Cyberbullying and the Non-consensual Distribution of Intimate Images

Annex 3 - Reported Canadian Cases

I. Reported Cases Involving, Bullying and Cyberbullying

In AB v Bragg Communications, Footnote 66 the Supreme Court of Canada highlighted the need to protect young victims from the inherent harms of cyberbullying as these cases are brought through the justice system. The case involved a 15-year-old female victim of bullying via Facebook who requested to proceed anonymously in her application for an order requiring disclosure of the perpetrators' identities so that she could potentially name them in an action for defamation. The 15-year-old girl found out that someone had posted a fake Facebook profile using her picture, and her picture was accompanied by unflattering comments about her appearance and included sexually explicit references. Her request for anonymity and a publication ban was refused by the Nova Scotia Supreme Court, and that decision was upheld on appeal by the Nova Scotia Court of Appeal. In the Supreme Court of Canada's judgement, Justice Abella referred to the 2012 Report of the Nova Scotia Task force on Bullying and Cyberbullying and noted that the girl's privacy interests are tied to the relentlessly intrusive humiliation of sexualized online bullying. Footnote 67 The Court found that while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernible harm. The ruling allowed the teenager to pursue the case using only her initials but did not impose a publication ban with respect to the non-identifying Facebook content. Footnote 68

In R v. DH, [2002] BCJ No 2454, [2002] BCJ No 2136, Footnote 69 the accused and two other teenagers approached Dawn Marie Wesley, a grade 9 student, and threatened to beat her up. The next day, she hanged herself shortly after the three teenagers called her. Her suicide note said that she was threatened by bullies and believed death was her only escape. The accused was charged with uttering a threat and convicted of this offence. Two girls from her school were also charged with uttering threats. One girl was acquitted and the other girls were convicted of criminal harassment.

R. v. G.J.M., 1996 CanLII 8699 (NS CA), involved a 14-year-old accused. The accused and his friend pestered the slightly younger and smaller complainant for money and food in a hamburger shop. The accused was not satisfied with the money that the complainant gave him and so he followed the complainant onto the street, making threatening comments. The complainant reported being "really scared." The accused was convicted of criminal harassment, and the appeal from his conviction was dismissed by the Nova Scotia Court of Appeal. Footnote 70

The case of R. v. Wenc, 2009 ABPC 126, aff'd 2009 ABCA 328, involved two men who entered into an intimate relationship after meeting online. Shortly after the complainant terminated the relationship, the accused began harassing him through repeated phone calls and voice mail messages, as well as numerous e-mail and fax messages. The accused used false identities and third-party computers, making the process of tracing the source of the harassment difficult and lengthy, and also spread false online rumours that the complainant was spreading HIV, sent nude photographs of him to their friends and assumed the identity of the complainant in chat rooms, causing strangers to come to the victim's residence expecting sexual encounters. The accused was convicted of criminal harassment.

In R v. Greenberg, 2009 ONCJ 28, the accused was charged with criminal harassment for repeatedly communicating with the complainant, primarily over MSN but also by email and by cell phone. The accused was 23-years-old and the complainant was 19-years-old. They were university students in the same program when they began a "on again/off again" relationship which lasted approximately 18 months. Footnote 71 When the complainant ended the relationship, the accused was unable to let go of the relationship, was jealous of her relationship with a mutual friend and was attempting to control the complainant's actions. She blocked him from MSN several times, but had unblocked him to ask for help with her homework, then blocked him again. He repeatedly communicated with her by various means for almost 3 weeks notwithstanding her demands to stop. The MSN communications were transcribed and uncontested. The judge observed that "he intended to harass her and succeeded in doing so. I accept that the complainant feared for her safety. In all the circumstances, especially having regard to the defendant's mood swings, that fear is reasonable." The accused was found guilty of criminal harassment.

II. Reported Cases Involving the Non-Consensual Distribution of Intimate Images

Criminal Harassment

In R v. Korbut, 2012 ONCJ 522, 2012 ONCJ 691, the accused had an extra-marital relationship with the complainant, and after the relationship ended, carried out a "premeditated, escalating campaign in the form of deliberate, callous and vindictive harassment" Footnote 72 against the complainant. The accused stole the complainant's diaries, address book and cell phone. He subsequently published highly embarrassing texts and website links to numerous sexually explicit photos and videos that the former couple had made, sent a sexually explicit video to the complainant's new partner and created a fake profile for the complainant on a dating website which included some of the photos, among other things. The judge accepted that the accused's conduct in circulating the damaging publications caused the complainant to fear for her safety. Footnote 73 The accused was convicted of criminal harassment and theft under $5,000. He was sentenced to a 90-day intermittent imprisonment for criminal harassment and a 6 month conditional concurrent sentence for theft under $5,000, and 3 years probation.

