History of Gross Indecency (Repealed Offence)
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1985 Criminal Code
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.
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.
The offence was repealed in 1987.
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]
- ↑ R v G, 1982 CanLII 1304 (AB QB)
- ↑
G, ibid. at para 9
- ↑
G, ibid. at para 10
- ↑
G, ibid. at para 9
- ↑
R v Quesnel and Quesnel (1979), 51 C.C.C (2d) 270 at p. 280
R v LeBeau, 1988 CanLII 3271 (ON CA), per The Court, at para 20
- ↑
LeBeau, ibid. at para 20
Quesnel, supra - ↑
G, ibid. at para 11 - derived from UK law considering the use of the word "with"
- ↑
G, ibid. at para 13
- ↑
e.g. G, ibid.
R v Pinard and Maltais (1982), 5 CCC (3d) 460
- ↑
R v White (1975), 25 C.C.C. (2d) 172
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.
1953-1954 Criminal Code
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...