QUICK TAKEAWAY
Nudity and Indecent Exposure: Though the offence is rarely prosecuted, s.174 (1) of the Criminal Code states that it is illegal to be nude in a public place "without lawful excuse." That includes nudity on your own property if you are in public view. The charge of indecent exposure may be laid if you expose your genitals to someone under 16. According to s.173 (1) of the Code, the maximum penalty is two years in jail for indecent exposure, with fines often given out for nudity, if the charge is prosecuted.
Table of Contents:
What is Nudity?
Section 174 (1) of the Criminal Code makes it illegal to be nude in a public place "without lawful excuse." It is also a crime to be nude and exposed to public view while on private property, even your own property. The Code defines nudity as being "clad as to offend against public decency or order," meaning that you do not have to be completely naked to be charged.
What Is Indecent Exposure?
Section 173 (1) of the Code describes an "indecent act" as any action in a public place in the presence of one or more persons that is done for the purpose or intent to insult or offend others. "Exposure" is described as revealing your genital organs to a person under the age of 16 for a sexual purpose.
Is Toplessness Allowed in Canada?
Courts in some provinces have ruled women can legally expose their breasts. In 1996, the Ontario Court of Appeal ruled a lower court erred in finding a woman guilty of committing an indecent act after she walked on a city street and sat on her porch with her breasts exposed. “No one who was offended was forced to continue looking at her,” the judgment reads. “Her conduct did not constitute an indecent act.”
That sentiment was echoed by a B.C. judge, who noted that “nude sunbathing is not of sufficient moral turpitude to support a charge for doing an indecent act.”
What is Needed to Convict
With the offence of nudity, the Code states that “No proceedings shall be commenced under this section without the consent of the Attorney General.” That is required to avoid harm resulting from prosecuting a case that is not in the public interest. There is no similar stipulation with indecent exposure. To win a conviction, the Crown has to show that you purposely exposed your genitals to someone under 16 for a sexual purpose.
What are the Penalties?
The charge of nudity is treated as a summary convictionUsed for lesser offences, with a maximum fine of $5,000 or a term of imprisonment of not more than two years less a day, or both.
If your indecent exposure charge is treated as an indictable offenceIndictable offences are more-serious criminal offences, the maximum penalty is a two-year jail term. The minimum punishment is imprisonment for 90 days. If it is prosecuted as a summary conviction, the maximum penalty is six months in jail. The minimum punishment is imprisonment for 30 days.
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Alain Hepner Q.C
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Glossary of Legal Terms
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
