Public decency laws in Canada exist to protect society from conduct that offends community standards of morality. One offence under the Criminal Code that is frequently misunderstood is indecent act under section 173(1).

In this blog, we clarify the legal definitions and elements of the offence of Indecent Act.

Indecent Act – Section 173(1) of the Criminal Code

What is an Indecent Act?

Section 173(1) of the Criminal Code makes it an offence to wilfully commit an indecent act in a public place in the presence of one or more people. The section reads:

Every one 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, is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or is guilty of an offence punishable on summary conviction.

To prove the offence, the Crown must prove the following essential elements beyond a reasonable doubt:

  1. The act the accused committed was indecent.
  2. The act was committed in a public place and in the presence of one or more persons, or in any place (public or private), with the intent to insult or offend.
  3. The act was committed wilfully.

Convictions for an indecent act with the intent to insult or offend are less common and so will not be the focus of this blog.

What is Indecent?

What is “indecent” is not defined in the Criminal Code. Instead, the courts look to contemporary community standards of tolerance when considering whether or not an act is “indecent”. The Supreme Court of Canada provided guidance in the 1993 case of R. v. Tremblay, [1993] 2 SCR 932, at paragraph 55:

  1. [There are] accepted standards of tolerance in the contemporary Canadian community [which should not be exceeded];
  2. [these] standards must be contemporary as times change and ideas change with them, one manifestation being the relative freedom with which the whole question of sex is discussed; 
  3. it is the standards of the community as a whole which must be considered and not the standards of a small segment of that community… ; 
  4. the decision whether [the acts in question are] tolerable according to Canadian community standards rests with the court; 
  5. the task is to determine in an objective way what is tolerable in accordance with the contemporary standards of the Canadian community, and not merely to project one’s own personal ideas of what is tolerable.

Canadian courts must assess whether certain acts exceed the limits of what is acceptable based on the current standards of tolerance held by the broader Canadian community, and not by relying on personal views, those of a narrow group, or historical views. This evaluation must be objective and reflect contemporary social attitudes, particularly around sensitive topics such as sex.

Generally speaking, the explicit sexual nature of an activity will make it indecent, all other things being equal. For example, two similar cases from the 1990s had different outcomes, mostly due to the explicit sexual nature of one case and not the other. In R. v. Jacob, [1996] OJ No 4304 (ONCA), the Ontario Court of Appeal overturned a conviction for a woman who walked topless in public to make a statement about equal rights, noting her conduct was non-sexual, limited in scope, and non-commercial. By contrast, in R. v. Gowan, [1998] OJ No 1629 (Ont Ct J), the Ontario Court of Justice upheld a conviction where a female sex worker engaged in overtly sexual and commercial behaviour, such as fondling her breasts, pinching her nipples, making sexual remarks, and impeding traffic. Although both cases involved topless women, the sexual nature of the behaviour in Gowan distinguished it from Jacob.

What is a “public place”?

What constitutes a “public place” will depend on the circumstances. Section 150 of the Criminal Code defines a “public place” as the following:

“public place” includes any place to which the public have access as of right or by invitation, express or implied; (endroit public)

A public place does not include private places exposed to public view, such as one’s private residence, apartment, workshop, office, or garage. In the case of R. v. Clark, 2005 SCC 2, the Supreme Court of Canada held that the indecent act provisions were not meant to apply to private places that become exposed to public view. Mr. Clark was convicted of an indecent act for masturbating in his illuminated living room near an uncovered window. There was no evidence that Mr. Clark was intentionally making himself visible, but he was nonetheless visible to his neighbours, who called the police. The Supreme Court of Canada overturned Mr. Clark’s conviction.

The logic in Clark does not apply to motor vehicles. Instead, courts in Canada take a contextual approach in determining whether a motor vehicle is a private or public place. The factors a court may consider, among others, were helpfully itemized by the Saskatchewan Court of Appeal in R. v. Harpold, 2025 SKCA 26 at paragraph 50:

  1. physical and visual access by the public to the vehicle, by invitation, express or implied, 
  2. the location of the vehicle, 
  3. proximity to members of the public, 
  4. time of day, 
  5. lighting, and 
  6. circumstances involving the indecent act itself, its visibility, and its commission.

Generally, the efforts the occupant of a vehicle takes to remain concealed or be out of sight will weigh towards finding the vehicle is a private place. In R. v. Sloan, 89 CCC (3d) 97 (ONCA), the Ontario Court of Appeal overturned a conviction for an indecent act of a sex worker performing fellatio in a car. The car was located around midnight in an empty public parking lot near a tree-covered embankment, a hundred and fifty feet away from the next vehicle. The police who observed the indecent act snuck up on Ms. Sloan and observed the act at a distance of about a foot and a half. Justice Galligan noted that the purpose of the offence is not to criminalize “persons engaged in sexual activity in circumstances where it is highly unlikely that any member of the public would see what they were doing.” By contrast, in R. v. Gill, 2010 BCPC 256, the accused was convicted of indecent act for masturbating in the driver’s seat of his car. In that case, Mr. Gill was stopped at a traffic light on a busy street in the early afternoon and deliberately made eye contact with another person. The other person could see Mr. Gill masturbating with his hand under his shorts.

What does “wilfully” mean?

In Canadian criminal law, to commit an act “wilfully” means to commit the act deliberately or intentionally, and sometimes recklessly. Whether proof of recklessness is sufficient to attract criminal penalty is sometimes a matter of debate. 

In BC, it has been held that an accused must wilfully, and not recklessly, commit the indecent act in the presence of one or more persons. In R. v. Hemphill, 2003 BCSC 1666, the court clarified the mental element, or mens rea, required. In that case, Mr. Hemphill was observed by Wal-Mart security guards masturbating in the parking lot of Guildford Town Centre shopping mall in view of the parking lot and the movie theatres. The security guards had been conducting surveillance of Mr. Hemphill for some time before observing him to masturbate. Mr. Hemphill was surprised when he realized he was in the presence of the security guards; he attempted to cover himself and ceased masturbating. The trial judge convicted Mr. Hemphill for being reckless as to whether other people might see him. The BC Supreme Court overturned the conviction and directed and acquittal, finding that recklessness did not apply and that Mr. Hemphill did not wilfully commit the act in the presence of one or more persons as evidenced by his actions after he realized he was seen by a member of the public.

What does “in the presence of one or more persons” mean?

“In the presence of one or more persons” means one or more non-participating persons. For example, if the alleged indecent act involves intercourse between two people, the act must be done in the presence of one or more non-participating persons for it to be criminal. 

Conclusion

While Canada’s laws on public indecency aim to balance personal freedoms with societal norms, confusion often arises around what conduct is truly criminal. Understanding the fine distinctions in law is essential in assessing legal risk and defending oneself.

If you or someone you know is charged with either of these offences, consult experienced legal counsel immediately.