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How to Defend Allegations of Posting an Intimate Image Without Consent

Section 162.1 of the Criminal Code sets out several prohibitions when it comes to intimate images. These actions include sharing and posting via social networking, email, physical delivery, and other means by publishing, distributing, selling, or making available through other means or advertising an intimate image of another person knowing the person in the image did not give consent.

It is important to know and understand that under section 162.1 this offence presumes the person in the images consented to the accused person taking the image. Under section 162 this offence prohibits voyeurism. Section 162 sets out the following:

Everyone commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

It is also an offence to distribute or publish this type of image. Section 162(4) prohibits a person from the following:  to print, copy, publish, distribute, circulate, sell, advertise or make the recording available if the person knew that the recording was obtained by an act of voyeurism. Furthermore, having the recording in possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available is also a crime. In other words, a person who receives voyeuristic images or videos and forwards them to other people also commits a criminal offence. Section 162(4) is considered the most serious voyeurism offence because it involves distributing images or videos that were obtained by voyeurism.

What Does Intimate Image Mean?

The term “intimate images” is intended to refer to images that relate to the person’s core privacy interest. These images often depict nudity, partial nudity or explicit sexual activity that is captured on film or video.

An “intimate image” is defined as a visual recording of a person made by any means, including a photographic, film or video recording, in which the person engaged in any of the following situations:

  1. the person is nude;
  2. the person is exposing their genital organs, anal region or breasts;
  3. the person is engaged in explicit sexual activity.

What Happens if the Person in the Image is Under the Age of 18?

Section 163.1 of the Criminal Code will be engaged, and the image will be considered child pornography if the image depicts the person engaged in sexual activity or the main purpose of the image depicts the person’s sexual anatomy or anal region of their body.

What if the Person Depicted in the Image Was Recorded While Exposing Themselves in Public?

At the time of the recording, the person being recorded must be in circumstances that gave rise to a reasonable expectation of privacy before the person charged with publishing the image can be convicted of the crime.

What Defences are Available for Transmitting an Intimate Image Without Consent?

These offences typically involve production orders and search warrants. A typical defence may be arguing that the evidence seized is inadmissible due to a violation of your Charter rights. Another common defence is challenging the prosecutor because of a missed essential element. Another possible defence is arguing that the conduct that forms the subject matter of the charge serves the public good and does not extend beyond what serves the public good. The motives of an accused person are irrelevant in determining this question. A person charged can also raise the issue that the image was inadvertently shared as opposed to intentionally published, which means there was no men’s rea to commit the offence. If a trier of fact accepts any one of these potential defences, then the accused person would be found not guilty.

What Types of Sentences are Available for Publishing an Intimate Image Without Consent?

This offence can be prosecuted by summary conviction or by indictment. When prosecuted by summary conviction, the maximum penalty is two years imprisonment. When prosecuted by indictment, the maximum sentence is five years imprisonment. However, it is important to understand that an ancillary order accompanies this offence. A court may impose an order that will prohibit their use of the internet or digital network for life. If that order is violated, a separate criminal offence will arise and be prosecuted.

Will a Person Convicted of Publishing an Intimate Image Without Consent be Placed on a Sexual Offender Registry?

Publishing an intimate image without consent is not one of the many sexual offences that can trigger a sexual offender registry order. However, voyeurism convictions will lead to placement on the sexual offender registry list.