Canadian Criminal Law/Offences/Indecent Act

Legislation Indecent acts 173. (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person, (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months. Exposure (2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days. R.S., 1985, c. C-46, s. 173; R.S., 1985, c. 19 (3rd Supp.), s. 7; 2008, c. 6, s. 54; 2010, c. 17, s. 2; 2012, c. 1, s. 23. CCC Proof of the Offence In addition to the essential elements of time and date, jurisdiction and identity, the Crown must prove: indecent act in a public place accused performs an indecent act the act is in a public place the act is in the presence of one or more individuals indecent act intending to offence accused performs an indecent act the act was performed with the intention to insult or offend a person the act is in the presence of one or more persons exposes genitals to person under 16 exposes genital organs exposes for a sexual purpose in presence of person under 16 accused knew or was reckless that person was under 16 Interpretation The offence does not require a "sexual context". R. v. Jacob, 1996 CanLII 1119 (ON C.A.) R. v. Carruthers, 2004 SKPC 75 See also:R. v. Mailhot, 1996 CanLII 6499 (QC CA) Masturbation from inside a vehicle while making eye contact with a passer-by falls into sexual context.R. v. Gill, 2010 BCPC 256 Wilful The use of the term “wilful” in this context has been found to include “recklessness”. R. v. Berhe, 2011 ONSC 6815 – newspaper hiding genitals is blown away resulting in exposure There is a presumption of wilful intent where the act is seen by another person.R. v. Parsons , [1963] 3 CCC 92 (BCSC) see also R. v. Dalen (1978), 44 CCC (2d) 228 (Sask Dist. Ct) Public Place Under s. 150, a "public place ... includes any place to which the public have access as of right or by invitation, express or implied;" A public place can include exposing oneself to persons at a crosswalk from inside a car.R v McEwan [1980] 4 WWR 85 (SKPC) However, an act done from inside the livingroom of a residence may be visible to persons outside the home, but will not be considered as public place.R v Clark [2005] 1 SCR 6 One or More individuals The requirement of the act being visible to one or more persons is not satisfied by the act involving more than one participants who are observing the act nor where an unmonitored video recording is made.R v Follett (1994) 91 CCC (3d) 435 (NLSC) aff'd 98 CCC (3d) 493 (NLCA) The accused and observer do not need to be in the same place to make out the offence.R. v. Alicandro, 2009 ONCA 133 (CanLII) 2 History In 2012, s. 173(1) was amended from a straight summary conviction offence to a hybrid offence. Section 173(2) was amended to include the mandatory minimums. Indecent Act