The Supreme Court of Nova Scotia has declared the
Cyber-safety Act, Nova Scotia's controversial
cyberbullying legislation, to be unconstitutional. Justice Glen
McDougall released his decision in Crouch v Snell on December
10, 2015, ruling that the Act violates both freedom of
expression and the right to "life, liberty and security of the
person", and that the law does not constitute a reasonable
limit on the rights as could be demonstrably justified in a free
and democratic society.
The decision arises from a dispute between two former business
partners in regards to comments posted by the respondent on social
media. In an effort to stop the "smear campaign" against
him, the applicant sought and was granted a protection order
without notice to the respondent, pursuant to the Cyber-safety
Act. The respondent challenged the protection order and
brought a constitutional challenge against the legislation.
The Cyber-safety Act, passed by the Nova Scotia
legislature in May 2013, represents the first attempt in Canada to
regulate online harassment. The law was passed in response to
public outcry following the tragic death of Rehtaeh Parsons.
In finding that the Act does not impose a reasonable
limit on freedom of expression, Justice McDougall remarked that the
overly broad definition of cyberbullying within the legislation is
a "colossal failure". The Act defines
"cyberbullying" as "any electronic communication
through the technology" that is "intended or ought
reasonably to 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". Justice
McDougall held that the scope of expression captured by the
definition is far greater than necessary to meet the legislative
objectives, including for the reasons that it restricts both public
and private communication. He further held that the definition was
too vague to provide an intelligible standard to be followed,
and therefore the legislation provides no limit
"prescribed by law", as required under Section 1 of the
Justice McDougall also expressed reservations regarding
procedural aspects of the legislative scheme, which permits
protection orders to be issued without notice to the other side.
Such orders encompass a broad range of potential remedies and are
expressly permitted to include, among other things, confiscation of
electronic devices and discontinuance of internet service, as well
as punitive measures that could result in imprisonment. Justice
McDougall held that this ex parte procedure is not
rationally connected to the mischief sought to be addressed by the
In finding the law to be unconstitutional, Justice McDougal
ruled that the law must be struck down in its entirety, effectively
immediately. As a result, the Protection Order granted against the
respondent became void.
In a statement following the
decision, the Nova Scotia Department of Justice expressed
disappointment in the Supreme Court of Nova Scotia's decision
to strike down the legislation. According to the Department of
Justice, the investigative unit created to investigate complaints
and help stop cyberbullying will continue to operate, in an effort
to bring awareness about the detrimental impacts of
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