consent – BC Human Rights Law

Last Monday, March 6, 2023, our Attorney General Niki Sharma gave first reading to the Intimate Images Protection Act, a bill that enables British Columbia to reclaim control over their intimate images online.

The Attorney General began her introduction of the Bill by pointing out that it can be normal for intimate, consenting partners to share nude or nearly nude sexualized images. However, she stated, when those images are shared non-consensually, “it is a devastating form of sexualized violence that disproportionately impacts young people, women, girls and gender-diverse people.” Distributing intimate images without consent strips a person of their privacy and autonomy, and the consequences can be severe, far-reaching, and long-lasting.

The proposed Intimate Images Protection Act would give persons who have experienced the harm of having their intimate images distributed without consent the ability to stop the distribution by applying for an expedited intimate image protection order from BC’s Civil Resolution Tribunal or Supreme Court. If the applicant for an order advises the tribunal or court that they are the person in the image and that they do not consent to the image being shared, the tribunal or court can order that the person who distributed the image destroy and delete it, and make all reasonable efforts to make the image unavailable to others. The tribunal or court can also order that any “internet intermediaries” (such as google, onlyfans, etc) remove the image, delete or destroy it, and de-index it from internet search engines.

And when it comes to consent, there is a provision in the Bill which affirms that consent can be revoked. Even if at one time, the person in the image told the distributor they consented to the image being shared, the legislation affirms the ongoing nature of consent – it can always be revoked. If you consented years ago to your image being shared and you now want it taken down from the internet, that is your right. You need only advise the distributor of your image and the tribunal that you do not consent to it being shared.

The Bill makes it unlawful not only to share intimate images without consent, but to threaten to share those images. If someone is threatening to distribute a person’s intimate image without their consent, that person can also apply for an order that the one making the threats refrain from sharing the image and delete and destroy the image.

Orders made by the tribunal or court are binding on whoever they are directed at. If the order is made at the civil resolution tribunal, it can be filed at the Supreme Court and enforceable as if it is an order of the Supreme Court. That means those who do not obey these orders could end up in contempt of court, which carries serious legal repercussions.

Privacy is of course a concern with this legislation. Thus, in most cases, there is an automatic publication ban provision for applicants aimed at providing reassurance that taking legal action will not result in their name being shared publicly. Distributors of intimate images are not protected from the publication ban unless they are a minor or the court or tribunal sees other reasons for protecting their identity.

Provisions in the Bill allow persons who have had their intimate images distributed non-consensually or received threats that their image will be distributed to apply to the tribunal or court for damages. That means that if the legislation comes into force, you can claim that a distributor of your intimate image pay you compensation for having done so. You can also claim compensation if they only threaten to distribute the image

One interesting thing about the legislation is that if it comes into force, it will be retrospective. Wrongdoers are on notice as of last Monday that their conduct is unlawful if they are distributing intimate images non-consensually. Those depicted in images will be able to apply for orders after the legislation comes into force for any wrongdoer conduct that is occurring right now. The Attorney General stated the following about this: “people who distribute or threaten to distribute intimate images without consent are on notice that they will face new legal consequences even if the wrongful conduct happens before the legislation comes into force.”

Since the Bill has been introduced for First Reading by the Attorney General, it is likely that it will actually come into force. New legislation in BC needs to go through a first, second, and third reading at the legislative assembly before it receives royal assent and comes into force. Sometimes this process only takes a few weeks, sometimes it can take longer. Here’s hoping it comes into force soon.

In reasons released on June 26, 2020, the BC Human Rights Tribunal awarded a woman nearly $45,000 in damages after she was sexually assaulted by a man who employed her for cleaning services in his home.

The events occurred on October 17, 2017. The case turned on whether the Respondent JS’s conduct towards the Complainant MP was unwelcome (their identities were anonymized by the Tribunal). The evidence about both parties was at odds and they were the only witnesses to the events, so JS and MP’s credibility was a major issue in the case. JS was an 87-year-old man who immigrated to Canada as a youth and owned a house where he lived with his wife until her death in 2013 (paragraph 27). He also owned a second home abroad. MP was a middle-aged woman who immigrated to Canada with her husband in 2009 and eventually began working as a house cleaner.

Tribunal Member Emily Ohler stated at paragraph 3 of her decision that at the hearing, she heard extensive evidence about ongoing sexual relations between the parties prior to October 17, 2017. In JS’s response, he asserted that the Complainant MP had consented to sexual contact with him in exchange for money over the course of years. In response to this evidence, the tribunal stated as follows at paragraph 4:

I would like to acknowledge the issues that arise from seeking to defend against sexual assault allegations on the basis of prior sexual history. Evidence of a complainant’s prior sexual history to argue a greater propensity to consent to the encounter at issue is presumptively inadmissible because of its reliance on myths and stereotypes: R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577, R. v. Barton, 2019 SCC 33 [Seaboyer].

