UPDATE: ERROR REPORT JOHN ANDERSON “CYBERSTALKING CASE”
A Handbook for Police and Crown Prosecutors on Criminal Harassment – Cyberstalking – CANADA
1.6 Using Technology to Criminally Harass (a.k.a. Cyberstalking, Online Criminal Harassment, and Cyberbullying)
Criminal harassment can be conducted through a computer system, including the Internet.Footnote58 The elements of the offence remain the same, it is just that technological tools are used to commit the offence. There is considerable debate in the legal and academic literature about how to best define cyberstalking, online harassment and cyberbullying, and the extent to which existing legislation provides adequate protection against these types of offences.Footnote59
1.6.1 Online Criminal Harassment, Cyberstalking and a Related Typology
The terms “cyberstalking” and “online harassment” are often used to refer to three types of activities: direct communication through e-mail or text messaging; Internet harassment, where the offender publishes offensive or threatening information about the victim on the Internet; and unauthorized use, control or sabotage of the victim’s computer.Footnote60 In some cyber-stalking situations, criminal harassment charges may be appropriate; however, depending on the activity involved, charges under the following sections of the Criminal Code should also be considered:
Sending harassing messages (sometimes forged in the victim’s name) through e-mail or text message to the victim or to the victim’s employers, co-workers, students, teachers, customers, friends or family.Footnote61
Gathering or attempting to gather information about the victim, including private information relating to his or her home address, employment, financial situation and everyday activities, or using spyware to track website visits or record keystrokes the victim makes.
Attempting to destroy the victim’s reputation by engaging in “cyber-smearing”, i.e., sending or posting false or embarrassing intimate information about or, supposedly, on behalf of the victim.Footnote62
Tracking a victim’s location using GPS technology (on telephones, cameras and other devices).Footnote63
Watching or listening to a victim through hidden cameras or listening or monitoring devices.Footnote64
Sending viruses to the victim’s computer, such as software that automatically transmits messages over a period of time.
Creating websites about the victim that contain threatening or harassing messages, or provocative or pornographic photographs.
Encouraging others to harass the victim.Footnote65
Constructing a new identity to entice the target to befriend the perpetrator.Footnote66
Online and offline criminal harassment are closely linked yet distinct types of behaviour, and online harassment often turns into offline harassment.Footnote67 The most alarming difference between the two is the ease with which the perpetrator is able to collect information about the target on the Internet, as well as access his or her private online accounts.Footnote68 Technology also enables stalkers to cause a great deal of distress without leaving their home, which emboldens those who would not engage in offline harassment to stalk online. Moreover, the ability of the perpetrator to hide behind the mask of anonymity or to take on a false identity can make it very difficult, if not impossible, to tell the perpetrator to stop the harassment.Footnote69
The 2010 Annual Report of Ontario’s Domestic Violence Death Review Committee (DVDRC) states that it has been finding increasing evidence that information and communication technologies are being used to harass, stalk and abuse domestic homicide victims, prior to their deaths.
