Court Information
Ontario Court of Justice
Information No.: 998 24 12101077
Central West Region - Burlington
Parties
Between:
His Majesty the King
— and —
R.K.1
Judicial Officer and Counsel
Before: Justice Brian G. Puddington
Counsel:
- S. Hamilton, counsel for the Crown
- G. Henderson, counsel for the accused R.K.1
Heard: In Writing
Reasons for Judgment on a Directed Verdict Application
Released on October 10, 2025
FACTS
1R.K.1 is charged with one count of publishing, distributing or transmitting an intimate image of a person, to wit, his wife R.K., knowing that she did not give her consent to do so, contrary to section 162.1(1) of the Criminal Code.
2R.K. and their daughter P.K. were the only two witnesses for the Crown at this trial. They testified that they discovered that their father had opened a Snapchat account and sent various photos of R.K. to an unknown male.
3While some of those photos were of R.K. wearing clothes, there were two where she was in a state of undress. In one, she was only wearing a bra. In another, it appeared that she was completely naked with her breasts exposed. When testifying, R.K. stated that the one of her in the bra was in fact her, while the photo with the exposed breasts was fake, and was her head digitally manipulated to be on top of a naked body that was not her own.
ANALYSIS
The Directed Verdict Application
4At the close of the Crown's case, Mr. Henderson brought a motion for a directed verdict (also known as a "no-evidence" or "non-suit" motion). In making such a motion, the accused asserts that the prosecution has failed to make out a prima facie case to meet and he should therefore be acquitted without having to decide whether or not to call evidence.
5The test for a directed verdict was articulated by the Supreme Court of Canada in United States of America v. Sheppard, [1977] 2 S.C.R. 1067 (S.C.C.), where the Court held that a trial judge must decide "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". The Court elaborated on this test in R. v. Monteleone, [1987] 2 S.C.R. 154 (S.C.C.) as follows at paragraph 8:
Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.
6The existence of some evidence on every essential element will result in a dismissal of the directed verdict motion. The assessment of the evidence will vary, however, depending on whether the Crown's evidence is direct or circumstantial. Where there is direct evidence on each element of the offence, no weighing of the evidence will be required by the trial judge. Where the Crown's case involves circumstantial evidence, the trial judge must engage in a limited weighing of the evidence to determine whether the evidence can reasonably support an inference of guilt.
Section 162.1(1) – Publication, etc., of an Intimate Image Without Consent
7The offence in question in this case is contained in section 162.1(1) of the Criminal Code:
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.
8"Intimate image" is defined in section 162.1(2) 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.
9It is therefore an essential element of the offence charged in this case that the photo(s) in question be, in fact, an "intimate image". There is no issue on this application for a directed verdict with respect to whether R.K. had a reasonable expectation of privacy and retains a reasonable expectation of privacy in the image of her in a bra. Her evidence is that she was unaware of that photo being taken and did not consent to it being distributed. Obviously, in these circumstances, a person would have a reasonable expectation of privacy.
10There are two issues, therefore, for me to decide on this application.
Is the image of R.K. in her bra, which was allegedly taken surreptitiously and distributed, a photo where "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
Is the digitally manipulated image a photo where the person is nude or exposing her genital organs or breasts, thereby meeting the definition of "intimate image"
The Surreptitious Photo of R.K. in The Bra
11Exhibit 2 at the trial are Snapchat messages allegedly sent by Mr. R.K.1 to the unknown male. P.K., Mr. R.K.1's daughter, testified that she saw these images on her father's phone in what was apparently his Snapchat account. For the purposes of the directed verdict motion, the Crown has called sufficient evidence that Mr. R.K.1 "distributed" or "transmitted" the images contained in those messages. The defence, on this motion, does not appear to dispute that. This does not mean, of course, that it has been demonstrated beyond a reasonable doubt that he distributed them. It only means that the Crown has introduced enough evidence on this element of the offence to get past the motion for a directed verdict. As mentioned, the dispute arises as to whether those images are "intimate images".
