Bullying, including cyberbullying, is a form of aggression, usually among children and youth but not always. When the bullying behaviour occurs via electronic means, it is often referred to as cyberbullying.
Bullying, including cyberbullying, can take many forms. Some forms, such as name-calling, teasing, belittling and social exclusion, are familiar and may be hurtful but are not criminal offences. However, bullying and cyberbullying conduct can escalate to more serious activities that are criminal offences under the Criminal Code, 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); incitement of hatred (section 319); child pornography (section 163.1); and defamatory libel (sections 298-301).
More recently, a new form of cyberbullying has emerged that is not covered by the criminal law. It involves the distribution of intimate (sexual) images without the consent of the person depicted in the image. Sometimes the motivation is to take revenge on a former partner (sometimes colloquially referred to as "revenge porn"). Young people are increasingly exchanging intimate images consensually, which is a problem in itself, but one that is exacerbated if those images later become fodder for humiliating cyberbullying attacks involving non-consensual distribution or so-called "sexploitation."
Bullies have been around throughout history, but the widespread use of new communications technologies increases the potential impact of bullying behaviour. Bullies can now expand their audience from the schoolyard to around the globe. Once the bullying conduct is in cyberspace, it may be permanently available over the Internet, where it can spread quickly and often uncontrollably. This may compound feelings of fear, humiliation, and social isolation and have other negative effects on victims. There have been several reported cases of teen suicide where cyberbullying is alleged to have played a part.
At their October 2012 meeting, Federal-Provincial-Territorial Ministers responsible for Justice and Public Safety directed senior officials to identify potential gaps in the Criminal Code on cyberbullying and the non-consensual distribution of intimate images. The results of that review were published in a report in July 2013. The report concluded that a multi-pronged approach was needed to address cyberbullying. In addition to education, public awareness, and family and community support, the report recommended that theCriminal Code be amended to address certain gaps in the law and give law enforcement officers better tools to deal with the issue.
Bullying is also being addressed through non-legislative means, including education, awareness and prevention activities.
This reflects the fact that bullying is a social problem that needs comprehensive responses from schools, non-government organizations, the police, and community groups.
The federal Minister of Justice has introduced legislation to amend the Criminal Code to:
- Create a new offence to prohibit the non-consensual distribution of intimate images – punishable by a maximum penalty of five years' imprisonment on indictment or six months' imprisonment on summary conviction;
- Direct the sentencing judge to consider whether or not a person convicted of the new offence should be subject to a prohibition order that would restrict his or her use of the Internet for a specified period;
- Authorize a judge to order the removal of an intimate image from websites if the person depicted did not consent to having the image posted;
- Allow a judge to order restitution following a conviction to enable the victim to recoup expenses involved in having the images removed from the Internet or social media;
- Empower the court to seize and order the forfeiture of property related to the offence, such as computers and mobile devices;
- Specify that a justice may issue a recognizance order (peace bond) where there are reasonable grounds to believe an individual will commit the new offence; and
- Ensure that the spouse of an accused person is eligible to testify against the accused in court.
For purposes of the Criminal Code, "intimate image" would be defined as an image that depicts a person engaged in explicit sexual activity or that depicts a sexual organ, anal region or breast. Further, the image would be one for which, at the time of the recording, the person depicted had a reasonable expectation of privacy and, at the time of the offence, had not relinquished his or her privacy interest.
The proposed amendments to the Criminal Code would also modernize existing investigative powers (warrants and other judicial orders) to enable police – subject to prior judicial oversight –to obtain electronic evidence from the Internet and other new technologies more efficiently and effectively. More specifically, the proposed amendments would:
- Provide for preservation of volatile computer data;
- Require judicial authority to acquire preserved computer data, and require the deletion of such data when it is no longer needed;
- Update production orders and warrants to make them more responsive and appropriate for today's advanced telecommunications environment;
- Give the police better tools to track and trace telecommunications to determine their origin or destination; and
- Streamline the process for obtaining multiple warrants and orders that are related to the execution of a wiretap authorization.
To safeguard privacy, none of the updates of investigative powers would allow access to data or subscriber information without prior judicial oversight.
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Department of Justice Canada
November 2013