The use of information and communication technologies continues to be a major theme of cases reviewed by the DVDRC. Some cases involved victims that met through online dating forums. The perpetrator in one case used the dating site to threaten and harass his victim(s). In other cases reviewed, perpetrators were known to tamper with the victim’s email, including the dissemination of slanderous messages to individuals on the victim’s address list and the distribution of threatening, abusive and/or excessive messages to the victim and others using email and text services. Other cases reviewed by the DVDRC identified perpetrators that downloaded tracking devices and/or “spyware” to monitor their victim’s activities. Additional cases reviewed by the DVDRC identified perpetrators who monitored their victim’s online journal and other social networking activities.Footnote70
In 2003, McFarlane and Bocij collected information from cyberstalking victims to determine whether cyberstalkers fit into the existing offline stalker typologies, or whether a specific typology for cyberstalking was warranted.Footnote71 They determined that it was useful to modify an existing typology, developed by Wright et al. in 1996, to better capture the true nature of cyberstalking. This typology divides cyberstalkers into 4 categories based on the nature of their relationship and their motivation for the online harassment: vindictive, composed, collective, and intimate. Vindictive cyberstalkers were the most ferocious in their pursuit of their targets. This harassment can be triggered by anything from a trivial debate to an active argument between the parties. These cyberstalkers use the widest range of technological methods to harass their victims, and tend to have a medium to high level of computer literacy. In Wright and Bocij’s research, one third of vindictive cyberstalkers had a prior criminal record, and two-thirds of them were known to have victimized others before. Composed cyberstalkers generally issue threats in an attempt to annoy and irritate the targets. These cyberstalkers do not tend to have criminal records and have a medium to high level of computer literacy. Intimate cyberstalkers use e-mail, discussion groups, and electronic dating sites to try to woo, or at least gain the attention of, their targets. They might be ex-partners or ex-acquaintances of the victims, or infatuates looking for intimate relationships. Intimate cyberstalkers tend to have the widest range of computer literacy, from fairly low to high. Lastly, collective cyberstalkers were two or more individuals pursuing corporate or non-corporate victims. Collective corporate cyberstalkers typically have taken offense for the business dealings of the corporation and are trying to discredit or silence the victim. Collective cyberstalkers of non-corporate targets typically attempt to punish a victim they believe has wronged them. Such groups may attempt to recruit others to join them in the harassment, by doing things such as giving the address of the victim to the recruits.Footnote72
For information about how Canadian courts have ruled on the use of technology to perpetrate criminal harassment, see Part 3 The Law.
1.6.2 Online Bullying and Cyberbullying
Cyberbullying “involves the use of information and communications technologies to support deliberate, repeated, and hostile behavior by an individual or group, that is intended to harm others.”Footnote73 Cyberbullying is becoming a growing concern in many parts of the world. The definitions of cyberbullying (online bullying) and online harassment overlap one another and some situations that are labeled cyberbullying may also be criminal harassment under section 264 of the Criminal Code. To date, the term cyberbullying is most frequently used to describe the hostile use of technology amongst students. Students may perceive cyberbullying to be much more harmful than offline bullying. This is due to the fact that the Internet empowers the bully by broadcasting recorded abuse to a wide audience. Furthermore, once a harmful message exists in cyberspace, it exists in perpetuity. Bullying often begins on the Internet,Footnote74 as classmates who will not engage in bullying in the open are more likely to do so when invisibility and anonymity protect them from retaliation by their peers or disciplinary measures by teachers.Footnote75
Statistics Canada released in 2011 statistics on the prevalence of self-reported cyberbullying from the 2009 General Social Survey (GSS). The GSS definition of cyberbullying encompasses a wide range of online behaviour, so not all aspects of these activities would meet the definition of criminal harassment or other Criminal Code offences.Footnote76 Nonetheless, this survey provides a useful picture of the prevalence of these types of incidents in Canada as victimization on the Internet is becoming more common. The survey found that 7% of Internet users aged 18 or older had been the victim of cyberbullying in their lifetime. The most common form of bullying involved threatening or aggressive e-mails or instant messages, reported by almost three-quarters (73%) of cyberbullying victims. The second most common form of bullying involved hateful comments, experienced by over half (55%) of victims. In addition, victims of a previous violent crime were more likely to report being the victim of cyberbullying than those who had not been violently victimized (20% versus 6%). In particular, victims of sexual assault or robbery and those who reported having been the victim of two or more violent incidents within the past 12 months were most likely to have been cyberbullied; about one-third of them self-reported having been cyberbullied.Footnote77
This survey also looked at child victims of cyberbullying by asking adult respondents whether any of the children (aged 8 to 17) living in their household had been the victim of cyberbullying or child luring. The results showed that slightly less than 1 in 10 (9%) adults living in a household that includes a child knew of a case of cyberbullying against at least one of the children in their household. The most common form of cyberbullying against children was threatening or aggressive e-mails or instant messages, reported by 74% of adults who knew of a case of cyberbullying against a child in their household. This was followed by hate comments sent by e-mail or instant messaging or posted on a website (72%), and use of the identity of the child to send threatening messages (16%).Footnote78
Disturbingly, there have been news accounts of cyberbullied teens in Canada ending their lives in suicide.Footnote79 One of the biggest distinguishing factors in determining whether malicious use of technology consists of criminal harassment in bullying-type cases will be whether the online conduct is merely annoying, or whether it causes the target to fear for his or her physical or psychological safety. In fact, recent research has shown that online harassment and bullying result in higher levels of trauma and stress for the victim than more traditional forms of stalking.Footnote80 The psychological symptoms these victims experience may be more intense “due to the 24/7 nature of online communication, inability to escape to a safe place, and global access of the information.”Footnote81 The sense of humiliation they experience is often increased due to the public nature of the bullying or harassment. This type of harm was recently recognized by the Supreme Court of Canada in the civil case of AB v Bragg Communications, 2012 SCC 46.Footnote82
In 2005, the offense of voyeurism was also enacted to prohibit the secret viewing or recording of another person when there is a reasonable expectation of privacy in three specific situations and to prohibit the intentional distribution of voyeuristic material. This offense may also be applicable in some types of “stalking” cases.
