Distribution of Intimate Images (Offence)
|Distribution of Intimate Images|
|s. 162.1 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 6 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||six months jail and/or a $5,000 fine|
|Avail. Disp.||same as summary|
|Maximum||5 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Defences
- 6 Participation of Third Parties
- 7 Sentencing Principles and Ranges
- 8 Ancillary Sentencing Orders
- 9 History
- Note: this offence came into force March 9th, 2015. There can be no charges under this section for conduct that pre-dates the enactment date
Offences relating to distribution of intimate images are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".
|Crown Election||Defence Election|
|s. 162.1 [distribution of intimate images]||Hybrid Offence(s)||Yes||Yes, if Crown proceeds by Indictment|
On Attendance Notice
On a Promise to Appear
Undertaking or Recognizance
a Judge or Justice
on a PTA, Undertaking or Recog.
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
When charged under s. 162.1, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
A peace officer who charges a person under s. 162.1 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Publication, etc., of an intimate image without consent
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.
2014, c. 31, s. 3.
Proof of the Offence
Proving distribution of intimate images under s. 162.1 should include:
Interpretation of the Offence
The offence was created in response to several incidents of cyberbullying and was enacted in order to address the dangers of "revenge porn".
- R v AC, 2017 ONCJ 317 (CanLII)
"publishes, distributes, transmits, sells, makes available or advertises"
Definition of “intimate image”
(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.
2014, c. 31, s. 3.
Publication, etc., of an intimate image without consent
162.1 (1) ...
(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.
Question of fact and law, motives
(4) For the purposes of subsection (3),
- (a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
- (b) the motives of an accused are irrelevant.
2014, c. 31, s. 3.
Participation of Third Parties
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
On Finding of Guilt
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 162.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
|s. 162.1 [distribution of intimate images]||Summary Election||six months jail and/or a $5,000 fine|
|s. 162.1 [distribution of intimate images]||Indictable Election||5 years custody|
Offences under s. 162.1 are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.
These offences have no mandatory minimum penalties.
s. 718.3, 787
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
There are no statutory requirements that the sentences be consecutive.
It is logical to conclude that cyberbullying is harmful to children. It can cause loss of self-esteem, anxiety, fear, school drop-outs and increase in suicide attempts.
Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).
A.B. v Bragg Communications, 2012 SCC 46 (CanLII) at para 20
R v McFarlane, 2018 MBCA 48 (CanLII), at para 21 ("The starting point where the victim is an adult is two years’ imprisonment, even for a first offender. This approach is more consistent with sentences for sexual assault cases and serious extortion cases.")
- McFarlane, ibid.
Ancillary Sentencing Orders
|DNA Orders||s. 162.1||
General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay, and the minimum amounts are smaller (15%, $50, or $100).|
General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
162.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection 162.1(1), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
Duration of prohibition
(2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.
Court may vary order
(3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of
- (a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
- (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months.
2014, c. 31, s. 3; 2015, c. 23, s. 33.
s. 738 (1)
(e) in the case of an offence under subsection 162.1(1), by paying to a person who, as a result of the offence, incurs expenses to remove the intimate image from the Internet or other digital network, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.
This offence went into force on March 9th, 2015.
- See Bill C-13