)
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