Ottawa’s sexual offence laws have been updated in recent years to address the increasing influence of the Internet in daily life.
Publishing intimate images of another person without their permission is one such law that was introduced at a federal level in 2015 and is addressed in the Criminal Code 162.1.
These laws are complex and still evolving as more is discovered about the risks to people of online exploitation (using email, social media or other online channels to publish, share, distribute, transmit, or sell private images).
Wrongful accusations are relatively common and, if you find yourself in this position, it is important to defend yourself vigorously against the reputational damage and criminal charges that may come your way.
What is considered “intimate” with images?
Publishing intimate images without consent is a crime, so there needs to be a clear definition of what makes an image “intimate”.
It is generally taken to mean any image or video where:
- A person is naked or semi-naked
- A person is exposing genital organs, anal region, or breasts
- A person is engaged in sexual activity
The laws outlined in Section 162.1 of the Criminal Code are not intended to protect people from embarrassing images – but the unlawful publication of private images where permission has not been given to share or distribute them.
So, if someone takes and intentionally publishes intimate images or videos, where there was a reasonable expectation of privacy by the subject, the alleged perpetrator may be charged.
The problem of “revenge porn” has become increasingly high profile in Canada in recent years. This is where an intimate partner seeks revenge on their ex by publishing pictures of a sexual nature taken in private.
These laws go some way to addressing this growing issue but bear in mind that sometimes images get published for other reasons than revenge (such as to make money or to gain an advantage in a dispute).
What if the images were taken in public?
For a charge of publishing intimate images without consent to be prosecuted successfully, there must be a reasonable expectation of privacy from the subject when the images were taken and these images must then be shared intentionally and publicly without their permission.
So, if the person was nude in public (for instance, on a nudist beach) this could be a legitimate defence for the accused – as it could be argued that there was no reasonable expectation of privacy by the subject.
What if the subject is under 18?
If the person depicted in the images or video is under the age of 18, the alleged perpetrator may be charged with child pornography, which is a serious crime under the Criminal Code of Canada.
For this charge to be successfully prosecuted, the child victim must be engaged in sexual activity or displaying sexual organs or the anal region for the main purpose of the perpetrator’s sexual gratification.
What are the consequences of publishing intimate images without consent in Ontario?
Depending on the circumstances of the alleged offence, it may be prosecuted as a summary conviction or indictment.
If the case proceeds as a summary conviction, it carries a maximum penalty of six months in prison. There may be fines and other punishments handed down by the judge.
If the charge is prosecuted by indictment, which is more common in Ottawa, the maximum sentence is five years’ imprisonment.
After serving jail time, offenders are subject to probation and a prohibition order that restricts their internet, cell phone, and computer (digital network) usage – sometimes for life!
In line with many sexual offences, the Ottawa police are likely to release your name to the public if you are charged with publishing intimate images. This is in the hope that other victims will come forward.
Do you have to register as a sex offender if found guilty in Ontario?
Currently, offenders do not have to register on the sexual offender’s list for publishing intimate images without consent. However, a conviction for child pornography will require registration.
As mentioned, the laws are updated regularly and so this situation may change in the future.
What are the most common defences?
Apart from the “no reasonable expectation of privacy” defence already mentioned, there are several other possible defences against a charge of publishing intimate images without consent.
These may include:
- Mistaken identity: the accused was not the person who distributed the material (someone else accessed their computer and distributed the images)
- Charter rights were violated during the investigation, arrest, or charge process: this often renders confessions and evidence obtained through searches inadmissible in court
- The subject of the images consented to publication: if he or she consented to distribute the images (even if they later regretted the decision) the accused cannot be convicted
- The images were inadvertently shared: publication was not an intentional act and therefore the accused cannot be found guilty
- The accused was set up by a jealous ex-partner: it is not unknown for cases to be initiated by an ex-spouse who, for example, seeks to gain an advantage in a child custody battle
- The conduct that led to the charge served the public good: it was not for revenge, sexual gratification, or any other reason
If you are charged with this crime, resist the temptation to say too much to the police before speaking to a criminal defence lawyer. You may incriminate yourself even if you are innocent of the crime.
Affordable defence for publishing intimate images without consent in Ottawa
With the harsh consequences of a conviction for publishing intimate images without consent, it is essential to prepare the best defence possible with a lawyer who vigorously defends your rights and freedoms.
At Affordable Defence in Ottawa, we will review your case and advise you on the best available course of action. As always, the onus is on the prosecution to prove the case against you beyond a reasonable doubt, meaning you have a chance…
Contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.