Can a Person Be Charged Criminally For Uploading a Homemade Sex Tape Onto the Internet?
The Conduct of Publishing or Disseminating Private Intimate Images of a Person Without Consent to Do So Is Criminally Punishable Per Relatively New Provisions Within the Criminal Code.
Understanding the Charge of Publishing An Intimate Image Without Consent Per Section 162.1 of the Criminal Code
Images of a person that are private and intimate images should remain private unless the imaged person consents to publishing, transmitting, sale, or other distribution. of the images. Where such images are disseminated without consent, such conduct constitutes as criminal conduct and is subject to serious punishments.
Disseminating intimate images of another person, conduct sometimes referred to colloquially as revenge porn, constitutes as criminal conduct per section 162.1 of the Criminal Code, R.S.C. 1985, c. C-46, wherein it is stated:
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.
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.
(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
(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.
As shown above in section 162.1(1) of the Criminal Code, the offence of publishing an intimate image without consent may proceed as an indictable offence or as a summary conviction offence. The prosecutor chooses the process. If the case proceeds as an indictable offence, then legal representation is available from a lawyer only; however, if the case proceeds as a summary conviction offence, then either a lawyer or paralegal may represent the accused person.
Definition of Recording
Upon a first glance review of section 162.1(2) of the Criminal Code the definition of "intimate image" will be noted as stating that such "means a visual recording"; and accordingly, it may be presumed that such a meaning requires that the imagery in question consist of captured data that is capable of being stored and replayed; however, the Court of Appeal recently stated within the case of R. v. Walsh, 2021 ONCA 43 that an "intimate image" may include a one-time only live transmission such as a FaceTime communication. Specifically, in reviewing the definition of "visual recording", the Court of Appeal said:
 The accused submits that the plain meaning of "recording" implies the creation of an image that can be stored, viewed later and reproduced. This, he contends, excludes "evanescent" images that are transmitted and viewed a single time and are thereafter unavailable. He contends that to record something is to capture an event that happens at a point in time and to preserve it in a more lasting form. He argues that the Crown's interpretation of recording sidesteps its essential meaning which is that an event is preserved and available for later viewing. He points to the trial judge's comparison of a FaceTime call with a phone call to illustrate this, and says that no one thinks of a phone call as a "recording".
 In my view, the trial judge erred in her interpretation of "recording" in s. 162.1(2) and in her approach to the sufficiency of the evidence.
1. The meaning of "recording" in s. 162.1(2)
 It is trite law that the modern approach to statutory interpretation requires that "the words of an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Ltd. Partnership v. Rex,  2 S.C.R. 559,  S.C.J. No. 43, 2002 SCC 42, at para. 26.
 The starting point is to determine the ordinary meaning of the text: R. v. Wookey,  O.J. No. 4158, 2016 ONCA 611, 351 O.A.C. 14, at para. 24. At para. 25 of Wookey, quoting from Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), Pharmascience Inc. v. Binet,  2 S.C.R. 513,  S.C.J. No. 48, 2006 SCC 48, at para. 30, and Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC),  3 S.C.R. 724,  S.C.J. No. 114, at p. 735 S.C.R., this court states that ordinary meaning "refers to the reader's first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context" and is "the natural meaning which appears when the provision is simply read through". In other words, the "plain" or "ordinary" meaning of a word is not dictated by its dictionary meaning nor is it frozen in time.
 What, then, is the ordinary meaning of the text of ss. 162.1(1) and (2)? Section 162.1(1) makes it an offence for a person to knowingly disseminate an "intimate image" of a person without their consent. Section 162.1(2) provides that "intimate image" means a "visual recording of a person made by any means including a photographic, film or video recording".
 On a plain reading of ss. 162.1(1) and (2), it appears to me that the non-consensual visual sharing of an intimate image is prohibited -- regardless of whether the intimate image being shared has the "capability of reproduction". Further, the natural or ordinary meaning of "visual recording" includes a FaceTime call.
