Cyberbullying and the Non-consensual Distribution of Intimate Images

Existing Criminal Code Responses to Cyberbullying

There is no specific provision in the Criminal Code for cyberbullying, or even bullying more generally. Bullying captures a wide range of behaviour, most of which does not amount to criminal conduct, for example, name calling, teasing, belittling and social exclusion. However, when the bullying behaviour reaches the level of criminal conduct, the Criminal Code contains several provisions that can address this behaviour.

Depending on the nature of the activity involved, a number of Criminal Code offences may apply to instances of bullying or cyberbullying, Footnote 17 including:

  • criminal harassment (section 264)
  • uttering threats (section 264.1);
  • intimidation (subsection 423(1)),
  • mischief in relation to data (subsection 430(1.1));
  • unauthorized use of computer (section 342.1);
  • identity fraud (section 403);
  • extortion (section 346);
  • false messages, indecent or harassing telephone calls (section 372);
  • counselling suicide (section 241);
  • defamatory libel (sections 298-301);
  • incitement of hatred (section 319); and,
  • child pornography offences (section 163.1);

Bullying behaviour that amounts to actual attacks on persons or to property may also be caught by a number of provisions including assault (sections 265-273) and theft (sections 322-344). Bullying behaviour that amounts to threats or harassment that causes a person to fear for their safety or that of others known to them is covered by sections 264 and 264.1 (criminal harassment and uttering threats). (See Annex 3 for examples of cases where existing offences were used to prosecute bullying behaviour).

The Criminal Code also protects against some conduct that could cause injury to the reputation of a person or expose him to hatred, contempt or ridicule, either through publishing a libel (section 301) or publishing a libel known to be false (section 300). In recent years, various levels of court, including the Supreme Court of Canada, have provided guidance with respect to these provisions, and their relationship with the right to freedom of expression. In R.v.Lucas, Footnote 18 the Supreme Court of Canada upheld the offence of publishing a libel known to be false (section 300), stating it was a reasonable limit under section 1 of the Charter.

However, with respect to section 301, several provincial courts of appeal have struck down the provision as not being a reasonable limit on freedom of expression under the Charter. Footnote 19 The jurisprudence relating to these sections highlights the limited reach of the criminal law as it pertains to speech and expression, which is the essence of the bullying and cyberbullying behaviour not currently covered by the criminal law.

The recent Supreme Court of Canada decision in Saskatchewan (Human Rights Commission) v. Whatcott Footnote 20 illustrates the limits that can be placed on free speech. The Court held that the legislative prohibitions in the Saskatchewan Human Rights Act prohibiting hate speech infringe section 2(b) of the Charter, but are justified under section 1. However, the Court struck the words, "ridicules, belittles, or otherwise affronts the dignity of" from the Act as those words rendered the prohibition of speech overbroad. The Whatcott decision calls into question the feasibility of creating an offence to cover behaviour that is often implicated in cases of bullying and cyberbullying.

The offences of general application listed above apply equally to conduct that occurs via the Internet with one exception: section 372 (false messages, indecent telephone calls, harassing telephone calls) contains three offences that are relevant to the bullying context, but they refer only to older forms of communications technology. For example, the offences of indecent telephone calls in subsection 372(2) and harassing telephone calls in subsection 372(3) only apply when the means of communication used is the telephone; false messages in subsection 372(1) contains a more open-ended list of modes of communication but it is not clear whether it would be interpreted to include cyber-communications/electronic communications. There have been several attempts to modernize the language of section 372, most recently through Bill C-30 Footnote 21 (The Protecting Children from Internet Predators Act), to ensure that these offences apply to acts committed by any means of telecommunication, including via the Internet. As well, those proposals would have expanded subsection 372 (2) to cover not only making an indecent communication to the person they were intending to alarm or annoy but making the communication to any other person. This would expand the coverage of section 372 to include certain types of communications, for example, when the communication is broader than just between two people which may be useful in addressing some cyberbullying done through distribution of communications to a broader audience.

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