[image from endcyberbullying.org]

On Friday, Justice McDougall of the Nova Scotia Supreme Court ruled that Nova Scotia’s Cyber-Safety Act is unconstitutional, violating both s. 2(b) and s. 7 of the Charter.  The Cyber-safety Act was passed in 2013 in response to the public outcry over the suicide death of a young woman, Rehtaeh Parsons, linked to her having been bullied on-line. In his 66 page judgment in Crouch v. Snell, 2015 NSSC 340, Justice McDougall held that the Nova Scotian legislature had gone too far in its attempt to address the dangers of cyberbullying.

The dispute that led to Justice McDougall’s determination was between two former business partners who had fallen out with each other. Crouch complained that Snell was damaging his reputation using social media. Crouch obtained an order under the Cyber-safety Act to restrain Snell from continuing to act in this manner.

Section 3(1)(b) of the Act defined cyberbullying as follows:

3(1)(b) “cyberbullying” means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is 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;

As Justice McDougall noted, by using the word “means” as opposed to “includes” the legislature had supplanted any ordinary meaning of the term “cyberbullying” [see paras. 76-77].  Also of great importance to him were the procedural mechanisms for obtaining a protective order.

5 (1) An application for a protection order may be made to a justice, without notice to the respondent, in the form and manner prescribed by the regulations, by

(a) the subject, if the subject is not a minor; or

(b) where the subject is a minor,

(i) the subject’s parent,

(ii) a person designated by the regulations for this purpose, or

(iii) a police officer.

(2) Subject to subsection (3), an application for a protection order must name as a respondent any person associated with an electronic device, Internet Protocol address, website, username or account, electronic-mail address or other unique identifier, identified as being used for cyberbullying, or a parent of the person if the person is a minor.

(3) Where the name of the respondent is unknown and cannot easily be ascertained, an application for a protection order may identify the respondent by an Internet Protocol address, website, username or account, electronic-mail address or other unique identifier, identified in the application as being used for cyberbullying.

(4) An application for a protection order may be submitted

(a) in person, by the applicant; or

(b) in person or by telephone or other means of telecommunication, by a lawyer, a police officer or a person designated by the regulations for this purpose, with the applicant’s consent.

(5) Evidence adduced in support of an application for a protection order must be given under oath.

…

12 (1) As soon as practicable after making a protection order and in any event within two working days, the justice shall forward a copy of the order and all supporting documentation, including a transcript or recording of the proceedings, to the Court in the prescribed manner.

(2) Within such period as the regulations prescribe of the receipt of the protection order and all supporting documentation by the Court, the Court shall review the order and, where the Court is satisfied that there was sufficient evidence before the justice to support the making of the order, the Court shall

(a) confirm the order; or

(b) vary the order,

and the order as confirmed or varied is deemed to be an order of the Court.

(3) Where, on reviewing the protection order, the Court is not satisfied that there was sufficient evidence before the justice to support the making of the order, the Court shall direct a hearing of the matter in whole or in part before the Court.

(4) Where the Court directs that a matter be heard, the clerk of the Court shall

(a) issue a summons in the prescribed form requiring the respondent to appear before the Court; and

(b) give notice of the hearing to the subject or, where the subject is a minor,  a parent of the subject, and the subject or, where the subject is a minor, a parent of the subject, is entitledto attend and may fully participate in the hearing personally or by counsel.

(5) The evidence that was before the justice must be considered as evidence at the hearing.

(6) Where the respondent fails to attend the hearing, the protection order may be confirmed in the respondent’s absence.

(7) At the hearing, the Court may confirm, terminate or vary the protection order.

13 (1) Where satisfied that it is fit and just to do so, the Court, upon application at any time after a protection order is confirmed or varied by the Court, may by order

(a) remove or vary any term or condition in the order;

(b) add terms and conditions to the order; or

(c) revoke the order.

14 (1) The respondent or the applicant may appeal to the Nova Scotia Court of Appeal a decision made under Section 12 or 13, on a question of law, in accordance with the Civil Procedure Rules.

(2) An appeal does not operate as a stay of proceedings, and the protection order under appeal may be enforced as though no appeal were pending unless a judge of the Supreme Court of Nova Scotia or the Nova Scotia Court of Appeal otherwise orders.

