Nudity in Canada – What’s Legal, What’s Acceptable

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Q: Where is it OK to be clothes-free in Canada?

A:

  • Nudity is illegal in places where other people would reasonably expect you to be clothed. (This includes all populated public spaces not explicitly marked as clothing-optional, as well as private spaces that are easily visible from the street.)
  • If you make a point of offending people or if there’s a deviant sexual purpose involved, you will be arrested.
  • Nudity is usually OK in Canada in places where nobody’s likely to be caught by surprise or offended by it.
  • If you are respectful, polite and don’t go out of your way to cause trouble, simply being nude – in a place where it makes sense to be nude, and where you won’t surprise or startle anyone – is unlikely to cause any problems.

Examples

Again, we’re not lawyers (or cops) and this is not legal advice. It’s just our best understanding of what is and is not OK in Canada in 2017.

  • Nude at an isolated remote beach or in the back-country: Generally OK.
  • Nude on a quiet public beach, you’re not causing trouble: Technically prohibited, but usually quite acceptable (more so if you’re part of a group, less so if you’re alone).
  • Nude on a quiet public beach, you’re being loud, profane or disruptive: Not OK – a public nudity charge will be added to indecency, noise violation, alcohol, etc. charges.
  • Nude on a busy public beach or one frequented by children: Not OK.
  • Nude at the World Naked Bike Ride or a Pride parade: Clearly OK in practice, despite being technically illegal.
  • Nude around the house or in the back yard: OK.
  • Nude in the living room at night, with the lights on and street-facing curtains open: Not OK – this is exhibitionism.
  • Nude on private property, someone would need to put in a bit of effort (binoculars or coming closer) to see you: OK.
  • Nude in the front yard, where lots of people can easily see you from the street: Not OK.

The bottom line? Use good judgment.

If you stand a good chance of catching someone by surprise, someone who has a reasonable expectation that they won’t see nudity in that situation, then keep your shorts on.

If you have good reason to think that no one will be offended, then – for all practical purposes, if not always on paper – nudity’s usually not a problem. Stick to areas that aren’t too busy and, if in doubt, simply keep a towel or a pair of shorts around to cover up if necessary.

Legal Theory

(Disclaimer: We’re not lawyers. This is the best consensus understanding of the law that we’ve been able to piece together from available sources. If you’re in a situation where you need a real legal opinion, ask a lawyer.)

The law governing nudity in Canada is in sections 173 and 174 of the Criminal Code. They read:

Indecent acts
173. (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,
(a) is guilty of an indictable offence and is liable to imprisonment for a term 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 than six months.
Exposure
(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 an indictable 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.
Nudity
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.
Nude
(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 Attorney General
(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

Let’s look at these in turn.

Section 173.(1) applies to:

  • indecent acts,
  • in public places if anyone’s around,
  • and in private places if the intent is to insult or offend.

Indecency is defined, in Canada, in an ambiguous and somewhat arbitrary fashion. The test is:

Indecency is not defined in the Criminal Code. It is to be measured on an objective, national, community standard of tolerance. The standard of tolerance is not defined by what Canadians think it is right for them to see, rather it is what they would not abide other Canadians viewing. [Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494]

As long as what you’re doing is unlikely to be construed as “indecent” under this test, s.173.(1) doesn’t apply. In the few cases where police have attempted to use s.173.(1) to go after simple nudity when no real indecency was involved, Canadian judges have generally dismissed the charges.

Section 173.(2) only applies to sexual situations involving minors, and is therefore irrelevant to plain ordinary social nudity.

Section 174.(1) is self explanatory: Don’t be naked in any place where someone who expects not to see nudity is likely to see you.

Section 174.(2) mixes things up a lot – nude (legal definition) is not the same as nude (dictionary definition). There exist garments that expose body parts in a way that would “offend against public decency”, and there are also a lot of places where simple nudity would not offend against public decency. It’s not a clear line, and it depends very much on where and under what conditions the offence occurs.

