Are Deepfake Images Illegal in Canada?
Deepfake images are not automatically illegal in Canada. The key question is not simply whether AI was used. The important questions are what the image depicts, who is depicted, what was done with it, and why it was shared.
A deepfake is generally an AI-generated or AI-altered image, video, or audio clip that makes it appear as though a real person said or did something they did not actually say or do. In Canada, there is currently no blanket Criminal Code offence that criminalizes the creation of all deepfakes. However, deepfakes can still lead to serious criminal charges depending on the circumstances. That is especially true when the content involves a person under 18, is used to harass or threaten someone, or is shared as part of an extortion attempt.
Non-Consensual Sexual Deepfakes of Adults
One of the most difficult legal issues is whether a fake sexual image of an adult falls under Canada’s existing intimate image laws.
Section 162.1 of the Criminal Code makes it an offence to knowingly publish, distribute, transmit, sell, make available, or advertise an intimate image of a person without that person’s consent, or while being reckless about whether they consented. The offence carries a maximum sentence of five years imprisonment if prosecuted by indictment (Criminal Code, RSC 1985, c C-46, s 162.1).
However, the definition of “intimate image” still refers to a “visual recording of a person” made by any means, in circumstances where the person had and retained a reasonable expectation of privacy (Criminal Code, RSC 1985, c C-46, s 162.1(2)). That wording creates a problem for deepfakes. A sexual deepfake may use a real person’s face or likeness, but the image itself may not be a real recording of that person’s body.
In R v MSK, 2026 NSPC 12, the Nova Scotia Provincial Court considered whether AI-generated sexual deepfakes could fall within the current definition of an intimate image under section 162.1. The court recognized the harm caused by the images, but found that the current wording of the offence could not simply be stretched to cover AI-generated deepfakes.
This does not mean that sexual deepfakes are risk-free. It means that, under the law as it currently stands, the prosecution of adult sexual deepfakes may depend on other Criminal Code offences, such as criminal harassment, extortion, indecent communications, harassing communications, or other charges, depending on the facts.
Deepfakes Involving People Under 18
The legal analysis is very different when the image or video depicts a person under 18 in a prohibited sexual context.
Section 163.1 of the Criminal Code now uses the term child sexual abuse and exploitation material. The definition includes visual representations, whether or not made by electronic or mechanical means, that show or depict a person who is, or is depicted as being, under 18 in prohibited sexual circumstances (Criminal Code, RSC 1985, c C-46, s 163.1).
That means AI-generated or manipulated images involving minors can still lead to serious charges. A person may be charged for making, distributing, transmitting, making available, possessing, or accessing child sexual abuse and exploitation material.
Making or distributing this material can carry a maximum sentence of 14 years’ imprisonment. Possessing or accessing it can carry a maximum sentence of 10 years imprisonment, depending on how the offence is prosecuted (Criminal Code, RSC 1985, c C-46, s 163.1).
In other words, the fact that an image is “fake” or AI-generated does not make it lawful if it depicts a person under 18 in a prohibited sexual context.
Criminal Harassment and Deepfakes
Even where a deepfake does not fall under the intimate image provisions, it may still lead to a criminal harassment charge.
Criminal harassment can occur where a person, without lawful authority, knows that another person is being harassed, or is reckless as to whether they are being harassed, and engages in prohibited conduct that causes that person to reasonably fear for their safety or the safety of someone known to them. Prohibited conduct can include repeatedly communicating with someone, watching or besetting certain places, or engaging in threatening conduct. Criminal harassment carries a maximum sentence of 10 years imprisonment if prosecuted by indictment (Criminal Code, RSC 1985, c C-46, s 264).
In a deepfake case, this could include situations where someone repeatedly sends AI-generated sexual images to the person depicted, posts them online to intimidate or humiliate them, sends them to friends, family members, classmates, or coworkers, or threatens to keep releasing them.
The Crown would look at the full context, including the accused person’s conduct, the complainant’s reaction, whether the conduct was repeated, and whether the conduct could reasonably cause fear.
Extortion, Threats, and Sextortion
Deepfakes can also be used in an extortion allegation.
Extortion occurs where a person uses threats, accusations, menaces, or violence, without reasonable justification or excuse, and with the intent to obtain something from another person. The “something” being demanded need not be money. It could include images, personal information, silence, continued communication, or some other action. Extortion carries a maximum sentence of life imprisonment (Criminal Code, RSC 1985, c C-46, s 346).
For example, if someone creates or possesses a deepfake and threatens to release it unless the person depicted does what they demand, the issue may no longer be just the image. The threat itself may constitute a serious criminal charge.
Depending on the facts, police may also consider charges related to false information, indecent communications, or harassing communications. Section 372 of the Criminal Code criminalizes, among other things, knowingly conveying false information with intent to injure or alarm a person, making indecent communications with intent to alarm or annoy, and repeatedly communicating with intent to harass (Criminal Code, RSC 1985, c C-46, s 372).
What If the Image Was Shared “As a Joke”?
Calling something a joke does not automatically prevent criminal charges.
