Publication of an intimate image without consent (Section 162.1 of the Criminal Code)

Lawyer defence strategies to get "revenge porn" charges dropped and the punishments and consequences for those found guilty

As of 2020, charges for sharing intimate images without consent continue to become more common in Canada. The offence was specifically criminalized in the Criminal Code in 2015 and is often referred to as “revenge porn” though that title is somewhat misleading as not all instances are motivated by revenge. Intimate images/videos are defined to include nudity and those depicting sexual acts in circumstances that give rise to a reasonable expectation of privacy.

Both adults (18+) and youths (YCJA) can be charged with this crime. It is a serious sexual offence that carries a maximum penalty of 5 years in prison and conditions preventing internet use upon release that can last for life.

How can a lawyer get charges for publishing an intimate image without consent dropped?

While the Criminal Code provides a public good defence in Section 162.1 (3), the vast majority of individuals who are successful in having their charges withdrawn or acquitted do not use this defence as it is not applicable.

Most cases are successfully defended in court using the following methods:

Challenging the assumption that the accused was the person who actually distributed the material

If the accused does not incriminate themselves by giving a confession or by sending texts, emails, and other messages admitting to the crime they may be able to claim someone else had access to the computer or phone. This can include someone with direct physical access (spouse, ex, child, roommate, etc.) or an unknown third party via hacking, spyware, or ransomware.

It is the responsibility of the Crown Attorney to prove that the accused was the person who distributed the material. In cases where there are no statements made by the accused (to the police or otherwise) the accused has a much better chance to have the Crown Attorney accept that there is no reasonable prospect of conviction and drop the charges or have the court find them not guilty.

Challenging the intent of the accused in publishing the material

An essential element of the offence is that the accused intended to publish the material. If the material was released to the public without intent this is a viable defence. Sometimes material is leaked through unintentional means and then rebranded in a “revenge porn” type way.

The images/videos may have been released unknowingly and then distributed by a third party with the name, address, date of birth, and other information of the victim. The victim may become aware of the intimate images being online because their real name may be linked to the material when searched.

This would not be the fault of the accused unless they were the individual who intentionally redistributed them. Please note having the name of the victim publically released is not an essential element of the crime.

Canadian Charter of Rights and Freedoms defences

In some cases while the accused may or may not be factually guilty, their Charter rights may have been violated by the police during the investigation. Evidence such as confessions and searches may be able to be excluded causing the Crown’s case to fall apart. Even if the police obtained a search warrant the warrant may later be quashed if the court determines there were insufficient grounds to support it.

Many criminal cases are won because of successful challenges to police conduct. Whether a search was warrantless or with a warrant there are still often defences available that may lead to the charges being dropped or the accused being acquitted.

Arguing that the complainant actually consented to the release of the material

It is not a crime to publish intimate images if all parties portrayed in them consent to the publication. In some circumstances the complainant may have actually given consent and regretted that decision afterwards. Sometimes the consent is given to publish the images or videos anonymously (without any name(s) attached to them). If someone who knows the complainant in real life recognizes them they may be publically outed (blasted) and be extremely embarrassed and regretful to initially consenting to the release.

Having the accused convicted of publishing an intimate image without consent would provide a court order that many websites may accept to remove the material from the internet. As such, the false accusation could be motivated by a desire to have the images removed by any means necessary after having second thoughts about consenting (even if the accused has to go to jail and get a criminal record).

The accused may have been “set up” intentionally by a jealous or vengeful spouse, girlfriend, or other person looking to sue them civilly or gain an advantage in the family court system (for custody, access, etc.)

Like other internet computer crimes, publishing an intimate image without consent is relatively easy to set someone up for. There are many motivating factors for this including both revenge and using the conviction as evidence to sue the accused for money. While the standard of proof in the criminal court system is “beyond a reasonable doubt” it is only a “balance of probabilities” (i.e. 50/50) in the civil court system.

Having the accused found guilty and convicted criminally would virtually guarantee a successful lawsuit against them. Those who have assets (money, house, etc.) are more susceptible to these sorts of false allegations. Sometimes it is discovered that the images were already online before the relationship began.