 My plain reading of these provisions begins with the observation that with traditional technology, such as a camera, the capture and display of the visual image are separate acts. But, with a livestream application such as FaceTime, the two are simultaneous. Livestream transmissions enable a caller to capture visuals (i.e., record intimate images) and share them simultaneously. Thus, a FaceTime call in which the caller's iPhone is pointed at a person is a visual recording of that person, within the meaning of s. 162.1(2), because that person's image is captured on the caller's phone and transmitted to the recipient's screen where it is displayed. How could the recipient observe the person if that person's image had not been recorded and transmitted to them? It matters not whether the recipient reproduces the person's image or could reproduce it; the recipient has seen the person's image because the caller recorded it and sent it to them. Thus, the FaceTime call is the visual recording of the person.
 In times gone by, the word "recording" may have been confined to visuals that could be reproduced and viewed at a later time or place. Photographs and videotapes are examples of that. However, five considerations militate against such a restrictive interpretation of "recording" in s. 162.1(2).
 First, the language of s. 162.1 is intentionally broad. Section 162.1(1) prohibits a wide range of conduct, both overt acts of dissemination (i.e., publishes, distributes, transmits, sells) and the facilitation of acts of dissemination (makes available or advertises). And, s. 162.1(2) provides that a visual recording of a person can be "made by any means".
 Second, FaceTime calls are directly caught by the language of s. 162.1(2), in which "intimate image" is defined to mean "a visual recording . . . including . . . a video recording" (emphasis added). As I have just explained, in a FaceTime call where the caller focuses the camera in their iPhone on a person, the caller is transmitting a video recording of that person to the recipient of the call.
 Third, there is nothing in s. 162.1 to suggest that the intimate image being shared must be capable of reproduction. The harm is in the non-consensual sharing of an intimate image -- regardless of whether the recipient of the recording (call) reproduces it or can reproduce it. Even if there are no copies and no opportunity to make them, as the sentencing court observed in R. v. B. (J.),  O.J. No. 4133, 2018 ONSC 4726 (S.C.J.), at para. 44, the act of sharing the images in the first place is an attack on the victim's privacy, basic human dignity and sense of self-worth.
 Fourth, restricting the meaning of "recording" to outdated technology -- by requiring that it be capable of reproduction -- would fail to respond to the ways in which modern technology permits sexual exploitation through the non-consensual sharing of intimate images. In so doing, it would undermine the objects of s. 162.1 and the intention of Parliament in enacting it.
 Section 162.1 is a relatively new offence. It came into effect as part of Bill C-13, Protecting Canadians from Online Crime, S.C. 2014, c. 31, enacted in 2014 and proclaimed into force on March 9, 2015. The bill -- part of the federal government's initiative against cyber-bullying -- was introduced when two young women tragically took their lives after intimate images of them had been shared online without their consent. These cases and others highlighted the growing trend to use technology as a tool of harassment and sexual exploitation, and the justice system's inability to respond because no offence existed at that time which addressed that type of conduct.
 Sexual offences are enacted to protect personal autonomy and sexual integrity of the person: R. v. Jarvis,  1 S.C.R. 488,  S.C.J. No. 10, 2019 SCC 10, at para. 122. Giving "visual recording" a broad and inclusive interpretation best accords with the objects of s. 162.1 and Parliament's intention in enacting it.
 Finally, I accept the Crown's submission that the trial judge's interpretation of s. 162.1 would base culpability on the medium used to share the intimate image, rather than on whether the conduct breached the victim's sexual integrity and privacy. This, it submits, would lead to arbitrary and unreasonable distinctions. I agree. The following example demonstrates this. A person who takes a picture of a naked woman in a changeroom and gives the photo to one friend would be guilty of an offence under s. 162.1. However, if that person livestreamed the image of the woman on a website where it can be viewed an indefinite number of times by an indefinite number of people but never saved, on the trial judge's interpretation, the person would not be guilty of an offence under s. 162.1.
 In conclusion, applying the modern principles of statutory interpretation, ss. 162.1(1) and (2) make it an offence to knowingly publish, distribute, transmit, sell, make available or advertise an intimate image of a person, without the person's consent. Intimate image means a "visual recording" of a person "made by any means". Interpreting "visual recording" broadly and in a common-sense and purposive manner, prohibits the non-consensual visual sharing of an image, if the image is sexually explicit and engages the subject's reasonable expectation of privacy. The ordinary meaning of "visual recording" does not require proof that the intimate image that was shared is capable of reproduction. Thus, a FaceTime call is captured by s. 162.1.
