S.173(1): Indecent Act
Under s.173(1) of the Criminal Code, it is an offence to wilfully commit an indecent act either a) in a public place in the presence of one or more persons, or b) in any place public or private with intent to insult or offend any person.[1]
Interpretation of Indecent Act
Conduct is considered indecent where it causes or presents a significant risk of harm to individuals or society, either by impeding the proper functioning of society or undermining constitutionally-endorsed values.[2] Acts that can impair the autonomy or liberty of other people (e.g., by causing them to avoid a specific place), predispose others to antisocial behaviour (e.g., by inciting violence), or directly harm those involved may all be considered indecent.[3] Indecent acts do not need to be sexual in context, although explicitly sexual acts are likely to be considered indecent.[4]
While this subjective approach suggests that many acts could be considered indecent in particular circumstances, most cases have focused on some type of nudity and charges can often be beaten where the act can be framed as amusing to the public or of insufficient moral turpitude to significantly harm society. Acts including female toplessness, “mooning,” streaking, nude swimming, and even feigned masturbation have all been found insufficient to qualify as indecent in the right circumstances.[5]
Presence of Another Person
Without intent to insult or offend, an indecent act must be committed in a public place and in the presence of another person to result in a conviction. This other party cannot be someone directly participating in the act.[6] The defendant does not need to be aware that they are visible or being observed and the observer does not need to be in the same place as the defendant when they see the act.[7] For example, being viewed over a webcam may be considered being in the presence of another person, although the other party may need to be actively watching at the time of the act.[8] Being caught on an unmonitored camera is not considered being in the presence of another person, even though the footage could be watched at a later time.[9]
What Defines a Public Place?
The Criminal Code defines “public place” as any place to which the public have access as by right or invitation, express or implied.[10] Courts may also employ the ordinary meaning of the term.[11] Generally speaking, the public must be able to enter the place physically, not simply see into it.[12] For example, masturbating in view of one’s living room windows may not be considered masturbating in a public place.[13] However, in extreme cases where there is close proximity to another person and clear intent to be seen, the courts may consider a private dwelling to be a public place.[14]
Vehicles are a legal grey area and may or may not be considered a public place depending on how likely other people are to see what is happening. For example, a vehicle may not be considered a public place when parked in a secluded location that is unlikely to be trafficked by other people.[15] However, a vehicle is likely to be considered a public place when parked in areas frequented by the public such as parkettes, beaches, schools, or intersections, particularly at high-traffic times.[16]
Wilfully Committing
To secure a conviction, the Crown must also prove that the indecent act was performed with the intent to be seen, insult or offend. The court may presume that the defendant intended to be seen if someone saw the act or the defendant was reckless to the risk of being seen, but the presumption can be rebutted.[17] For example, stopping the act when someone enters the room may be enough to show that there was no intent to commit the act in the presence of others.[18] Intention to insult or offend is usually inferred from the circumstances.
S.173(2): Indecent Exposure
Under s.173(2) of the Criminal Code, it is an offence for a person to expose their genitals to a person under the age of 16 for a sexual purpose.[19] The courts have suggested that the defendant does not need to be in the same place as the other person when the exposure occurs. For example, exposure via webcam may be sufficient for a conviction.[20]
Sexual Purpose
In addition to establishing that the defendant exposed themself to someone under the age of 16, the Crown must also establish that they did so for a sexual purpose to secure a conviction. Whether the exposure had a sexual purpose is usually inferred from the circumstances. It is not necessary that the defendant exposed themself for sexual gratification, although this reason would demonstrate sexual purpose.[21] The courts will usually assume that there was a sexual purpose where the act of exposure is established, although a clear alternative explanation for how and why the exposure occurred can defeat the charges.[22] For example, exiting the shower nude not knowing that a child was in the room would not be considered exposure for a sexual purpose, assuming the defendant covered up upon realizing that the child was present.[23]
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[1] Criminal Code, RSC 1985 c C-46, s173(1) [Criminal Code].
[2] R c Labaye, 2005 SCC 80 at para 62.
[3] Ibid.
[4] R v Jacob, 1996 CarswellOnt 4705, [1996] OJ No 4304, 112 CCC (3d) 1, 142 DLR. (4th) 411, 31 OR (3d) 350, 33 WCB. (2d) 124, 40 CRR. (2d) 189, 4 CR (5th) 86, 95 OAC 241 [Jacob].
[5] Ibid; R. v. Hecker (1980), 58 CCC (2d) 66 (YT Terr Ct); R v Pierce, 2017 ONCJ 875; R v Springer (1975), 24 CCC (2d) 56 (Sask Dist Ct); Regina v. Benolkin et al, 1977 CanLII 1956 (SK KB).
[6] R v Miceli, 1977 CarswellOnt 1130, [1977] OJ No 2565, 36 CCC (2d) 321.
[7] Ibid.
[8] R v Alicandro, 2009 ONCA 133 [Alicandro].
[9] R v Follett (1995), 98 CCC (3d) 493 (Nfld CA); leave to appeal refused (1995), 101 CCC (3d) vi (note) (SCC) [Follet].
[10] Criminal Code, supra note 1, s150.
[11] R v Lavoie, 1967 Carswell NB 10, [1968] 1 CCC 265.
[12] R v Clark (2005), 193 CCC (3d) 289 (SCC) at para 45.
[13] Ibid.
[14] R v Beaulieu, 2011 ABPC 254; R v Williams, [2006] OJ No. 4417 (Ont. SCJ).
[15] See R v Sloan, [1994] OJ No 758 (Ont CA).
[16] See R v Dalli, [1996] OJ No 762 (Ont Prov Div); R v Rempel, [1998] BCJ No 1525 (BC SC); R v Sheikh, 2008 CarswellOnt 2275, [2008] OJ No 1544, 77 WCB (2d) 252.
[17] R v Berhe, 2011 ONSC 6815 (CanLII), OJ No 5142; R v Parsons, 1962 CanLII 550 (BC SC), [1963] 3 CCC 92 (BCSC).
[18] Follet, supra note 9.
[19] Criminal Code, supra note 1 s173(1).
[20] Alicandro, supra note 8.
[21] R v Hobin, 2020 CarswellNfld 332, [2020] NJ No 248, 168 WCB (2d) 449 at para 52.
[22] Ibid at para 57.
[23] Ibid.
