Indecent Act (Offence): Difference between revisions
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Revision as of 14:51, 6 July 2024
This page was last substantively updated or reviewed January 2020. (Rev. # 95149) |
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 (*) |
Summary Dispositions | |
Avail. Disp. |
|
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) | (* only if Crown proceeds by Indictment) | (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] |
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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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] |
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.
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 |
173(1) | "..., wilfully did an indecent act in a public place in the presence of one or more persons, [person1, person2], contrary to section 173(1) of the Criminal Code." | |
173(1) | "..., wilfully did an indecent act in any place with intent to insult or offend [person], to wit: [conduct], contrary to section 173(1) of the Criminal Code." | |
173(2) | "..., in a place [place], for a sexual purpose, did expose his or her genital organs to a person [person], who is under the age of 16 years, contrary to section 173(2) of the Criminal Code." |
Proof of the Offence
Proving indecent act in a public place under s. 173(1) should include:
|
Proving exposes genitals to person under 16 under s. 173(2) should include:
|
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]
It is not necessarily required for the child to testify to having seen the act or was offended by it. The Court can rely on the presumption that the accused intended the natural consequences of their act.[6]
- Wilful
The use of the term “wilful” in this context has been found to include “recklessness”.[7]
There is a presumption of wilful intent where the act is seen by another person.[8]
- "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;"[9]
A public place can include exposing oneself to persons at a crosswalk from inside a car.[10] So can being stopped vehicle at a stop light in a busy street.[11]
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.[12]
- "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.[13]
The accused and observer do not need to be in the same place to make out the offence.[14]
- ↑
R v Jacob, 1996 CanLII 1119 (ON CA), 112 CCC (3d) 1, per Osborne JA
R v Carruthers, 2004 SKPC 75 (CanLII), 260 Sask R 59, per Lavoie J
See also: R v Mailhot, 1996 CanLII 6499 (QC CA), 108 CCC (3d) 376, per curiam
- ↑
Jacob, supra
R v Poucette, 2016 ABPC 123 (CanLII), per McIlhargey J, at para 28
- ↑
Poucette, ibid., at para 29
- ↑ R v Gill, 2010 BCPC 256 (CanLII), per Ball J
- ↑ R v Alicandro, 2009 ONCA 133 (CanLII), 246 CCC (3d) 1, per Doherty JA
- ↑ R v Dalen, 1978 CanLII 2311 (SK QB), 44 CCC (2d) 228, per Geatros J
- ↑ R v Berhe, 2011 ONSC 6815 (CanLII), OJ No 5142, per Code J (newspaper hiding genitals is blown away resulting in exposure)
- ↑
R v Parsons, 1962 CanLII 550 (BC SC), [1963] 3 CCC 92 (BCSC), per Wooton J
see also R v Dalen, 1978 CanLII 2311 (SKQB), 44 CCC (2d) 228 (Sask Dist. Ct), per Geatros J
- ↑
R.S., c. C-34, s. 138.
- ↑ R v McEwan, [1980] 4 WWR 85 (SKPC)(*no CanLII links)
- ↑
R v Gill, 2010 BCPC 256 (CanLII), per Ball J
- ↑ R v Clark, 2005 SCC 2 (CanLII), [2005] 1 SCR 6, per Fish J
- ↑ R v Follett, 1994 CanLII 10329 (NLSCTD), 91 CCC (3d) 435, per Orsborn J aff'd 98 CCC (3d) 493, 1995 CanLII 9855 (NL CA), per O'Neill JA
- ↑ R v Alicandro, 2009 ONCA 133 (CanLII), 246 CCC (3d) 1, per Doherty JA
Evidence
- Modification of Rules of Evidence
For offences under this section (s. 173):
- corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
- common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.
- 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
- Complainant Privacy Rights in Sexual Offences
A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence.
- 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) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 173(1) [indecent act] | ||||
s. 173(2) [exposure] |
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
- 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 | |||||||
s. 173(2) [exposure] | any |
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Principles
Ranges
- see also: Indecent Act (Sentencing Cases)
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 173(1), (2) |
|
SOIRA Orders | s. 173(2), (3) |
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
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) |
|
- 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
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. NB: does not apply to summary offences. |
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
|
- 2020
- Level One
- Criminal Law
- Sentencing
- Offences
- Offences Punishable on Summary Conviction
- Offences with Maximum Penalty of 2 Years Less a Day
- 1985, c. C-46
- 1985, c. 19 (3rd Supp.)
- 2008, c. 6
- 2010, c. 17
- 2012, c. 1
- 2019, c. 25
- Offences Requiring Notice to Victim
- Primary Designated Offences for DNA Orders
- SOIRA Designated Offences
- Section 161 Prohibition Offences
- Sexual Offences