Public nudity defence: there may be no reasonable expectation of privacy

The police sometimes still charge people for publishing images taken in public without consent. If the crime of voyeurism was also committed and the defendant is accused of distributing voyeuristic images without consent they will also be charged with publishing the images. The main question is whether the images were taken in circumstances where there was a reasonable expectation of privacy or not.

For places such as beaches it is currently unsettled law whether there is a reasonable expectation of privacy. Some courts have declared there is not while others have said there was particularly because of the notion that the images could be distributed forever over the internet.

In at least one case the Ontario Court of Justice has said that it was criminal (mischief) to record images on a public beach because the person had a reasonable expectation that her pictures would not be shared on the internet indefinitely. This decision is not binding on other equal or higher level courts and thus the defence that there was no reasonable expectation of privacy still remains potentially viable in Ontario.

The potential punishments and consequences for those convicted under Section 162.1 of the Criminal Code

Publishing an intimate image without consent is an extremely serious criminal offence. If the Crown proceeds by way of indictment the accused faces up to five years in prison. Upon summary conviction six months is the maximum jail sentence however the Crown will normally proceed by indictment.

After jail, the accused is subject to probation and a prohibition order under Section 162.2 (1) restricting their internet, cell phone, and computer (digital network) usage for potentially the rest of their life.

Section 162.2 prohibition orders on internet use for up to life

If the accused is found guilty, the court can also make a prohibition order requiring the accused to be restricted from accessing the internet or any other digital network for life. Being prohibited from accessing the internet is devastating for a myriad of obvious reasons including that it is now virtually impossible to find a cell phone not capable of accessing the internet in 2020.

Nonetheless, courts do normally impose such conditions on those convicted. They have been imposing them for decades in other types of cases (such as child pornography) and view them as justified prohibitions on the grounds of public safety when someone is found guilty of an internet sexual computer crime.

In cases also involving child pornography, luring, sexual interference, indecent acts, or sexual assault offences, the court may also place a prohibition order on the accused upon release preventing them from attending where children may be present, prohibiting them from public parks, pools, and other places for up to the rest of their life under Section 161 (1).

Factors such as the age of the victim and overall accepted facts of the accused’s behaviour will be considered by the court.

The accused offender’s name may be released to the media

Like many sexual offences, police forces have a tendency to release the name of the accused to the public when they are charged with publishing intimate images under Section 162.1. Their reasoning is that they are trying to identify other potential victims. The accused could be a totally innocent person but they still will have their name published by numerous media outlets and available to be read via Google searches by anyone looking into them for the rest of their life.

The justification is that in Canada defendants are presumed to be innocent until proven guilty. Some jurisdictions in the U.S. always release the names of those who are charged. In Canada the police usually do not but they still have a right to and often will in sexual offence cases. Rarely is the outcome of the case (withdrawn, stayed, aquitted, etc.) ever reported.

If convicted will the accused have to register as a sex offender?

While the punishments are incredibly harsh and can lead to lifelong consequences upon conviction, currently this offence is not eligible for sexual offender registration however this may change in the near future. Some accused are also charged with other crimes that require sex offender registration such as child pornography, luring, sexual assault, or sexual interference (sexual activity with an underage child).

What should someone charged with publishing an intimate image without consent do?

If they have been released from custody on bail or an undertaking given to a peace officer (Form 11.1) they should contact a criminal lawyer immediately. If your spouse, relative, or friend is currently in custody the first step is to do everything you can to get them released from jail (and on the least restrictive conditions possible). This may involve you acting as their surety to supervise their release.

Getting the accused released from jail as soon as possible is extremely important both because they are currently being denied their liberty and are possibly in danger (especially being held for a sex crime) and also because it will help them dramatically in preparing their defence.


Call us today for a free case review
You need lawyers who understand technology and have experience defending publishing intimate images without consent charges. Sentences (including for all guilty pleas) can result in lengthy jail terms, and employment, travel, and immigration related consequences that can ruin your life.

Winning acquittals and withdrawn charges often requires more than traditional defence methods. It may be possible to avoid a conviction by raising doubt in your case using highly sophisticated technological and Charter constitutional defence strategies.





Are you a lawyer? If you are defending a revenge pornography related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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