Sentencing Upon Conviction
As a relatively new offence, cases proceeding through to conviction and sentencing remain few; and accordingly, the available case law to summarize sentencing principles is minimal; however, in the case of R. v. J.S., 2018 ONCJ 82, the sentencing principles were carefully reviewed and applied whereas it was said:
Applicable Principles of Sentencing
 Sentencing an offender for the “publication of intimate images without consent” engages deterrence and denunciation as the primary sentencing objectives. The limited jurisprudence in our province supports that separation of the offender by way of a term of conventional incarceration will ordinarily be called for.
 Given the offending may have been informed by addiction and other challenges with mental health, rehabilitation must be considered as well. J.S. violated the trust placed in him by a domestic partner, engaging s. 718.2(a). As always, the principles of parity and proportionality must be applied.
 Since the offence provision was proclaimed in March of 2015, only a handful of reported sentencing decisions have been released in our province. It is clear that a term of custody will ordinarily be warranted.
 For example, in R. v. B.H., Justice Dorval, with some apparent reluctance, imposed a custodial term at the top end of the 30-to-90-day range submitted by the Crown. In doing so, the court observed: “Ninety days of incarceration is at the very low end of the range for this offence. I impose that sentence for the sole reason that that is the range of sentence sought by the Crown and no doubt considered by Mr. B.H. in entering a plea of guilty.” B.H. had dated the victim and secretly video recorded their sexual activity. He later posted the videos on a pornography website. He did not have a criminal record.
 Given the joint submission, I do not propose to fulsomely review the jurisprudence. I do commend the analysis of Justice Rahman in R. v. A.C. as one of the more authoritative sentencing decisions from our court to date. His Honour reviewed the legislative history of the offence provision and the limited sentencing jurisprudence available before weighing the competing considerations in arriving at a custodial sentence.
 The circumstances in A.C. can be readily distinguished from the present matter, but the analysis is resonant. A.C. pleaded guilty to the non-consensual sharing of intimate images of a former intimate partner. The victim had agreed to participate in all of the videos and photographs that formed the subject matter of the charge. Then the relationship ended.
 Without the victim’s consent, A.C. posted several of the videos and photographs on a variety of websites, including multiple sites dedicated to “revenge porn”. He often included the full name and other identifiers of the victim along with degrading descriptions of the victim and the activity captured. The Crown proceeded summarily and sought the maximum custodial sentence available of six months. The offender had no prior record.
 A.C. sought a conditional discharge, primarily reliant on the decision of Justice D.A. Harris of our court in R. v. Calpito. Justice Harris in his reasons acknowledged that the facts and disposition in that case were exceptional and that the primary applicable objectives of denunciation and deterrence could not ordinarily be satisfied by the imposition of a discharge.
 In sentencing A.C. to a five-month custodial term, Justice Rahman observed that had the Crown proceeded by indictment he would have imposed, after trial, a custodial term in the mid-reformatory range. In rejecting a non-custodial disposition, the court noted:
In my view, only a sentence of imprisonment would be proportionate to the gravity of this offence and would properly give effect to general deterrence and denunciation. In fact, I find it difficult to believe that anything other than a sentence of imprisonment could properly give effect to deterrence and denunciation in circumstances where intimate images are disseminated over the internet and where the victim is identifiable.
 In declining to impose a conditional sentence of imprisonment as an alternative, the court further noted:
To put it bluntly, I find it hard to believe that facing the prospect of house arrest would deter someone, like the offender, who is considering humiliating his former partner on the internet. I also find it hard to believe that a period of house arrest can express adequate denunciation of this extremely serious breach of … privacy.
