SELECTED CASE LAW
In 2017 ONCJ 415, Mr. V was convicted of non-consensual distribution of intimate images. Mr. V had surreptitiously taken a video of him having sex with his girlfriend, Ms. MS, during their relationship. Following a confrontation with another man, Mr. V texted a screenshot of the video recording to another man without Ms. MS’s consent, and also posted the image on Facebook. Mr. V also repeatedly sent messages to Ms. MS suggesting that there were additional images and videos. At trial the court clarified the provision, finding that images that included either nudity or sexual activity would meet the requirement of the Criminal Code. However, the Court noted that the images do not need to include sexual intercourse to meet the “sexual activity” definition. If there is evidence that the images were taken during the course of sexual activity, but may only capture the individuals’ nude in the bedroom at that moment, it will still be found to constitute sexual activity within the meaning of the provision.
The Court concluded:
I am mindful of the Supreme Court of Canada’s definitions in [R v. Sharpe] which indicate what the law does not catch such as things like photos of teenagers kissing at a summer camp and things of that sort. It is not meant to catch casual sexual contact, like touching, kissing, hugging.
When somebody is videotaping an act of sexual intercourse, that is capturing an explicit sexual activity and in this context, when somebody is publishing an image, excerpted from that, it is clear to me that the intention is to put up in public or send to a friend, in this case of this lady, to say, “I have got an image of us having intercourse. You know it and I know it.”
I do not know what other inference there can be drawn from this than that he in-tended that message be sent to her and to embarrass her by sending it to her boyfriend and putting it out publicly.
Mr. V was convicted of the offence.
Criminal Offence(s): Non-Consensual Distribution of Intimate Images