My comments on Nova Scotia's Intimate Images and Cyber-protection Act

Note: Because of very short notice, I will not be able to appear at the Nova Scotia Legislature's Law Amendments Committee to provide my views on Nova Scotia's new cyberbullying law. Here are my written comments that will be sent to the Committee for their consideration.

Thank you for the opportunity to provide my views on Bill 27, the Intimate Images and Cyber-protection Act.

I am a lawyer with McInnes Cooper whose practice is focused on internet and privacy law matters. I need to emphasise from the outset that these are my own personal and professional comments, and do not necessarily represent the views of my firm, its clients or any other organizations with which I am associated. I have been practicing in this area of law for over fifteen years. In this context, I am perhaps best known as being a vocal critic of the Cyber-Safety Act and being the lawyer who argued in Court that the old Act was unconstitutional.

If I could first comment on a matter of process, I am disappointed that I am not able to appear before the committee and answer any questions you may have. When this bill was first considered on October 16, 2017, I had less than one business day’s notice of the hearing and was out of town. I was advised on Thursday, October 19 that it would be before the committee on Monday, October 23. That’s one and a half day’s notice and I will be out of town on Monday. If the government were serious about getting this right, surely it would make it easier for experts to appear on the Bill. I am sure the Committee would benefit from testimony from Canadian Civil Liberties Association or the Canadian Bar Association, but these organizations can’t just drop tools, consult with their stakeholders and develop a coherent and helpful position with that kind of notice. I can name  at least five people who have immense expertise in the field of civil rights, cyberbullying, restorative justice and youth suicide who this Committee and Nova Scotians should hear from, but none will have a chance to provide their well-informed and expert views. I do not know if this is peculiar to this bill, but it certainly was the case with the original Cyber-Safety Act and Nova Scotians have suffered as a result.

In the meantime, the government has had a number of targeted consultations. I did meet with Justice officials twice to provide my views, with the final meeting commenting on a draft of the bill. I had some misgivings then which I’ll share with you today.

As I mentioned, I was the lawyer in the case that resulted in the Cyber-Safety Act being declared unconstitutional. I was previously very critical of the law and the former Premier said he “could not disagree with me more”. When that quote was posted by the CBC on their website, that cyberbullied me according to the law’s definition.

While the law was declared unconstitutional on December 10, 2015, it was unconstitutional on the day it was introduced on April 25, 2013, fewer than three weeks after the tragic death of Rehtaeh Parsons.

I stood up in court and called the Cyber-Safety Act a “dumpster fire”. Justice McDougall called it, much more politely, a “colossal failure” as far as the Charter is concerned.  

I argued, and the Court agreed, that the law had two principal failures. The first was that the definition of “cyberbullying” was far, far too broad and would include anything that could hurt someone’s feelings (including legitimate, political speech). The second failure was that a complainant could get a protection order without the alleged cyberbullying ever having an opportunity to defend themselves. The justice of the peace would make a decision on the basis of only hearing one side of the case. And the first that the respondent would hear of it would be when a police officer would show up at their house -- usually at night -- and serve them with the order.

I think both of these issues have been addressed in the new Bill. The definition of “cyberbullying” raises the bar much, much higher. It may be too high, by requiring “malice”, but it does capture communications that are intended to harm the victim. The issue of procedural fairness has certainly been addressed, but I am afraid the pendulum may have swung too far the other way.

The way the Bill sets it out, a victim of cyberbullying has only one option: to commence an application in the Supreme Court of Nova Scotia following the Nova Scotia Civil Procedure Rules. I have 100% confidence in the fairness of a judge of the Supreme Court. But forcing a victim of cyberbullying to start a conventional lawsuit will represent a huge barrier to access to justice.

What I am saying is completely contrary to my own pecuniary self interests. I am a lawyer who practices law in this area. My law partners much prefer that I charge clients for my time and for my services. We have a great pro bono program -- I think it’s one of the best in the country of any law firm that I am familiar with -- but I am not able to take the cases of all victims of cyberbullying. Going to the Supreme Court requires that a victim understand and follow Civil Procedure Rules. They’ll have to read and understand Rules 5, 4, 5, and 6. They have to prepare a notice of application in court and an affidavit, all according to the rules. They’ll have to hire a process server to serve the documents on the respondent. They likely have to be in court across from their tormentor to schedule the next steps and the court hearing. They get a written affidavit from the respondent. They can then maybe file another response affidavit. They can maybe cross-examine the respondent outside of Court, assuming they are in a position to pay a court reporting service to transcribe the cross-examination on an expedited basis. Then they have to file their brief. And then they have their day in Court, except they never get to directly tell a judge their story. They don’t get to testify on their own behalf, since their testimony is only in their affidavit.

I would expect it would cost at least $10,000 for me to represent an applicant in this process. That is daunting. But what’s equally daunting is the prospect of a traumatized cyberbullying victim having to find, let alone understand and precisely follow, the civil procedure rules. That greatly troubles me and I think it should trouble you.

The legislature should seriously consider a different approach. I do not think I have all the answers, but I would suggest that the legislature should consider a less formal approach that still preserves the procedural fairness that was lacking in the old Cyber-safety Act. While the procedure for a peace bond is not without its shortcomings, there should be a procedure through which an applicant can go to court and tell their story. The respondent has the same right to know what is being alleged, to appear, to present their story and possible justification. If neither adduced evidence about some of the essential factors to be considered under the Act, the judge can ask them questions. And a decision follows. This can be before the Supreme Court of Nova Scotia or a judge of the Provincial Court.

I do agree with sidelining the CyberSCAN unit from enforcement of the law. In my experience and in my opinion, they were the wrong tool for the job. While perhaps not representative of all the people with whom they interacted, I consistently heard from and about people whose political or legitimate Charter-protected speech was removed from the internet because they bullied the people into removing it under threat of unspecified “legal action” that could include removing their internet access. It may have been a matter of who they hired for the role or how they were led, but the CyberSCAN unit was part and parcel of the speech suppression that the law represented. When I asked Roger Merrick how the CyberSCAN unit took the Charter into account in doing their jobs, I was told that the legislature took it into account when the bill was passed by this House. That was clearly incorrect.

I do think the CyberSCAN unit or some replacement of it could go good things. Education and awareness is important. Providing support to victims is important. I am sure that victims will need a lot of help in figuring out how to have their day in court, and they can be a resource for that.

One final concern that I have is that the legislation says that if the victim is a minor, their parent or guardian has to commence the application on their behalf. There should be a mechanism by which a minor can do this on their own. First of all, there may be a case where the case relates to intimate images and the minor does not want to tell their parents. Secondly, I can imagine a scenario where the parent is either the perpetrator or is unwilling to help the child. Some safeguard needs to be in place to give a child direct access to the courts.

