The Canadian Criminal Code and Public Nudity

The following does not constitute legal advice. In order to arrive at legal understanding, it is necessary to know much more than wording in the Criminal Code (some of which has been around for well over a hundred years) or in excerpts from criminal trial opinions.

Section 173

(1) Everyone who willfully does an indecent act in a public place in the presence of one or more persons,or (b) in any place, with intent thereby to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a trem of not more than two years; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more then six months.

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years

(a) is guilty of anindictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

"Willfully" means "deliberate" or "intentional," as opposed to "accidental" or "inadvertent"; and it is not further necessary to show that the accused knew and intended to perform the indecent act in the sight of others. (Miceli (1977), Ontario Provincial Court)

Section 174

(1) Everyone who, without lawful excuse,

(a) is nude in a public place, or

(b) is nude and exposed to public view while on private property…is guilty of an offence...

(2) For the purpose of this section, a person is nude who is so clad as to offend against public decency or order.

Notes:

This offence is not aimed at conduct such as swimming nude at an isolated beach, even where the accused misjudges the loneliness of the beach. (Benolkin et al., 1977)

(3) No proceedings shall be commenced under this section wothout the consent of the Attorney General.

 

Click here to read the complete act.

Response from the Federation of Canadian Naturists

Even if it were applied reasonably and consistently, the present law is unsatisfactory in that it embodies the idea that nudity per se is somehow "indecent" and likely to cause "harm" to anyone who might see a nude person. Many feel that such an attitude is completely unjustified and outmoded, and in fact reflects a prejudice against the human body.

It is completely unsatisfactory that a person quietly sunbathing on a beach or in a home back garden has to take extraordinary measures to avoid being observed and avoid any resulting  unpleasantness complaints. And in spite of the statement that there is no offence when at in isolated beach, the reality is that there remains the risk of harrassment by law officials and the laying of criminal charges.

It is totally inappropriate, and indeed absurd, that a woman who removes her top on a warm day should be treated as if she could possibly harm anyone. It is beyond the reason of any thinking person, and insulting to women. An excellent first step was taken in Ontario when Gwen Jacob was acquitted of indecency in December 1996 for walking topfree about Guelph. Click here for details of the Jacob decision. Unfortunately, not all provinces have explicitly recognized these rights. Currently, British Columbia is in a position almost as advanced as Ontario.

Given the present situation, we feel that this is a crucial time for the voices of all who support the freedom to be nude to be heard. Nudist groups across Canada are joining with us in a campaign to preserve our nudist rights.