The Non-Consensual Sharing of Intimate Images: Young McGill Student Receives Absolute Discharge

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On Wednesday January 31st 2018, Radio-Canada journalist Geneviève Garon reported on the trial of 19-yr old McGill student Ezra Cohen. In 2016, when he was 18 years of age, Cohen filmed his sexual relations with three minors, respectively. This occurred without their consent, as did his sharing of the low quality footage with nine of his friends.

At Québec’s provincial court, Cohen pleaded guilty to the offense of sharing an intimate image without the subject’s consent (s.162.1(1)). This relatively new offence was introduced to the Criminal Code through the Harper government’s Protecting Canadians from Online Crime Act (2014). The Act, commonly referred to as “lawful access legislation”, has been strongly criticized as unnecessarily sacrificing privacy protection by increasing police ability to seize personal, online information and encouraging telecommunications companies to give data to police. However, the amendments to s.162 create a much-needed offence to fill a gap in Canadian criminal law; as the title of the Act indicates, the Internet has given rise to many new varieties of crime, including so-called “revenge porn”.

In statements to the court, two of the women shared how Cohen’s crime had affected their personal, emotional, and social lives:

“What you did is a violation of our bodies, our trust, our rights and our humanity,” [translation], wrote one.

According to Radio-Canada (the Cour du Québec has yet to publish the case), ultimately, Cohen was granted an absolute discharge, as suggested by both Crown and defense council.

The offence of sharing an intimate image without consent does not come with a mandatory minimum penalty. It is a “hybrid” offence, meaning that it can be prosecuted by indictment or by summary conviction. The presiding judge may order a discharge under s.730 of the Criminal Code through which a guilty party may avoid a conviction if doing so is in the best interests of the accused and not contrary to the public interest. Cohen received an absolute discharge which will appear on his criminal record for one year. A discharge is not a finding of innocence, in fact it is the opposite. However, neither is it a conviction.

During a time when sexual assault and harassment are finally making headlines as the epidemic that they truly are, do judges with sentencing discretion and Crown counsel with prosecutorial discretion, have a responsibility, in whatever way they can within our current, ill-suited criminal justice system, to increase access to justice for survivors of sexual harassment?

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.

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