Threats on Social Media

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Social media (like Facebook and Twitter) is notorious for grand standing and narcissism. Users are criticized for posting things that put themselves in a positive light, get attention and/or boost their ego.

When a person makes a threat on social media, should the fact that it is on social media play into the Court’s assessment of whether the person had the requisite criminal intention to threaten, that is they  meant their words to be taken seriously or to intimidate? [In R v McRae, 2013 SCC 68 the Supreme Court recognized that the mens rea for threats was whether the words were “meant to intimidate or to be taken seriously”: see Dallas Mack’s blog on McRae, Did you Hear About that Threat].

This question is what the Court worked through in a 2008 case out of Newmarket called R v Sather, 2008 ONCJ 98 and a 2014 case out of Montreal called R c Le Seelleur, 2014 QCCQ 12216.  

In Sather, Mr. Dan Sather was charged with two counts of uttering threats to cause death or serious bodily harm to a CAS worker, and to members of the York Region Children’s Aid Society via his Facebook statuses between September 16, 2007 and November 22, 2007.

The Children’s Aid society had removed his newborn son from him and his wife’s custody after having received information from a doctor and a nurse that flagged concerns about their ability to care for the child. Mr. Sather admitted to posting the following on his Facebook page:

“when I find out what nurse called CAS may god have murcey on my soul cause I’m going straight to hell with a 25 yr pit stop in prison”

“Dan is gonna go suicidal bomb CAS”

“Dan is sick of all the bull shit and in the midst of planning a tacticle strike to get kyle back and disappearing off the face of the earth.”

“Dan is plan B is in full operation as of Nov. 23 first the man power was set up then the fire power is obtained now 2 weeks to find out where there keeping him.”

“Dan is scared its almost time”

“Dan is I have no son think what u will I give up” [@6].

Police were called after a CAS worker had randomly searched any references to her work on Facebook and came across Mr. Sather’s posts. Mr. Sather was not Facebook friends with any member of the York Region Children’s Aid Society.

The Court determined that the actus reus element of uttering threats was clearly made out as any reasonable person reading these words would view them as conveying a threat.

Mr. Sather was acquitted however because the Court determined that the mens rea, that is the criminal intention to intimidate or be taken seriously was not made out beyond a reasonable doubt. This finding was based in part on the Facebook expert testimony of Jesse Hirch (http://jessehirsh.ca/bio). Mr. Hirsh explained to the court how people use Facebook. He testified that:

…people who profile themselves embellish their character. They deliberately say provocative things to elicit a response from their Facebook “friends.” In a sense they construct an alternate persona [@9].

The Court further reasoned that Mr. Sather was directing his threats to people who would be sympathetic to his situation (his Facebook friends), and that he had had numerous interactions with the Children’s Aid Society and had not said or done anything that would instill fear or that could be related to his threatening posts.

In other words, he was just venting and grandstanding on Facebook and his posts should not be taken seriously.

Interestingly, despite the finding that Mr. Sather did not have the guilty intent, the Court affirmed the actions of police in arresting Mr. Sather for his postings stating that the response was both “necessary and appropriate” [@11].

In Le Seelleur the Court took a different approach. Unlike Mr. Sather’s case, no consideration was given by the Court to the social media context of the threat uttered by Ms. Le Seelleur.

Ms. Le Seelleur in a moment of frustration following a news story about the Prime Minister of Quebec took to her twitter account and posted “Good get the bitch out of there before I bomb her” [@2].

According to Ms. Le Seelleur she was frustrated and angry about things the Prime Minister was doing and tweeted the comment to her 100 or so followers with little thought to any possible consequences. She said she really did not think about it again until the police called.

The Court believed her when she testified that she was regretted the tweet and that she was never going to follow through on her threat. However the Court did determine that she meant her words to be taken seriously and to intimidate, and Ms. Le Seelleur was found guilty. In its reasoning the Court states:

Concerning the fault element, the evidence establishes that the accused had a full operating mind when she uttered those words. She posted her tweet right after reading the CTV article that mentioned that the Prime Minister was ready to call an election. She knew that she had more than a hundred followers at the time. In her testimony, she admits that she was frustrated and angry concerning a variety of decision or positions taken by the Prime Minister during that period. Although she claims that she wrote the post “without thinking clearly” and “without meaning what was written,” it is clear from the evidence that it came from an operating mind that was angry and frustrated. Her frustration was unmistakably vocalized in a serious threatening and intimidating manner. Although it might have been written in a “split second”, it was still a conscious act which was clearly intimidating and threatening [@10].

There was no twitter expert called at Ms. Le Seelleur’s trial.

There is nothing in Canadian law that states that threats posted on social media accounts should be treated any differently than things said in person or on the phone.

The typed word does not leave much wiggle room for alternative interpretations; in most cases it will be difficult for a person to convince a Judge or jury that they did not mean what they posted in a social media context to be taken seriously or to intimidate.

AL

Current & Curious: Threats Redux

Today the Supreme Court released its decision in O'Brien: 2013 SCC 2. Yesterday I posted about this case and commented on the possible impact of the Court's ruling: Finding fear in all the right places.

Two aspects of the ruling are interesting. First, the legal analysis. Fish J, for the majority held that "it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered feel intimidated by them or be shown to have taken them seriously" [para 13]. Rothstein J, for the minority agreed. As I noted in my post yesterday, this is an interesting point. That all members of the Court agreed, and with little real analysis, that the subjective view of the recipient of the threat is not determinative is somewhat notable. It has been held and accepted by many that this is not only an important but fundamental aspect of a threats charge. Regardless, as I noted in my earlier post - whether it was always the law or is now the law - this is a beneficial and legally sound view of the elements of a threats charge.

Second, the dispute between the majority and minority relates to the interpretation of the trial judge's ruling. The trial judge held as follows:

So I have to consider the evidence of Ms. [W] when I consider the mental element or the mens rea.  Normally the mens rea is taken from the words of the accused, absent any explanation from the accused, and as I pointed out at the outset you have chosen not to testify, as is your right.  But the evidence in this case is somewhat unusual in the sense that Ms. [W] has told the court that she was not concerned about the threats, that you shoot your mouth off, if I can use the vernacular, that she did not want you charged, she did not take the threat seriously.  And so it is incumbent, and the court is required, to consider the words in the context of the evidence of Ms. [W], and when I do so, despite the fact that I am actually quite concerned about the actus of the offence, the comments, the words, I must say that I do have a reasonable doubt about the mental element of the mens rea of the offence because of the evidence of Ms. [W], the fact she did not take them seriously, and as I pointed out at the outset it is incumbent upon the Crown to prove all elements of the case beyond a reasonable doubt.  So despite my concerns I am entering an acquittal on the charges of utter threats, …

While the majority found that it was open to the trial judge to consider W's perception, the minority felt the trial judge asked the wrong question - and acquitted on the basis of W's perception. With respect, it looks like that is exactly what the trial judge did. Perhaps, in fairness, the learned trial judge was of the same view as many others, that the recipient's view is highly probative and indeed, determinative. At any rate, that is not the law - at least not any more.

DGM