In R v. Fader, 2009 BCPC 61, the accused was found guilty of criminal harassment for conduct that included sending sexually explicit pictures and videos of the complainant to the complainant's new boyfriend, threatening to send nude pictures of her to numerous people who knew her, and posting pictures of her and her contact information on an adult dating website, which resulted in people contacting her. The judge found that the accused was motivated by jealousy and anger and embarked upon a course of conduct, the motive of which was to make her life miserable." Footnote 74

In R v. Barnes, [2006] AJ No 965, aff'd 2006 ABCA 295, the accused used his computer skills to obtain details of the complainant's personal life, steal her identity and electronically distribute her nude photographs. He continued to do so despite a no-contact order, even while living overseas, where he fled after warrants for his arrest were issued. The complainant described his relentless campaign of harassment as a systematic attempt to destroy her life. The accused admitted that his intentions were to embarrass the complainant and create problems for her. Footnote 75 The judge characterized the particular type of harassment endured as "cyber stalking" and observed that "[a]n important consideration is that cyber stalking can cause harm to people in their essential lives." Footnote 76 The accused pleaded guilty to one count of criminal harassment and to several other charges. He was sentenced to 20 months incarceration and his appeal of this sentence was dismissed.

In R. v. T.C.D., 2012 ABPC 338, the accused turned 18-years-old one day after her co-accused, a male young offender, distributed nude photographs of the 14-year-old female complainant. The accused and complainant were friends until they both got involved with the co-accused. The co-accused had received nude photographs of the complainant by text. After the complainant and co-accused had a falling out, the accused provided the co-accused with the names and phone numbers of the people at her school to be sent the photographs, and later attended the complainant's high school for the purpose of bullying her by taunting her and calling her names. The judge found that this caused the complainant to fear for her safety. The accused entered a guilty plea to the charge of criminal harassment, and the Crown withdrew the charges relating to child pornography. The Crown characterized the situation as one of bullying, and the judge accepted as an aggravating factor in sentencing the Crown's submissions that this form of criminal harassment by people sending nude photographs to other people is becoming more and more prevalent in schools, noting further that this is criminal activity occurring in the community at large. The accused was given a suspended sentence and placed on probation for 12 months.

Extortion

R. v. Walls, 2012 ONCJ 835, is a case where the accused threatened to distribute intimate images of the complainant in order to induce her to engage in sex. The accused was 18-years-old and the complainant was 15-years-old when they met online. They had a relationship and the complainant shared intimate webcam images with the accused. They also met in person on at least one occasion where they had consensual sex. After the relationship ended, they remained in touch, and two years later the accused contacted the complainant using Windows Live Messenger. The accused asked the complainant on several occasions to have sex with him again, and led her to believe that he had kept naked images of her in the form of videos. He stated that he would dispose of the videos if she would agree to have sex with him, and when she continued to refuse his requests he indicated that he would keep the videos he made of her and make them available for others to view. The complainant then contacted the police. The accused pleaded guilty to one count of extortion. In sentencing the accused, the judge found it "irrelevant that he did not, in fact, possess the images of her that he claimed to have. He deliberately fostered that impression in her, in order to secure her cooperation." Footnote 77 The accused was sentenced to 15 months conditional sentence of imprisonment..

In R v. Hassan, [2009] OJ No 1378, aff'd 2011 ONCA 834, the accused was acquitted on all counts of criminal harassment related to threats to distribute, and actual distribution of, intimate photographs of his former girlfriend, the complainant, which he mailed to several people known to her. While the actions of the accused were characterized as "inappropriate and extremely nasty," it was not established that she "feared for her safety (psychological or physical) or that of anyone known to her." Footnote 78 The accused was, however, charged and convicted of one count of extortion. The accused had threatened to distribute the salacious photographs of the complainant, prior to actually doing so, to keep the relationship going and to compel her to comply with his wishes. He was sentenced to a term of 18 months, served under house arrest, followed by a further period of 3 years probation. Footnote 79

