Criminal Law: Intimate Images (s. 162.1) - Synthetic Media Defense (Pre-Bill C-16)

How do you prove the image is synthetic?: The defence must utilize independent digital forensic analysts to perform deep metadata carving. Analysts examine the image EXIF data, generation artifacts, and modifying software signatures (e.g., Stable Diffusion, Midjourney) to conclusively demonstrate the image was computationally generated, not photographically captured.

Jurisdiction: Federal criminal law applied through provincial courts across Canada.

The Process at a Glance: The primary focus is establishing the synthetic nature of the media. The defence extracts raw metadata from the Crown's disclosure and commissions an expert report verifying the AI generation. A formal resolution meeting is held with the Crown, presenting the forensic findings and relying on pre-Bill C-16 jurisprudence to seek a withdrawal of the charge prior to trial.

Key Legislation and Case Law: Relies on the statutory interpretation of Section 162.1 Criminal Code prior to Bill C-16 amendments. Key precedents include R. v. R.K.1, 2025 ONCJ 542 (Ontario Court of Justice) and R. v. MSK, 2026 NSPC 12 (Nova Scotia Provincial Court, March 2026), which held that AI-generated sexually explicit images made from photos of the complainants' faces were not visual recordings under the unamended provision.

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