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How to Defend Allegations of Publishing an Intimate Image Without Consent
Since 2015, publishing an intimate image of someone else without their permission is a crime in Canada. Section 162.1 of the Criminal Code captures all ways in which intimate images may be shared, including through physical delivery, social networking, email, or other means by publishing, distributing, transmitting, selling, making available or advertising an intimate image of another person knowing that the person depicted in the image did not give their consent to that conduct.
Allegations of publishing intimate images can have serious consequences, including criminal charges and the possibility of imprisonment.
The Criminal Code of Canada defines the offence of publishing an intimate image in section 162.1, which states that anyone who intentionally publishes an intimate image of another person without their consent can be charged with an offence. An intimate image is defined as any visual recording of a person who is nude, partially nude, or engaged in sexual activity, where the person depicted had a reasonable expectation of privacy at the time the image was taken.
Our lawyers have defended allegations of publishing or distributing an intimate image in all corners of the province and often appear in courts across the GTA in addition to the Toronto courthouses including Newmarket, Oshawa, Brampton, and Milton.
Our firm is repeatedly recognized as one of the country's best criminal defence law firms — named among Canada's Top Criminal Law Boutiques by Canadian Lawyer Magazine, and ranked by Best Lawyers among the nation's leading criminal defence and appellate law firms. We are one of only a handful of Canadian criminal defence firms honoured by The Globe and Mail as one of Canada's Best Law Firms for 2026, and we are frequent winners in the Toronto Star Readers' Choice Awards for Best Law Firm and Best Legal Services.
Daniel Brown, Lead Counsel, is the author of Prosecuting and Defending Sexual Offence Cases, a widely cited textbook relied upon by judges, prosecutors, and defence lawyers across Canada. Designated as a certified criminal law specialist, Daniel has successfully defended clients facing intimate image charges across Ontario. Learn more about Daniel's text.
Frequently Asked Questions about Publishing An Intimate Image Without Consent:
What types of images will be considered intimate images?
Is the crime more serious when the person depicted in the intimate image is under 18 years of age?
What if the person depicted in the image was recorded while exposing themselves in public?
What types of images will be considered intimate images?
What defences are available for transmitting an intimate image without consent?
What types of sentences are available for transmitting an intimate image without consent?
What types of images will be considered intimate images?
An "intimate image" does not include photos that are simply embarrassing or unflattering. The term "intimate images" is intended to refer to images that relate to the core of a person's privacy interest. These images often depict explicit sexual activity or nudity or partial nudity that is captured on film or video consensually. An "intimate image" is defined as a visual recording of a person made by any means including a photographic, film or video recording, in which the person engaged in any of the following situations:
- the person is nude
- the person is exposing their genital organs, anal region or breasts
- the person is engaged in explicit sexual activity
Is the crime more serious when the person depicted in the intimate image is under 18 years of age?
In cases where the intimate image depicts a person under the age of 18 engaged in explicit sexual activity or the dominant purpose of the recording is the depiction for a sexual purpose of that person's sexual organs or anal region, the image constitutes child pornography and is captured by the Criminal Code of Canada's child pornography provisions found in section 163.1.
What if the person depicted in the image was recorded while exposing themselves in public?
At the time of the recording, the person being recorded must be in circumstances that gave rise to a reasonable expectation of privacy before the person charged with publishing the image can be convicted of the crime.
What defences are available for transmitting an intimate image without consent?
If you are facing an allegation of publishing an intimate image, there are several potential defences that may be available. One possible defence is that you did not publish the image intentionally. If you can demonstrate that you did not intend to publish the image, you may be able to avoid a conviction under the Criminal Code.
Another possible defence is that you had the consent of the person depicted in the image. If the person in the image gave you explicit consent to publish the image, you may be able to avoid a conviction under the Criminal Code. However, it is important to note that consent must be freely given and cannot be obtained through coercion or deception.
A third possible defence is that the image was not intimate or private in nature. If the image in question does not meet the legal definition of an intimate image, you may be able to avoid a conviction under the Criminal Code.
A fourth possible defence is that the conduct that forms the subject matter of the charge serves the public good and does not extend beyond what serves the public good.
A person charged can also raise the issue that the image was inadvertently shared as opposed to intentionally published or dispute that they sent the intimate photo.
It is important to note that the burden of proof is on the prosecution to prove that you intentionally published an intimate image without the consent of the person depicted. If the prosecution cannot prove these elements beyond a reasonable doubt, you may be able to successfully defend against the allegation.
A criminal defence lawyer familiar with these cases can review the evidence and advise on the strongest available defence.
What types of sentences are available for publishing an intimate image without consent?
A conviction for publishing an intimate image in Canada can result in serious consequences. The Criminal Code of Canada classifies the offence as a hybrid offence, which means that it can be prosecuted as either an indictable offence or a summary offence, depending on the severity of the offence and the discretion of the prosecutor.
If convicted on indictment, the maximum penalty is five years in prison. If prosecuted by summary conviction, the maximum penalty is 2 years in jail, a fine of up to $5,000, or both.
In addition to the possibility of imprisonment and fines, a conviction for publishing an intimate image can also have a significant impact on a person's reputation, relationships, and future employment opportunities.
A conviction may also result in a criminal record, which can have long-lasting consequences, such as difficulty finding employment, travel restrictions, and loss of certain rights and privileges.
The consequences of a conviction can vary depending on the specific circumstances of the case, the nature of the offence, and other factors.
In addition to any other punishment or condition that may be imposed by the court, someone convicted of publishing an intimate image may also be subject to an order prohibiting them from using the Internet or other digital network for life.
Will a person convicted of publishing an intimate image without consent be placed on a sexual offender registry?
Publishing an intimate image without consent is not one of the many sexual offences that can trigger a sexual offender registry order.
Related Sexual Offences
- Sexual Assault: The most common sexual offence in the Criminal Code.
- Sexual Offender Registry: Learn about registration requirements and duration.
- Criminal Harassment: Often charged alongside intimate image allegations.
- Domestic Assault: Intimate image charges frequently arise in domestic contexts.
- Bail Hearings: We handle bail hearings and detention reviews for all criminal charges.
- Criminal Appeals: Learn more about appealing a conviction or sentence.
If you or someone you know is facing an allegation of publishing an intimate image, speak with a criminal defence lawyer as soon as possible.
Contact Daniel Brown Law at (416) 297-7200 for a confidential consultation.