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Bob rides up to the front of a bar where there is a heater lamp on his moped to quickly check some things on his phone on a night out in soho, where a couple of young women happen to be standing. One of them blurts out to him,

do you like anal sex?

To which Bob replies

“Well, I suppose it depends on the arrangement.”

The young woman responds by turning to face away from Bob, bending over, lifting up her skirt, spreading her butt with thong underwear barely covering her anus and genitals, and saying something like “how about like that?”

Has this young woman (Alice) committed any offences?

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Indecent act in a public place

The elements of commiting an indecent act in a public place (Criminal Code, s. 173) are:

  • the accused performed an indecent act;
  • the accused did so wilfully; and
  • the act took place in a public place in the presence of one or more people.

"Public place" is defined to include "any place to which the public have access as of right or by invitation, express or implied."

An indecent act need not have a sexual context. The question is whether the act exceeds the "community standard of tolerance." The test is what the "Canadian community would tolerate ... in the circumstances." This is question for a jury to answer.

Application to the hypothetical

The act took place in public, in the presence of one or more people.

It seems clear that the accused did the act wilfully.

On the question of whether the act is one that "Canadian community would tolerate in the circumstances," this is a question for a jury (as are the other elements), and on the facts of the hypothetical, there is evidence on which a properly instructed jury, acting judicially, could convict.

Note that mooning someone has been found to be an indecent act in a public place. See e.g. R v. Bidgood, 2012 ONSC 1257, for an example conviction upheld on appeal.

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    @TylerDurden And the answer is "it could well be an offence, depending on the view of the jury".
    – TripeHound
    Dec 23, 2023 at 7:10

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