Digital Peer Aggression, Sexting, Luring, Voyeurism and The Canadian Law

In my Internet and Social Media lectures for parents, it is amazing to learn how many participants are vocal about the fact the Canada needs criminal legislation that provides punishment for those who use the Internet to peer aggress (bully) or sexually exploit/lure our children on-line. What is even more amazing to me, many in my profession (law enforcement), like many parents, are unaware that there are several sections of the Criminal Code of Canada that already exist that can be utilized by police to target criminal on-line behavior, that I wish to share with all in this article.

 

Challenges surrounding Digital Peer Aggression (on-line bullying)

 

There are several sections of the Criminal Code that can be utilized that include:

 

Criminal Harassment: Section 246 C.C.C

Here a subject needs to continually contact a person via a Social Network over and over again to the point where the intended victim knowing that it causes them to reasonably fear for their safety or the safety of anyone they know.

 

Defamatory Liable: Section 300 C.C.C

Here a subject would publish material in a Social Network, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing them to hatred, contempt or ridicule, or designed to insult the person. Good example of this might be a student who targets a teacher on-line in a vicious or vindictive way.

 

Uttering a Threat: Section 264.1 C.C.C.

Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

(b) to burn, destroy or damage real or personal property; or

(c) to kill, poison or injure an animal or bird that is the property of any person.

 

Public Incitement of Hatred (Hate Crime): Section 319(1) and 319(2)

This section of the criminal code could be used against a person who uses a Social Network to target those who are targeting others because of race, colour, sexuality, or religious beliefs:

Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Willful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

 

Challenges Surrounding On-Line Luring of Children, Child Pornography, Sexting

 

Luring a child on Line: Section 172.1 Criminal Code of Canada

172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1) sexual exploitation, section 155 incest or 163.1 child pornography, subsection 212(1) living of the avails of prostitution or (4) or section 271 sexual assault, 272 sexual assault with weapon or 273 aggravated sexual assault with respect to that person;

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 (sexual interference) or 152 (invitation to sexual touching), subsection 160(3) Bestiality or 173(2) indecent act/exposure or section 280 abduction with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 abduction with respect to that person.

 

 

Challenges surrounding Sexting/Child Pornography:

 

Child Pornography: Section 163.1(1) Definition

163.1 (1) In this section, “child pornography” means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i)           that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii)         the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

 

The making of child pornography: Section 163.1(2) Criminal Code of Canada

This would include a youth or adult who takes a sext of a person under 18yrs for the purpose of sending it to someone else:

Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

 

Distribution of Child Pornography/Sexting: Section 163.1(3) Criminal Code of Canada

This would include a youth or adult who receives a sext of a person under 18yrs and then sends it to others:

Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of

(a)  an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

 

Possession of Child Pornography/Sexting: Section 163.1(4) Criminal Code of Canada

This would include a youth or adult who possess a sext of a person under 18yrs on their mobile phone, laptop or home computer:

Every person who possesses any child pornography is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years or

(b) an offence punishable on summary conviction.

 

 

The use of a Web Cam to surreptitiously record a person without their consent
Given that we are now seeing more incidents of web cams being hacked for the purpose of surreptitiously recording others without their consent, the Criminal Code of Canada has created an offence to such an action:

Criminal Voyeurism: Section 162.1 Criminal Code of Canada

Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy

 

Conclusion:

 

As the reader can see, there are several sections of the Criminal Code of Canada that police can use to launch an investigation specific to digital peer aggression, sexting, luring and the illegal use of web cams. I also believe that there might be times, in the interest of justice, that the courts may not necessarily be the best remedy to deal with some of these issues; that is why I believe “Restorative Justice” remedies can also play an integral part in this multifactorial subject area.

 

As a law enforcement officer in Canada, with 27 year of policing experience thus far, I truly do understand that the law is not always black and white, but rather at times several shades of grey, thus why an exhaustive investigation needs to take place no matter what section of the Criminal Code is utilized. Often, we as parents and law enforcement need to educate Crown about these Criminal Code Sections, specific to how they can be applied to the Internet and Social Networks, given that this on-line space is also new for them as well.

 

The Internet and Social Networking have changed our lives. Canadian law needs to stay alive to this issue, and continue to morph to meet the needs of these on-line challenges, thus effectively protecting Canadian citizens from those who would prey upon us using this new and ever-changing technology. As more and more of these cases make their way through our court systems, I have no doubt that case law and the addition of new legislation will adapt to meet these criminal and legal challenges.