Nova Scotia's Cyber-safety Act (hopefully) heading for a Charter challenge

A case I am involved with is hopefully heading to argument on Friday in the Supreme Court of Nova Scotia on whether the province's Cyber-safety Act goes too far in infringing Charter protected speech. There has been a lot of interest in the statute since the former NDP government jammed it through the legislature in the wake of the tragic death of Rehtaeh Parsons. It's my opinion that rather than address a dramatic failing on the part of the police and prosecution service (which the government would have to admit occurred on its watch), the government pulled out the old "there wasn't a law! we need a new law!". The result was a hastily assembled statute, which is more fully described elsewhere on this blog.

The case has been bifurcated, so that on Friday there will be a decision on whether, in the view of the judge, my client should be subject to a "cybersafety protection order" under the Act. Depending on the outcome of that decision, we will argue that the Court should consider the Charter and our arguments that the Cyber-safety Act violates Section 2(b) of the Charter and cannot be saved by Section 1 as a reasonable limitation on freedom of expression. But even if the judge determines that he does not have to consider the Charter, I am sure that this dumpster fire of a statute will face Charter scrutiny sometime soon.

The Halifax Chronicle Herald did a big piece on the story (much larger than I had expected) in the weekend edition of the paper and there's been a lot of other media attention as well, including this interview on CTV Atlantic which summarizes my view.

Here's the Herald article:

Lawyer set to launch charter case against law inspired by Rehtaeh Parsons | The Chronicle Herald

A law inspired by the death of Rehtaeh Parsons could face its first court challenge next week when a Halifax lawyer will attempt to argue it violates charter rights regarding freedom of expression.

The Cyber-safety Act was brought in by the former NDP government in response to a wave of public criticism of the way Rehtaeh’s case was handled. The 17-year-old girl died after attempting suicide in 2013. She accused several boys of raping her while she was drunk and a photo of the alleged sexual assault was widely circulated among her peers.

Within weeks of Rehtaeh’s death, former justice minister Ross Landry was in a Halifax high school unveiling the new legislation. Critics, Halifax lawyer and privacy expert David Fraser being one of the most vocal, say the government’s actions were too fast, too sweeping and did not consider the full implications of such a bill.

Cyberbullying is a real problem, said Fraser, but his argument goes beyond that.

“The issue is, how do you define it and how do you define it in a way that takes into account the fact that people should have freedom of expression to, particularly, speak about matters of public interest?” said the partner with McInnes Cooper.

On Friday, Fraser and his client, Robert Snell, will learn from a judge whether Snell did in fact cyberbully a former business partner as defined by the province’s Cyber-safety Act. Snell had a protection order placed on him by the courts as a result of statements he made online. The order prevents Snell from communicating with Giles Crouch or discussing their disagreement.

Following the judge’s decision, Fraser hopes he will be able to begin arguing that the law breaches Section 2 of the Charter of Rights and Freedoms. The two issues were split following an argument from the attorney general. The government’s view is if the judge finds Snell’s actions were not cyberbullying, there is no reason to address the charter aspect.

Regardless, Fraser is going to court prepared to begin the charter fight.

Laws need to be more nuanced when they approach values protected by the charter, said Fraser. It’s why injecting more context is so important, he said. The legislation doesn’t take into account, for example, the difference between criticism of a public official and hurtful comments directed at a young or vulnerable person, said Fraser.

“I should be able to go on social media and, let’s say, call the premier of a province a liar for not keeping a campaign promise. Now, that may hurt his feelings, may harm his self-esteem, and so that would be cyberbullying. We need to have a way of taking those sort of things into account.”

Fraser isn’t the only person who has issues with the law.

Cara Faith Zwibel at the Canadian Civil Liberties Association said she’s not sure the law is even necessary.

“My inclination would be to take a really hard look at what already exists out there to address these problems, and I think the fact is that there is quite a lot out there already that can; it’s a matter of the will to actually use those tools.”

The serious and damaging kind of cyberbullying could be addressed through existing elements of the Criminal Code that handle harassment, as well as defamation law when the matter concerns reputation, said Zwibel. She shares Fraser’s view that the breadth of the definition of cyberbullying goes too far and also has concerns about the protection orders the CyberSCAN unit can impose, which can include bans on using electronic communication.

“I don’t think it’s a matter of just tweaking the existing legislation,” Zwibel said. “I don’t think there’s been a compelling case made for why it’s necessary.”

The man who has become a leading expert on cyberbullying understands the concerns of Fraser and Zwibel, but Wayne MacKay said there are several broad questions that must be weighed.

A professor at Dalhousie University’s law school, MacKay was the lead on the province’s cyberbullying task force. He said the former government adopted a similar broad definition as was laid out in the task force’s final report. MacKay was not consulted in the drafting of the legislation.

“There’s no question that it does limit freedom of speech, as does hate speech,” he said. “The question is often whether or not it is a reasonable limit in a free and democratic society.”

The main debate will be whether the benefits of the law outweigh the invasions of rights for those who want to exercise free speech, MacKay said. It’s not an easy debate, but he thinks there is reason to believe this is reasonable.

“I think the problem of cyberbullying is a very large and significant one.”

If there is to be a change, MacKay hopes it would be to adjust the definition of cyberbullying rather than just repealing the law.

“To eliminate the law or strike the whole thing down would be quite unfortunate.”

One of the problems with attempting to address the issue through other avenues, said MacKay, is those options aren’t as well known as the new legislation. More importantly, he said, CyberSCAN is a specialized agency focused only on these kind of matters. The unit has a range of remedies at its disposal, from informal meetings with involved parties all the way up to passing the matter on to police for crim-inal charges.

“I think there really isn’t another vehicle at the moment that offers that whole range of possible remedies.”

Although there may be room for clarification and improvement with the legislation, MacKay said judges are developing a fair degree of expertise in “drawing between what is acceptable free speech” and things that aren’t. They can’t ignore the legislation, but they can interpret it and, in so doing, judges can provide the necessary nuance, said MacKay.

The government will only become involved in the matter if the discussion of a charter challenge proceeds.

Provincial officials would not comment outside of the court proceedings. An email from a Justice Department spokesman said the province believes the act is constitutional. In a brief filed with the court, the government notes that “should the protection order be revoked by this court, such a result would remove the need to review the legislation under the charter as the matter would become moot.”

“To argue issues unnecessarily wastes precious judicial resources, does not advance the administration of justice and spends counsel’s time incurring unnecessary costs.”

Fraser, obviously, doesn’t see things that way. Regardless of how the judge rules in the matter of his client, the larger issue of constitutionality needs to be addressed, he said.

“I recognize we need to protect people, particularly vulnerable people, but it should not be at the expense of charter-protected speech. There needs to be a balance, and I don’t see any of that in the legislation as it exists.”