Aggravating and Mitigating Factors
 The following aggravating factors have been established beyond a reasonable doubt:
i. Significant impact on the victim – s. 718.2(a)(iii.1): L.K. has attempted to kill herself on multiple occasions as a result of the offender’s conduct. That is the most obvious of the varied and layered consequences she continues to experience.
ii. Breach of trust: J.S. egregiously violated the trust his young girlfriend had placed in him.
iii. Repeated distribution over the objections of the victim: Upon each discovery of hidden cameras and then the online postings, L.K. directed the offender to stop. Instead of complying, J.S. continued to post her intimate images.
iv. Surreptitious recordings: The fact that the victim had consented to participating to some of the recordings is a neutral consideration on sentence. It is highly aggravating, however, that J.S. also secretly recorded their sexual activity and then posted the videos without her knowledge.
v. The breadth of the distribution: A total of 11 videos were located online of the victim engaged in sexual activity. Many of them had been viewed in excess of 10,000 times.
vi. The nature of the images: The images could not be more private. The videos displayed a variety of graphic sexual acts including oral sex and vaginal penetration. Some of the videos captured close-ups of the victim’s anal and vaginal regions.
vii. Degrading descriptions: Many of the videos and images were accompanied by graphic and humiliating descriptions drafted by J.S.
viii. Personal identifiers of the victim: The victim’s full name and contact information were displayed on some of the publicly posted images. Strangers contacted the victim.
 The following mitigating factors have been made out as well:
i. Guilty plea: Early in the proceedings, J.S. had expressed through counsel his desire to plead guilty and accept a custodial sentence of some length. While J.S. did not apologize or acknowledge the harm done by his crime, he expressed “regret”.
ii. No criminal record: J.S. is a first time offender.
Discussion and Sentence
 The sentencing jurisprudence in our province establishes that the offence of distributing intimate images without consent will commonly attract a term of conventional incarceration. Satisfaction of the identified primary sentencing objectives of deterrence and denunciation will usually require this.
 It is valuable to be reminded that the impetus behind the enactment of this offence provision was to address the tremendous human toll associated with this generally vile conduct. Victims frequently experience depression and anxiety. In notorious instances, they have killed themselves. The offenders are almost exclusively male – their victims, often girls and women.
 The inferred impact on victims is substantial and the moral responsibility of the offender will generally be high. The act involves a flagrant intrusion into the privacy and personal dignity of the victim. The accompanied intent will often involve a desire to degrade, humiliate and maintain the illusion of some control over the victim.
 The fact that the victim may have consensually participated in recording sexual activity in no way impacts or diminishes the moral responsibility of the offender. To conclude otherwise engages retrograde thinking surrounding the interplay of sex, privacy, consent and control. Where, as in this case, the offender also secretly records the sexual activity to be later distributed, the moral responsibility is dramatically heightened.
 As the Crown has proceeded by indictment, the maximum sentence for this offence is five years. These facts are among the more abhorrent that I am aware of. J.S. could well have faced a penitentiary sentence upon conviction after trial.
 I am mindful that J.S. is a first time offender and has been struggling with addiction and mental health issues. However, this was not an offence driven by impulse. Rather, it was a repeated and calculated course of action apparently designed to diminish and degrade the vulnerable victim. The consequences have been significant and lasting.
 I accept the joint submission as appropriate. J.S. will be sentenced to 18 months of custody. He will also be placed on probation for 3 years with terms identified in Appendix “A”.
Appendix “A” – R. v. J.S.
A. Keep the peace and be of good behavior.
B. Appear before the court when required to do so.
C. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.
D. Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed.
E. Live at a place approved by your probation officer and not change that address without the prior consent of your probation officer.
A. You are not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with the victim.
B. You are not to be within 500 m of the place where you know the victim to live, work, go to school, frequent or any place you know her to be.
C. You are not to possess any weapons as defined in the Criminal Code, which would include a firearm, imitation firearm, cross-bow, prohibited weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.
D. You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer for substance abuse, life skills or as directed.
E. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
F. You are not to publish, distribute, transmit, sell, make available or advertise any sexually explicit material or intimate material on the internet.
G. You are not to possess, access, publish, distribute, sell, make available or advertise any images of the victim by computer, electronic or other means.
The act of publishing an intimate image without the consent of the person depicted within the image constitutes as a criminal offence and is subject to serious penalties.