N.S. cyber bullying law inspired by Rehtaeh Parsons struck down
THE CANADIAN PRESS
Published December 11, 2015 – 1:40pm
Last Updated December 11, 2015 – 6:13pm
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Rehtaeh Parsons (THE CANADIAN PRESS – Handout)
A judge struck down a Nova Scotia law inspired by the death of Rehtaeh Parsons on constitutional grounds Friday, ruling it violates Charter rights to freedom of expression and liberty.
Justice Glen McDougall of the Supreme Court of Nova Scotia also declined a Crown request to suspend his decision for 12 months to allow the legislature time to amend the law.
In his decision, McDougall said striking down “offending provisions” of the law wasn’t practical either because they are “inextricably connected” to the act’s definition of cyberbullying.
“The act must be struck down in its entirety,” McDougall said.
The provincial government expressed its disappointment in the decision but it didn’t say whether it will appeal.
Lawyer David Fraser challenged the Cyber-safety Act on constitutional grounds as part of a case involving client Robert Snell, who was placed under a cyber safety protection order sought by his former business partner last December.
Giles Crouch was granted an order under the act after he told a justice of the peace that Snell began a “smear campaign” against him on social media several months after the two wound down their company in 2013.
The protection order prohibited Snell from cyberbullying or communicating with or about Crouch. It also ordered Snell to remove any online comments about Crouch.
McDougall found Snell had engaged in cyberbullying as defined in the act, and he concluded the behaviour was likely to continue. However, his decision to strike down the law voids the protection order.
Fraser argued the law is too broad and an “unreasonable and unjustified” infringement of freedom of expression rights.
The Crown said the Supreme Court of Canada has recognized freedom of expression is not an “absolute right” and some limits must be placed on fundamental rights when social values conflict.
Under the act, cyberbullying is defined as “electronic communication … 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.”
Fraser has said the law didn’t clearly spell out what is prohibited and simply gives the impression that “thou shalt not hurt anyone’s feelings online.”
McDougall found the law was too broadly written and as a result infringes on a person’s right to liberty, too.
“By casting the net too broadly, and failing to require proof of intent or harm, or to delineate any defences, the act limits the right to liberty in a way that has no connection with the mischief it seeks to address,” the ruling says.
The judge goes on to say the protection order procedure is unfair because it fails to provide notice of a hearing to respondents, even if their identity is known or easily determined.
Fraser said he sees merit in a cyberbullying law.
“But you can’t just say, well the intent was good and then put in place a statute that’s like a bull in a china shop,” he said in an interview.
“I would suggest that their (province’s) resources would be much better spent focusing on fixing the law rather than trying to prop it up, particularly when the judge has found it to be so phenomenally defective in a number of key areas.”
The Justice Department issued a statement saying an independent review of the Parsons’ case by a former Ontario chief prosecutor found the law was a “novel and directly responsive solution” to address cyberbullying.
“The intent of the legislation is good, and had all-party support when it was passed,” it added.
The law was passed in May 2013 in response to public outrage over the death of Parsons a month earlier. Parsons was 17 when she taken off life-support after attempting suicide.
Her case attracted national attention when her family alleged she had been sexually assaulted in November 2011 at the age of 15 and then bullied after a digital photo of the alleged assault was passed around her school.
N.S. Supreme Court Justice Glen McDougall rules the Cyber-Safety Act is unconstitutional
Page 28 General does not assert that the facts stated therein are true, only that the Report discloses what was in the Legislature’s mind when it drafted the
Cyber-safety Act
. I find the Task Force Report is admissible for this purpose.
Issue 1: Does the
Cyber-safety Act
violate s. 2(b) of the
Charter
?
