SD v boho43 2025 Crim 119

SD v boho43 [2025] Crim 119

Date of judgment	3rd September 2025
Judge	Judge Ed
Charges	1 charge of First Degree Harassment (Article 56, §1 of the Criminal Code 2020)
Verdict	Guilty
Sentence	8 month ban
Applicable persuasive precedent	In pre-trial, motions to dismiss based on the charges’ substance may not be made before the prosecution present the charges, [3.3]

JUDGMENT by Judge Ed

Introduction

[1] The State is pursuing one count of first-degree Harassment under Article 56, §1 of the Criminal Code, and requesting a 12 month ban for the offense.

[1.1] The court has personal jurisdiction over the defendant, Boho (Discord ID:1342813181319446598) (hereinafter “the defendant”), as the alleged criminal offense occurred within the SimDemocracy Discord server and as they qualify as a “person”, thereby fulfilling Article 1 §2 and §5 of the Criminal Code.

[2] The defense entered a plea of Not Guilty.

Motions

[3] The defense counsel, upon being appointed, made a motion to dismiss the complaint based on lack of probable cause arguing that the evidence in the complaint didn’t clearly show the victim indicating apprehension, and that the statements were made in jest. This motion was filed before the prosecution presented the charges as per CPA Article 7 §3.1.

[3.1] The prosecution objected to this based on it being out of order of the pretrial process, which allows dismissal motions after the charges are presented (CPA Article 7 §3.1.1). The defense responded stating that motions to dismiss may be made at any point in the trial or pre-trial, referring to CPA Article 5 §1-§1(e).

[3.2] CPA Article 5 §1-§1(e) allows motions to dismiss to be made at any point in trial or pre-trial, but such motions must be made either “as specified by law” or to “[dismiss] a frivolous and vexatious claim”.

[3.3] CPA Article 7 §3.1.1 provides the defense to make a motion to dismiss after the charges are presented. The sequencing of Article 7 makes clear that dismissal motions are tied to the prosecution’s presentation of charges. Furthermore, the CPA allows the prosecution to change or amend the charges in the complaint when reaching the pre-trial (CPA 7 §3.1). It would be inconsistent with that framework to permit dismissal motions based on the charges’ substance to be made before charges are presented, making the defense’s motion premature.

[3.4] In the present case, however, the court denied the defense motion because it found the complaint had probable cause.

Summary of Evidence and Argumentation

[4] The prosecution’s evidence consisted of four exhibits showing chat logs along with an affidavit from the alleged victim. The first exhibit shows the #general channel with users discussing legislation followed by the defendant making a series of statements blaming user “flor”, the alleged victim, for getting doxxed.

[4.1] The prosecution argued the defendant initiated the harassment by inserting themselves into an ongoing discussion unrelated to flor, victim-blaming and antagonising them for having been doxxed. They further assert that the defendant’s remarks implied that the victim’s ownership of a business opposing a terrorist organization justified them getting doxxed, which they argued shows intent.

[4.2] To this, the defense provided an ulterior explanation for the defendant's remarks, instead arguing that the defendant was simply providing an analysis of why the victim has gotten doxxed, which they also argue the prosecution has not proven.

[5] The next pieces of evidence show the subsequent exchanges with the alleged victim reacting to the defendant’s comments while the defendant persisted with the same kinds of statements. This continued over several minutes with the defendant maintaining the same line of communication focused on antagonising the alleged victim.

[5.1] The prosecution argued that these continued remarks coming after the victim’s evident distress, showed the defendant’s intent to maintain harassment and further cause apprehension.

[5.2] The defense argued that the victim’s aggressive responses reflected anger or frustration rather than distress and that the victim’s own insults could themselves constitute harassment. The defense also argued that the defendant had no realistic opportunity to de-escalate given the hostile tone of the victim and other users who were insulting the defendant.

[6] The prosecution then submitted the victim’s affidavit in which they claimed to have suffered apprehension and noting that their recent doxxing made them particularly vulnerable. The defense argued that the affidavit could not reliably prove that any distress was undue, arguing the victim is a directly involved party that is too invested to be neutral, and that the victim’s emotional state may have influenced their perception of the interactions.

Considerations and Findings

[7] First degree harassment requires that the defendant caused undue apprehension, alarm, or distress, and done so with recklessness or intent. The prosecution here chose intent, which is rebuttably presumed once apprehension, alarm, or distress is shown unless the defense rebuts it on a balance of probabilities. The defense argued on intent therefore triggering the presumption, shifting the question of intent to the balance of probabilities. As such, the prosecution must prove beyond a reasonable doubt that the victim experienced distress while the defense needs to show on the balance of probabilities that intent was lacking.

[8] Firstly, it is clear from the direct response of the alleged victim that they experienced distress as a result of the messages from the defendant. The defense’s argument that the reaction may have been self-driven and not caused by the defendant is very unpersuasive when looking at the timeline of the messages. As for whether it was undue or unjustified, the court believes being antagonised for having been doxxed (as the court takes judicial notice to, SD v Flashing Lights [2025] Crim 105) cannot be regarded as a fair basis for distress, therefore making the distress unjustifiable.

[9] As for intent, the court does not find the defense’s interpretation of the defendant’s messages persuasive; the wording, combined with the use of a mocking gif, comes across as antagonistic and ridiculing rather than analytic, and the sustained nature of the comments after the alleged victim displayed distress and other user’s comments supports an intention to continue the harassment.

[10] The court therefore finds that the actions of the defendant fulfill the criteria for first-degree harassment, having caused undue distress with intent.

Sentencing

[11] In considering an appropriate sentence for the defendant, the court has taken into account both mitigating and aggravating factors as presented by the parties. The defense has presented evidence for remorse and submitted the defendant’s lack of prior offenses as mitigating factors. Conversely, the prosecution argued that the offense was serious and exploited the vulnerability of the victim.

[12] Weighing these factors and applying the sentencing framework for first-degree harassment, the court notes that the victim was affected but the defendant’s conduct was not part of a repeated pattern. The court further finds that the defendant has not demonstrated genuine remorse. Considering these circumstances and the framework set in Article 6 of the Sentencing Act, the offense falls toward the upper end of band 2 with some elements approaching band 4. Accordingly, the court finds a sentence of an 8 months ban to be appropriate.

Verdict

[13] The court finds the defendant guilty of first-degree harassment and imposes a sentence of an 8 month ban.

[14] All decisions may be appealed to the Supreme Court.