VANCOUVER ó The British Columbia Crownís decision not to charge a man who created a revenge website to destroy his ex-wifeís reputation reveals the limits of criminal harassment law in the digital age, experts say.
The Crown said it could not conclude the woman had an ďobjective basis to fear for her safety.Ē The website includes private photos, her address and phone number and describes her as a white supremacist, child abuser and drug addict.
ďI do think itís worth having a conversation as a society to find out whether or not Ďobjective fear for your safetyí is in fact the right threshold, when more and more harassment is taking place online,Ē said David Fraser, an Internet and privacy lawyer.
ďI donít suggest dropping it so low that you just have to hurt somebodyís feelings, but maybe that line is a little bit too high in order to deal with significant cases of purposeful harassment.Ē
The case involving a B.C. man. and an Arizona woman has prompted criticism of Canadian law enforcement. While experts said the high threshold set by criminal harassment law plays a role, they also urged the Crown and police to take another look at the case.
Patrick Fox, whose birth name is Richard Riess, said in an interview that he created the site about his ex-wife Desiree Capuano to cause ďas much damage to her reputation and life as possible,Ē but that he would never physically harm her.
He said he would only take the site down if she reached a low point in her life that satisfied him or if she died. He said it ďwould be greatĒ if she killed herself, but it isnít a goal of the site.
ďI just donít believe that she really brings anything positive or good to the world at all, and I donít think the world is going to be worse off when she ceases to exist.Ē
The couple separated in 2001, when their son was a baby. Capuano alleged that Fox hid the child from her for years, while Fox said she abandoned the boy. He was later convicted of perjury and deported from the U.S. in 2013, but he blames Capuano for calling authorities.
Capuano now has custody of their son and lives near Tucson, Ariz. She said she lives with constant stress and fear and has struggled to find work after being laid off months ago. At one point he sent her colleagues links to the website, she said.
Fox has also sent her hundreds of threatening emails, some including photos of his gun licence and a spot where he said he could cross the border, she said.
ďI donít understand how, just because heís not physically in front of me with a gun, that itís not considered to be harassment,Ē she said through tears. ďJust because heís not hitting me physically, doesnít mean that itís not abuse.Ē
She vehemently denied Foxís allegations that sheís a child abuser, white supremacist or drug addict. She said she has not launched a defamation suit because she canít afford the legal costs.
Isabel Grant, a University of British Columbia law professor and criminal harassment expert, said courts have said reasonable fear for oneís safety also includes psychological safety.
She noted that a recent Twitter harassment trial in Ontario resulted in an acquittal because the judge could not conclude the fear of the two complainants was reasonable. She said the B.C. case appears more egregious and could fall within criminal harassment law.
ďWhen this provision was drafted in the early 1990s, people werenít thinking of cyber abuse. They were thinking of men who are physically following and threatening their former partners.Ē
Dan McLaughlin, spokesman for B.C.ís Criminal Justice Branch, said RCMP arrested, interviewed and released Fox in July 2015. Investigators later recommended charges, but they were not approved.
ďThis assessment included the fact that the two parties involved lived in different countries and the perpetrator had been deported from the U.S.Ē
Legislation introduced last year that criminalized so-called ďrevenge pornĒ did not apply because photos of Capuano with a former partner on the website did not include nudity, he added.
B.C. man‚Äôs revenge website reveals flaws in criminal harassment law: experts
So is this straight up stalking, abuse and harassment and should there be a sole criminal law measure to deal with this? Should it be dealt entirely through civil courts through defamation lawsuits? Or is there some in between measure?
I think it's clear the law needs a review to deal with the new digital age we are all living in but, as someone who thinks the internet should be as free as it possibly can be, I'd hate to see it overdone.