What to do if you are Facing Cyberbullying

Public Safety Canada defines cyberbullying as the use of computers, smartphones, or similar devices to embarrass, hurt, mock, or threaten another person online. Typically, people view cyberbullying as a problem that only occurs among children and young adults on social media platforms. While it is true that cyberbullying is a major problem faced by youths that poses a threat to their physical and mental health; that problem can be faced by any Canadian in online space. It is not just young people who can be victimized by behaviour that falls under the definition of cyberbullying.

Cyberbullying is more than just posting hurtful comments on social media. It can include a wide range of actions that are designed to humiliate someone, or even trick them into giving up their property. One of the most important features of the internet is the anonymity it offers which gives users the opportunity to avoid taking accountability for their actions. The reality of most cyberbullying is that you may never know who has targeted you for online harassment, or exactly what tactics a cyberbully might use. However, it is important to know that the police can use various investigative techniques to discover if someone is using fake accounts to commit a crime related to cyberbullying.

Is Cyberbullying a Crime?

Cyberbullying on its own is not a crime recognized under the Criminal Code. However, several forms of cyberbullying are considered an offence under the Criminal Code. Public Safety Canada has compiled a list of crimes that are closely related to, or are considered cyberbullying. Among the most common are the sharing of intimate images without consent, criminal harassment, uttering threats, identity theft, child pornography, and extortion. Each of these offences and others may be the result of cyberbullying. The range of criminal behaviour this list details demonstrates the scope of the problem cyberbullying presents to our society.

The sharing of intimate images is one of the more well-known crimes tied to cyberbullying. Under s. 162.1(1) of the Code anyone who knowingly publishes, transmits, or makes available an intimate image of another person without that person’s consent is guilty of that offence. An intimate image is defined as any photo or video where a person is nude, exposing their genitals, or is engaged in sexual activity.

Within the context of cyberbullying, an offender may post an intimate image of their victim to humiliate them. Given the subject matter and privacy interests involved, the sharing of intimate images is a serious criminal offence. It can sometimes be paired with the offence of extortion. Extortion, under s. 346(1) of the Code, would involve an offender trying to obtain something from another person by threatening them. In the context of cyberbullying, this could mean that the offender might threaten to release an intimate image of the victim unless they pay a certain amount of money. The predatory nature of this offence is another example of the seriousness of cyberbullying. Those convicted of these types of offences face potential jail time.

What are the Possible Legal Consequences of Cyberbullying?

Aside from the main sentence an offender receives for a criminal offence related to cyberbullying (i.e. a jail sentence), there are several other consequences they might face. These secondary consequences are known as ancillary orders that a judge might impose depending on the circumstances of each offence and case. For offences such as the sharing of intimate images without consent, an offender may be required to register as a sex offender pursuant to a SOIRA order. The offender may also have to provide a sample of their DNA pursuant to a DNA order. Depending on the case, a court may also issue an order restricting access to children, which would impact the places they offender would be able to go. In some cases, the court may even restrict access to the internet.

For other offences related to property, an offender may be subject to a forfeiture order which requires them to give up any property they used to commit an offence, such as their computer. Often the items forfeited were seized by law enforcement when the offender was arrested. If an offender managed to extort or otherwise take a victim’s property as part of their cyberbullying, the court will order the offender to return the items or pay for their value under a restitution order if return of the items is not possible. In most cases, offenders will be ordered to pay victim fines as well.

Apart from the legal consequences of committing an offence connected to cyberbullying, an offender will have to deal with the social stigma of having a criminal record. This reality could impact the offender’s ability to find work, or even to travel internationally depending on the offence they were convicted of.

Will an Offender go to Jail for Cyberbullying?

Whether an offender will be imprisoned for an offence related to cyberbullying depends on the offence they committed and the circumstances of that offence. In general, under Canadian law, imprisonment is the sentence of last resort for offenders and will not be imposed unless there are no other suitable options that are appropriate to the offender’s situation. Imprisonment is even rarer when the charged person is a young offender. One of the main purposes of the Canadian criminal justice system is to rehabilitate offenders rather than solely punish them.

Based on these principles, the job of the court in every case is to determine the most appropriate sentence. To accomplish this, a court must look at all the facts of a case. That includes reviewing the circumstances of both the offender and any victims. Each case features a unique set of factors known as aggravating and mitigating factors that increase or decrease the sentence an offender should receive respectively. Examples of aggravating factors might include: the nature and severity of an offence, how many times it was committed, whether the offender abused a position of power over the victim, or if the victim was a vulnerable person such as a child. Examples of mitigating factors may include whether the offender pled guilty to the charged offence, the offender’s lack of criminal history, or their young age. A court will consider all factors that may be present in a case and from there will determine if an offender convicted of a crime related to cyberbullying will be imprisoned.

How Does the Crown Prove an Offence Related to Cyberbullying?

How a Crown attorney proves that an offender committed a crime related to cyberbullying depends on the specific offence that has been charged. Each offence has its own unique elements that the Crown must prove beyond a reasonable doubt to convict an offender. However, every criminal offence includes three basic elements. These include the identity of the offender and the date, time, and location, or jurisdiction, of the offence. Once the Crown has proven these elements, they will move on to the offence-specific elements.

Take for example the offence of sharing intimate images discussed above. The first thing the Crown must prove is that the offender published, transmitted, sold, or otherwise made available an image according to the relevant provision of the Code. The Crown must then prove that the image shows a person and that it meets the definition of an intimate image discussed above. Next, the Crown must prove that the person in the image did not consent to the sharing of that image and finally, that the offender either knew that the victim did not consent or recklessly ignored the issue of consent even if they should have known better. If each of these elements can be proven beyond a reasonable doubt, then a court will convict the offender of a crime that may be related to cyberbullying.