Section 162.1 of the Criminal Code creates the offence of publishing, distributing, transmitting, selling or make available or advertise an intimate image of a person without that person’s consent.
The definition of intimate image any visual recording made by any means including a photographic, film or video recording;
- In which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
- Where at the time of the recording there were circumstances that gave rise to a reasonable expectation of privacy;
- Where that reasonable expectation of privacy exists at the time of the offence.
Distribution of intimate images is often referred to as revenge porn. It most often occurs where a couple has originally created a consensual recording, or one person may have sent a provocative picture to a partner on the presumption that it will remain between the 2 of them. Then of course, they break up and the intimate image(s) are then displayed on social media of some sort.
According to a recent article in the LAW TIMES quoting form research published in the “Canadian Journal of Law and Society” on May 13 Judges are imposing harsher sentences as a means of sending a message to the general public (general deterrence) that this activity will not be tolerated. Ie. “Think before you text”.
The report states that Judges are viewing the harm caused by the distribution of intimate images as extremely impactful.
Prior to the easy access of social media, taping photos on bathroom stalls or distributing video tapes in mailboxes were methods used to distribute intimate images. However, with the arrival of social media and the scope of the publication and distribution now available, the courts have stated that the digital/online technology has made the act of the distribution of intimate images more impactful.
With respect to the appropriate sentence, the factual context is important.
Is the distribution of an intimate image a youthful act of emotional upset due to a break up?
Is the distribution of an intimate image a continuation of a long abusive domestic relationship?
Where and how was the intimate image distributed? For example, in some instances the pictures/videos are sent to family members or close friends of the individual depicted in order to cause extreme embarrassment. In some case the intimate images are shown to friends as a form of showing off.
In some cases, the intimate images are displayed on porn sites for the world to see.
Also, the perspective of the complainant will be considered by the Crown and the Court with respect to resolution and disposition.
Regardless, it is clear that the Courts are treating the distribution of intimate images as an extreme violation of privacy.
The Criminal Code sets out the range of sentence at s. 162.1(1).
If the Crown proceeds by way of indictment – jail up to 5 years
If the Crown proceeds by way of summary conviction – up to a $5000.00 fine, up to 6 months in jail or a combination of both.
There are a number of defences to the charge of distribution of intimate images.
Another closely related charge to the distribution of intimate images is the offence of Voyeurism as it includes the surreptitious creation of recordings of a person who is in circumstances that give rise to a reasonable expectation of privacy. We will discuss this charge of Voyeurism in our next article.