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revenge porn and DeepFakes

Crime Statistics

The unauthorized sharing of private, intimate images and videos can happen in different scenarios involving adults and children, such as relationship conflicts and cyberbullying. When the relationship ends, one party might maliciously share these images with the other’s family, friends, employers, or post them online as a means of retaliation or seeking revenge against their former partner.

A new wave of exploitation and child sexual abuse is beginning with the rise of Artificial Intelligence. We can expect DeepFakes and DeepNudes to be weaponized and the law may not be fully able to protect people. Law enforcement AI could be the only solution capable of addressing this problem.

Ex-Partners that have Threatened Revenge Porn
Incidents where the Victim could not be Identified
Threats of Revenge Porn that are Executed
Child Pornography Cases Discovered in 2021

Our Experience

The Firm represented an individual charged with extortion, criminal harassment, and publication etc., of intimate images without consent in the case of R. v. A.C. [2024]. The accused was charged after sending repeated online messages to a woman who had communicated to him that she did not wish to be contacted. She further alleged that the accused had shared intimate images of her online and threatened to share more if she did not communicate with him. After the complainant reported the matter to law enforcement, they got a search warrant for the accused’s residence and seized several electronic devices. The Firm conducted a detailed analysis of the material found on the laptop and determined that the images did not meet the definition of an intimate image. The Firm uncovered various other procedural weaknesses with the Crown’s case and used them to secure a withdrawal of all charges.

In the Firm’s File No. 42****2 it defended one of Ontario’s few revenge porn civil proceedings with hundreds of thousands of dollars in damages being sought. There were allegations of distributing intimate images and videos to a group of individuals in a private chat. Revenge porn can quickly circulate and be difficult to stop once its release, almost like a small fire. The file was litigated in Ontario for several years, covering both novel legal issues and new developments in forensic data used as evidence. Between the two teams of lawyers, we are able to show a breach of the accused privacy rights which was unlawfully committed. This development along with the procedural problems enabled the Firm to work together with counsel for the complainant, resolving the litigation for both parties.

Frequently Asked Questions

What is Revenge Porn?

This is a popular term used to describe the sharing of sexually intimate or explicit images that are either stolen, shared or otherwise distributed without the consent of the person(s) in the images. Along with a victim’s personal images, it is not uncommon for other personal information to be shared as well, such as their name, address or place of work. Any individual could be a victim to this, however, women are more likely to be targeted than men. As there is stigma and embarrassment surrounding this act, many individuals will often stay quiet or adhere to the offenders demands in order to have the images removed.

Under the Criminal Code of Canada, section 162.1(1) deals with this offence. It states that it is a criminal offence to publish, transmit, distribute, sell, advertise or make available an intimate image of another person without that person’s consent. Publication, etc., of an intimate image without consent is a hybrid offence. This means the Crown may elect to proceed summarily or by indictment, depending on the nature and severity of the offence, as well as when the offence occurred. Where the Crown elects to proceed by indictment the accused will face enhanced penalties upon conviction.

What is an Intimate Image?

Section 162.1(2) of the Criminal Code provides a definition of intimate image. Typically, this is a picture or recording of someone in which they are either nude, partially nude or engaged in explicit sexual activity. Usually, the circumstances for these images or recordings are that the individual made them under the reasonable expectation that they would be private. What truly encompasses an “intimate image” is a question of interpretation, as the Criminal Code specifies that if there is no depiction of explicit sexual activity, the individual must be exposing his or her genitals or breasts to fit the definition.

It is also important to note that an intimate image can be in permanent form, such as a printed or digital photo, or video, but can also be a disappearing image such as a Snapchat or Facetime call. If these images are kept and shared on websites, to other people, or are sold, then this is a breach of the expected reasonable privacy.

Internet Child Exploitation is a Global Problem

Donich Law - International Child Pornography Investigations we have Defended

What are the Penalties for Revenge Porn?

This is a hybrid offence, and with that the Crown can choose whether they want to pursue the case by indictment or summarily. If the Crown decides to proceed by indictment, then the offender will face a maximum sentence of five years’ imprisonment. If prosecuted by summary conviction, the maximum penalty is two years less a day. In R. v. Mikhail (2023), the offender made video recordings of the women at GoodLife Fitness for his own personal use and sexual gratification, but also spread videos which focused on the women’s breasts and buttocks on Pornhub. The Crown proceeded with indictment. However, he was sentenced to 15 months in jail, followed by a two years period of probation.

This is a secondary designated offence under section 487.04 of the Criminal Code, meaning that the Crown can ask the court for a DNA order upon sentencing. Ultimately, is up to the court whether they issue the DNA order or not. Both the defence and the Crown can make submissions at sentencing of why a DNA order should or should not be made. In Mikhail, J.P.P. Fiorucci J. also ordered the Mikhail to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis, to be used in accordance with the DNA Identification Act.

Will I be a Sex Offender if I am Convicted of Revenge Porn?

Revenge porn, or the distribution, sharing, publishing, selling or other means of making available an intimate image or recording without an individual’s consent, is a secondary designated offence under section 487.04 of the Criminal Code. This means that issuing certain ancillary orders, including under the Sex Offender Information Registration Act (or SOIRA) is not mandatory, rather it is discretionary. To place an offender on the registry, a Crown prosecutor needs to apply for a “SOIRA order”, meaning the Crown has the discretion of asking the Court to issue the SOIRA order in a case dealing with revenge porn.

