Canada: Constitutional Challenges Bring An End To Canada's Only Provincial Cyberbullying-Specific Legislation

While we previously reported on the available statutory recourse in Nova Scotia against parents for damages caused by the cyberbullying actions of their children, such liability may be indefinitely put on hold after the province's cyberbullying legislation was struck down in its entirety by the recent decision of the Supreme Court of Nova Scotia in Crouch v Snell, 2015 NSSC 340.

Enacted in Nova Scotia in 2013, the Cyber-Safety Act, SNS 2013, created a cyberbullying tort and held parents of a minor engaging in cyberbullying conduct jointly and severally liable for damages awarded to the victim(s), including general, special, aggravated, and punitive damages. Parents could avoid liability upon satisfying the court the they exercised reasonable supervision over the child at the time of the incident in question. This legislation arose largely in response to suicides among minors believed to have resulted from bullying or cyberbullying, including the tragic and high-profile incident involving Rehtaeh Parsons. It was intended to be a quicker and more cost-efficient alternative to a civil suit for defamation. Under section 8 of the Act, protection orders could be issued by Justices of the Peace and the judiciary upon determining on a balance of probabilities that the respondent engaged in cyberbullying of the subject and "there are reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future."

The constitutional challenges to this Act in this case followed a protection order granted to Giles Crouch against his former business partner, Robert (Bruce) Snell. When Mr. Crouch resigned from his company with Mr. Snell, the two became embroiled in internet exchanges that amounted to, according to Mr. Crouch, cyberbullying on the part of Mr. Snell. Mr. Crouch subsequently brought an ex parte application for a protection order under the Act against Mr. Snell, which was granted. In response, Mr. Snell filed a constitutional challenge to the Act.

The Court held that the Act infringed upon freedom of expression and the right to life, liberty, and security of the person and could not be saved under a section 1 Oakes analysis.  

The presiding judge, McDougall J., first determined that the type of expression at issue in the Act was protected by section 2(b), as cyberbullying involves conduct that conveys or attempts to convey meaning. Next, the purpose and effect of the Act were considered and found to restrict at least one of the three core values of underlying freedom of expression: individual self-fulfillment, truth attainment, and political discourse. The core values were engaged as a result of the broad definition of cyber bullying in the Act, which includes electronic communication intended, or reasonably expected, to cause – among other things – fear, intimidation, humiliation, and distress. This definition was found to encompass expressive activity not considered cyberbullying by its ordinary meaning (e.g. a lawyer who sends a demand letter by fax or email may cause intimidation). Based on this infringement of section 2(b) of the Charter, McDougall J. employed the Oakes analysis to establish that the Act could not be saved. A key focus in the Court's analysis was the lack of sufficient clarity in the Act that would inevitably result in arbitrary and discriminatory application of the Act by Justices of the Peace and the judiciary. Specifically, section 8(b) of the Act, as discussed above, was held to provide no "intelligible standard" by which to grant a protection order, since the provision contains no qualifying language to clarify what evidence constitutes "reasonable grounds to believe" that the respondent will continue the impugned conduct.

Similarly, upon consideration of the alleged infringement of section 7 rights (life, liberty, and security of the person), McDougall J. found a violation existed based on the possibility of imprisonment as a consequence of non-compliance with the Act. The Court held that this infringement was not in accordance with the principles of fundamental justice (i.e. arbitrariness, overbreadth, gross disproportionality, vagueness, infringement of another Charter right, and fair proceedings). The fact that an ex parte proceeding could occur to obtain the protection order without notice to the respondent, even in circumstances where his or her identity is known, was found to be arbitrary. As discussed above, the Act was found to be overbroad by "casting the net too broadly" in the definition of cyberbullying, and for "failing to require proof of intent to harm" or "delineate any defences." The Act was not held to be grossly disproportionate nor was it considered vague, aside from section 8(b) for the reasons previously discussed. Violation of section 2(b) constituted an infringement of another Charter right, and McDougall J. did find the protection order protocol procedurally unfair for failing to provide the respondent with notice or the opportunity to participate in the proceeding. McDougall J. did not choose to engage in a second section 1 analysis to determine that the section 7 infringements were unjustifiable. 

In finding that the Charter infringements of the Act could not be saved, the Court chose to strike down the statute in its entirety as opposed to remedying any inconsistencies or reading down the legislation. The problematic components of the Act were deemed inextricably connected to the remaining parts which would not be able to survive on their own. As a result, the victims of cyber bullying must rely, for the time being, on the "usual – albeit imperfect" civil and criminal avenues. In addition, Nova Scotian parents of cyber bullying minors may have temporary relief from statutory liability, if the province does not quickly introduce new legislation to replace the Act. However, the wider implications of this decision on parental liability are unknown at this time, since a parent can still be held liable in tort for the acts of children, including bullying, on the basis of ordinary negligence principles.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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