International Law

R. v. Sheikh

A rather interesting public indecency case.

In the present case, the facts are that the Appellant was seated in a reclining position in the driver?s seat of his vehicle with his pants at his ankles, his penis was erect and he was in the course of putting a condom on his penis. The context of those acts was that he was accompanied by a woman [a prostitute he had picked up earlier], he was in a position in his car where he was fully visible to outsiders, the car was located in the middle of the parking lot of a high school, the parking lot was illuminated, there were 65 to 70 cars in the parking lot, it was approximately 8:00 p.m. and there were many individuals who were attending a basketball game at the high school and who were entering and leaving the parking lot. There were also people near the Appellant?s vehicle in the parking lot.

The jurisiprudence suggests that a car may constitute a public place, or perhaps more precisely be in a public place. As was found here. Though I have to say I found the characterization of the evidence somewhat misleading. Was the appellant really “in a position where he was fully visible to outsiders”? The only other reference to his “position” in the car is that he was in a “reclined position.” Would this make him “fully visible”? The arresting officer couldn’t tell what, if anything, was going on until he approached the car. Surely it’s almost impossible to see below the waist of people sitting in a car unless you go right up to the window and look in. And while I would agree this was hardly an isolated spot, the fact is there is a certain concealment also offered by crowds. The fact that he was parked in among other cars is less an exacerbating factor then an attempt to hide. Most parked cars don’t have people in them. They may be likened to fences or trees.

I also thought the second ground of appeal received short shrift. The appellant argued “that a finding of harm must be based on evidence and cannot be presumed or inferred to be harmful or to be harmful to a degree incompatible with the standards of society simply based on the context of time and place.” The Crown had tendered no evidence at trial as to whether the alleged conduct (that is, putting on a condom) was harmful. It was argued that an analysis such as outlined by the Supreme Court in Labaye should have occurred.

Justice Panet wasn’t buying this, saying that in Labaye “the requirement is . . . only established ‘as a general rule.’” True, but the example the Supreme Court gives of conduct that would “on its face be repugnant to our law and the proper functioning of our society” is of someone killing in the course of sexual conduct! That’s a far step from putting on a condom! As the Court said in Labaye, “in most cases, expert evidence will be required to establish that the nature and degree of the harm makes it incompatible with the proper functioning of society. In every case, a conviction must be based on evidence establishing beyond a reasonable doubt actual harm or a significant risk of actual harm” (emphasis added). But here the decision was made that this was such a clear case that “no evidence is required because the nature and the degree of harm which makes it incompatible with the proper functioning of society is obvious.”

I don’t see it. I think this is a misreading of Labaye anyway.

Full post as published by Criminal Review on April 27, 2008 (boomark / email).