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Cyberbullying Law Ruled Unconstitutional

  • December 18, 2015
  • Clayton Rice, Q.C.

On April 4, 2013, the tragedy of Rehtaeh Parsons’ teenage life unfolded in her home in Dartmouth, Nova Scotia, when she attempted suicide by hanging. Three days later, while in a coma, the decision was made to terminate her life support. Her death was widely attributed to the online dissemination of photographs of her victimization by an alleged gang rape. Four months later, the Nova Scotia Legislature unanimously passed the Cyber-safety Act, SNS 2013, c 2 containing a broad definition of cyberbullying and a lack of due process. Now having been ruled unconstitutional by Justice Glen G. McDougall of the Supreme Court of Nova Scotia, the statute is a good reminder for all of us that there are few things more dangerous than well intentioned zealots.

In Crouch v Snell, 2015 NSSC 340 two former business partners became entangled in Internet exchanges that arguably constituted cyberbullying based on the text of s. 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.

Crouch and Snell were founders of a company called Mediabadger in 2011. Their business relationship ended in 2013 when Crouch resigned from the company. He attributed his resignation to an inability to work with Snell whom he described as immature, unprofessional and prone to unprovoked fits of rage. Snell said Crouch resigned from Mediabadger after it was discovered that he had misappropriated funds.

Crouch asserted that Snell began a smear campaign against him in the months following his resignation. He said that Snell posted “vague comments about him on various social media platforms in an attempt to intimidate him and ruin his reputation” that continued until a justice of the peace granted a protection order against Snell under the new legislation. The protection order was granted on a ex parte basis without notice to Snell. Two examples of the social media posts were:

  • On August 13, 2014, Crouch said that he saw Snell in downtown Halifax as he drove by him on Lower Water Street. Shortly after, Snell posted this on Twitter: “You see someone and want to clothesline them…That is normal right?”
  • On October 14, 2014, Crouch was scheduled to appear on CTV News to discuss cyber security. That day, Snell posted on Google+: “That is brilliant, almost like asking a plumber for medical advice. #news”

The statute created a regime in Part I governing an application for a protection order made to a justice of the peace under s 5(1) without notice of a hearing to the respondent. A protection order could result in the confiscation of electronic devices and being barred from access to the Internet. In this case, Snell was ordered to delete all of his social media posts that did not refer to anyone in particular based on the possibility that they may have referred to Crouch.

Justice McDougall concluded that the definition of cyberbullying at the core of the statute violated freedom of expression guaranteed by s. 2(b) of the Charter of Rights, at para. 115: “It is not difficult to come up with examples of expressive activity that falls within this definition, and at the same time promotes one of the core freedom of expression values. Moir J. did just that in Self, supra at para. 25:

“A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P.F. Sloan when he released ‘Positively 4th Street’, just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr.Dylan or the newspaper.”

Justice McDougall then moved on to consider the Oakes test and whether the statute could be saved under Charter s. 1 as a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society. The onus of justification was, of course, on the Attorney General to establish that the limitation on freedom of expression was justified in that: (a) it was prescribed by law; (b) related to a pressing and substantial objective; (c) was minimally intrusive; and, (d) the effects were proportional.

Justice McDougall came to the rare conclusion that the limitation was not “prescribed by law” as it was not sufficiently intelligible, at para. 137: “…I find that the Act provides no intelligible standard according to which Justices of the Peace and the judiciary must do their work. It does not provide sufficiently clear standards to avoid arbitrary and discriminatory applications. The Legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances. There is no ‘limit prescribed by law’ and the impugned provisions of the Act cannot be justified under s. 1.” (See: R v Oakes, [1986] 1 SCR 103 at paras. 66-67)

The ex parte procedure contained in s 5(1) was an egregious denial of due process. And the after-the-fact review under s 12(1) underscored the denial. It did not fix it. It is hard to believe that law makers in the twenty-first century unanimously voted for this kind of relic from the dark ages. Well, maybe I should pause there. Rights based legislation is not a hallmark of democracies in the digital age but I’ll leave that gripe alone for now. Justice McDougall made short work of the ex parte procedure in para. 157 where he stated: “…[T]he reality is that while the respondent waits for the opportunity to be heard at a de novo hearing, his or her Charter-protected rights and freedoms will continue to be infringed upon. This will be on the basis of a proceeding that most likely occurred without notice to the respondent, and without the respondent having had an opportunity to be heard.”

On the question of minimal impairment, the court described the statute as a “colossal failure”, at para. 165:

“I need to consider all of the types of expression that may be caught in the net of the Cyber-safety Act, and determine whether the Act unnecessarily catches material that has little or nothing to do with the prevention of cyberbullying: R v Sharpe, 2001 SCC 2, [2001] SCJ No 3 at para, 95. In this regard, the Cyber-safety Act, and the definition of cyberbullying in particular, is a colossal failure. The Attorney General submits that the Act does not pertain to private communication between individuals, but rather deals with ‘cyber messages or public communications’. With respect, I find that the Act restricts both public and private communications. Furthermore, the Act provides no defences, and proof of harm is not required. These factors all culminate in a legislative scheme that infringes s. 2(b) of the Charter much more than is necessary to meet the legislative objectives. The procedural safeguards, such as automatic review by this Court and the respondent’s right to request a hearing, do nothing to address the fact that the definition of cyberbullying is far too broad, even if a requirement for malice was read in. Moir J.’s comments in Self, supra at para. 25, are instructive: ‘The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might (‘repeated or with continuing effect’) or might not (‘typically’) matter’.”

On the question of proportionality, Snell argued that the statute prevents an individual from telling the truth if it hurts another person’s feelings or harms their self esteem. And it did not provide for defences. The statute did not accommodate expression that relates to individual self-fulfillment, truth-finding or political discourse. The statute can therefore “limit speech that cuts to the core of Charter values”. Justice McDougall agreed, at para. 175, and concluded that the deleterious effects of the definition of cyberbullying were not outweighed by the presumed salutary effects.

Lastly, the court concluded at para. 203-5 that the legislative scheme under Part I was not procedurally fair: “The biggest deficiency lies in the failure to provide a respondent whose identity is known or easily ascertainable with notice of and opportunity to participate in the initial protection order hearing.” That penultimate conclusion compelled the finding that the definition of cyberbullying and the process for obtaining a protection order “threaten a person’s right to liberty in a manner that offends the principles of fundamental justice” under Charter s. 7.

The Attorney General asked the court to suspend any declaration of unconstitutionality for twelve months to allow the government time to amend this “important social welfare legislation”. Justice McDougall refused the request at para. 220 concluding that the statute had to be struck down in its entirety. To temporarily suspend the declaration of invalidity would be to “condone further infringements of Charter-protected rights and freedoms.”

In a post titled Nova Scotia Court Strikes Down Province’s ‘Unconstitutional’ Cyberbullying Law published by TechDirt on December 17, 2015, Tim Cushing reported the government’s response from the Justice Department which “unhelpfully and redundantly” noted that the bad law was motivated by good intentions: “The Justice Department issued a statement saying an independent review of the Parsons’ case by a former Ontario chief prosecutor found the law was a ‘novel and directly responsive solution’ to address cyberbullying. ‘The intent of the legislation is good, and had all-party support when it was passed,’ it added.”

Well, as Mr. Cushing suggested – maybe the law makers can now put something better together with a little time, distance and hindsight. And, would it be too much to ask? Read the Constitution. (See also: Sean Fine: N.S. judge strikes down cyberbullying law created after Rehtaeh Parsons death. The Globe and Mail. December 11, 2015)

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