Distribution of Intimate Images (Offence)

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Distribution of Intimate Images
s. 162.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable.
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 5 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

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".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 162.1 [distribution of intimate images] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 162.1 [distribution of intimate images] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 162.1 [distribution of intimate images] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 162.1 [distribution of intimate images] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingerprints and Photos

A peace officer who charges a person under s. 162.1 [distribution of intimate images] 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.

Publication Bans

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.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 162.1 [distribution of intimate images] X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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.

CCC


Note up: 162.1(1)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
162.1 "..., contrary to section 162.1 of the Criminal Code.

Proof of the Offence

Proving distribution of intimate images under s. 162.1 should include:

  1. the culprit "publishes, distributes, transmits, sells, makes available or advertises" an image;
  2. the image depicts a person;
  3. the image is an "intimate image";
  4. the person did not consent to the culprit's impugned conduct; and
  5. the culprit knew or was reckless to the fact that the person depicted did not give their consent to the prohibited conduct;

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".[1]

  1. R v AC, 2017 ONCJ 317 (CanLII), per Rahman J

"publishes, distributes, transmits, sells, makes available or advertises"

See Definition of Terms Relating to Transactions and Transferences

Intimate Images

162.1
[omitted (1)]

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.

[omitted (3) and (4)]
2014, c. 31, s. 3.

CCC


Note up: 162.1(2)

Defences

Publication, etc., of an intimate image without consent

162.1
[omitted (1) and (2)]

Defence

(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) [distribution of intimate images – defence],

(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.
[annotation(s) added]

CCC


Note up: 162.1(3) and (4)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

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.

It has been pointed out that this offence was notably excluded from the list of enumerated offences in s. 486.4(1)(a) which would trigger a publication ban.[1]

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 162.1 [distribution of intimate images] OK Symbol.png (on indictment, victim must make request) OK Symbol.png

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.

  1. R v AB, 2020 QCCQ 260 (CanLII), per Galiatsatos J, at para 1 see footnote #1

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 162.1 [distribution of intimate images] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 162.1 [distribution of intimate images] indictable election 5 years incarceration

Offences under s. 162.1 [distribution of intimate images] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 162.1 [distribution of intimate images] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

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).

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Principles

The offence is both an offence against sexual integrity and against privacy.[1]

The primary objectives are denunciation and deterrence.[2] The predominant sentence includes a period of incarceration.[3]

It is aggravating where the offence is combined with extortion and Will usually include a jail sentence.[4]

Cyberbullying

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.[5]

Young Victim

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).

Other Factors

Factors that may go to the gravity of the offence may include:

  • number of images distributed
  • level of intimacy of the image
  • ability to identify the victim from the image
  • presence of malice, threats, extortion or bullying
  • age of victim
  • psychological harm to victim and risk of future
  • similar prior history
  • other related charges arising from incident
  1. R v McFarlane, 2018 MBCA 48 (CanLII), per Mainella JA, at para 24 ("It is a sexual offence and a privacy offence, and sentences for it must reflect both of these aims of the legislation.")
  2. McFarlane, ibid., at para 24 ("Deterrence and denunciation are the primary sentencing objectives and such conduct typically will result in a custodial sentence")
    R v AC, 2017 ONCJ 317 (CanLII), per Rahman J, at paras 17 to 20, 28, 56
    R v JS, 2018 ONCJ 82 (CanLII), per Ghosh J, at para 20
    R v AB, 2020 QCCQ 260 (CanLII), per Galiatsatos J, at para 80
  3. AB, ibid., at para 81
  4. McFarlane, supra, at para 24 ("Because this offence was committed as part of the sextortion and the six-month sentence was made concurrent to the extortion sentence, we saw no reason to adjust it other than to point out it was at the low end of the range.")
  5. AB v Bragg Communications, 2012 SCC 46 (CanLII), per Abella J, at para 20

Ranges

see also: Distribution of Intimate Images (Sentencing Cases)

In Manitoba, the starting point for "sextortion" offences where the victim is an adult is two years incarceration.[1] The bottom range would be 6 months.[2]

  1. R v McFarlane, 2018 MBCA 48 (CanLII), per Mainella JA, 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.")
  2. McFarlane, ibid.

Ancillary Sentencing Orders

Offence-related Orders

Order Conviction Description
DNA Orders s. 162.1 [distribution of intimate images]
General Sentencing Orders
Order Conviction Description
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 discretionary 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 has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
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.

Prohibition Order

Prohibition order

162.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730 [order of discharge], of an offence referred to in subsection 162.1(1) [distribution of intimate images – offence], 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.

Offence

(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.

2014, c. 31, s. 3; 2015, c. 23, s. 33; 2019, c. 25, s. 56.
[annotation(s) added]

CCC


Note up: 162.2(1), (2), (3), and (4)

Restitution Order

See also: Restitution

s. 738 (1)
...
(e) in the case of an offence under subsection 162.1(1) [distribution of intimate images – offence], 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.
...
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95; 2005, c. 43, s. 7; 2009, c. 28, s. 11; 2014, c. 31, s. 24; 2019, c. 25, s. 302.
[annotation(s) added]

CCC


Note up: 738(1)

Record Suspensions and Pardons

Convictions under s. 162.1 [distribution of intimate images] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

This offence went into force on March 9th, 2015.[1]

  1. See Bill C-13