Legal Briefs: How Does Criminal Law Respond to Cyberviolence?
Criminal prosecutions are possible responses to behaviours that are most accurately referred to as forms of cyberviolence, rather than cyberbullying. However, the burden of proof in criminal cases is high (“beyond a reasonable doubt”) and the case is controlled by the Crown, rather than by the person who was targeted or their families. Being a complainant and a witness in a criminal case can be a difficult process, especially in cases involving sexual VAWG.
A variety of criminal offences may apply to particular instances of cyberviolence, depending on the circumstances involved. All carry with them the possibility of imprisonment upon conviction, although the potential lengths of imprisonment vary from offence to offence. Ultimately, the sentence imposed will be based on an assessment of the circumstances, including mitigating and aggravating factors, unless the offence is one where a mandatory prison sentence is imposed (e.g. for child pornography offences). It is important to note that young people (persons under 18) often are not sentenced to imprisonment when convicted because their sentences are usually decided under the Youth Criminal Justice Act.
Online Hate Propagation
Criminal law responses to hate propagation predated the arrival of vitriolic attacks via the internet, although hate propagation provisions of the Criminal Code have been modified in response to internet-related developments. Three Criminal Code provisions relate specifically to hate propagation:
advocating genocide of a section of the public identifiable on the basis of certain grounds, including colour, race, religion, ethnic origin, sex, sexual orientation, mental or physical disability (punishable by up to 5 years in prison);
publicly inciting hatred against an identifiable group in a way that is likely to lead to breach of the peace (punishable by up to 2 years in prison);
publicly communicating statements willfully promoting hatred against an identifiable group (subject to defences of good faith, truth and others) (punishable by up to 2 years in prison).
After the events of 9/11, the Criminal Code was amended to allow judges to order seizure of computer systems making hate publicly available, and to order deletion of hateful content from seized systems.
The number of criminal law prosecutions and the impacts of criminal law responses to hate propagation are limited by, among other things, the high threshold to be met (proof beyond a reasonable doubt), and the requirement to obtain Attorney General approval in order to prosecute. As a result, relatively few cases of online hate propagation are prosecuted.
It is a crime under s 264 of the Criminal Code to knowingly harass another person (or be reckless as to whether they are harassed) by, among other things, (i) directly or indirectly communicating with that person, or anyone they know, repeatedly, and/or (ii) engaging in threatening conduct toward that person, or any member of their family, where doing so causes the other person to reasonably fear for their safety or the safety of anyone known to them.
It is a crime under s 264.1 of the Criminal Code to in any manner knowingly utter, convey or cause any person to receive a threat to cause death or bodily harm to that person; to burn, destroy or damage real or personal property; or to kill, poison or injure an animal or bird that is the property of that person.
It is a crime under s 423(1) of the Criminal Code to, among other things, use threats of violence or violence against another person for the purpose of compelling that other person to do something they have the lawful right not to do or to refrain from doing something they have the lawful right to do.
Defamatory libel and extortion by libel
It is a crime under s. 298-299 of the Criminal Code to, among other things, publicly exhibit or cause to be read or seen without lawful justification or excuse any matter that is likely to injure a person’s reputation by exposing them to hatred, contempt or ridicule or that is designed to insult the person about who the matter is published. If the matter published is known to be false, a higher punishment is available.
It is a crime under s 265 of the Criminal Code to, among other things, threaten to apply force to another person without their consent, if you have or cause that other person to reasonably believe you have the present ability to carry out the threat.
Mischief in relation to data
It is a crime under s. 430(1.1) of the Criminal Code to willfully: destroy or alter computer data; render computer data meaningless, useless or ineffective; obstruct, interrupt or interfere with lawful use of computer data; or to obstruct, interrupt or interfere with a person in he lawful use of computer data or deny access to computer data to a person who is entitled to access to it.
Unauthorized use of a computer
It is a crime under s 342.1 of the Criminal Code to, among other things, fraudulently and without colour of right intercept or cause to be intercepted any function of a computer system; use a computer system to attempt to intercept a function of a computer system; or possess or traffick in a computer password that would allow someone else to carry out either of the previously mentioned activities.
It is a crime under s 403 of the Criminal Code to fraudulently impersonate another person (for example, by pretending to be them or by using their identity information as if it pertains to you) with intent to (i) gain advantage for yourself or another person; (ii) obtain property or an interest in property; (iii) cause disadvantage to the person being impersonated; or (iv) with intent to avoid prosecution or to obstruct the course of justice.
It is a crime under s 346 of the Criminal Code to, without reasonable justification or excuse and with intent to obtain anything, threaten, accuse, menace, or use violence to induce or attempt to induce another person (whether or not they are the person threatened) to do anything or cause anything to be done.
False messages, indecent or harassing phone calls
It is a crime under s 372 (1) of the Criminal Code to, with intent to injure or alarm a person, convey information you know is false or cause such information to be conveyed by letter or any means of telecommunication. It is also a crime under s 372(2) to, with intent to alarm or annoy another person, make an indecent communication to that person or any other person by means of telecommunication. Further, it is a crime under s 372(3) to, without lawful excuse and with intent to harass a person, repeatedly communicate or cause repeated communications to be made by means of telecommunication.
It is a crime under s 163.1 of the Criminal Code to, among other things, possess, transmit, make available or distribute or possess for these purposes, a photo, film or other visual representation showing, among other things, a person who is under 18 and engaged or depicted as engaged in a sex act or the dominant characteristic of which is to depict for a sexual purpose a sexual organ or the anal region of a person under 18. Those convicted of child pornography offences are subject to mandatory minimum sentences of imprisonment, although these mandatory minimums tend not to be applied to youthful offenders who are themselves under 18.