Return to footnote1referrerFootnote 2
See Part 3.2, “Criminal Code Provisions.”
Return to footnote2referrerFootnote 3
Shelly Milligan, “Criminal Harassment in Canada, 2009” (2011) Juristat, Canadian Centre for Justice Statistics, catalogue no. 85-005-x.UCR2 incident-based survey, Canadian Centre for Justice Statistics, May 2011 extraction.
Milligan, supra note 3 at 3–4.
Andrea Taylor-Butts, “Fact sheet—Police-reported spousal violence in Canada” in Family Violence in Canada: A Statistical Profile, 2009 (Ottawa: Statistics Canada, 2009, catalogue no. 85-224-X), online (accessed 13 April 2011) at 26. Note that at p. 59, this publication defines “common assault” as the type of assault falling under section 265 of the Criminal Code, as follows: “This includes the Criminal Code category assault (level 1). This is the least serious form of assault and includes pushing, slapping, punching, and face-to-face verbal threats.” This publication defines “major assault levels 2 and 3” as assault falling under sections 267 and 268, as follows: “This includes more serious forms of assault, i.e. assault with a weapon or causing bodily harm (level 2) and aggravated assault (level 3). Assault level 2 involves carrying, using or threatening to use a weapon against someone or causing bodily harm. Assault level 3 involves wounding, maiming, disfiguring or endangering the life of someone.”
Return to footnote7referrerFootnote 8
This can likely be largely explained by the fact that current spouses are more likely to have the physical access to one another that is needed to commit assault, whereas ex-spouses wishing to harm the other may only be able to do so through criminal harassment.
Return to footnote26referrerFootnote 27
Intimate partner stalking includes victims stalked by a current or former spouse, boyfriend or girlfriend.
Return to footnote27referrerFootnote 28
Aucoin, supra note 17 at 36.
Return to footnote28referrerFootnote 29
Ibid at 38.
Return to footnote29referrerFootnote 30
Return to footnote30referrerFootnote 31
Return to footnote31referrerFootnote 32
Ibid at 39.
Return to footnote32referrerFootnote 33
Ibid at 40.
Return to footnote33referrerFootnote 34
Ibid at 41.
Return to footnote34referrerFootnote 35
Jill Arnott, Deb George & Stacey Burkhart, Bridging the Gap: Criminal Harassment Victimization and the Criminal Justice Response (Phase II) (Regina: Family Service Regina, 2008) at 28.
Return to footnote35referrerFootnote 36
Bocij, Cyberstalking: Harassment in the Internet Age and How to Protect Your Family (Westport, Connecticut: Praeger Publishers, 2004) at 73–88.
Return to footnote36referrerFootnote 37
Emma Short & Isabella McMurray, “Mobile Phone Harassment: An Exploration of Students’ Perceptions of Intrusive Texting Behaviour” (2009) 5:2 An Interdisciplinary Journal on Humans in ICT Environments 163 at 172.
Return to footnote37referrerFootnote 38
P.R, Kropp, S.D. Hart & D.R. Lyon, Guidelines for Stalking Assessment and Management (SAM) (Vancouver: ProActive ReSolutions Inc., 2008).
