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Defend Indecent Act Charges

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Our Experience

In the Firm’s R. v. C.X. [2021], it resolved an indecent act in a Walmart parking lot without a criminal conviction. The accused was allegedly seen committing an indecent act in a vehicle. The accused was later apprehended with no shirt on and backwards pants. The complainant provided evidence that the accused was fully naked in his vehicle and attempting to make eye contact. The Firm successfully challenged witness statements and provided medical evidence to achieve the result. Indecent act charges can become difficult defend where there is video evidence or proof of masturbation which can be an aggravating feature to the offence.

In 2021, the Firm represented an individual charged with indecent act in R. v. L.G. [2021]. The accused was charged after two women in his neighborhood witnessed him standing completely naked in front of the large window in the front of his residence. After having seen the accused more than once, the woman reported the incident to law enforcement and the accused was arrested. The Firm negotiated with the Crown, presenting evidence of mental health issues, eventually leading to the charge being withdrawn. The defence was also able to successfully challenge the circumstances of the offences, specifically that the accuse was in a private residence and was not intending to be seen. The law on recklessness of behavior in indecent act charges has not been extensively litigated in Ontario.

The Firm secured a withdrawal of an indecent act charge in R. v. M.R [2017], where the defendant, an exotic photographer, was accused of exposing himself to a client during a session. The Firm was able to utilize undisputable forensic evidence and ultimately prove that the complainant fabricated the accusations. The Firm was able to acquire the recordings from the photographer which showed the complainant was actually participating in filmed sexual acts with the accused. The consensual recorded material was produced as evidence by the defence to Crown counsel which defeated the prosecution and proved the complainant was lying. Had the Firm not been able to acquire this evidence, it is unlikely this outcome would have been achieved without a trial.

In March 2018, the Firm secured a withdrawal of indecent act where the accused allegedly exposed himself in a parking lot. The accused, a prominent business man in Toronto, maintained his innocence. To further complicate the defence, the accused had received a warning by law enforcement previously for being nude in public. The Firm worked with a medical expert to eliminate the possibility of the complainant’s observations in its R. v. A.T [2018]. There was video surveillance of the accused’s vehicle which put him at the scene. However, the Firm was able to challenge the complainant’s alleged observations by comparing her statement with what was undisputed in surveillance.

How Criminal Charges can be Resolved in Canada

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The Firm also has experience conducting indecent act trials in Ontario. In the Firm’s R. v. M.W [2021], it defended an individual allegedly caught on video masturbating by a member of the public. To further complicate the proceedings, there were allegations that they were targeting children. These can become very difficult to defend given the serious evidentiary challenges and strong public interest in protecting children. Like many offenders, the accused was placed on conditions restricting access to children. The Firm was able to establish at trial that there was no interest in children which lead to the prosecution significantly altering their position, avoiding custody for the accused.

In 2023, the Firm represented an individual charged with two counts of criminal harassment, one count of indecent act and one count of dangerous operation of a vehicle in R. v. R.S. [2023]. The individual was arrested after reports were made of a man approaching young children in a park, and on one occasion exposing his genitals while inside his vehicle. The individual was arrested fleeing the scene of one incident. The matter went to trial and the individual ultimately pled guilty on the first day to dangerous operation of a motor vehicle. All other charges were withdrawn.

What’s a Crime in Canada?

In the Firm’s R. v. B.T [2022], the accused was a second offender and allegedly driving beside people in public and masturbating. The accused’s vehicle was filmed by the complainants during the incident. The police used a photo lineup in which the accused was also identified by the complainants. Although law enforcement was able to identify the driver, the Firm was able to successfully challenge the observations of the complainants. The Crown is required to prove the elements of the offence beyond a reasonable doubt. The accused does not have the burden of proof. In this particular case the Crown was unable to prove all the elements of the crime which ultimately led to a rare outcome of the charge being resolved with a peace bond.

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Frequently Asked Questions

What is Indecent Exposure?

