Section 162.1 of the Criminal Code of Canada covers the Publishing of Intimate Images Without Consent charge. 

Publication of intimate images, distribution of intimate images, and transmission of intimate images without the consent of the individual depicted is considered by the Courts to be a very serious violation of privacy.  It often causes irreparable emotional trauma.  As a result, if convicted, the Court will often impose a jail sentence.

We have successfully defended clients facing the charge of the publication of intimate images many times.  The Crown must establish that the image qualifies and that it was sent by the accused.  In addition, we have, in cases where it is clear that the Crown can prove the charge, negotiated a plea to an alternate reduced charge for example – mischief.  In some cases, we have been able to negotiate the complete withdrawal of the charge in exchange for a peace bond.

When defending this charge we will first review the disclosure to determine whether you can win.  If we are of the view that the Crown’s case is weak we will attempt to negotiate a withdrawal of the charge. If the Crown refuses to withdraw the charge we will go to trial.  On the other hand, if the Crown’s case looks to be strong, we will certainly approach the case as if we are going to trial but begin negotiations with the Crown to strike the right deal.  We can arrange counseling programs for our clients which will enhance our ability to negotiate the right result.   Together we will plan out each step of the way to obtain the best result.

Why hire Daley, Byers?

1. Experience: The senior partners each have over 35 years of experience practicing Criminal law.  The has seen most everything.  In addition to their experience defending this charge, they will also have extensive knowledge of, and experience with the Court House and the people who work in the Judicial system; the Crowns, the Judges, and the Court staff.  This experience is invaluable for your defence.

2. Knowledge: The team at Daley, Byers has the required knowledge regarding the Law related to the charge or publication of an intimate image and will use it to provide their best criminal defence for you.

3. Payment Plans:   Nobody budgets for the cost of a lawyer.  We understand that.  As a result we will attempt to design a payment plan to accommodate your particular financial position.   There are no hidden costs and you will know upfront what your legal fees will be.

4. Communication:  Good communication is crucial for any successful solicitor/client relationship.  Our clients are provided with our cellular numbers and our emails.  We are available 24/7 for emergency calls. We will also keep you informed as your case progresses and together will develop a strategy for you defence.  

5. Free Consultation:    We provide your initial consultation at no cost.

Call Us At 1-855-529-3501 for that free consultation.  We can help.                           

Overview of the Law

On March 9, 2015  an amendment to the Criminal Code made it an offence to distribute, publish, transmit, or share intimate images without the consent of the person in the image. The Criminal Code needed modernization to protect individual privacy that a person has in his or her nudity from this type of conduct.

These provisions make it an offence to knowingly publish, distribute, transmit, sell, make available, or advertise an image of a person knowing that the person depicted in the image did not give their consent to the conduct – i.e. the publication, distribution, transmission etc. Even if a person did not subjectively know of the absence of consent, being reckless as to whether or not the person depicted in the image consented to the publication or transmission etc. of the image also constitutes an offence.

The provisions only capture the distribution, transmission etc. of “intimate images” which the act defines as an image in which the person is nude, is exposing his or her genital organs or anal region or her breasts or engaged in explicit sexual activity, AND at the time of the recording there were circumstances that gave rise to a reasonable expectation of privacy.

Essentially the law criminalizes the re-distribution of privately taken or delivered intimate images without the consent of the person depicted in the image. One of the harms the legislation is designed to target is the alleged proliferation of a phenomenon known colloquially as “revenge porn”.

 The examples cited by proponents of the legislation include ex-boyfriends posting images of their past partners to various public websites readily accessible to the public. However, the scope of the law encompasses far more than this particular circumstance and is designed to protect all potential situations where individual privacy rights are violated with the publication of an intimate image without consent.

The offense when prosecuted by indictment carries a maximum jail sentence of 5 years. There is no prescribed minimum penalty whether prosecuted summarily or by indictment.  However, it is not uncommon for the Court to impose a period of jail even when the accused has no prior criminal record.  The charge of the publication of intimate images without consent is taken very seriously by the Judiciary.  

Sex Registry Consequences

The Sex Offender Information Registration Act has not been amended to include this new offence as a “designated offence” under the Sex Offender Registry regime.

Prohibition of Future Use of the Internet
If convicted, the Court has the power to prohibit the offender from use of the internet as the Court deems appropriate. There are no constrictions of the scope of the Court’s discretion and a lifetime ban is a possibility.

Removal of intimate images
Judges have the authority to order images to be removed from the Internet when they were posted without the consent of the person or persons in the images.

Forfeiture of Equipment
Judges have the authority to order the forfeiture of the computer, cell phone, or other device used in the offense.

Costs to Recovery and/or Removal of Intimate Images
Judges have the power to order reimbursement to victims for costs incurred in removing/recovering the intimate image from the internet or elsewhere.

Future Distribution
Judges have the power to make an order preventing someone from distributing intimate images in the future.

Existing laws that address cyberbullying
The new law makes clear that all existing offences that apply to bullying situations also apply to cyberbullying, where appropriate. The following are the existing Criminal Code offences that cover bullying and cyberbullying activities:

• Criminal harassment (section 264)
• Uttering threats (section 264.1)
• Intimidation (subsection 423(1))
• Mischief in relation to data (subsection 430(1.1))
• Unauthorized use of the computer (section 342.1)
• Identity fraud (section 403)
• Extortion (section 346)
• False messages, indecent or harassing telephone calls (section 372)
• Counseling suicide (section 241)
• Incitement of hatred (section 319)
• Defamatory libel (sections 298-301)

The lawyers at Daley, Byers have the experience and knowledge needed to assist anyone facing a charge of the publication of intimate images.  For a free consultation give us a call at 855-529-3501.  We can help.