Return to footnote38referrerFootnote 39
See J. McFarlane et al., “Stalking and Intimate Partner Femicide” (November 1999) 3:4 Homicide Studies, which reported at 308 that “Seventy-six percent of femicide and 85% of attempted femicide respondents reported at least one episode of stalking within 12 months of the violent incident” whereas fewer femicide or attempted femicide victims had experienced physical assault in that time period (67% and 71%, respectively). See also Office of the Chief Coroner (2010) Annual Report of the Domestic Violence Death Review Committee, Toronto, ON., which describes harassing conduct on the part of the perpetrator, prior to the homicide, in many of the 18 cases reviewed.
Return to footnote39referrerFootnote 40
The American Psychiatry Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) categorizes each psychiatric diagnosis it contains along five dimensions (axes). Axis 1 contains clinical disorders, including major mental disorders, learning disorders, and substance abuse disorders.
Return to footnote40referrerFootnote 41
M.A. Zona, K.S. Sharma & J. Lane, “A Comparative Study of Erotomanic and Obsessional Subjects in a Forensic Sample” (July 1993) 38:4 Journal of Forensic Sciences 894–903.
Return to footnote41referrerFootnote 42
K. Mohandie et al., “The RECON Typology of Stalking: Reliability and Validity Based upon a Large Sample of North American Stalkers” (Jan. 2006) 51:1 Journal of Forensic Sciences 147–155.
Return to footnote42referrerFootnote 43
Zona et al., supra note 41.
Return to footnote43referrerFootnote 44
K. Mohandie, “Stalking behavior and crisis negotiation” (2004) 4 Int J. Police Crisis Negotiations, 23–44.
Return to footnote44referrerFootnote 45
Mohandie et al., supra note 42 at 147–155.
Return to footnote51referrerFootnote 52
Jennifer E. Storey, Stephen D. Hart, J. Reid Meloy & James A. Reavis, “Psychopathy and Stalking” (2009) 33 Law and Human Behavior at 237–246.
Return to footnote52referrerFootnote 53
Return to footnote53referrerFootnote 54
P.I. Collins, “The Psychiatric Aspects of Stalking” in J. Cornish, K. Murray, & P.I. Collins, eds., The Criminal Lawyers’ Guide to the Law of Criminal Harassment and Stalking (Aurora, Ontario: Canada Law Book, 1999).
Return to footnote54referrerFootnote 55
M.J. McCullough et al., “Sadistic Fantasy, Sadistic Behaviour and Offending” (July 1983) 143 British Journal of Psychiatry at 20–29.
Return to footnote55referrerFootnote 56
Kimberley A. Morrison, “Differentiating Between Physically Violent and Nonviolent Stalkers: An Examination of Canadian Cases” (2008) 53 J Forensic Sci 742 at 747–748. The study was conducted using a sample of 103 perpetrators charged with criminal harassment from nine provinces (Ontario, British Columbia, Alberta, Saskatchewan, Newfoundland and Labrador, Manitoba, Prince Edward Island, Nova Scotia, and Quebec). The nine predictor variables were degree of indications of likely obsession/fixation, degree of perceived negative effect/emotion in actions, explicit verbal threat/no threat status toward the victim, strength of emotional attachment, known substance abuse/dependency, presence of a personality disorder, presence of a major mental disorder, prior domestic violence and presence of a criminal record.
Return to footnote56referrerFootnote 57
See also Barry Rosenfeld, “Violence Risk Factors in Stalking and Obsessional Harassment: A Review and Preliminary Meta-Analysis” (2004) 31 Criminal Justice and Behavior 9. The strongest correlates of violence were found to be a prior intimate relationships, threats, substance abuse and absence of psychosis. Weaker correlates were prior criminal and violence history, and personality disorder diagnosis.
Return to footnote57referrerFootnote 58
A useful definition of “cyber-crime” is used in a 2002 Statistics Canada publication: “a criminal offence involving a computer as the object of the crime, or the tool used to commit a material component of the offence.” See Melanie Kowalski, Cyber-Crime: Issues, Data Sources, and Feasibility of Collecting Police-Reported Statistics (Ottawa: Statistics Canada, 2002), online.
