Judge strikes down cyberbullying law inspired by Rehtaeh Parsons

HALIFAX -- 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.

There was no word from the province whether it will appeal the decision.

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."

In his argument to the court, Fraser 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.

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.

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."

McDougall concluded the definition was overly broad and he went on to conclude the act provides no guidance on how to determine if there are reasonable grounds to believe an accused will engage in cyberbullying in the future.

"The act provides no standard so as to avoid arbitrary decision-making," McDougall's decision says.

McDougall found the law is 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.

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.HALIFAX -- 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.