Indecent exposure is a criminal offence similar to indecent act. It is contained under s. 173(2) of the Code. That section states, “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.” It is important to note that the person committing indecent exposure and the young victim do not have to be in the same physical space for this offence to occur. It is possible for the offence to be committed electronically if both parties are on a video call.

As another example consider, Person A is an adult who meets a 13-year-old child in a public park in Toronto. If A approaches B, pulls down their pants and begins to masturbate, A will have committed indecent exposure. This is because of the clear sexual purpose of the masturbation coupled with the exposure of A’s genitals.

What is the Legal Definition of an Indecent Act?

Committing an indecent act is an offence under s. 173(1) of the Criminal Code. The section states, “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…” This offence captures a wide variety of behaviour. Essentially, anyone is guilty of indecent acts if they do something in public in the view of someone else that could reasonably offend or insult someone. The indecent act could include something like urinating in public or having sex or masturbating in public.

For example, consider a couple in a car parked at a store in Toronto. The couple decide to start engaging in sexual activity. The windows to their car are un-tinted and several pedestrians walk by who notice the couple’s behaviour. Because the couple has chosen to engage in sexual activity in public, while in the view of others and it is reasonable to conclude that someone maybe offended by this, the couple will have committed an indecent act.

What is the Difference Between Indecent Act and Indecent Exposure?

There are two main differences between indecent acts and indecent exposure. The first difference is the age of the complainants. In an indecent act case, the complainant can be any age. In an indecent exposure case however, the complainant must be under the age of 16.

The second difference is the requirement of sexual purpose. That element is not present in the indecent act offence. There are some indecent acts that do not involve a sexual purpose, depending on the facts of a case. A common example of this is public urination. With indecent exposure cases on the other hand, the exposure must have been for a sexual purpose.

What are the Defences to Indecent Act and Indecent Exposure?

There are two main defences to indecent act that an accused may use to avoid criminal liability if charged. The first defence involves arguing that the indecent act was not committed intentionally. The offence requires that an accused willfully commits an indecent act. If a person can satisfy a court that they accidentally exposed their genitals or committed some other indecent act they may be found not guilty.

The second defence is a reasonable expectation of privacy. Indecent acts are committed in the public eye. If an accused can demonstrate that they were somewhere they thought was private, before exposing themselves and being seen, they may not be found guilty. A common example of this would be if someone walked in on a person using a changing room in a clothing store.

There are four common defences to indecent exposure. Firstly, an accused may argue that they did not expose their genitals. To gain a conviction the Crown must prove that the accused exposed their genitals. If they can present the court with evidence to show that their genitals were in fact not exposed, they cannot be convicted of indecent exposure.

Secondly, an accused can argue that they did not intend to expose themselves. Again, the Crown must prove that the accused exposed themselves intentionally. If this is not the case, the accused cannot be convicted.

The third defence is a lack of sexual purpose. This may be commonly seen in cases where nudity around children is intentional but innocent. For example, if a child barges into the bathroom to ask their parent a question just as the parent has stepped out of the shower. There is no sexual purpose here, so no offence occurred.

Finally, an accused charged with indecent exposure may argue that they had a mistaken belief in the age of the complainant. To gain a conviction the Crown must prove that the accused was aware that the complainant was 16 or younger. If the accused genuinely believed the complainant was over 16, they may not be guilty of an offence. To successfully advance this defence the accused must show that they took reasonable steps to ascertain the true age of the complainant, and that a reasonable person in their shoes would have mistaken the age as well.

What Ancillary Orders are Associated with These Offences?

Ancillary orders are additional measures a court can impose during sentencing aside from the main punishment. There are a number that can apply to both indecent act and indecent exposure cases. The most common applicable to both is a Sex Offender Information Registration Act, or SOIRA order.  Under this order an offender would have to provide certain identifying information to a government registry that keeps a database of sex offenders for the use of law enforcement only. It is important to note that the order is mandatory in indecent exposure cases because that offence is listed as a primary designated offence under s. 490.011(1) of the Code. Whereas indecent act is a secondary designated offence which means a Crown must ask a court to impose the order and demonstrate that it is necessary in each case.

