Cyberstalking ruling reversed:Australian to be tried in case involving Canadian actress

Lesia Stangret
Financial Post
In a move that will be welcome in Canada and abroad, the Supreme Court of Victoria, Australia, reversed the decision in a cyberstalking case last week that had started to worry authorities concerned with transborder cybercrime.

The case involves Sara Ballingall, a Canadian actress, and Brian Andrew Sutcliffe of Melbourne. Ms. Ballingall played Melanie in the popular Canadian TV series Degrassi High from 1986 to 1991.

When what started out as fan mail took on a threatening tone, Toronto police commenced a joint investigation with Interpol and Australian authorities. After a search of Mr. Sutcliffe’s home, Australian police seized 75 firearms.

Mr. Sutcliffe was charged with stalking and 13 counts of possessing unregistered firearms. While he was found guilty of the firearms violations last year, the Australian court dismissed the stalking charge.

The court decided it didn’t have jurisdiction over the case because, although Mr. Sutcliffe lives in Australia, the effects of what he may have done were felt overseas.

In essence, the court dismissed the case because the victim lives in Canada. Canada, however, is not prosecuting because Mr. Sutcliffe lives in Australia.

“We would love to prosecute, but we’re separated by 10,000 miles,” said Savas Kyriacou, the Toronto detective who investigated the case. “From the Canadian side, we’ve done all we can do. We have taken out a Canada-wide warrant for his arrest. If he ever attempts to come into Canada, we will be executing the warrant, but the chances of him coming to Canada are very remote.”

The case highlights the challenge of prosecuting cross-border crimes in which an offence is committed in one country, but the harm is felt in another. If the decision had stood, it could have created headaches for Australian authorities trying to prosecute Internet crimes.

Imagine a case in which an Australian was accused of hacking into a company in the United States. or releasing a virus that infected student accounts at a university in Italy. If Australian courts dismissed such charges because the harm was felt entirely abroad, that would put the burden on the United States or Italy to prosecute the case instead. But prosecuting someone who lives abroad generally requires extradition. Extradition is a long and costly process that has to be used judiciously. Even if the other countries could seek extradition, it’s not at all clear that they would.

As with any case, prosecutors have to set priorities, based on things like evidence and the seriousness of the offence. When the accused is another country, there’s the added element of cost. With cyberstalking, there may also be the distance.

How likely are countries to seek extradition for anything less than serious crimes?

That depends, said David Lanham, a criminal law professor in Australia, but the decision would certainly be affected by things like distance and costs. Mr. Lanham, who wrote a book called Cross Border Criminal Law, said the main concern in cases where the harm occurs abroad is to ensure we don’t end up creating a safe haven that lets transborder crimes slip through the cracks.

In this case, for example, extradition was not considered.

“Because of the distance and because we’ve taken steps to protect the victim, we feel the offence committed is not a serious offence to the point where we would extradite,” Det. Kyriacou said.

Parry Aftab is not surprised. Ms. Aftab, who heads up an organization called Cyberangels, said: “You’re not going to get extradition for cyberstalking. It’s just not taken very seriously as a crime.

“Until it is, nobody’s going to spend a great deal of time and money prosecuting somebody out of the jurisdiction.”

She noted, however, that cyberstalking could have devastating effects on the victims. “They’re terrorized. They’ll never use their computer. They’re afraid of answering the phones. These people live as prisoners in their own homes.”

Last month, Australian prosecutors appealed the decision, concerned about the precedent for other cases involving the Internet.

“The Victoria State Government’s entry into cyberspace is not proceeding very smoothly,” prosecutor Adrian Castle said before the appeal.

Prosecutors believed the lower court should have followed the reasoning in an English blackmail case, in which the accused had written a letter in Britain, but used it to blackmail a victim in Europe. In that case, the accused was convicted even though the effects of his actions were felt abroad.

The Supreme Court of Victoria agreed and reversed the decision. The court ruled the stalking law would be rendered unworkable if it could not extend to conduct that was clearly stalking but that happened to cause harm overseas. The case has been sent back to the Magistrates’ Court for trial. Mr. Sutcliffe was given two weeks to file an appeal.

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