MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

254 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
threats 144 or send threatening emails. 145 Another common form of
harassment is creating fake accounts for the purpose of impersonation,
although courts do draw a line between creating a website for satire or
mockery and actions intended to cause real harm. In Clear v Superior
Court, 146 a Californian court found a man guilty of false personation after
he created a fake MySpace account for a pastor and made lewd statements.
The court found that while it was not illegal to make a fake account, doing
so for the purpose of sending embarrassing messages to get the pastor fired
was a felony. A similar case in Canada, involving a group of unknown
individuals creating a fake account under a juvenile’s name to discuss her
sexual activities, will be discussed further below. 147
6. Sentencing
A court may consider social networking evidence in determining
sentencing. At this stage of the criminal process, the concern becomes
evaluating a person’s character to determine the likelihood of reoffending
and necessary deterrents. In Smith, the judge found the ‘arrogantly sinister
gangster’ image a youth presented on his Facebook account a factor in his
decision to give that youth an adult sentence. 148
Social networking and online conduct may directly relate to the crime.
In R v Desilva, 149 a judge found a man’s decision to upload a sex video of
his partner onto Facebook was an aggravating factor necessitating a more
severe sentence. Although the court recognized that the man quickly
removed the video when contacted by police, Judge Robertson remarked:
In addition to the deterrence to the accused, this offence is one where general
deterrence plays an enhanced role. With the proliferation of social networking
sites, the opportunity to misuse such sites is significant and with devastating
results to the victims; many of the impacts are significant and long lasting. This is
144
Re F(J), 2010 CarswellOnt 8100; Re F(K), 2010 CarswellOnt 7835 (WL Can) (ON
CCB).
145
Re F(K), ibid; Re F(J), ibid; Re H(T), 2010 CarswellOnt 9036 (WL Can) (ON CCB).
146
Clear v Superior Court, 2010 WL 2029016 (Cal App 4 Dist).
147
AB v Bragg Communications Inc, 2010 NSSC 215, 293 NSR (2d) 222 [AB]. See section
V(I)(1) of this paper, infra.
148
S(MC), supra note 100.
149
R v Desilva, 2011 ONCJ 133 (available on WL Can).