(3) No proceedings shall be commenced under this section without the consent of the Attorney General.
While Section 174 of Canada’s Criminal Code outright forbids nudity in public places or on private property that is exposed to public view “without a lawful excuse”, criminal offences under section 174 of the criminal code are inconsistently prosecuted and with varying results.
More serious criminal offences proceed by indictment, where as less serious criminal offences proceed by summary.
Everyone who is convicted of committing the criminal offence of nudity is guilty of a summary conviction offence as it is considered a less serous crime.
Nudity punishable by a maximum of six months in jail, a $5,000 fine, or both.
Section 174 defines “nudity” as being “so clad as to offend against public decency or order,”. This does not necessarily mean the offender was completely naked.
Section 174 does not explicitly define indecency. It is determined according to the presiding judge's discretion.
Section 173 of the code pertains to indecent acts but does not define what it means to clad so as to offend public decency or order.
Section 173 does define when a person “for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years” as an indecent act.
“Lawful excuse” can be argued as defence against criminal charges of nudity. Criminal cases of nudity have gone as high as the Supreme Court of Canada, where the legal definitions of “nudity” and “lawful excuse” were argued.
Historically Canadian courts are lenient on nudity charges, excluding cases where the nudity is sexual and/or directed at someone in a harassing manner.
In British Columbia and Ontario it is legal for woman to expose their breasts.
In 1991 in Ontario a woman, Jacobs, was arrested and charged with nudity for being topless. She took her case all the way to the Ontario Court of Appeal and won the right in 1996 for women to bare their breasts publicly.
In its decision, the court noted that her act was not done for sexual gratification and overall did no harm to the community.
Similarly In 1971 in British Columbia after Linda Meyer was charged with nudity at a public pool, the Supreme Court case found that “nude sunbathing is not of sufficient moral turpitude to support a charge for doing an indecent act.”
The court ruled she had the right to be topless, as long as it "did not offend criminal laws of nudity."
In 1978 in Saskatchewan nudity convictions were successfully appealed. Three men had been facing criminal charges after they were seen swimming naked at a secluded lake.
The court found it would not be a criminal offence to swim nude in an isolated location even if the swimmer “misjudged the loneliness of the place.”
Section 174 is one of the few offences listed in the Criminal Code that requires the attorney general’s consent to lay a charge.
This conveys the uncertainty about what exactly constitutes illegal nudity.
The government’s Public Prosecution Service states that the attorney general’s consent is needed to avoid the specific harm that could result from prosecuting an innocent person; and to avoid the general harm resulting from prosecuting a case that isn’t in the public interest.
If you are facing criminal charges under section 174 of the Criminal Code or any other criminal charges such as sexual assault talk to a lawyer who has won hundreds of successful cases.
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