SELECTED CASE LAW
ONTARIO:
In 2018 ONCJ 82, Mr. S, a 30-year-old man, was dating Ms. K, a 19-year-old woman. During their relationship, they had consensually filmed some of their sexual activity. Ms. K became uncomfortable with the filming and declined to engage in further recordings. Later, she discovered hidden cameras and cellphones in Mr. S’s bedroom that were used to surreptitiously film their sexual activity, she also discovered that Mr. S had posted some of the videos on a pornography site along with her full name. Ms. K Googled herself and found several videos associated with her full name were posted on pornography sites. Mr. S promised to take the videos down, but did not. Ms. K received a Facebook messenger message from someone in Europe who had seen the videos. Without Ms. K’s knowledge, Mr. S later placed an escort advertisement on a well-known escort website that included several images of the victim, her full name, phone number and a comment that Ms. K was “into anything”. Ms. K received over 300 calls and messages responding to the ad. Another person contacted her about another escort advertisement on a second escort website. Ms. K reported Mr. S to the police, who discovered 11 sexual vide-os of Ms. K and Mr. S online, with Ms. K’s name associated. The images had been viewed over 10,000 times.
The Court noted the severe impact this had on Ms. K, noting her victim impact statement:
She has been devastated by this offence and has tried to commit suicide on several occasions. She has been diagnosed with several psychiatric conditions, including depression and anxiety.
Since ending the relationship with the offender, L.K. has achieved a degree of sobriety. She is concerned about the prospect of relapsing, and has added addiction counselling to the host of commitments she has undertaken to address her physical and mental health.
L.K. has been plagued by feelings of loneliness and self-loathing and is struggling to carry on. She lives with thoughts of suicide on a daily basis. She observed: “I’ve been at constant battle with my own thoughts and feelings eating away at me until there’s nothing left. Like a disease with no cure.”[1]
The Court noted multiple aggravating factors including the significant impact on the victim, the breach of trust, the continued distribution of the videos and images over the objections of the victim, the fact that some of the recordings had been filmed surreptitiously, the breadth of the distribution, the graphic nature of the images, the degrading descriptions attached to the images, and the personal identifiers that were published about the victim. The Court stated that in most cases of non-consensual distribution of intimate images, a conviction will typically at-tract incarceration.
Noting the gendered elements of the crime, “offenders are almost exclusively male – their victims, often girls and women”, the Court also noted that:
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.[2]
Mr. S was sentenced to 18 months’ incarceration, 3 years’ of probation, including orders that he have no contact with the victim, stay 500 metres away from places where the victim frequents or is known to be, not possess weapons, to attend programming; not to publish, distribute, transmit, sell, make available or advertise any sexually explicit material or intimate mate-rial on the internet; and not to possess, access, publish, distribute, sell, make available or advertise any images of the victim by computer, electronic or other means.
[1] 2018 ONCJ 82 at paras 17-19.
[2] 2018 ONCJ 82 at para 35.
Criminal Offence(s): Non-Consensual Sharing of Intimate Images