I do want to take the opportunity to praise the manner in which the non-consensual distribution of intimate images is treated in the statute. By separating this from the definition of cyberbullying, it will effectively shield this from being struck down if the conventional cyberbullying aspect is found to be unconstitutional.

Again, I regret that there was not enough notice for me to appear in person and answer any questions by the Committee. However, I am easy to find and I would be pleased to discuss this important matter with any Committee members or their staffers.

Nova Scotia introduces new anti-cyberbullying bill

On October 5, 2017, the Nova Scotia Liberal government introduced a new bill to replace the former Cyber-safety Act, which was struck down as unconstitutional (a "colossal failure", said the judge). The Intimate Images and Cyber-protection Act is the result of a serious re-think of all the defects found in the Cyber-safety Act.

Some important differences:

1. The bill has a much more narrow definition of "cyberbullying". The previous law would have considered anything done online that could hurt your feelings to be cyberbullying. In this version, the alleged cyberbully has to maliciously intend to cause harm or has to be reckless with regard to the risk.

(c) "cyber-bullying" means an electronic communication, direct or indirect, that causes or is likely to cause harm to another individual's health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual's health or well-being or was reckless with regard to the risk of harm to another individual's health or well-being, and may include

(i) creating a web page, blog or profile in which the creator assumes the identity of another person,

(ii) impersonating another person as the author of content or a message,

(iii) disclosure of sensitive personal facts or breach of confidence,

(iv) threats, intimidation or menacing conduct,

(v) communications that are grossly offensive, indecent, or obscene,

(vi) communications that are harassment,

(vii) making a false allegation,

(viii) communications that incite or encourage another person to commit suicide,

(ix) communications that denigrate another person because of any prohibited ground of discrimination listed in Section 5 of the Human Rights Act, or

(x) communications that incite or encourage another person to do any of the foregoing;

2. Applications are no longer ex parte. The accused cyberbully has to be given notice of the application and is given an opportunity to appear and respond to the allegations. This fixes the Charter s. 7 defect in the old law.

3. There are a range of defences available. One defect identified in the old Cyber-safety Act was that there were no defences available to an allegation of cyberbullying. In the new bill, there are a few that are intended to protect freedom of expression:

7(2) In an application for an order respecting cyber-bullying under this Act, it is a defence for the respondent to show that

(a) the victim of the cyber-bullying expressly or by implication consented to the making of the communication;

(b) the publication of a communication was, in accordance with the rules of law relating to defamation,

(i) fair comment on a matter of public interest,

(ii) done in a manner consistent with principles of responsible journalism, or

(iii) privileged;

(c) where the respondent is a peace officer acting in the course of the peace officer's duties, that the communication was necessary to prevent a crime or discover, investigate or prosecute the perpetrators of a crime and did not extend beyond what was necessary;

(d) where the respondent is a public officer acting in the course of the duties of the public officer's office, that the communication was necessary to fulfil the duties of that office and did not extend beyond what was necessary.

4. The bill addresses the non-consensual distribution of intimate images separately, which is a good thing. The language for this is essentially drawn from Criminal Code offence of distributing an intimate image without consent, but this bill provides civil remedies including an order for removal.

5. The CyberSCAN unit has no role in enforcement. I heard about a number of instances where the CyberSCAN unit itself bullied people to remove political content, so taking away their ability to do that is a good thing. The downside is that individuals don't have a publicly-funded organization that they can look to for legal remedies.

6. The remedies are all self-help. Applications for orders and damages go only to the Supreme Court of Nova Scotia, using the usual processes for applications under the complicated civil procedure rules. This will lead to self-represented litigants getting lost in the civil justice system or having to hire lawyers. I think I would have preferred a simplified process, similar to a peace bond, in the Nova Scotia Provincial Court.

7. Orders to prevent the identification of victims are virtually automatic. A publication ban to protect the identity of the complainant is automatic if the applicant is a minor and will automatically be granted on request to an applicant related to an intimate images proceeding. This is a good thing, as putting discretion in the hands of the court would discourage applicants from coming forward. They can proceed knowing their identity is protected and they will not be re-victimized by the court process.

8. The bill seems to anticipate possible diversion to restorative justice. How this will play out is anyone's guess, but it makes sense to encourage diversion where appropriate.

I expect I'll have more comments on it as I fully digest it, but these are the principal differences between the old and the new.

The government appears to be planning to spend the next few months consulting publicly, with the bill slated to pass in the spring of 2018.

Nova Scotia's cyberbullying law declared to be unconstitutional and a "colossal failure"

Full disclosure: I was counsel to the applicant respondent in this case. (The party seeking to have the order set aside and to have the statute found to be unconstitutional.)

The Nova Scotia Supreme Court has just released its decision in Crouch v Snell, 2015 NSCC 340 (PDF).

In the decision, the Supreme Court of Nova Scotia has declared the province’s cyberbullying law to be unconstitutional, from start to finish. The law has been found to violate the Canadian Charter of Rights and Freedoms' guarantees of freedom of expression and “life, liberty and security of the person” rights, in a manner that cannot be upheld as a reasonable limit on those rights that can be justified in a free and democratic society. In short, the law is a dramatic failure.

The case related to two adults, former business partners, who had a falling out. Mr. Crouch sought and obtained an ex parte cybersafety protection order before a justice of the peace in December 2014. The respondent (I was his counsel) challenged the order and the legislation.

I have not been known as a fan of the Cyber-safety Act. I've blogged about it, written Op-Eds about it and I've called it a dumpster fire. It was passed unanimously by the Nova Scotia legislature in the immediate aftermath of the tragic death of Rehtaeh Parsons. In my view, it was created in haste in the immediate, emotional aftermath of the tragic death of a young woman who had been sexually assaulted and had photos of the assault circulated around the community. The government of the day -- which was heading for an election -- was not willing to throw the police and the prosecution service under the bus for no charges being laid, so instead created the appearance of doing something by creating and passing a very poorly executed law. In the process, they trampled on the Charter rights of all Nova Scotians and created a distraction from the important discussion about sexual assault and consent.

Among other things, the Act allows an alleged victim of cyberbullying to appear before a justice of the peace to obtain a cybersafety protection order. These orders can go so far as to result in the confiscation of electronic devices and being barred from using the internet. An alleged cyberbully never has any notice of this hearing and has no right to give his side before the order is made. In this case, the order of the justice of the peace even ordered the respondent to delete all of his social media postings that didn’t refer to anyone in particular, as they may have referred to the complainant.

