There can often be a fine line between online ranting and an actual criminal threat. In fact, it is important to recognize that some online messages may not only offend, but may be considered so egregious that they result in criminal charges against the person sending the message.
Section 264.1 of the Canadian Criminal Code states that everyone who knowingly conveys some intent to cause bodily harm, damage property belonging to another, or harm someone’s pet is guilty of the crime of uttering a threat. There is a subsection of this offense which specifically outlaws uttering threats involving a death threat. In Canadian criminal law, in order for one to be guilty of uttering threats, he or she must have the requisite mental state, which is underlined by the term “knowingly” in the aforementioned Criminal Code statute.
In the Ontario Court of Justice ruling of R v Lee, 2010 ONCJ 291 (CanLII), the court determined that the mental state of an accused will be viewed objectively when deciding whether a defendant facing an uttering threat charge is guilty or not. If a subjectivemeasure of intent to issue a threat was employed by the courts to assess criminal liability under section 264.1 of the Criminal Code, the accused person facing an uttering threat chargewould be able to successfully use the defense that they were joking, expressing artistic freedom or otherwise did not intend to frighten; the difficulty in ascertaining the defendant’s true feelings and mental state at the time the statement was made would render the a charge of uttering a threat difficult to prosecute.
The objective standard that is actually used by courts in assessing whether an accused person intends to issue a criminal threat means, according to the Ontario court of Justice in R v Lee,supra, that a court will look at: the context in which the offensive words were used, the specific words used, to whom the words were directed, and, lastly, any potential explanation by the defendant.[1] All these factors together will determine whether an alleged threat is sufficient to warrant a conviction for uttering a threat or not.
Looking at the enumerated factors which the court employs to assess objectivity, it appears that a court is simply using common sense when deciding whether a statement is a criminal threat. Often, when messages are being exchanged online, through social media or email, most internet users are behind their computer screens in the in the safety of a home or a crowded cafe. Hence, online posts do not have the immediacy and import of a face-to-face conversation. In addition, online ranting is commonplace across forums all over the internet, and often times dismissed by readers as just harmless, yet irritating, chatter. Hence, this raises the important issue of when heated or spirited language will be seen as less of an internet diatribe and more of a real attempt to cause someone, or something belonging to another, to believe he or she will come to harm.
In R. v. Sather, 2008 ONCJ 98 (CanLII), a Toronto court case tried in 2008, a defendant, Daniel Sather, was charged with uttering threats for messages posted on Facebook. These messages stemmed from a custody dispute that flared up after Sather’s child had been removed from his home by the Children’s Aid Society (CAS).[2] Sather, angered at this development, created a Facebook petition against the CAS, where his postings were found, and reported to police, by a CAS employee.[3] The postings expressed great anger towards the CAS and Sather promised to find out which CAS worker had taken his child and intimated he would have some type of revenge.[4]
The court in Sather’s case conceded that Sather’s postings would perturb any reasonable person, but these postings were on Facebook only and no direct threats, calls or messages were made via telephone or through email that would have reached CAS itself. [5] The court explained that although Sather alluded to a worker in CAS, no specific name was mentioned and evidence was presented to support the notion that Facebook posts can be used to blow off steam and embellish character, especially since the posts will be seen primarily by Sather’s Facebook “friends,” users linked to Sather’s Facebook account, who are likely to be sympathetic to his point of view.[6] Hence, Sather was found not guilty of two counts of uttering threats. [7]
In R v Lee, supra the accused person in the case, Harold Lee was charged with uttering threats for offensive postings on his Facebook site that included references to death and the Virginia Tech tragedy.[8] Again, the Ontario Court of Justice in Lee’s case acquitted Lee stating that although Lee’s posts were deplorable and alarming, they were only likely seen by authorized individuals connected to his Facebook profile, known as “friends,” and hence, did not seem to be directed at anyone in particular; in the eyes of the court, the posts were not intended to intimidate the only people who were likely to see them, Lee’s Facebook friends. In addition, the court also accepted that Lee’s explanation that his job as a coroner had such a profound effect on him that he chose to write about his experience of death in a manner that causes alarm, but did not intend to instill fear or panic at any person in particular.
