NCDII & Canada's
Criminal Code

There are currently two Canadian Criminal Code (“CC”) provisions that were enacted to protect Canadians’ right to intimate privacy in light of emerging technologies: (1) voyeurism; and (2) the publication of intimate images without consent. Below, we discuss these two offences in turn, which both relate to the need to protect a specific, core privacy interest related to sexual integrity.

Disclaimer: This information is general in nature and does not constitute legal advice. We strongly recommend consulting with a lawyer to get legal advice about your specific situation.

Voyeurism

Summary:

The CC’s voyeurism provisions can be found under section 162 and require that the accused surreptitiously observed or recorded a person, in circumstances that give rise to a reasonable expectation of privacy, in one of the following circumstances:

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

The term “visual recording” includes a photographic, film or video recording made by any means and pursuant to subsection (4) of this provision, it is an offence to print, copy, publish, distribute circulate, sell, or otherwise make available the recording.

Anyone found guilty of either recording or distributing (etc.) as described above is either (a) guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or (b) guilty of an offence punishable on summary conviction (a.k.a. a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both).

Notably, the concept of a “reasonable expectation of privacy” has received significant judicial analysis in the context of section 8 of the Canadian Charter of Rights and Freedoms (the right to be secure against unreasonable search and seizure). However, Parliament has not provided any direction as to the meaning of “circumstances giving rise to a reasonable expectation of privacy” in relation to this offence. As case law develops in this area, we will obtain a better idea of the types of situations under which victims will be considered to have a reasonable expectation of privacy in the context of voyeurism offences.

For more information about how this provision has been interpreted in Canadian jurisprudence thus far, please see our Case Law section.

CC Provision:

Voyeurism

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

Definition of visual recording

(2) In this section, visual recording includes a photographic, film or video recording made by any means.

Exemption

(3) Paragraphs (1)(a) and (b) do not apply to a peace officer who, under the authority of a warrant issued under section 487.01, is carrying out any activity referred to in those paragraphs.

Printing, publication, etc., of voyeuristic recordings

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1), prints, copies, publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available.

Punishment

(5) Every one who commits an offence under subsection (1) or (4)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Defence

(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.

Question of law, motives

(7) For the purposes of subsection (6),

(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

Publication of an intimate image without consent

Summary:

While the CC’s voyeurism provisions described above sanction instances where an accused surreptitiously observes or records a person under certain circumstances, they do not cover instances where non-voyeuristic sexualized recordings of an individual are distributed without the consent of that individual. The recognition of this gap in our laws is what gave rise to the amendment of the CC to include section 162.1 – the provision that deals with the non-consensual distribution of intimate images (“NCDII”).

The NCDII offence provides that anyone who knowingly publishes, distributes, transmits, or otherwise makes available an intimate image of a person, knowing that the person in the image did not provide consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty of that offence.

Notably, the term “intimate image” is defined as a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

the definition of "intimate image" refers to images that relate to the core of a person’s privacy interest and not just those images that are simply embarrassing or unflattering.

For more information about how this provision has been interpreted in Canadian jurisprudence thus far, please see our Case Law section.

CC Provision:

Publication, etc., of an intimate image without consent

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

Defence

(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.

Question of fact and law, motives

(4) For the purposes of subsection (3),

(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

Prohibition order

162.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection 162.1(1), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

Duration of prohibition

(2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.

Court may vary order

(3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.

Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or

(b) an offence punishable on summary conviction.

NCDII & Canada's Criminal Code

Voyeurism

Publication of an intimate image without consent

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NCDII & Canada's
Criminal Code