INDECENT ACT DEFENCE LAWYERS IN TORONTO

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Under section 173(1) of the Criminal Code, it is a criminal offence to commit an Indecent Act. The Criminal Code does not precisely define what acts would be considered indecent, however it does stipulate that the act must be committed in a public place, in front of one or more persons, and with the intention to cause offense. Generally, those charged with an indecent act will have committed some sort of sexual act in public, but the act does not always have to be sexual in nature. The court will make the determination on a case-by-case basis, taking into consideration what kind of behaviour the community views as tolerable in our society.

As mentioned above, one important aspect of s.173(1) is that the indecent act must have been committed in a public place. A public place can be defined as a location where the public has access to come and go as they please. A member of the public simply being able to see into a location will generally not suffice to prove the act was committed in a public place. For example, the courts ruled in one case that a man was not guilty of committing an indecent act after his neighbors viewed him masturbating inside his home near a lit window. The courts ruled in a different case that a man was not guilty of an indecent act after he was caught masturbating in his car, which was parked approximately 100 meters away from any other vehicles. Another man was found guilty by the courts of committing an indecent act after he was caught masturbating in his car at a red light while attempting to make eye contact with other drivers.

Donich Law 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.

Frequently Asked Questions

What is an Indecent Act?
What are some the Penalties for Indecent Act?
What is Exposure?
What are some of the Penalties for Exposure?
What is Incest?
What are some of the Penalties for Incest?
What is the SOIRA s.490.012 order?
What is the Duration of a SOIRA order?
What is a s.161 Order?

What is an Indecent Act? 

Section 173(1) of the Criminal Code outlines the crime of an Indecent Act as follows:

173 (1) Everyone who willfully 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

 The Criminal Code does not provide a list of specific acts that are to be considered indecent acts, rather, that determination is left up to the courts on a case-by-case basis. The judge in each case will make the decision of whether or not the act was considered indecent based on the facts specific to that case. In many cases, those charged with committing an indecent act will be accused of committing a sexual act in public, however this is not always the case. Other non-sexual behaviors can also be considered indecent acts.

What are some the Penalties for Indecent Act? 

Indecent Act is a crime categorized as a hybrid offense, meaning it is the Crown’s decision whether to proceed by summary conviction, or in more serious cases, by indictment. The Crown will consider many factors when making this determination, including personal characteristics of the accused, the nature of the act allegedly committed and any other factors that may be relevant. If found guilty on summary conviction of committing an indecent act the maximum penalty will be six months’ imprisonment and/or a fine up to $5,000. If found guilty of an indecent act that was prosecuted by indictment the maximum penalty is two years’ imprisonment.

The judge in the case will weigh many factors when determining a just and fit sentence in each case. Both the defense and Crown will have the opportunity to present evidence to bolster what they believe is a fair sentence for the offender, however the ultimate decision will lie with the judge presiding over the case. Factors such as the age of the accused (youth offenders), the nature of the act committed, personal characteristics of the accused, personal characteristics of the victim, the criminal history of the accused, and the factors leading up to the accused committing the act will all be taken into consideration when determining a just and fit sentence.

What is Exposure? 

Section 173(2) of the Criminal Code defines exposure as follows:

173(2) 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

 Criminal exposure under s.173(2) does not have to occur in a public place and can even occur when the accused is not physically present with the minor, such as in cases of exposure over the internet.

What are some of the Penalties for Exposure?

Exposure under s. 173(2) of the criminal code is a hybrid offense, meaning it is the Crown’s decision whether to proceed by summary conviction, or in more serious cases, by indictment. The Crown will consider many factors when making this determination, including personal characteristics of the accused, the nature of the act allegedly committed and any other factors that may be relevant. If found guilty on summary conviction of committing an indecent act the maximum penalty will be six months’ imprisonment and/or a fine up to $5,000. If found guilty of an indecent act that was prosecuted by indictment the maximum penalty is two years’ imprisonment.

The judge in the case will weigh many factors when determining a just and fit sentence in each case. Both the defense and Crown will have the opportunity to present evidence to bolster what they believe is a fair sentence for the offender, however the ultimate decision will lie with the judge presiding over the case. Factors such as the age of the accused (youth offenders), the nature of the act committed, personal characteristics of the accused, personal characteristics about the victim, the criminal history of the accused, and the factors leading up to the accused committing the act will all be taken into consideration when determining a just and fit sentence.

What is Incest?

 Incest is defined by the Criminal Code as follows:

155(1) Everyone commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.

 Where the accused engaged in the alleged sexual activity while under duress, while being threatened, while under restraint or while being otherwise coerced, the accused will not be found guilty of incest under s. 155(3).

What are some of the Penalties for Incest? 

Section 155(2) of the Criminal Code stipulates that incest is an indictable offense and must be prosecuted as such. Indictable offenses are much more serious as they come with stiffer sentences. The maximum penalty for an incest conviction, as outlined in the Criminal Code, is 14 years’ imprisonment. In cases where the victim was under the age of sixteen there is a mandatory minimum sentence of five years’ imprisonment.

The judge in the case will weigh many factors when determining a just and fit sentence in each case. Both the defense and Crown will have the opportunity to present evidence to bolster what they believe is a fair sentence for the offender, however the ultimate decision will lie with the judge presiding over the case. Factors such as the age of the accused (youth offenders), the nature of the act committed, personal characteristics of the accused, personal characteristics about the victim, the criminal history of the accused, and the factors leading up to the accused committing the act will all be taken into consideration when determining a just and fit sentence.

