Legal Protections for TFGBV: What Laws Apply to You?

Technology-facilitated gender-based violence (TFGBV) includes many serious and harmful behaviours and is often used to perpetuate harm against women.¹ If you or someone you know is experiencing TFGBV, there are several legal options available. These options may help protect your safety, and potentially provide accountability on the part of the perpetrator. It is important to keep in mind that the law is only one way that TFGBV can potentially be addressed. For some, reporting violence to the police or beginning a lawsuit can lead to escalated violence. It is recommended you get in touch with a local anti-violence organization to consider your options while preserving your safety – See: Technology Safety and Victim/Survivor Resources. Women’s Shelters Canada has created a Technology Safety Planning Checklist and a Safety Planning Toolkit you can consult on your own or with a Victim Service Worker before pursuing legal remedies.

There is no specific law against technology-facilitated gender-based violence. Rather, many of the behaviours captured within this term such as online stalking, voyeurism, the non-consensual distribution of intimate images, and online harassment, are criminal behaviours or can form the basis of a civil claim against a perpetrator.

This document provides a general overview of the two main legal systems in Canada: the criminal justice system and the civil system, which includes family law. Which system you choose to use in response to TFGBV will impact what your role is in the legal process and what remedies are available. The document then explores two primary categories of TFGBV: harassment (including stalking, harassment, spying, and threats) and image-based abuse. More information about particular legal remedies for certain behaviours can be found in other documents in this toolkit, which are linked below.

This document and the rest of the Legal Remedies for Technology-Facilitated Gender-Based Violence toolkit are meant to provide general information: they are not an exhaustive list of all laws that could apply to all forms of TFGBV and they do not constitute legal advice. You should consider speaking to a lawyer if you want to pursue one of the legal remedies outlined in this document. See also: Legal and Victim Service Supports and Resources.

If you are unsure about the meaning of any words used in this document, please see Definitions of Legal Terms: Civil and Family Law and Definitions of Legal Terms: Criminal Law.

The criminal system involves offences set out in the Criminal Code of Canada. If a person breaks any laws set out in the Criminal Code, their behaviour can be reported to police (local police or the RCMP, depending on the location) who may investigate and decide whether a crime has been committed. The police will then report to the Crown, representing the Canadian public, who will decide whether or not to bring charges against the person. If the person (now called the “accused”) is charged with a crime by the Crown, they may plead not guilty, meaning a trial will take place, or plead guilty and proceed directly to sentencing. At a trial, the Crown and the accused put all relevant evidence before a judge or jury who decides if the accused is guilty (convicted) or innocent (acquitted). If the accused is acquitted, they are free to go. If they are convicted, they will be sentenced, meaning a judge will decide what penalty they should face for their behaviour, which can include time in prison. For definitions of some common legal terms used in criminal law, see Definitions of Legal Terms: Criminal Law.

To increase the likelihood of the person being charged, you should try to gather as much evidence as possible of the TFGBV you have experienced, including digital evidence. For more information, see the Preserving Digital Evidence Toolkit. You will want to bring any evidence you have, including digital evidence, with you when you report the crime to the police. It can be helpful to have the evidence printed out as well as having digital copies on a USB stick to give to the police. Make sure you create a copy of this evidence for yourself to keep and write down a list of the evidence that you gave to the police. It can also be helpful if you know of laws you think the perpetrator broke so you can tell the police what you think the perpetrator could be charged with. The documents in this Toolkit can inform you of the criminal laws that may apply to your situation. However, it is ultimately the responsibility of the police to know what the laws are and whether they may have been broken. The police will decide which crimes to charge the perpetrator with if there is enough evidence to do so. They may even identify some laws that you did not consider.

If you are the victim of a crime of TFGBV and choose to report the behaviour to the police, you should be aware that there is no guarantee that this will result in criminal charges against the accused, as the police or Crown might decide not to proceed. Even if they do proceed with charges, there may not be a conviction, as the accused may settle, the charges may be dropped, or they may be acquitted.