Case law in the area of threats on Facebook is scarce, but the rulings in the aforementioned Ontario cases appear to convey the message that in order for the court convict a person of issuing a criminal threat for a Facebook posting, that posting cannot merely be suspected to be a legitimate threat, it must be directed to some person or group in particular, and also, the post or message must be sent to or posted with the intention of reaching the specified group. Hence, in Lee and Sather, only the defendant’s Facebook “friends” could see their rants, and the offensive materials did not appear to be directly at any of these friends, whether individually or collectively.If the postings had been sent as a direct message to another user on Facebook, or the posts had mentioned someone by name who would come to harm, the outcome of the above cases would likely have been different.
It appears that a Facebook rant can certainly lead to arrest, but it will not likely result in a criminal conviction unless the perceived threat is sent directly to the person or group that is subject to the rant. In both court cases mentioned in this article, it appears that the court is saying, communication of a perceived threat that is more direct, naming a specific target or sent to a person or group directly, will make a threat seem more real – real enough to convict!
Folabi Laseinde is a Criminal Defense Attorney and Partner at Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini LLP. You can reach him by email at Laseinde@CriminalTrialLawyers.ca or by phone at 416 598 5740.
As police agencies across North America continue to develop sophisticated techniques for detecting child pornography distributors on the internet, one wonders how easily the younger members of the family might carelessly post or send images which land them on the wrong side of the law. Do those pictures posted by your teenage daughter on Facebook or re-tweeted by your son qualify as child pornography? Since ignorance of the law is no defence, it’s your responsibility know the answer if you want your family to avoid an embarrassing investigation and potential prosecution.
The Criminal Code sets out the definitions of child pornography and the offences and sentences associated with them beginning at section 163.1. You can get all the exact wording yourself by reviewing the sections online, but child pornography is essentially defined as any depiction of a person under age 18 engaged in explicit sexual activity, or a depiction of a sexual organ or the anal region of a person under age 18 for a sexual purpose. These “depictions” can be photographs, drawings, or any graphic representation. In regards to images which depict a person under 18 engaged in sexual activity, the subject does not need to actually be under 18 to make out the offence, but must be merely depicted as under 18. The subject also does not have to be actually engaged in sexual activity, but may merely be depicted as being engaged in sexual activity.
The offences related to child pornography include making and publishing it, distributing it, possession, and access. “Access” means that it is a crime to even view something which qualifies as child pornography if you knew ahead of time what you were about look at. Creating child pornography is fairly self explanatory: if you played any role in taking the picture or making the image, then you’ve committed the offence. Distribution of child pornography makes any transfer of an image by any means a criminal offence.
The reader should be aware that the Criminal Code also sets out that any writing or recording which advocates, describes, or presents illegal sexual activity with a child can qualify as child pornography. In the interest of brevity, this article focuses only on child pornography images.
Police investigations of child pornography may be triggered by tips and complaints from the public or by intelligence gathered during other police investigations. Officers then have an array of tools and methods at their disposal to narrow where an image came from. They can use warrants to obtain the entire contents of an email account or social media profile, even the “deleted” materials. Every IP address used to access those accounts can be discovered, and then it is simply a matter of obtaining the physical address from the internet subscriber information for those IP addresses. After the source of the image is determined, everyone residing at the address becomes a potential target, but the residents may not learn anything about the investigation until police show up with a search warrant granting them authority to seize every piece of electronic storage media in the house.
Your family avoids all of this by knowing what kinds of images are dangerous. Whether your children are posting images of themselves or their friends, or passing along images of peers, certain material should be out of bounds. Based on the Criminal Code definitions, the range of potentially offending images includes nudity in which a sexual organ is even partially exposed. It would also include a photograph of any pose which suggests a feigned sexual act, a photograph of two teenagers engaged in some level of sexual interaction, or a crude drawing or graphic depicting a named under-age peer interacting with sexual organs or imagery.
This author will not attempt to flesh out all of the permutations of image production which lie within the creative limits of our young people. It should suffice to remind readers that that creating, replicating, and altering images has never been easier, and there has never been greater access to “inspiration” on the internet. The point to take away is that technology allows children themselves to easily offend the very child pornography laws that were intended to protect them. The best advice is to ensure that your children simply steer clear of viewing, sending, posting, or sharing any image of a person who might be under age 18 if it shows any nudity, sexual posing, feigned or pretended sexual activity, or any form of real sexual interaction.
