Wednesday, November 15, 2017

Ontario Court of Appeal confirms online harassment conviction where threatening website was “about” the complainant but not a threat directed "to" the complainant

At a time when the courts and the rest of the justice system are grappling with how traditional Criminal Code offences and online misconduct intersect, the Ontario Court of Appeal has issued an important decision in R v. Sim on how criminal harassment can take place online. Often, police and others are stuck in an analog paradigm of traditional stalking and menacing.

In this case, the accused created an incredibly offensive website that was not directed at the complainant but was about her, and directed to a select audience that appears to have been intended to exclude her.

The accused used to work in the same building as the complainant lived. They became friends and when the accused showed a romantic interest in the complainant, the complainant made it clear that the feelings were not reciprocated. They went their separate ways, each married other people and started families. They communicated by email from time to time, apparently just to catch up on what the other was doing.

In the meantime, the accused created a Yahoo! Groups website that, according to a statement on the homepage, was dedicated to “the degradation and online spreading” of the complainant. He recruited at least 150 others to join the site. According to the Court:

[9] Sim posted extensive biographical details and photos of the complainant on the website. He authored false, degrading, vile, and grotesque sexualized commentary about her on the website’s messaging forum. He encouraged group members to post their own vile comments about the complainant, to author and share crude sexual fantasies involving her, and to alter photographs of her in a sexually degrading way and share those as well. …

The complainant became aware of the site in 2013 and, with the help of a friend, she created a username and password to get full access to the site.

The accused was charged with criminal harassment and publishing a defamatory libel. He was convicted of harassment and acquitted of defamatory libel. The accused appealed his conviction to the Ontario Court of Appeal, arguing that the necessary actus rea of harassment had been made out.

The accused had been convicted under paragraph 2(d) of section 264 of the Criminal Code:

(1) Criminal harassment – No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited conduct – The conduct mentioned in subsection (1) consists of …

(d) engaging in threatening conduct directed at the other person or any member of their family.

The trial judge acknowledged that if “threatening conduct” required a subjective intention to threaten the complainant, the accused should be acquitted for lack of evidence. But the judge decided that there was no such requirement; rather the question is whether the conduct is objectively threatening.

In 2008, the Ontario Court of Appeal in R. v. Burns determined that an objective standard was required for the actus rea of criminal harassment under paragraph 2(d):

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in “threatening conduct”. We accept the definition of threatening conduct given in R. v. George at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a “tool of intimidation which is designed to instill a sense of fear in the recipient”. The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regards to the effects those acts had on the recipient. [Citation omitted.]

With regard to the accused’s specific arguments, Laskin JA, on behalf of a unanimous Court, wrote:

[18] First, Sim’s submission is inconsistent with s. 264(1) of the Code and thus is contrary to Parliament’s express intent. Subsection 264(1) specifies that the mens rea component of criminal harassment can be met by an accused’s knowledge or recklessness. To suggest that the actus reus of threatening conduct requires a specific intent to instil fear is contrary to the plain language of s. 264(1).

[19] Second, as this court said in Burns, under s. 264(2)(d) the conduct in question must be viewed objectively. In other words, would the accused’s threatening conduct cause a reasonable person in the complainant’s situation to fear for her safety? The word “designed” does not require the Crown to prove the accused’s subjective intention. And, in assessing whether an accused’s conduct is threatening under s. 264(2)(d), a judge is not required to get into the accused’s mind.

[20] Instead, the word “designed” is meant to focus on the effect of the accused’s conduct on a reasonable person in the shoes of the target of the conduct. In Burns, this court clarified that the objective assessment must consider the circumstances in which the conduct took place, and the effects that the conduct actually had on the complainant. Although an accused's threatening conduct may not affect every target of that conduct, in every conceivable situation, it could well instill fear in a reasonable person in the complainant’s specific situation, particularly when the actual effects of the conduct on the complaint are considered. That is the case here. The trial judge did not err in finding that the Crown had established the actus reus of the offence.

