06/04/2014 07:30 EDT | Updated 08/04/2014 05:59 EDT

Posting nude photos from ex-girlfriend's laptop not a crime — yet, judge says

A Saskatoon man who posted nude photos of an ex-girlfriend to the internet has been found not guilty of theft and mischief, a provincial court judge has decided, because a new Criminal Code provision has not yet passed Parliament.

Judge Shannon Metivier decided the man's actions were "despicable," but not yet illegal since the new provision dealing with publishing intimate images without consent is not yet the law.

According to the May 26 decision, which was published this week to an online legal database, the man and woman had been dating for about six months in 2012. Around the time the intimate relationship was ending, the woman turned to the man for some help with her laptop since he had some skills with computers.

She testified she had used the computer to send an earlier boyfriend photos of herself, in the nude, but she thought she had deleted them from the laptop when that relationship was over.

When the tech-savvy Saskatoon man went to fix her laptop, he found it was beyond repair. The two agreed he could keep the laptop for parts if he helped her set up a new device.

Nude photos discovered

As the man was going through the process, he discovered the nude photos.

According to his testimony, the woman said he could keep the pictures.

But the woman testified that she was upset that he had the images and asked him to delete them.

Things only got worse when the man, now an ex-boyfriend, threatened to post the images online.

"The relationship between [them] spiralled downward," Metivier said in her decision.

Eventually, the ex-boyfriend made good on his threat by publishing a website featuring the photos.

The site was taken down 12 hours later after the woman had a lawyer send the ex-boyfriend a letter demanding he remove the material from the Internet.

She also went to police, who laid a charge of theft and mischief.

But Metivier said the facts of the case did not support a finding of guilty on those charges.

The judge said case law in Canada has determined that accessing computer data and sharing it is not theft.

"The accused’s conduct in this case is despicable; however, for the reasons stated above, it does not establish the charges set out in the Information," Metivier wrote.

However, she noted that a new provision of the Criminal Code — part of Bill C-13 that is still before Parliament — could change all that.

The amendment would make it illegal to knowingly publish an intimate image without consent.