Is having sex in public a crime in Canada?

Having sex in public can get you charged under Section 173 of the Criminal Code for committing an indecent act. It’s not about whether someone was offended — the law focuses on whether your conduct caused or risked real harm to society’s standards of acceptable behaviour.

Key Points to Consider:

• Indecent acts cover sexual activity in public spaces where people can see you — parks, parking lots, beaches, cars in public view, or anywhere the public has access.

• The Crown must prove you intended to insult or offend the public — so your state of mind and efforts to stay private matter.

• At least one person (not your partner) must have been present or could have seen you for the charge to stick.

• Convictions can mean fines, jail, and a criminal record — which impacts jobs, travel, and reputation.

• If a minor is involved, mandatory minimum jail time applies.

• Strong defences exist: proving you believed you were in private, challenging the location as truly “public,” or arguing there was no intent to offend.

Bottom line: Public sex can lead to serious criminal charges with lasting consequences. If you’re charged, don’t explain yourself to the police — exercise both your right to silence and  your right to retain and instruct counsel without delay. In other words, say nothing to the police and upon arrest or detention, immediately ask the police to call an experienced criminal defence  lawyer or duty counsel to receive free legal advice. Keep reading for a clear breakdown of the law, penalties, and defence strategies.

 

Being charged with having sex in public can be overwhelming and confusing, especially if you’ve never dealt with the criminal justice system before. The short answer is yes – having sex in a public place is illegal in Canada under Section 173 of the Criminal Code, specifically the offence of committing an “indecent act.”

However, it’s crucial to understand that this article deals exclusively with consensual sexual activity between adults. Non-consensual sexual acts constitute sexual assault, which is a separate and far more serious criminal offence with severe penalties.

This guide will walk you through what the law actually says, the potential consequences you’re facing, possible defences that might apply to your situation, and the immediate steps you should take if you’re charged. Understanding these elements can make the difference between a conviction that follows you for life and successfully defending against these charges.

 

What the Crown must prove: A breakdown of an indecent act charge

To secure a conviction under Section 173 of the Criminal Code, the Crown prosecutor must prove specific elements beyond a reasonable doubt. Understanding what they need to establish can help you better grasp the nature of these charges and potential defence strategies.

What is an “indecent act”?

The Criminal Code doesn’t actually define what constitutes an “indecent act” – this determination is left to the courts. Canadian courts have moved away from simply asking whether something offends community sensibilities. Instead, they now apply what’s called a “harm-based test” established by the Supreme Court of Canada in R. v. Labaye (2005).

Under this test, the Crown must demonstrate that your conduct either caused harm or presented a significant risk of harm to individuals or society that’s incompatible with proper social functioning. The court doesn’t ask whether someone was personally offended, but whether the act exceeded what Canadian society would tolerate based on objective harm.

For example, a couple sharing a brief, passionate kiss in a public park would almost certainly not meet this standard. However, the same couple engaging in sexual intercourse in a way that’s deliberately provocative in front of a children’s playground would be viewed very differently. The context, location, and potential impact on others is everything.

Most indecent act charges involve sexual activity like intercourse, oral sex, or masturbation in public spaces. However, the offence can technically encompass non-sexual conduct if it meets the legal test for indecency.

What legally constitutes a “public place”?

Section 150 of the Criminal Code defines a “public place” as any location “to which the public have access as of right or by invitation, express or implied.” This definition is broader than many people realize and includes obvious locations like parks, beaches, public washrooms, and parking lots.

The definition also extends to places you might not immediately consider “public.” Common areas of apartment buildings, hotel lobbies, and even some workplace locations can qualify. Perhaps most surprisingly, private property can be considered a “public place” if your actions are clearly visible from a public area – such as intentionally having sex in front of an uncovered window facing a street.

One of the most frequent questions involves having sex in a car. Whether this constitutes a public place depends entirely on where the vehicle is located and whether the occupants can be seen by members of the public. A car parked in a busy parking lot with windows that allow visibility would likely qualify as a public place, while a vehicle in a secluded, private location might not.

The key factor isn’t whether you intended for others to see you, but whether the location provided public access or visibility.

The critical element: Proving intent to offend

Here’s where many people misunderstand the law – it’s not enough for the Crown to prove that you engaged in sexual activity in a public place. They must also prove that you did so with the specific intent to insult or offend members of the public. This mental element, known legally as mens rea, is often the cornerstone of a successful defence.

The Crown must demonstrate that you were aware your actions could be seen by others and that you intended for those actions to be offensive. Were you in what you reasonably believed was a secluded area where you had a legitimate expectation of privacy? Or were you in a busy, visible location where you knew people could see you?

Your state of mind at the time of the alleged offence becomes central to the case. If you genuinely believed you were in a private location, or if you took reasonable steps to ensure privacy, this can significantly impact the Crown’s ability to prove intent.

