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Revision as of 16:44, 23 January 2025

This page was last substantively updated or reviewed January 2024. (Rev. # 97853)
Gross Indecency
Section 161 of the Crim. Code
Election / Plea
Crown Election Indictment
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)
Minimum None
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 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

See also: Gross Indecency (Offence) and Indecent Assault (Offence) (Repealed)
Pleadings
Offence
Section		 Offence
Type		 Crown Election Defence Election
s. 536(2)		 Preliminary Inquiry
s. 161 [gross indecency] Hybrid Offence(s) (* only if Crown proceeds by Indictment) (under 14 years max)

Offences under s. 161 [gross indecency] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

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. 161 [gross indecency]

When charged under s. 161 [gross indecency], 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.

Fingerprints and Photos

{{IDCriminalAct|s. 161 [gross indecency]}

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.

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. 161 [gross indecency] (under 10 years max) (under 10 years max)

Offences under s. 161 [gross indecency] are "designated" offences under s. 752 for dangerous offender applications.

Offences under s. s. 161 [gross indecency] are offences of "serious criminality" as defined in s. 36 of the Immigration and Refugee Protection Act. A conviction will render a permanent resident or a foreign national is "inadmissible on grounds of serious criminality".

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

Offence Wording

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.
R.S., c. C-34, s. 157.

–

{{{3}}}

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.

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.

–

{{{3}}}

The offence was repealed in 1987.

Proof of the Offence

Proving gross indecency under s. 161 should include:[1]

  1. ☐ identity of accused as culprit
  2. ☐ date and time of the incident
  3. ☐ jurisdiction (incl. region and province)
  4. ☐ the culprit performed an act;
  5. ☐ the act was with the complainant, either consensually or otherwise;
  6. ☐ "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."
  1. ↑ R v Leroux, 2013 SKQB 395 (CanLII) at para 72

Interpretation of the Offence

"Gross Indecency"

The term "gross indecency" was not defined within the Code.[1]

The "indecency" of an act depends on its context, including time, place and circumstances.[2] Similarly, "gross indecency" will depend on time, place, and circumstances.[3] However, certain acts are "inherently indecent" where the "circumstances surrounding the act is immaterial."[4]

Gross indecency has been described as "marked departure from decent conduct expected of the average Canadian in the circumstances that existed."[5] The standard is strictly objective and should not be considered subjectively.[6]

There is no requirement that gross indecency include "some actual physical contact between" the accused and victim.[7] It only needs to involve some "personal relation", "association" or "union", which can include commission of the act in the presence of the victim.[8] More specifically, this has been applied where the accused masturbated in the presence of the victim.[9] As well as fellatio.[10]

  1. ↑ R v G, 1982 CanLII 1304 (AB QB), 70 CCC (2d) 24, per Moore ACJ
  2. ↑ G, ibid., at para 9
  3. ↑ G, ibid., at para 10
  4. ↑ G, ibid., at para 9
  5. ↑ R v Quesnel and Quesnel, 1979 CanLII 2883 (ON CA), 51 CCC (2d) 270, per Brooke JA, at p. 280
    R v LeBeau, 1988 CanLII 3271 (ON CA), 41 CCC (3d) 163, per curiam, at para 20
  6. ↑ LeBeau, ibid., at para 20
    Quesnel, supra
  7. ↑ G, ibid., at para 11 - Derived from UK law considering the use of the word "with"
  8. ↑ G, ibid., at para 13
  9. ↑ e.g. G, ibid.
    R v Pinard and Maltais, 1982 CanLII 3817 (QC CA), 5 CCC (3d) 460, per Monet JA
  10. ↑ R v White, 1975 CanLII 1263 (ON CA), 25 CCC (2d) 172, per Gale CJ

History of Gross Indecency

1970 Criminal Code

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.
1953-54, c. 51, s. 149.

–

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.

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:

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.

– N/A

This provision remained in force from April 1, 1955 to July 14, 1971.[1]

  1. ↑ R v McGrory, 2019 ONSC 3776 (CanLII), per O'Bonsawin J, at para 18

1953-1954 Criminal Code

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...

– N/A

Criminal Code, 1927

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.

– N/A

Criminal Code, 1906

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.

– N/A

Criminal Code, 1892

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.

– N/A

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