This brings us to s.174(3). There is one person (and it’s usually an old white guy) who is the only person in Canada authorized to begin a prosecution on a nudity charge. Traditionally, the A-G likes to keep a low profile and avoid controversy. S.174 cases only get prosecuted when the Crown’s case is rock-solid.

All told, there are quite a few ways you can get nailed for nudity by Canadian police. But, in general, they’re only invoked when someone goes out of their way to show off, cause trouble, or offend people. A bit of common sense is usually all you need to determine whether you can go au naturel without trouble.

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Lessons from the Ghomeshi sexual assault trial

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Yesterday, after two years of scandal and legal proceedings, Jian Ghomeshi was acquitted on four counts of sexual assault and one count of overcoming resistance.

There are some important lessons in the judge’s ruling (you can read the full thing here). We’ve summarized the key ones here, for those who may someday have need of them.

Get your story straight

As soon as you can after an assault, write down what happened.  When you go to the police, bring your notes, and get your story complete and accurate in the first police report.

In a case with no physical or recorded evidence, the only thing the court has to go on is the testimony of the people who were there. A complainant who is seen to be reliable and consistent will usually prevail.

All three complainants in the Ghomeshi trial omitted critical elements from their recollections and made changes to their stories as the trial progressed. In several cases, they made sworn statements that were provably false (e.g. one talked about her impressions of the car Ghomeshi drove on their first date; it was later proven that Ghomeshi didn’t own that car until seven months later). This hurt their credibility in the judge’s eyes, to the point where Ghomeshi didn’t even have to testify in his own defence; the case against him fell apart from the contradictions in the complainants’ testimony.

To quote Justice William B. Horkins:

When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.

Don’t try to go it alone

Once an assault has occurred, it’s time to get the police involved. There is no practical way to navigate the criminal justice system alone. The sworn statement you hash out with the first police officers who interview you after the assault is the most important piece of the Crown prosecutor’s puzzle; it needs to be complete and correct.

It’s undeniably true that there are some police officers who are less than helpful in sexual assault matters. This is unfortunate, but you won’t find the good ones until you try.

You want police and Crown prosecutors here, not reporters (no offence to our journalist friends intended). If you are a victim, the system expects you to follow the procedures set out for victims. Stirring up a media circus is a sure way to have your motives and credibility called into question.

Act quickly

The alleged assaults in the Ghomeshi case occurred more than a decade before they were brought to light and charges laid. Waiting many years to bring charges isn’t necessarily a problem. However, memories often become less accurate with time, and questions will be asked about the delay and about any inconsistencies that have crept in.

In the judge’s words:

The law is clear: there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events.

The trouble is that it’s much harder to determine a clear, consistent and factual picture of events at a much-delayed date:

An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next.

Break off the relationship, if possible

Several of the complainants in the Ghomeshi case continued to express romantic and sexual interest in him after the alleged assault, emailing him and sending photos, but hid this fact from the court. In the judge’s words:

The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd. The factual inconsistencies in her evidence cause me to approach her evidence with great skepticism.

If an assault victim genuinely can’t break off the relationship, the court won’t hold that against her. Indeed:

Courts must guard against applying false stereotypes concerning the expected conduct of complainants.

However, if an alleged victim had the opportunity to sever ties and no reason not to do so, but kept in touch with her assailant anyway, the judge might consider that fact to be contradictory to her testimony – particularly if she claims to be fearful of the man, or presents a story of having broken things off when that was not in fact the case.

Don’t fret over irrelevancies

Sexual assault cases, at least in Canada, hinge on the facts of the incident. You think you have a “slutty” reputation? You still have just as much right to justice as someone with a “prudish” reputation.

Don’t be distracted by nonsense talk like “she was asking for it with that short skirt” or “well, what did you expect sending him sexy selfies,” which you will almost certainly hear at some point. Judges know full well that that has no bearing on the facts of the incident. Judges are also very aware that their assessment of your credibility as a witness must be based only on what is said and presented in the courtroom, not on hearsay or third-hand gossip.

