What is harassment/cyberbullying?

Cyberbullying takes place on digital devices such as cellphones, computers and tablets. It can be carried out through emails, texts and posts in forums on social media sites such as Facebook. It includes posting or sharing negative, harmful, false, or mean content about someone that can cause embarrassment or humiliation. It can cross the line into unlawful or criminal behaviour. Most cyberbullying incidents are not reported to police, even criminal offences. Often, the victim is too embarrassed to come forward or fear information about them may be publicly disclosed.

Is cyberbullying addressed by the Criminal Code?

The Criminal Code was amended in 2014 to recognize that sharing someone’s intimate images online without permission is illegal. Section 162.1 states that anyone “who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct,” is guilty of a crime.

This offence can occur when relationships or marriages break up. One person may feel hurt and will post intimate images of the other online without their knowledge or permission. There are “revenge” websites that cater to these types of postings.

I have defended clients facing this charge

Publishing an intimate photo of someone without their permission is a serious charge that could result in jail time. I’ve represented clients in this situation. In one case, my client assisted two women in confronting a fourth woman who they suspected was having an affair with the ringleader’s husband. The three women forced their way into the victim’s home and took her back to one of their homes. They then humiliated the woman by removing her pubic hair with depilatory cream, an act they recorded and posted on Facebook.

As a media report notes, I defended my client by pointing out that she tried to protect the woman from the ringleader’s anger and even “bought her a fast food meal because she was worried she hadn't eaten.”

My client was found guilty for her part and sentenced to a year in jail.

Unwanted penis photo leads to charge

In another case, I represented a man who sent a picture of his penis to a woman, even though she told him she was not interested in him. Despite her requests to stop, he repeatedly sent explicit photos to her and he was charged with sharing an intimate image. The fact he was charged with this crime is interesting. Most people face this offence after they share images of other people, not themselves. My client was found guilty and given a 30-day jail sentence.

What is an ‘intimate image’?

The Code defines an “intimate image” as a photo or video that depicts a person engaged in explicit sexual activity or one that shows a sexual organ, anal region or breast. The image or video would typically have to be taken in a circumstance where the person depicted had a reasonable expectation of privacy at the time and they did not relinquish that right.

What are my defences against the charge of sharing an intimate image?

Whenever I represent someone facing this charge, I make sure the Crown can prove that it was my client who shared the intimate image. If police evidence shows the image came from a computer at a specific IP address, I will ask if they can prove that multiple people did not have access to that computer at the time of the offence. If more than one person was living in the home and had access to the computer, that would be difficult to prove.

What is the penalty for sharing an intimate image?

Penalties can be as severe as five years in prison. In addition, the cellphone, computer or device used to share the images may be seized and the court may order that the victim be financially compensated for the cost of removing the images from the internet.

What if I made someone fear for their safety?

If police find evidence that comments you posted online made someone else fearful for their safety you could be charged with uttering threats. Section 264.1 of the Code makes it a criminal offence to threaten to “cause death or bodily harm to any person” or to say that you will destroy any of their property, including buildings or pets.

Canadian courts have incarcerated people for uttering threats online. In a 2017 case, a man was jailed for six months after he posted a nude photo of his ex-girlfriend on Facebook, accompanied by a message about how he wanted to harm her.

What if I intimidate someone online?

You can be charged with intimidation if you engage in cyberbullying. According to s. 423 of the Code, it is a crime to compel “another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.”

What if I defame someone online?

There is plenty of gossip and untruth on the internet. However, s. 298 (1) of the Code states that it is illegal to publish something “without lawful justification or excuse, 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.”

What is needed to convict

Every situation is different, but for a Crown prosecutor to win a conviction for H3 harassment in an online forum, they would have to prove beyond a reasonable doubt that the victim felt they were being harassed by you. They also have to show that your postings caused them to fear for their safety and that you knew your messages and behaviour would make the complainant feel harassed.

What are my defences for online harassment?

As your lawyer, I will show the court it was not reasonable for the complainant to be afraid of you. Or perhaps you did not realize the person felt harassed and wanted you to stop contacting them. Depending on the police investigation, I may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached.

Contact me for assistance

Harassment/cyberbullying is an evolving area of law. If and when the case gets to trial, another difficulty would be there is little case law for either counsel to draw on. If you are facing charges in relation to your online activity, contact me for a free consultation to discuss your case.

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