Where Does an Online Privacy Crime Actually Happen?

Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Toronto Criminal Lawyers

When someone uploads a private image to a website, the act can touch several provinces at once. The person in the images may live in one province; the alleged offender may click “upload” in another; the server may sit in a third. If the conduct is a crime, which province’s courts get to try it? In R. v. Khayata, 2026 ONSC 4786, the Ontario Superior Court of Justice confronted that question in the context of the offence of publishing an intimate image without consent and gave an answer that says a good deal about how territorial jurisdiction should work for privacy offences committed online.

01 • THE CASE IN BRIEF

Jim Khayata was charged with one count of publishing or distributing an intimate image without consent under s. 162.1 of the Criminal Code. The allegation was that, during an intimate relationship, the complainant consented to the accused taking intimate photographs of her but not to their publication, and that he later uploaded a number of those images — depicting her nude and engaged in BDSM-related activities — to a FetLife account. The complainant discovered the images online and reported the matter to police.

On an agreed statement of facts, several points were undisputed. The complainant lived in Ottawa throughout the relevant period and reported the allegations to the Ottawa Police Service. At least one of the five photographs was taken at her residence in Ottawa. FetLife is operated by a British Columbia company. Critically, there was no evidence at all about where the accused was when the images were allegedly uploaded.

That evidentiary gap is what made the case interesting. The Crown asked the court to affirm that Ontario had territorial jurisdiction to try the charge. The defence argued it did not.

02 • THE FRAMEWORK: WHEN CAN ONE PROVINCE TRY A CROSS-BORDER OFFENCE?

Territorial jurisdiction is not an element of an offence to be proved at trial. It is a precondition to trial — a preliminary question about whether the court has authority to proceed at all, and one that should ordinarily be resolved before the merits are reached. Section 478 of the Criminal Code sets the baseline rule: subject to exceptions, a court in one province cannot try an offence committed entirely in another.

The leading Ontario authority is the Court of Appeal’s decision in Bigelow, which rejected the idea that every constituent part of an offence must occur in a single province for that province to have jurisdiction. Bigelow identified three situations that can ground jurisdiction: a continuity of operation running from one province into another; the commission of an overt act within the province; or the occurrence within the province of effects flowing from acts committed elsewhere. Those categories, the court warned, are neither exhaustive nor to be applied rigidly.

Underlying all of this is a single organising test, drawn from the Supreme Court’s decision in Libman: is there a real and substantial connection between the alleged offence and the province asserting jurisdiction? Answering that requires looking at both the nature of the offence and the conduct said to constitute it, and asking whether any significant aspect of the offence occurred in the forum province.

03 • THE DEFENCE ARGUMENT: TWO SEXUAL ASSAULT PRECEDENTS

The defence leaned on two recent Ontario decisions, J.K. and Fasan, in which Ontario courts declined jurisdiction over sexual assaults alleged to have occurred in other provinces.

In J.K., the assaults were alleged to have taken place in Edmonton and Montréal. The Crown pointed to the parties’ ongoing relationship and the complainant’s experience of the aftermath in Ontario — including seeking counselling — but the court held that Ontario lacked jurisdiction. No part of the assaults occurred in Ontario, and no overt act in Ontario furthered a criminal scheme reaching into another province. The immediate harm — the violation of the complainant’s sexual integrity — happened entirely in Alberta and Quebec. Later psychological consequences felt in Ontario were not enough. Fasan reached the same result for a sexual assault said to have occurred entirely in Quebec.

The defence’s logic was straightforward: if the downstream psychological effects of a serious offence felt in Ontario were insufficient in those cases, they should be insufficient here too.

04 • WHY THE COURT DISTINGUISHED THOSE CASES

Justice Kaufman accepted that the analysis must be informed by the nature of the offence — and concluded that this is precisely what distinguishes Khayata from the sexual assault cases.

The reasoning turns on where the “gravamen,” or essential wrong, of each offence is located. For sexual assault, the gravamen is the violation of the complainant’s bodily integrity, which occurs at the time and place of the physical contact. When that contact happens entirely in another province, the core of the offence happens there, and the fact that the complainant later suffers elsewhere does not relocate the crime.

The offence under s. 162.1 is different in kind. The court noted that Parliament enacted the provision following the widely publicised deaths of Amanda Todd and Rehtaeh Parsons, and that its gravamen is the extreme invasion of privacy caused by publishing an intimate image without consent. The offence involves no physical contact. Its harms — fear and anxiety about who may see the images, distress at their circulation among family, friends, employers, or the public, reputational damage, and sometimes concern for personal safety — are bound up with the dissemination itself and with where the victim experiences its consequences.

That distinction does real work. Because the wrong in an intimate-image offence is the invasion of privacy through dissemination rather than a physical act fixed at one location, the place where the effects are felt carries far greater weight in the jurisdictional analysis. The harm is not confined to wherever the “upload” button was pressed — which, in this case, no one could even identify.

05 • THE HOLDING: TWO INDEPENDENT FOOTHOLDS IN ONTARIO

On that basis, the court found Ontario had jurisdiction and rested the conclusion on two of Bigelow‘s principles.

First, and most importantly, the effects principle. The complainant lived in Ottawa throughout the relevant period, discovered the images while in Ontario, and experienced the consequences of the alleged publication there. The court reasoned that the invasion of privacy continued wherever the complainant experienced its consequences — establishing a real and substantial connection between the alleged offence and Ontario.

Second, the court found a further connection through the overt-act and element route. Drawing on the Quebec Court of Appeal’s decision in Ibeagha, it noted that this principle can extend beyond the strict actus reus and mens rea to material facts relevant to proving an essential element at trial. Here, at least one image was undisputedly taken in Ottawa. Taking the photograph is not itself the conduct prohibited by s. 162.1, but it is a material fact in the case — capable of being relevant to identifying the accused as the person who created and later published the image, something the Crown must prove. That the fact occurred in Ontario supplied an additional territorial anchor.

The Crown’s application was granted; Ontario has jurisdiction to try the charge.

06 • WHY IT MATTERS

Khayata is a useful marker for how territorial jurisdiction adapts to offences that are, by their nature, dispersed across space. Its central move is to insist that the jurisdictional question cannot be answered by mechanical location-plotting; it depends on identifying where the essential wrong of the particular offence lands.

For contact offences like sexual assault, that wrong is anchored to a physical place, and J.K. and Fasan remain good law: downstream suffering elsewhere will not, on its own, create jurisdiction. But for offences whose harm is the dissemination of information — image-based abuse, and potentially other privacy and online offences — the ruling recognises that the harm travels with the victim and materialises wherever the images are encountered and their consequences felt. On that logic, a complainant who is targeted online is not forced to litigate in whatever province an accused happened to be sitting in, or wherever a server is housed, when the upload occurred.

The practical significance is considerable given how these cases arise. Offenders often act anonymously, platforms are frequently based elsewhere, and the origin of an upload may be unknown or unknowable — exactly the situation here. By locating jurisdiction partly in the place where the privacy invasion is experienced, the decision keeps these prosecutions viable where they might otherwise stall on a threshold technicality. It is a first-instance ruling rather than binding appellate authority, and the distinction it draws between contact and dissemination offences will no doubt be tested further. But as an account of how the Bigelow framework applies to intimate-image offences, it offers a clear and coherent answer to a question the internet keeps posing: where, in law, does an online privacy crime actually happen?

READ THE FULL DECISION HERE: R. v. Khayata, 2026 ONSC 4786

This post is a summary and commentary on a public court decision and is not legal advice. Anyone seeking advice about a specific matter should consult a lawyer.