Indecent Act (Offence)

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Indecent Act
s. 173 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 30, 90 days incarceration (exposure)
Maximum 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum Life 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to indecent act are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 173(1) [indecent act] and
s. 173(2) [exposure]
Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 173(1) [indecent act] and 173(2) [indecent act] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 173 [indecent act or exposure] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 173 [indecent act or exposure], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingerprints and Photos

A peace officer who charges a person under s. 173 [indecent act or exposure] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 173 [indecent act or exposure] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 173(1) [indecent act] and
s. 173(2) [exposure]
X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.
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; 2019, c. 25, s. 58.

CCC


Note up: 173(1) and (2)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

Proving indecent act in a public place under s. 173(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit performs an indecent act;
  5. the culprit did the prohibited act wilfully;
  6. the location of the prohibited act is either:
    1. a public place and is in the presence of one or more individuals, or
    2. "in any place with intent to insult or offend any person".

Proving exposes genitals to person under 16 under s. 173(2) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. exposes genital organs;
  5. exposes for a sexual purpose;
  6. in presence of person under 16; and
  7. the culprit knew or was reckless that person was under 16.

Interpretation of the Offence

The offence does not require a "sexual context". [1]

Indecency is measured on a "community standard of tolerance" and will include consideration of "what harm will accrue due to the alleged obscene act".[2] It has been found to include acts that are "[o]ffensive to common propriety; offending against modesty or delicacy; grossly vulgar; obscene; lewd; unseemingly; unbecoming; indecorous; unfit to be seen or heard".[3]

Masturbation from inside a vehicle while making eye contact with passer-by falls into sexual context.[4]

The offence will be made out by the accused exposing himself to a person who is believed to be under the age of 14 years.[5]

Wilful

The use of the term “wilful” in this context has been found to include “recklessness”.[6]

There is a presumption of wilful intent where the act is seen by another person.[7]

"Public Place"

Under s. 150, for the purpose of Part V of the Code, a "public place ... includes any place to which the public have access as of right or by invitation, express or implied;"[8]

A public place can include exposing oneself to persons at a crosswalk from inside a car.[9] So can being stopped vehicle at a stop light in a busy street.[10]

However, an act done from inside the living room of a residence and is visible to persons outside the home will not be in a public place.[11]

"Sexual Purpose"

see Sexual Interference (Offence)#Sexual Purpose

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.[12]

The accused and observer do not need to be in the same place to make out the offence.[13]

  1. R v Jacob, 1996 CanLII 1119 (ON C.A.), per Osborne JA
    R v Carruthers, 2004 SKPC 75 (CanLII), per Lavoie J
    See also:R v Mailhot, 1996 CanLII 6499 (QC CA), per curiam
  2. Jacob, supra
    R v Poucette, 2016 ABPC 123 (CanLII), per McIlhargey J, at para 28
  3. Poucette, ibid., at para 29
  4. R v Gill, 2010 BCPC 256 (CanLII), per Ball J
  5. R v Alicandro, 2009 ONCA 133 (CanLII), per Doherty JA
  6. R v Berhe, 2011 ONSC 6815 (CanLII), per Code J (newspaper hiding genitals is blown away resulting in exposure)
  7. R v Parsons, [1963] 3 CCC 92 (BCSC), 1962 CanLII 550 (BC SC), per Wooton J
    see also R v Dalen (1978), 44 CCC (2d) 228 (Sask Dist. Ct), 1978 CanLII 2311 (SK QB), per Geatros J
  8. R.S., c. C-34, s. 138.
  9. R v McEwan, [1980] 4 WWR 85 (SKPC) (*no CanLII links)
  10. R v Gill, 2010 BCPC 256 (CanLII), per Ball J
  11. R v Clark, 2005 SCC 2 (CanLII), [2005] 1 SCR 6, per Fish J
  12. R v Follett (1994), 1994 CanLII 10329 (NL SCTD), 91 CCC (3d) 435 (NLSC), per Orsborn J aff'd 98 CCC (3d) 493 (NLCA), 1995 CanLII 9855 (NL CA), per O'Neill JA
  13. R v Alicandro, 2009 ONCA 133 (CanLII), per Doherty JA

Evidence

Modification of Rules of Evidence

For offences under this section (s. 173):

Limitations on Admissibility of Evidence

For offences under this section (s. 173):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Holdback of Disclosure

For offences under this section (s. 173), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 173 [indecent act or exposure] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 173 [indecent act or exposure] indictable election 2 years custody
Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 173(2) [exposure]
From August 9, 2012
summary election 30 day custody Same
s. 173(2) [exposure]
From August 9, 2012
indictable election 90 day custody Same
Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 173(1) [indecent act] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 173(2) [exposure] any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png


Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Indecent Act (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 173(1), (2)
SOIRA Orders s. 173(2), (3)
  • On conviction under s. 173(2), as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 173(3), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 173(2)
  • If convicted under s. 173(2), the judge may make discretionary 161 Order.
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 173(2) [exposure] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

Victim Under 18

Convictions under s. 173(1) [indecent act] (where victim is under 18) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

On August 9, 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.

2010 to 2012

Indecent acts

173 (1) Every one who wilfully does an indecent act

(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,

is guilty of an offence punishable on summary conviction.

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 liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.

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.

CCC

2008 to 2010

Indecent acts

173 (1) Every one who wilfully does an indecent act

(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,

is guilty of an offence punishable on summary conviction.

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 is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 173; R.S., 1985, c. 19 (3rd Supp.), s. 7; 2008, c. 6, s. 54.

CCC

1985 to 2008

Indecent acts

173 (1) Every one who wilfully does an indecent act

(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,

is guilty of an offence punishable on summary conviction.

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 fourteen years is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 173; R.S., 1985, c. 19 (3rd Supp.), s. 7.

CCC

See Also