QUICK TAKEAWAY
Cyberbullying: There is no specific section in the Criminal Code dealing with bullying or cyberbullying, but the Department of Justice (DoJ) lists 12 sections that can be used to prosecute an offender, including criminal harassment, extortion and counselling suicide. Cyberbullying is a hybrid offence in the Code, and the Crown prosecutor can proceed as an indictable offence or by summary conviction, which will be reflected in sentencing. You could face life in prison if convicted, depending on the specific section of the Code used.
Table of Contents:
What is Cyberbullying?
Cyberbullying is known as hating, drama, gossip or trolling, according to Public Safety Canada (PSC), who call it a serious crime that can be "emotionally damaging and even lead to tragic consequences." PSC notes that incidents are most often sustained and repeated over a period of time and can be damaging to the victim's "feelings, self-esteem, reputation and mental health."
According to the Department of Justice (DoJ) a wide range of behaviour can be considered bullying. Things such as name calling, teasing or social exclusion are not subject to prosecution. However, if your behaviour reaches the level of criminal conduct, different sections of the Code can be used to prosecute including:
- criminal harassment (s.264);
- uttering threats (s.264.1);
- intimidation (ss.423 (1);
- mischief in relation to data (ss.430 (1.1)):
- unauthorized use of computer (s.342.1);
- identity fraud (s.403);
- extortion (s.346);
- false messages, indecent or harassing telephone calls (s.372);
- counselling suicide (s.241);
- defamatory libel (s.298-301);
- incitement of hatred (s.319); and,
- child pornography offences (s.163.1).
Public Safety Canada notes cyberbullying commonly occurs by:
- Sending hurtful or threatening messages by email, text or through comments on a social networking page.
- Taking an embarrassing picture or video of someone and sending it to others or posting it online without the victim's knowledge or permission.
- Posting online stories, pictures, jokes or cartoons that are intended to embarrass or humiliate the victim.
- Hacking someone's email account and using their identity to send hurtful content to others.
- Using the victim's password to access their social networking account to post material that would be embarrassing or offensive.
- Creating online polls that negatively rate people.
- In online gaming, harming a player's character repeatedly, ganging up on a player or using personal information to make direct threats.
Charges Used to Prosecute Cyberbullying
There is no specific provision in the Criminal Code for cyberbullying or bullying. Instead, there are a number of sections that can be used depending on the circumstances.
Criminal Harassment
Criminal harassment is found under s.264 of the Code and can include many different behaviours intended to control and frighten the victim. It can cause fear, depression, alienation, isolation, loss of confidence, confusion, powerlessness and hopelessness. If the charge is treated as an indictable offenceIndictable offences are more-serious criminal offences you could face up to 10 years in prison or up to 18 months in jail if it is prosecuted by summary convictionUsed for lesser offences.
Uttering Threats
If you verbally threaten someone you could be charged with uttering threats under s.264.1 (1) of the Code. Threatening to cause death or bodily harm will be treated as an indictable offence with the maximum punishment of five years in prison.
Intimidation
Subsection 423 (1) of the Code states that intimidating someone for the purpose of compelling them to abstain from doing anything they have a lawful right to do can face a prison term of up to five years if convicted.
Mischief in Relation to Data
If you wilfully destroy or alter computer data; render computer data meaningless, useless or ineffective; obstruct, interrupt or interfere with the lawful use of computer data; or obstruct, interrupt or interfere with a person in the lawful use of computer data or deny access to computer data to a person who is entitled to access to it can be convicted under ss.430 (1.1). The Code states that anyone who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.
Unauthorized Use of a Computer
Unauthorized use of computer, or hacking, is covered under s.342.1 and states that if you fraudulently obtain ? either directly or indirectly ? any function of a computer system with intent to commit an offence can face a prison sentence of up to 10 years.
Identity Fraud
Identity fraud, covered under s.403 of the Code, makes it an offence to fraudulently impersonate another person, living or dead with the intention to gain an advantage for themselves or another person or to cause hardship to the victim. It is also illegal to impersonate someone to avoid arrest or to obstruct justice. It is punishable by a maximum 10 years in prison.
Extortion
Extortion is also known as blackmail and can result in a sentence of life in prison. Attempting to force another person to do something "by threats, accusations, menaces, or violence" is an indictable offence under s.346 (1).
False Messages, Indecent or Harassing Telephone Calls
If you convey information you know is false with intent to injure or alarm a person you can be charged under s.372. The maximum jail term is two years less a day.
Counselling Suicide
Under s.241 of the Code if you counsel, encourage or aid a person to commit a suicide you could face a prison sentence of no more than 14 years. It doesn't matter if the suicide was successful.
Defamatory Libel
A defamatory libel is something published without justification that is likely to injure the reputation of any person by exposing them to hatred, contempt or ridicule. Defamation can be a criminal offence or a civil wrong, which can result in a lawsuit. Defamatory libel is covered by s.298-301 and can result in a jail term of two years less a day.
Incitement of Hatred
Anyone who incites hatred by making public statement against any identifiable group that is likely to lead to harm is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years under s.319 of the Criminal Code.
Child Pornography Offences
Section 163.1 states that every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of one year in jail. The section protects victims under the age of 18.
What is Needed to Convict
The Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must prove beyond a reasonable doubt that you committed the offence and the victim is not fabricating the testimony against you. Any forensic evidence linking you to the crime can be challenged for its validity. Your lawyer may be able to show that your rights under the Canadian Charter of Rights and Freedoms were breached during a police investigation.
Treated as a Summary Conviction or Indictable Offence
Cyberbullying is a hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence, meaning the Crown can proceed with the charge as an indictable offence or by summary conviction. Being found guilty of an indictable offence carries penalties that are more stringent than summary conviction.
The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.
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Kavanagh Law Corporation
Matthew Gould
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Amado Claros Law Office
Phillips Aiello Barrisers & Solicitors
Mat Schwartz
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
