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FIRST OFFENDER? DEFEND INDECENT ACT CHARGES IN NEWMARKET.  416-DEFENCE.

Being charged with a criminal offence can be an upsetting experience for anyone, especially first-time offenders. Those who are convicted of a criminal offence often face serious consequences in various aspects of their lives. Indecent act and indecent exposure are both serious offences as they are both considered sexual offences. Donich Law has experience defending individuals charged with indecent act and indecent exposure in York Region and can assist you in developing the best defence for your particular set of allegations.

In R. v. A.T. [2018], the Firm defended a prominent businessman who was accused of exposing himself in a public parking lot. The Firm employed a medical expert to prove that the allegations made by the complainant could not have occurred and were fabricated.

In R. v. M.R. [2017], the Firm defended an exotic photographer who was charged with indecent act after allegedly exposing himself to a client. The Firm utilized forensic evidence to prove that the accusations had been fabricated and the charges were ultimately withdrawn.

The offence of indecent act occurs when an individual commits an act in the presence of other individuals or in a public place, or in any other place with the intent to offend another individual. The Criminal Code does not provide a list of acts considered indecent. Rather, that determination will be made on a case-by-case basis by the Court. In many cases, those charged with an indecent act were caught engaging in sexual activity in public. Individuals may also be charged with indecent act for committing non-sexual acts if the Court finds those acts to be indecent.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

CP24: Civil Sexual Assault Lawsuit at St. Michael’s in Toronto.

Global News: Historical Sexual Assault Charges and Bill Cosby.

CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto.

CityNews: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution.

Frequently Asked Questions

What is the Difference Between Indecent Act and Indecent Exposure?
What are the Best Defences to Indecent Act and Indecent Exposure?
Can I go to Jail for Indecent Act?
Can I go to Jail for Indecent Exposure?
Are Indecent Act and Indecent Exposure Sexual Offences?

Additional Resources

Assault
Assaulting a Peace Officer
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening

What is the Difference Between Indecent Act and Indecent Exposure?

The offence of indecent act occurs when an individual commits an act in the presence of other individuals or in a public place, or in any other place with the intent to offend another individual. The Criminal Code does not provide a list of acts considered indecent. Rather, that determination will be made on a case-by-case basis by the Court. In many cases, those charged with an indecent act were caught engaging in sexual activity in public. Individuals may also be charged with indecent act for committing non-sexual acts if the Court finds those acts to be indecent.

Indecent exposure on the other hand refers to an adult individual exposing their sexual organs to a minor, for a sexual purpose. This offence does not require that the exposure occur in public, it can occur anywhere. Further, the adult does not need to be in the physical presence of the minor when the exposure occurs. For example, an individual who exposes their genitals for a sexual purpose to a minor over the internet will be guilty of indecent exposure.

The primary difference between the two offences is that the exposure in an indecent exposure must be of the genitals and must be for a sexual purpose, while the exposure in an indecent act offence need not be for a sexual purpose and does not need to be of the individuals genitals. Further, the exposure in an indecent act can be to an individual of any age, while with indecent exposure the accused must have exposed themselves to someone under the age of sixteen.

What are the Best Defences to Indecent Act and Indecent Exposure?

The most appropriate defence will differ significantly from case to case and will depend largely on the specific allegations being made. Developing a good defence is imperative in every case. Our Firm can assist you in navigating the criminal justice system and can advocate for your rights every step of the way.

In some situations, the accused may argue that they lacked the necessary intent. For example, the accused could argue that they did not expect to encounter another individual and thus did not intend to expose themselves. Alternatively, in cases involving indecent exposure, an accused may be able to argue that they did not expose themselves for a sexual purpose.

Where these defences are not appropriate, it is sometimes possible to have experienced counsel negotiate the charge from an indecent exposure to an indecent act, which is considered less serious. This will eliminate any mandatory minimum sentences that exist for indecent exposure.

Can I go to Jail for Indecent Act?

Whether or not an individual will be sentenced to a period of incarceration as a result of their indecent act charge will depend on a multitude of factors. Indecent act is a dual procedure offence meaning the Crown has discretion regarding the cases path through the criminal justice system and the maximum penalties that may be imposed if the accused is found guilty.

In cases where the Crown proceeds summarily, the accused will face a maximum of two years less a day, a $5,000 fine or both. If the Crown elects to proceed by indictment the accused will face a maximum of two years’ imprisonment. Which route the Crown elects to take will depend on the severity of the allegations. Where the allegations are very serious in nature the Crown will proceed by indictment. In cases involving less serious allegations, the Crown will generally proceed summarily.