While Tribunal Member Emily Ohler recognized that the rules of evidence in the named court cases did not apply to the Tribunal, she noted that the myths and stereotypes referred to in those court cases are similar to three myths and strereotypes recently identified by the Tribunal regarding a sexual harassment complaint in The Employee v. The University and another (No. 2), 2020 BCHRT 12. Those myths and stereotypes were as follows, per paragraph 4:

First, a lack of protest. The Tribunal said at para. 178, “[i]t is not necessary for a complainant to expressly object to the conduct and the law recognizes that a person’s behaviour “may be tolerated and yet unwelcome at the same time”: Mahmoodi, para. 141.” Second, a delay in reporting. The Tribunal observed at para. 179, “I acknowledge that non‐reporting is a stereotype that privileges complainants who resist and report immediately. … A person may choose not to report for a variety of reasons including fear of negative job‐related consequences, not being believed, attacks on their reputation, or the difficult nature of the investigations: Hastie.” Third, participation in prior behaviour. At para. 180, the Tribunal rejected an argument suggesting “a pattern of consent”, saying that such evidence does not support “a finding that the Employee welcomed the conduct, that she is less worthy of belief, or that it is unreasonable to know that the conduct would be unwelcome.”

Consent always needs to be obtained on an ongoing basis. Prior consent does not amount to current consent and is no defence for sexual assault.

Ultimately, the Tribunal made the following findings of fact:

a. JS had a friendly relationship with MP and her family. This included periodic visits
to each other’s houses; a handful of outings together; and MP and her family
sometimes turning to JS for favours.

b. Around 2015, JS began touching MP in a sexual way that was unwelcome. At the
same time, he warned her that if she said anything or stopped working for him,
he would tell her Husband and break up her family.

c. One day, in response to this continuing treatment, MP told JS that she would no
longer return to work for him. After a few weeks of MP not attending the House,
JS visited MP’s Husband to tell him that MP had stopped working for him and ask
the Husband to speak with her. MP reasonably viewed this as a signal that JS
would make good on his threats to tell her Husband about what had been going
on. MP returned to work.

d. The unwelcome sexual contact continued. On October 27, 2017, just before JS
left for overseas, he sexually assaulted her. At this time, MP decided she had
enough and told him she would not be returning to work for him.

e. Once JS left for overseas, MP’s Husband noticed her phone logs showed frequent
telephone calls with JS. When he questioned her, she told him the entire story.
MP and her Husband cut off contact with JS.

f. JS’s conduct has had a lasting impact on MP, leaving her depressed and less able
to engage with work and her family life.

According to MP’s evidence, the unwelcome touching started when JS would brush up against her as she was changing the garbage, for example. Then he asked her for hugs and if she said no, he would hug her from behind. Then, when she was changing the sheets on his bed, he would approach her and push or pull her by the waist on the bed and put his legs over hers when she would try to retreat. He would grab her and grope her, tell her to be quiet, and say that he only wanted to “have fun.” She said that he would try to convince her to have sex with him by complaining that his other cleaners in his home abroad would do it (paras 64 to 73).

Around 2015 or 2016, MP took a break from working for JS as a result of the unwelcome sexual contact. She returned after JS’s visit to her husband, as noted above. The sexual contact and JS’s force escalated, with him forcing himself upon her and then giving her extra money afterwards. The Tribunal made the following findings of fact about the October 27, 2017 events at para 112:

On a balance of probabilities, on the whole of the evidence, I find that it is more likely than not that on October 27, 2017, JS pushed MP onto the bed, put his hands under her clothing, and touched her in a sexual way that she did not want. I find that it is more likely than not that JS touched MP’s breasts, put his fingers into her vagina, and put her hand on his penis. I find that after this encounter, MP told JS that she would not return to work for him when he got back from abroad.

As a result of all of this, MP attended counselling and was diagnosed with depression and PTSD. The sexual assaults impacted her marriage, her relationship with her children, and her work. She stopped working, had suicidal ideations, and retreated from her family and community (para 201).

The Tribunal made the following awards:

$4,300 to replace the income MP would have earned from JS but for the discrimination;
$49.98 for antidepressant medication;
$106.50 for MP’s parking expenses to attend the hearing; and
$40,000 for injury to dignity, feelings, and self-respect

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