What is a Nudity charge?
Nudity is covered under s. 174 of the Criminal Code.
Nudity occurs when a person without a lawful excuse, is nude in a public place. Or, if that person is nude and exposed to public view while on private property. Therefore, a nudity charge can occur whether or not the property is the accused’s own.
Nudity is characterized as a summary offence and is contained in Part V on the Criminal Code “Sexual Offences, Public Morals & Disorderly Conduct”. Summary offences are considered less serious and carry lesser penalties and sentences. However, Nudity convictions can still have serious consequences in your life for things like employment and immigration.
Some examples of a Nudity charge may include the following:
- Standing naked in your window where the public can view you;
- Being naked on your lawn where the public can view you;
- Being nude while going for a walk; and
- Being nude in a public place such as a movie theatre.
The defences available to a Nudity charge are entirely dependent on the facts of your case.
However, some defences to a Nudity charge may include:
- The accused was only partially nude and was not so clad as to offend public decency or order;
- The accused was giving a nude performance and the performance did not offend public decency or order; and
- Any applicable Charter
These are not the only defences available for a Nudity charge. Again, specific defences may only apply in certain cases and a lawyer will analyze and apply defences that are the best fit in each individual case.
A Nudity charge entails a maximum punishment as follows:
- A maximum fine of $5,000;
- Imprisonment for a period of not more than two years less one day; or
- A $5,000 fine and imprisonment for no more than two years less one day.
The maximum punishment for a nudity charge in Canada can include fines and imprisonment, but the severity of the punishment will depend on the specific circumstances of the case.
Nudity charges can also entail severe consequences for current and future employment opportunities and immigration status.
Legal advice from a qualified lawyer is recommended if you are facing such charges or have specific legal questions about your case.
Have you been charged with nudity?
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Overview of the Offence
According to s. 174 of the Criminal Code:
174 (1) Every one who, without lawful excuse,
(a) is nude in a public place, or
(b) is nude and exposed to public view while on private property, whether or not the property is his own,
is guilty of an offence punishable on summary conviction.
(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.
Consent of the Attorney General
(3) No proceedings shall be commenced under this section without the consent of the Attorney General.
The Guilty Act (Actus Reus)
The actus reus for a nudity charge under s. 174 is established by proof, beyond a reasonable doubt, of the following:
- The accused person was nude;
- The accused was in public or in a place where there is a reasonable expectation that others may be present and could see the nude person; and
- The accused had no lawful excuse to be nude and exposed to the public.
R v Verrette held that in a performance that shows partial nudity, the criminal charge is only made out if the performer is so clad as to offend against public decency or order. R v Giambalvo outlined the test for determining whether partial nudity is considered immoral or indecent.
The determination of whether partial nudity is considered immoral or indecent in Canada hinges on the “community tolerance test.” This test assesses what the broader Canadian community would find acceptable in a given context, such as a tavern or the circumstances surrounding a dance performance. It’s important to note that this test is adaptable and not solely dependent on the preferences of those attending the performance.
Several factors come into play when applying this test:
- Nature of the Performance: The character and intent of the performance are crucial. Is it an artistic expression or simply meant for prurient entertainment?
- Gestures or Words: Any accompanying gestures or language during the performance should be considered.
- Lighting: The lighting conditions can influence how explicit the nudity appears and, consequently, its acceptability.
- Artistic Merit: Assessing whether the dance has a legitimate claim to artistic merit can also guide the determination.
- Audience and Setting: The nature of the audience and the overall environment in which the performance occurs are factors to be taken into account.
This approach aims to gauge community standards and perceptions rather than relying solely on the preferences of those present at the performance.
The Guilty Mind (Mens Rea)
The mens rea for a nudity charge under s. 174 includes proving, beyond a reasonable doubt, that:
- The accused person intended to be nude; or
- The accused, while nude in a private place, knew or ought to have known that they were exposed to public view.
Even when the mens rea is made out, some cases have held that certain actions do not constitute nudity. For example, because nude dancing can be a legitimate form of entertainment, R v Zikman held the offence will not be made out. Additionally, R v Benolkin held that swimming nude on an isolated public beach does not constitute the offence.
How to Beat a Nudity Charge
Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a Nudity charge:
A strong defence against an invitation to a nudity charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you were nude in public, you did not expose yourself on private property to the public while nude, or other basic elements of the offence are not met, then the Crown will not be able to secure a conviction for a nudity charge.