Non-consensual distribution of intimate images
It is a crime under s 162.1 of the Criminal Code to knowingly publish, transmit, sell, make available or advertise and intimate image of a person knowing the person depicted in the image did not give consent to that conduct or being reckless as to whether that person consented. “Intimate image” is defined as a visual recording of a person made by any means, where (i) the person is nude, exposing their genital organs or anal region or breasts or is engaged in explicit sexual activity; (ii) in respect of which, at the time of the recording, there were circumstances giving rise to a reasonable expectation of privacy; and (iii) in respect of which the person retains a reasonable expectation of privacy at the time the offence is committed. It is a defence to the charge if the distribution serves the public good.
Upon conviction, in addition to the possibility of imprisonment, the court can prohibit the offender from using the internet. Further, as is the case with child pornography, the court can make a variety of orders with respect to seizure, forfeiture, and disposal of intimate images covered by the provision.
 See e.g. SAN Ottawa, The Ottawa Sexual Assault Protocol (revised May 2012), at 30, online: <www.sanottawa.com/sites/default/files/pdf/SAN_ProtocolReport_En_Final.pdf> (for a description of some of these procedures); Holly Johnson, “Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault” in Elizabeth A Sheehy, ed, Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (Ottawa: University of Ottawa Press, 2012) 613 at 626.
Criminal Code, RSC 1985 c C-46.
Ibid, s 318(1).
Ibid, s 319(1).
Ibid, s 319(2).
Ibid, s 320(1).
Ibid, s 320(7). See e.g. Bailey, “Twenty Years Later” supra note 33 at 371 fn 128.
 Codesupra note 267, s 264. See e.g. R v Hassan, 2009 CarswellOnt 1811, 83 WCB (2d) 34 (man found not guilty of harassment after distributing nude photos of his ex-girlfriend); R v Elliott, 2016 ONCJ 35 (accused found not guilty of harassment for statements made on Twitter); R v BLA, 2015 BCPC 203 (teen pled guilty to nine charges of criminal harassment, among other things, after pursuing female video gamers, posting their addresses and personal information online, and sending SWAT teams to their homes); R v Fader, 2014 BCPC 327 (man pled guilty to harassment after breaking into his former partner’s home, stealing devices he knew contained sexually explicit images and videos, and distributing those images to the victim’s coworkers and family); R v Kapoor, 2012 ABPC 299 (man pled guilty to harassment after repeatedly making graphic and violent phone calls to his ex-girlfriend).
Code, ibid, s 264.1. See e.g. R v LeSeelleur, 2014 QCCQ 12216 (young woman found guilty of uttering threats after posting a Twitter message threatening to “bomb” then-Quebec Premier Pauline Marois).
Code, ibid, s 423(1). See e.g. R v Samir, 152 AR 309, 23 WCB (2d) 184 (man found not guilty of intimidation after following a woman on the street for ten minutes, making sexual advances, and twice blocking her path with his car).
Code, ibid, s 298-299. See e.g. R v Simoes, 2014 ONCA 144 (Ottawa restaurant owner found guilty of defamatory libel for online attacks targeting a customer who had posted negative restaurant reviews online).
Code, ibid, s 300. See e.g. R v Maurer, 2015 SKQB 175 (accused found not guilty of mischief in relation to data after recovering and disseminating nude images found while repairing the victim’s computer).
Code, ibid, s 265. See e.g. R v JD, 2015 ONCJ 550 (two teens pled guilty to assault after violently beating a fellow student at school and taking a cell phone video of the assault).
Code, ibid, s 430(1.1). See e.g. R v Charania, 2012 ONCJ 637 (nursing home employee found guilty of mischief in relation to data after using his laptop computer to remotely access another employee’s email account).
Code, ibid, s 342.1. See e.g. Maurer, supra note 277; R c St-Martin, 2012 QCCQ 575 (police captain found guilty of unauthorized use of a computer after using a police computer system to, among other things, search for information about an ex-spouse). Notorious revenge porn website operator Hunter Moore was charged in the United States for offences similar to those in provided in this section: LEAF #Cybermisogyny Report, supra note 18 at 21.
Code, ibid, s 403. See e.g. R v Mackie, 2013 ABPC 116 (man pled guilty to three counts of fraud, among other things, for hijacking the social media accounts of his child victims and impersonating them to solicit nude photos from other children).
Code, ibid, s 346. See e.g. BLA supra note 273; R v Walls, 2012 ONCJ 835 (accused had shared nude webcam images with his long distance ex-girlfriend, claimed to have saved some of them, and threatened to disseminate images unless she had sex with him again).
Code, ibid, s 372. See e.g. R v Howse , 124 WCB (2d) 78, 370 Nfld & PEIR 235 (man sentenced to a conditional discharge with twelve months probation after making repeated phone calls to his ex-wife); R v Kelly , NJ No 111, 364 Nfld & PEIR 202 (police officer sentenced to ten months in jail for using his RCMP cell phone to make an indecent phone call to a woman he had seen on the street).
Code, ibid, ss 163.1(1), (2), (3), (4). See e.g. R v Sharpe, 2001 SCC 2 (holding that restrictions on child pornography constitute a violation of freedom of expression which is nonetheless justified in a free and democratic society); R v Barabash, 2015 SCC 29 (holding that the private use exception established in Sharpe cannot be used as defence when sexual activity depicted is unlawful for being exploitative).
Code, ibid, s 162.1. See e.g. Winnipeg Free Press, “Winnipeg man jailed for posting nude photos of ex on Facebook” (23 March 2016), <https://www.thestar.com/news/canada/2016/03/23/winnipeg-man-jailed-for-posting-revenge-porn-photos-of-ex-on-facebook.html>.