Dec 14, 2015

The Bell Tolls for NS Cyber-safety Act – NS Supreme Court Decides Act is Unconstitutional

Crouch v. Snell, 2015 NSSC 340 (CanLII)

On December 10, 2015 the bell tolled for the Nova Scotia Cyber-safety Act. Just more than two years after the Act took effect, and alarm bells sounded over its compliance with the Canadian Charter of Rights and Freedoms, the Nova Scotia Supreme Court decided the Act does violate the Charter’s guaranteed rights to freedom of expression and to fundamental justice, and struck it down as unconstitutional. Practically, this decision has implications for cyberbullying victims, businesses and insurers.

McInnes Cooper’s David Fraser, Ian Dunbar and Jane O’Neill represented the party who successfully challenged the legality of the Act.

Two former business partners had a falling out, resulting in the one’s resignation from the venture. The resigning partner (the complainant) subsequently appeared before a justice of the peace (JP), without notice to his former partner (the respondent) or the opportunity for him to respond – both as the Act allowed - and alleged the respondent was cyberbullying him. The complainant sought a protection order against the respondent under the Act. The JP granted it, and ordered, among other things, that the respondent delete all of his social media postings that didn’t refer to anyone in particular since they may have referred to the complainant. The respondent applied to the court to set the order aside and to strike the Act down as illegal because it violated his rights to freedom of speech (guaranteed by section 2(b) of the Charter) and to life, liberty and security of the person (guaranteed by section 7 of the Charter). The NS Supreme Court agreed on both counts, and struck the entire Act down:

Freedom of expression. The Act restricts a protected Charter right to freedom of expression, but gives insufficient guidance to issue protection orders and so violates the Charter right to freedom of expression:

  • Cyberbullying, as the Act defines it (as including all electronic communications that “ought reasonably be expected to cause … or other damage or harm to another person’s … self-esteem or reputation”) is “expression”: it conveys or attempts to convey meaning. To the extent it isn’t violence or threats of violence, the Charter’s right to freedom of expression protects it. And the Act has the purpose and effect of controlling or restricting that freedom of expression.
  • Laws that affect Charter rights must minimally impair that right; in this regard, the Act was a “colossal failure”. The Act requires a JP considering an application for a protection order to consider: did the person engage in conduct caught by the Act’s definition of cyberbullying, and are there “reasonable grounds” to believe she will engage in such conduct in the future? The Act’s definition of “cyberbullying" isn’t too vague; it’s clear enough to “delineate a risk zone” and provides an “intelligible standard”, and gives enough guidance to avoid arbitrary and discriminatory decision-making. But the requirement of “reasonable grounds” isn’t clear enough to provide that guidance - so the Act fails the Charter test. This ended the matter, though the Court continued comment on whether the Act met other aspects of the Charter test relative to the right to freedom of expression.

Right to liberty. The Act’s penalties for non-compliance with a protection order pose a threat to a person’s liberty so it must comply with the principles of fundamental justice – including the requirement it must not be arbitrary, overbroad, vague, or infringe another Charter right. The Act doesn’t comply with these principles, so violates the Charter right to liberty:

  • The ability to proceed without notice to the responding party is not rationally connected to the Act’s purpose and is arbitrary.
  • The Act, and in particular its definition of “cyberbullying”, is overbroad; with the failure to require proof of harm or provide any defences this limits the right to liberty without any connection with the Act’s purpose.
  • The requirement for the JP to deem the responding party likely to cyberbully in the future is too vague.
    The Act infringes another Charter right – freedom of expression – weighing heavily against any conclusion that it complies with the principles of fundamental justice.

Read the NS Supreme Court’s decision in Crouch v. Snell, 2015 NSSC 340 here (PDF).

In 2013, the NS government unanimously passed the Act - the first of its kind in Canada - in the immediate aftermath of the tragic death of Rehtaeh Parsons. However, from its conception by the NS government of the time, many lawyers and commentators raised alarm bells about whether it violated the Charter, and predicted a challenge to it – which is just what occurred.

Here are 3 of the practical implications of the Court’s decision:

  • Victims. The Court was clear that cyberbullying victims still have access to civil and criminal law remedies in the absence of the Act. Some believe cyberbullying legislation is still needed, while others believe existing laws are sufficient to address the issue. It remains to be seen whether the NS government will introduce new cyberbullying legislation.
  • Business. Protection orders under the Act could have resulted in the confiscation of electronic devices and barring individuals from using the internet, creating a big issue for employees (and their employers) or other people who had to use these electronic devices and the internet to do their jobs. That risk is now eliminated.
  • Insurers. The Act allowed a person to sue another one if it suffered damage because of cyberbullying – and made a parent jointly and severally liable for a minor found liable under the Act unless the parent exercised “reasonable supervision”. These aspects of the Act raised significant concerns on the part of parents – and their insurers – about whether such a claim would be covered under the parents’ homeowners’ insurance. Since no one ever filed a claim for civil liability under the Act, the concerns were never realized – and are also abated, at least for now.

To learn more about the Act, read McInnes Cooper’s Legal Alert: First Decision Under NS Cyber-safety Act. To hear more from David Fraser about the Cyber-safety Act and the Court’s decision in this case at David’s Canadian Privacy Law Blog.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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