Two years later, Cyber Safety Act, written after the death of Rehtaeh Parsons, is criticized for being too broad and praised for being effective
HALIFAX—An overwhelming majority of complaints filed under Nova Scotia’s anti-cyber-bullying law have been resolved out of court, proof that the law is working, supporters of the legislation say.
Two years after it was passed in April 2013, the bill still faces criticism from legal experts who say it threatens freedom of expression.
The legislation is the first of its kind in Canada.
Two challenges aimed at striking down the controversial law are before the courts, and, in a separate case, an order under the Cyber Safety Act was overturned by the Nova Scotia Supreme Court on grounds it violated charter rights.
But a member of Nova Scotia’s CyberScan unit, established under the act to crack down on cyber-bullying, said there is a side of the law the public doesn’t hear about as much.
Of the 559 complaints of cyber-bullying filed with CyberScan, only two have proceeded to court, with the rest resolved through informal negotiations, said Dana Bowden, one of the five investigators with the unit.
“We’ve had a great deal of success,” Bowden said. Bowden said the unit’s goal is to educate and resolve rather than be punitive.
“I think once you’re able to speak with individuals and they have an understanding of the fact that there is a law in Nova Scotia around cyber-bullying, and how that law works . . . people seem to be getting that message.”
Under the act, people who say they have been victims of cyber-bullying can also bypass the CyberScan unit and apply to a justice of the peace for a protection order. Fewer than 10 protection orders have been issued since the law’s creation in 2013.
One of those was revoked in March, in the case of Debert businessman Jonathan Baha’i, who was accused of posting defamatory information online about his former landlord Anton Self. A judge originally issued a one-year protection order, which included a ban on Baha’i communicating with or about Self, in November 2014.
Lawyer and privacy expert David Fraser, an outspoken critic of the act, said such orders violate the right to free speech.
“Anything that limits what you can or do say on its face infringes section 2B of the charter,” said Fraser, who represents the complainants in the two current court challenges.
Fraser said the legislation, written less than three weeks after the death of Rehtaeh Parsons, was done so in haste.
“My concern with the legislation is that it’s so grotesquely over-broad. It captures a whole lot of stuff that you or I would not even consider to be cyber-bullying.”
Judge Gerald Moir made similar comments when he revoked the protection order on Baha’i in the Supreme Court.
“A neighbour who calls to warn that smoke is coming from your upstairs windows causes fear. A lawyer who sends a demand letter by fax or e-mail causes intimidation,” Moir said in his ruling.
“Each is a cyber-bully according to the literal meaning of the definitions (of the law), no matter the good intentions of the neighbour, (or) the just demand of the lawyer.”
Fraser said it irks him that the judge had to go to such lengths to interpret the legislation.
“The fact that a judge has to essentially rewrite a key part of the law in order to make it make sense, in the context of what it’s intended to do — that tells me that the legislature did not do a good enough job in being clear about what it was trying to do,” he said.
But Wayne MacKay, a professor in human rights law at Dalhousie University, doesn’t see the judge’s comments as condemnations of the act.
“Some would certainly argue that the definition of cyber-bullying itself may be too broad,” said MacKay, who chaired the cyber-bullying task force ordered by the government after Parsons died.
“But another way — and that’s what happened in this case — is to say, ‘Well, we’ll take it on a case-by-case basis.’ ”
There are a couple of things MacKay said he would change about the act: having different standards for adults, as opposed to youth, and giving accused cyber-bullies the chance to defend themselves before a case reaches court.
But overall, MacKay thinks the legislation is doing its job.
“I think the act is a necessary and positive addition to giving victims some remedies they didn’t have before.”
Article posted Fri May 01 2015 Posted by Leah Collins Lipsett The Canadian Press — Follow @leahgcl on Twitter
Section Two of the Canadian Charter of Rights and Freedoms
Section 2 of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada that lists what the Charter calls “fundamental freedoms” theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and freedom of association.
Section 1 of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by the notwithstanding clause of the Charter.
As a part of the Charter and of the larger Constitution Act, 1982, section 2 took legal effect on April 17, 1982. Many of its rights, however, have roots in Canada in the 1960 Canadian Bill of Rights (although this law was of limited effectiveness), and in traditions under a theorized Implied Bill of Rights. Many of the freedoms, such as freedom of expression, have also been at the centre of federalism disputes.