R. v. Khayata, 2026 ONSC 4786

CITATION: R. v. Khayata, 2026 ONSC 4786

COURT FILE NO.: 25-1147957-A

DATE: 20260818

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Khayata

BEFORE: The Honourable Justice A. Kaufman

COUNSEL: David Rodgers, Counsel for the Crown

Kathleen Kealy, Counsel for Mr. Khayata

HEARD: August 11, 2026

Ruling on Jurisdiction

[1] The accused, Jim Khayata, is charged with one count of publishing or distributing intimate images without consent, contrary to s. 162.1 of the Criminal Code.[1] The charge arises from allegations that, during an intimate relationship between the accused and the complainant, the complainant consented to the accused taking intimate photographs of her, but she did not consent to the publication of those photographs. It is alleged that the accused subsequently uploaded a number of intimate images of the complainant to a FetLife social media account. The images allegedly depicted the complainant nude and engaged in BDSM-related activities. The complainant discovered the images on the website on May 22, 2025 and reported the matter to police.

[2] The parties filed an agreed statement of facts. It is undisputed that the complainant resided in Ottawa throughout the period relevant to the charge and when she reported the allegations to the Ottawa Police Service. The accused took five photographs of the complainant, at least one of which was taken at the complainant's residence in Ottawa. FetLife is owned by BitLove Inc., a corporation based in British Columbia. There is no evidence before the court concerning the location from which the accused allegedly uploaded the images.

[3] The Crown moves for an order affirming that this court has territorial jurisdiction to try the charge. The Crown submits that there is a real and substantial connection between the alleged offence and Ontario. In support of that position, the Crown relies on the complainant's residence in Ottawa throughout the relevant period, the fact that at least one of the images was taken in Ottawa, and the fact that the alleged effects of the publication were experienced by the complainant in Ontario. The issue on this application is whether those circumstances establish a sufficient territorial connection to Ontario to permit the matter to proceed to trial before this court.

[4] Territorial jurisdiction is not an element of the offence. Rather, it is a precondition to a trial on the merits. It is a preliminary issue that concerns the authority of a court to proceed and, where possible, should be resolved before evidence is called on the substantive charge.[2]

[5] Section 478 of the Criminal Code provides that, subject to any exceptions contained in the Code, a court in one province shall not try an offence committed entirely in another province.

[6] The leading Ontario authority on territorial jurisdiction is R. v. Bigelow.[3] In that case, the Court of Appeal considered whether Ontario had jurisdiction to try an offence where aspects of the alleged conduct occurred in Alberta. In rejecting the accused's jurisdictional challenge, the court emphasized that territorial jurisdiction is not confined to circumstances in which every constituent aspect of an offence occurs within a single province.

[7] The Court of Appeal held that territorial jurisdiction may be established where there is: (i) a continuity of operation extending from one province into another; (ii) the commission of an overt act within the province; or (iii) the occurrence within the province of effects resulting from acts committed elsewhere. The court cautioned, however, that these categories are not exhaustive and should not be applied in a "rigid and exclusionary" manner.

[8] The inquiry is whether there is a real and substantial connection between the alleged offence and the province asserting jurisdiction. This requires consideration of both the nature of the offence and the conduct said to constitute it. The question is whether any element or significant aspect of the offence occurred in the forum province such that the exercise of jurisdiction is justified. [4]

[9] The accused relies on the recent cases of R. v. J.K.[5] and R. v. Fasan [6] to argue that Ontario lacks territorial jurisdiction. In J.K., the accused was charged with two sexual assaults alleged to have occurred in Edmonton, Alberta, and Montréal, Quebec. Although the Crown argued that there was a real and substantial connection to Ontario arising from the parties' ongoing relationship, and the complainant's experience of the consequences of the assaults in Ontario, the court concluded that Ontario lacked jurisdiction over those counts.

