View source for Gross Indecency (Offence) (Repealed)

{{Currency2|January|2024}}
{{HeaderRepealedOffences}}
{{LevelZero}}{{HeaderOffences}}
{{OffenceBox
|OffenceTitle=Gross Indecency
|OffencePage=Gross Indecency
|Section=161
|Act={{OBCCC}}
|CrownElection={{OBIndictableElection}} 
|Jurisdiction={{OBJurisdictionAll-Under14}}
|Bail={{OBBailAll}}
|IndictableDisp= {{OBDispAll}} 
|IndictableMin= {{OBMinNone}} 
|IndictableMax= {{OBTime|5 years}} }}

==Overview==
{{seealso|Indecent Assault (Offence) (Repealed)}}

; Pleadings
{{PleadingsHeader-N}}
{{PleadingsIndictableList-N|s. 161 [gross indecency] | {{Yes}} | {{Yes}} | {{No-Under14}} }} 
{{PleadingsEnd}} 

{{PleadingsIndictElection-Under14|s. 161 [gross indecency] }}

; Release
{{ReleaseHeader}}
|s. 161 [gross indecency] || {{ReleaseProfile-Indictable}} 
|-
{{ReleaseEnd}}

{{ReleaseOptions-Indictable|s. 161 [gross indecency]}}

:''Fingerprints and Photos''
{{IDCriminalAct|s. 161 [gross indecency]}}

; Publication Bans
<!-- {{PubBanHeader}} <!-- Sections / Sexual Offence Pub Ban / Youth Victim or witness / Young Accused -->
<!--|s. 161 [gross indecency] || {{OKMark}}  || {{OKMark}} || {{OKMark}}  ||  {{OKMark}} (if jury eligible) ||{{OKMark}}  || {{XMark}}
|- 
{{PubBanEnd}}-->
{{GeneralPubBan}}

{{SeeBelowForAncillary}}

{{reflist|2}}

==Offence Wording==

{{quotation2|
; Acts of gross indecency
161. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. <br>
R.S., c. C-34, s. 157.
|
}}

{{quotation2|
; Exception re acts in private between husband and wife or consenting adults
162 (1) Sections 160 and 161 do not apply to any act committed in private between
:(a) a husband and his wife, or
:(b) any two persons, each of whom is twenty-one years or more of age,

both of whom consent to the commission of the act.
<br>
; Idem
(2) For the purposes of subsection (1),
:(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
:(b) a person shall be deemed not to consent to the commission of an act
::(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or
::(ii) if that person is, and other party to the commission of the act knows or has good reason to believe that that person is, feeble-minded, insane or an idiot or imbecile.
R.S., c. C-34, s. 158.
|
}}

The offence was repealed in 1987.

==Proof of the Offence==

{{ElementHeader}}
{{ElementLeft}}

{{Proving|gross indecency|161}}<Ref>
{{CanLIIR|Leroux|g1zjv|2013 SKQB 395 (CanLII)}} at para 72
</ref>
{{InitialElements}}
# {{box}} the culprit performed an act;
# {{box}} the act was with the complainant, either consensually or otherwise;
# {{box}} "the acts committed are a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality which includes but is not limited to anal intercourse, fellatio and other homosexual acts between two male persons of any age, whether consenting or not."

{{ElementEnd}}

{{reflist|2}}

==Interpretation of the Offence==
; "Gross Indecency"
The term "gross indecency" was not defined within the Code.<ref>
{{CanLIIRP|G|2bc77|1982 CanLII 1304 (AB QB)|70 CCC (2d) 24}}{{perABQB|Moore ACJ}}
</ref>

The "indecency" of an act depends on its context, including time, place and circumstances.<ref>
{{ibid1|G}}{{atL|2bc77|9}}<br>
</ref> 
Similarly, "gross indecency" will depend on time, place, and circumstances.<ref>
{{ibid1|G}}{{atL|2bc77|10}}<br>
</ref>
However, certain acts are "inherently indecent" where the "circumstances surrounding the act is immaterial."<ref>
{{ibid1|G}}{{atL|2bc77|9}}<br>
</ref>

Gross indecency has been described as "marked departure from decent conduct expected of the average Canadian in the circumstances that existed."<ref>
{{CanLIIRP|Quesnel and Quesnel|gcxpg|1979 CanLII 2883 (ON CA)|51 CCC (2d) 270}}{{perONCA|Brooke JA}}{{atp|280}}<br>
{{CanLIIRP|LeBeau|22kn3|1988 CanLII 3271 (ON CA)|41 CCC (3d) 163}}{{TheCourtONCA}}{{atL|22kn3|20}}<br>
</ref>
The standard is strictly objective and should not be considered subjectively.<ref>
{{ibid1|LeBeau}}{{atL|22kn3|20}}<br>
{{supra1|Quesnel}}
</ref>

