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Indecent Act Charges under Section 173 (1) of the Criminal Code of Canada

The wording of the Criminal Code as to what constitutes an indecent act is quite broad and somewhat vague, but generally it is used by the police to charge those who engage in sexual activity, masterbation, exposing their genitals, and other similar acts in a public place. The vast majority of charges laid in Ontario relate to sexual incidents though the law does not require this.

The offence of an “Indecent Act” is found in the "Disorderly Conduct, Indecent Acts" division of the Criminal Code under Section 173 (1), which reads:
  • 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.

Punishments and consequences for committing an Indecent Act

First time offenders who are found guilty of committing an indecent act are often sentenced to jail, followed by probation and a criminal record. Indecent Acts are also classified as serious “secondary designated offences” for which the accused can be ordered to submit their DNA upon a finding of guilt. Immigrants to Canada may be deported after serving their sentence and have future IRCC applications denied. The accused may also be banned from travelling to the U.S. because it is considered an offence of “moral turpitude”.

As indecent acts are usually classified as sexual offences the name and picture of the accused may be reported in the media under the justification of seeking to discover other potential victims in the community. Some accused may also be facing other additional related charges such as indecent exposure, mischief or voyeurism which also carry additional substantial penalties.

What constitutes a public place?

Most of those charged are alleged to have committed an indecent act in a public place. The Criminal Code defines a public place in Section 150 as including: “any place to which the public have access as of right, or by invitation, either expressed or implied”. The Supreme Court of Canada has also weighed in on the definition in R. v. Clark, 2005 SCC 2 by saying that a “public place” is a place to which the public must have physical and not merely visual access.

The most common “public places” those charged with committing an “indecent act” tend to be:
  1. Motor vehicles
  2. Parks
  3. Swimming pools
  4. Recreation centers
  5. Beaches, hiking trails
  6. Common areas of apartment buildings and condominiums
  7. Public transit (TTC, Go Transit, etc.)
  8. Schools and school grounds (including college and university campuses)
  9. Parking lots
  10. Movie theatres, concerts, sporting events

The accused may have chosen to perform a sexual act (alone or with a partner) in a public place simply because they had nowhere else to go.

This is common among under 18 YCJA youths and young adults who do not have any other options for better privacy. Cases involving spousal cheating and prostitution are also somewhat common. In all of these circumstances, an opportunity and desire is combined with an immediate lack of better location options. These people are simply unlucky that the police just happened to catch/witness them in their “indecent act” (perhaps taking place in the backseat of a car at night in an empty parking lot). Their intention was not to be seen by anyone.

Intentionally selecting a public place for a thrill when readily available alternative options exist

In other cases the accused (or co-accused) intentionally choose to perform sexual acts in a public place because they find the possibility of getting caught exciting or in hopes of escaping their usual, boring routines. Such acts may take place alone, with a partner, or with a group of partners.

The police will criminally charge the accused under s. 173 (1) regardless of whether they are intentionally picking a public place to engage in sexual activity for the thrill of it or are only doing so as a last resort (lack of other options). While lacking other options is considered a mitigating factor by the Crown Attorney and courts, the opposite is true for behaviour that is seen as thrill seeking. Many accused will admit to the police they are seeking a thrill which only makes their case worse (they should have chosen to remain silent).

It is also not required that an “indecent act” take place in public if the act was done with the intention of insulting or offending someone. This means acts committed via webcam, social media, or any other electronic means could possibly support a conviction at trial despite not occuring in a public place.

What is indecent exposure?

Streaking, flashing, mooning, and in general displaying one's genitals are often considered by the police in Ontario to constitute indecent exposure. If the indecent exposure involves any individuals under the age of 16 the accused will be charged with the specific offence of “Exposure” under s. 173 (2).

Section 173 (2) Indecent Exposure Charges

Exposure charges under CC Section 173 (2) carry automatic mandatory minimum jail sentences, permanent criminal records that can never be pardoned, sex offender list registration (SOIRA via CC s. 490.012), and also possible restrictions on where the offender goes, who they interact with, their internet use (if allowed at all), and more under CC s. 161 (1) for the rest of their life.

The Criminal Code defines Exposure as a form of an Indecent Act involving a minor in Section 173 (2), which reads:

  • 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.
Exposure is classified as a child sexual offence in Canada. Not only must the court sentence those found guilty to serve time in jail the offender will receive a criminal conviction record that can never be pardoned/expunged as a records suspension is not available to child sex offenders. Section 490.012 of the Criminal Code also gives the court the power to place those found guilty on the sex offender registration list via Sexual Offender Information Registration Act aka SOIRA which is accessible to all law enforcement in Canada and the USA.

Section 161 (1) of the Criminal Code also gives the court the power to impose on the offender conditions for the rest of their life upon being released from jail. These possible conditions are listed in Section 161 (1), which permits the court to make an order prohibiting the offender from:

  • (a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

  • (a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

  • (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

  • (c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

  • (d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

Just because you have been charged with Indecent Acts and/or Exposure does not mean you will be found guilty.

The punishments and consequences for Indecent Act related offences are extremely severe but it is important to note this is only if you are found guilty in court. This means the Crown Attorney must be able to prove to the court that you are guilty beyond a reasonable doubt at trial. This is a much higher burden than is required by the police to charge you. Just because you received an Undertaking (Form 10) or Release Order (Form 11) doesn’t make you guilty. It makes you accused and presumed innocent until proven guilty in court.

The police do not need evidence beyond a reasonable doubt to charge you. They may only have one witness who lacks credibility making an allegation. Being charged does not necessarily mean there is enough evidence to support a finding of guilt in court. Even if you factually committed the crime the Crown Attorney (prosecutor) may not be able to prove the case against you beyond a reasonable doubt.

How to get Indecent Act and/or Exposure charges dropped or have the court find you not guilty

There are two ways to avoid being found guilty and sentenced for Indecent Act related offences:
  1. Convincing the Crown Attorney to drop (withdraw or stay) the charges because it is not in the public interest to proceed or because there is no reasonable prospect of conviction; and,

  2. Convincing the trial judge that the Crown Attorney has not proven your case beyond a reasonable doubt.
There are many ways indecent act cases can be challenged and ultimately dropped by the Crown or acquitted after a trial. Some include:
  1. Challenging eyewitness accounts

  2. Identifying Charter/constitutional rights breaches

  3. Raising problematic issues with police conduct and evidence gathering

  4. Statutory legal arguments regarding whether the accused’s behaviour if believed actually constitutes all of the elements of the offence
There are also many other ways in which indecent act cases are fought and won.

A successful defence usually involves a mixture of various problems that the accused’s lawyer is able to identify and raise in court. The legislation and prior case law (precedents) regarding what actually constitutes an Indecent Act is still evolving and being reinterpreted by courts across Canada. This means it is not always clear whether the alleged act was actually criminal at all. Just because an act is widely perceived as anti-social or improper does not necessarily make it illegal or not legally justified.

There are often many defences available to an accused that could lead to an acquittal or the charges being dropped (withdrawn) after a pre-trial or judicial pre-trial (JPT). Since the punishments and consequences of a conviction even for a first time offender charged with any form of indecent acts are extremely harsh, it is always in the accused’s best interest to hire an experienced criminal defence lawyer to start working on their case as soon as possible.



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*2022 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2022. Past results are not necessarily an indication of future results.


 

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   We provide:
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  • A clear goal of getting the charges dropped without a trial
  • Vulnerable Sector records suppression help
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  • Experienced, focused counsel