Cyberbullying law ruled void in Nova Scotia

Rehtaeh Parsons’ death in 2013 shocked people across the country, most particularly in Nova Scotia where after being sexually assaulted and belittled on the web, the 17-year-old attempted suicide in the bathroom of her family home and later died.

Within weeks and before a provincial election, Nova Scotia’s then-NDP government introduced the Cyber-safety Act, passed unanimously in the legislature.

It allowed an alleged victim of cyberbullying to request a protection order from a justice of the peace that could result in the confiscation of the accused’s electronic devices or barring that person from using the Internet, without any notice of hearing or right of the person accused of cyberbullying to respond despite being referred to as the “respondent” in the legislation.

But the law is now void after the Nova Scotia Supreme Court ruled in December that it was unconstitutional.

In Crouch vs. Snell, [2015] NSSC 340, Justice Glen McDougall declared the act and particularly its definition of cyberbullying (“any electronic communication… intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way”) “a colossal failure.”

The judge held that the law neither provides “sufficiently clear standards to avoid arbitrary and discriminatory applications” nor “defences, and proof of harm is not required.”

Furthermore, the Cyber-safety Act did not “accommodate expression that relates to individual self-fulfillment, truth-finding or political discourse,” wrote Justice McDougall in his reasons.

“Many types of expression that go to the core of freedom of expression values might be caught in the definition of cyber-bullying, [and] those deleterious effects have not been outweighed by the presumed salutary effects,” said the judge in finding the law violated Charter section 2(b).

He also said that the legislation violated s. 7 in part because of the absence of giving notice and an opportunity to respond to the charge by a defendant.

Internet, technology and privacy lawyer David Fraser was not surprised by the decision. He was one of the law’s harshest critics and helped quash it as co-counsel to the defendant.

“It created a definition of cyberbullying so broad that it didn’t matter whether any electronic communications involved adults, or were a matter of public interest, fair comment or the truth,” explained Fraser, a partner with McInnes Cooper in Halifax.

“It also created a tort of cyberbullying that you could sue someone without proof of damages.”

“I believed it was not going to survive a Charter challenge because it was prone to abuse, and I was proven right.”

Fraser represented Robert Snell, a former business partner with Giles Crouch, who accused Snell of waging a “smear campaign” against him on social media and obtained a protection order that in part ordered Snell to remove any online comments “directed toward an unnamed or unspecified person(s).”

That amounted to reviewing over 17,000 tweets, according to Fraser, although Justice McDougall amended the order to only target unnamed posts “that might reasonably lead one to conclude” that they refer to Crouch. The judge concluded Snell engaged in cyberbullying as defined by the law that he struck down in the same ruling.

Civil litigator Laura Veniot, an associate with Pressé Mason in the community of Bedford near Halifax, who served as Crouch’s co-counsel, said she wasn’t surprised Justice McDougall found the legislation to be “too broad.” But she was surprised that he “scrapped it outright,” along with “legitimate” protection orders already in place, without giving the legislature time to amend the law.

To suspend the declaration of invalidity for 12 months, as the Crown requested, would “condone further infringements of Charter-protected rights and freedoms,” Justice McDougall said.

However, Veniot believes the Cyber-safety Act helped many people and she hopes the Nova Scotia government will introduce an amended, Charter-compliant law, especially since the province was “seen as a leader” in legislating protection against cyberbullying.

The striking down of that law has left a vacuum in Canada.

While some provinces, including Nova Scotia, have school-related legislation that requires the creation of policies or codes of conduct regarding proper Internet use to avoid cyberbullying, none have followed suit and implemented a law “anywhere remotely close to Nova Scotia’s approach,” said Fraser.

“If provinces are going to even tiptoe into areas related to cyberbullying, they will have to tailor legislation that doesn’t produce massive collateral damage on Charter-protected rights that Nova Scotia’s did.”

He explained that the Criminal Code is also available to address various aspects of cyberbullying, as highlighted in the Parsons case, which includes the sections dealing with child pornography, extortion, criminal harassment, child luring and defamatory libel.

But Fraser cautioned that while an anti-cyberbullying law could help, “it doesn’t fix everything and doesn’t do a lot for victims, and should be the last resort” in addressing the issue.

“I hope that instead of appealing the ruling, the Nova Scotia government will bring together education and social work experts on cyberbullying that know about Charter rights and can look at what laws exist which can be used to assist victims and identify the gaps,” said Fraser, who has acted for victims of cyberbullying.

Nova Scotia Justice Department spokesman Peter McLaughlin said the government has yet to decide whether to launch an appeal or introduce new legislation.

The Justice Department “is disappointed and believes in the premise of this legislation,” said an official statement, which also noted that the CyberSCAN investigative unit “will shift focus to education and public awareness,” a role Fraser endorses.

According to a notice posted on the CyberSCAN website, complaints involving harassment or threats will be directed to the police, who “will not deal with cyberbullying unless it has a criminal element.”

Fraser believes the Nova Scotia government is doing a “disservice” to cyberbullying victims by referring them to law enforcement rather than having CyberSCAN mediate complaints.

Veniot said that if Nova Scotia legislators decide to tackle an amended law, they should properly define cyberbullying to indicate whether it includes “malice,” as Nova Scotia Supreme Court Justice Gerald Moir held in Self v. Baha’i, [2015] NSSC 94 but which Justice McDougall disagreed with in Crouch.

“Maybe cyberbullying means reckless disregard for the feelings of someone else or conduct that is intended to harm or would reasonably be expected to cause harm,” offered Veniot.

One thing is certain though. Her client won’t appeal the ruling.

Crouch’s protection order, which was only issued for one year, expired by the time Justice McDougall handed down his ruling.

Click here to see original article written by Christopher Guly in The Lawyers Weekly

January 15, 2016