The case mainly focused on two aspects: the definition of "cyberbullying" at the heart of the Act and the scheme that permits applications and orders without notice to the other side. The Court found the Act violates freedom of expression rights and cannot be saved. The definition is overbroad and encompasses a range of expression that is constitutionally protected:

[115] The Act restricts "any electronic communication through the use of technology ... 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". It is not difficult to come up with examples of expressive activity that falls within this definition, and at the same time promotes one of the core freedom of expression values. Moir J. did just that in Self, supra at para. 25:

A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation. I expect Bob Dylan caused humiliation to P.F. Sloan when he released "Positively 4th Street", just as a local on-line newspaper causes humiliation when it reports that someone has been charged with a vile offence. Each is a cyberbully, according to the literal meaning of the definitions, no matter the good intentions of the neighbour, the just demand of the lawyer, or the truthfulness of Mr. Dylan or the newspaper.

[116] In conclusion, I find that the Act has both the purpose and effect of controlling or restricting freedom of expression.

Once any limitation on a Charter protected right is found, it can only be justified if (i) it is prescribed by law, (ii) it relates to a pressing and substantial objective, (iii) the impugned provision must be rationally connected to the objective, (iv) it must impair the Charter right "minimally" and (v) the effects must be proportional. In this case, remarkably, the Court found that it is not even "prescribed by law" as it is not sufficient intelligible:

[137] In this regard, I find that the Act provides no intelligible standard according to which Justices of the Peace and the judiciary must do their work. It does not provide sufficiently clear standards to avoid arbitrary and discriminatory applications. The Legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances. There is no "limit prescribed by law" and the impugned provisions of the Act cannot be justified under s. 1. In the event I am wrong, I will perform the balance of the Oakes analysis.

The Court also found that the ex parte procedure is not rationally connected to the mischief to be addressed:

[156] ... Section 5(1) must be read as requiring protection order applications to be made without notice to the respondent. I also agree with the Respondent's submission that even if s. 5(1) did give applicants a choice in the matter, it would be a rare case indeed where an applicant would choose to give notice.

[157] Finally, with respect to the Attorney General's reliance on the various procedural safeguards set out in the Act, the reality is that while the respondent waits for the opportunity to be heard at a de novo hearing, his or her Charter-protected rights and freedoms will continue to be infringed upon. This will be on the basis of a proceeding that most likely occurred without notice to the respondent, and without the respondent having had an opportunity to be heard.

[158] I find the process set out in s. 5(1) of the Act is not rationally connected to the legislative objectives. The process does not specifically address a targeted mischief.

On "minimal impairment", the Court called the Act a "colossal failure":

[165] I need to consider all of the types of expression that may be caught in the net of the Cyber-safety Act, and determine whether the Act unnecessarily catches
material that has little or nothing to do with the prevention of cyberbullying: R. v. Sharpe, 2001 SCC 2, [2001] S.C.J. No. 3 at para. 95. In this regard, the Cyber-safety Act, and the definition of cyberbullying in particular, is a colossal failure. The Attorney General submits that the Act does not pertain to private communication between individuals, but rather, deals with "cyber messages or public communications". With respect, I find that the Act restricts both public and private communications. Furthermore, the Act provides no defences, and proof of harm is not required. These factors all culminate in a legislative scheme that infringes on s. 2(b) of the Charter much more than is necessary to meet the legislative objectives. The procedural safeguards, such as automatic review by this Court and the respondent's right to request a hearing, do nothing to address the fact that the definition of cyberbullying is far too broad, even if a requirement for malice was read in. Moir J.'s comments in Self supra at para. 25, are instructive:

The next thing to note is the absence of conditions or qualifications ordinarily part of the meaning of bullying. Truth does not appear to matter. Motive does not appear to matter. Repetition or continuation might ("repeated or with continuing effect") or might not ("typically") matter.

[166] In conclusion, the Cyber-safety Act fails the "minimum impairment" branch of the Oakes test.
Emphasis added

The Court also found that the Act fails on the final proportionality test:

[174] The Attorney General submits that the Act strikes an appropriate balance because it only restricts expression that is malicious, and therefore low-value. The
Respondent says this Court must instead balance an individual's right to express any sort of speech captured in the definition of "cyberbullying" against the objectives of the Act. The Respondent says the Act prevents an individual from telling the truth if it hurts another person's feelings or harms their self-esteem, and it does not provide any defences. The Act does not accommodate expression that relates to individual self-fulfillment, truth-finding or political discourse. The Respondent submits that the Act can therefore "limit speech that cuts to the core of Charter values". The Respondent distinguishes Lucas on the basis that the libel provisions in the Criminal Code were upheld because they prohibit only falsehoods that are known by the defendant to be false.

[175] It is clear that many types of expression that go to the core of freedom of expression values might be caught in the definition of cyberbullying. These deleterious effects have not been outweighed by the presumed salutary effects.

In the end, the Court found that the Cyber-safety Act offends sections 2(b) and 7 of the Charter and cannot be justified.

Interestingly, the Attorney General asked that if the Act were declared to be unconstitutional, the Court should suspend the declaration of invalidity so that the legislature could go back to the drawing board. In court, we agreed that it could be suspended with respect to anyone but my client. The Court declared the entire Act to be unconstitutional but refused to suspend the order:

[220] Both parties confined their submissions to the definition of cyberbullying and Part I of the Act. I have identified a number of problems with both components. The remaining parts of the Act cannot survive on their own. They are inextricably connected to the offending provisions, in particular the definition of cyberbullying. Severance would not be appropriate. The Act being over-inclusive rather than underinclusive, reading in also would not be an appropriate remedy. I have already explained why reading in a requirement for malice is not, in my view, appropriate or sufficient. The Act must be struck down in its entirety. The Attorney General has not persuaded me that a temporary suspension is warranted. To temporarily suspend the declaration of validity would be to condone further infringements of Charter protected rights and freedoms. Further, the fact that the Act was enacted to fill a "gap" in the legislation does not mean that victims of cyberbullying will be completely without redress in the time it takes to enact new cyberbullying legislation. They will have the usual albeit imperfect civil and criminal avenues available to them.
Emphasis added

So far, the government of Nova Scotia has not commented on the case and it remains to be seen whether they will appeal the case or go back to the drawing board, or both.

If they do go back to the drawing board, I really hope they will do it with very careful deliberation and full consultation with experts. But if nothing else, they have a good example of how not to do it.

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.”

