January 25, 2016
HALIFAX, Dec. 11, 2015 – The Supreme Court of Nova Scotia has declared the province’s cyberbullying law to be unconstitutional. In a decision released on December 10, 2015, Justice Glen McDougall found that the Cyber-safety Act violates a Charter-guaranteed freedom of expression and “life, liberty and security of the person” rights, in a manner that cannot be upheld as a reasonable restriction that can be justified in a free and democratic society.
The case, Crouch v Snell, 2015 NSSC 340, related to two former business partners who had a falling out. Mr. Crouch sought and obtained a cybersafety protection order before a justice of the peace in December 2014. The respondent, represented by McInnes Cooper’s David Fraser, Ian Dunbar and Jane O’Neill, challenged the order and the legislation.
The Cyber-safety Act was passed unanimously by the Nova Scotia legislature in 2013, in the immediate aftermath of the tragic death of Rehtaeh Parsons. Among other things, the Act allows an alleged victim of cyberbullying to appear before a justice of the peace to obtain a cybersafety protection order. These orders can result in the confiscation of electronic devices and having individuals barred from using the internet. The alleged cyberbully never receives notice of this hearing and has no right to respond before the order is made. In this case, the justice of the peace ordered the respondent to delete all of his social media postings that didn’t refer to anyone in particular since they may have referred to the complainant.
McInnes Cooper’s David Fraser says the most problematic part of the Act is the definition of cyberbullying. “I often represent real victims of cyberbullying, but this definition is so broad it can be interpreted to include anything said or done online that could hurt someone’s feelings,” said Fraser.
In the meantime, Fraser says that cyberbullying legislation is still needed, but that the government should go back to the drawing board to provide the right tools to help real victims.
“The court was clear that victims of cyberbullying will continue to have access to civil and criminal law remedies while the government has an opportunity to create a law that complies with the Charter,” said Fraser. “The tragedies of Rehtaeh Parsons and Amanda Todd have shown us, tragically in hindsight, that the police need to take cyberbullying seriously and to use the tools already available to them.”
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