Is there a real risk of criminal liability for your children? While a prosecutor may not want to take a teenager to all the way to trial for a trivial offence, that doesn’t mean that there won’t be arrests, searches and seizures of property, and stigmatizing accusations made at the investigative stage. The anonymity of the internet means the police may be able to narrow down the source of the image to your home, but they won’t necessarily be able to determine who put it on the internet. They can not be depended on to pre-emptively dismiss an offending image as a self-portrait sent out carelessly by a teenager as opposed to being an image collected by the father of the household for a sexual purpose.
The police may also be encouraged to lay charges by a parent of a teenager who has been depicted in a sexual manner in an image posted online by his or her peers. One can expect a parent to do almost anything to alleviate the embarrassment and social anxiety of cyber bullying. Alleging that an embarrassing image is child pornography is one tactic that a parent may take in order to get the image removed and to obtain sanction against the children who posted, shared, or commented on it. The prosecution does not readily drop charges, even against teenagers, when there is an apparent victim clamouring for justice.
There are of course defences to child pornography charges. These might include a lack of knowledge that the images were there or what was contained in them, or the fact that it can not be determined with any certainty who actually sent or posted a particular image even if it came from a particular person’s account. The Criminal Code even sets out specifically that no person will be convicted of a child pornography offence if the act alleged to constitute the offence “has a legitimate purpose related to the administration of justice or to science, medicine, education or art” and “does not pose an undue risk of harm to persons under the age of eighteen years.” Although these defences exist, being forced to rely on them at trial and hoping that a judge or jury agrees is a stressful, expensive, and drawn-out ordeal. Even if you win, it will feel like you have been punished.
The best defence is to know the offence. If you invest in ensuring that everyone in your family knows what qualifies as child pornography and the legal consequences of carelessly dealing with images online, then you’ve done everything to make sure that charges are never laid in the first place. Be persistent and proactive in guiding the online activities of the members of your family, and let the criminal defence lawyers help everyone else.
Tyler MacDonald is a criminal defence lawyer based in downtown Toronto. He is hired to defend clients against all manner of charges across Ontario. Throughout his legal education at the University of Western Ontario, he spent more time working at the student legal clinic and going to court to defend people who could not afford lawyers than going to lectures and studying for exams (he still managed to graduate in the top 10% of his class). Mr. MacDonald’s practice as a lawyer began as an associate with Pinkofskys Criminal Trial and Appeal Lawyers and he is now a partner with Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini LLP. He is an ardent advocate for the maintenance and advancement of individual rights, police accountability, access to justice, and practical legal education. You can learn more about Mr. MacDonald’s practice at www.macdonaldcriminaldefence.com.
Young people can find themselves part of the criminal justice system in Canada from the age of twelve. Until the age of seventeen their charges fall under the Youth Criminal Justice Act, legislation created to reflect their particular circumstances and needs. Youth custodial facilities separate alleged young offenders from adults. And yet, the reality can still be a very scary place for both parents or caregivers and the youths charged.
Understanding the criminal procedure flowing from an arrest is essential to achieving the best possible result. A criminal defence lawyer can help families navigate through the system, understand the charges faced, and determine which rights may have been infringed.
Steps in the legal system requiring preparation can include:
• Bail Hearing Court
• Set Date Court
• Disclosure of the alleged offence
• Pre-trial meeting(s)
• Judicial pre-trial meeting(s)
• Trial
At each stage, decisions may need to be made which will effect the outcome of the proceedings. It is important to have a comprehensive understanding of all complex issues before making those important decisions.
If families do not have the funds to hire a lawyer by private means, they can apply to the provincial Legal Aid program. In that case, a certificate to retain a lawyer will be issued if the applicant qualifies (payment terms may apply).
The court system is not the time to abandon a troubled youth, especially when she or he may have a defence. A family’s support can make the difference in ensuring that any lessons learned are positive ones.
