Bill C-13, the proposed federal cyberbullying bill expected to pass this spring, would give authorities the option of lodging the lesser charge of non-consensual distribution of images, which would carry a maximum sentence of five years, compared with 10 years for distribution of child pornography.
Police in northern B.C. are recommending a 13-year-old boy be charged with child pornography for allegedly posting a partly nude photo of an acquaintance on Facebook.
The B.C. teen could be the youngest Canadian to face child pornography charges since police began cracking down on young people sharing sexually graphic photos, a campaign launched informally after the deaths of Rehtaeh Parsons and Amanda Todd, teens whose images were shared online. Crown prosecutors are expected to decide whether to lay charges this month.
Bill C-13, the proposed federal cyberbullying bill expected to pass this spring, would eliminate the need for such a severe charge in similar cases. It would give the option of lodging the lesser charge of non-consensual distribution of images, which would carry a maximum sentence of five years, compared with 10 years for distribution of child pornography.
But until it clears Parliament, police have few legal tools at their disposal.
"The only charge that fit this particular offence is distribution of child pornography," said Fort St. John RCMP spokeswoman Corporal Jodi Shelkie. "There wasn't enough to fulfill a charge of harassment." Police allege that a 13-year-old girl sent a partly nude photo of herself to a 13-year-old male friend. The boy posted the image on his Facebook page. Fort St. John RCMP have been investigating the allegations since December.
"My understanding is that all his friends could see it," said Cpl. Shelkie. "The victim is distraught. It's always a double-edged sword in these situations. The victim would like to see a resolution and make sure the photo is no longer out there. At the same time they know that, through court process, it's garnering more attention and more people could see it."
Ms. Todd's suicide in 2012 drew international attention to the issue of cyberbullying. She took her own life after months of torment that began when a topless photo of her appeared online. In Nova Scotia, prosecutors have laid child pornography charges against two teens in the Rehtaeh Parsons case, as well as against a 14-year-old boy who allegedly appeared in a sex video posted online.
In Laval, Que., 10 teenage boys were charged after a teacher noticed sexually explicit images on student cellphones.
And in Victoria, a judge convicted a 16-year-old girl last month on one count each of distributing and possessing child pornography. In that case, the accused sent naked images of another girl electronically as a form of retaliation.
"From the outset, she has never denied having received the images or sent them. But she's always strenuously denied being a child pornographer," said the accused girl's lawyer, Christopher Mackie.
He filed a constitutional challenge in September alleging that applying child pornography laws to a youth, given the circumstances, is unconstitutional.
"I think a child porn charge is very blunt instrument for dealing with this kind of thing," said Wayne MacKay, a law professor at Dalhousie University who chaired a Nova Scotia task force on cyberbullying after Ms. Parsons's death. "Police are responding to the public outcry and at the moment they don't have a lot of options. Legal sanctions are not the only response. You can have educations, prevention programs, restorative approaches – you have other ways."
Dr. MacKay agreed the proposed federal law would give prosecutors more flexibility, but said new laws can't address the massive generational gap that has emerged over issues of privacy and discretion. "Older generations are more appalled by this than young people who see this all the time," Dr. MacKay said. "That's not an excuse, but it's a reality."