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EXPOSURE OF BODY PARTS AND INDECENCY
Even without the recent development in the way that the community standards test is to be determined, the issue of when the exposure of body parts constitutes indecency has never been absolutely clear. It must, of course, be stated at the outset that, by virtue of s.174(1), the Criminal Code renders complete nudity per se to be a summary conviction offence. However, by virtue of ss.(3), the consent of the Attorney General is required to initiate a prosecution. Sometimes cases of complete nudity have been prosecuted under s.173, and the courts have held that this is not an inappropriate exercise of prosecutorial discretion. 35
Nevertheless, when s.173 is used to prosecute cases of complete nudity, the case law has, with some consistency, held that mere nudity is not per se indecent; there must be something over and above this exposure.36 Some courts have referred to this additional element as "moral turpitude" 37 but it would seem to be ultimately a function of context: time, place, manner, audience, other surrounding factors.
The question of partial nudity will always be a function of indecency, since s.174(2) defines nudity, for the purposes of ss.(1) to be a question of whether public decency or order has been offended. The Ontario Court of Appeal held in R. v. Giambalvo38 that the test under ss.(2) is the community standards test.
As such, it would be difficult to state with any clarity or certainty that the act of toplessness itself is, per se, indecent. We know, from the response to the Jacob decision that there are members of the public who are profoundly upset and offended at the idea of women appearing topless in public places. 39 Some object to this on the basis of their religious concerns; others on moral grounds (eg.sexual display, lewd reactions by men); many referred to the problems of children being exposed to this in conjunction with an attempt to educate them into having a set of values expressing modesty and other beliefs inconsistent with a public display of toplessness.
In addition, many of the decisions relating to indecency (eg. Tremblay, Mara and East) concern charges laid for conduct in public places where those who were exposed or confronted by the behaviour were willing observers. No one would find him/herself having to see the behaviour because, to a large extent, it had to be searched out.
The question of what the community would not tolerate others seeing makes sense in these situations because the restriction is preventing both the actor and the observer from experiencing the behaviour. However, in the Jacob case, appearing topless in public on a city street, involved confronting many unwilling observers with behaviour that they would profoundly have preferred not to have seen. No one had to search out this behaviour and therefore could easily have avoided it if it was considered offensive. On the contrary, children playing on their front lawns were exposed to it. This, it is submitted, creates a different kind of problem from that contemplated by the community standards test. The question of what the community would not tolerate others seeing, does not appear to be the appropriate criteria in this kind of situation.40
There are two broad conclusions that can be drawn from the above analysis. The first is that indecency is now to be assessed in the same way as obscenity, in terms of the harm caused by the act. But there is a legitimate question whether indecency and obscenity should be treated equivalently for legal purposes. As stated above, indecency relates to conduct or behaviour whereas obscenity relates to material. There are differences between acts and expressions and it may be important for the law to be sensitive to these differences in terms of how it deals with indecency/conduct and obscenity/expression. If there is to be a legally recognized contrast between indecency and obscenity, even one that simply sees them as different gradations along the same scale, there would need to be some legislative reform that establishes different criteria to be used in determining whether something is indecent or obscene.
The second conclusion is that the current test for indecency is not easily applicable to the case where those who are being subjected to the conduct may not tolerate it. If it is recognized that people have a legitimate interest in being relatively free from having to confront profoundly offensive behaviour in circumstances where it is reasonable for them to assume that they will not have to confront such behaviour, then some legal response may be required to deal with this kind of problem.41 It may, however, not be the kind of legal response for which the criminal law is either appropriate or apposite.