Revenge Porn: Leaked Snaps can land you in jail

The Canadian Conservative government, under the former Prime Minister Stephen Harper, through Bill c-13 amended the Criminal Code of Canada. The government passed a new criminal offence under section 162.1 of the Criminal Code. The section 162.1 of Criminal Code of Canada deals with the growing problem of sexual cyberbullying in Canada. The government’s goal under Bill c 13 was to protect Canadians from online crimes such as digital violence: cyberbullying, and sextortion scams.

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

The act of surreptitiously taking someone’s intimate picture, video or film can be voyeurism, a criminal offence in Canada.

A person committing voyeurism can also be criminally charged under section 162.1 (1) of the Criminal Code of Canada for publication, etc. of an intimate image without consent. In addition, the perpetrator can face serious criminal law consequences if he or she also extorted the victim.

The Section 162 of the Criminal Code of Canada deals with the criminal charge of voyeurism:

162 (1) 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.

Sextortion is extortion. A person in Canada can be charged for extortion if that person uses another person’s intimate image for extortion or online bullying. For an example: an online shaming by sharing and distributing nude pictures on social media to blackmail or gain anything from the victim. This a serious offence in Canada and carries serious criminal penalty.

The criminal law – “extortion” charge can also apply to someone using another person’s intimate image to blackmail. That is to extort with an intent to gain anything by threats, accusations, menaces or violence induces or tries to induce on any person.

346 (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

(1.1) Every person who commits extortion is guilty of an indictable offence and liable

(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years;

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life

The Criminal Code of Canada defines the intimate image as a recording of a person’s nude picture showing genitals organs, or anal regions, or breast or recording of sexual activity (i.e. sexual images).

And a subject holds a reasonable expectation of privacy at the time or recording of the intimate image or video. This expectation extends in the future at the time of distribution or sharing.

For example: imagine a scenario between two consenting adults in an intimate relation where the parties may have been exchanged their intimate pictures between them. The parties may have engaged in making an intimate video of themselves. Canadian law does not punish people for exchanging their own nude, intimate or sexual images and videos. And it is not illegal to create nude image or sex video or film with your partner. However, if a person shares or distributes his or her partner’s intimate image or a video without consent, then it can become a criminal offence in Canada.

162.1 (2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) 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;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

162 (2) In this section, visual recording includes a photographic, film or video recording made by any means.

Yes, it is illegal to share or distribute your girlfriend or boyfriend’s naked picture. This could lead to criminal charges under the Criminal Code of Canada, section 162.1 (1) for publication, etc. of an intimate image without consent. It is also possible that the person who committed the act can also face a civil lawsuit besides the criminal prosecution.

It depends on the picture, video or film you received – is it intimate? If it’s an intimate image, you received from someone that shared, on their own choosing, their own intimate picture, video or film with you – then it is OK. However, this does NOT give you rights to share the screenshot with others, post online or distribute it among your friends.

If a person sends you another person’s intimate picture, video or film then the person sending the intimate image could face criminal charges for distributing the intimate image. Further, the person sharing the image could also face voyeurism and/or extortion (aka – sextortion) charge.

You can also be charged as a party to the offence, an accomplice to the crime.

You sharing or sending your own suggestive photos or videos is not illegal. However, if the receiving person feels harassed then sending person could face a criminal harassment charge. If you are sending someone (not your own) intimate picture, video or film to other people, you could face criminal charges.

If someone is posting your naked picture online without your consent can be criminally charged and prosecuted in Canada. Even if you shared your intimate picture or video to the person who shared your intimate image.

You maintain reasonable expectations of privacy on your intimate image or video you have shared with your partner, friend or lover. Thus, you file a criminal complaint with the authorities (i.e. police or RCMP) against the person posting your nude picture or video. The authority in charge will investigate and can charge the perpetrator with criminal offence(s).

You should also contact a lawyer who handles Revenge Porn – civil lawsuit cases to see what your legal choices are. You can contact Ash Duvadie, Barrister and Solicitor at DUVADIE Law by calling 1-855-422-1155 (toll-free) or 613-422-1155 to inquire about your legal options.

Yes, Revenge Porn is illegal in Canada. Thought the Criminal Code of Canada does not spell out “Revenge Porn”, but the section 162.1 of the Criminal Code of Canada deals with distribution of the “intimate image”. The section 162 of the Criminal Code Canada deals with voyeurism offence. And, the section 346 of the Criminal Code of Canada deals with extortion, also known as sextortion.

While this article does not get into detailed discussion of civil court actions on “Revenge Porn”. In recent years in Canada, civil cases based on common law action of Tort have tried to tackle Sexual Cybercrime or cyberbullying, also known as Revenge Porn.