Return to footnote58referrerFootnote 59
See Neal Geach & Nicola Haralambous, “Regulating Harassment: Is the law fit for the social networking age?”(2009) 73 Journal of Criminal Law 241–257; and Naomi Harlin Goodno, “Cyberstalking, a new crime: Evaluating the effectiveness of current state and federal laws” (2007) 72 Missouri Law Review 125–197.
Return to footnote59referrerFootnote 60
Louise Ellison & Yaman Akdeniz, “Cyber-Stalking: The Regulation of Harassment on the Internet” (December 1998) Criminal Law Review at 29.
Return to footnote60referrerFootnote 61
J.A. Hitchcock, “Cyberstalking and Law Enforcement” (2003) 70:12 Police Chief 16–27.
Return to footnote61referrerFootnote 62
Paul E. Mullen, Michele Pathé & Rosemary Purcell, Stalkers and their victims, 2nd ed. (Cambridge, U.K.: Cambridge University Press, 2009) at 153.
Return to footnote62referrerFootnote 63
Office of the Chief Coroner. (2010) Annual Report of the Domestic Violence Death Review Committee. Toronto, ON, at p. 35; and C. Southworth et al. (2005) A High-Tech Twist on Abuse: Technology, Intimate Partner Stalking, and Advocacy. Violence Against Women Online Resources, online (accessed 7 February 2012).
Return to footnote63referrerFootnote 64
Leroy McFarlane & Paul Bocij, “An Exploration of Predatory Behaviour in Cyberspace: Towards a Typology of Cyberstalkers” (2003) 1 First Monday 8 9., online (accessed 5 May 2012).
Return to footnote71referrerFootnote 72
Return to footnote72referrerFootnote 73
Bill Belsey, educator, quoted online: http://www.cyberbullying.ca (accessed 29 August 2011).
Return to footnote73referrerFootnote 74
Jim Gibson, “The (Not-so) Brave New World of Bullies” Times Colonist (Victoria) (13 March 2010).
Return to footnote74referrerFootnote 75
Shaheen Shariff & Leanne Johnny, “Cyber-Libel and Cyber-Bullying: Can Schools Protect Student Reputations and Free-Expression in Virtual Environments?” (2007) 16 Educ. & L.J. 307 at 3–5.
“Cyberbullying” was defined for the 2009 GSS as follows: “Ever previously received threatening or aggressive messages; been the target of hate comments spread through e-mails, instant messages or postings on Internet sites; or threatening e-mails sent using the victim’s identity.” Samuel Perreault, “Self-reported Internet victimization in Canada, 2009” (2011) Juristat, Canadian Centre for Justice Statistics, catalogue no. 85-005-x at 6, online
Examples include: Amanda Todd, a 15-year old girl from Port Coquitlam B.C., whose suicide in October of 2012 was attributed to cyberbullying through the social networking site Facebook; Jamie Hubley, a 15-year old boy from Ottawa, ON, who killed himself in October of 2011 after complaining about bullying at school and on the Internet; Jenna Bowers, a 15-year old girl from Truro, N.S., commit suicide in January of 2011 after being harassed at school and bullied through a social networking site. See also: Michael Gorman, “Taskforce to hear from grieving mom: Murchison lost a daughter to bullying” The Chronicle Herald (Halifax) (14 July 2011); and Pamela Cowan, “Family attributes suicide to bullying” Leader-Post (Regina) (15 April 2011).
Return to footnote79referrerFootnote 80
PREVNet/SAMHSA Fact Sheets, “Physical Health Problems and Bullying” (accessed 7 May 2012); and see also Canada. Parliament. Senate. Standing Senate Committee on Human Rights. Proceedings. (Issue No. 6, December 11, 2012).
In this case, the Court highlights 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 victim of Facebook cyberbullying who requested to proceed anonymously in her application for an order requiring disclosure of the perpetrators’ identities. In the judgment, Justice Abella references the 2012 Report of the Nova Scotia Taskforce on Bullying and Cyberbullying noting that the girl’s privacy interests are tied to the relentlessly intrusive humiliation of sexualized online bullying. 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. A.Wayne MacKay, Respectful and Responsible Relationships: There’s No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (Feb.2012), (accessed 12 October 2012).