British ColumbiaCBC Investigates

B.C. revenge website sets off torrent of anger, legal concerns

A Burnaby B.C. man's bid to "destroy" his ex-wife with a website has touched off concerns by legal experts who say courts must come to grips with new online world.

B.C.'s Justice Minister says 'the case could be revisited' in written statement

Yvette Brend CBC News Posted: Feb 20, 2016 6:46 PM EST | Last Updated: February 22, 2016

Desiree Capuano says her ex-husband Patrick Fox's 'sick fixation' on her is frightening. (Desiree Capuano/Facebook)

A revengewebsitecreated by aBurnabyB.C. man set on "destroying" his former wife in Arizona hastouched off international outrage and criticism about how wellCanadian laws stand up against modern online attacks.

Case could re-open

B.C.'s Justice Minister reacted by saying "the case could be revisited," afterCBC aired thestory of Patrick Fox and DesireeCapuano.

The couple who separated 14 years agobecame locked in a custody wrangle over their son that's culminated in awebsitethat labels Capuano a drug addict and white supremacist.

CBC Investigates: B.C. man Patrick Fox aims to destroy ex-wife with revenge website

Thewebsiteis full ofdemeaning comments and purports to describe details ofCapuano'ssex life. Fox was arrested byBurnabyRCMP, but charges of criminal harassment were not approved by Crown Counsel because there was deemed to be no"objective fear for personal safety" in partbecause of the distance between the pair.

Legal tools are there

An online legal expert reviewed the case for CBC. Kevin Westellsaid B.C. has the tools to go after online harassment, even if it does not feature outright porn or death threats.

"The fear of personal safety can include psychological safety. If psychological harm is being inflicted by actions that are communicated over a distance, it just simply doesn't matter that this person is far away," said Westell.

B.C. Minister of Justice and Attorney General Suzanne Anton says the case could be re-opened. (Darryl Dyck/The Canadian Press)

The difficultyis a lack of resources for prosecutors, and the challenge of proving complex cases like this one, Westellsaid.

"The devil is in the details. The devil is in trying to put it all together and being that trial crown that has to put it all together and get witnesses," he added.

B.C.'s justice minister reacts

B.C.Justice Minister Suzanne Antonemaileda statement to CBC saying:

"This government takes online harassment seriously...a prosecution may occur regardless of the form that the alleged harassment takes."

"If the police provide additional evidence that might affect the Crown's decision on whether to approve charges, the case could be revisited," said Anton.

Kevin Westell, a lawyer who reviewed the case, says it's easier today for people to just 'hide behind your desk and your computer and stalk.' (CBC)

"However, it would be up to police to determine whether to re-submit its original Report to Crown Counsel to the Branch, with any additional evidence included."

Case sparks criticism

The decision not to charge the man who crafted the site in B.C. reveals the limits of the charge of criminal harassment in the digital age, other experts said.

"I do think it's worth having a conversation as a society to find out whether or not 'objective fear for your safety' is in fact the right threshold, when more and more harassment is taking place online," said DavidFraser, an internet and privacy lawyer.

Dan McLaughlin, spokesman for the Crown, says it concluded Capuano should not have an 'objective fear' for her safety, given Fox's 'actual comments' and his residence in a different country. (cbc)

"I don't suggest dropping it so low that you just have to hurt somebody's feelings, but maybe that line is a little bit too high in order to deal with significant cases of purposeful harassment."

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.

I don't suggest dropping it so low that you just have to hurt somebody's feelings, but maybe that line is a little bit too high.- David Fraser, internet and privacy lawyer

IsabelGrant, a University of British Columbia law professor and criminal harassment expert, agreed with CBC's expert, saying that courts have said reasonable fear for one's 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.

"When this provision was drafted in the early1990s, people weren't thinking of cyber abuse. They were thinking of men who are physically following and threatening their former partners."

No objective fear

Fox's site and the couple's email exchanges were also investigated by Burnaby RCMP. In July 2015, Fox was arrested and the RCMP recommended a charge of criminal harassment. The Crown did not approve the charge and Fox was released.

Despite his conviction for criminal harassment, Patrick Fox has vowed he will maintain his website while his ex-wife is still alive. (CBC)

"The actual comments used by the perpetrator in this case, we couldn't conclude that that would cause the complainant to have an objective fear for their personal safety," said Dan McLaughlin, communications counsel for the Criminal Justice Branch.

"In this case, the fact the people live in different countries played a part in that assessment."

Legislation introduced last year that criminalized so-called "revenge porn" did not apply because photos ofCapuanowith a former partner on thewebsitedid not include nudity, he added.