In 2013, Nova Scotia became the first jurisdiction in Canada to implement legislation aimed at protecting victims of online harassment or ‘cyber-bullying’. On December 11, 2015, the Supreme Court of Nova Scotia struck down the Cyber Safety Act (the “Act”) in Crouch v. Snell1 [Crouch] stating that it was contrary to the Canadian Charter of Rights and Freedoms (the “Charter”) and calling the legislation a “colossal failure”.

LEGISLATIVE  CONTEXT

The Act was proclaimed on August 6, 2013. It was drafted under heightened public scrutiny and in the months following the death of 17-year-old high school student Rehtaeh Parsons who was bullied, attempted suicide and subsequently died on April 4, 2013.

The Act was a multi-faceted attempt by the Government of Nova Scotia to make it easier for individuals to report bullying and to give the courts increased authority to protect victims of cyber-bullying. The main provisions of the Act are as follows:

  • Greater powers and responsibilities to principals and school boards through amendments to the Education Act;
  • Parental responsibility for cyber-bullying in some circumstances;
  • Creation of a cyber-investigative unit;
  • Victims of cyber-bullying may apply for a protection order from the court; and
  • New statutory tort of cyber-bullying which permits individuals to sue for damages or obtain an injunction.

In addition, the Act provided a broad definition of cyber-bullying that included both adults and minors (under 19 years of age). The Act defined cyber-bullying as:

[A]ny 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.

BACKGROUND

Giles Crouch and Robert Snell were former business partners. Their business relationship ended in late 2013 when Mr. Crouch resigned from the company and forfeited half of his shares in the venture amid allegations by both parties of unprofessionalism and misappropriation of funds. The business relationship ended tumultuously.  Mr. Crouch and Mr. Snell were both avid users of social media and Mr. Crouch alleged that in the months following his resignation, Mr. Snell began a “smear campaign” against him on social media.

Mr. Crouch filed an application for a Protection Order under the Act and it was granted by a Justice of the Peace on December 11, 2014 (the “Protection Order”). The Protection Order was granted on an ex parte basis, without notice to Mr. Snell. However, Mr. Snell was later served a copy of the Protection Order, which included the following  prohibitions:

  • The respondent [Mr. Snell] be prohibited from engaging in cyberbullying of the subject.
  • The respondent be restricted (or prohibited) from directly or indirectly communicating with the subject.
  • The respondent be restricted (or prohibited) from, directly or indirectly, communicating about the subject.
  • Any comments on any social media sites whereby the respondent has made reference to the applicant [Mr. Crouch], either directly or indirectly, are to be removed. Further, any comments on any social media sites directed toward an unnamed or unspecified person(s) are to be removed.

THE COURT’S DECISION

In Crouch, the court was asked to consider (1) whether to re-confirm the Protection Order under the Act, and (2) whether the Act violates the Charter by infringing on an individual’s freedom of expression or by violating an individual’s right to life, liberty and security of the person.

First, the court confirmed that, assuming the Act  to be Charter compliant, Mr. Snell had engaged in cyberbullying of Mr. Crouch as that term is defined in the Act, and that the behaviour was likely to continue. Therefore, the Protection Order was upheld by the court under the Act with certain minor modifications. The court also reviewed the broad definition of cyber-bullying under the Act and stated that it does not require ‘malice’ on the part of the person posting comments to social media or elsewhere online.

Second, the court held that the Act violated both sections 2 and 7 of the Charter guaranteeing freedom of expression and an individual’s right to life, liberty and security of the person. The court concluded that the purpose of the Act was to control or restrict expression. Specifically, the court stated that, “prevention of cyberbullying is a purpose that aims to restrict the content of expression by singling out particular meanings that are not to be conveyed, i.e. communication 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.”2 Furthermore, the court concluded that the Act does not provide sufficiently clear standards to avoid arbitrary and discriminatory applications. Rather, the legislature has given a plenary discretion to Justices of the Peace to do whatever seems best in a wide set of circumstances. This was also unsatisfactory under the Charter.

In light of the punishments available under the Act, including fines of up to $5,000 or imprisonment for a term up to six months, the court further held that the Act infringed on an individual’s right to life, liberty and security of the person. In addition, the court concluded that the Act was arbitrary, overbroad (in particular, its definition of cyber-bullying) and not procedurally fair. Therefore, the infringements on an individual’s right to life, liberty and security of the person could not be justified under the Charter.

In light of the above, the court concluded that, “The act must be struck down in its entirety… To temporarily suspend the declaration of validity would be to condone further infringements of charter-protected rights and freedoms.”3

As such, the Act was struck down in its entirety and the Protection Order was declared void and of no effect.

CONCLUSION

In light of the decision, the Government of Nova Scotia has not announced how it plans to respond. Nova Scotia Justice Minister Diana Whalen has confirmed that the department is considering whether to appeal the decision, rewrite the law or draft new legislation from scratch.4 In the meantime and as emphasized by the court in its decision, individuals who are confronted with cyber-bullying will have to seek redress through traditional avenues, namely civil remedies for causes of action, such as defamation or  applicable criminal charges.

The decision in Crouch will likely serve as a caution for other provinces looking to introduce legislation intended to protect individuals, in particular children, from online harassment and cyber-bullying. This decision makes clear that courts will not uphold legislation that is far- reaching and overly broad, but rather will uphold the protections for freedom of expression and life, liberty and security of the person afforded to individuals under the Charter.