2009 ABCA 328

In 2009 ABCA 328, Mr. W was convicted of criminal harassment after sending hundreds of threatening, harassing, and sexually suggestive emails, texts, and voice mail messages to his former partner who had terminated the relationship. These communications caused the complainant to fear for his safety, including fearing for his life, for the year and a half the harassment continued. He moved to Toronto to avoid the harassment, but Mr. W did not stop harass-ing him. Among other things, Mr. W disseminated the victim’s nude photos in a ten-page fax and posted fake profiles of the victim on social media sites claiming that the victim was spreading HIV. He also used false identities to make it appear as though others were communicating to and about the victim. He would engage in conversation with men in chat rooms and invite them to the complainant’s apartment for sexual encounters without the complain-ant’s knowledge. The police investigated the harassment early on, but Mr. W was able to conceal his harassment through the use of third party computers, offshore websites and public telephones. The court noted that “the intimidation caused by the harassment is a real form of harm, and unlike with more conventional modes of harassment, the victim of cyber-stalking is less able to escape or hide from their tormentor.” His harassing conduct stopped after Mr. W was charged and he often blamed the victim and did not accept full responsibility for his con-duct.[1]

He was sentenced to 90-days imprisonment (to be served intermittently) and to be bound by a probation order for the duration of the sentence, with additional orders including a curfew, a weapons prohibition, and a DNA order.[2]

The Crown sought leave to appeal the sentence for not sufficiently denouncing and deterring Mr. W’s conduct, and for not being proportionate to the gravity of his offence. The Alberta Court of Appeal held that “the appropriate range for harassment of this duration and sophistication is 9-24 months imprisonment.”[3] The Court also found that the trial judge failed to con-sider key aggravating factors, including (i) the persistent, unrelenting nature of the harassment, (ii) the inherent danger of sending strangers, who were expecting sexual encounters, to the victim’s home, and (iii) the advanced planning and deliberation of the attacks.[4] Despite stating that the appropriate sentence in this case would be 12 months in prison (and not 90 days as W had received at trial), the Court of Appeal found that, “having regard to the history [including pre-trial custody and pre-sentence custody already served by W], we are not persuaded that further imprisonment is warranted, and decline to grant the Crown leave to appeal.”[5] The appeal was dismissed.

Also see: 2009 ABPC 126 (Trial).

[1] 2009 ABPC 126 at para 36.
[2] 2009 ABPC 126.
[3] 2009 ABCA 328 at para 37.
[4] 2009 ABCA 328 at para 35.
[5] 2009 ABCA 328 at para 40.


Criminal Offence(s): Criminal Harassment