This article provides an overview of Bill C-13 “Protecting Canadians from Online Crime Act”. It does not address every provision within the Bill, but does provide some insight into what we believe to be the most salient provisions. In Part I we offer some commentary on the new criminal offence of the non-consensual distribution of intimate images.

In recent years, there has been a great deal of discussion in both political and legal discourse about the issue of cyberbullying. In large part, these discussions have been fueled by the tragic suicide of Rehtaeh Parsons, a 17 year-old former student of Cole Harbour District High School, who was allegedly sexually assaulted (the case is still before the courts) by four teenage boys at a party in November of 2011. The reason for her suicide is attributed to the distribution of graphic images of the non-consensual, sexual acts. The incident became widespread throughout the school, allegedly leading to the victim being continually bullied, harassed, and taunted. After her untimely death, Rehtaeh’s story received international media coverage and prompted responses from both provincial and federal legislatures

Before her death made headlines, no charges were laid, due to insufficient evidence, but the RCMP eventually reopened the case in light of “new and credible information.” As a response to this wide array of criticism, the Nova Scotia Provincial Government introduced the Cyber-Safety Act RSNS c.2. The Act received its first reading in the provincial legislature on April 25, 2013 and was expeditiously brought into force on May 10, 2013. As of yet, no litigation has been initiated under this legislation.

Realizing the importance of the cyberbullying issue, and keeping with their tough on crime agenda, the federal government has followed suit by introducing Bill C-13 “Protecting Canadians From Online Crime Act”. This Act is presented as Canada’s cyberbullying law, although it is subsumed with other provisions that fall outside the scope of cyberbullying.

With respect to cyberbullying, this Act purports to amend the Criminal Code to:

  • Create a new offence of non-consensual distribution of intimate images; 
  • provide complementary amendments to authorize the removal of such images from the internet; 
  • facilitate the recovery of expenses incurred to obtain the removal of such images; 
  • facilitate the forfeiture of property used in the commission of the offence; 
  • enforce recognizance orders to prevent the distribution of such images; 
  • restrict the use of a computer or the Internet by a convicted offender; 
  • make preservation demands and orders to compel the preservation of electronic evidence; 
  • compel the production of data relating to the transmission of communications and the locations of transactions, individuals, or things; 
  • create a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications; and 
  • create a warrant that will enable the tracking of transactions, individuals and things that are subject to legal thresholds appropriate to the interests at stake, and.

The provisions found in Clause 3 of the Bill deal directly with cyberbulling, the crux of which is the creation of a new crime of the non-consensual distribution of intimate images:

162.1(1) Everyone 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, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Definition of an “intimate image”

(2) In this section, “intimate image” means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time of the offence is committed.

Defence

(3) No person shall be convicted of an offence under this section if the conduct that forms the subject0matter of the charge serves the public good and does not extend beyond what serves the public good.

Question of fact and law, motivates

(4) For the purposes of subsection (3),

(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

One can imagine just how far reaching the effects of this offence could be. For a more complete overview on victim demographics, MacLean Magazine’s has recently published data from Statistics Canada to demonstrate who in the Canadian population is being affected by cyberbullying. They have defined cyberbullying as any receiving threatening or aggressive messages; hate comments spread through emails, instant messaging or posts on internet sites; or threatening emails sent using a victim’s identity falsely. This definition is very similar to that in Bill-C13. Astonishingly, up to 11% of Canadian adults have reported being victims of cyberbullying. Further, those between the ages of 15 to 24 are mostly likely to experience cyberbullying.

For a more comprehensive overview, visit: http://www2.macleans.ca/2013/09/06/cyberbullying-and-its-victims/.

The application of this legal framework is somewhat problematic given the nature of telecommunication, notably the multitude of ways information is communicated and accessed over the internet. In cases where a person receives an intimate image or photograph and sends it to a third-party without consent, the elements required to successfully convict that person under the Act are easily established. From a practical standpoint, however, it will not always be so simple. The lowered threshold for committing this offence, to being reckless about whether or not the person gave their consent, casts a wide net for possible offenders.

Imagine a hypothetical situation where the following takes place between three fictional characters:

  • Nicholas and Bonnie are high school sweethearts involved in an intimate relationship. To prove his love, Nicholas decides to send Bonnie an intimate image of himself.
    • In and of itself, the act of sending the image conveys Nicholas’ consent for Bonnie to possess the image, even though his consent was not expressly provided.
  • Bonnie receives the image and stores it in the photo library on her iPhone.
  • After some time passes, the relationship between the two deteriorates, resulting in a nasty breakup; both parties end up with hurt feelings.
  • Bonnie is vindictive and, because she feels Nicholas broke her heart, she decides to embarrass Nicholas by texting the image to her friend, Danielle.
  • At this point, Danielle does not have Nicholas’ consent to possess the picture. If Nicholas becomes aware of Danielle possessing the picture and decides to approach the police, there is sufficient evidence to charge Bonnie because she either knowingly sent the image without his consent, or was reckless about not having consent. As with all criminal proceedings, this would have to be proved beyond a reasonable doubt. But, for now, let’s assume Nicholas does not know Danielle has a copy of the image.
  • Danielle does not know whether or not Nicholas consented to Bonnie having the picture. Regardless, she wants to be a good friend and lift Bonnie’s spirits. She then decides to write a caption on the picture and post it in their basketball team’ Facebook group.
    • Some members of the group knew about Bonnie and Nicholas’ relationship whereas some did not.
  • Owing to Danielle’s comedic caption, the other ten members of the group decide to share the image over the internet or via text.
  • Zoe, who is not a member of the group but is friends with Nicholas, receives a copy of the image via text from both Steph and Charlie. Steph and Charlie are members of the team, but do not know about Bonnie and Nicholas’ relationship or where the image came from. For all they know, it could have been any random person on the internet. Nonetheless, Zoe informs Nicholas that his intimate image was shared in the Facebook group. Nicholas tells his parents, who become irate, contact the police, and want every member of the group who shared the image charged. 

In this scenario, it becomes difficult to determine who could properly be charged under this offence. It is clear that Bonnie, Danielle, and any member of the Facebook group who knows Nicholas could be charged because they either knowingly communicated the image without Nicholas’ consent or were reckless about determining if he consented to sharing the image. The situation is much more difficult for Steph and Charlie, since they do not know Nicholas and simply found the image in the group forum. Should they ought to have known that they needed consent? Were they required to investigate the source of the image? Are they too far removed from the original communication to attract criminal liability?

The courts will likely find that Steph and Charlie are too far removed to properly fall within the parameters of this offence; however, the others can be charged for their actions. Since the purported purpose of this legislation is to combat cyberbullying, it will be interesting to see if the courts will impute some level of the required mens rea intent into the equation. 

In Part Two of Bill C-13 and the Criminalization of Cyberbullying: Sacrificing Privacy for Protection, we will 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.

Nathaniel B.F. Marshall and Emma L. Halpin