TIFF, the organization behind September’s Toronto International Film Festival, announced today two new film festivals directed towards children and youth with a new emphasis on interactive programming, including gaming and participatory activities in a digital environment. The two new film festivals represent an evolution of the Sprockets Toronto International Film Festival for Children and Youth, effectively dividing its programming into separate events for two age groups. Running from April 10 through 22, 2012, the TIFF Kids International Film Festival will celebrate special programming and activities for children aged 3 to 13. New for 2012 is TIFF Kids digiPlaySpace, a family-friendly interactive environment which includes interactive installations, learning-centric games, apps, new digital creative tools and hands-on production activities. Also launching this year, the TIFF Next Wave Film Festival runs May 10 through 12, 2012 and engages youth aged 14 to 18 with programming aimed at a teen audience.
“We’ve had the pleasure of seeing our children’s film festival grow at a phenomenal pace into one of the most prominent and respected in the world, one that is extremely successful with children in elementary and middle schools and with teen audiences,” said Shane Smith, Director of Public Programmes, TIFF. “It’s fitting that as we celebrate our 15th anniversary, we separate our programming into two festivals that allow us to broaden and deepen the selection and experience for each audience, as well as their families and educators. We’re beyond excited to be presenting both the TIFF Kids International Film Festival and the TIFF Next Wave Film Festival this year.”
In addition to premiere screenings of high-calibre feature films and shorts from around the world, special guests, learning workshops and the Jump Cuts competitions, interactive engagement will be a key feature of the TIFF Kids International Film Festival—both online and through on-site activities. Not only will young audiences take over all five cinemas and learning studios of TIFF Bell Lightbox, but for the first time the first floor gallery space will be transformed into the TIFF Kids digiPlaySpace—an interactive playground where children will learn, laugh and be entertained by emerging creative technologies and innovative media experiences. Several installations, games and workshop zones will allow children to exercise their creativity and see first-hand how the future of storytelling is evolving.
A signature of the TIFF Kids digiPlaySpaceis the Canadian premiere of Funky Forest, an interactive ecosystem where children create trees with their bodies and then divert the water flowing from a waterfall to keep the trees alive. The health of the trees contributes to the overall health of the forest and the types of creatures that inhabit it. Other highlights include installations from leading interactive play developers Aesthetec Studio, where movement and voice is transformed into light and music; giant green screens that enable children to immerse themselves into the worlds of film and dance; and stop-motion stations that provide the chance for kids to learn the magic of animation.
“TIFF is committed to engaging with children and their families using all forms of the moving image,” added Smith. “With TIFF Kids digiPlaySpaceand our hands-on learning workshops in addition to must-see children’s films, the TIFF Kids International Film Festival will truly be the destination for multi-media entertainment for families this Spring.”
The TIFF Kids International Film Festival will also include one week of industry programming, consisting of an industry Lounge, TIFF Kids Screening Library, networking events, panel sessions, workshops and interactive learning modules for registered delegates. Panels will feature guest speakers on the latest trends in the children’s entertainment industry, and will appeal to content producers, buyers and educators alike. In conjunction with industry programming, the TIFF Nexus conference on New Media Literacy takes place on April 20 with a focus on children and youth. This event will bring together cross-sector media makers, academics, businesses and educators to explore issues and trends in and foster new relationships to further emerging modes of literacy in youth-oriented media production. Registration for TIFF Kids international Film Festival Industry Delegates opens February 15.Additional information can be found at tiff.net/industry starting on February 6.
Additional information on the TIFF Kids International Film Festival and the TIFF Next Wave Film Festival, including programming details, will be announced over the coming months.
About TIFF
TIFF is a charitable cultural organization whose mission is to transform the way people see the world through film. An international leader in film culture, TIFF projects include the annual Toronto International Film Festival in September; TIFF Bell Lightbox, which features five cinemas, major exhibitions, and learning and entertainment facilities; and innovative national distribution program Film Circuit. The organization generates an annual economic impact of $170 million CAD. TIFF Bell Lightbox is generously supported by contributors including Founding Sponsor Bell, the Province of Ontario, the Government of Canada, the City of Toronto, the Reitman family (Ivan Reitman, Agi Mandel and Susan Michaels), The Daniels Corporation, Major Sponsor and official bank RBC, and BlackBerry. For more information, visit tiff.net.