Child pornography

R. v. T.M.M.Footnote 80 (is an unreported decision concerning the dissemination of sexually explicit photographs of a youth by a youth over a cell phone. This case is discussed in R. v. Schultz: Footnote 81

In T.M.M., the accused pleaded guilty to a charge under s. 163(1)(a) of the Code. The Crown proceeded summarily on the charge. When the accused was 17 and the complainant was 15, the latter took certain explicit photographs of herself and sent them to the accused over her cell phone. She later discovered that the pictures were appearing on other people's cell phones. The accused denied having disseminated them. After the accused turned 18, he showed the photographs to two other teenage girls. The Crown recommended that the court suspend the passing of sentence and that the accused be put on probation for one year. Apparently, there were difficulties with proof of the possession and distribution of child pornography charges and so they were dropped. The accused did not have a criminal record. He was granted a conditional discharge.

In the case of R v. Schultz Footnote 82 the accused was 20 years old and the complainant was 16 years old when they had a relationship and photographed themselves posing and engaging in various sexual acts. After the relationship ended, the accused posted on a social networking site, Nexopia, the complainant's age, full name and offered to provide nude photographs to anyone who asked for them. He subsequently posted nude photographs of her on his webpage on several occasions to embarrass and humiliate her. The complainant had some of the images removed by contacting Nexopia and deleting them herself. She also contacted the RCMP and filed a complaint. The accused pled guilty to one count of transmitting child pornography and was sentenced to 12 months incarceration followed by 2 years probation.

Similarly, in R v. Walsh, 2006 CanLII 7393 (ON CA), the accused was 22 years old at the time he took photographs of the 15 year old complainant and himself engaging in consensual sex. The complainant later terminated their relationship. The accused was devastated by this and proceeded to make a collage of photographs of the complainant, including graphic sexual pictures that showed her face but not his, and which included her name and place of residence. He e-mailed the collage to various friends and acquaintances of the complainant. He also saved it in a shared folder on two peer-to-peer sharing programs. A friend of the complainant maliciously e-mailed the collage to the complainant's father, and a student at her school placed a printed copy of the collage in her locker. The accused pleaded guilty to the making and distribution of child pornography. The Court of Appeal reduced his initial sentence of incarceration for 2 years followed by 3 years probation with time already served (8 months in custody prior to his being granted parole) and the probation order was maintained. The Court of Appeal commented that "the circumstances of the case were vastly different from the typical child pornography case." Footnote 83 The Court of Appeal further noted the observations made by the Court when the accused was granted bail that "this is not the more typical situation where an offender is using the Internet as a business or a hobby to view or distribute child pornography. This was a one time, immature and very unfortunate response to a personal life event." Footnote 84

R v. Dabrowski, 2007 ONCA 619 involved an appeal by the Crown with respect to two charges of possession and distribution of child pornography of which the accused was acquitted. The accused was 28 years old when he had a short relationship with the complainant, a 14 year old girl. Both the accused and the complainant decided to videotape some of their sexual activities. Sometimes they were alone when the filming took place and on other occasions the accused's young male friends were present. After the relationship ended, the accused gave the videotapes to one of his young friends for "safekeeping." The accused threatened the complainant that he would show the videotapes to her family and friends and put them up on a website if she failed to "follow his rules." Footnote 85 The complainant's family found out about the videotapes and the complainant went to the police. The trial judge acquitted the accused on the three pornography offences he was charged with by applying the "private use" exception set out by the Supreme Court of Canada in R v. Sharpe, 2001 SCC 2. The Ontario Court of Appeal found that the trial judge failed to make a finding about whether the accused threatened to show the videotapes to the complainant's family and friends, and that the threat issue had to be considered in order to determine whether the "private use" exception applied. Footnote 86 A new trial on the charges of possession and distribution of child pornography was ordered.

In R v. M.K., [2004] OJ No 2574, the 20 year old accused used his cell phone to take nude pictures of his underage girlfriend without her knowledge. The accused posted those images on his website which caused the complainant to be very distraught. The accused pleaded guilty to the charges of criminal harassment, mischief to property, mischief in relation to data and distributing child pornography. The judge found that his conduct was "serious in that it was, at least in part, very intrusive and, in fact, malicious." Footnote 87 The accused was sentenced to 6 months imprisonment and 2 years probation. (This case occurred before the enactment of the offence of voyeurism).