Intent matters, but it is not the only factor. Police and Crown prosecutors may also look at what the image depicted, who received it, whether the person depicted was under 18, whether the accused knew or was reckless about the effect on the person depicted, whether the image was sent repeatedly, and whether the communication could be interpreted as threatening, alarming, or harassing.
If the image involves a person under 18 in a prohibited sexual context, “it was only a joke” is not a defence to creating, possessing, accessing, or distributing child sexual abuse and exploitation material (Criminal Code, RSC 1985, c C-46, s 163.1).
If the image involves an adult, the analysis depends on the surrounding circumstances. A single AI-generated image may not automatically result in a criminal charge, but repeated sharing, threatening use, targeted messaging, or distribution designed to humiliate or intimidate someone can create criminal exposure.
Can Someone Be Charged If They Did Not Create the Deepfake?
Yes. In some cases, a person can be charged even if they did not create the image.
For child sexual abuse and exploitation material, the Criminal Code separately criminalizes making, distributing, transmitting, making available, possessing, and accessing the material. A person who shares or possesses prohibited material may face charges even if someone else originally generated it (Criminal Code, RSC 1985, c C-46, s 163.1).
For adult deepfakes, distribution may still matter. Even if the current intimate image provision does not clearly capture all AI-generated adult sexual deepfakes, sharing the content could still become relevant to criminal harassment, extortion, indecent communications, harassing communications, or other allegations, depending on the facts.
Can Someone Be Charged for Possessing Deepfake Images?
Possession depends heavily on what the image depicts.
If the image depicts child sexual abuse and exploitation material, possession and accessing are both criminal offences (Criminal Code, RSC 1985, c C-46, s 163.1).
For adult sexual deepfakes, simply possessing an AI-generated image of an adult is not currently treated the same way as possessing child sexual abuse and exploitation material. However, possession may still become important evidence if police allege that the images were created, stored, sent, posted, threatened, or used to harass or extort someone.
How Police Investigate Deepfake Cases
Police investigations into deepfake cases often begin the same way as many other online criminal investigations: with a complaint, screenshots, social media messages, web links, saved conversations, or copies of images sent or posted.
Where the investigation becomes more technical is in determining who created the image, who controlled the account that shared it, and what tools or devices may have been used. Police may seek production orders for records from websites, apps, or social media platforms. They may also seek warrants to search phones, computers, cloud accounts, or other devices.
People sometimes assume that an anonymous account cannot be traced back to them. That is often wrong. A username may not show a real name, but police may still investigate email addresses, IP addresses, login records, payment information, device data, metadata, messages, contact lists, and other identifying information.
Using an incognito browser window does not make a person anonymous. It generally only affects what is saved locally in that browser history.
Proposed Changes to the Law: Bill C-16
This area of law is changing quickly.
As of May 22, 2026, Bill C-16, the Protecting Victims Act, is still before Parliament and has not yet become law. The bill proposes several amendments to Canada’s criminal laws, including changes that would directly affect sexually explicit deepfakes.
One proposed change would expand the non-consensual distribution of intimate images offence so that it applies to non-consensual sexual deepfakes. The bill would also make it illegal to threaten to distribute intimate images, including sexually explicit deepfakes, without the consent of the person depicted. It would also increase the maximum penalty for non-consensual distribution of intimate images from five years imprisonment to 10 years imprisonment on indictment.
Recent reporting indicates that the House of Commons Justice Committee has also amended Bill C-16 to ensure the proposed deepfake provisions cover “nearly nude” images. Because the bill has not yet become law, the final wording may still change.
Until Parliament passes amendments, deepfake cases in Canada continue to be prosecuted through existing Criminal Code provisions. That means the facts matter: the age of the person depicted, whether the image was shared, whether there were threats or harassment, and whether the accused can be linked to the account, device, or platform involved.
What If You Are Falsely Accused of Creating or Sharing a Deepfake?
Being accused of creating or sharing a deepfake does not mean you will be convicted. It also does not mean the case will disappear simply because the image was fake or AI-generated.
A defence lawyer can review the evidence, including alleged images, screenshots, platform records, device searches, police notes, witness statements, and any forensic evidence linking the accused to the image or account. Identity, intent, knowledge, consent, the age of the person depicted, and the exact legal definition of the offence may all become important issues.
If the Crown cannot prove the required elements of the offence beyond a reasonable doubt, the charge may not succeed. In some cases, defence counsel may be able to negotiate a withdrawal, resolution, or narrowing of the issues. In other cases, the matter may need to proceed to trial.
How Collett Read LLP Can Help
If you have been charged with an offence involving deepfakes, AI-generated images, online harassment, extortion, or the distribution of intimate images, our experienced criminal defence lawyers at Collett Read LLP can help.
These cases can involve complicated questions about technology, identity, intent, privacy, consent, and the limits of Canada’s current criminal law. We will carefully review the evidence, assess whether the alleged conduct fits the charge, examine how police obtained the evidence, and advocate for your rights at every stage of the case.
Contact us today at 905-541-2228 or fill out our intake form for a consultation.
