Indecent Exposure and Indecent Act
Indecent exposure and indecent acts are covered under section 173 of the Criminal Code of Canada although not often seen in the courts of this Province, are nevertheless serious allegations that can minimally result in the imposition of consequences which can greatly impair one`s ability to seek or maintain employment, in the event a criminal record is obtained.
Essentially, indecent exposure in public implies a sexual component, either of committing an indecent act in public or of exposing one`s genital organs for a sexual purpose to a person under the age of 16 years.
However, the offence under the first part of the definition section requires that the act complained of must be performed in the presence of one or more other persons and the role of the criminal defence lawyer may, for example, be to highlight that if there was only one other individual who witnessed the act, in circumstances where this person might have been expected to approve of or in some way participate, the accused person must be found not guilty.
In preparation for trial, the criminal lawyer may well challenge whether or not the location where the alleged criminal conduct took place is in fact a “ public place.”
Generally speaking, the Prosecution must satisfy this requirement by proving that the location is one to which the public has access. However, this is always open to interpretation and argument and also is very much wrapped up in the issue of intent.
For example, where an accused person was found to be committing a sexual act in a car parked in a remote part of a community park late at night, although this might otherwise be considered an area the public has access to, it is clearly open to the defence lawyer to argue that the intent component of the charge has not been made out. Clearly, the accused person cannot be said to have intended his conduct to be observed by others.
In addition, of course, even when the act complained of unquestionably occurs in a public place, the behaviour itself may have a sexual component but not be considered indecent.
Precedent cases, have determined, in some provinces, that this result might be obtained, for example, where a woman walked down the street with her breasts exposed. Changing standards of community tolerance must be applied in determining whether any acts that form the subject matter of a criminal charge are indecent, such that they bring into play the sanctions and penalties of indecent public exposure in the Criminal Code of Canada.
And as always, in the case of any criminal prosecution, the charge before the court must be proven beyond a reasonable doubt and every accused person, according to the Charter of Rights and Freedoms must have the opportunity of presenting a full answer and defence. This includes the right to challenge any evidence brought forth against him or her in a court of law and the right to testify on his own behalf.
Perhaps it goes without saying, but needs to said in any case, that the preparation of competent and experienced criminal defence lawyer can often be the difference between being found guilty or not guilty of an offence and it is absolutely necessary that you feel comfortable in the knowledge that your lawyer is someone you can relate to and is committed to your cause throughout the process in the criminal justice system. This is our mission at The Criminal Law Team.