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 Charter.
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 Act.
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 cyberbullying.