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Indecent Act Charges

Section 173 of the Criminal Code contains two separate offences. An indecent act under subsection (1) and exposure to a person under 16 under subsection (2) have different elements, different penalties, and very different consequences for the person charged.

A conviction for an indecent act does not automatically place a person on the sex offender registry. For this offence, a registration order requires a Crown application and proof beyond a reasonable doubt of a further sexual intent. Foote Law defends indecent act charges throughout Ontario, from the first contact with police through to trial.

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How Foote Law Can Help

Foote Law acts for people charged under section 173 at every stage of the case:

  • Advice before any police interview, including on the right to remain silent.
  • Review of Crown disclosure, including witness statements and any video evidence.
  • Charter applications where the detention, arrest, or search was unlawful.
  • Opposition to any Crown application for a sex offender registration order.
  • Applications to vary release conditions that are unworkable.
  • Negotiation with the Crown toward resolution, including a withdrawal or a peace bond where the facts support it.
  • Sentencing submissions aimed at avoiding a criminal record.
  • Trial representation in the Ontario Court of Justice.

Foote Law accepts Legal Aid Ontario certificates and Employee Assistance Program referrals. Call Foote Law in Orangeville at 519-940-8309 or in Fergus at 519-772-6139. Foote Law serves clients in Orangeville, Fergus, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, Centre Wellington, and throughout the Greater Toronto Area, in person and virtually.

What the Crown Must Prove

Section 173(1) sets out two routes to a conviction. The first is wilfully doing an indecent act in a public place in the presence of one or more persons. Section 150 of the Criminal Code defines a public place broadly: it includes any place to which the public has access as of right or by invitation, whether express or implied. A shopping mall, a parking lot, or a public park can all qualify.

The second route is wilfully doing an indecent act in any place with intent to insult or offend any person. This route can reach conduct on private property, but only where the Crown proves that specific intent.

Under either route, the Crown must prove that the act was done wilfully. Conduct that is accidental, or that is seen only by chance, does not meet this standard.

What "Indecent" Means in Law
& Penalties

What "Indecent" Means in Law

Indecency is not measured by embarrassment, poor taste, or social disapproval. In R v Labaye, 2005 SCC 80, the Supreme Court of Canada replaced the older "community standard of tolerance" approach with a harm-based test. Under that test, conduct is indecent where it causes harm, or a significant risk of harm, to individuals or society that is serious enough to be incompatible with the proper functioning of society.

Context therefore matters a great deal. The same conduct may be indecent in one setting and lawful in another, which is why the circumstances of each allegation deserve close examination.

Penalties

Section 173(1) is a hybrid offence, meaning the Crown can choose to prosecute it either by indictment or by summary conviction. On indictment, the maximum sentence is two years in jail. On summary conviction, section 787(1) applies: the maximum is a fine of $5,000, imprisonment for two years less a day, or both.

There is no mandatory minimum sentence for an indecent act. As a result, the full range of outcomes remains available, including a discharge. A discharge results in a finding of guilt without a conviction, which can make a significant difference for employment and travel.

Timing also matters. Under section 786(2), a charge prosecuted by summary conviction must be laid within 12 months of the alleged offence, unless the prosecutor and the defendant agree otherwise.

Registry Orders, Exposure Under Section 173(2),
Release Conditions, Defences & Other Consequences

Does a Conviction Lead to Sex Offender Registration?

  • Section 490.011(1) of the Criminal Code lists section 173(1) as a secondary offence for the purposes of the sex offender registration provisions. For a secondary offence, an order to comply with the Sex Offender Information Registration Act never follows automatically from a conviction.
  • Under section 490.012(5), the Crown must apply for the order. The court may make it only if the Crown establishes beyond a reasonable doubt that the person committed the indecent act with the intent to commit a primary offence, such as a sexual assault or a sexual offence against a child.
  • If the Crown makes no application, or cannot meet that high standard, no registration order is made. Opposing that application is often the most consequential part of the defence.

Release Conditions

  • A person charged under section 173 may be released by police on an appearance notice or an undertaking, or may be held for a bail hearing before a justice.
  • Where conditions are imposed, they commonly prohibit attending the location involved and contacting any identified complainant.
  • Breaching a release condition is a separate criminal offence under section 145, so any condition that is unclear or unworkable should be addressed early.

Defences

  • The conduct did not meet the legal threshold for indecency.
  • The location was not a public place within the meaning of section 150.
  • No other person was present, where the charge relies on the public place route.
  • There was no intent to insult or offend, where the charge relies on the any place route.
  • The act was not wilful, for example because any exposure was accidental.
  • The Charter was breached during the detention, arrest, or search.
  • The accused was misidentified, particularly where the allegation rests on a brief observation by a stranger.

Exposure Under Section 173(2) Is a Different Offence

  • Section 173(2) makes it an offence, in any place and for a sexual purpose, to expose one's sexual organs to a person under 16. The Protecting Victims Act (Bill C-16), in force since July 18, 2026, amended this offence. It replaced the words "genital organs" with "sexual organs" and raised the maximum sentence to 10 years on indictment and two years less a day on summary conviction. Mandatory minimum jail sentences continue to apply in both streams: 90 days on indictment and 30 days on summary conviction. Penalty figures published before July 2026 are therefore out of date.
  • Sexual purpose is determined from all of the surrounding circumstances; exposure alone does not establish it. The accused and the young person also do not need to be in the same physical place. In R v Alicandro, 2009 ONCA 133, the Court of Appeal for Ontario confirmed that exposure over a webcam can meet the definition.
  • Because section 173(2) is a primary offence, the registration consequences are far more serious. A registration order is mandatory in some circumstances, such as where the Crown proceeds by indictment and a sentence of two years or more is imposed. In other cases, the court must make the order unless it is satisfied that the order would have no connection to preventing or investigating sexual crimes, or that its impact on the person would be grossly disproportionate to the public interest.

Other Consequences of a Conviction

  • A conviction under section 173(1) results in a criminal record. A record can affect employment, professional licensing, volunteer positions that require a vulnerable sector check, and entry to other countries.
  • Record suspensions are also restricted. Where the victim was under 18, a conviction under section 173(1) is generally ineligible for a record suspension under section 4 of the Criminal Records Act. A narrow exception applies only where the Parole Board of Canada is satisfied that the person was not in a position of trust or authority toward the victim, that the victim was not dependent on the person, that no violence, intimidation, or coercion was used, and that the person was less than five years older than the victim.
  • Because section 173(1) is a hybrid offence, a person charged with it can also be required to attend for fingerprints and photographs under the Identification of Criminals Act.

Charged With an
Indecent Act?

An indecent act charge can affect a person's reputation, employment, and ability to travel, even where the conduct was brief or misunderstood. These cases often turn on whether the conduct met the legal threshold for indecency, what the Crown can prove about intent, and whether a registration order can be resisted. Early legal advice significantly expands the options available.

519-940-8309 Orangeville 519-772-6139 Fergus
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