British Columbia's Civil Resolution Tribunal has ruled that photos of a Muslim woman without her hijab do not qualify as "intimate images."The claim was brought by a woman, IB, whose ex-husband, AZ, had submitted the photos in question to court during family law proceedings following the end of their marriage.According to the tribunal, IB argued that because, as a Muslim woman, she does not appear without her hijab in front of men unless she knows them, "the involuntary exposure of her hair, arms, or body to unrelated men is equivalent to public nudity."In her decision, Tribunal Vice Chair Andrea Ritchie declared that "none of the images depicted the applicant nude, nearly nude, engaged in a sexual act, or exposing her genitals, anal region, or breasts.".One of the images depicted IB kissing AZ in bed. Both were fully clothed, leading Ritchie to determine that it did not constitute a "sexual act." She cited R v. H.O., 2019, which found that "making out, or even a deep or prolonged kiss, is distinguishable from a “quick and innocent peck that one might exchange with a loved one.""Although the applicant subjectively believes the images were 'intimate' as defined by the [Intimate Images Protection Act], I found the legislation's intent was not to cover such a situation," Ritchie added. "In the commentary to the definition of 'intimate images,' the [Uniform Law Conference of Canada] noted that because individuals hold a variety of views on what is considered 'intimate,' it is not possible in this targeted legislation to accommodate all conceptions of intimacy."IB's claim for damages of $5,000 was dismissed.Ritchie did not rule on IB's claim that AZ had committed other torts, and breached the Privacy Act and the Canadian Charter of Rights and Freedoms, noting that this is outside the jurisdiction of the tribunal.
