[hoosier]

November 3, 2004

Masturbation case called test

By SUN MEDIA


OTTAWA -- There's no place for the state in the living rooms of the nation, the Supreme Court of Canada was told yesterday as it heard the bizarre case of a B.C. man caught masturbating by his next-door neighbours. Challenging a conviction for committing an indecent act in a public place, Daryl Clark is testing the legal bounds of when a private home can become a public place. The Nanaimo man was accused of craning and bobbing to view two young girls while pleasing himself in the window of his well-lit living room.

Lawyer Gil McKinnon insisted Clark had no intention to turn his personal apartment into a public stage. Expanding Parliament's intended definition of "public place" could invite state intrusion into homes, he warned.

Clark's case stems from a fall evening in October 2000, when a neighbour noticed him moving back and forth in his living room. After getting a better vantage from another room, the neighbour was convinced he was masturbating and shifting to get a better look at her two daughters who were engrossed in a television program at the time.

The complainant summoned her husband, who used a telescope and binoculars to view the semi-nude Clark.

Joyce DeWitt-Van Oosten, lawyer for B.C.'s attorney general's office, insisted Clark entered the "public world" when he acted as a reckless exhibitionist and extended an "explicit invitation" for people to watch.

RAISED EYEBROWS

But several Supreme Court justices raised eyebrows at the argument, firing questions about how re-interpreting the definition of "public place" might expose any Canadian to criminal sanctions for acts within their own homes. Complainants could have curtailed their exposure by drawing blinds or pulling the curtains, some suggested.

A Vancouver trial judge had earlier concluded Clark had effectively transformed his home to a public place by acting like a "person on stage" with "amazingly physical" behaviour.