The offence of indecent act is outlined in section 173(1) of the Criminal Code.
An individual commits the offence of indecent act when they willfully commit an indecent act in a public place in the presence of other people, or in any place with the intent to insult or offend another person.
Whether or not an act will be considered incident will depend on the facts of the case and will be determined on a case-by-case basis.
Person A is driving down a public roadway and stops at a red light next to person B, who is also in their car. Person A pulls out their penis and begins masturbating within view of person B. Person A is guilty of indecent act.
Person A and person B are in a domestic relationship. They are spending time at the beach and begin engaging in sexual activity within view of other people on the beach. Their activity is spotted and reported to law enforcement. Both parties are charged with indecent act.
R. v. Maftoon,  ONCJ 583
In R. v Maftoon, the offender was charged with one count of indecent act and one count of indecent exposure after exposing himself to young children at a public pool. The offender was seen by witnesses in the shallow end of the pool, near children, with an erection and visibly masturbating. Upon exiting the pool, his completely exposed penis was seen by at least one witness. When officers arrived on scene, the offender was found in the parking lot in the backseat of his vehicle, completely naked and touching his penis.
R.v. Lumley,  ONSC 6292
In R. v. Lumley, the offender was arrested and charged with indecent act after openly masturbating at the Coxwell subway station in Toronto. The offender then boarded the train and continued to masturbate in front of other riders while on board.
Offence Specific Defences
Reasonable Expectation of Privacy
To gain a conviction for indecent act the Crown must prove that the accused committed the act in a public place, or in any place with the intent to offend. If the accused person exposed themselves in a location where they had a reasonable expectation of privacy, they will not be convicted of indecent act.
For example, if an accused person was changing their clothes inside a closed room and another person walked in and saw them exposed, the accused could argue that they had a reasonable expectation of privacy in the room.
Did not Expose Genitals
To gain a conviction for indecent act the Crown must prove that the accused exposed his or her genitals. If this is not the case, the accused may argue that they did not expose their genitals.
Lack of Intent
To gain a conviction for indecent act the Crown must prove that the accused willfully committed an indecent act. If the accused did not intend to expose themselves to another individual or to offend another individual, they may argue they lacked the necessary intent to be convicted of the offence. For example, an individual whose pants accidentally ripped, exposing their genitals, would not be guilty of this offence as they did not intend to expose themselves.