Therefore, the plaintiff may find monetary recourse from the defendant’s action related to “Revenge Porn” under Intentional Tort such as Mental Suffering; Tort – Injury to Person; Slander and related Torts; Tort of Invasion of Privacy – Intrusion upon Seclusion.

The criminal charges provide authorities a tool and means to deal with blameworthy actions of an individual. For example, it is a crime in Canada to distribute intimate images, videos or films where the subject of the image, video or film holds a reasonable expectation of privacy. This law tries to tackle online cyberbullying. And the Criminal Code of Canada has also enacted laws to deal with voyeurism and sextortion (i.e. extortion).

A civil recourse against a defendant is based on Common Law Torts or other statutory provisions. This may provide relief or compensation for the plaintiff for suffering because of defendant’s actions such as distribution of intimate images or videos of the plaintiff.

In a case of Jane Doe 464533 v. N.D. [Indexed as: Doe 464533 v. D. (N.)], 128 O.R. (3d) 352, the parties were in close personal and romantic relationship of some duration. After the 18-year-old plaintiff went away to university, the defendant pressured her to provide him with an intimate video of herself, assuring her that only he would see it. She reluctantly did so. The same day he received it, the defendant posted the video on a pornographic website without her knowledge or consent. He also viewed it with some of his friends, who were acquaintances of the plaintiff. The existence of the video became known to some of the plaintiff’s friends. It was removed after about three weeks, but there was no way to know how many times it was viewed or downloaded or whether it was copied. The plaintiff was devastated and humiliated. She experienced serious depression. She worried about the possibility that the video might resurface and have an adverse impact on her employment or future relationships. She sued the defendant for damages.

The court found the plaintiff had made out a cause of action for breach of confidence. The plaintiff had also made out a cause of action for intentional infliction of mental distress.

What’s interesting about the case is as follows:

“A cause of action for invasion of privacy — in particular, public disclosure of embarrassing private facts about the plaintiff — was also made out. One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public. The defendant posted on the Internet a privately shared and highly personal intimate video of the plaintiff. In doing so, he made public an aspect of the plaintiff’s private life. A reasonable person would find such activity to be highly offensive. It was readily apparent that there was no legitimate public concern in the defendant doing so.”

Here, in this case the Ontario Superior Court of Justice awarded $100,000 to Plaintiff – the maximum limit under this action. The court attributed $50,000 toward general damage, $25,000 toward aggravated damages and $25,000 for punitive damages.

In Charlottetown, Prince Edward Island, a man was sentenced to 22 months in jail for posting intimate images of six females on a website. Per Canadian Broadcasting Corporation (CBC) News, Crown attorney Lisa Goulden called it a case of cyberbullying and Revenge Porn. According to the Crown attorney, “there is a significant invasion of the victims privacy”. Google search could find these women. The defendant, Mr MacAdam, 28 years old, posted 69 images to the website, 41 of which were deemed “intimate” under the Criminal Code of Canada. The Crown described the impact as “very significant and long-lasting.”

In another but similar case, R. v. McFarlane, [2018] M.J. No. 112, the Manitoba Court of Appeal reviewed a lower court’s decision for a combined sentence of 18 months imprisonment followed by two years supervised probation, after convicting Mr McFarlane for voyeurism, of distribution of an intimate image without consent and extortion. This was Mr McFarlane first criminal offence.

According to the Court of Appeal at paragraph 24 of the decision reads:

“…it is sexual offence and a privacy offence and sentenced for it must reflect both of these aims of the legislation. Deterrence and denunciation are the primary sentencing objectives and such conduct typically will result in a custodial sentence…”

Here, the court imposed three months of jail sentence for voyeurism charge, fifteen months of consecutive sentence on the extortion offence; and additional six months of sentence for the offence of distribution of intimate image was to be served concurrently with extortion offence sentence.

Mr McFarlane received 18 months combined sentence. The Court of Appeal of Manitoba did not think the 18-month sentence was unfit given the nature of crime.

Sexual cybercrime or cyberbullying of distributing or sharing intimate image, video or film can attract serious criminal and civil consequences. The perpetrator could face criminal charges related to Revenge Porn, Voyeurism, and Sextortion which attracts jail punishment in Canada if convicted of such crimes.

Ash Duvadie, Barrister and Solicitor has defended clients faced with criminal charges of sexual assault, voyeurism and extortion. Ash has litigated both for the plaintiffs and defendants in civil courts for a cause of action arising out of sharing, distributing or publishing an intimate image or video of someone. Call DUVADIE Law at 1-855-422-1155 (toll-free) or 613-422-1155 to discuss about your case. 

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