Canada: Not-So Blurred Line

Last Updated: July 12 2019
Article by Laura Emmett

In March, 2015, in recognition of the growing concern about cyber bullying and more particularly, the increasing number of incidents of “revenge porn”, the federal government made it a criminal offence to share intimate images. The recent case of R. v. JS provided a thorough review of the relevant case law dealing with this offence.

The charges stemmed from the offender’s decision to post a nude photograph of his wife in a men’s chat group at his church. The photo was posted after the couple separated. At issue was the appropriate sentence for the offence following the accused’s guilty plea.

The Court noted although the criminal charge was relatively new, the case law had begun to proliferate. In considering the nature of the offence, the Court cited the decision of R. v. AC (2017 ONCJ 317), which held:

The provision protects privacy. At its core, privacy is about a person’s ability to control access to something, whether it is private information or a private image. As in this case, someone like [the victim] may agree to have private photographs or videos taken that will not be seen by anyone apart from a romantic partner. Where someone shares an intimate image without consent, he violates the depicted person’s privacy because he has gone beyond that limited, consensual use. The more people to whom the image is exposed, the greater the invasion of privacy and the greater the harm caused to the victim.

The Court noted that the majority of the sentences for these types of cases involved a period of incarceration. However, the ultimate goal for the sentencing for this charge was denunciation and deterrence of this type of behaviour.

The Court found that this case was not on the low end of the spectrum as the intimate image was accessible to a chat group; the accused did not voluntarily remove the image; and, the victim was identifiable to viewers. The actions were designed to humiliate and degrade the victim. The most significant mitigating factor was the limited number of people in the group so it was not disseminated more widely. Although the victim had not provided a statement, the Court inferred substantial harm to the victim as a result of the actions. The Court found that an appropriate sentence was a two year suspended sentence.

Privacy rights are strengthening with every privacy case being heard in Canada, and the definition of “appropriate use” continues to be refined on a regular basis. The modern reality is that individuals will use technology for personal, private, and sometimes intimate purposes. The Court’s interpretation and application of privacy principles must continue to clarify the appropriate use of the private information and data. This case, the line is quite clear.

See R v JS, 2019 ABPC 134 (CanLII)

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