Cyberbullying for family law practitioners (*not intended to be a how-to guide)

I was invited to speak with the Canadian Bar Association's Nova Scotia Family Law Section on cyberbullying law for family law practitioners. I was very happy to do so, given that many instances of cyberbullying arise from failed relationships and this will be a growing issue for family lawyers.

In case it is of interest, here is the presentation:

The disaster of the Nova Scotia cyberbullying law; it's time to go back to the drawing board

I often represent victims of true cyberbullying, including adults whose lives have been turned upside down by malicious online actors, so I am very sympathetic to the nominal goals of Nova Scotia's Cyber-safety Act. But the legislation fails to take into account -- in any way -- that all expression is protected by the Charter and can only be regulated or suppressed by reasonable limits, prescribed by law. The legislation is defective and has been enforced by the province in a manner that only makes it worse.

In Nova Scotia, any electronic speech that would reasonably be expected to cause someone distress or hurt feelings or harm to self-esteem is deemed to be cyberbullying. There are no defences. Here is the definition of cyberbullying from the Act:

(b) “cyberbullying” means any 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 [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, and includes assisting or encouraging such communication in any way;

You may want to read that again, but focus on this bit: "any electronic communication ... that ought reasonably be expected to cause .. humiliation, distress or other damage or harm to another person's ... self-esteem or reputation...".

Every other Canadian law that tries to limit speech has defences, such as the defence of truth or fair comment under defamation law. Hate speech laws in the Criminal Code have defences. The Supreme Court of Canada, in Grant v Torstar, recently recognized that traditional defamation law was not compatible with the Charter because a diligent commentator on a matter of public interest would be found liable under existing rules so created a defence of "responsible communication on a matter of public interest." Under defamation law, you can call a convicted thief a thief, but if you dare tweet that in Nova Scotia or put it on a blog, you're a cyberbully.

We just have to look at how the Cyber-safety Act has been applied by the CyberSCAN unit to understand how incompatible it is with Charter protected expression. After a teenager started a twitter argument with MLA Lenore Zann, the CyberSCAN folks called an individual who regularly tweets about Nova Scotia politics and told him to remove his tweets or there would be unspecified "further action". His tweets questioned the judgement of an elected member of the legislature. He deleted his tweets. (See: Nova Scotia politician alleges cyberbullying, calls the authorities on tweeting teen)

On another occasion, the CyberSCAN folks met with an individual who was demanding financial transparency and accountability from his elected First Nations Band Chief. I will admit his questioning was inelegant and his frustration is apparent in his comments. (At one point, he apparently suggested she could use a punch in the face.) They told him to not communicate with or about her, and to remove any negative comments about her from the internet, or there would be "further action". When he reneged on his agreement to lay off, they went to court and got an order of the Supreme Court of Nova Scotia that forbids him from communicating with or about his elected representative, effectively cutting him out of the democratic process. The judge did not issue any written reasons for the decision. (See: More details about Nova Scotia's first cyberbullying prevention order)

Most recently, Frank Magazine has reported in its 29 January 2015 issue that a local, politically active twitter user and blogger received a late-night visit from from CyberSCAN unit. Here's how it was related in the Frank article:

"A government agent from the province's Cyberscan cyberbullying division came to my house and ordered me to take down my political blog," Eric tells me.

"Or they would get a court order, and... they would seize all my computers, cell phones, ban me from using the internet, fine me thousands of dollars and jail me for up to two years."

According to the Frank magazine article, the CyberSCAN officer, Lisa Greenough, refused to tell the individual who had filed the complaint or what was the substance of the actual complaint. He was essentially told to just stop participating in politics online. Or there would be consequences.

The CyberSCAN unit's modus operandi when it comes to political participation appears to be to tell folks to stop. Not to tone it down. Just stop. And the invariable "or there will be further action."

When the legislation was introduced, I was interviewed by CBC saying that it was likely unconstitutional. In a later interview with the Premier of Nova Scotia, they played him that clip with my critique of the law. He said he couldn't disagree with me more. Having the Premier of a province tell you that you're wrong surely would hurt my feelings and harm my self esteem. If he had tweeted it, would have been cyberbullying according to the law his government passed. The CBC put the article on their website, so they cyberbullied me by "assisting or encouraging". None of them would have intended to have hurt my feelings, but that doesn't matter under this province's bizarre law.

This law was passed less than one hundred feet from the statue of Joseph Howe at the legislature. But if Howe had been on Twitter, he would have been branded a cyberbully; his comments almost certainly hurt the feelings of the local magistrates and caused them distress.

Cyberbullying is a very hard thing to define, and the law's supporters said that it had to be very broadly defined but would be applied with judgement and discretion. I have not seen evidence of that. Though most of the CyberSCAN unit's activities have not been reported on, those cases that have hit the media or the courts show a complete disregard for freedom of expression. When I asked the CyberSCAN unit about how they incorporate this fundamental human right into their decision-making, this is the response I received:

The Charter was given careful consideration when the legislation was drafted. Any action taken is done following careful consideration to ensure it meets the essence of the legislation.

I would suggest that there is no evidence that the Charter was considered when the legislation was put together. And I seen no evidence that the Charter has been given consideration when the Act is applied.

Cyberbullying -- of kids and adults -- is a real issue that demands a real, meaningful response. However, the Cyber-safety Act of Nova Scotia is a disaster and the province's government needs to go back to the drawing board.

---

In case you are curious about the CyberSCAN unit, here are the questions I asked of the group and the answers I received:

1. How many employees (FTE) are there in the CyberSCAN unit?

There are five full time investigators, a Director, a case manager, and an administrative assistant that have additional duties associated with similar programs.

2. How many complaints or inquiries has the CyberSCAN unit received from victims of cyberbullying? Of these, how many are from adults and how many are from youth/children?

Since September 30, 2013, the unit has received 497 complaints that have initiated investigations.

3. How many files has the CyberSCAN unit opened in connection with complaints? Of these, how many are from adults and how many are from youth/children?

SEE Q4

4. How many formal investigations have been launched by the CyberSCAN unit? Of these, how many are from adults and how many are from youth/children?

497 complaints received have involved the following:

Adult – 302 – adult reporting they are being cyberbullied

Guardian – 7 – guardian reporting on behalf of minor child

Parent – 76 – reporting on behalf of minor child

Referral by Police – 27

Referral by School – 66

Referral by Victim Services – 1

Youth – 19 – youth reporting they are being cyberbullied

5. How many complaints have been resolved informally by the CyberSCAN unit without having to open a file or launch a formal investigation?

There have been 163 informal resolutions.

6. How many Cyber Safety Prevention Orders have been applied for by the Director of Public Safety? Of these, how many are from adults and how many are from youth/children?

