Nigel's Case — Indecent Act — Dismissed

Client:  Nigel, Accused
Complainant:  Undercover Officer, Toronto Police Service, 42 Division
Charge:  Indecent Act

Background:  Nigel was at Morningside Park in Toronto. He had gone there hoping to meet another man for a sexual encounter. Unfortunately, Nigel mistakenly thought that an undercover police officer was interested in him. He pulled out his penis and started masturbating. He was arrested for committing an indecent act in a public place. Nigel was both puzzled and embarrassed by the mix-up.

Goals:  In my office, we brought into focus the real issues. Where am I now? What paths would my case take? Where would it end? Nigel's primary concern was his job. If even a whiff of what was going on became known at his work, he would be finished. We needed to avoid a criminal record. Our goal was to have the charge withdrawn or dismissed.

Strategy:  To prove an indecent act as defined by the Criminal Code, the Crown would have to prove (i) that the act was indecent, (ii) that it was in a public place, and (iii) that it was in the presence of one or more persons. We hoped to raise a reasonable doubt on this last issue. Since Nigel honestly believed that the police officer was sexually interested in him, and since there were no other persons present, I tried to convince the Crown that the Nigel did not intend to commit the act "in the presence of one or more persons." The Crown did not accept my presentation of the facts, nor my interpretation of the law. They refused to withdraw the charge. We refused to plead guilty. The matter had to be scheduled for trial. We settled in for the long wait to battle. Nigel had no choice but to be patient.

Results:  The Judge accepted Nigel's evidence that he had a mistaken belief. He further found that there was a basis for that mistaken belief. The charge was dismissed.

READ THE JUDGE'S DISMISSAL