[97]
Section 2(b) of the
Charter
states:
2. Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; …
[98]
Mr. Snell argues that the definition of “cyberbullying” in s. 3(1)(b) of the
Act
, and the procedures for obtaining a protection order set out in Part I of the
Act
, infringe upon the fundamental freedom of expression protected under s. 2(b) of the
Charter
. [99]
The burden of establishing that the
Act
is
prima facie
unconstitutional
rests with the person challenging its constitutionality:
R. v. Collins
, [1987] 1 S.C.R. 265 at paras. 21-22. If Mr. Snell succeeds in this regard, the burden shifts to the Attorney General to show the infringement is justified under s. 1 of the
Charter
. [100]
In
Irwin Toy
,
supra
, and
R. v. Keegstra
, [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131 at paras. 29-31 [
Keegstra
], the Supreme Court of Canada adopted a two-step inquiry to determine whether freedom of expression is infringed. The first step involves determining whether the activity in question falls within the sphere of conduct protected by freedom of expression. If it does, the second step is to determine whether the purpose or effect of the government action is to restrict the expressive activity.
Is the expression protected by s. 2(b)?
[101]
The Attorney General says that the impugned provisions do not violate s. 2(b) of the
Charter
because communications that come within the definition of “cyberbullying” are, due to their malicious and hurtful nature, low-value communications that do not accord with the values sought to be protected under s.
Page 29 2(b). The Respondent submits that the nature of the expression and its proximity to the core of the
Charter
values are not relevant at this stage. [102]
The Supreme Court of Canada in
Irwin Toy
,
supra
, affirmed that any activity that conveys or attempts to convey meaning is constitutionally protected expressive activity: “all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream” are deserving of
Charter
protection (para. 41). The only type of expression that receives no
Charter
protection is violent expression:
ibid.
at para. 42;
R. v. Khawaja
, 2012 SCC 69, [2012] S.C.J. No. 69 at paras. 67-71. Indeed, hate propaganda, defamatory libel, and publishing false news have all been found to fall within the ambit of s. 2(b):
Keegstra
,
supra
;
R. v. Lucas
, [1998] 1 S.C.R. 439, [1998] S.C.J. No. 28 [
Lucas
];
R. v.
Zundel
, [1992] 2 S.C.R. 731, [1992] S.C.J. No. 70. [103]
The Supreme Court of Canada elaborated on this principle in
Ross v. New Brunswick School District No. 15
, [1996] 1 S.C.R. 825, [1996] S.C.J. No. 40:
60 Apart from those rare cases where expression is communicated in a physically violent manner, this Court has held that so long as an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee of freedom of expression; see
Irwin Toy
,
supra
, at p. 969. The scope of constitutional protection of expression is, therefore, very broad. It is not restricted to views shared or accepted by the majority, nor to truthful opinions. Rather, freedom of expression serves to protect the right of the minority to express its view, however unpopular such views may be; see
Zundel
,
supra
, at p. 753. The wide ambit of s. 2(b) is underscored by the following passage from McLachlin J.’s reasons in that case, at pp. 752-53: 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 regard as wrong or false:
Irwin Toy
,
supra
, at p. 968. Tests of free expression frequently involve a contest between the majoritarian view of what is true or right and an unpopular minority view. As Holmes J. stated over sixty years ago, the fact that the particular content of a person’s speech might “excite popular prejudice” is no reason to deny it protection for “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate”:
United States v. Schwimmer
, 279 U.S. 644 (1929), at pp. 654-55.