The Director has applied for and received 2 Prevention orders in court.

7. Does the CyberSCAN Unit have full time legal counsel assigned to it?

The unit utilizes Legal Services within the Department of Justice.

8. On the unit’s website, it says “The CyberSCAN unit will determine which alleged victims are at the most risk and respond to cases in order of priority.” How do you prioritize cases?

Cases are prioritized based on the potential harm to the individual.

9. Are there any formal or informal means by which the CyberSCAN unit takes Charter guaranteed freedom of expression rights into account in its activities?

The Charter was given careful consideration when the legislation was drafted. Any action taken is done following careful consideration to ensure it meets the essence of the legislation.

Full disclosure: I am representing clients in two separate cases that are challenging the Cyber-safety Act and its application on Charter and other grounds. I have also been a witness in an application to obtain a cyberbullying protection order.

Presentation: Cyber-bullying, the law and the courts (and freedom of expression)

I was invited to speak to journalism students at the University of King's College about Cyber-bullying, the law, freedom of expression and the courts. This is the second year I've been asked to give such a presentation and I focused on the problems created by laws that are drafted and passed during very emotional times. The Nova Scotia Cyber-safety Act is a perfect example of such a law: When it was introduced, I was quoted in the media as saying it was likely unconstitutional as an unreasonable infringement on our Charter rights to freedom of expression. The Premier of the province at the time, Darryl Dexter, responded to my critique by saying that he could not disagree with me more. Since that quote hurt my feelings and was published online, it fit within the grossly overbroad definition of cyberbullying contained in the statute he was responsible for. Which only just proves my point, since an honest opinion on a matter of public interest (particularly legislation) should never be made unlawful in our free and democratic society.

In any event, it was a pleasure to give the presentation and to speak with the very engaged students. In case the materials are of interest, here is the presentation:

Presentation: The legal response to cyber-bullying

This week, I led an internal McInnes Cooper continuing professional development session on cyberbullying and the legal response to it.

In case this is of interest to readers, here is the presentation:

Cyberbullying legislation and freedom of expression

I was invited to lead a discussion at the Canadian Centre for Ethics and Public Affairs on Nova Scotia's cyberbullying legislation and its impact on freedom of expression. It was part of their "everyday ethics" series. Though it was much more of a discussion than a presentation with powerpoint, did did prepare the below presentation which may be of interest to readers of this blog. Feel free to share it.

More details about Nova Scotia's first cyberbullying prevention order

Yesterday, I blogged about the first cyberbullying prevention order issued under Nova Scotia's Cyber-safety Act. (See: Canadian Privacy Law Blog: Nova Scotia court issues first cyberbullying prevention order.)

At that point, all I had to go on was the media reporting. Since then, I've managed to get my mitts on the Order of Justice Robertson, the brief filed by the Nova Scotia Director of Public Safety, the affidavit of Chief Paul, and the affidavit of CyberScan Unit enforcement officer Dana Bowden. No copy of actual decision or reasoning of the judge is available. Hopefully that will be released shortly.

In the past, I've been critical of the over-breadth of the Cyber-safety Act and its definition of cyberbullying that can capture legitimate speech that is protected by the Charter of Rights and Freedoms. Most of the reporting on this case focused on comments that were characterised as harassing. The crown attorney went even further:

Crown attorney Angela Jones told the court that the comments made by Prosper were “defamatory, vulgar, … abusive and obscene.”

[None of the comments that I saw met the legal definition of "obscene".]

However, the contents of the affidavit seem to tell a different tale. While certainly the communications that were alleged to have been made by the respondent were what I would call unpleasant, sometimes vulgar and certainly repeated, it also appears to be rooted in questions related to the management of the finances of the Pictou Island First Nation overseen by the complainant. I didn't see any attempt anywhere in the documents to do anything less than shut the respondent down completely. The CyberScan investigator met with the respondent and told him to stop all of his communications with the Chief, not to tone it down.

While this is the first such order, it's a bit disheartening that a statute with the potential to dramatically chill constitutionally protected speech doesn't seem to be applied in a manner to temper this overreach, as was the case when a constituent of Nova Scotia MLA Lenore Zahn was told by the CyberScan Unit to remove tweets that questioned her judgement.

Nova Scotia court issues first cyberbullying prevention order

A judge of the Nova Scotia Supreme Court has issued the first "Cyberbullying prevention order" under the province's Cyber-safety Act.

The case, as it has been reported, appears to be a classic case of online harassment where the victim reportedly received numerous threatening messages through Facebook. When the user was "blocked", he then repeatedly communicated with the victim's children conveying threatening messages. I haven't seen the actual order yet, but it reportedly orders him to stop "cyberbullying" and communicating with or about the victim.

One additional point that's worth pondering is that the respondent to the order, who did not appear, is in Ontario which may make enforcing this order under Nova Scotia's unique law a challenge.

From Global TV (the link will also take you to a video where I was interviewed):

Nova Scotia court issues first cyberbullying prevention order - Halifax | Globalnews.ca

HALIFAX – A Nova Scotia Supreme Court judge has imposed a cyberbullying prevention order on a man who was accused of using Facebook to post threatening and defamatory statements about the chief of a First Nation.

The order is the first imposed by a court under the province’s Cyber-safety Act and involves allegations made by Andrea Paul, chief of the Pictou Landing First Nation.

She alleges Christopher George Prosper posted abusive and obscene comments about her and her family on Facebook last year.

Paul says she contacted the province’s CyberSCAN unit, which is the first of its kind in the country to be tasked with investigating complaints of cyberbullying.

Judge Heather Robertson told a Halifax courtroom that she was satisfied this was a case of cyberbullying under the act, saying Prosper’s actions hurt Paul’s reputation and psychological well-being.

David Fraser, a privacy lawyer with the McInnes Cooper firm in Halifax, says Nova Scotia’s cyberbullying legislation is ultimately doomed to fail.

“There is … a very real possibility that this legislation could be used to chill charter-protected speech, the ability of individuals to express themselves, the ability of individuals to be critical of their government, of public officials,” he said.

Fraser believes the bill will be challenged in the near future.

The court order is imposed for one year and it says Prosper must remove all messages deemed to be cyberbullying, refrain from contacting Paul and stop cyberbullying.

Getting the facts straight as we rush to legislate cyberbullying

Over the past number of months, Halifax Chronicle Herald reporter Selena Ross has been researching the failure of the authorities to lay any charges in the Rehtaeh Parsons case (until political pressure resulted in the case being reopened). This past week, she published her findings into the police investigation and the crown's refusal to lay charges. The fact that it has taken months to get this level of information speaks volumes. They also make depressing reading.