There is no requirement that gross indecency include "some actual physical contact between" the accused and victim.<ref>
{{ibid1|G}}{{atL|2bc77|11}} - Derived from UK law considering the use of the word "with"<br>
</ref> 
It only needs to involve some "personal relation", "association" or "union", which can include commission of the act in the presence of the victim.<ref>
{{ibid1|G}}{{atL|2bc77|13}}<br>
</ref> 
More specifically, this has been applied where the accused masturbated in the presence of the victim.<ref>
e.g. {{ibid1|G}}<br>
{{CanLIIRP|Pinard and Maltais|gb305|1982 CanLII 3817 (QC CA)|5 CCC (3d) 460}}{{perQCCA|Monet JA}}<br>
</ref>
As well as fellatio.<ref>
{{CanLIIRP|White|htwwt|1975 CanLII 1263 (ON CA)|25 CCC (2d) 172}}{{perONCA|Gale CJ}}<br>
</ref>

{{reflist|2}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}
{{seealsoSentencingSexual}}

===Sentencing Profile===
; Maximum Penalties
{{SProfileMaxHeader‎}}
{{SProfileMax|s. 161  | {{Indictable}} |{{Max5Years}}}}
{{SProfileEnd}}

{{MaxPenaltyIndictable|s. 161 |'''{{Max5Years}}'''|}}

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 161  || any || {{SProfileAll}}
|-
{{SProfileEnd}}
{{AllDispositionsAvailable}}

; Consecutive Sentences
{{NoConsecutive}}

===Principles===
===Ranges===
{{seealsoRanges|Gross Indecency}}


{{reflist|2}}
==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders
{{AOrderHeader}}
| [[DNA Orders]]  ||s. 161  ||
** {{SecondDNA(CtoE)|s. 161 }}
|-
| [[Weapons Prohibition Orders]]   || s. 161   ||
** {{Section110|s. 161 }}
|-
| [[Delayed_Parole_Eligibility|Delayed Parole Order]] ||s. 161  ||
* {{ParoleDelayEligible|1|s. 161 }}
{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==History of Gross Indecency==
===1970 Criminal Code===

{{quotation1|
; Acts of gross indecency
157. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years. <br>
1953-54, c. 51, s. 149.
|
}}

{{quotation1|
; Exception re acts in private between husband and wife or consenting adults
158 (1) Sections 155 and 157 do not apply to any act committed in private between
:(a) a husband and his wife, or
:(b) any two persons, each of whom is twenty-one years or more of age,
both of whom consent to the commission of the act.
<br>
; Idem
(2) For the purposes of subsection (1),
:(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
:(b) a person shall be deemed not to consent to the commission of an act
::(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or
::(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile. 

1968-69, c. 38, s. 7.
|
}}

===1968-69===
Criminal Law Amendment Act, 1968-69, c. 38, s. 7, replaced s. 141 with s. 149A as follows:
{{quotation1|
; Exception re acts in private between husband and wife or consenting adults
149A. (1) Sections 147 and 149 do not apply to any act committed in private between
:(a) a husband and his wife, or
:(b) any two persons, each of whom is twenty-one years or more of age,
both of whom consent to the commission of the act.
; Idem
(2) For the purposes of subsection (1),
:(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
:(b) a person shall be deemed not to consent to the commission of an act
::(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations as to the nature and quality of the act, or
::(ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile.
|{{NA}}
}}

This provision remained in force from April 1, 1955 to July 14, 1971.<ref>
{{CanLIIRx|McGrory|j14kd|2019 ONSC 3776 (CanLII)}}{{perONSC|O'Bonsawin J}}{{atL|j14kd|18}}
</ref>

{{reflist|2}}

===1953-1954 Criminal Code===
{{quotation1|
; Acts of gross indecency
141 (1) Every one who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped...<br>
|{{NA}}
}}

===Criminal Code, 1927===

{{quotation1|
; Acts of gross indecency
206. Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any acts of gross indecency with another male person.
|{{NA}}
}}

===Criminal Code, 1906===
{{quotation1|
; Acts of gross indecency.
206. Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person. 

55-56 V., c. 29, s. 178.
|{{NA}}
}}

===Criminal Code, 1892===
{{quotation1|
; Acts of gross indecency.
178. Every male person is guilty of an indictable offence and liable to five years’ imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person. 

53 V., c. 37, s. 5.
|{{NA}}
}}