The ubiquity of mobile phones and Internet connectivity has made it increasingly easy to capture and share all types of images and related content. There are numerous benign reasons for publishing and distributing images but distributing intimate images without the consent of the subject is not one of them. In fact, sharing these images is illegal in Canada. If you have questions about this law, its limits, and what you should do if you are accused of this offence, you will find the answers to those questions below.
What Does the Law Say About Non-Consensual Distribution of Intimate Images?
Distributing intimate images without consent is in the Criminal Code of Canada under Section 162.1.
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.
Note that distribution is defined broadly in the section of the Code and includes sending the image to only one other person as well as posting the images on the Internet for anyone to see.
What Is an Intimate Image?
The Code defines an intimate image as
“a visual recording of a person 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.”
The Code also requires that the subject had a reasonable expectation of privacy at the time and under the conditions where the recording was made and continued to have a reasonable expectation of privacy when the image was shared.
What To Do If You Are Charged with Distribution of Intimate Images Without Consent Canada
If you are charged with this offence, do not panic! First, invoke your right to counsel by calling a criminal defence lawyer. Do not speak to the police without your lawyer present. You will naturally want to declare your innocence and offer evidence to support it, but you should avoid doing this without the guidance of your lawyer. Being arrested is very stressful, and you can easily give the police and the Crown attorney information they can use against you.
Second, follow your lawyer’s advice closely. No matter how familiar you are with the criminal justice system, your lawyer will have more advanced knowledge and will be able to maintain a more objective and comprehensive view of your case.
Third, collect records of all your interactions with the subject of the recordings and anyone else involved with the activity in question. This should include text messages, emails, details of conversations, and interactions you’ve had over social media.
I Have Been Charged with Distribution of Intimate Images Without Consent. How Will a Lawyer Defend Me?
A skilled criminal defence lawyer will consider several defences, depending on the particulars of your case and the evidence against you. The most common defences are:
- Mistaken identity: If other people could have had access to your phone or computer, your lawyer may argue that you are not the one who distributed the images. Depending on your circumstances, they may also attempt to show that you were framed for the crime.
- Charter rights violations: Your lawyer may argue that one or more of your rights under the Canadian Charter of Rights and Freedoms was violated during the investigation, specifically your right to privacy and your right to protection from improper search and seizure. If these arguments are successful, the improperly obtained evidence may not be inadmissible in court.
- Lack of intent: Your criminal defence lawyer may claim that you were not aware you had been involved in the distribution of an intimate image without consent. If, for example, you had been asked to forward a folder to someone else, and that folder contained the intimate images in question, this could be used in your defence.
- Reasonable belief that consent was obtained: You may honestly believe that someone gave their consent for the images to be published. If, for example, the subject originally gave their consent but later withdrew without informing you, that could be offered as a defence.
- Right to privacy: Your lawyer may argue that the subject of the images had no reasonable right to privacy under the circumstances. For example, someone on a clothing-optional beach might believe they had a right to privacy, but your lawyer might argue that they were in public and had no right to expect privacy. There is no formal definition of the right to privacy, as it is often a question of context; therefore, arguments related to this may come down to a judge’s decision.
- The public good: If distribution of the image serves the public good and does not go beyond that, your lawyer may raise that in your defence. An example of such a situation might be a politician or other public figure who is caught in a sex-related scandal. If that person’s actions speak to their trustworthiness or ability to carry out their duties, sharing the image could be said to be in the public interest.
The laws governing the distribution of intimate images without consent in Canada’s Criminal Code are straightforward on their face but nuanced in their interpretation and application. Hiring a skilled criminal defence lawyer is the best way to ensure that the law is correctly, fairly, and applied to your case.
In Toronto, seek the counsel of the professionals at Zamani Law. We will work diligently to ensure that your rights are protected and that you have the best defence possible as we guide you through your contact with the police and the rest of the criminal justice system.
Remember the first rule of being placed under arrest: Call a Lawyer! For the best outcome, make that lawyer Zamani Law. Contact us today for a free consultation. Let’s talk about your case and how we can help you move through it and past it.