Publishing an Intimate Image without Consent: s. 162.1 of the Criminal Code of Canada
When a person is charged with publishing an intimate image without consent under section 162.1 of the Criminal Code, several common questions arise. We try to answer those frequently asked here:
What is defined as an “intimate image” under 161.1 of the Criminal Code of Canada?
An intimate image is any photograph or video in which a person is:
- nude or partially nude;
- exposing their genitals, anal region, or breasts; or
- engaged in a sexual activity.
An image that is merely embarrassing or unflattering does not qualify as intimate under the law.
The offence requires the Crown prosecutor to prove that the person in the image had a reasonable expectation of privacy when the image was taken and distributed. For instance, if someone was nude in a public area, a court may find that they did not have a reasonable expectation of privacy in those circumstances.
What is defined as “publishing” an intimate image under 161.1 of the Criminal Code of Canada?
The shorthand for this offence is publishing or publication of an intimate image without consent. However, the offence captures any means of sharing an intimate image without consent. For example, texting an imitate image to someone without consent of the person depicted, showing an intimate image on the screen of your phone, posting it online, etc.
They shared an intimate image of me. Now, I want to share an intimate image of them. Isn’t that consent?
No. Revenge or retribution is not a defence in law. Both parties may be charged with publishing an intimate image without consent. The police may also decide to charge only one of the parties.
They sent me the image. Isn’t that consent?
No. Sending you an intimate image does not mean that the person consented to you sharing it further. Consent on any sharing must be confined to the circumstances and individual(s) it was shared with.
I sent the image accidentally. Is that a defence?
Yes. You must knowingly share the image. However, for this defence to succeed a judge must either accept that as a fact, or have doubt about that asserted fact, or perhaps is left in doubt by the entirety of the evidence that calls into question whether it was intentional. Simply saying “I didn’t mean to” may not be sufficient. The Court will look at the entirety of the circumstances to determine whether that defence applies; or, despite that asserted defence, the Court may reject that fact and find beyond a reasonable doubt it was intentional resulting in a finding of guilt.
What are the penalties if I am found guilty of publishing an intimate image without consent?
The answer to this question depends on how the Crown prosecutor decides to proceed.
Publishing an intimate image without consent is a hybrid offence. That means the Crown prosecutor can choose to pursue the case by indictment or summarily. Indictments follow conduct that the Crown deems very serious. A summary offence is the Canadian equivalent of a misdemeanour.
With hybrid offences, the Crown has complete discretion to decide whether to proceed by indictment or summarily. A court cannot intervene.
If the Crown proceeds by indictment, the maximum sentence is five years’ imprisonment; if the Crown proceeds summarily, the maximum sentence is two years’ imprisonment, less one day. As of the date this article was authored, a conviction does not trigger registry on the national sex-offender database (SOIRA).
There is no mandatory minimum sentence.
Are the penalties more severe if the intimate image is of a child?
This is a different offence. If the image shows a person under the age of 18 (i) engaged in sexual activity or (ii) the main purpose of the image is to depict for a sexual purpose that person’s genitals, breasts, or anal region, the image is child pornography.
Speak to a lawyer if you are charged with publishing an intimate image without consent
Most criminal defence lawyers will gladly speak to individuals charged with criminal offences, such as publishing an intimate image without consent, at no initial charge. The consequences of an offence of this nature can be severe and having legal counsel can minimize or eliminate them.
You can speak to a lawyer now by calling (416) 999-8389.