Another order common to both offences is offenders may be ordered not to visit the place where the offence occurred or contact any victims as a term of an ordered period of probation.

Due to of indecent exposure’s status as a primary designated offence, offenders must comply with other ancillary orders on a mandatory basis. Offenders must comply with a DNA order that requires them to provide a bodily sample to be included in the national database. Offenders will also be issued a mandatory 10-year weapon ban. Finally, given that this offence victimizes children, a court will issue an order restricting the offender’s access to children under the authority of s. 161 of the Code. This order prevents an offender from contacting anyone under the age of 16, holding a volunteer or employment position where they are in a position of trust or authority over a minor, and they may not attend places where someone could reasonably expect to find a child. This includes parks, schools, and community centres. This order may last up to the lifetime of the offender. These ancillary orders may also be imposed in indecent act cases, though they are not mandatory.

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Recent Cases

R. v. Graci, 2022 ONCJ 366

This Ontario Court of Justice trial decision deals with an indecent act offence and the concept of willingness. Here, the offender was charged with indecent act, after he was observed masturbating in a public courtyard. The offender engaged in sexual activity in the view of a place of business and an employee of said business. The employee testified that she could see the offender with his pants around his ankles, staring at his phone, and that he was clearly touching himself. The details of that testimony were confirmed by the arresting officer.

The issue at trial became whether the offender willfully committed an indecent act in the presence of another person. Based on the facts, the judge could not conclude that the offender specifically engaged in sexual activity in the presence of the witness, as he was not aware of her. “However, I do find that he was indifferent or reckless as to the presence of others, including Ms. Sharpe. In the result, I have concluded that is sufficient to establish that the indecent act was done “willfully” in the presence of others on these facts.” [at para 21] This recklessness of the offender was established because he masturbated openly in public without a reasonable expectation of privacy. Therefore, he was guilty of an indecent act.

R. v. Maftoon, 2021 ONCJ 583

This Ontario Court of Justice decision is an example of a scenario where indecent act and indecent exposure offences overlap. Here, the offender was found guilty of both. The basis for the charges was that the offender engaged in sexual activity at a community pool, both under his clothing, and through full exposure. The arresting officers also found the offender engaged in sexual activity in his vehicle parked near the pool. The offender contested only the indecent exposure charge on the grounds that he did not expose himself to the specific child named as the main complainant with a sexual purpose.

Relying on caselaw, the judge determined that the accused’s actions in directly exposing himself for a prolonged period were clearly willful. It was a certainty that he was going to be seen by children, it just so happened that the complainant was the one who was unfortunate enough to witness it directly. Requiring an offender who clearly exposed himself for a sexual purpose in the presence of multiple children, to focus that exposure on one child to establish guilt is absurd. As the judge concluded, the offence was clearly committed in this case.

R. v. Rhodes, 2022 ONCA 705

This Ontario Court of Appeal case concerned an offender who appealed his conviction for voyeurism, indecent acts, and trespassing at night. He also appealed the 18-month sentence of imprisonment the conviction led to. The charges stemmed from the victim reporting to the police that the offender had been caught on her security camera prowling around her backyard at night. The camera also revealed the offender had been on the property earlier that day and had peered into the house’s basement window while touching himself.

The offender was arrested by the police in his car not far from where the offence occurred. The offender launched a Charter challenge, asserting some of his rights had been violated through the police’s method of search and arrest. It was determined by the appeal court that what violations did occur, were not enough to overturn the conviction. More importantly, it was determined that the sentence for the crimes was appropriate. The appeal court noted that the sentencing judge correctly balanced the impact of the offence on the victim, and the relevant principles of sentencing. Given that an indecent act was committed in connection with trespassing and voyeurism, this was no simple act meant only to offend the public. It was a chain of events that led to a significant invasion of privacy. One that required a significant sentence because it engaged the need to protect society and denounce the offender’s criminal behaviour.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.