Should the factual circumstances permit (you were actually intoxicated during the commission of the offence), your defence team can bring your level of intoxication to the attention of the court. There are different levels of intoxication which can have different effects on the charges laid. The point of introducing a defence of intoxication is to rebut the mens rea element of the offence. Lower levels of intoxication such as mild intoxication may be posed as a mitigating factor at sentencing. Higher levels of intoxication such as advanced or extreme may bring the intent elements of an offence into question. A defence lawyer will consider the evidence and adduce whether they believe intoxication would be a viable defence.
Lack of mens rea or actus reus
As evident from the detailed discussion above related to the mens rea and actus reus elements of a nudity offence, there are many layers to such a charge and the Crown is required to prove all of the pertinent elements. A strong defence lawyer will analyze all of the evidence that the Crown is relying on and endeavour to identify any gaps in the evidence or failures to meet the requisite mental and physical standards of the offence. For section 174 offences, this might include rebutting claims that the act was committed willfully, it was committed in a public place, it was committed in front of one or more persons, it was committed with the intent to offend or insult someone, etc.
Depending on the circumstances of your case, a possible defence to a nudity charge may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator or if the conduct in question was captured on a poor-quality video or wiretap. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who was found to be nude in public or nude in a private residence but exposed to the public. This can be done by corroborating evidence, such as an alibi, to remove yourself from the offence.
Any applicable Charter defences
The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.
The Criminal Code provides for a possible maximum term of imprisonment of 2 years less 1 day for those convicted of a nudity charge. There is also the potential for a maximum fine of $5,000 or a fine and imprisonment.
Consequently, persons found guilty of nudity are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, or conditional sentence order.
Frequently Asked Questions
Are you allowed to be nude in public in Canada?
In short, if you are nude in public while in Canada, you are likely in contravention of section 174 of the Criminal Code. However, in Canada, the legality of public nudity is a matter that largely depends on the specific circumstances and location. The law under section 174 takes into account the concept of community standards. In cases where community standards are applied, to determine the legality of being nude in a particular context, the “community tolerance test” is applied. The test determines what the broader Canadian community would find acceptable in that specific situation. Factors considered include the nature of the performance or behaviour, the lighting, whether it has legitimate artistic merit, and whether it is intended to cause offence or disturbance.
Can you go to jail for nudity in Canada?
In Canada, going to jail for nudity is a possibility, but it depends on several factors. The maximum term of imprisonment for nudity is 2 years less 1 day and the severity of the punishment varies depending on the circumstances, the nature of the act, and the location where it occurred.
What is considered a public place regarding nudity in Canada?
In Canada, the term “public place” in the context of nudity and indecency typically refers to any location that is accessible to the general public or where individuals can reasonably expect to encounter other people. This includes places like parks, streets, beaches, public transportation, restaurants, malls, and other areas that are open to or frequented by the public. The definition is broad and can encompass various settings, both indoor and outdoor, where one’s actions may be observable by others.
R v Verrette., 1978 CanLII 208 (SCC)
The accused was charged with nudity as he was nude in a public place. He was dancing while totally exposed on the stage in the hotel where he was performing. The accused was convicted and then the conviction was overturned by the Court of Appeal. The SCC allowed the Crown’s appeal as the lawful excuse the Court of Appeal used to overturn the conviction was not urged as a defence by the accused.
The conviction was restored, and the respondent was ordered to pay a fine of $150.
You can read the full decision here.
R v Giambalvo, 1982 CanLII 2043 (ONCA)
The Appellant hired a dancer in a tavern and asked the dancer to remove her underwear, which she refused to do. The Trial Judge held that the patrons of the establishment would not have been shocked if the dancer complied with the request and that the patrons would have gone to the tavern to see this particular performance. The Court of Appeal held that the trial judge erred in deciding whether the removal of underwear offended against public decency or order.
The standard of community tolerance test applies in determining whether the partial nudity is immoral or indecent, so that the issue is what the Canadian community would tolerate in the tavern and in the circumstances in which the dance was to be performed, not what the persons attending the performance would tolerate.
You can read the full decision here.
R v McCutcheon, 1977 CanLII 1958 (QCCA)
In this case, the Court of Appeal held that being nude inside of a theatre constituted being nude in a public place. Originally, the trial court held that the accused, who was nude under a transparent veil that was tied around her neck and that opened totally as a result of movement was “dressed.” Therefore, the Court of Appeal ruled that the trial judge had erred and that the accused was nude and contravened public decency or order.
You can read the full decision here.
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