A recent decision of the Ontario Court of Appeal serves as a reminder of how criminal activity can easily be perpetrated through the use of technology, even in a relatively private setting. In particular, the recent case of R. v. Walsh involves a section of the Criminal Code which thus far has not been frequently used to charge people with, concerning the publication or transmission of an “intimate image” of a person without that person’s consent. With today’s ever-prevalent technological landscape, two important questions spring to mind, both of which the Court had to grapple with. Namely, what constitutes an “intimate image” and what constitutes the publication, distribution, transmission or making available of such an image?

Intimate Images Defined in the Criminal Code

Section 162.1 of the Criminal Code indicates that an “intimate image” is a “visual recording of a person made by any means including a photographic, film or video recording” [Emphasis added] of a person who is nude, or is exposing his or her genitals or anus, or in the case of a woman, her breasts. It can also include someone engaged in “explicit sexual activity”. The section also contemplates context as part of its definition, as it indicates that the person who is depicted in the image would have a reasonable expectation of privacy under the circumstances at the time the visual recording is taken. This presumably means that a person who purposefully exposes themselves in a public place would not be protected under this section of the Code if someone were to share photos or video of the event.

Publication, Distribution or Transmission

S.162.1 further indicates that the intimate image has to be “knowingly” published, distributed, transmitted, sold, made available, or advertised in order for the person to be convicted for this offence. While the terminology used in this section casts a fairly wide net of possible means or ways in which an intimate image can be sent to other people, the use of the term “knowingly” means that the sender has to be cognizant that he or she is sending the intimate image to someone else or for public consumption.

In the R. v. Walsh case, the accused was said to have made video calls to various friends over the FaceTime app in which he allegedly showed them the complainant while she was naked and vomiting in his bathroom. At the initial trial, the trial judge determined that a FaceTime call did not constitute a “visual recording” for the purposes of S.161.1 of the Criminal Code and acquitted the accused on this particular charge (the accused was also charged with sexual assault, for which he was convicted at trial). The reason for the determination was that the FaceTime call wasn’t in fact “recorded” in any way. That is, the images shown during the FaceTime call could not be reproduced or shared after the call. A FaceTime call is a live transmission and cannot be played back at a later date, unlike a typical recorded transmission, broadcast or digital photograph.

Court of Appeal Examines Legislative Intent When Defining ‘Visual Recording’

The majority of the Ontario Court of Appeal disagreed with the trial judge and ruled that she erred in her interpretation of the term “recording”. In the opinion of the Court of Appeal, a FaceTime call in which the caller’s iPhone was pointed at a person constituted a visual recording of that person, within the meaning of s. 162.1(2). Although the video may not be stored, that person’s image was “captured” on the accused’s phone (and in that sense, “recorded”) and transmitted to the screens of the people he had called, where it was displayed. The Court of Appeal argued that the term “visual recording” should, in keeping with the intentions behind the section. The Court held that the section, and the term, should be given the broadest and most inclusive interpretation. Even though there was no playback ability, the intimate image of the complainant was still recorded digitally which enabled the recipients of the call to view it, which was the sort of activity that Parliament was trying to criminalize with this section.

The Court of Appeal ordered a new trial on the issue. As the Court of Appeal decision was not unanimous, the possibility of a further appeal to the Supreme Court of Canada also exists. Regardless of whether an appeal happens or what the verdict of a new trial on this issue might be, the case speaks to the importance of being cognizant of one’s activities and behaviour, including “private” calls from one person to another, as this activity is not immune or exempt from criminal charges. With technology constantly evolving and enabling new ways for members of society to interact, cases in this area can often be complex.

Contact Hicks Adams LLP in Toronto for Charges Related to the Sharing of Intimate Images

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including cases involving sexual assault or activities related to the sharing of intimate images. We defend individuals charged with a variety of offences, including assault, drug offences, fraud and homicide. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.