While the site at issue was clearly about the complainant, there was no evidence that it was directed at the complainant in order to threaten her. This decision will hopefully reinforce the notion that the criminal harassment offence may be made out in cases where the accused creates “threatening” content about the victim, rather than directed to the victim.

[An earlier version of this case summary was written for the Canadian Technology Law Association’s newsletter.]

Wednesday, November 01, 2017

My suggestions to the NS Minister of Justice to facilitate access to justice under the new cyberbullying law

I have expressed some concerns about Nova Scotia's new Intimate Images and Cyber-protection Act, mainly related to barriers to access to the courts by the adoption of a regular procedure for applications in the Supreme Court of Nova Scotia. The new law allows the Minister of Justice to make regulations about the procedures for such applications. I hope the Minister of Justice makes regulations that will facilitate access to the courts while ensuring fairness for everyone. To that end, I sent the below letter to the Minister today:

Dear Minister Furey:

RE: Bill 27, the Intimate Images and Cyber-protection Act

As you know, the Nova Scotia legislature recently passed Bill 27, the Intimate Images and Cyber-protection Act. The Act sets out a mechanism by which victims of cyberbullying and the non-consensual distribution of intimate images may seek an application for relief and damages in the Supreme Court of Nova Scotia.

I am writing in my personal capacity, and not on behalf of my firm or any of its clients.

I have expressed some concerns about the Act, to your department’s officials, through public commentary and in a written submission to the Law Amendments Committee. My main concern related to access to justice, given the cost and complexity that is inherent in applications in the Supreme Court of Nova Scotia under Rule 5 of the Civil Procedure Rules. Of course, these proceedings are simpler than Actions brought under Rule 4, but I expect that process will still be daunting, particularly for self-represented individuals or younger persons. It would be tragic if such complexity were the deter victims from seeking justice. I am also concerned about the administration of the courts, which I understand is challenged by self-represented litigants handling their own complex proceedings without the benefit of legal counsel. Given the fallout from R v Jordan, 2016 SCC 27, this concern is particularly acute.

The reason for my letter is to suggest that you exercise your authority as Minister to make regulations that, among other things, address procedures for applications. From the Act:

15 (1) The Minister may make regulations

(a) respecting forms and procedures for hearing an application under Section 5, including an application to extend, vary or terminate an order; and ….

If I may suggest some characteristics of these proceedings that you may wish to specifically consider:

  • The default timelines for applications should be abbreviated. It is my experience that victims of cyberbullying want the behaviour to stop or want their intimate images removed as quickly as possible.

  • Perhaps a specific form for the application can be prescribed, similar to the form currently used for peace bond applications in the Nova Scotia Provincial Court.

  • It is important for victims to be specifically “heard” and be given the opportunity to tell their story to the Court. Relying exclusively on affidavit evidence with only cross-examination in Court may not be appropriate for these proceedings, though it remains important that the respondent know and understand the specific allegations in advance.

  • The Civil Procedure Rules currently require a written brief, which is likely daunting for a victim to consider.

  • The Act prescribes circumstances where an applicant is entitled to a publication ban. I am afraid that without clear guidance, victims may be confused about the effect of including their full name in the style of cause for an application. Perhaps all applications can be sealed by the Court for a few business days until a Judge or the Prothonotary has determined whether a publication ban is being sought?

  • The Act also permits applications to seek information to identify an unknown respondent. A clear path, on an expedited basis, for seeking an ex parte order for the identification of an unknown respondent would be helpful.

  • Given that the Act addresses intimate images in which the victim has had and continues to have a privacy interest (some of which may include child pornography or voyeurism images), a streamlined procedure by which evidence can be sealed would be desirable.

I know we both share a common desire to make sure that this Act is effective in protecting victims. I hope that regulations along the lines set out above will make sure that legal remedies are within reach of victims.

If I can be of assistance with this process, please let me know.