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Pornography Offences: Intimate Image Penalties & Defences

So I’ll just talk briefly now about penalties and defenses to the charge of distribution of intimate images. Now there’s no mandatory minimum for distribution of intimate images, however that being said the Crown in my experience almost always seeks jail, and if the case is very good then it becomes about convincing a judge why my client should not go to jail and receive a noncustodial sentence. There are several cases in Ontario where there have been discharges for that type of behaviour because often this is just a one-off for people, it’s such an easy offense, you have, you have a couple nudes of an ex on your phone, the moment you jokingly send them to a friend, or do something where you are sharing that image, you have committed an offense and it’s taken very seriously by the courts. The general rule is it is eligible for a custodial sentence but I’ve been able to keep many of my clients out of jail and in some cases discharged, meaning left without a record. So in terms of defenses I can tell you that there is a specific definition of what an intimate image is. Now often police will lay the charge without opening up the Criminal Code and checking on what the definition actually is, I won’t get into the specifics of what the definition is but let’s put it this way, if someone could be featured, if the photo could be featured in some men’s magazine that is available to anybody, it’s probably not an intimate image. There’s some very specific criteria for an intimate image, so often it’s about showing that it’s it’s not an intimate image and then the Crown in many cases will withdraw the charge. Another defense that I thought about was, it had to do with the reasonable expectation of privacy, so I’ve had cases where someone is up in arms because another person has shared a nude photo, but it turns out that original complainant shared the nude photo with about 20 other people. It has to be shown and  proven that there is a reasonable expectation of privacy in that photo or in the surrounding circumstances, and that you know, this isn’t something that has been published before or has been exhibited to the public in any way.


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