12While several of the photos are of R.K. in clothing, there is one, on pages 7 and 8 of Exhibit 2, where R.K. identified herself as being in a bra in their bathroom. In that photo, her face has been concealed with scribbling over her face. Her breasts are fully covered in the photo, albeit, she clearly appears to be in a bra or at least a top that shows a significant portion of her breasts.
13Section 162.1 is still a relatively new provision, and few cases have dealt with the definition of "intimate image". Mr. Henderson, on behalf of Mr. R.K.1, provided the case of R. v. Winsor, 2024 ABCJ 5. In that case, the accused was found not guilty under this section, as the Crown had not proven that the complainant was "nude". While the accused's actions were deplorable, when he took photos of her, she was able to cover her body with clothing as she was getting dressed.
14Interestingly, the Alberta Court of Justice in Winsor found at paragraph 44 of the decision that "a photograph of someone in their underwear would not fall under the provisions of section 162.1, regardless of how much or little the underwear concealed or revealed."
15In R. v. Verner, 2017 ONCJ 415, an Ontario decision, the image in question met the definition of "intimate image", as it depicted the complainant at a time when she was having sex with the accused. She was also "nude" in the image, though you could not see her genital organs, anus or breasts. Verner is a helpful decision, in that it finds (and I agree) that the definition of "intimate image" in section 162.1(2)(a) is not conjunctive, but rather disjunctive. The Court finds at paragraph 43:
I read this section disjunctively. In other words, the offence could be committed in one of three ways; where the person is nude; where the person's genital organ, anal region or breasts are exposed; or where they have engaged in explicit sexual activity.
16More recently, the Quebec Court of Appeal in R. v. Malogrosz, 2025 QCCA 667 (a decision I could only find in French), dealt with the definition of an intimate image. In that case, the complainant took a selfie of herself posing in front of a mirror and showing her upper body, from the bottom of her chin to the top of her thighs, completely undressed. Her right arm is positioned to hide her breasts, while her left hand holds the phone she used to photograph herself. The lighting makes it impossible to discern her genitals.
17The Quebec Court of Appeal found that, whatever the applicable test, the Court had no trouble concluding that it has been met because, from the perspective of the potential violation of intimacy, integrity, autonomy, and dignity of the person at issue, there is no material difference between an image showing her completely bare and the image in dispute showing her to be bare down to her upper thighs. The judge was therefore right to find that the image at issue was an intimate image.
18In Malogrosz, the complainant was completely nude, but covering herself. It appears from that decision, therefore, that the photograph met the definition of intimate image because the complainant was "nude" in the photo.
19R.K. is not nude in the photo, nor is she engaged in explicit sexual activity. The question that remains, then, is whether her breasts are "exposed" for the purpose of the definition. I find that they are not.
20In my view, while taking a photo of someone, without their knowledge in their underwear and sending it to another person is disgusting and disgraceful, it does not meet the clear definition of "intimate image" as outlined in section 162.1 of the Criminal Code. Had Parliament intended the definition to include photos or videos of people in their underwear, it would not have been so specific in its definition as to require the person to be nude or to have their genitals or breasts exposed.
21It is also clear from the reading of the definition that the word "exposed" is meant to mean "without clothing". If the definition were interpreted too broadly, to include situations where the breasts or genitals are partially clothed, then it becomes difficult to understand where the criminal liability starts and where it ends. For example, a low-cut shirt or bikini may expose part of the breasts. Would these be considered intimate images, whereas a tight shirt or full piece bathing suit would not? This level of ambiguity is not appropriate or workable for an offence that attracts a potential criminal record or jail time. It is for this reason that a strict reading of the section is required. "Exposed", therefore, should be read to mean that the body parts at issue are bare and not covered by any clothing.
