O’Connell Law Blog

Are DeepFakes and DeepNudes Legal?

Limitations with Current Revenge Porn Laws in Canada In Canada, it is a criminal offence under section 162.1 of the Criminal Code to distribute intimate images of another person without that person’s consent. The offence, known as publication, etc., of intimate images without consent, states that anyone who has published, distributed, transmitted, sold, made available or advertised an intimate image of a person, knowing they did not consent, or being reckless as to whether that person would consent, is guilty of a hybrid offence. This means the Crown prosecuting the case can choose to elect to proceed summarily, which carries lesser penalties, or by indictment, which carries a longer maximum penalty of up to five years in prison. Since publication, etc., of an intimate image without consent is a hybrid offence, there is effectively no statute of limitations, meaning officers can lay charges against an individual years, or even decades after the intimate image was shared. Where the offence occurred more than a year prior, the Crown would simply elect to proceed by indictment to avoid the statute of limitations. The major limitation with the current section of the Code is the types of intimate images it covers. The current wording creates a loophole that continues to grow as AI technology improved. AI technology has ushered in a new era of revenge porn and other illegal pornographic content, allowing people to create deepfakes and deepnudes of individuals and share them on the internet. A deepfake is created when an individual takes a real photo of someone and uses AI technology to alter the photo. In some cases, the alterations include making the individual appear nude, or appear to be engaging in explicit sexual activity. Current

By |2023-12-06T19:51:41-05:00December 6th, 2023|0 Comments

New Changes to Extreme Intoxication in 2022

R. v. Sullivan The case involves two different defendants, Sullivan and Chan. Their cases are unrelated but were arguing the same issue and have come before the Supreme Court together.   Section 33.1 – Extreme Intoxication When defence not available 33.1(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). Criminal fault by reason of intoxication (2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. Application (3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.   Facts Sullivan voluntarily overdosed on prescription medication and then attacked his mother with a knife, gravely injuring her. Sullivan was charged with several offences including assault with a weapon and aggravated assault. Chan voluntarily took shrooms laced with a drug called psilocybin. He attacked and killed his father with a knife and seriously injured his father’s partner. He was charged with manslaughter and aggravated assault. Both parties argued at their respective trials that their state of intoxication was so extreme it was

By |2023-03-10T14:23:38-05:00May 17th, 2022|0 Comments

The Rules of Victim Impact Statements

The victim impact statement should not include opinion evidence and should be confined to discussing the harm suffered by the victim. The VIS should not encourage or urge a certain sentencing outcome. Doing so runs the risk of steering the sentence imposed based on revenge. Regardless of whether the prosecution office, or the personnel administering the program designated by the Province of Ontario (under s. 722(2)(a) of the Code), is principally involved with the victim(s), there should be some pre-filing gatekeeper function exercised in terms of ensuring that the victim impact statement(s) comply with the Criminal Code requirements. In this way, victim disappointment will be avoided R. v. Gabriel, 1999 CanLII 15050 (ON SC)

By |2023-03-10T14:24:55-05:00November 17th, 2021|0 Comments

Global Sentences

In Canada, the phrase “global sentence” is used to describe a single sentence that reflects the cumulative culpability for all offences on which the offender is sentenced.   (In the US, this type of aggregate sentence is termed a “unitary” sentence). The practice of imposing a global sentence is generally discouraged outside of the context of reducing the total sentence for multiple count convictions to ensure that the sentence meets the totality principle. But even here, the sentencing judge begins by determining the appropriate sentence for each offence. See R. v. Elliott, 2012 ABCA 214 (CanLII) at para 7 for a quick summary of sentencing in multiple count situations. Judges should impose a sentence on each individual counts in order to determine the overall appropriate sentence. See section 725(1)(a) of the Criminal Code. This is so irrespective of whether the sentences are to be served consecutively or concurrently. R. v. Taylor, 2010 MBCA 103 (CanLII), at para 10. However, a failure to do so is not necessarily fatal. In R. v. T.A.P., 2014 ONCA 141 (CanLII), the Court of Appeal for Ontario provided the following guidance: [14]     The Criminal Code makes clear that, if it is possible and appropriate, sentencing judges ought to impose a sentence on each count as opposed to simply imposing one global sentence.  Section 725(1)(a) of the Criminal Code states that a court “shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences.” [15]      When a sentencing judge does nevertheless impose one global sentence for two or more counts, s. 728 of the Criminal Code applies.  Section 728 states: Where

By |2023-03-10T14:26:08-05:00November 16th, 2021|0 Comments

What are the Drone Laws in Canada?