After this, the defence and Crown will make submissions on why the SOIRA order should or should not be made. Ultimately it is up to the court to consider whether they will issue it. In R. v. C.D.B. (2013), the case dealt with an incorrectly made SOIRA order that was to be for 20 years long. It was held here that the Court of Appeal of British Columbia had jurisdiction to review and correct the defective SOIRA order that had been made pursuant to section 490.012(1) of the Criminal Code.

Online Sex Offence are on the Rise in Canada

Can I be Sued for Revenge Porn?

Yes. A victim of revenge porn or whose intimate images have been shared can essentially take this matter to the police to have the accused arrested – potentially facing criminal charges, as noted above. However, in the civil sense, a victim can also sue the offender for damages. Several provinces across Canada, amended privacy laws to make it easier for victims to take civil action and sue perpetrators for compensation.

Both criminal and civil actions can happen at the same time. In criminal court, the standard to meet is “beyond a reasonable doubt”, meaning the judge is almost certain that the accused committed the crime. In civil court it is only “on a balance of probabilities”, which means more than likely (i.e., more than 50% sure). If the accused loses in criminal court, that decision could be used against them in civil court, since the standard of proof in criminal court is much higher than in what it is in civil court.

In a recent case, a Saskatchewan judge awarded $160,000 under new revenge porn laws. The Court of King’s Bench in Saskatchewan ordered Daylan Heidel to pay his ex-partner $160,000, the largest sum ever awarded in a revenge porn case in Canada, for uploading nude photographs and sex videos of her (and other partners) to pornography websites.

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Recent Cases

R. v. Wilson, 2019 ONCJ 277

In the Ontario Court of Justice case of R. v. Wilson, Mr. Wilson was found guilty of various offences, including publishing an intimate image of his partner. The court acknowledged that publishing an intimate image or what is otherwise commonly known as “revenge porn”, has become “a growing and deeply disturbing phenomenon” (at para 22). The court reiterated that section 162.1 of the Criminal Code makes it an offence to knowingly publish, distribute, transmit, sell, make available or advertise an intimate image of a person without their consent. In making a decision, the hybrid nature of this offence was considered as well.

In coming to a conclusion, the court put an emphasis on the seriousness of the offence. “[I]t betrays the fundamental trust between the victim, who may have originally consented to the taking of the image because she trusted the person and she never imagined the day when her body would be displayed for others to see, copied, downloaded and shared over the internet.” (at para 24). This indicates the morality aspect of this crime as well as how it has long lasting effects on victims and their image in society. Mr. Wilson was sentenced to six months in jail, with conditional sentences for his other offences. He was also under an ancillary order of DNA.

R. v. Ha, 2023 ONCJ 75

In the Ontario Court of Justice case of R. v. Ha, Mr. Ha pled guilty to one count or distributing intimate images. The victim in this case was involved in a dysfunctional relationship with Mr. Ha. After they broke up, he posted 10 videos of them having sex on an adult pornography website. The victim’s name was attached to the videos. The videos in question here were originally made with the victim’s consent using Mr. Ha’s phone and he was the only person who had access to them. It was clear that she did not give him or any one else, permission to distribute the videos online. Mr. Ha was sentenced to jail.

The court considered character factors of Mr. Ha. The court acknowledged that he was a well-educated engineer and never offended before this, however, this would not take away from the fact that the victim had been humiliated across the web. “When she [the victim] learned about the videos three years after the relationship ended…she described having to work through feelings of humiliation, disgust, shame and hopelessness.” (at para 19). The court notes the importance of the relevant sections in the Criminal Code dealing with revenge porn and summarizes that “[i]n today’s digital age, the psychological damage caused by the dissemination on the internet of multiple videos depicting the victim by name in the act of intercourse is incalculable” – once again confirming the determinantal effects on distributing intimate images online without permission.

R. v. Walsh, 2021 ONCA 43

In the Ontario Court of Appeal case of R. v. Walsh, the accused was charged under section 162.1 of the Criminal Code, because he transmitted an intimate image without consent. The accused did this by making FaceTime calls to his friends while the complainant was naked and throwing up in the bathroom. The court goes on to elaborate on this section, especially the definition of an intimate image.

The Crown argued that “recording” must be read in the context of the harm that section 162.1 was enacted to address: sexual exploitation committed through technology, including cyberbullying and revenge porn. The trial judge acquitted. The Court of Appeal followed by stating that the accused’s alleged actions would have grossly violated the complainant’s dignity and that the accused would have been answerable to charges, however, “the elements of section 162.1 were not made out.” The Crown needed to prove the elements of the offence. It needed to provide evidence, which it did not.

The court states some important points “exposing a person to the view of others is different than placing a recording that is capable of publication in the hands of third parties” – in connection with the FaceTime call. A recording can be viewed an infinite number of times, by an unlimited amount of people, but a live stream transmission (i.e., the call) cannot be. “[i]t is not irrational or arbitrary for the criminal law to differentiate between them.” (at para 186).

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.