Nova Scotia judge reserves decision as cyberbullying legal battle wraps up

An anti-cyberbullying law drafted in response to the Rehtaeh Parsons case was defended Thursday as necessary to fill in significant gaps in the criminal law.
Nova Scotia’s Cyber-safety Act is the subject of a Charter challenge by Halifax lawyer David Fraser as part of a case involving client Robert Snell, who was placed under a cyber safety protection order sought by his former business partner Giles Crouch last December. Fraser says the law is too broad and is an “unreasonable and unjustified” infringement of freedom of expression rights.
The Crown wrapped up its arguments Thursday in the Supreme Court of Nova Scotia after Judge Glen MacDougall ruled earlier this week that the protection order should be maintained.
MacDougall reserved his decision on the Charter argument.
Following the Crown’s submission, Crouch’s lawyer Laura Veniot told the court that most clients affected by cyberbullying aren’t looking to sue for defamation and simply want the online content removed and the offender to stop.
“In that regard the law of defamation can do nothing for them,” said Veniot.
And while seeking a mandatory injunction would be an option, Veniot said it would be an expensive foray into an extremely complicated area of the law.
Veniot also noted that Parliament only recently passed a law regarding the sharing of private nude photographs, and that in the past few years women in particular have been dealing with so-called revenge porn, where nude photos are posted by ex-boyfriends.
For the past two years, she said the only province where a victim would have had any recourse is Nova Scotia.
“There are significant gaps in the law where the criminal law just doesn’t step up. I think everyone here agrees that there are gaps in the law and that the Cyber-safety Act is important.”
Crown attorney Debbie Brown told MacDougall that the Supreme Court of Canada has recognized the freedom of expression is not an “absolute right.”
Brown said that under Section 1 of the Charter, the court recognized “that social values will at times conflict and that some limits must be placed even on fundamental rights.”
The country’s highest court also recognizes a person’s reputation is protected under Charter privacy rights, Brown said, adding that it is personal reputations that are at stake when it comes to cyberbullying.
“The overriding theme here is we are dealing with malicious speech, cyberbullying, which would have no value to anyone,” she said.
Brown classified Nova Scotia’s law as “validly enacted legislation,” but asked that if it’s found to have infringed Charter rights that the court suspend any declaration for 12 months to allow the legislature time to amend it.
Outside court, Fraser said he wants the law sent back to the legislature to rewrite the definition of cyberbullying. That’s something that can be done by declaring the law invalid for a period of time, he added.
“The attorney general asked for 12 months and I think that’s reasonable,” Fraser said.
The law was passed in May 2013 by the province’s former NDP government in response to a public outcry over the Parsons case.
Her family alleges the teen was sexually assaulted in November 2011 and bullied for months after a digital photo of the assault was passed around her school. Parsons died after attempting suicide in April 2013.
Click here to see original article written by Keith Doucette The Globe and Mail Halifax Bureau

August 28, 2015