Law Times

Law Times • January 26, 2015 Page 9 www.lawtimesnews.com New law bolsters criminalization of privacy breaches Critics say cyber bullying bill unnecessary, will do little to help victims By Judy van rhiJn For Law Times he federal government has thrown a spotlight on cyber bullying and victims' rights, choos- ing to place them into the crimi- nal sphere with new offences and amendments to the Criminal Code. The Protecting Canadians from Online Crime Act received Royal assent on Dec. 9 and will come into force in March 2015. It purports to create several new of- fences, including the distribution of intimate images without con- sent and the possession of com- puter viruses and other devices primarily used for committing computer-related offences. Anthony Moustacalis, presi- dent of the Criminal Lawyers' Association, believes the new legislation is unnecessary. "It is a further example of the po- liticization of criminal law when criminal law should be used with restraint," he says. "Behaviour that occurs online or otherwise is adequately covered by criminal law." Jody Berkes, a criminal de- fence lawyer at Berkes Newton- Smith in Toronto, agrees. "Pri- vacy has always been given some protection in criminal law. I feel that a lot of the offences consist of offences that already exist. It's just a different way of framing it. For example, for the distribution of intimate images, there has always been criminal harassment where the conduct threatens a person's physical or mental welfare. This would cover revenge porn, as it is known in the vernacular." The proposed cyber bullying offence resembles the child por- nography provisions already in the Criminal Code. The new as- pect of the offence is its relation to images involving adults. "The cyber laws do extend some of the more traditional laws," says Berkes. He refers to the existing offence of harass- ment via telephone calls. "Re- peatedly communicating with someone is now extended to any kind of electronic commu- nications, including texting or e-mailing. The new offences are charting some new territory." When it comes to cyber bul- lying, Berkes notes there has al- ways been a charge of voyeurism in relation to the surreptitious recording of intimate images. "Now the creation doesn't have to be surreptitious. The com- plainant can be fully cognizant at the time it was made but didn't consent to its distribution." There's also a provision that allows restitution for the costs of removing images. "There are people who are well schooled at taking images down who may be engaged," says Berkes. "It was covered under general restitution but now it is specifi- cally provided for. There are some appropriate new offences that take into account new technologies." Moustacalis has three con- cerns about using criminal law to draw attention to cyber bul- lying. "Firstly, it's unnecessary; secondly, it doesn't cost anything for the federal government to do it; thirdly, it's targeted at a young audience which really needs education and programs, train- ing them where to draw the line. Young people need to be trained what to do when they receive nude images and to know that repeated comments can pile up to the point of harassment. They need to know these things are permanent and don't read the same as they may have intended when they wrote them." The Canadian Bar Associa- tion's submission on Bill C-13 raised similar concerns, saying that the criminal law should be a tool of last resort when dealing with young offenders. "For most youthful perpetrators, an educa- tional or diversionary response is most appropriate. Youth are of- ten not just victims, but can also be cyberbullies and bystanders themselves. . . . Without . . . care, Bill C-13 could inadvertently hurt and punish the very people that the government wished to protect through its enactment." "In appropriate serious cases, behaviour may lead to charges, but it needs to be recognized that laying charges against young people has serious long- term effects," says Moustacalis. "The federal government re- moved pardons, so the opportu- nity to be forgiven down the road has been curtailed. There are employment issues. The inter- national community that deals with young people recognizes that their minds are still develop- ing. They don't think like adults. We should provide education, not address the issue by reword- ing the Criminal Code." When it comes to the govern- ment's proposed bill of rights, Moustacalis believes it's merely a statement of things that are al- ready happening in most prov- inces. It enshrines the need to advise victims of their rights to legal representation, to tes- tify pseudonymously, to "have their privacy considered by the appropriate authorities in the criminal justice system," and to have their identity protected. "Most, if not all the rights, are already there in criminal law," says Berkes. "An accused cannot be sen- tenced until the judge has been assured that any victims have been advised of their rights. The victim assistance program en- sures that complainants are pro- vided with information such as bail conditions and probation orders. There has always been a right to receive information on a sentence. It's a public document. Testimonial aids are already en- shrined in the Criminal Code. It is interesting that the federal government wants to give the bill a quasi-constitutional status. But like the Canadian Bill of Rights before it, other laws don't have to comply with it. I don't see it as be- ing like the Charter." "The criminal bar has always been aware of privacy issues," says Moustacalis. "There are always renewed concerns when these things are addressed by criminal laws that interfere with peoples' right to be left alone. They represent in- creased improper state scrutiny. Issues that are controlling be- haviour should be addressed by education, knowledge, and pro- grams, not laying charges every time an issue occurs." Berkes worries about singling out the rights of victims. "A lot is said about complainants. If an accused person is acquitted, it can do far more damage. Even if charges are withdrawn because they are found to be without foundation, if you search them later, there can still be a negative connotation. That's why Europe has recently seen legislation ordering Google to remove negative references." The privacy commissioner of Canada has raised the question of offenders' rights to privacy. The victims bill of rights increases the amount of personal information victims can receive about offen- ders and reduces the discretion exercised by the commissioner of corrections when faced with requests for such details. "Everyone has privacy rights," says Berkes. "There have to be restrictions on how the informa- tion is used." Sam Goldstein, who practises criminal law in Toronto, sees the changes through a different lens. "It is the curtailment of Charter rights with new laws," he says. "The new laws express certain valid concerns. Ultimately, it is up to the courts to decide where the lines are drawn between those con- cerns and our guaranteed rights." He also refers to the notion of the Constitution as a living tree. "There are no absolute Charter rights. Courts have to create a compromise between criminal process and individual rights. I think those issues challenge the notion of the purpose of crimi- nal law. That is troublesome and worrying. Traditionally, the purpose of a criminal trial has been to prevent wrongful con- victions. This legislation is chal- lenging the criminal process to be about validating complain- ants. At some point, we need to have a conversation about the rights of both the accused and the complainants." LT FOCUS TF: 1.888.223.0448 T: 416.868.3100 YOUR ADVANTAGE, in and out of the courtroom. (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP\RXDUHSXWWLQJ \RXUUHSXWDWLRQRQWKHOLQH,WLVDOODERXWWUXVWZHOOSODFHG Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. www.thomsonrogers.com TRUST LEONARD KUNKA | ALAN FARRER | CARR HATCH Untitled-5 1 2015-01-20 2:14 PM 'Issues that are controlling behaviour should be addressed by education, knowledge, and programs, not laying charges every time an issue occurs,' says Anthony Moustacalis. T

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