In recent years, drones have become an increasingly popular hobby for people of all ages. Department stores all over the country have begun to stock drones as part of their regular inventory, with models ranging in price from the low hundreds to thousands of dollars. Unfortunately, many retailers do not inform customers of the legal requirements associated with owning and operating a drone in Canada. You will not see any notices around the sales displays or general requirement for sales staff to inform the public prior to purchase. This can create a situation where a purchaser invests thousands of dollars in a drone without knowing or being told they may not be able to use it. What may be surprising to some consumers is that there are very stringent laws surrounding the ownership and operation of drones. Similar to a motor vehicle, a drone must be registered when purchased and the operator must be licensed. These facts, however, are not common knowledge, leading many Canadian’s to unknowingly break the law. Prior to purchasing a drone, it is important to understand all of the legalities surrounding ownership and operation. Registration As of June 1, 2019, all drones that are operational and weigh between 250 grams and less than 25 kilograms must be registered with Transportation Canada through the Drone Management Portal. Drones that weigh less than 250 grams do not need to be registered and drones that weigh more than 25 kilograms do not need to be registered but do require a special flight operations certificate. Once a drone has been registered, the pilot must mark the drone with the registration number prior to taking flight. Licensing According to the Canadian government, a drone is considered

By |2023-03-10T14:26:22-05:00June 9th, 2021|0 Comments

Historical Sexual Assault Charges

In recent years the Supreme Court of Canada has sent an important message in relation to sentencing for sexual offences against children: the sentences must increase. Over the years, the sentencing principles used to determine the appropriate sentence for those convicted of sexual offences against children have evolved significantly. With a much deeper understanding of the lifelong trauma caused by sexual abuse, courts across Canada have begun imposing more severe penalties on those convicted. As recently as 2010, those convicted of committing explicit sexual acts on children were regularly being sentenced to lower single digit prison sentences. To reflect the trauma caused by childhood sexual abuse, the Federal government has recently amended the Criminal Code to increase the maximum penalties for those convicted of certain sexual offences against children. The maximum penalty for sexual interference for example, has increased to fourteen years in prison. In 2019, the Supreme Court of Canada released its decision in R. v. Freisen, a case involving a man charged with sexual interference after having explicit sexual contact with his intimate partner’s young daughter. The accused was sentenced to 6 years in prison at trial, but the sentenced was reduced to 4.5 years on appeal. After hearing the case the Supreme Court restored the 6-year sentence, arguing that the trial court had imposed the correct sentence. The Supreme Court went on to justify the decision by pointing out that the maximum penalty for sexual interference had increased and therefore the average sentence should increase as well. The Court argued that the appropriate sentence for an individual convicted of sexual interference of this nature is an upper single digit to lower double digit prison sentence. As directed by the Supreme Court, the

By |2023-03-10T14:26:32-05:00June 7th, 2021|0 Comments

Prohibition Orders for Sex Offenders

A Prohibition Order, as outlined in section 161 of the Criminal Code, is an order placed on individuals convicted of certain designated sexual offences involving persons under the age of 16. Designated sexual offences include (among others) child pornography offences, invitation to sexual touching, sexual interference, incest, making sexually explicit material available to a child, sexual assault with a weapon, threats to a third party or causing bodily harm, and sexual assault.What does a Prohibition Order Prohibit?When an offender is convicted of a designated sexual offence, the sentencing court may order the offender to refrain from:Attending public parks or swimming areas where persons under the age of 16 are present or can reasonably be expected to be present, daycare centres, schoolgrounds, playgrounds or community centres;Being within two kilometers, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;Seeking, obtaining or continuing any employment whether or not the employment is renumerated, or becoming or being a volunteer in a capacity, that involves being in a position or trust or authority towards a person under the age of 16 years;Having any contact – including communicating by any means – with a person who is under the age of 16, unless the offender does so under the supervision of a person whom the court considers appropriate; orUsing the Internet or other digital network unless the offender does so in accordance with conditions set out by the court.What Happens if I Breach the Order?An individual who breaches a section 161 order may be charged under section 161(4) of the Code with a criminal offence. An accused who is convicted of

