Nova Scotia anti-cyberbullying law challenged in Supreme Court

Nova Scotia's anti-cyberbullying law, enacted after the death of Rehtaeh Parsons, faced a constitutional challenge in court as a judge agreed on Tuesday to hear arguments on whether it violates the Charter of Rights and Freedoms.

Supreme Court judge heard arguments that could determine fate of law passed after Rehtaeh Parsons's death

A groundbreaking anti-cyberbullying law passed a matter of weeks after Rehtaeh Parsons's death faces its first serious charter test in a Halifax courtroom this week. (Facebook)

Nova Scotia's anti-cyberbullying law, enacted after the death of Rehtaeh Parsons, faced a constitutional challenge in court as a judge agreed on Tuesday to hear arguments on whether it violates the Charter of Rights and Freedoms.

Halifax lawyer David Fraser asked the Supreme Court of Nova Scotia to hear the charter challenge of the Cyber-safety Act, arguing the legislation is so vague and broad that cyberbullying could be considered anything online that hurts somebody's feelings.

Fraser is representing Robert Snell, who was charged under the act after posting comments on social media about a former business partner, Giles Crouch. Crouch was granted a protection order under the new law, which prevents Snell from communicating with him.

David Fraser, an Internet privacy lawyer with McInnes Cooper in Halifax, says the law violates Canadian freedom of expression as guaranteed by the Charter of Rights and Freedoms. (CBC)

After the judge ruled that Snell had engaged in cyberbullying and the protection order was justified, Fraser told the court the law is an unreasonable and unjustified infringement of freedom of expression rights.

Fraser called the law "a dumpster fire that can only be extinguished by the charter."

"Thou shall not hurt anyone's feelings online," Fraser said of the act's current parameters. "There is no connection between the objective of the act and the incredibly broad definitions used to accomplish that objective." 

Charter violations argued

While the Cyber-safety Act may be useful "in circumstances of urgency or great risk," Fraser says it violates two sections of the charter:

  • Section 2b: Everyone has "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
  • Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." 

Fraser said these violations can lead to sweeping restrictions that can infringe on a person's freedom of speech.

"Twitter has become the premiere forum for democratic debate. The cyberbullying legislation limits this political discourse," he said. 

In defence of the act

The cyberbullying legislation was written in the weeks following the death of Parsons in April 2013, which Fraser says was a very emotional time for the whole province. Parsons's family alleges she was sexually assaulted and bullied after a photo of the assault was passed around to fellow students. 

The law was passed in May 2013 by the former New Democratic government in response to public outrage regarding the case.

Crown attorney Debbie Brown, appearing on behalf of Nova Scotia's attorney general, defended the act on Tuesday. She said given the nature of cyberbullying and how quickly messages can spread online, it's necessary to protect a complainant against potential retaliation from a bully by allowing the victim to seek an order against their tormentor before a justice of the peace without giving notice.

Brown said it was difficult to get a court order before the law existed, adding there was a public petition with 300,000 names calling for new legislation.

"The definition [of cyberbullying], while broad, is not overly broad," Brown argued. 

The case was adjourned until Thursday when the Crown is expected to conclude its arguments before Judge Glen MacDougall.

With files from The Canadian Press