Keep your cool

A court expects to hear “the truth, the whole truth, and nothing but the truth”. Don’t speculate, don’t make things up to fill gaps in your memory. When the defence lawyer is questioning you, trying to find flaws in your story, keep your cool and stick to the facts.

Sexual assault cases are all about credibility. There are usually only two people involved, there’s rarely any physical or recorded evidence, and it boils down to “he said, she said”. Your best shot at seeing justice in a sexual assault case is to keep your cool and tell the police and the judge a consistent, true story of what happened.

Topfreedom in Canada – What’s Legal, What’s Acceptable

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Q: Can someone who identifies as female go topfree in Canada?

A: Yes. It is legal, in Canada, for women to be topfree in any situation where it is normally acceptable for men to be topfree. In our experience, the probability of anyone having a problem with it is between 0 and 2%. (If you are ever hassled over this, get in touch with TERA. They’re very pleasant, and they don’t take bull from anyone.)

Legal theory

(Disclaimer: We’re not lawyers. This is the best consensus understanding of the law that we’ve been able to piece together from available sources. If you’re in a situation where you need a real legal opinion, ask a lawyer.)

The court case (R vs. Jacob) that set the Ontario precedent for topfreedom was won on appeal, on the grounds that the officer and trial judge had erred in assessing the definition of “indecent” – there was, in fact, no indecency in simply being topfree. The case that set the BC precedent (Maple Ridge vs. Meyer) was won on the grounds that nobody could prove any evidence of harm, and that the by-law regulating women’s attire was beyond the powers of the local government that had attempted to enact it.

No cases involving topfreedom have ever made it to a Canadian federal court. If it did, the Charter of Rights and Freedoms sec. 15(1) and sec. 28, which explicitly guarantee male-female equality in all legal matters, would undoubtedly be invoked. Indeed, Charter rights were invoked by both Jacob annd Meyer, although the judges in both cases declined to rule on those grounds.

A Criminal Code s.174 case (“nude and exposed to public view”) can only be brought with the Attorney-General’s support. “Topfree” and “nude” are not synonymous, and any such prosecution would have virtually no chance of success.

Crim. Code s.173 (“indecent act”) can still be invoked if there is real, undeniable indecency involved.

After the Ontario crown lost R. v. Jacob in the Ont. Court of Appeal, the province declined to appeal further – not stating their exact reasons, naturally. But it’s widely understood that it’s because Jacob had invoked the Charter in her arguments, the Court of Appeal had declined to rule on those grounds, and everyone knew that higher courts would have to rule based on the strict and unambiguous guarantee of legal equality in the Constitution.

Examples

It’s often easier to illustrate by example, so here’s how we would understand the law (and, on a more practical level, the cultural norms) to apply in a few common situations.

  • Topfree on a remote beach: Legal and acceptable.
  • Breastfeeding: Legal and acceptable.
  • Topfree in a private yard, apartment hallway, etc.: Legal and acceptable.
  • Topfree on a busy urban beach or park: Legal and usually acceptable, but often safer as part of a group than alone.
  • Topfree at a charity car wash: Legal; may or may not be acceptable depending on local culture.
  • Topfree at a public pool or on a beach with a lot of children: Legal, but there’s a small chance of another patron picking a fight with you over it.
  • Protesting topfree outside City Hall: Legal and (depending on city’s culture) probably acceptable, as long as the protest is peaceful.
  • Protesting topfree outside a conservative church: Probably illegal, definitely not acceptable – “intent to offend”, may be charged under Crim. Code s.173.
  • Flashing cars to advertise prostitution: Definitely illegal and not acceptable – clearly indecent, commercial purpose, will be charged under s.173.

Our experience has been that a woman on her own may, on occasion, be hassled for being topfree. However, an all-female or mixed-gender group of two or more is almost always left alone. People who might want to cause trouble tend to think better of it if they’ll be outnumbered.

While you should always assess the particular situation at hand, simply being topfree and female, in situations where being topfree and male is acceptable, is pretty clearly A-OK in Canada.