The tragedies of Rehtaeh Parsons and Amanda Todd galvanized attention on the issue and lawmakers have swung into action by passing laws to address it. First, we saw the Cyber-safety Act in Nova Scotia and more recently the federal Conservative government introduced Bill C-13, Protecting Canadians from Online Crime Act. The Nova Scotia statute creates a CyberScan unit, headed by a former cop, to investigate cyberbullying, allows for anti-cyberbullying orders and allows victims (with their parents permission) to sue cyberbullies. The proposed federal legislation makes it a crime to distribute intimate images without consent.

When these laws were introduced, there was much self-congratulatory back slapping about how we are finally doing something, with the clear implication that these laws would have saved the lives of Rehtaeh Parsons and Amanda Todd, if only they’d been in effect earlier. That is simply not true.

Rehtaeh Parsons and Amanda Todd died because the police and the prosecutors did not use the laws that existed to seriously investigate the crimes that they were already the victims of. Making up new crimes may be a useful endeavour, but saying that it was the absence of laws like these that was responsible for these horrendous tragedies is an outright lie.

Amanda Todd was the victim of extortion, harassment, and child pornography at the hands of an adult online and her peers. All of these were crimes the day she was born and continued to be crimes the day that she died. The Royal Canadian Mounted Police failed to investigate, failed to prosecute and failed to give her hope for justice. The British Columbia agencies charged with protecting children in the province failed her as well.

Rehtaeh Parsons was the victim of sexual assault, harassment, child pornography and voyeurism offences at the hands of her peers. All of these (other than the voyeurism offence) were crimes the day she was born and and all were crimes the day that she died. The Royal Canadian Mounted Police and the Halifax Regional Police Service failed to adequately investigate, failed to prosecute and failed to give her hope for justice.

Instead of stepping up and taking responsibility for the horrendous failure of those who are charged with protecting children, investigating and prosecuting crimes, police agencies and the politicians to whom they report have shrewdly deflected the attention of the media and the public towards new initiatives under the clear implication that it was the absence of these laws that failed these two young women.

While both laws (with their flaws) fill an important legal void as far as cyberbullying is concerned, the principal benefit to be derived from these laws is likely that it gives authorities fewer excuses to do nothing when children are the victims of such crimes.

Nova Scotia politician alleges cyberbullying, calls the authorities on tweeting teen

I wrote, some time ago, that Nova Scotia's Cyber-safety Act is poorly written, infringes freedom of expression and may be abused. I am afraid to report that I was right. An old cliché says that bad cases make bad law, but we are seeing how a bad law is leading to a bad case.

In the first publicised case referred to the CyberSCAN Units established under the province's Cyber Safety Act, a Nova Scotia politician has called the authorities after a teenager tweeted a topless but public image of the politician. (See: Lenore Zann, L Word actor turned MLA, alleges cyberbullying - Nova Scotia - CBC News and Lenore Zann, actress turned Nova Scotia MLA, launches cyberbullying investigation after teen tweets nude image of her from The L Word | National Post). Apparently Lenore Zann previously appeared topless in the cable TV program "The L Word" and a quick look using your favourite search engine will turn up images. So I'm told.

Not only did the thin-skinned politician call the CyberSCAN Unit on the young fellow, she called his parents, his school principal and the police. And I would say that she also engaged in cyberbullying him. (Not that this is new ... her previous retweets would likely hurt Rob Ford's feelings, too.)

To make it even worse, she called the cybercops on another person who had the temerity to question her judgement in responding to this. The cybercops called him and told him to take down his tweets. I find this incredibly troubling.

The problem with the law is what it captures within the incredibly broad definition of "cyberbullying":

(b) "cyberbullying" means any 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;

Yup, anything that you do online that hurts someone's self-esteem or their reputation is cyberbullying. Did what this kid do (or was reported to have done) qualify as cyberbullying under this law? Perhaps. Did what she did qualify as cyberbullying? Yup.

Some have suggested that the law has to be so broad to capture all the harmful conduct and we should leave it to the courts and the cybercops to use their judgement in how it is applied. I'm sorry, but as soon as an employee of the government of Nova Scotia picks up the phone and tells a citizen to remove Charter protected speech from the internet, that crosses the line. That goes waaaaay over the line. Canadians have an absolute right to speak truth to power. Canadians have an obligation to call out politicians on hypocrisy and idiocy. An elected official like Lenore Zann, before publicly admonishing a minor, should educate herself about "copyrwite (sic) law", fair dealing and the criminal code. (A bit of free advice: Bill C-12 isn't the law yet and an image taken on a sound stage surrounded by a filming crew for the purpose of international broadcast on cable television likely does not qualify as an intimate image "in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy".)

@Da_Gabriella3 @NScissons: No this image is a "frame" that was taken illegally from the TV series The LWord against strict copywrite laws.

— Lenore Zann (@lenorezann) November 30, 2013

@ThankYouNS distribution of images of this nature now fall under new Cyberbullying laws & is an indictable offence.

— Lenore Zann (@lenorezann) November 30, 2013

@ThankYouNS: Neither I nor producers of "The LWord" consent to illegal download of a single frame nor illegal distribution of my image.

— Lenore Zann (@lenorezann) November 30, 2013

The tragedy is that cyberbullying is a real problem and Lenore Zann is turning this into a farce. The CyberSCAN Unit has a starring role in this farce. The previous government passed a law that is offensive to freedom of expression which will ultimately get struck down and will leave the real victims of cyberbullying with one fewer remedy.

At the risk of having the cybercops calling me (here's my number):

• The government that jammed this defective law through the legislature without reflection and debate, solely to deflect attention away from police and prosecution failures in the case of Rehtaeh Parsons was contemptible,
  
• Lenore Zann is too thin-skinned and has displayed a lack of judgement that makes her unqualified to be an elected official,
  
• Lenore Zann comparing herself to Rehtaeh Parsons is OUTRAGEOUS, and
  
• if a member of the Cyber Safety Unit actually phoned a citizen and told him to delete a tweet, the Cyber Safety Unit is complicit in this.

And who is going to lose? Freedom of expression and actual victims of cyberbullying. And that's a damn shame.

Update: Here's this evening's CBC TV coverage of the story, including an interview with me. It starts at 7:17.

New cyberbullying law half-baked

I was asked to write an opinion piece for the Chronicle Herald, setting out my concerns about Nova Scotia's new Cyber-safety Act. It's in today's paper:

New cyberbullying law half-baked | The Chronicle Herald

One would have to have the hardest of hearts to be unaffected by the Rehtaeh Parsons tragedy. I have seen firsthand the devastating effect of cyberbullying and my firm is very proud to have taken the case of a young victim to the Supreme Court of Canada to protect her from further torment.