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MY BROTHER WAS PRETTY UPSET WHEN HE REALIZED THAT SANTA CLAUS DIDN’T BRING MY DAD BACK*
Kids Help Phone counsellors brace themselves for kids’ heightened feelings of sadness and loneliness during the Holiday Season
TORONTO, ON – November 4, 2010 The happy holiday season can be a myth for many young Canadians. As early as mid-November, kids, teens and young adults across Canada are showing signs of tension, worrying about more than just what will be under the Christmas tree. Kids Help Phone counsellors know that “the most wonderful time of the year” also brings its fair share of stress.
Divorce. Depression. Loneliness. Budgets. Illness. Unemployment. Hectic schedules. They don’t sound like kids’ issues, but they are. “Families want their holidays to be special and happy for everyone, especially the children,” says Louise Longo, one of the 100 Kids Help Phone counsellors that will be available day or night to talk to young Canadians this holiday season.
“Kids learn early on that the holidays are supposed to be picture-perfect family gatherings filled with wonderful gifts. They don’t know how to cope with their own sadness, loneliness or anxieties when the pressure to have a good time is quite high.”
Kids who reach out to Kids Help Phone during the holiday season will share concerns and questions that overwhelmingly fit three categories;
Family Issues: kids are heading into the holidays with their parents’ divorce looming over the season, or are adjusting to their first year in a blended family, or the reality of spending their holiday in a new foster home.
Peer Issues: some of them are worried about being left out at school if they don’t have the latest hi-tech gadget, others are finding it hard to reconcile what they see and hear about the holidays with their family’s own religious or cultural traditions.
Managing Emotions: the holidays are a particularly stressful time for the anxious kid, who has to deal with the parties and the disrupted routine. New Year’s Eve may also be a time for sad reflections, and for some it can trigger an overwhelming sense of low self-esteem because of the pressure to be invited to parties, or to celebrate with a special someone.
Whatever the source, the stress is very real. Adults need to learn to read the signs; a young person who becomes withdrawn, moody, or depressed could be showing symptoms of holiday stress.
Kids Help Phone, Canada’s leading mental health youth counselling service, believes kids have the ability to find answers and solutions in creating their own healthy outcome. Counsellor Louise Longo recommends that caregivers take the time to talk with their kids about how they’re feeling, and be supportive of their kids’ suggestions on how to alleviate their stress.
“No one is immune to intense feelings. It’s important that kids know someone’s there to listen,” Longo says.
Here are some suggestions to ensure the holiday season lives up to its reputation:
• Take the opportunity of a talk (or family discussion) to refocus the holidays. Steer kids from material goods and ask for their ideas; it could be a family outing to go skating, or tobogganing. It could be to attend a multi-cultural event or service in celebration of the season, or even to help out, as a family, at a food bank or soup kitchen.
• Consider starting a new family tradition. It could be the Hooray for the Holidays Movie Night, complete with hot chocolate and cookies; a Family Board Game Night, or something as simple as a Pizza Night, where everyone sits down to help wrap gifts.
• Don’t underestimate how a blended family can impact your kids; you may be looking at crazy schedules, more obligations, change of traditions, and lots of time traveling between gatherings and get-togethers. Involve the kids and lay out the schedule in advance to ensure they feel acknowledged.
• Pay attention to your own stress, and talk to friends for support as you add holiday preparations to your already hectic life.
• Don’t overschedule your kids, or plan extra chores or play dates for them around the holidays. Remember they’re on holidays and need some down time, too.
About Kids Help Phone
Kids Help Phone is Canada’s only phone and online counselling service for youth. It’s free, anonymous and confidential. Professional counsellors are available any time of the day or night, 365 days a year, to help young people deal with concerns large or small. As a national community-based charity, Kids Help Phone relies on individual and corporate donations to fund these vital services.
About Louise Longo
Louise Longo has worked with young people in a variety of settings, from handicapped kids in Victoria, BC,
to families and kids in shelters in the Toronto’s downtown core. She has spent the last 14 years as a full-time counsellor with Kids Help Phone; Louise has worked both the nights and day shifts, responding to young people’s questions and concerns by phone and online.
* post from Kids Help Phone Ask Us Online counselling service, edited to protect the anonymity of the client
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