What is the SOIRA s.490.012 order? 

SOIRA is an acronym which stands for the Sexual Offender Information Registration Act. SOIRA is Canada’s national sex offender registry database which allows law enforcement officials to keep track of all those convicted of sexually based offenses. Information entered into this system becomes available to law enforcement agencies all over the country in order to assist in solving crimes. The database is commonly used in the investigative stage of sexual offences when searching for a suspect, and can be used to determine possible sex offenders residing in the area the crime was committed.

Information that will be entered into SOIRA when available includes the following:

  • Name and alias of the offender
  • Date of birth
  • Physical description
  • Address of main and any secondary residences
  • Telephone numbers associated with the offender
  • Address of educational institutions attended by the offender
  • Employment type and address
  • Vehicle information (owned or used regularly)
  • Name and address of offender’s volunteer organizations
  • Offence information
  • Photograph of the offender
  • Driver’s License
  • Passport Information

Section 490.012 of the Criminal Code stipulates when an offender must register with SOIRA as follows:

490.012(1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in section 490.013.

Essentially, this means that when an accused is convicted or found not criminally responsible because of a mental disorder of one of the offenses listed on the designated offences list, the court must issue them an order demanding they register with SOIRA annually for a specified time period.

Some designated offences include the following:

  • s. 151 Sexual Interference
  • s. 152 Invitation to Sexual Touching
  • s. 153 Sexual Exploitation
  • s. 155 Incest
  • s. 163.1 Child Pornography
  • s. 173(2) Exposure
  • s. 271 Sexual Assault
  • s. 272 Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm
  • s. 273 Aggravated Sexual Assault

For the complete list of designated offences see s.490.011 of the Criminal Code.

In addition, if convicted of one of the following offenses (listed below), a SOIRA order can be ordered if the Crown can prove beyond a reasonable doubt that the accused committed the offence with the intent to commit one of the designated offences. For example, if an accused killed their victim while attempting to sexually assault them, it is likely the court would order that they register with SOIRA.

  • s. 162 Voyeurism
  • s. 173(1) Indecent Acts
  • s. 231 Murder
  • s. 234 Manslaughter
  • s. 264 Criminal Harassment
  • s. 279 Kidnapping
  • s. 279.01 Trafficking in Persons

Once the court has imposed a SOIRA order on an offender convicted of a designated offence the offender will have seven days from the time of their conviction or their release from a custodial institution to complete their registration with SOIRA. Additionally, offenders will be required to re-register annually for whatever time period is applicable, or whenever there is a change in any of the information entered (for example, a change of address). The offender will also be required to register any domestic or international travel lasting longer than seven days.

Failure to register for SOIRA after an order has been issued, or failure to keep the information in the system up to date is a criminal hybrid offence. The Crown will make the determination whether to proceed by summary conviction or by indictment. The maximum penalty if the Crown proceeds by summary conviction is six months’ imprisonment and/or a $10,000 fine. The maximum penalty if the Crown proceeds by indictment is two years’ imprisonment and/or a $10,000 fine.

What is the Duration of a SOIRA order? 

The length that a SOIRA order will last will depend on the offence that it was issued for. In cases where the offence was prosecuted by summary conviction or where the maximum penalty is two to five years’ imprisonment, the order will end ten years after the date it was issued. If the offence was prosecuted by indictment and the maximum penalty is ten to fourteen years’ imprisonment, the order will end twenty years after the date it is issued. Where the accused has been given a life sentence, the SOIRA order will last for life as well.

What is a s.161 Order? 

Section 161 of the Criminal Code states the following:

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

  • (a)attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, school ground, playground or community center;
  • (b)seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or
  • (c)using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

Essentially, this means when an accused has been convicted or discharged of a sexual offence against a person who is under the age of sixteen, the court can impose a s. 161 order on them in addition to any other sentence that may be imposed.

Offences for which a s.161 order can be imposed include:

  • s. 151 Sexual Interference
  • s. 152 Invitation to Sexual Touching
  • s. 155 Incest
  • s. 163.1 Child Pornography
  • s. 172.1 Luring a Child
  • s. 173(2) Exposure
  • s. 271 Sexual Assault
  • s. 272 Sexual Assault with a Weapon, Threats to a Third Party or Causing Bodily Harm
  • s. 273 Aggravated Sexual Assault

For the full list see s.161 of the Criminal Code.

The judge issuing the order will determine which specific conditions they will impose on the offender. A judge need not impose all the conditions outlined in s. 161(1)(a)-(c) if they do not find them appropriate. The judge will consider many factors when determining which conditions will be applied to the offender. Some of those factors may include, but are not limited to the following:

  • The nature of the offence committed and the circumstances in which it was committed
  • The offender’s prior criminal history
  • The offender’s likelihood of re-offending
  • The age and vulnerability of the victims
  • The offender’s willingness to take responsibility for the offence, remorse for their actions, insight into the seriousness of the offence and willingness to participate in treatment.

In each case, the court will determine the duration of the s.161 order based on the facts of the case. The Criminal Code does not specify a timeline and so there is no minimum or maximum period of time. An offender may make an application to have conditions varied or to have the order lifted should there be a change in their circumstances. An example of a change of circumstance that may lead the court to lifting the order would be clear evidence to show that the accused no longer poses a risk of harm to the public or to those around them.

Failure to comply with and abide by a s.161 order is a criminal hybrid offence. If prosecuted by summary conviction the maximum penalty is six months’ imprisonment and/or a $5,000 fine. If prosecuted by indictment, the maximum penalty is two years’ imprisonment.

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