It is also a very human impulse to want to do something — anything — to make sure that nobody else is victimized again. Unfortunately, the wake of a tragedy is never a good time to make good law, and that’s unfortunately the case with the province’s Cyber-safety Act. The act was drafted in the heated, emotional time immediately after Ms. Parsons’ death and jammed through the legislature with no critical examination and discussion. Comments from interested groups were not solicited and anyone who would have wanted to suggest improvements was caught flat-footed by the hasty way it sailed through committee.

And as of this past week, most of it is the law of the province.

Cyberbullying seems to be like obscenity — it is very difficult to define, but we know it when we see it. However, definitions matter in the law.

In this particular law, the net has been cast so wide that it is likely unconstitutional. The most significant problem is with the definition of “cyberbullying,” which includes electronic communications that do or would be expected to harm someone’s self-esteem or reputation.

That bar is so low that most politicians’ Twitter feeds are littered with cyberbullying. Satirists and editorial cartoonists — if they’re any good — are cyberbullies in Nova Scotia. Protecting self-esteem may be sensible when dealing exclusively with minor victims, but it must be remembered that this law and the flawed definition apply regardless of age.

I spoke critically of the act when it was first introduced and the premier told CBC he “couldn’t disagree with me more.” It hurt my feelings. If he were to say that today on Facebook or Twitter, I could call him a cyberbully and sue him. I have a thick skin and will not be suing anyone who simply disagrees with me, but I find it troubling that I can seek damages for such speech in the same province where Joe Howe argued for, and won, our fundamental rights of free expression.

Surely, it cannot have been the legislature’s intention to lump legitimate satire, political speech and fair comment in with the shaming Ms. Parsons experienced, by calling it all “cyberbullying.” That’s what they did, unfortunately, and that’s why it’s unconstitutional. According to the Supreme Court, any infringement of freedom of expression needs to be justifiable and cannot impair the right more than is necessary to accomplish the legitimate legislative objectives.

In other words, it must be precisely targeted and not overbroad. A law that does not “minimally impair” Charter-protected speech rights cannot be justified and is of no force and effect. Including satire, fair comment and legitimate political speech would be overreaching that imperils the entire statute.

The legislature also made a mistake by not giving courts more guidance on how cyberbullying protection orders should be used. The list of remedies is extensive, ranging from a simple order not to be a cyberbully to the confiscation of electronic devices and forcing the alleged bully back to the pre-electronic age.

The legislature did not say that the more draconian orders should be reserved for the most serious of cases or that the more extreme measures should only be used when the lesser ones have failed.

To make it worse, if the bully were harassing his or her victim using a school computer, an order as written in the act could cut the entire school off from the Internet.

While the legislature has made it very easy to get over-reaching orders, it also took away most of the avenues of judicial review that would act as a check on these powers. The warrantless investigative powers given to the CyberSCAN units would make Vic Toews jealous and, as a result, the evidence they obtain might be useless in a criminal prosecution.

The legislature has actually done a disservice to those they desperately want to help by hastily passing a law that will likely be struck down when the first victims go to the courts seeking assistance.

I expect it will be traumatic to the victims to not only have their cases thrown out, but to have the entire law designed to protect them declared to be unconstitutional.

An unconstitutional law is merely window-dressing and — when struck down — it’s an embarrassment. If the government really wants to protect victims of harmful cyberbullying, it should take this law back to the drawing board and do it right.

David Fraser is an Internet and privacy lawyer with McInnes Cooper in Halifax who has acted as legal counsel to victims and online service providers in cases of cyberbullying. These opinions are personal and should not be attributed to the firm or its clients.

Nova Scotia cyberbullying law now mostly in effect

Nova Scotia's Cyber-safety Act, which was jammed through the legislature with little debate, has been partially proclaimed into force today. In particular, the portions dealing with the new statutory tort of cyberbullying and anti-cyberbullying orders are now the law. It is expected that the new CyberSCAN units will be mobilised and deployed in the fall.

For more background, check out previous blog postings on the topic: Cyber-safety Act (Nova Scotia).

From the provincial government:

Province Offers More Protection for Cyberbullying Victims | novascotia.ca

Province Offers More Protection for Cyberbullying Victims

August 7, 2013 10:20 AM

Victims of cyberbullying now have more places to turn as Nova Scotia leads the country with new cyber-safety laws.

Justice Minister Ross Landry announced today, Aug. 7, people can seek a protection order from the court or sue if they, or their child, is being cyberbullied. The protections are part of the new Cyber-safety Act to protect victims and hold cyberbullies accountable for their actions.

"Too many young people and their families are being hurt by cyberbullies," said Mr. Landry. "I committed to families that the province would work with them to better protect our children and young people. Court orders, and the ability to sue, are more tools that help put a stop to this destructive behaviour.

"This sends a clear message, cyberbullying is a serious act with serious consequences. Think before you text."

The parts of the Cyber-safety Act effective today allow victims to apply through the Justice of the Peace centre for a protection order that could place restrictions on, or help identify, the cyberbully. Victims can also sue the cyberbully, whose parents can be held liable for damages if the cyberbully is a minor.

"We've all been affected by cyberbullying, whether it has happened to us or someone we know or we've just seen it online," said Chantel O'Brien, a member of the province's Youth Advisory Council. "These amendments will be a wake-up call to those who think they can hide behind a computer to avoid being held accountable. It's reassuring to see the government taking action to ensure youth can feel safe in their own homes."

New changes to the Education Act clarify the role of principals in acting when this issue affects schools. They now have a clear responsibility to respond, even to incidents of bullying and cyberbullying that occur beyond the school ground or after school hours.

The CyberSCAN unit, the first in Canada, is the final piece of the Cyber-safety Act. The unit will be running in September. Roger Merrick, the unit's director, is hiring five investigators who will investigate all complaints of cyberbullying, whether the victim is a minor or an adult.

In addition to the new civil laws, Premier Dexter led discussions on actions to address cyberbullying at Council of the Federation meetings in July. Premiers acknowledged his national leadership and endorsed initiatives he brought to the table such as strengthening the criminal code to make distributing intimate images without consent a crime.

The province has also committed to an independent review by out-of-province experts into the Public Prosecutions Service and police actions in the Rehtaeh Parsons case. The review will begin after the criminal investigation is complete.

For more information about the Cyber-safety Act, go to http://novascotia.ca/just/.