If the Crown does proceed with charges against the accused, you will not be considered a “party” to the proceeding as you would be a in civil law case (see below). You are called a “complainant” and are technically a witness to the crime. The dispute in a criminal case is between the Crown (representing the Canadian public) and the accused. You are not entitled to have a lawyer appear for you or to run your own case.² The Crown counsel is not your lawyer; they are the lawyer who represents the public interest. This means that solicitor-client privilege does not apply to your conversations with them; rather, they have a duty to disclose information you share with them to the opposing side if it is relevant. You should ask them to explain their disclosure responsibilities before you provide them with evidence.

If there is a trial, you will be called by the Crown to testify about the offence, including identifying and explaining any relevant evidence (see Submitting Evidence in Court and Authentication of Digital Evidence). You will be cross-examined by the accused or their lawyer, which can be a very difficult experience.

If the accused is found guilty, there is a chance you will be awarded a small amount of money; however, the main remedy available through the criminal justice process is the restriction of the accused’s liberty through incarceration (prison) or conditions on their future actions.

The civil system generally involves one person (the “plaintiff”) bringing a claim against another person (the “defendant”), rather than the Crown against an individual as in the criminal system. The family law system is part of the civil system because it involves two individuals in a dispute with one another, though it deals with specific types of issues and claims (such as child custody). For definitions of some common legal terms used in civil and family law, see Definitions of Legal Terms: Civil and Family Law.

While criminal laws apply across Canada, there is significant variation in civil laws across provinces and territories, so it is important that you familiarise yourself with the relevant law in your jurisdiction. Some civil remedies are governed by particular pieces of provincial or territorial legislation, such as family law or privacy law legislation. Other civil remedies are governed by what is called the “common law,” meaning the law as it has developed through previous decisions by judges in that province.

Unlike in the criminal system, in the civil system you are considered a party to a proceeding, meaning you can be represented by a lawyer or represent yourself. If you can do so, it is highly recommended you retain a lawyer to represent you in civil proceedings involving TFGBV, as the law is very complicated and representing yourself can be confusing and a significant amount of work. See: Legal and Victim Service Supports and Resources.

If you are representing yourself, you will be expected to run your case including gathering and submitting all relevant evidence, questioning witnesses, and making submissions. If you are representing yourself, you should consult the guides in the Preserving Digital Evidence Toolkit for useful information about how to handle digital evidence at trial. You may also consult the Canadian Judicial Council’s guides for self-represented litigants: Civil Law Handbook and Family Law Handbook.

Bringing a claim against someone in civil court cannot result in that person going to prison. Rather, the remedies available in a civil trial are generally limited to monetary payments (called “damages”) and/or injunctions, which are intended to stop the defendant from engaging in ongoing harmful behaviour. Other remedies may be available depending on the type of claim you bring concerning TFGBV.

TFGBV encompasses a wide range of behaviours. Most of these behaviours fall within the two key categories – harassment (including stalking, spying, and threats) and image-based abuse (including voyeurism, non-consensual distribution of intimate images [“revenge porn”], and other behaviours related to the exploitation of your image). TFGBV is any behaviour in which a perpetrator (mis)uses digital technologies to cause harm to another person. Given how much we rely on digital technologies in our daily lives, many forms of violent and harmful behaviour now have a technological component.

Perpetrators will often engage in a variety of forms of TFGBV at once, frequently in combination with “real-world” or in-person violence or intimidation. The behaviours within the categories below often overlap and the two key categories themselves may overlap. For example, if a person threatens to share your nude images online as part of a broader pattern of harassing you, this would involve both harassment and image-based abuse.

When considering a legal response to TFGBV, you should be aware that many criminal and/or civil laws may apply to the behaviours. It is helpful to seek advice and information from a victim service worker or a lawyer whenever possible. See: Technology Safety and Victim/Survivor Resources and Legal and Victim Service Supports and Resources.