By |2023-09-21T11:50:17-04:00March 23rd, 2021|0 Comments

New Changes to Sex Offences in 2021

Recent Changes and Guidance from the Supreme Court of Canada In recent years, the Supreme Court of Canada has made several important changes to how sexual assault cases are prosecuted in Canada. Sexual assault and the impacts of sexual violence on victims was brought to the forefront of our society in 2017 with the MeToo movement. This movement changed the way many sexual assault victims were treated by the justice system and is continuing to change the way our courts handle such offences. In 2020, 10 of the 26 criminal cases on the docket for the Supreme Court involved sexual offences. In deciding these cases, the Supreme Court sent a strong message to the justice system; the sentences for those convicted of sexual offences involving children must increase. Ranges have pushed up considerably to mid-reformatory sentences, even with a guilty plea. In recent years, the federal government has enacted legislation enhancing the maximum penalties for offenders convicted of sexual offences involving children. Offences of this nature have become among the most serious offences Canadian’s can be charged with which is now reflected in the sentencing guidelines. In the 2019 Supreme Court case R. v. Friesen, the Supreme Court opined that since the maximum penalties for those convicted of sexual offences against children have increased, so too should the sentences imposed on offenders. The Court provided a non-exhaustive list of factors that should be considered when determining the appropriate sentence for an offender. The list included whether or not the accused felt remorse for their actions, whether they had insight into their behaviour, and whether there was a high risk of recidivism. The Court also provided a sentencing range of upper single digit to lower double

By |2023-03-10T14:26:54-05:00February 27th, 2021|0 Comments

What’s the Law on Reporting Child Pornography?

In 2011, the federal government enacted a piece of legislation called An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The Act sets out various reporting duties and other regulations that apply to Internet service providers who become aware of child pornography offences. Duty to Report Internet Address Section 2 of the Act stipulates that if a person is advised, in the course of providing Internet service to the public, of an Internet Protocol (IP) address or a Uniform Resource Locator where child pornography material may be available to the public, the person must report the IP address or Uniform Resource Locator to law enforcement officials. The Act does not authorize Internet providers to seek out child pornography material. Duty to Notify Police Officer Section 3 of the Act creates a duty to notify an officer, constable or another person employed for the perseveration and maintenance of the public peace, where a person providing Internet services has reasonable grounds to believe their service is being used to commit a child pornography offence. Preservation of Computer Data Section 4 of the Act creates a duty to preserve all related computer data in the Internet providers possession for a period of 21 days after a notification is made to an officer constable or another person employed for the perseveration and maintenance of the public peace. No Disclosure Section 5 of the Act stipulates that an individual must not disclose that they have made a report under section 2 of the Act or a notification under section 3 of the Act, or disclose the contents of the report or notification, if the disclosure could prejudice a criminal investigation, whether or

By |2023-03-10T14:27:09-05:00February 25th, 2021|0 Comments

Child Pornography Penalties and Punishments

Jail Going Up - Court of Appeal 3 years ONCA upholds sentence of trial court, three years.  Trial court erred by sentencing on 2500 (execution of warrant) +500 files (initially downloaded using Downpour) 3000 files.  But the 2500 files could not be proven (were deleted and should not have been counted).  ONCA says sentence of 3 years is OK for the remaining 500 files. Quantity of Collection 500 Cat-1 files. Nature of Collection Mostly children <10 years. Many “severe”, that is, depicted sexual violence against children. Para 14 With respect to the sentence appeal, we accept that the trial judge erroneously considered that there were 2,500 files. Apart from the 500 files identified by Det. Constable Kerr and captured in the indictment, for which the Crown sought convictions, it could not be determined when the files were created, downloaded or deleted. However, as 500 files is also a very large quantity warranting a significant sentence, this error had no impact on the fitness of the sentence imposed: see R. v. Walker, 2021 ONCA 863, and R. v. Carlos, 2016 ONCA 920. Further, the trial judge appropriately considered the content of the child pornography as an aggravating factor. Accordingly, we see no reason to interfere. R. v. Brown, 2022 ONCA 516 (CanLII), at para 14. Sentencing for Possession and Make Available 2 years, 9 months make available (concurrent with 1 year on possession) 381 images/1,007 videos (at the time, the largest video collection reported in Ottawa region), very late guilty plea (eve of trial), horrific imagery. R v Bock, 2010 ONSC 3117 (CanLII) , per Henderson J.: Exceptionally large collection of videos, very late guilty plea, horrific imagery (including babies and young toddlers), the pictures and videos involved almost every imaginable sexual

By |2024-01-15T16:11:46-05:00February 25th, 2021|0 Comments