Cyberbullying, Social Media Networks and Sentencing: The Alberta Court of Appeal Strikes a Hard Blow in R v Mackie

How should the courts determine appropriate sentences for online predators who victimize vulnerable children through various forms of cyberbullying? This was the question put squarely to the Alberta Court of Appeal in R v Mackie 2014 ABCA 221.

Background

Statistics Canada reported this summer that the traditional crime rate in Canada fell 8% from 2012 to 2013, reaching its lowest level since 1969. But this general decline in crime rates overshadows a disturbing countertrend – the rise in online crimes against children.

Crimes constituting sexual violations against children increased 6% from 2012. In particular, the crime of using a computer to lure a child for the purpose of facilitating a sexual offence increased a staggering 30% over the course of a year. Sexual exploitation increased 11%. Child pornography offences, now almost always conducted via online means, were also up 21% since 2012 and an almost incomprehensible 163% since 2003.

These prosecutions have become increasingly complicated as their perpetrators attempt to hide behind the cloak of online anonymity and the victims may exist anywhere in the world. Yet the victims – defenceless children – are our most vulnerable members and often the least able to seek help and protection when they most need it. These crimes truly do strike at the core of our collective well-being and shared values.

Facts of R v Mackie

MacKie pleaded guilty to 39 offences, all of which involved crimes against children. They were generally described by the Court of Appeal as “cyberbullying and online sexual exploitation” and continued over the course of four years. Mackie, then in his early 20s, used his knowledge of computers to create fake internet profiles to communicate with 21 children between the ages of 11 and 16. He contacted them through popular online social networking sites by pretending to be of a similar age.

He obtained their contact information. He asked very personal, often sexualized questions of them. He cajoled them to provide sexually explicit or suggestive photographs, and then threatened to distribute those photographs to their friends and family if they did not provide even more revealing photos and videos. He ultimately took control of their online accounts, posted their photographs online, and contacted their friends and siblings.

These victims were described as being “completely overwhelmed”, feeling “terrified and trapped”, and were “greatly traumatized.” At least one even considered suicide to escape the online hell Mackie had created for him. The torment was found to have had a lasting impact on the children: see paras 4-8.

An Impressive Sentence

The trial judge imposed a global sentence of 11 years in a penitentiary. Mackie had no prior criminal record. But he expressed little remorse for his actions and stated he enjoyed the “thrill of the hunt”: see para 9.

The Court of Appeal upheld the sentence. Noting he was nothing short of a “cruel predator of children”, the Court explained that we have, as a society, come to better appreciate the “full magnitude of the impact such crimes have on children” and that they can lead to children taking their own lives: see para 17.

At paragraph 18, the Court concluded forcefully and clearly:

Society cannot tolerate such offences, and we are determined to do what we can protect children from cyberbullying and exploitation. In cases such as that before us, we must resort to imprisonment, emphasizing the sentencing objectives of punishment, punishment and deterrence.

The Alberta Court of Appeal’s comments and acknowledgment of the pervasive evil of cyberbullying are welcome and desperately needed from an appellate court. We can and must “better appreciate” the horrors of such crimes, and collectively awaken to the reality that online abuse carries with it often unimaginable, lasting harm.

Echoes of R v McMillan

Last year, in a very different context, Menzies J. of the Manitoba Court of Queen’s Bench noted in R v McMillan 2013 MBQB 229 that the effects of bullying, both online and in person, must be acknowledged by the courts when fashioning an appropriate sentence. In that case, it was the accused who had been the victim of online bullying and who committed his crimes as an act of retaliation against one of his tormentors. His Honour’s words on the nature and effect of bullying are worth repeating in light of the powerful precedent set by the Alberta Court of Appeal in Mackie:

41 It is conceded by the Crown that the accused was subjected a prolonged period of bullying in his home community. The bullying involved taunts, physical confrontations, graffiti in public locations and postings on Facebook. T.M. was one of the people who victimized the accused.

42 The effects of bullying have just now begun to attract the attention of public authorities. The suicide of Rehtaeh Parsons in Nova Scotia has underlined the devastating effects of bullying on the target of such abuse. Bullying can cause severe depression to the victim. The victim may withdraw from society and in severe cases, attempt or succeed at suicide.

The effects of this bullying are “impossible to ignore” and provide a context and background that must be considered when fashioning an appropriate sentence: see para. 46.

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Brock Jones is Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. The views expressed in this article are those of the author and do not represent those of the Ministry of the Attorney General nor the University of Toronto.

 

Comments

  1. 11 years, wow! Richly merited, and hopefully a precedent for future sentences for sex crimes against children (in which area the courts have historically been somewhat lax – though that seems to be changing). Mind you, between credit for time served and early release, how much time will he actually spend in prison? I note the accused was given 2:1 credit for his first 142 days in custody. Extra credit for time served (i.e., more than 1:1) may well be appropriate in some circumstances, but query whether it is appropriate in these circumstances where, as noted by Martin J.A.:

    “the protection of children is the paramount sentencing objective. And, we hope that the certain knowledge that a lengthy prison sentence awaits them will deter others who may be thinking of exploiting children in this way.”

    In this case, the practice seems to reward the accused for being too dangerous to release into society pending trial and is inconsistent with the paramount sentencing objective in this case of protection children from the offender and deterring future offenders. I’d suggest that in cases where the principal consideration is sentencing is the need to protect society from the accused, extra-credit for pre-trial time served is quite inappropriate.

    Good post.