Nova Scotia's Cyber-safety Act1 is no more, after a successful Charter challenge to the legislation. In Crouch v Snell, 2015 NSSC 340, Justice McDougall of the Supreme Court of Nova Scotia found the entire statute—enacted in 2013 as a way to address cyberbullying—to be unconstitutional, and struck it down with immediate effect. This post provides a top-10 list of stand-out points from the decision.
- The facts were not necessarily a 'typical' cyberbullying scenario. Rather, the case stemmed from a business relationship that went sour (ironically enough, the business was about helping "clients to better understand and use social media": see paras 17, 24). The Applicant, Crouch, applied for and received an ex parte "protection order" under the Act (a) to prevent his former business partner, the Respondent Snell, from cyberbullying him, and communicating with or about him in any way, and (b) to require the Respondent to remove any direct or indirect comments he'd made about the Applicant on social media sites (para 23). Both parties had been writing vague and not-so-vague posts about each other on their social media, although Snell's posts seemed to be more prolific (detailed at paras 28-66).
- The Court would have upheld the protection order on the facts. Applying the legislation on the assumption it was constitutional, Justice McDougall "re-confirmed" the protection order that was initially issued by a justice of the peace and then confirmed on review by the Supreme Court (paras 2-3, 16, 81). After some procedural wrangling, he considered this issue first; as the Attorney General pointed out, the Charter challenge could have been moot if the protection order was revoked (para 15).
- A report on cyberbullying was admissible to help prove the legislative history and purpose of the Cyber-safety Act, not for the truth of its contents. Professor Wayne MacKay's 2012 report on behalf of the Nova Scotia Task Force on Bullying and Cyberbullying, called Respectful and Responsible Relationships: There's No App for That, was a catalyst for the Cyber-safety Act (see para 69). The Attorney General was permitted to rely on the Report in support of its position that the Act was constitutional and based on sound objectives (paras 91, 94, 96). Because of this limited use, the Report did not have to be admitted for the truth of its contents under the public documents exception to the rule against hearsay (see paras 84-96 for an interesting discussion on this issue).
Moving to the meat of the Charter challenge...
- The Act infringed the freedom of expression guarantee in section 2(b) of the Charter. The Attorney General argued that expression that meets the definition of "cyber-bullying" is not aligned with the core values of section 2(b)—"individual self-fulfillment, truth attainment, and political discourse" (see para 104)—so deserves less protection under section 2(b). But, as Justice McDougall reiterated, the Supreme Court has emphasized that all expression except violence is protected under section 2(b)'s broad umbrella, including "hate propaganda, defamatory libel, and publishing false news..." (para 102). So, as long as cyberbullying does not include actual "violence or threats of violence", it conveys sufficient meaning to warrant section 2(b) protection (para 106). Furthermore, Justice McDougall found that the Act had "both the purpose and effect of controlling or restricting freedom of expression" (para 116).
- Section 7 of the Charter was violated too.2 Failure to comply with a protection order was a summary conviction offence under the Cyber-safety Act that carried the possibility of imprisonment. The liberty interest protected under section 7 was therefore threatened, so the Court had to go on to consider whether this possible deprivation of liberty was consistent with the principles of fundamental justice ("PFJs") (paras 179-181). It was not. And it was not just the offence, either – the Act as a whole did not comply with the PFJs.
- In particular, the Act was
arbitrary and procedurally unfair; overbroad; and
- Arbitrariness: An applicant's ability to proceed under the Act without notice to the alleged cyberbully was "not rationally connected to the Act's objective" of providing a dedicated procedure to address cyberbullying; ex parte proceedings were not necessary to achieve that goal (paras 141, 184). For similar reasons, the scheme also did not accord with the PFJs that protect procedural fairness (paras 198-203).
- Overbreadth: The definition of cyberbullyingtarget=_blank3 captured too many communications – to modify one of the Court's examples, texting your neighbours to tell them their house was on fire could fit the definition (para 115). Justice McDougall stated further: "By casting the net too broadly, and failing to require proof of intent or harm, or to delineate any defences, the Act limits the right to liberty in a way that has no connection with the mischief it seeks to address" (para 187).
- Vagueness: The problem here was not the definition of cyberbullying itself. The problem was that a JP who issues a protection order must not only accept that the Respondent has cyberbullied, but must also have "reasonable grounds to believe the respondent will engage in" cyberbullying in the future (paras 125-137, 197) – even though there were no criteria in the Act to guide this preventative exercise.
- The Act was not even "prescribed by law" for the purposes of the section 1 test. According to Justice McDougall, the definition of cyberbullying was "sufficiently clear to delineate a risk zone. It provides an intelligible standard." But the Act otherwise gave JPs and judges too much discretion, e.g. to find that a respondent was likely to engage in cyberbullying in the future (paras 130-137).
- In any event, the Act could not be saved under section 1 of the Charter. Although Justice McDougall accepted that the government's goals of addressing cyberbullying were pressing and substantial (para 147), he concluded that the Act could not pass the rest of the Oakes test. The ex parte process mentioned above was "not rationally connected to the legislative objectives" (para 158) – especially because the Legislature could have limited ex parte proceedings to, say, "emergencies or other extraordinary circumstances" and "situations where the respondent's identity is not known or easily identifiable", but did not (para 155).
- (a) Justice McDougall called
the Act "a colossal failure" (para 165). This
was on the minimal impairment branch of the Oakes test. According
to Justice McDougall: "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 on a s. 2(b) of the Charter much
more than is necessary to meet the legislative
objectives" (para 165).
(b) Justice McDougall relied on a SCC dissent in his analysis of ultimate proportionality. Justice McDougall referred to the dissenting opinion in Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68, where Gonthier J et al would have upheld the legislative ban on federal prisoners voting, as setting out the "correct approach" to determine whether impugned legislation strikes an appropriate balance between infringing rights and achieving objectives (paras 172-173). It was perhaps an unnecessary diversion to quote at length from this opinion, especially when Gonthier J in Sauvé would have done a different thing under section 1—upheld the legislative provision—than Justice McDougall decided to do in this case. (Not to mention the completely different context, and the problematic reasoning of the Sauvé dissent on substantive Charter grounds.)
- In conclusion, the proper remedy was to strike down the whole Act, with immediate effect rather than a temporary suspension (para 221).
1. SNS 2013, c 2.
2. Justice McDougall applied the Oakes test under section 1 of the Charter after finding the section 2(b) violation. He then applied many of the same factors to his section 7 analysis. This post reverses the analytical order a bit.
3. From section 3(1)(b) of the Act: "'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".
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