Review of the Law of Indecency and Nudity 1999



HISTORY OF INDECENCY

1. England

The first offence of indecent exposure has been identified as that of R. v. Sidley in 1663.  2 In this case, the accused appeared nude on a balcony in Covent Garden. The court held that it was a misdemeanour at common law to expose the naked person.3 By the nineteenth century, the exposure no longer needed to have occurred in a public place:
  • it is sufficient if it is made where a number of persons may be offended by it and several see it.4
By the mid-twentieth century, it was held that it is "not necessary for the prosecution to prove that the act of indecency in fact disgusted or annoyed those who actually saw it".  5 The test for indecency is whether the act in question would disgust and annoy any ordinary members of the public who might be confronted by it.

In addition to the common law offences, there were statutory offences for bodily exposure: the Vagrancy Act, 1824 section 4, the Town Police Clauses Act, 1847 as well as other local ordinances and bylaws.6

Over and above offences directly related to exposure of the body, there is also the common law offence of "outraging public decency". See footnote 7 7 This offence was most recently applied in the case of Gibson and Sylveire. See footnote 8 8 In this case, the accused were involved with displaying a pair of earrings made from freeze-dried human foetuses at an art gallery. The court affirmed the existence of the common law offence of outraging public decency, and went on to distinguish it from the offence of obscenity:
  • There are, it seems to us, two broad types of offence involving obscenity. On the one hand are those involving the corruption of public morals, and on the other hand, and distinct from the former, are those which involve an outrage on public decency, whether or not public morals are involved...There is no suggestion here that anyone is likely to be corrupted by the exhibiting of these earrings. It seems to us that the two types of offence are both factually and morally distinct. (pp.344-345)
The distinction between indecency and obscenity has become quite clear and well-established in England. The matter was put in the following way by Parker, L.C.J. in the case of Stanley9 :

The words "indecent and obscene" convey one idea, namely, offending against the recognized standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale...an indecent article is not necessarily obscene, whereas an obscene article almost certainly must be indecent.

The differentiation recognized between indecency and obscenity by the courts in England is relevant and important because, as will be seen below, Canadian courts have not made a similar differentiation. The result is that in Canada, for the most part, indecency requires the same gravity as obscenity.

2. CANADA

A summary conviction offence prohibiting indecency has been part of the Criminal Code since its inception in 1892. The earliest formulation was as follows:

Every one is guilty of an offence and liable, on summary conviction before two justices of the peace, to a fine of fifty dollars or to six months' imprisonment, who wilfully,
  • (a) in the presence of one or more persons does any indecent act in any place to which the public have or are permitted to have access; or
  • (b) does any indecent act in any place intending thereby to insult or offend the person.10
The section was revised as part of the overall 1953-54 revision11 where it took its present shape.

An offence prohibiting nudity did not become part of the Criminal Code until 1931:

Every one is guilty of an offence and liable upon summary conviction to three years imprisonment who, while nude,
  • (a) is found in any public place whether alone or in company with one or more other persons who are parading or have been assembled with intent to parade or have paraded in such public place while nude, or
  • (b) is found in any public place whether alone or in company with one or more other persons, or
  • (c) is found without lawful excuse for being nude upon any private property not his own, so as to be exposed to public view, whether alone or in company with or persons, or
  • (d) appears upon his own property so as to be exposed to the public view whether alone or in company with other persons.12
The section was revised in 1953-54 to include a definition of "nude":
  • a person is nude who is so clad as to offend against public decency or order.13

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018