R. v. Bennett, R. v. Underdahl and R. v. Sinclair illustrate that during the relevant period of time the legal procedures used by judges to ascertain what constitutes an indecent act have undergone a series of methodical changes. Upon analyzing each of the mentioned cases, it is evident that over time, courts have increasingly become more moderate in their rulings and hence judges have begun to use a more specific and precise criteria when deciding cases involving indecency.

The courts 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 visible throughout the progression of these cases – some 20 plus years – is the trend towards a more precise, rule-driven approach fueled 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 moderate 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 enough to constitute the offence of an indecent act but rather "that the phrase "indecent act" connotes something more active, with greater moral 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 dismissing the appeal, Hutcheon, J. ruled that his reasoning in determining whether the accused had committed an indecent act was not different from the ratio in Beaupre in that he had adhered to the ‘indecent act test'.

Furthermore, Hutcheon, J. added his own stipulation to the indecent act test, asserting: "Depending upon the manner… the circumstances of place, time and setting… standing naked is capable of constituting an indecent 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 even 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 case swam to a floating 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 accused was guilty of committing an indecent act 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 act 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 open-minded thinking 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 reflect his liberal stance on the issue of indecency.

In Sinclair, the accused was charged with four counts of indecent acts as she was discovered on four occasions 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 case 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.