Legal Definition under Canadian Law
In Canada, there is no specific Cyberstalking legislation. Cases are prosecuted under section 264 of the Criminal Code (s. 264):
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of:
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.”
The offence is a hybrid offence, so it can be prosecuted as either a summary conviction or an indictable offence. The maximum jail time, if an offender is convicted is ten years.
In some cyberstalking situations, criminal harassment charges may result, but charges may also or alternatively be laid under:
S. 326 (theft of telecommunication service)
S. 327 (possession of device to obtain telecommunication facility or service),
S. 342.1 (unauthorized use of a computer),
S. 342.2 (possession of device to obtain computer service), and/or
S. 430(1.1) (mischief in relation to data).
The existing legislation is broad enough in scope to allow for the inclusion of most behaviours that are classified as cyberstalking. There are gaps, however, which could be addressed by the creation of an offence that specifically defines cyberstalking and addresses the unique nature of this crime.
In October 2010 the Canadian government introduced two bills in the House of Commons to combat cyber crime in Canada. The bill, Investigative Powers for the 21st Century Act, seeks to make it illegal to possess a computer virus for the purposes of mischief. This would amend section 342.2 of the Criminal Code.
The second bill, the Investigation and Preventing Criminal Electronic Communications Act, would require a service provider to include interception capability in their network allowing, law enforcement and national security agencies to execute authorizations for interception in a timely and efficient manner with a warrant. It also calls for service providers to supply basic subscriber information upon request. Proposed provisions include:
Transmission data: Ability to procure type, date, time, origin, destination and termination of communication (telephone or computer) but not content
Preservation orders: Used as a quick freeze of communication not allowing service providers to delete communications which assist investigation until enforcement agents can provide a warrant or production order (not data retention don’t need to mass save all information from all individuals)
Tracking Warrants: Allow police to access current tracking devices that are already found in certain types of devices (GPS, cell phones)
Possession of a computer virus for purposes of mischief: Make it illegal to possess a device for the purposes of committing the offence of mischief and indicating that computer programs (such as viruses) are now considered.
International considerations: Addressing issues related to cross-border transmissions.
Duhaime, L.(2009). Stalking. Accessed on February 9, 2011 at http://duhaime.org/LegalResources/CriminalLaw/LawArticle-95/Stalking.aspx. Last updated: Thursday, June 4, 2009.
Department of Justice Canada. (2010). Government of Canada Introduces legislation to fight crime in today’s high tech world. Accessed on February 9, 2011 at http://www.justice.gc.ca/eng/news-nouv/nr-cp/2010/doc_32566.html.
Department of Justice Canada. (2004). A Handbook for Police and Crown Prosecutors – Criminal Harassment. Accessed on February 8, 2011 at http://www.justice.gc.ca/eng/pi/fv-vf/pub/har/ch_e-hc_a.pdf.