REVENGE PORN LAWYERS
Revenge porn refers to one individual sharing intimate images of another person without that person’s consent. In most situations, an individual becomes a victim of revenge porn when a past sexual partner publishes intimate images that the subject may have shared willingly with the accused. The offence of Publication etc., of an Intimate Image without Consent is a relatively new offence and was added to the Code to address the increasing issue of revenge porn.
Donich Law is one of the few businesses which has defended both criminal charges related to intimate images and civil actions for damages in Ontario. The Firm often discovers privacy breaches during the production of evidence by the plaintiff, which is sometimes gathered by third parties or a spouse, and not police. This evidence is then attempted to be used against the accused, where it would have otherwise been unlawful to collect by law enforcement.
The Criminal Code outlines of the offence of Publication etc., of an Intimate Image without Consent in section 162.1(1). It states that an individual who knowingly publishes, transmits, distributes, sells, advertises or makes available an intimate image of another person knowing that person does not consent to the image being shared, or being reckless as to whether the individual consents to the image being shared is guilty of an offence.
Depending on the severity of the allegations and the harm done to the complainant, maximum sentences for a publication etc., of an intimate image without consent conviction range from two years less a day in prison and/or up to a $5,000 fine where the Crown proceeds summarily, to up to 5 years in prison if the Crown proceeds by indictment.
In 2019, the Firm represented an individual charged with extortion and publication of intimate images without consent in R. v. J.S. [2019]. The client was accused of publishing intimate images of a past sexual partner via Instagram and Snapchat. After months of Crown negotiations, the Firm was able to secure a withdrawal.
Almost all of the revenge porn allegations handled by the Firm arise from the breakdown of a relationship. The common scenario we handle is where one of the parties will release sexually explicit material, previously made on consent between the couple, on to a pornography website, such as Porn Hub. This material then circulates and is challenging to remove. The Firm has expertise in Child Pornography and Extortion allegations which can share similarities with charges of revenge porn. For more information on how to defend revenge porn specifically, click here.
Revenge Porn allegations can also be coupled with voyeurism charges, where the recording is done without consent. Trespassing at night offences include loitering, prowls and voyeurism. Trespassing at night is specifically dealt with in the Criminal Code and is defined as anyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property. The Firm secured a withdrawal of Voyeurism, where the accused posed as the owner of a Toronto Strip Club, attempting to solicit nude pictures of women in its R. v. J.R. [2015]. We frequently handle cases where the accused is alleged to have recorded women in private settings, generally with a smart phone. We also have experience defending a range of allegations where the recording is alleged to be in a public setting, including on public transit. Given the sensitive nature of these offences, the accused or complainant will often seek a publication ban during the proceeding.
The Firm is also frequently retained to broker the transfer, disposition and destruction of sex tapes and intimate images often held hostage by a bitter ex-lover. These scenarios can involve allegations of extortion and forms of coercion used when this content is held hostage.
Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.
Toronto Star: Pornhub and Revenge Porn.
Global News: Extortion Cases increased 170% from 2012 to 2018 in Canada: StatCan.
Toronto Star: New Corporate Liability for Child Pornography in Canada.
Toronto Star: Police Power and Social Media Companies.
Global News: Can an airline tell you to stop recording and delete a cellphone video?
Métro Montréal: Avec le temps chaud, il n’y a pas que le mercure qui grimpe: le nombre de cas de voyeurisme aussi.
VICE News: An Image Site is Victimizing Women and Little Can be Done.
Legal Information
Frequently Asked Questions
What are the Criminal Consequences of Committing Revenge Porn?
What are the Civil Consequences of Revenge Porn?
Can you both be Arrested and Sued for Revenge Porn?
What are the Different Standards of Proof?
Is a Recording Required for a Conviction of Voyeurism?
What are some Exemptions to Voyeuristic Recordings?
Is it an Offence to Print or Publish Voyeuristic Recordings?
Are the Motives of Someone Charged with Voyeurism Relevant?
What are some of the Penalties for Voyeurism?
What is the SOIRA s.490,012 order?
What are some of the Penalties for Trespassing at Night?
What are the Criminal Consequences for Committing Revenge Porn?
As outlined above, sharing intimate images of another person without their consent, also known as “revenge porn,” is a criminal offence in Canada. It is outlined in section 162.1(1) of the Criminal Code. The offence is relatively new to Canadian criminal law and was introduced to protect privacy interests in Canada.
An individual who shares an intimate image of another person without that person’s consent is guilty of a hybrid offence. This allows the Crown to proceed either summarily or by indictment. Where the Crown proceeds by indictment, there is no statute of limitations and charges may be laid at any point after the alleged crime is committed. This means that charges could be laid years or even decades after the alleged commission of the offence. There is a one-year statute of limitations where the Crown proceeds summarily. If more than one year has passed since the alleged incident occurred, the Crown will be forced to proceed by indictment unless the accused is willing to waive the limitation period.
An individual who is convicted of publication etc. of intimate image without consent may face a period of incarceration. Depending on whether the Crown proceeds summarily or by indictment, an offender will face a maximum of between five years and two years less a day imprisonment.
