Nova Scotia's proposed anti-cyberbullying bill creates access problems: experts

HALIFAX -- A new Nova Scotia law replacing anti-cyberbullying legislation struck down in the courts two years ago is moving forward unchanged, against the advice of legal experts who say it will be costly and difficult for victims to use.

The governing Liberals pushed the proposed Intimate Images and Cyber-protection Act through the law amendments committee Monday, despite previous assurances they would take their time and likely wouldn't pass the bill until the spring.

Wayne MacKay, a Dalhousie University law professor who was the only person to appear before the committee on Monday, told reporters he was disappointed the bill was being sent back to the legislature without changes.

"I think there were and are some relatively friendly and simple amendments that could further promote the stated purposed of the act," he said.

The Liberals voted down Progressive Conservative amendments and an NDP motion to send the bill back to the Justice Department for more deliberation.

In an interview, Justice Minister Mark Furey said the government had received "great feedback" despite the limited attendance at law amendments. Furey said he wants to consider what he has heard, including amendments advanced by the opposition.

"If there is an opportunity with the support of the opposition and the majority of those who have spoken -- without creating unintended consequences -- there could be an opportunity to pass the bill this fall," he said.

Furey also said he's open to holding off on passage of the bill because he wants to make sure the government "gets it right."

"Our objective is to make this a strong bill that will withstand any future constitutional challenge."

The previous law was passed in 2013 as part of the response to the death of 17-year-old Rehtaeh Parsons, a Halifax-area girl who was bullied and died following a suicide attempt.

When the legislation was presented earlier this month, Furey said it would cover cases involving cyberbullying and the distribution of images without consent. The bill redefines cyberbullying as an electronic action that is "maliciously intended to cause harm"' or as an action carried out in a reckless manner "with regard to the risk of harm."'

MacKay told the committee the bill is "too cautious" on the role of the province's CyberSCAN unit.

Created by the old law, the unit could act on behalf of victims by pursuing their cases in court. But MacKay said the new law would "neuter" the unit and give it simply an advisory function that would leave many victims unprotected and unable to navigate the court system or bear the costs involved.

MacKay, who chaired the province's task force on cyberbullying, speculated the "omission" was made to avoid a violation of the Charter of Rights and Freedoms, something he said isn't necessary as the law is written.

"I don't think there is sufficient power left in the agency (CyberSCAN) and that's particularly important in terms of access to justice, he said. "It's about $300 or $400 just in filing fees just to initiate an action."

MacKay suggested reinstating an investigative or initiation role for the unit.

Furey said access to justice is always a concern, but there are also concerns about CyberSCAN potentially overstepping its authority. He said the unit had been most successful in carrying out its restorative justice function under the old law -- something that wouldn't change with the new.

"They did over 800 investigations," said Furey. "Only 10 of those went to court."

In a written submission, lawyer David Fraser, who successfully argued the court case against the previous law, said he expects it would cost $10,000 for him to represent an applicant under the new process.

Fraser called that "daunting," and said there should be a less formal approach, such as a peace bond, that allows victims to go to court.

Forcing a victim of cyberbullying to start a conventional lawsuit will represent a "huge barrier to access to justice," he said.

"What's equally daunting is the prospect of a traumatized cyberbullying victim having to find, understand and precisely follow the Civil Procedure Rules," said Fraser. "That greatly troubles me and I think should trouble you."