R. v. Clark (D.M.) (2005), 329 N.R. 10 (SCC)

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Temp. Cite: [2005] N.R. TBEd. JA.016

Daryl Milland Clark (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(29976; 2005 SCC 2; 2005 CSC 2)

Indexed As: R. v. Clark (D.M.)

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

January 27, 2005.


The accused was convicted of committing an indecent act (masturbating) in a public place contrary to s. 173(1)(a) of the Criminal Code. A summary conviction appeal court af­firmed the conviction. The accused ap­pealed, submitting that the conviction was unreasonable where the act was committed in his own living room without the presence of one or more persons, or where the persons observing him were in a nearby house.

The British Columbia Court of Appeal, in a judgment reported (2003), 185 B.C.A.C. 87; 303 W.A.C. 87, dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the ap­peal, set aside the conviction and substi­tuted an acquittal.

Criminal Law – Topic 699

Sexual offences, public morals and dis­orderly conduct – Sexual offences – Par­ticular offences – Indecent act in public place – The naked accused walked back and forth in front of his living room win­dow, masturbating in a well-lit room – The accused was observed by a neighbour – Sec­tion 173(1)(a) of the Criminal Code made it an offence to wilfully perform an indecent act “in a public place in the pres­ence of one or more persons” – Section 150 defined “public place” as including any place to which the public had access by right or by express or implied invitation – The Supreme Court of Canada set aside the accused’s conviction under s. 173(1)(a) and substituted an acquittal on the ground that his living room was not a “public place” under s. 173(1)(a) – “Access” for the purposes of s. 150 meant “physical” access, not “visual” access – Unless the public was afforded physical access to a place by right or invitation, that place could not be a “public” place – Other provisions of the Criminal Code dealt with conduct on pri­vate property that was criminal because it was exposed to public view, as opposed to the conduct having occurred in a public place.

Words and Phrases

– The Supreme Court of Canada held that “access”, as used in s. 150 of the Criminal Code, R.S.C. 1985, c. C-46, to define what constituted a “public place”, meant actual physical access, not visual access.

Words and Phrases

Public place
– The Supreme Court of Can­ada held that a person’s living room, to which the public had no physical access by right or invitation, was not a “public place” within the meaning of s. 173(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

Cases Noticed:

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 9].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 9].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 9].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 9].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 9].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 9].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 9].

R. v. Keir (1919), 34 C.C.C. 164 (N.S.S.C.), dist. [para. 24].

R. v. Buhay (1986), 41 Man.R.(2d) 254; 30 C.C.C.(3d) 30 (C.A.), dist. [para. 24].

R. v. Thallman (1863), 9 Cox C.C. 388, dist. [para. 25].

R. v. Clifford (1916), 26 D.L.R. 754 (Ont. S.C.), refd to. [para. 26].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 39].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 43].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 43].

R. v. Hutt, [1978] 2 S.C.R. 476; 19 N.R. 331, refd to. [para. 53].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 150, sect. 173(1) [para. 38].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 43].


Gil D. McKinnon, Q.C., for the appellant;

Joyce Dewitt-Van Oosten and Kenneth D. Mad­sen, for the respondent;

Christine Bartlett-Hughes, for the inter­venor.

Solicitors of Record:

Gil D. McKinnon, Q.C., Vancouver, B.C., for the appellant;

Ministry of the Attorney General of British Columbia, Vancouver, B.C., for the re­spondent;

Ministry of the Attorney General of On­tar­io, Toronto, Ontario, for the intervenor.

This appeal was heard on November 2, 2004, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On January 27, 2005, Fish, J., delivered the following judgment in both official languages for the Court.


R. v. Clark (D.M.)

(2005), 329 N.R. 10 (SCC)

Supreme Court of Canada
Reading Time:
14 minutes
Abella, Bastarache, Binnie, Charron, Deschamps, Fish, LeBel, Major, McLachlin 

Fish, J.
: The appellant stands convicted for having masturbated near the uncovered window of his illuminated living room.

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