Oh My, How Disturbing! Disorderly Conduct In Canada
Indecent Act, Cause Disturbance, Trespassing at night (prowl at night)
The story we’re going to tackle today is that of the Toronto Maples Leafs’ player, Auston Matthews. He was charged with disorderly conduct in Arizona. According to a CBC report, Matthews and his group were approached by a person who believed they were intoxicated. Apparently they attempted to open a locked car door to the vehicle in which the complainant was sitting. She was security personnel. She confronted the group and Matthews allegedly left the conversation, dropped his pants, and grabbed his butt cheeks. He still had his underwear on.
So how does match up to Canadian offenses? Well, offences about disorderly conduct are contained in Sections 173 -179 of the Criminal Code. The offences are important to look at because they’re quite varied and can carry stiff sentences. They may also be subject to mandatory minimums. The offences and their sentences are:
- Indecent Acts (s.173)
- If charged as an indictable offense: Maximum imprisonment: 2 years;
- If charged as a summary conviction: Maximum imprisonment up to 6 months.
- Nudity (s.174)
- This is a special offense. It only applies to people who are nude in a public place (or exposed to public view). Nude means ‘clad so as to offend against public decency or order’. Most importantly of all, a person cannot be prosecuted under this section without the consent of the Attorney General, by virtue of s.174(3).
- Causing disturbance, indecent exhibition, loitering, etc. (s.175)
- Punishable on summary conviction
- Obstructing or violence to or arrest of an officiating clergyman (s.176)
- Maximum imprisonment up to 2 years.
- Note, there is also s.176(2), which is disturbing religious worship or certain meetings. A person guilty of an s.176(2) offense is punishable on summary conviction
- Trespassing at night (s.177)
- Punishable on summary conviction
- Vagrancy (s.179)
- Punishable on summary conviction
The offense against clergymen contained in s.176 is a strange one. We’ve talked about it before in our article on Assault in Canada.
As we can see, there’s quite a number of disorderly conduct offenses in the Criminal Code. Not all of them are as severe as each other. The offence of committing and Indecent Act is obviously far more serious than the charge of causing a disturbance. In cases where an Indecent Act involves exposure to children under the age of 14, Sex Registry issues arise; SOIRA and the Ontario Sex Offender Registry Act (Christopher”s Law) apply.
Had Matthews been in Canada, he may have been charged with committing an indecent act. The Criminal Code section 173.(1) provides that everyone who willfully 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 is guilty of an offense. Alternatively, he could have been charged under s.175, for causing a disturbance. Causing a disturbance includes s.175(1)(b) “openly expos[ing] or exhibit[ing] an indecent exhibition in a public place”. It also includes s.175(1)(a), causing a disturbance by being drunk in a public place. If the allegations against him are true, they might satisfy this section as well.
We recently defended a client who was allegedly observed masturbating with genitals exposed on a park bench. When a group of teenagers approached he allegedly pulled up his shorts but continued to touch his genital area. When the teenagers had passed he allegedly pulled his shorts down again and exposed his genital area. He was charged with committing an Indecent Act. The ages of the teenagers, although not spelled out, appeared to be over 14 years. The criminal code allows the Crown to decide whether to proceed by indictment or by way of summary conviction. We actually negotiated a resolution to a charge under s. 175 (1) (b) “openly exhibits an indecent exhibition” and our client received a conditional discharge even though the Crown was seeking a conviction discharge on sentence. The s. 175(1)(b) charge is much less serious than a charge under s. 173 for an Indent Act. The charge under s. 175 only permits the Crown to proceed by way of summary conviction and there is no risk of registration on a Sex Registry.
To get a better grasp, it may be worth looking at a few locals who have been charged under these sections. For example, a Kingston councilor was charged with causing a disturbance, although charged were later dropped. He allegedly yelled, screamed, and slammed a bus’ front window. The Councillor allegedly stopped his bicycle in front of the bus to restrict its movement, and also placed a child on the pavement in front of the bus. The councilor alleged he protested peacefully because his child was denied service. Of note, the Councillor’s charges were only dropped due to an agreement reached between his defense lawyers and the Crown. This included an accountability program and a letter of apology. This result shows the value of experienced, knowledgeable legal advice, with expertise in the particular charges you’re facing.
Another good example is the case of a 30-year-old man from Cornwall who was recently charged with causing a disturbance, as well as domestic assault, and breach of undertaking. Sometimes, as this case shows, causing a disturbance can be used as an offense in addition to something else like domestic assault. We’ve talked before about domestic assault in our article HERE
Similarly, a 34-year old Edmonton woman was charged with causing a disturbance and uttering threats to cause death or bodily harm in Peterborough. You can find out more about the offense of uttering threats in our piece about assault and threats, which you can find HERE
An Edmonton woman received a suspended sentence for, among other things, causing a disturbance. She was caught shouting racial slurs at another man. We’ve talked a bit about racism in Canada and the laws that apply to it. You can find that article HERE
As we’ve seen, Canada has a lot of different offenses for disorderly conduct. Some have minimum sentences, and maximums of 10+ years in jail. Others require the attorney general’s consent to prosecute. Causing a disturbance can often be added on to other offenses or stand on its own.
In some cases, withdrawal of charges may be possible. But, it’s key to have knowledgeable and experienced counsel by your side to effectively negotiate a fair resolution with the Crown.
Austin Matthews could have faced possible Criminal Code charges in Canada. However, there is also a charge under the Liquor Licence Act that might also fit the facts [s. 31(4)] – unlawful possession or consumption of alcohol – basically being drunk in public. $65.00 fine. This is not a criminal charge and is a provincial offense like a speeding ticket.
Being aware of this alternative resolution to the criminal charge of cause disturbance is crucial in negotiations with the Crown regarding resolution.