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Ontario should follow Saskatchewan's lead on revenge porn law

Ontario should follow Saskatchewan’s lead by introducing revenge porn legislation that makes it easier for victims to sue people who share their intimate images without consent, Toronto civil sexual abuse lawyer Anna Matas tells AdvocateDaily.com.

Saskatchewan’s Privacy Amendment Act, 2017, which is currently before the provincial legislature, makes it a tort for a person to distribute an intimate image of another person without consent.

“I think this is something we could do in Ontario,” says Matas, a lawyer based in the Toronto office of Lerners LLP. “The more tools we can provide to someone who is harmed in these intimate and long-lasting kinds of ways, the better.

“Publishing or sharing revenge porn is an egregious behaviour that can have a severe impact on victims, so I would welcome legislation that specifically addresses civil remedies for those affected by this crime,” she adds.

If passed, the Saskatchewan law would remove a bar from pursuing claims under the Privacy Actin Small Claims Court, allowing plaintiffs to choose between the Court of Queen’s Bench, or the small claims branch, for cases in which the damages claimed are under $30,000.

“This bill sends a strong message that this callous, criminal behaviour has consequences, and that the Government of Saskatchewan stands with the victims of this type of attack,” Justice Minister and Attorney General Don Morgan said in a statement as the bill was introduced.

The new law would also reverse the onus in such cases, forcing defendants to rebut the presumption that the distribution was made with the consent of the person depicted.

“I think that is quite a progressive provision,” Matas says. "It will be interesting to see if putting the onus on the perpetrator to prove they had consent creates a deterrent effect. And of course, a plaintiff would still have to prove that she/he suffered the damages claimed and make a case for any quantum awarded."

In the absence of a similar law in Ontario, she says victims of revenge porn still have other legal options.

In 2016, a woman was initially awarded $100,000 in damages after her ex-boyfriend posted a sexually explicit video of her on a pornography website without her consent. In a default judgment, a Superior Court judge found the case met tests for the torts of breach of confidence, intentional infliction of mental suffering, and a new tort of invasion of privacy.

The award has since been set aside to allow the woman’s former partner to defend the case, but Matas says the case still provides a roadmap for future victims.

Another option is a criminal complaint, but Matas says some may be put off by the manner in which complainants are treated in the criminal system as well as the very high burden of proof on the Crown. The prosecution must prove its case “beyond a reasonable doubt,” making it less likely that abusers will be held accountable for their misconduct than if they are sued civilly.

The lower standard of proof in a civil suit means a sexual abuse plaintiff needs to only convince a judge that her or his version of events occurred on a "balance of probabilities."

“The complainant in a criminal matter is not a party to the case, although they are a very important witness,” Matas says. “In a civil case, the plaintiff is a party to the action and also has the opportunity to be compensated for the harms that have been inflicted on them, which can be important if they need therapy or any other kind of treatment due to the damage inflicted by  the non-consensual distribution of images.”

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