Canadian legal think tanks weigh in on Bill C-13

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A look at the proposed cyberbullying law

By Annika M. Friesen

Bill C-13, Protecting Canadians from Online Crime Act, was brought forward because of the international media coverage that raised awareness about cellular and online stalking and cyberbullying. Specifically, the suicides of Amanda Todd and Rehtaeh Parsons, both victims of relentless bullying on the Internet, brought the issue to a head in Canada.

The bill isn’t without controversy. In the wake of a rather damning decision from the Supreme Court of Canada, which found police requests under PIPEDA for personal information from telecommunications providers without a search warrant are unconstitutional, the constitutionality of some investigative provisions of Bill C-13 with respect to the retrieval of Internet data has been questioned as a possible infringement on the privacy of Canadians.

Notwithstanding these concerns, Bill C-13 addresses a serious gap in the Criminal Code that should lead towards its prompt enactment. It does so by creating a new criminal offence prohibiting the distribution of intimate images of a person without their consent. Because child pornography offences already criminalize the possession or distribution of intimate images of minors, the offence extends criminal culpability to the dissemination of such images of non-consenting adults.

The Canadian Bar Association (“CBA”) issued a submission presented to the Federal Justice Committee with 19 recommendations for the Bill, stressing that the creation of the new offence is important legislation but that its language requires refinement to ensure it only captures conduct which should be criminalized. The CBA’s main contention is that the wording of the offence itself casts the net too wide by including situations the government likely didn’t intend to criminalize. The CBA suggests that the offence be limited to these situations in which a deliberate intention to bully or harass exists, an exemption for information in the public interest and that someone who is reckless as to whether the person gave their consent not be caught by the offence.

Anyone who creates or distributes intimate images of minors could be charged with a child pornography offence. There is no element of consent, even between two minors close in age, when it comes to images of minors. However, there is always discretion in the prosecution as to whether it is appropriate to lay or continue with charges. Criminal charges are generally not considered where a minor voluntarily creates an intimate image and shares it with another minor and it goes no further than that. Generally, despite the seriousness of the issue, criminally charging youths who engage in cyberbullying should not be a first reaction, but a discretionary last resort. However, when images are disseminated in a manner that crosses the line into potentially criminal conduct, the new offence would give prosecutors an alternative for prosecuting youth outside of child pornography provisions, which the CBA notes carry harsher penalties and stigma.

West Coast LEAF (the Legal Education and Action Fund) recently released a report entitled “#CyberMisogyny: Using and Strengthening Canadian Legal Responses to Gendered Hate and Harassment Online.” The report adopts the term “cyber misogyny” to encapsulate “the diverse forms of gendered hatred, harassment and abusive behaviour directed towards women and girls online.”

West Coast LEAF reports on recent statistics of the number of young people engaged in “sexting” behaviour – sending intimate images of themselves to others through cell phone messaging. It cites a recent Canadian study that revealed eight per cent of students in grades four to 11 had sent a sext of themselves to someone else and 24 per cent reported receiving a sext from someone else. These numbers rise as teens get older and boys are almost twice as likely as girls to receive a sext created for them.

The major cause of concern, that has proven extremely damaging, is the forwarding of images to others. Just under a quarter of students who sent a sext of themselves said it had been forwarded on to someone else. Thirty percent of grade 11 students reported receiving a forwarded sext.  Girls disproportionately suffer social ridicule when their intimate images go awry and we have seen that the consequences can be tragic.

Both West Coast LEAF and the CBA suggest dividing Bill C-13 into two bills to allow the government to move ahead with the new offence and its surrounding provisions, while the controversial provisions dealing with search and seizure of Internet data (often called “lawful access” legislation) receive further attention and debate.

The law needs to respond to the pressing concern of increasing harassment and abuse in the cyber world. Bill C-13 is a step in the right direction. It further allows a sentencing judge to require an offender to pay the costs of an aggrieved person to remove the image from digital networks and to set strict conditions as to the offender’s use of the Internet or digital networks for an appropriate length of time.

Although Bill C-13 is far from perfect, it strives to address a gap in the justice system. No teenager should be driven to suicide by cyberbullying. If the proposed law is passed, it will give the justice system a means to hold harassers accountable for their actions. It might also deter online harassment. The law will not get to the root of the cyberbullying problem, as this is an issue that parents and schools need to address, but it does acknowledge the seriousness of the destructive, even life-threating, behaviours of cyberstalkers and cyberbullies.   

Annika M. Friesen practises primarily in the area of civil litigation. She is also a volunteer with LEAF Manitoba and has delivered the “No Means No” workshop to hundreds of Manitoba students on issues surrounding consent.  She can be reached at afriesen@fillmoreriley.com or (204) 957 8328.