22Given that R.K. is not nude in the photo, nor are her breasts exposed, the photo in this case does not meet the specific definition of "intimate image" required by Parliament.
The Digitally Altered Photo
23As noted, there was also a photo in Exhibit 2 where R.K.'s head was placed on a nude body that was not hers.
24This photo similarly does not meet the definition of "intimate image". The reason being, in short, because it is not her nude body and, it is not her breasts – both of which are necessary to meet that definition.
25If this type of photo were meant to be captured by this section, Parliament would have specifically done so.
26An image of a person's actual exposed genitals or breasts or naked body carries with it a specific level of integrity and privacy. This is not to say that a fake image does not cause harm and embarrassment, but that harm is not captured by the current provisions under section 162.1. Again, it is clear from the definition of intimate image that Parliament set out to protect "the person" from having nude photos of themselves distributed, or having "his or her" genital organs or anal region or "her" breasts made public without their consent.
27Parliament did not seek to capture fake images in their definition of "intimate image". If they had, they would not have used the words "the person" or "his or her".
28Given that the photo in question is clearly not a photo of R.K.'s nude body, or her breasts, the photo does not fall within the definition of intimate image.
29None of this is to say that creating and distributing these fake images is not morally reprehensible and, frankly, obscene. It may be that Parliament will turn its mind to criminalizing this conduct in the future. I will note that in the first reading of the proposed Online Harms Act, an Act that has not become law, the drafters proposed defining "intimate content communicated without consent" as:
(a) a visual recording, such as a photographic, film or video recording, in which a person is nude or is exposing their sexual organs or anal region or is engaged in explicit sexual activity, if it is reasonable to suspect that
(i) the person had a reasonable expectation of privacy at the time of the recording, and
(ii) the person does not consent to the recording being communicated; and
(b) a visual recording, such as a photographic, film or video recording, that falsely presents in a reasonably convincing manner a person as being nude or exposing their sexual organs or anal region or engaged in explicit sexual activity, including a deepfake that presents a person in that manner, if it is reasonable to suspect that the person does not consent to the recording being communicated. (Emphasis added).
30This proposed language appears to be, at least in part, an acknowledgment by Parliament that the legislation as currently contained in section 162.1(2) does not address fake images.
31Parliament may also expand the offence of distributing intimate images to include the non-consensual distribution of people in their underwear. But as I already found, as the section currently stands, it specifically requires the person to be nude or for the breasts to be "exposed". For the reasons given, neither of these apply to the photo of R.K. in her bra.
CONCLUSION
32On this motion for a directed verdict, I find that the Crown has not shown some evidence of an important element of the offence – that the images in question were "intimate images" as defined in the section. It may be that the proper charge in this case, with respect to R.K. in her bra, would have been a charge of voyeurism pursuant to section 162 of the Criminal Code. But Mr. R.K.1 was not charged with that offence, and there is nothing to suggest that voyeurism is a lesser and included offence of distributing intimate images under section 162.1.
33While there is some evidence that photos were sent under disturbing circumstances, those photos are not captured by the definition of "intimate image" as it currently stands in the Criminal Code, and therefore there was no evidence called by the Crown in this case upon which a reasonable jury properly instructed could return a verdict of guilty.
34I will conclude by saying that nothing in these reasons should be read as saying that R.K. did not experience an embarrassing and humiliating event. While Mr. R.K.1 remains innocent and it has not been determined he had anything to do with the images in question, the fact remains that the photos somehow exist, and R.K. had to endure viewing and describing them in a courtroom full of people. Those photos may have also made their way into the public domain. She was emotional in court, and rightfully so.
35While I am sympathetic to her, that sympathy cannot play any role in my judgment. I must apply the law dispassionately, and not try to shoehorn images into a definition simply because I find the photographs deplorable.
36The application for a directed verdict is granted and Mr. R.K.1 is found not guilty.
Released: October 10, 2025
Justice B.G. Puddington