Submitting nude photos as evidence in family disputes could result in criminal charges: case

While it may be necessary to submit personal photographs and videos as evidence in a family dispute to show that a parent’s activities potentially threaten a child’s wellbeing, nude pictures will rarely be relevant, a recent court decision highlights.

A recent case as where a father tried to use “revenge porn” to protect his access to his children, but ended up facing possible criminal charges, shows how the inclusion of such photos will often backfire, wrote lawyers at Mincher Koeman LLP in a blog post.

“While he did not publish these photos on a website or send them to friends, he did send them to several people with the intent they would form part of the record in a public hearing,” said the blog post. “It remains to be seen whether any charges will follow, but parents should be cautioned to avoid these tactics in their own cases.”

In Law Society of Alberta v Herrington, 2021 ABLS 9, the father retained a lawyer practising in Sherwood Park, Alberta to represent him in a family law dispute with contact and parenting time issues relating to his children. The father’s lawyer, who was trying to negotiate a shared parenting regime and to prevent the mother from leaving the province with the children, drafted an emergency application and affidavit, which included text messages between the former common law partners but no photographs.

While the lawyer was out of the office, the father added exhibits to the affidavit which included explicit and nude photos of the mother. The lawyer learned about the additional exhibits in the afternoon preceding the emergency application scheduled for the next morning, discussed the matter with the lawyers in her office, then decided to include the pictures because she did not want to alter the sworn affidavit.

After the mother’s side was served the affidavit, the parties agreed to black out the nude pictures. The court then ordered the expungement of the affidavit and the refiling of the affidavit with redacted photographs and awarded costs of $250 in favour of the mother.

In a disciplinary proceeding, the father’s lawyer admitted her guilt in bringing the administration of justice into disrepute by filing the affidavit with inappropriate images and in failing to offer legal services to the standard of a competent lawyer. She acknowledged that this error, which led to the client spending additional expense and time, was deserving of sanction under s. 49 of the Legal Profession Act, RSA 2000, c L-8.

Counsel for the Law Society of Alberta submitted that the inclusion of the explicit and nude photographs potentially violated s. 162.1(1) of the Criminal Code, which states that one who knowingly and non-consensual publishes an intimate image is guilty of an offence regardless of motive, unless the accused falls under the “public good” defence.

The hearing committee, accepting the lawyer’s statement of admitted facts and admissions of guilt under s. 60 of the Legal Profession Act, found that she was guilty of the admitted conduct and deserving of a reprimand.

The committee ordered the lawyer to pay costs of $5,407.50 within six months and referred the matter to the Solicitor General under s. 78(6) of the Act, given that there were reasonable and probable grounds that the lawyer went against s. 162.1(1) of the Criminal Code and given that the committee was not responsible for deciding whether the lawyer complied with the “public good” defence.

The committee recognized that, although the lawyer was not blameless, this was a novel situation that placed her in a difficult situation. The committee noted that the lawyer had admitted that she should have resolved the matter differently, but also noted her reasoning that she was challenged by the circumstances, including her client’s alteration of the affidavit on short notice and her inability to revise the affidavit on time because the client lived out of town.

The committee, which described her as appearing to be “a capable lawyer who made a poor choice,” found that her conduct had negatively affected the mother specifically but not the public generally. The committee, determining that the lawyer had learned that her conduct was inappropriate during the hearing process and the reprimand, ruled that she did not need to “bear the brunt of general deterrence for the sake of the profession.”

CBC News, which reported on the proceedings, said that neither the Office of Solicitor General nor the lawyer’s firm responded immediately to their request for comment.