SELECTED CASE LAW
BRITISH COLUMBIA:
In 2016 BCPC 400, Mr. P received a suspended sentence with 2-years of probation after pleading guilty to distributing an intimate image without consent. Mr. P also pleaded guilty to breaching a recognizance. The Crown dropped more serious charges against Mr. P in light of his two guilty pleas.
Mr. P and Ms. S were in an on-again, off-again relationship. At the time of the office, Mr. P had been sending multiple messages to Ms. S via electronic means, which she was rejecting. On the evening he committed the offence, Mr. P waited for Ms. S in her driveway late at night. They drove away together, and the Court wrote that, “It is unclear as to all that happened in that car, although both parties were later found to have some physical injuries.”[1] During the altercation in the car, Mr. P used his phone to take blurry photographs of Ms. S’ breasts. The Court wrote that these photos “clearly showed [Ms. S’] lack of consent.”[2] Mr. P then sent copies of the photos to two friends, along with instructions to save the photos for later.
Noting that non-consensual distribution of intimate images can cause significant emotional trauma, particularly when the victim is a young woman, the Court found that the paramount sentencing objectives were denunciation and general deterrence.[3] Considering proportionality, the Court wrote:
[P’s] behavior came at a time when he was very frustrated and angered by seemingly mixed signals – a putting off of communication by Ms. S. without a certain end to the relationship. […] As his counsel rightly points out, [P’s] frustration and anger is no excuse for his behavior. However, I find the picture taking was a rash decision made in that context at that moment, rather than a well-planned action. Forwarding the pictures to his two friends shows some planning but nothing beyond that transmission has occurred.
[…]
The rashness of that action, pictures taken with a cell phone during an interaction in a car has, perhaps only fortuitously, led to low quality pictures with limited identifiable features, such that the likelihood of future transmission is much reduced. The existence of a transmitted image to forever have a potential for further transmission is a feature of this offence that is aggravating.
[…]
[W]hile the gravity of the offence in general is significant, the circumstances of this particular case are less egregious than, for example, a case involving significant planning and forethought and resulting in a transmission of identifiable intimate images widely distributed on the internet.[4]
The Court also found that, because Ms. S did not submit a Victim Impact Statement, the long-term impact of P’s offence was unclear, however, the court noted that transmission of these types of images has resulted in “significant emotional trauma to victims.”[5] Other mitigating factors on sentencing included the fact that the offender was 22, had no criminal record, pleaded guilty, and presented good prospects for rehabilitation. The Court ultimately concluded that the intimate images offence warranted a suspended sentence, while P’s breach of a recognizance necessitated a conditional discharge with 1-year probation.
[1] 2016 BCPC 400 at para 5.
[2] 2016 BCPC 400
[3] 2016 BCPC 400 (“there has been significant harm caused as a result of the type of behavior that gives rise to this offence. […] Where such conduct includes cyber-bullying, in which the victim is further tormented by the receivers or recipients of those images, the result has even been tragic, with young women seemingly taking their own lives as a result” at para 5).
[4] 2016 BCPC 400 at paras 12-15.
[5] 2016 BCPC 400 at paras 9.
Criminal Offence(s): Non-Consensual Sharing of Intimate Images