Nova Scotia law ‘intended as alternative’ to civil defamation suit ruled unconstitutional

A Nova Scotia “cyberbullying” law that empowers justices of the peace to issue “protection orders” prohibiting people from communicating about others has been struck down on constitutional grounds.

The province’s Cyber-safety Act defines cyberbullying as “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.”

Electronic communications could include “computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail.”

The law allows applicants to apply for protection orders which could not only prohibit people “‘from engaging in cyberbullying of the subject” but could also restrict or prohibit someone subject to such an order “from, directly or indirectly, communicating about the subject ….”

In a decision released Dec. 10, Mr. Justice Glen G. McDougall of the Supreme Court of Nova Scotia ruled that the Cyber-safety Act infringes section 2 (b) of the Canadian Charter of Rights and Freedoms, which protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

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He made his ruling in a case involving a protection order, granted Dec. 11, 2014 by a justice of the peace, against Robert (Bruce) Snell. The application was made by Giles Crouch, a former business partner who alleged that Snell “began a ‘smear campaign’ against him on social media …”

In ruling the cyberbullying law unconstitutional, Justice McDougall cited case history, including a 1992 Supreme Canada ruling in favour of Ernst Zundel, who was charged nearly 35 years ago with spreading false news. A pamphlet – titled Did Six Million Really Die? – alleged among other things that the German concentration camps were only work camps and that the gas chambers were actually built by the Russians after the Second World War. Zundel was initially convicted in 1985 and sentenced to 15 months in jail.

But Zundel’s conviction was struck down by the Supreme Court of Canada, in 1992, in a divided ruling. Canada’s highest court ruled as unconstitutional a section of the Criminal Code making it an offence to publish “a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest.”

The Charter of Rights “protects the right of a minority to express its view, however unpopular it may be,” Madam Justice Beverly McLachlin (who has since been appointed Chief Justice of Canada) wrote in 1992 on behalf of the majority of judges hearing Zundel’s appeal. “All communications which convey or attempt to convey meaning are protected by [Section 2(b) of the Charter] unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regards as wrong or false.”

In Crouch vs Snell, Justice McDougall ruled that the free speech limit imposed by the Cyber-safety Act is not saved by Section 1 of the Charter, which stipulates that Charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

One decision cited by Justice McDougall was a Supreme Court of Canada ruling, released in February, 1986, in favour of David Edwin Oakes, who was convicted of possessing a narcotic for the purpose of trafficking. Oakes had argued on constitutional grounds against a section of the Narcotics Control Act that stipulates a person found to be in possession of a narcotic is presumed to be in possession for the purpose of trafficking unless the accused can establish that he or she was not in possession for the purpose of trafficking. The Court of Appeal for Ontario overturned Oakes’ conviction, and the Supreme Court of Canada dismissed the crown’s appeal.

Section 1 of the Charter “provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter,” wrote Mr. Justice Brian Dickson, then Canada’s chief justice, in 1986 in Oakes. Justice Dickson added that there is a proportionality test with three important components in deciding based on the objective of the legislation.

“First, the measures adopted must be carefully designed to achieve the objective in question,” Justice Dickson wrote. “They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair ‘as little as possible’ the right or freedom in question,” he added, citing case history.

“Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance,” Justice Dickson noted in Oakes.

With its Cyber-safety Act, the province of Nova Scotia contended that “the goal was to create administrative and court processes to deal with cyberbullying in a timely and efficient manner,” Justice McDougall wrote in Crouch vs Snell. ” The legislation was created to fill a gap in our existing laws. It was created to provide alternatives to a civil suit for defamation. Timeliness was seen to be an important characteristic because of the speed with which messages can spread on the Internet. A low-cost alternative to a civil suit for defamation was also seen to be important, enabling greater access to justice to victims of cyberbullying who otherwise may not have been able to afford to bring a defamation suit.”

However, Justice McDougall found that the law “restricts both public and private communication,” provides no defences and requires no proof of harm.

“The procedural safeguards, such as automatic review [by the Supreme Court of Nova Scotia] 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.”