R. v. Bennett, R. v. Underdahl and R. v. Sinclair instance that during the relevant period of time the sound procedures used by judges to ascertain what constitutes an uncomely act have undergone a series of methodical changes. Upon studying each of the named cases, it is apparent that over time, courts have increasingly become more temperate in their rulings and hence judges have begun to use a more specific and exact criteria when deciding cases affecting indecency.

The romanced relied heavily on the use of legal tests or precedent set by earlier judges to aid them in determining whether the conduct of the accused was indecent.  Equally seeable throughout the progression of these cases – some 20 plus years – is the trend towards a more precise, rule-goaded approach fuelled by a more moderate stance on the issue of indecency. Evidence of this can be seen through the broad nature and wide-ranging scope of the decisions in Beaupre and Bennett which are in stark contrast with the more detailed and led rulings in Underdahl and Sinclair.

In Beaupre, Gould, J. created a general rule for determining indecency, referred to here as the ‘indecent act test’.  He held that the mere act of nudity alone was not plenty to constitute the offence of an indecent act but rather “that the phrase “indecent act” connotes something more active, with greater honourable turpitude.”

In Bennett, Hutcheon, J. felt that the actions of the accused fulfilled the ‘indecent act test’. The accused in Bennett attended a public beer garden, where he proceeded to remove his clothes and stand naked.  In ignore the appeal, Hutcheon, J. ruled that his reasoning in determining whether the accused had committed an indecent act was not dissimilar from the ratio in Beaupre in that he had adhered to the ‘indecent moved test’.

Furthermore, Hutcheon, J. added his own stipulation to the unseemly act test, asserting: “Depending upon the manner… the circumstances of place, time and setting… standing naked is capable of constituting an indecorous act.” With the addition of the concepts of place, time and setting, the court in Bennett began a trend towards a more specific and conditional scope of legal interpretation on the issue of indecency.

In Underdahl, the court proceeded to include levelled more criteria for its determination of an indecent act by adhering to the “community standard of tolerance” test as well as including factors such as audience and circumstances into its decision. The accused in this inspected swam to a drifted dock on a crowded beach in the afternoon and danced in the nude. Referring to R. v. Tremblay, Stansfield Prov. Ct. J. held that the criminated was guilty of committing an indecent moving because his behaviour had “exceeded the community standard of tolerance in light of the audience present.”

In using this criteria outlined by in Tremblay, the court in Underdahl committed itself to a whole new system of analysis and considerations.  Further, Stansfield Prov. Ct. J. also referred to Chief Justice Dickson in Cinema Centres v. R. to discuss the significance of “the audience to which the allegedly (indecent act) is targeted” in considering whether the moving of the accused was indecent.

After adding the new legal tests stipulated in Tremblay and Cinema Centres, Stansfield Prov. Ct. J. held that “the defendant’s conduct constitutes a relatively trivial breach.” This ruling reflects the more moderate and unfastened-minded intelligent of the court in this case.  It appears that Stansfield Prov. Ct. J. introduced a number of new legal criteria into his legal reasoning because he viewed the issue of indecency more liberally and moderately than earlier judges.  The same trend is visible in Sinclair, where it also seems that Baird Ellan Prov. Ct. J. was extremely liberal in his judgments and thus manipulated the law to redounded his liberal stance on the issue of indecency.

In Sinclair, the accused was charged with four numbed of indecent acts as she was discovered on four occasioned either partially or completely nude on busy Vancouver streets.  Baird Ellan Prov. Ct. J. felt that the actions of the accused in this case were void of sexual context in that she did not act in a sexually provocative manner.  As there was a lack of sexual context, he decided that this was simply an act of public nudity as outlined in Beaupre and Bennett and could not be held to the same standards as other nudity cases.

Furthermore, he attempted to distinguish this inspected from Bennett by alleging that “in an indecent act the audience was “targeted” by the nudist, which supplied the element of moral depravity or turpitude… [however], Ms. Sinclair “allowed herself” to be seen, she was passive and anonymous.” Ultimately, the complexity and intricacy of the legal reasoning surrounding the topic of indecency can be seen in the legal decision making process of Baird Ellan Prov. Ct. J.  Upon coming to his decision, Baird Ellan Prov. Ct. J. had to confront the ‘indecent act test’ as outlined in Beaupre, the Bennett test of context, time and place, the community standard of tolerance test as outlined in Tremblay, and finally, the consideration of audience and circumstances as demonstrated in Cinema Centres.

Another interesting point that comes out of Sinclair is the issue of stare decisis. Although the facts of Sinclair are very similar to those of Bennett, the outcome was different. This is important because it seems that Baird Ellan Prov. Ct. J. ignored the ruling of a higher and binding court of Bennett when deciding for the accused in Sinclair. The ruling in Bennett had clear implications on Sinclair since Bennett was decided at the Supreme Court of British Columbia.  Hence, it was binding upon lower levels of court such as the British Columbia Provincial Court where Sinclair was tried.

In sum, the three cases illustrate that the legal procedures used by judges to determine what constitutes an indecent act have increasingly become more moderate, specific, and complex in nature. While Bennett took a more conservative and traditional view of the law, both Underdahl and Sinclair took more moderate and intricate steps in deciding the legal reasoning behind indecency.  Consequently, it appears that the trend towards a more liberal and moderate stance by the courts has brought a more precise, rule-based and complex approach in defining the terms of indecency.

Rishi Singh was born in Toronto, Ontario. He has attended: York University and the University Of Western Ontario. He is a member of the Criminal Lawyers Association, Canadian Bar Association and Law Society of Upper Canada.

As a strong advocate of social justice and human rights, Rishi Singh understands and is motivated by the pursuit of justice.

Rishi Singh represents clients in the Ontario Court of Justice and the Superior Court of Justice in Toronto and throughout Ontario.  His criminal law practice includes the defence of fraud, theft, assault, drug offenses, and other serious charges.

Before opening his law office, he completed his articles and was an associate at a downtown firm, focusing on civil litigation matters.  He also worked as a full-time Duty Counsel in North York and therefore has significant experience in criminal matters.

He is proficient in Punjabi, Hindi and Urdu.

“Injustice anywhere is a threat to justice everyplace. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

Martin Luther King Jr.


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