January 28, 2005

CANADA: BASTION OF PRIVATE PROPERTY RIGHTS

A self-made man is master of his domain (Kirk Makin, Globe and Mail, January 28th, 2005)

A man's home is his castle -- even if he accidentally turns it into a neighbourhood peep show.

A Supreme Court of Canada ruling yesterday found that a Nanaimo, B.C., man was wrongly convicted of committing an indecent act in 2000, after he was spotted masturbating near his living room window.

The accused, Daryl Milland Clark, was reported to police after a neighbouring couple furtively observed him through binoculars for 10 to 15 minutes, then called police.

"This is an important case from the perspective of defining a public place," Mr. Clark's lawyer, Gil McKinnon, said in an interview.

"People can be comforted to know that a law-abiding citizen who does some kind of act in privacy -- without knowledge he is being observed by someone outside -- is not at risk of being prosecuted," Mr. McKinnon said.

Unfortunately, exoneration came too late for the married, retired defendant. Mr. Clark has already served a four-month jail sentence and seen his name etched into law books forever. [...]

The complainants, a couple who lived next door to Mr. Clark, told police they were worried for the welfare of their two daughters when they spotted Mr. Clark masturbating about 40 metres away, across their contiguous back yards.

Retreating to their darkened bedroom to get a better look, they peered through a chink in the blinds. One of them -- identified only as Mr. S. -- even fetched binoculars and a telescope.

"He also tried, unsuccessfully, to videotape the appellant in action," Mr. Justice Morris Fish noted, writing for a 9-0 majority.

As much as we rejoice at seeing Locke and Hayek vindicated, one does wonder how many idiots it took to turn this sordid little story into a Supreme Court case.


Posted by Peter Burnet at January 28, 2005 1:07 PM
Comments

People who look into other people's windows with binoculars, observe them in private behavior and then call the cops should be beaten to death with a sledgehammer.

If he were choking his chicken on the front lawn or in the backyard, not obscured by hedges, they might have an issue. But no amount of force is excessive enough and no punishment either cruel or unusual enough to be used on anyone who feels they should be peering into other people's windows.

Posted by: Bart at January 28, 2005 3:20 PM

Prosecutorial and judicial malpractice. This should have been a blow-out at the lowest level, particularly where the trier of fact has found that the exposition was unintertional.

Posted by: Lou Gots at January 28, 2005 3:23 PM

Well put, Bart.

As soon as the cop found out they used binoculars to view and attempted to videotape him, they should have sited for peeping.

Posted by: Chris B at January 28, 2005 3:33 PM

If someone saw the voyeuristic couple doing their telescope trick, could that someone turn them into the police for being a peeping tom.

Of course if that someone was looking thru binoculars, could that someone themselves be so accused.

Hmmm this well never end will it.

Posted by: h-man at January 28, 2005 4:03 PM

Silly case -- but folks, if you're gonna do that, please keep your shades down.

Posted by: Matt Murphy at January 28, 2005 5:00 PM

Whould he have been jailed if he was having sex with his wife and two pervert neighbors had spied on him? What an unbelievablely idiotic case.

The neighbors, and the moron judge who sentenced him should be hung on the same tree.

Posted by: Amos at January 28, 2005 8:16 PM

It can't happen here. Can it?

Posted by: Robert Schwartz at January 28, 2005 11:27 PM
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