Wednesday, November 01, 2017

My suggestions to the NS Minister of Justice to facilitate access to justice under the new cyberbullying law

I have expressed some concerns about Nova Scotia's new Intimate Images and Cyber-protection Act, mainly related to barriers to access to the courts by the adoption of a regular procedure for applications in the Supreme Court of Nova Scotia. The new law allows the Minister of Justice to make regulations about the procedures for such applications. I hope the Minister of Justice makes regulations that will facilitate access to the courts while ensuring fairness for everyone. To that end, I sent the below letter to the Minister today:

Dear Minister Furey:

RE: Bill 27, the Intimate Images and Cyber-protection Act

As you know, the Nova Scotia legislature recently passed Bill 27, the Intimate Images and Cyber-protection Act. The Act sets out a mechanism by which victims of cyberbullying and the non-consensual distribution of intimate images may seek an application for relief and damages in the Supreme Court of Nova Scotia.

I am writing in my personal capacity, and not on behalf of my firm or any of its clients.

I have expressed some concerns about the Act, to your department’s officials, through public commentary and in a written submission to the Law Amendments Committee. My main concern related to access to justice, given the cost and complexity that is inherent in applications in the Supreme Court of Nova Scotia under Rule 5 of the Civil Procedure Rules. Of course, these proceedings are simpler than Actions brought under Rule 4, but I expect that process will still be daunting, particularly for self-represented individuals or younger persons. It would be tragic if such complexity were the deter victims from seeking justice. I am also concerned about the administration of the courts, which I understand is challenged by self-represented litigants handling their own complex proceedings without the benefit of legal counsel. Given the fallout from R v Jordan, 2016 SCC 27, this concern is particularly acute.

The reason for my letter is to suggest that you exercise your authority as Minister to make regulations that, among other things, address procedures for applications. From the Act:

15 (1) The Minister may make regulations

(a) respecting forms and procedures for hearing an application under Section 5, including an application to extend, vary or terminate an order; and ….

If I may suggest some characteristics of these proceedings that you may wish to specifically consider:

  • The default timelines for applications should be abbreviated. It is my experience that victims of cyberbullying want the behaviour to stop or want their intimate images removed as quickly as possible.

  • Perhaps a specific form for the application can be prescribed, similar to the form currently used for peace bond applications in the Nova Scotia Provincial Court.

  • It is important for victims to be specifically “heard” and be given the opportunity to tell their story to the Court. Relying exclusively on affidavit evidence with only cross-examination in Court may not be appropriate for these proceedings, though it remains important that the respondent know and understand the specific allegations in advance.

  • The Civil Procedure Rules currently require a written brief, which is likely daunting for a victim to consider.

  • The Act prescribes circumstances where an applicant is entitled to a publication ban. I am afraid that without clear guidance, victims may be confused about the effect of including their full name in the style of cause for an application. Perhaps all applications can be sealed by the Court for a few business days until a Judge or the Prothonotary has determined whether a publication ban is being sought?

  • The Act also permits applications to seek information to identify an unknown respondent. A clear path, on an expedited basis, for seeking an ex parte order for the identification of an unknown respondent would be helpful.

  • Given that the Act addresses intimate images in which the victim has had and continues to have a privacy interest (some of which may include child pornography or voyeurism images), a streamlined procedure by which evidence can be sealed would be desirable.

I know we both share a common desire to make sure that this Act is effective in protecting victims. I hope that regulations along the lines set out above will make sure that legal remedies are within reach of victims.

If I can be of assistance with this process, please let me know.

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