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Two weeks after Rehtaeh Parsons's death prompted an outpouring of concern about cyberbullying, justice ministers from across the country are debating whether new legislation is needed to combat the problem.
Ms. Parsons died on April 7, three days after she attempted suicide at her home in a small community near Halifax. Her family alleges that she was sexually assaulted by four boys when she was 15, and that a photo of the incident was widely circulated among her classmates.
Police did not lay charges at the time, but have since re-opened their investigation into the alleged assault, saying they received new information after Ms. Parsons's death. As that investigation continues, a growing number of politicians are asking whether the subsequent circulation of the photo points to a broader problem that Canada's legal system is not equipped to address.
Experts say the photo of the alleged assault appears to meet the criteria for child pornography, because Ms. Parsons was under 18 years of age when it was taken. That means anyone who viewed the image could, in theory, be charged with accessing child pornography, a crime that carries a minimum three-month sentence. Those who shared the image with others could face a minimum penalty of six months if convicted.
(Minimum sentences for both of those crimes were increased last year after the omnibus Safe Streets and Communities Act was passed).
But law professor Brenda Cossman says Canadian police and prosecutors are often reluctant to apply child pornography laws to young people who share or access explicit images of their peers, even when they are shared without consent or, in the case of Ms. Parsons, depict an alleged crime.
Prof. Cossman, who teaches at the University of Toronto, said part of the problem in dealing with explicit images in cases beyond Ms. Parsons's is that they are often taken or sent consensually at first, and then passed along to others who share them further. And child pornography charges, which carry both stigma and the possibility of lengthy sentences, may not be the right instrument to deal with the issue.
"I think that this is a unique problem, that isn't the same as child pornography," Prof. Cossman said. "I think we need something that is much more specifically directed to the problem of sexting and teenagers."
Criminal harassment charges could also be an option for police when it comes to extreme cases of cyberbullying. The law generally covers behaviour that is carried out repeatedly over time, and can reasonably make a victim fear for their safety or the safety of someone they know. But the specific reference to personal safety means it could be difficult to apply in many cases where an intimate or explicit photograph is shared with others.
Nova Scotia Justice Minister Ross Landry has suggested new legislation could focus on anyone who distributes intimate photos for malicious or sexual reasons, regardless of their age. His proposal is likely to be addressed on Wednesday, when justice ministers meet in Ottawa.
Kim Mackrael is a parliamentary reporter in the Ottawa bureau.