In Part I we looked at the creation of a new criminal offence for the non-consensual distribution of intimate images. Part II continues to address provisions of the Bill dealing with possible punishments, expanding the scope of harassment, preservation demands, and granting legal immunity to those who voluntarily provide information to law enforcement.
Given the broad scope of this new offence, and lack of clearly defined defences, it is worthwhile to assess the possible punishments offenders could be subject to under this new legislation. If someone is convicted of this offence, section 162.2 would allow the court to prohibit this person from using the internet for any period of time deemed fit when accounting for the circumstances of their particular offence. It is clear from the provisions below that a high level of discretion has been left with the judiciary in determining what punishment will be appropriate.
162.2(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection 162.1(1), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
Duration of prohibition
(2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.
Court may vary order
(3) A court that makes an order for prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
There is a clear rational behind this provision insofar as the court wants to prevent recidivism by persons convicted of this offence, as well as to provide some punitive effect. The reality is that this punishment may be extremely difficult to enforce in the age in which we currently live. The interconnectedness of the modern world is perhaps the most dynamic feature of today’s society, as both information and people are accessible 24/7 in a myriad of ways. For many of us, use of the internet is a fundamental feature of how we operate on a daily basis, not easily severed from our personal or professional lives. For example, how will this punishment interact with an employee’s job requirements? In an age of smart phones, where many applications are always connected to the internet, how will use truly be monitored?
Given the ease with which we are able to access the internet, enforcing this punishment may prove to be a daunting task. Nonetheless, the legislation also provides a further offence for individuals who do not comply with an order to abstain from using the internet:
162.2(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than two years; or
(b) an offence punishable on summary conviction
Again, the boundaries of this offence appear to be fairly ambiguous. It will be interesting to see how the courts apply this provision when considering the context in which the offence took place, and the reoccurrences in which the offender violated the order.
Clause 18 of the Bill broadens the scope of the Code dealing with harassing communications to include all forms of telecommunication. This is a departure from the current provision that limits the offence to telephone communications.
Messages in false name
371. Everyone who, with intent to defraud, causes a message to be sent as if it were sent under the authority of another person, knowing that it is not sent under that authority and with the intent that it should be acted on as if it were, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
372.(1) Everyone commits an offence who, with intent to injure or alarm a person, coveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.
(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to ay other person by a means of telecommunication.
(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.
(4) Everyone who commits an offence under this section is
(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) guilty of an offence punishable on summary conviction.
There is no doubt that there are people who make incendiary statements under the guise of the internet that they otherwise would not; one only needs to look to the comment section of any news site or shared content to find evidence of this claim. In many ways, the internet allows individuals who have malicious intents to use the various means of telecommunication to cause people harm. In the absence of any other mechanisms to criminalize this type of behaviour, these provisions appear to be the government’s best effort to punish those who engage in these repugnant acts. Ultimately, the question emerging from these provisions is when they may actually be enforced, as the threshold of when irresponsible or insensitive internet use becomes a criminal activity is unclear.
Clause 20 of the Bill is perhaps the most problematic provision as it deals with giving law enforcement the ability to demand that anyone preserve computer data for 21 or 90 days, depending on the nature of the offence.
487.012(1) A peace officer or public officer may make a demand to a person in Form 5.001 requiring them to preserve computer data that is in the possession or control when the demand is made.
Conditions for making demand
(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that
(a) an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state;
(b) in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and
(c) the computer data is in the person’s possession or control and will assist in the investigation of the offence.
In order to make this demand, all that is required is a “reasonable suspicion”. It has long been established under section 8 Charter jurisprudence, dealing with unreasonable search and seizure, that the required threshold is “reasonable and probable grounds to believe,” which is more difficult to meet than a “reasonable suspicion.” It is noteworthy to mention that use of the “reasonable suspicion” standard was upheld by the Supreme Court of Canada in the 2008 case of R. v. Kang-Brown in the context of using sniffer dogs. The top court recently reaffirmed the use of the “reasonable suspicion” standard, again in the context of using sniffer dogs, in the 2013 decisions of R. v. MacKenzie and R. v. Chehil. Whether or not the use of this standard is distinguishable in the context of cyberbullying remains to be seen.
The Charter issues surrounding the new provisions do not end there. Consider the following amendment which provides immunity to third parties who voluntarily provide information to the police:
Voluntary disclosure with legal immunity
487.0195(1) For greater certainty, no preservation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.
No civil or of criminal liability
(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.
Essentially, this provision precludes any criminal or civil liability to a party who wishes to disclose others’ personal, private information. It may be the case that the legislation is actually aimed at serving a broader purpose. The need to prosecute those who extort young people for sexual images, or possess or distribute child pornography is assisted by some provisions within in the Bill. Alternatively, some critics of this legislation allege that the government has politicized the tragic deaths of teenage girls like Rehtaeh Parsons, or Amanda Todd of British Columbia, in order to push forward an omnibus bill that could put Canadian civil liberties at risk.
Overall, it is difficult to assess how the new cyberbullying legislation will operate considering it is possible that amendments to the Bill may still be put forth before it comes into force. Barring any changes, there are provisions within this legislation that give rise to concerns about both its effectiveness and constitutionality. With the potential majority of cyberbullying victims being youths, and many of the perpetrators being youths themselves, it will be interesting to observe how the Youth Criminal Justice Act will interact with this new offence. Ultimately, the offences under this legislation have the potential to capture a wide range of internet users, participating in varying degrees of inappropriate internet use. Determining the extent of what telecommunication activities should engage the criminal law will be left for the judiciary to decide.