SELECTED CASE LAW
ONTARIO:
In 2017 ONCJ 943, Mr. R was engaged to marry the victim however, an incident occurred that Mr. R wanted to keep secret and later the relationship ended. He was a specialist in information technology and had access to his fiancé’s school account, school email, and Facebook account. During their relationship, the victim had sent multiple nude images to Mr. R. Follow-ing the breakdown of the relationship, he threatened to share the intimate images with her parents if she did not agree to follow his side of the story in relation to the incident that he wanted to keep secret. She told Mr. R she no longer wanted any contact with him, but he continued to persistently contact her electronically. The messages were often non-sensical ram-blings with ominous tones.
Later, several friends and family members of the victim received an anonymous email with several intimate images of the victim and copies of her Facebook messages about a previous boyfriend. A second anonymous email with an intimate image was sent to her father. Her school supervisor also received an anonymous email accusing the victim of fraud. Mr. R denied sharing the images or sending the images, suggesting an anonymous hacker must have sent them. During one conversation with the victim Mr. R claimed that intimate images with victim’s name attached had been posted on Reddit. However, the victim Googled her name and did not find evidence of this. Mr. R continued to send harassing messages to the victim and about the victim on his social media, some of which suggested that he was watching the victim. Someone had also changed the password to the victim’s Facebook account, locking her out of the account. At trial Mr. R’s story about the images changed several times, at some point he claimed to have not seen the nude photos at all, that had not wanted to receive the photos, and to have seen them but deleted them later.
Mr. R’s one sided and persistent contact with the victim was enough to convict him on the criminal harassment charges, however, because the images had been sent anonymously, the courts had to consider whether there was enough evidence to determine whether Mr. R sent the messages. The Court concluded that R did send the images, taking into account that Mr. R had access to the victim’s various digital accounts, including her Facebook where the message had been copied from, that the list of people who the images were sent to suggested they were sent from someone who knew the victim well, and that the messages contained information that only Mr. R and his fiancé would be aware of. The court held that “[t]he alternative anonymous hacker theory is devoid of any realistic foundation in this case.”[1]
The judge in this case suggested that the victim could have avoided Mr. R’s harassment by re-moving WhatsApp from her phone or blocking Mr. R from contacting her, but after considering the victim’s testimony, recognized that she had chosen to keep the line of contact open so that she could monitor Mr. R’s state of mind and capture concerning messages.
Mr. R was sentenced to nine months’ incarceration and 30 months’ probation. Additional orders included, no contact order with complainant, family and other particular individuals; an order to keep 200 meters distance from the complainant and family home; a DNA order; an internet prohibition for five years, save for educational and employment purposes (only using the school’s and employer’s devices) and to pay bills, obtain services from the government and correspond for purposes of employment and education; and a two year social media and WhatsApp prohibition.
Also see: 2017 ONCJ 558 (Trial).
[1] 2017 ONCJ 558 at para 146.
Criminal Offence(s): Criminal Harassment