Following the tragic death of Rehtaeh Parsons, a special meeting by the Provincial and Federal Ministers of Justice decided to investigate the state of the law around the distribution of images of an intimate nature without consent. Many observers believed that the provisions under the Criminal Code are insufficient in dealing with this growing problem among young Canadians.
The subcommittee of the Cybercrime Working Group (CWG) responsible for this released their report this week. The report notes that the traditional response in Canada to cyberbullying relies heavily on education initiatives and promoting public awareness and support among families and communities.
Although there are no explicit provisions in the Code prohibiting cyberbullying, there are several which may apply and have been used, including:
- criminal harassment (section 264)
- uttering threats (section 264.1);
- intimidation (subsection 423(1)),
- mischief in relation to data (subsection 430(1.1));
- unauthorized use of computer (section 342.1);
- identity fraud (section 403);
- extortion (section 346);
- false messages, indecent or harassing telephone calls (section 372);
- counselling suicide (section 241);
- defamatory libel (sections 298-301);
- incitement of hatred (section 319); and,
- child pornography offences (section 163.1).
The report calls for specific changes to Section 372 to clarify that this offence can be committed through electronic communications and can be intended for a broader audience than one person.
The report also calls for a modernization of the investigatory powers under the Code, including:
- Data preservation demands and orders;
- New production orders to trace a specified communication;
- New warrants and production orders for transmission data;
- Improving judicial oversight while enhancing efficiencies in relation to authorizations, warrants and orders; and,
- Other amendments to existing offences and investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.
Additionally, there are several provincial statutory regimes which address cyberbullying, such as:
- Alberta’s Education Act
- Manitoba’s Public School Amendment Act and Bill 18, The Public Schools Amendment Act (Safe and Inclusive Schools)
- Nova Scotia’s amendments to the Education Act through Bill 30, Promotion of Respectful and Responsible Relationships Act and the proposed Cybersafety Act
- Ontario’s amendments to the Education Act in the Accepting Schools Act
- Quebec’s Bill 56, An Act to prevent and stop bullying and violence in school
The focus of most of these statutes is to give educators the ability to discipline students for cyberbullying behaviour. What defines cyberbullying though is still hotly debated. One particular problem is the use of intimate photos or videos, often originally intended for personal use, which appears to be a significant and growing problem among young people around the world.
The N.J. Code of Criminal Justice is the only state statute in the U.S. to address this problem explicitly. Other jurisdictions outside the U.S. have generally prosecuted such behaviour under existing criminal provisions, or have expanded existing provisions to explicitly include such behaviour.
The report suggests the creation of a new criminal offence in Canada of “of non-consensual distribution of intimate images, with a maximum penalty of 5 years imprisonment for indictment and 6 months imprisonment on summary conviction. The report also proposes amendments allowing for information to be obtained from ISPs for the purposes of prosecution.