In addition to a potential jail sentence, an individual convicted of publication etc. of an intimate without consent may also be barred from accessing the internet for a period of time.
Section 162.2(1) of the Criminal Code provides that where an offender is convicted or discharged under section 730, the court may issue an order prohibiting the offender from using the Internet or another digital network, unless the offender does so in accordance with conditions set by the court. This means that the court may prohibit an offender but from using the Internet except for example, for work purposes.
What are the Civil Consequences for Revenge Porn?
In addition to being criminally charged for sharing intimate images without consent, an individual may also be sued in civil court by the individual depicted in the images. In recent years, the Ontario Superior Court of Justice has begun to recognize a new civil cause of action knows as “public disclosure of private facts”. This tort occurs when an individual shares private information about another person without that person’s consent.
The Ontario Superior Court of Justice held that an individual may be held liable for this tort if the matter they have publicized meets two conditions: (a) the publication would be highly offensive to a reasonable person and (b) the publication is not of legitimate concern to the public.
In the case of Jane Doe 464533 v. N.D., the plaintiff and defendant had been in a romantic relationship. The defendant had repeatedly pressured the plaintiff to share a sexually graphic video of herself. The plaintiff reluctantly provided the video with the agreement that it would be kept private. The defendant immediately posted the video to a pornography website. The plaintiff’s family, classmates and friends all viewed the video causing the plaintiff humiliation and emotional distress.
The Ontario Superior Court of Justice found the defendant liable for the tort of public disclosure of private facts and awarded the plaintiff $100,000.00. The court broke this amount down to $50,000.00 in general damages, $25,000.00 in punitive damages and $25,000.00 in aggravated damages.
Can I be both Arrested and Sued for Revenge Porn?
Yes. If you have published an intimate image of another person without that person’s consent you could be arrested and criminally charged as well as sued in civil court. Where an individual is both arrested and sued, there is an intersection between criminal and civil law which can complicate things.
For example, under the criminal law an individual has the right to remain silent. This right is not extended to civil court. This means that anything disclosed in civil court could potentially be used against the individual in criminal court.
What are the Different Standards of Proof?
Criminal court and civil court operate on different standards of proof. The standard of proof in criminal court is beyond a reasonable doubt, which means the court must be almost certain that the accused committed the offence as charged. The standard of proof in civil court on the other hand, is a balance of probabilities. This means the court must be at least 51% sure that the defendant committed the tort they have been sued for.
In situations where the criminal case precedes the civil case and the accused is found guilty in criminal court, the criminal court decision may be used against the accused in civil court. If an accused is found guilty in criminal court, he will almost certainly be held liable in civil court, as the civil court standard is much lower.
If you have published an intimate image of another person without that person’s consent it is important to consult with legal counsel to protect your rights. Donich Law has experience defending individual’s accused of publishing intimate images without consent in both criminal and civil court and regularly achieve favourable results for our clients.
Is a Recording Required for a Conviction of Voyeurism?
No, making a recording is only one of two ways an individual can commit voyeurism. The offence can also be committed when an individual is secretly observing.
What are some Exemptions to Voyeuristic Recordings?
Section 162(3) of the Criminal Code states that Sections 162(1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.
Is it an Offence to Print or Publish Voyeuristic Recordings?
Yes, it is an offence to print or publish voyeuristic recordings. Section 162(4) of the Criminal Code states that every one commits an offence who, knowing that a recording was obtained by the commission of an offence under Section 162(1) prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.
Are the Motives of Someone Charged with Voyeurism Relevant?
No, according to Section 162(7) of the Criminal Code the motives of an accused are irrelevant.
What are some of the Penalties for Voyeurism?
Penalties for a conviction of voyeurism will vary depending on the specific circumstances of the offence, and the characteristics of the offender and complainant, as well as the presence of any aggravating or mitigating factors.
Section 162(5) of the Criminal Code sets out that a conviction of voyeurism can result in a penalty of up to five years imprisonment when the Crown proceeds by indictment.
What is the SOIRA s.490,012 order?
A SOIRA order is an order made at sentencing pursuant to Section 490.012 of the Criminal Code for an offender to comply with the Sex Offender Information Registration Act. Orders can be made after an offender is convicted, pleads guilty or is found not criminally responsible. SOIRA orders are made after a designated sexual offence is committed. Voyeurism is a qualifying offence. The order requires offenders convicted of sexual offences to register their information in the SOIRA database. The database is accessible to police and contains addresses, descriptions and other information about convicted offenders.
Offenders are obligated to keep SOIRA information up to date for the duration of the order. Failure to do so is a criminal offence.
What are some of the Penalties for Trespassing at Night?
Penalties for a conviction of trespassing at night will vary depending on the specific circumstances of the offence, and the characteristics of the offender and complainant, as well as the presence of any aggravating or mitigating factors.
Section 177 of the Criminal Code sets out that a conviction of trespassing at night is a summary conviction offence and can result in a penalty of two years less a day imprisonment.
