Indecent Act (Criminal Code)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	2287
Page Categories:	Criminal Law
Citation:	Indecent Act (Criminal Code), CLNP 2287, <>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2023/10/18

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Criminal Code R.S.C., 1985, c. C-46

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.

(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. v. Jacob, 1996 CanLII 1119 (ON CA)

OSBORNE J.A. (AUSTIN J.A. concurring): -- I agree with Weiler J.A. that the appeal should be allowed. I do not, however, agree with her reasons for reaching that conclusion. In particular, I do not agree that to be an indecent act, as proscribed by s. 173(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, the act must have a sexual context.

In my opinion, the community standard of tolerance test must be used to answer the question whether the appellant's topless stroll in downtown Guelph constituted an indecent act. If the community standard of tolerance test is correctly applied (and I agree with Weiler J.A. that it was not) I do not think that the appellant committed the offence with which she was charged. I reach that conclusion in the light of the evidence which establishes the general context of the appellant's actions, the trial judge's findings and significantly the absence of evidence that the appellant's choice of apparel caused any harm.

I agree with Weiler J.A. that if an act must have a sexual context to be an indecent act under s. 173(1)(a) and the act does not have a sexual context, there is no need to determine if the act exceeded the community standard of tolerance. In my opinion, the context of the appellant's acts (including any elements of moral turpitude) should be considered as part of the fabric of the community standard of tolerance, not as an element of the offence.

My colleague's sexual context requirement makes the community standard of tolerance test redundant in this case. I thus propose to first consider whether an act must have a sexual context to be an indecent act proscribed by s. 173(1)(a) of the Criminal Code. For purposes of discussion and analysis, I am prepared to assume that the appellant's conduct on July 19, 1991 had no sexual context.

Regina v. Simon, 2010 ONSC 6207 (CanLII)

[3] The offence under subsection (b) requires proof beyond a reasonable doubt of the actus reus, the occurrence of the indecent act done intentionally as opposed to being accidental or involuntary, and a specific intent, being the intent of insulting or offending someone. The offence under subsection (a) does not require proof of a specific intent to offend a person. This distinction was pointed out with clarity by the majority judgment of the Ontario Court of Appeal in R v Jacob 1996 CanLII 1119 (ON CA), [1996] O.J. No.4304 at para 18:

I agree that if that intent (the accused’s intent to insult or offend) is not established there cannot be a conviction under subsection 1(b). In my view, to secure a conviction under subsection 1(b), the act must be done wilfully, with the intent to insult or offend and it must be “indecent”, that is it must exceed the community standard of tolerance.

[4] This requirement of proof, not only of a wilfully performed indecent act, but also of the specific intent to insult or offend in order to convict under clause (1)(b), was accepted also by the dissenting judgment of Weiler J.A. at para. 60 where she stated that under (1)(b),

(t)he act must be done with the intention to insult or offend another person. It may take place either in public or in private. The intention of the actor to insult or offend determines the indecent quality of the act.

[5] For purposes of this appeal, there is no issue as to proof of the actus reus nor the community standard of tolerance. The principal issue relates to whether the trial judge erred in finding the appellant guilty without finding expressly that the appellant intended to offend Daniel Milberg.