This element distinguishes between couples who find themselves in an embarrassing situation due to poor judgment or circumstances beyond their control, and those who deliberately engage in public sexual activity with the knowledge and intention that others will witness it.

The “presence of one or more persons” requirement

For a conviction under Section 173(1), the Crown must prove that your alleged indecent act occurred “in the presence of one or more persons.” This means at least one other person must have been present who could potentially be offended by your actions.

Importantly, this person doesn’t necessarily need to have actually seen the act – they just need to have been present in the public place where it occurred. However, surveillance cameras alone don’t satisfy this requirement. There must be an actual person present, not just electronic monitoring.

The person present also cannot be a willing participant in the sexual activity. The law is designed to protect unwilling observers from being subjected to sexual displays, so a consenting partner doesn’t count toward this requirement.

 

More than a fine: The full consequences of a conviction

Understanding the potential penalties for an indecent act conviction goes far beyond just fines or jail time. A conviction creates a permanent criminal record that can affect virtually every aspect of your future life.

Summary vs indictable proceedings: The Crown’s choice

Indecent act charges under Section 173(1) are what lawyers call “hybrid offences,” meaning the Crown prosecutor has discretion to proceed either by summary conviction (less serious) or by indictment (more serious). This choice significantly impacts the potential penalties you face.

The Crown typically considers factors like the specific circumstances of the alleged offence, whether children were present, the location’s visibility, your criminal history, and the degree of public exposure when making this decision. More egregious cases – such as those involving deliberate exhibition in highly visible areas or near schools – are more likely to be prosecuted by indictment.

This prosecutorial discretion means that two similar cases might be handled very differently depending on the Crown attorney assigned and their assessment of the circumstances.

Potential penalties: Fines and imprisonment

If the Crown proceeds by summary conviction, you face a maximum penalty of imprisonment for up to two years less a day, a fine of up to $5,000, or both. If they proceed by indictment, the maximum penalty increases to imprisonment for up to two years.

While these are the maximum penalties, actual sentences vary significantly based on the specific circumstances. First-time offenders in less serious cases might receive conditional discharges, probation, or small fines. However, cases involving aggravating factors like the presence of children, deliberate exhibition, or repeat offences can result in jail time.

 

The lasting impact of a criminal record

Perhaps the most serious long-term consequence of a conviction is the creation of a permanent criminal record. This record can significantly impact your employment opportunities, particularly for jobs requiring background checks or working with vulnerable populations like children or elderly individuals.

Professional licensing can also be affected. Many regulated professions – including healthcare, education, finance, and law – require disclosure of criminal convictions and may impose disciplinary measures or refuse licensing based on criminal records.

Travel can become complicated, particularly to the United States. American border officials have broad discretion to deny entry to individuals with criminal records, even for minor offences. This can affect both leisure travel and business opportunities.

The social stigma associated with sexual offences, even relatively minor ones like indecent acts, can also impact personal relationships and community standing.

Aggravating circumstances: Acts involving persons under 16

Section 173(2) creates a separate, more serious offence for exposing your genitals to a person under 16 years of age for a sexual purpose. This provision carries mandatory minimum sentences that courts cannot reduce, regardless of the circumstances.

If prosecuted by indictment, the mandatory minimum sentence is 90 days imprisonment. If prosecuted by summary conviction, the mandatory minimum is 30 days imprisonment. These minimums apply even for first-time offenders with no prior criminal history. However, in some  cases a first time offender may be sentenced to a longer period of jail than the mandatory minimums. 

Cases involving minors are also more likely to result in additional consequences like sex offender registration requirements and restrictions on where you can live or work.

 

Building your defence: Key strategies against an indecent act charge

While indecent act charges are serious, they’re also defendable in some circumstances. Understanding common defence strategies can help you work effectively with your legal counsel to build the strongest possible case.

Challenging the element of intent

Since the Crown must prove you intended to insult or offend others, demonstrating that you lacked this intent can be an effective defence strategy. This might involve showing that you reasonably believed you were in a private location where no one could see you.

For example, if you were in what appeared to be a secluded area of a park late at night, your lawyer might argue that you had no intention of being seen by others and therefore lacked the required intent to offend. Evidence about the time of day, lighting conditions, and your efforts to find privacy can all support this defence.

Similarly, if you were on private property that you believed was completely secluded, this can challenge the Crown’s case on intent, even if it turns out the location was visible from a public area.

Arguing the location was not legally “public”

The definition of “public place” isn’t always straightforward, and there can be room to argue that your location doesn’t meet the legal requirements. This defence strategy involves carefully examining the specific circumstances of where the alleged act occurred.

For instance, if you were on private property that wasn’t readily visible to the public, or in a location where the public didn’t actually have access, this could undermine the Crown’s case. The key is demonstrating that the location falls outside the legal definition of a public place under Section 150.

Contesting the “indecency” of the act

While this defence is more challenging, it’s sometimes possible to argue that the specific conduct doesn’t meet the legal test for indecency established in R. v. Labaye. This involves demonstrating that the act didn’t cause or risk significant harm to individuals or society.