[104]
Some types of expression will, of course, lie closer to the core of freedom of expression than others. The Supreme Court of Canada in
Ford v. Quebec (Attorney
Page 30
General)
, [1988] 2 S.C.R. 712, [1988] S.C.J. No. 88, identified the three core values underlying freedom of expression: individual self-fulfillment, truth attainment, and political discourse. The Court went on to state at para. 57:
While these attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of the Canadian Charter and the Quebec Charter. These are two distinct questions and call for two distinct analytical processes. [Emphasis added]
[105]
Errol Mendes and Stéphane Beaulac in
Canadian Charter of Rights and Freedoms
, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2013) at 435, state their belief that the Court’s findings in
Ford
reflect well the structure of analysis that has been adopted in freedom of expression cases. They note that although the Supreme Court of Canada recognizes and embraces the distinction between high- and low-value expression, the former being expression that lies closer to the core values, the distinction is relevant “not in the determination of whether the activity is protected expression, but in the determination of whether a governmental interference is justified” (at 435). [106]
I find this approach to be the correct one. At this step of the analysis, we must ask whether the conduct in question—in this case, cyberbullying as that term is defined in the
Act
—is expressive, i.e. does it involve conduct that conveys or attempts to convey meaning. I find that it does. To the extent that cyberbullying falls short of violence or threats of violence, it is within the sphere of conduct protected by s. 2(b).
Does the purpose or effect of the legislation restrict the applicant’s freedom of expression?
[107]
The second step of the s. 2(b) analysis requires me to consider whether the purpose or effect of the government activity is to restrict the expressive activity in question.
Page 31 [108]
The Supreme Court of Canada in
Irwin Toy
held if the government’s purpose is to restrict: (a) the content of expression by singling out particular meanings that are not to be conveyed; (b) a form of expression in order to control access by others to the meaning being conveyed; or (c) one’s ability to convey meaning, the government “necessarily limits the guarantee of free expression”. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, for example a prohibition against littering, the purpose is not to control expression:
Irwin Toy
,
supra
at para. 49. [109]
Even if the government’s
purpose
is not to control or restrict expression, the court must still decide whether the legislation nonetheless has this
effect
. If the applicant can demonstrate that the legislation has the effect of controlling or restricting expression that promotes at least one of the core values underlying freedom of expression, the applicant will have succeeded in showing that s. 2(b) is engaged:
ibid.
at paras. 52-53. In this regard, the value of the expression can be relevant at the second step of the s. 2(b) analysis. The Supreme Court of Canada in
Irwin Toy
,
supra
at para. 53, put it this way:
53 We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In showing that the effect of the government’s action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. [Emphasis added]
Page 32 [110]
Thus, it is only in the case of content-neutral laws that might, in their effect, restrict free expression, that the applicant must demonstrate that the expressive activity promotes or reflects at least one of the principles underlying the guarantee: Mendes & Beaulac,
supra
at 437-38. Mendes & Beaulac go on to explain that although this second inquiry shifts the burden of proof to
Charter
claimants, the threshold will not typically be a burdensome one (at 438):
Though this second inquiry shifts the burden of proof to Charter claimants, it might not be thought of as burdensome in many cases. Just as “all expressions of the heart and mind, however unpopular or distasteful” … will qualify for protection under section 2(b), it often should not be too difficult to show that he activity promotes one of the underlying values (438).
[111]
Applying these principles to the Cyber-safety Act, I must first consider whether the purpose of the
Act
is to restrict expression. The purpose of the
Act
is set out at s. 2:
2 The purpose of this Act is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.
[112]
Prevention of cyberbullying is a purpose that aims to restrict the content of expression by singling out particular meanings that are not to be conveyed, i.e. communication 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. Therefore, the purpose of the
Act
is to control or restrict expression. [113]
It is not necessary for me to consider whether the
Act
also has the effect of restricting expression that promotes at least one of the core freedom of expression values, although I find that it does. [114]
The Attorney General submits that the effect of the
Act
is to limit harmful expression only after review by a Justice of the Peace or a Justice of the Supreme Court, and only upon issuance of a protection order. This is not, the Attorney General says, the type of effect which is contrary to the
Charter
. The Attorney General further submits that the type of speech in question is far removed from the core values, because it is nothing more than malicious personal attacks on an ex- business partner with the intention of harming him. The Attorney General argues that if the communications in question are harmful to Mr. Crouch, that type of expression is far removed from the core values sought to be protected by s. 2(b). The Attorney General likens the communication to defamation or hate speech, and
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