Lawyer plans charter challenge to Nova Scotia’s anti-cyberbullying law

It is so broad, says David Fraser who acted for a client in a case, that “essentially anything you do that hurts somebody’s feelings online in Nova Scotia is cyberbullying.”

Thestar.com
Aug. 20, 2015
By Keith Boucette

A groundbreaking anti-cyberbullying law passed a matter of weeks after Rehtaeh Parsons’ death could face its first serious charter test in a Halifax courtroom Friday.

Lawyer David Fraser is awaiting two decisions from a Supreme Court of Nova Scotia justice: one to determine whether messages between his client and a former business partner should be considered cyberbullying.

The next decision will determine whether Fraser can launch his argument that the provincial Cyber-safety Act is unconstitutional under the Canadian Charter of Rights and Freedoms.

“The problem is the legislation is so broad that essentially anything you do that hurts somebody’s feelings online in Nova Scotia is cyberbullying,” said Fraser, who has been an outspoken critic of the law.

Justice Glen MacDougall is expected to rule on whether Fraser’s client, Robert Snell, cyberbullied Giles Crouch when the two got into a dispute. Crouch sought a cyber safety protection order against Snell last December that prevents Snell from communicating with Crouch.

Fraser said he sees the Nova Scotia law “as an unreasonable and unjustified infringement of freedom of expression rights under the charter.”

“We don’t think that what took place could reasonably be understood to be cyberbullying,” Fraser said of his client’s case.

Once the judge has ruled on whether Snell has engaged in cyberbullying, Fraser said it’s expected he’ll rule on whether to entertain the Charter challenge of the law.

Fraser said the province, which is defending the law, contends the challenge won’t be necessary if the judge rules no cyberbullying occurred.

The law was passed in May 2013 by the province’s former NDP government in response to public furor around the handling of the Parsons case.

The teen’s family alleges Parsons was sexually assaulted in November 2011 and bullied for months when a digital photo of the assault was passed around her school. She died after attempting suicide in April 2013.

Parsons’ death also acted as a catalyst for the federal government, which changed the Criminal Code to make it illegal to distribute intimate images without consent.

The provincial act defines cyberbullying as any electronic communication “that ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another persons health, emotional well being, self-esteem or reputation.”

Fraser said he will argue the law fails to take into account such things as the vulnerability of the victim and whether or not there was a prior relationship, the nature of the relationship, or whether the statements made are truthful or could be considered fair comment.

He also blames the speed with which the legislation was passed for the charter oversights and says that will be part of his argument in court.

The bill was introduced April 25, 2013, and was passed just over two weeks later on May 10.

Dalhousie University law professor Wayne MacKay, who led a task force ordered by the province after Parsons’ death, said the definition of cyberbullying in the law is essentially like the one in his report, although he had no hand in crafting the legislation.

MacKay said the law is broad and does limit free speech, but he believes it is an effective one that could perhaps stand a few legal tweaks.

“I think it would be really unfortunate if the whole law were struck down,” said MacKay.

He believes the question will be whether there is room for interpretation in applying the law in a way that properly balances the harm caused by cyberbullying and the limitations placed on free speech.

“I conclude that it (the law) does, although it is a tight call I’ve got to admit,” said MacKay.