Canadian Criminal Law/Offences/Indecent Act
| Indecent Act | |
|---|---|
| s. 173 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid |
| Jurisdiction | Prov. Court SC Judge + PI (I) SC Jury + PI (I) (536(2)) |
| Summary Dispositions | |
| Maximum | 6 months jail or $5,000 fine |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Maximum | 2 years jail |
| References | |
| Offence Elements Sentence Principles Sentence Digests | |
Legislation
[edit | edit source]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
[edit | edit source]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
[edit | edit source]The offence does not require a "sexual context". [1]
Masturbation from inside a vehicle while making eye contact with a passer-by falls into sexual context.[2]
Wilful
The use of the term “wilful” in this context has been found to include “recklessness”.[3]
There is a presumption of wilful intent where the act is seen by another person.[4]
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.[5]
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.[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.[7]
The accused and observer do not need to be in the same place to make out the offence.[8]
- ↑
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) - ↑ R. v. Gill, 2010 BCPC 256
- ↑ R. v. Berhe, 2011 ONSC 6815 – newspaper hiding genitals is blown away resulting in exposure
- ↑
R. v. Parsons , [1963] 3 CCC 92 (BCSC)
see also R. v. Dalen (1978), 44 CCC (2d) 228 (Sask Dist. Ct) - ↑ R v McEwan [1980] 4 WWR 85 (SKPC)
- ↑ R v Clark [2005] 1 SCR 6
- ↑ R v Follett (1994) 91 CCC (3d) 435 (NLSC) aff'd 98 CCC (3d) 493 (NLCA)
- ↑ R. v. Alicandro, 2009 ONCA 133 (CanLII)
History
[edit | edit source]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.