Harassment, Stalking, Spying, and Threats

Some common forms of TFGBV involve perpetrators using digital technologies to stalk, harass, or threaten their targets. This behaviour often occurs in the context of an intimate partnership or after a breakup. This category of behaviour can include:

• A perpetrator constantly contacting you through calls, text messages, messages on social media, etc.
• A perpetrator making explicit or implied threats against you or your loved ones through text messages or online
• A perpetrator posting harmful information about you on social media, a blog, or website
• A perpetrator tracking your communications and/or location by installing spyware on your phone or placing a GPS tracker in your car
• A perpetrator restricting access to your digital devices, locking you out of your accounts, or interfering with your Smart Home devices
• A perpetrator impersonating you online by creating fake dating profiles or advertisements for sexual services, or by creating fake social media accounts

The behaviours listed above are just a few examples of the types of behaviours that can fall under this category of TFGBV. Any harassing, stalking, threatening, intimidating, impersonating, or other harmful behaviour that takes place online or through the perpetrator’s use of digital technologies is TFGBV.

If you have been targeted with stalking, harassment, spying, or threatening behaviours, several legal remedies could apply. The Criminal Code prohibits many forms of harassing, threatening, and extorting behaviours. Civil remedies can include suing for defamation or the intentional infliction of mental distress. For more information on your legal options, see Legal Remedies for Online Harassment, Stalking, Spying, and Threats.

If you fear for your immediate safety, you should contact the police. You may also apply for a peace bond or, if the perpetrator is a family member such as a spouse or former spouse, for a family law protection order. These orders are intended to prevent perpetrators from engaging in violent or criminal behaviours in the future. For more information, see Peace Bonds and Protection Orders for Victims of TFGBV.

Image-Based Abuse

Image-based abuse includes a wide range of behaviours involving a perpetrator recording or distributing sexualized images of their victims. This category of behaviour can include:

• A former partner posting intimate images of you online that they took or you sent to them during the relationship (sometimes called “revenge porn”)
• A perpetrator placing hidden cameras in places where you could be naked or engaged in sexual activity, such as your bedroom or bathroom
• A perpetrator threatening to distribute your intimate images unless you do something or refrain from doing something (when the demands are sexual, this behaviour is sometimes called “sextortion”)
• A perpetrator filming themselves sexually assaulting you and/or posting images of a sexual assault online

The behaviours listed above are just a few examples of the types of behaviours that can fall under this category of TFGBV. Further, there are many specific criminal laws targeting behaviours involving sexualized images of minors.

If a perpetrator has recorded you in a sexualized context without your consent or has used or is threatening to use your sexualized images against you, several legal remedies could apply. The Criminal Code prohibits the non-consensual distribution of intimate images, voyeurism (secret recording), and extortion, as well as numerous offences where a person records or distributes sexual images of a minor or attempts to coerce a minor into sexual behaviour online. Civil remedies can include suing for breaches of copyright, privacy, or confidence. For more information on your legal options, see Legal Remedies for Image-Based Abuse.

If you fear for your immediate safety or fear that someone is going to non-consensually distribute your intimate images, you should contact the police. You may also apply for a peace bond or, if the perpetrator is a family member such as a spouse or former spouse, for a family law protection order. These orders are intended to prevent perpetrators from engaging in future violent or criminal behaviours. For more information, see Peace Bonds and Protection Orders for Victims of Technology-Facilitated Gender-Based Violence.

Technology-Facilitated Gender-Based Violence (TFGBV) is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing TFGBV, you are not alone. You can use sheltersafe.ca to find a shelter/transition house near you or call/text the Kids Help Phone to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

We gratefully acknowledge Moira Aikenhead for providing expertise to update this toolkit, as well as Suzie Dunn and Rachel Sombach of The eQuality Project at the University of Ottawa for providing expertise and guidance on the creation of this information sheet.

Adapted with permission from BCSTH’s Technology Safety project, based on their resource Legal Remedies for Canadian Women Experiencing Technology Facilitated Violence.