He disagreed with the Attorney General’s submissions that cyberbullying is not expression that is protected on a prima facie basis by s. 2(b) because of their low value, harmful nature [which, I note parenthetically, would prejudge that the communication in question is in fact cyberbullying].  He determined that the question as to whether or not the expression under review was low-value or related to the core values of freedom expression was relevant to the issue of justification, not to whether it was protected on a prima facie basis:

[104] Some types of expression will, of course, lie closer to the core of freedom of expression than others. The Supreme Court of Canada in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, [1988] S.C.J. No. 88, identified the three core values underlying freedom of expression: individual self-fulfillment, truth attainment, and political discourse. The Court went on to state at para. 57:

“While these attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis,deserves protection from interference under the structure of the Canadian Charter and the Quebec Charter. These are two distinct questions and call for two distinct analytical processes.”

[Emphasis added]

[105] Errol Mendes and Stéphane Beaulac in Canadian Charter of Rights and Freedoms, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2013) at 435, state their belief that the Court’s findings in Ford reflect well the structure of analysis that has been adopted in freedom of expression cases. They note that although the Supreme Court of Canada recognizes and embraces the distinction between high- and low value expression, the former being expression that lies closer to the core values, the distinction is relevant “not in the determination of whether the activity is protected expression, but in the determination of whether a governmental interference is justified” (at 435).

[106] I find this approach to be the correct one. At this step of the analysis, we must ask whether the conduct in question—in this case, cyberbullying as that term is defined in the Act—is expressive, i.e. does it involve conduct that conveys or attempts to convey meaning. I find that it does. To the extent that cyberbullying falls short of violenceor threats of violence, it is within the sphere of conduct protected by s. 2(b).

He then determined that the purpose of the Act was to restrict expression, namely cyberbullying. He stated that he did not need to determine whether it also had the effect of restricting expression (although he said that it did) [paras. 112-113].

In analysing whether or not the restriction on freedom of expression in this case was justified under s. 1, Justice McDougall found that the procedural requirements for a protective order were so vague as to not provide any “intelligible standard” for a justice to consider as to whether the respondent might repeat the conduct complained of.  As a result, there was no “limit prescribed by law” and could not be justified under s. 1.  He also found that the process for a protective order was not rationally connected to the legislation’s pressing and substantial objective of protecting the reputation of individuals.

He also went on to determine that the definition of cyberbullying was overbroad covering all sorts of expression and conduct that would be beyond the sort of expression contemplated by the legislators. He stated at para. 165:

In this regard, the Cyber-safety Act, and the definition of cyberbullying in particular, is a colossal failure.

He also found that the Act could impair the liberty of the individual since failure to comply with a protective order could result in imprisonment. His analysis as to whether the liberty interest was deprived in accordance with the principles of fundamental justice paralleled his justification analysis under the s. 1 for the violation of freedom of expression. Specifically, the fact that the Act allowed for arbitrary decisions, was overbroad, the vagueness of the requirement that the respondent be likely be repeat his or her cyberbullying, the lack of procedural fairness, and the fact that he had found that it violated another Charter right (freedom of expression) all forced him to the conclusion that the right to liberty was been violated in a manner that was not in accordance with the principles of fundamental justice.

The Act was so flawed that Justice McDougall felt that the only recourse available to him in the circumstances was to strike it down in its entirety [para. 220]:

Both parties confined their submissions to the definition of cyberbullying an Part I of the Act. I have identified a number of problems with both components. The remaining parts of the Act cannot survive on their own. They are inextricably connected to the offending provisions, in particular the definition of cyberbullying. Severance would not be appropriate. The Act being over-inclusive rather than underinclusive, reading in also would not be an appropriate remedy. I have already explained why reading in a requirement for malice is not, in my view, appropriate or sufficient. The Act must be struck down in its entirety. The Attorney General has not persuaded me that a temporary suspension is warranted. To temporarily suspend the declaration of validity would be to condone further infringements of Charter protected rights and freedoms. Further, the fact that the Act was enacted to fill a “gap” in the legislation does not mean that victims of cyberbullying will be completely without redress in the time it takes to enact new cyberbullying legislation. They will have the usual—albeit imperfect—civil and criminal avenues available to them.

In my opinion, and as much as I am opposed to cyberbullying and bullying in general, I must agree with the opinion and decision of Justice McDougall. In my view, the proper approach for Nova Scotia is to go back to the legislative drawing board and try again.

I remain

Constitutionally yours,

Arthur Grant