[10] Rees J. held that no part of the alleged sexual assaults occurred in Ontario and that no overt act committed in Ontario was referable to, or in furtherance of, a criminal scheme extending into another province. The court further held that the fact that the complainant later experienced psychological consequences of the alleged assaults in Ontario, including seeking counselling, was insufficient to establish jurisdiction. The immediate effects of the alleged offences, namely the violation of the complainant's sexual integrity, were experienced entirely in Alberta and Quebec.

[11] Somji J. reached a similar conclusion in Fasan. In that case, the court held that Ontario lacked jurisdiction over an allegation of sexual assault said to have occurred entirely in Quebec. The court concluded that there was no real and substantial connection between the offence and Ontario sufficient to ground the exercise of territorial jurisdiction.

[12] In my view, J.K. and Fasan are distinguishable. As Rees J. observed, the territorial jurisdiction analysis must be informed by the nature of the offence in issue. In the case of sexual assault, the gravamen of the offence is the violation of the complainant's bodily integrity. The courts in J.K. and Fasan concluded that those violations occurred entirely in another province. Although the complainants later experienced psychological consequences of the alleged assaults in Ontario, those subsequent consequences were insufficient to establish a real and substantial connection between the offences and Ontario.

[13] The offence alleged in the present case is of a different character. Parliament enacted s. 162.1 of the Criminal Code following the well publicized deaths by suicide of Amanda Todd and Rehteah Parsons. The gravamen of the offence is the extreme invasion of a person's privacy through the publication or distribution of an intimate image without consent. Subsection 162.1(2)(b) of the Criminal Code requires, as an element of the offence, that the victim have, at the time of the recording, a reasonable expectation of privacy.

[14] The offence of publishing or distributing an intimate image without consent is fundamentally an invasion of personal privacy and autonomy. Unlike sexual assault, the offence does not involve physical contact. Nevertheless, the non-consensual dissemination of intimate images can cause profound harm. Such harms may include fear and anxiety arising from the widespread availability of the images, concern that they may be viewed by family members, friends, employers, or members of the public, significant emotional and psychological distress, and damage to reputation and personal relationships. Where identifying information accompanies the images, concerns for personal safety may also arise.

[15] Unlike a sexual assault, the harmful effects of which are ordinarily experienced at the time and place of the physical violation, the offence created by s. 162.1 contemplates the dissemination of an image and the resulting invasion of privacy. The location where those effects are experienced assume greater significance in the territorial jurisdiction analysis. Unlike the sexual assaults at issue in J.K. and Fasan, the harmful effects of the alleged offence were not confined to the location where the images were uploaded.

[16] In my view, Ontario may assume territorial jurisdiction over this prosecution on the basis of the third principle identified in Bigelow, namely, the occurrence within the province of effects resulting from acts committed elsewhere.

[17] In the present case, the complainant resided in Ottawa throughout the relevant period, discovered the images while in Ontario, and experienced the effects of the alleged publication in Ontario. The alleged invasion of privacy continued wherever the complainant experienced the consequences of the publication. Those facts establish a real and substantial connection between the alleged offence and Ontario, sufficient to ground territorial jurisdiction.

[18] In addition, Bigelow recognizes that a province may assume jurisdiction where an element of the offence has occurred within that province. In Ibeagha, the Quebec Court of Appeal interpreted this principle as extending beyond the actus reus and mens rea of the offence to include "matters of fact that could be relevant to the proof of an essential element at trial".[7]

[19] In the present case, it is undisputed that at least one of the images was taken by the accused at the complainant's residence in Ottawa. While the taking of the image is not itself the conduct prohibited by s. 162.1 of the Criminal Code, it is a material fact forming part of the factual matrix underlying the charge. In particular, it is capable of being relevant to the identification of the accused as the person responsible for the creation and subsequent publication of the image, a matter that the Crown must prove at trial. Applying the reasoning in Ibeagha, the occurrence of that material fact in Ontario provides a further territorial connection between the alleged offence and this province.

[20] For the foregoing reasons, the Crown's application is granted. I find that Ontario has territorial jurisdiction over this prosecution.

A. Kaufman J.

Date: August 19, 2026