Analysis of the Nova Scotia Anti-Cyberbullying legislation

As I blogged yesterday, the Nova Scotia provincial government has tabled a bill in the provincial legislature to address cyberbullying. The Bill, dubbed the Cyber-safety Act, does a number of notable things. Notably, it is not limited to protecting minors from cyberbullying and is equally available to adult and child victims.

It must be borne in mind that the Bill has only just been tabled, so it may be amended as it works its way though the legislature and its committees.

It the Bill, cyberbullying is defined:

(b) "cyberbullying" means any 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;

Interestingly, the Bill deems some parents to be cyberbullies themselves if they don't do enough to prevent their minor children from engaging in cyberbullying:

(2) For the purpose of this Act, w here a person who is a minor engages in an activity that is cyberbullying and a parent of the person

(a) knows of the activity;

(b) knows or ought reasonably to expect the activity to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation; and

(c) fails to take steps to prevent the activity from continuing,

the parent engages in cyberbullying.

Cyberbullying Protection Orders

First of all, the Bill creates "cyberbullying protection orders", which are orders issued by the courts to require an individual to cease activities that will be prescribed in the order. The order can be broad or narrow, and the bill gives the courts wide latitude:

9 (1) A protection order may include any of the following provisions that the justice considers necessary or advisable for the protection of the subject:

(a) a provision prohibiting the respondent from engaging in cyberbullying;

(b) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject or a specified person;

(c) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating about the subject or a specified person;

(d) a provision prohibiting or restricting the respondent from using a specified or any means of electronic communication;

(e) an order confiscating, for a specified period or permanently, any electronic device capable of connecting to an Internet Protocol address associated with the respondent or used by the respondent for cyberbullying;

(f) an order requiring the respondent to discontinue receiving service from an Internet service provider;

(g) any other provision that the justice considers necessary or advisable for the protection of the subject.

One thing that I find very interesting -- and disappointing -- is that if the victim is a minor, he or she cannot seek such an order him or herself. His or her parents have to seek the order on their behalf. One would think that at least older teenagers should be able to help themselves, even if their parents don't want to get involved.

A new tort of cyberbullying

Next, the Bill creates a brand-new tort of cyberbullying, which gives a victim of cyberbullying the right to sue in the civil courts for damages. This part is pretty short on details, so I expect the provincial government is leaving it to the courts to sort out.

21 A person who subjects another person to cyberbullying commits a tort against that person.

22 (1) In an action for cyberbullying, the Court may

(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;

(b) issue an injunction on such terms and with such conditions as the Court determines appropriate in the circumstances; and

(c) make any other order that the Court considers just and reasonable in the circumstances.

(2) In awarding damages in an action for cyberbullying, the Court shall have regard to all of the circumstances of the case, including

(a) any particular vulnerabilities of the plaintiff;

(b) all aspects of the conduct of the defendant; and

(c) the nature of any existing relationship between the plaintiff and the defendant.

In addition, the Bill makes the parents of a minor cyberbully jointly and severally liable for all the damages unless the parents are able to show due diligence. It is understandable that the government would include this provision, since young cyberbullies likely do not have any assets of their own (making a civil lawsuit futile) and to perhaps dip into the homeowners or renters insurance policies that parents may have.

(3) Where the defendant is a minor, a parent of the defendant is jointly and severally liable for any damages awarded to the plaintiff unless the parent satisfies the Court that the parent was exercising reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage and made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage.

(4) For the purpose of subsection (3), in determining whether a parent exercised reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage or made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage, the Court may consider

(a) the age of the defendant;

(b) the prior conduct of the defendant;

(c) the physical and mental capacity of the defendant;

(d) any psychological or other medical disorders of the defendant;

(e) whether the defendant used an electronic device supplied by the parent, for the activity;

(f) any conditions imposed by the parent on the use by the defendant of an electronic device;

(g) whether the defendant was under the direct supervision of the parent at the time when the defendant engaged in the activity;

(h) in the event that the defendant was not under the direct supervision of the parent at the time at the time when the defendant engaged in the activity, whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant; and

(i) any other matter that the Court considers relevant.

The tort of cyberbullying would be in addition to any other causes of action that might be brought to bear, including defamation and intentional infliction of emotional distress.

Powers given to the Director of Public Safety

The provincial government has promised, as part of this legislation, to create a specialized unit to combat cyberbullying. This is being done as amendments to the existing Safer Communities and Neighbourhoods Act. This Act has generally been used to deal with crackhouses and the like, but an additional part allows for the designation of "Directors of Public Safety" who will have particular powers to investigate and respond to cyberbullying. (To show how this Act is amended by the bill, I've created a Google doc that shows the proposed changes.)

The Director is given the power to investigate cyberbullying and can seek the assistance of the courts to unmask anonymous miscreants. Once identified, the Director can make an application to the court for a cyberbullying prevention order. The prevention orders are very similar to the protection orders outlined above (I'm not sure why it is duplicated in the Safer Communities and Neighbourhoods Act and the Cyber-safety Act).

It is an offense to defy such an order when issued.

Amendments to the Education Act

The Bill also proposes amendments to the existing Education Act. First of all, it adds the promotion and encouragement of safe and respectful electronic communications to the mandate of the school system. But more importantly, it gives school principals explicit jurisdiction over outside of school activities that are disruptive to the school environment:

122 Where a student enrolled in a public school engages in

(a) disruptive behaviour or severely disruptive behaviour on school grounds, on property immediately adjacent to school grounds, at a school-sponsored or school-related activity, function or program whether on or off school grounds, at a school bus stop or on a school bus; or

(b) severely disruptive behaviour at a location, activity, function or program that is off school grounds and is not school-sponsored or school-related, if the behaviour significantly disrupts the learning climate of the school,

the principal, or the person in charge of the school, may take appropriate action as specified in the Provincial school code of conduct policy including suspending the student for a period of not more than five school days.

My overall impression

Overall, I think this legislation is an important step. Up until this Bill was tabled, most of the discussion of the issue recently has focused on possible amendments to the Criminal Code. Based on what I've seen reported about the Rehtaeh Parsons case points to a serious failing on the part of the criminal justice system (and the mental health system), not the criminal law. But in any event, the phenomenon of cyberbullying is a very complicated one, and one that cannot be fixed or even properly addressed by the criminal law alone. This bill specifically puts a degree of responsibility in the school system and provides the means to establish a group of specialists who have appropriate tools to investigate and respond to cyberbullying. Finally, it gives victims and their parents the ability to proceed through the civil justice system for the harm of cyberbullying. Of course, much depends on how this is implemented and I'm sure many here in Nova Scotia will be paying close attention to that.