Upon conviction, the judge presiding over the case will determine the most appropriate sentence for the accused, taking into consideration the maximum penalties as prescribed by the Criminal Code. The judge will weigh all aggravating and mitigating factors presented in the case. Some examples include; whether the accused is a repeat offender, the age of the accused, the personal characteristics of the accused, the age and personal characteristics of the alleged victim, the circumstances leading up to the commission of the offence, any mental health issues that may have played a role in the commission of the offence and any other factors the Court deems relevant.

If you have been charged with committing an indecent act it is important to have qualified legal counsel on your side. Donich Law can advocate for your rights and ensure that you receive the best possible outcome for your particular set of circumstances.

Can I go to Jail for Indecent Exposure?

Whether or not a defendant will be sentenced to jail as a result of an indecent exposure conviction will depend on many different factors. Indecent exposure is a dual procedure offence meaning the Crown has discretion regarding the cases path through the criminal justice system and the maximum penalties that may be imposed on the accused if they are found guilty.

The Crown may choose to proceed summarily or by indictment depending on the severity of the allegations. In cases involving more minor allegations, the Crown will elect to proceed summarily. In cases involving more serious allegations, the Crown will elect to proceed by indictment. Where the Crown proceeds summarily the accused will face a maximum of two years less a day imprisonment, a $5,000 fine or both. If the Crown elects to proceed by indictment the accused will face a maximum of two years’ imprisonment.

When determining the most appropriate sentence for an individual who has been convicted of indecent exposure, the Court will weigh all relevant aggravating and mitigating factors present in the case. Aggravating factors will weigh in favour of more severe penalties, while mitigating factors will weigh in favour of less severe penalties.

Are Indecent Act and Indecent Exposure Sexual Offences?

Yes. Both indecent act and indecent exposure are considered sexual offences. In Canada, those convicted of certain sexual offences are required to register as sex offenders under the Sex Offender Registration Information Act (SOIRA).

Those convicted of indecent exposure will be required, on a mandatory basis, to register under SOIRA. Indecent exposure is considered a designated sexual offence and so the Court has no discretion regarding whether or not the accused will be required to register as a sex offender.

Individuals convicted of an indecent act may have to register as sex offenders under SOIRA only in certain circumstances. Indecent act is not a designated sexual offence, meaning SOIRA is not mandatory. To secure a SOIRA order, the Crown must prove to the Court that the accused committed the indecent act with the intent to commit one of the designated offences listed in section 490.011 of the Criminal Code. These offences include; sexual assault, aggravated sexual assault, sexual assault with a weapon, invitation to sexual touching, sexual exploitation, sexual interference, incest, child pornography and indecent exposure.

Quick Facts

What is Indecent Exposure?

Indecent exposure refers to situations where an adult individual exposes their genitals, for a sexual purpose, to an individual under the age of sixteen. The exposure can occur in public or in private, and the adult and minor do not have to be in each other’s physical presence for the offence to have occurred.

What is Indecent Act?

While there is no list of acts considered by the Court’s to be indecent, an individual is guilty of this offence where they commit an indecent act in the presence of other individuals or in a public place, or in another location with the intention of offending another individual. Often, individuals are charged with indecent act after being caught engaging in sexual activity in public.

Can I Travel with an Indecent Act or Indecent Exposure Conviction?

Traveling outside of Canada can become difficult with a criminal record, especially for those convicted of sexual offences. Many countries limit entry to those with a criminal history, or those with certain types of criminal histories. For example, the United States may refuse entry to anyone who has been convicted of a crime.

Will my Indecent Act or Indecent Exposure Conviction Affect my Immigration Status?

Having a criminal conviction on your record can have serious implications on an individual’s immigration status. Immigration, Citizenship and Refugees Canada will refuse to grant citizenship to individuals with certain types of criminal histories. If you are a non-citizen who has been charged with a criminal offence it is important to contact an immigration lawyer as soon as possible.

Are Indecent Act and Indecent Exposure Sexual Offences?

Yes. Both indecent act and indecent exposure are considered sexual offences in Canada. In some situations, an individual may be charged with an indecent act for behaviour that is not sexual in nature. Because of this, only certain individuals convicted of an indecent act will be required to register as a sex offender.

Will I have to Register as a Sex Offender if I’m Convicted of Indecent Act or Indecent Exposure?

Everyone who is convicted of indecent exposure will be required to register as a sex offender under the Sex Offender Information Registration Act (SOIRA) on a mandatory basis. On the other hand, SOIRA orders are not mandatory for those convicted of indecent act, unless the accused committed the indecent act with the intention of committing another designated sexual offence as listed in section 490.011 of the Criminal Code.

416-DEFENCE | 416-333-3623