SELECTED CASE LAW
BRITISH COLUMBIA:
In 2012 BCPC 561, the offender used private Facebook posts to threaten and intimidate his former romantic partner. Mr. C had assaulted the victim, Ms. X, twice in the past. He had also been previously convicted of mischief after installing a webcam in her bedroom. Ms. X moved with their children from Ontario to British Columbia in 2010.[1]
Shortly after he was released from prison, C started a relationship with a new woman in British Columbia, close to where Ms. X had settled with the children. He told the new woman that he wanted to kill X, a statement which formed the basis charging him with uttering threats. He also told the new woman that he wanted to post photos online to show that he was in X’s vicinity. At trial, the woman testified that C told her “I want [X] to look behind her back for the rest of her life,” or “I want her to know that I’m close.”[2]
C had blocked X from viewing his Facebook account, and she could only see his posts by logging onto her sister’s account. Still, X wanted to view his Facebook profile to see if he knew she had fled to British Columbia. When she viewed his profile using her sister’s account, she saw photographs near her new workplace and at locations she often visited. She also saw diary-like Facebook Notes expressing his love and longing for her, and a link to the song “Every Breath You Take” by The Police. Fearing for her safety, X stopped visiting the places pictured in the photographs.
At trial, defence counsel successfully argued that C’s conduct needed to be objectively threatening on the evidence to constitute criminal harassment. The Court held that “the pictures [C posted] were non-threatening and neutral in nature. Objectively, they were of a benign character as were the comments about the complainant.” The Court further noted that,
It may well be that some of the images had a special meaning or significance to [X] subjectively viewed whether because they were of businesses or places she visited or attended, or because they were of a location near her place of employment. However, none of these either individually or collectively were specifically directed to the complainant. Rather, they were placed on the accused’s Facebook for any Facebook user to view.[3]
According to the Court, since X could not see the posts without logging on to her sister’s account, C’s posts were not directed at her and did not constitute criminal harassment.
In finding C not guilty of criminal harassment, the Court noted that “[I]t would seem that there could not be any harassment until such time as the complainant decided to view it,” and “that step introduced an element of uncertainty to the completion of the offence as it is outside the control of the accused.”[4] Ultimately, the Court determined that “Whether or not the complainant was harassed was thus dependent solely on her actions and not the accused’s.”[5] C was, however, convicted of uttering a threat. He appealed his conviction in 2016, claiming that the judge had improperly intervened in the trial proceedings, but his appeal was dismissed.[6]
[1] Ms. B alerted police that she feared Mr. C would come looking for her, and discussed safety measures with the officers: 2012 BCPC 561 at para 32.
[2] 2012 BCPC 561 at para 47.
[3] 2012 BCPC 561.
[4] 2012 BCPC 561 at para 91.
[5] 2012 BCPC 561 at para 91.
[6] 2016 BCCA 76.
Criminal Offence(s): Criminal Harassment