This defence might be relevant in cases involving brief, discrete conduct that didn’t involve deliberate exhibition or create genuine risk of harm to others. However, this strategy requires careful legal analysis and is highly dependent on the specific facts of each case.

 

How indecent acts differ from related offences

Understanding the distinction between indecent acts and related criminal offences can help clarify exactly what you’re facing and why the specific charge matters for your defence strategy.

Indecent act (s. 173) vs nudity (s. 174): The difference is intent

Section 174 of the Criminal Code addresses simple nudity in public places. Unlike indecent acts, nudity charges don’t require proof of sexual activity or intent to offend – they simply require being nude in a public place “without lawful excuse.”

The key difference is that nudity charges focus on the state of being unclothed, while indecent act charges focus on conduct that’s intended to offend others. Nudity is also generally treated as a less serious summary conviction offence, while indecent acts can be prosecuted by indictment.

Interestingly, nudity charges require the consent of the Attorney General before prosecution can proceed, providing an additional layer of oversight that doesn’t exist for indecent act charges.

Indecent act (s. 173) vs indecent exhibition (s. 175): The difference is purpose

Section 175 addresses “causing a disturbance” and includes provisions about indecent exhibition. The key difference is that Section 175 focuses on conduct that disturbs public peace and order, while Section 173 focuses on conduct intended to insult or offend.

Indecent exhibition under Section 175 typically involves more public, disruptive behaviour that goes beyond private sexual activity. It’s about creating a public disturbance rather than engaging in private conduct that happens to be visible to others.

 

Frequently asked questions

What if no one saw us or complained? 

A complaint from a member of the public isn’t required for charges to be laid. If police observe the alleged conduct or receive reports from witnesses, charges can proceed regardless of whether anyone formally complained. The requirement is that someone was present who could have been offended, not that they actually were offended or reported it.

Are there legal places for public sex in Canada? 

No, there are no officially designated areas where public sexual activity is legal in Canada. While some beaches or areas might have reputations for being more tolerant, this doesn’t provide legal protection. The Criminal Code applies uniformly across the country.

Does this law apply across all provinces? 

Yes, the Criminal Code is federal law that applies uniformly across Canada. However, enforcement priorities can vary between jurisdictions, and some municipalities may have additional bylaws that create further restrictions. Provincial differences typically relate to how cases are prosecuted rather than what conduct is illegal.

 

Your immediate action plan: What to do if you are charged

The moments after being charged with an indecent act are critical. The steps you take can significantly impact the outcome of your case and protect your rights throughout the legal process.

Invoke your right to remain silent

You have the constitutional right to remain silent, and you should exercise this right immediately. Don’t try to explain the situation to police officers or provide your version of events. Anything you say to the police can be used as evidence against you, even if you believe it helps your case.

Police officers are trained to gather evidence, and well-meaning attempts to clarify misunderstandings often provide them with additional evidence to support their case. Your silence cannot be used against you in court, but your statements to the police can be.

Document every detail you can recall

As soon as possible after the incident, write down everything you remember about the circumstances. Include details about the time, location, lighting conditions, who was present, what you were doing, and your state of mind. These details can become crucial for your defence, and memories fade quickly.

Note any factors that support your belief that you were in a private location or that you lacked intent to offend others. Were you trying to be discreet? Did you believe you were alone? What steps did you take to ensure privacy?

Do not wait: Contact a criminal defence lawyer immediately

Indecent act charges are complex criminal matters that require immediate legal attention. The sooner you have legal representation, the better your lawyer can protect your rights and begin building your defence.

An experienced criminal defence lawyer can review the evidence against you, identify potential defence strategies, and guide you through the legal process. They can also communicate with police and prosecutors on your behalf, ensuring that your rights are protected at every stage.

Don’t assume that because the charges seem minor, you don’t need legal help. Even a summary conviction creates a permanent criminal record with lasting consequences for your future.

 

Conclusion

A charge of committing an indecent act under Section 173 is not a minor infraction – it’s a criminal offence with lasting consequences that can affect your liberty, employment, travel, and personal relationships. The line between a private moment and a public crime is often determined by complex legal arguments around location, intent, and community standards.

You don’t have to face this uncertainty alone. The experienced criminal defence lawyers at Kruse Law understand the nuances of these charges and the defences that can be mounted against them. We’ve successfully defended clients facing indecent act charges and understand how to challenge the Crown’s evidence on elements like intent and public place definitions.

If you’re facing these charges in London, Toronto, Windsor, Kitchener, or anywhere in Southwestern Ontario, our legal team is here to protect your rights and build the strongest possible defence. Contact our London, Toronto, Windsor or Kitchener sexual assault lawyers today for a confidential consultation. Don’t let a moment of poor judgment define your future – call us now to discuss your case and explore your legal options.