A win for free­dom of ex­pres­sion — how­ever dark

The Compass - - EDITORIAL - Rus­sell Wanger­sky Rus­sell Wanger­sky is TC Me­dia’s At­lantic re­gional colum­nist. He can be reached at rus­sell.wanger­sky@tc.tc Twit­ter: @Wanger­sky

Know the say­ing “right church, wrong pew”? Well, a de­ci­sion on cy­ber­bul­ly­ing leg­is­la­tion in Nova Sco­tia is more like “right idea, wrong church, wrong pew, wrong faith, wrong coun­try.”

That’s be­cause the law, Nova Sco­tia’s Cy­ber-Safety Act, 2013, ran com­pletely aground on the shoals of a case named Crouch vs. Snell, and promptly broke apart — as many in the le­gal com­mu­nity thought it would.

The act was brought in af­ter the highly pub­li­cized case of Re­htaeh Par­sons, a Nova Sco­tia teen who died af­ter at­tempt­ing sui­cide as a re­sult of on­line bul­ly­ing.

Af­ter Re­htaeh’s death, the pub­lic wanted ac­tion and the gov­ern­ment de­liv­ered. Prob­lem was, it was the kind of knee-jerk leg­isla­tive so­lu­tion that rarely ends well. There was lit­tle con­sul­ta­tion, and it was so poorly con- ceived that, when a Nova Sco­tia Supreme Court judge held the law to be a vi­o­la­tion of the Cana­dian Char­ter of Rights and Free­doms, Jus­tice Glen G. McDougall didn’t even give the gov­ern­ment a time­frame to fix the prob­lem.

He just tossed the law out com­pletely. (You can read his de­ci­sion at http://bit.ly/1NL3mAO.)

It’s no sur­prise the Nova Sco­tia gov­ern­ment strug­gled with the leg­is­la­tion. When free­dom of ex­pres­sion was en­shrined in the Con­sti­tu­tion in 1982, cy­ber­bul­ly­ing didn’t ex­ist, and free­dom of ex­pres­sion cases were gen­er­ally fought over is­sues of what teach­ers were offering in the class­room, or else the prod­ucts of news­pa­per cov­er­age or pam­phle­teers.

The tools didn’t ex­ist to make your own views — how­ever hate­ful or petty — in­stantly, con­stantly, widely and pub­licly known. The world changed. The Char­ter’s still the same: sec­tion 2 says “Ev­ery­one has the fol­low­ing fun­da­men­tal free­doms: ... (b) free­dom of thought, be­lief, opin­ion and ex­pres­sion, in­clud­ing free­dom of the press and other me­dia of com­mu­ni­ca­tion.”

The In­ter­net is pre­cisely an “other me­dia of com­mu­ni­ca­tion.”

Crouch vs. Snell is an in­ter­est­ing case to have fought the leg­is­la­tion over, though. It’s es­sen­tially a feud be­tween two for­mer busi­ness part­ners slang­ing each other over so­cial me­dia — the fight was pri­mar­ily (al­though not al­ways) one-way, and fea­tured ev­ery­thing from pub­lic, though neb­u­lous, per­sonal at­tacks to anony­mous email mis­sives.

Giles Crouch felt at­tacked, and wanted his for­mer busi­ness part­ner, Robert (Bruce) Snell, to stop.

Crouch got a pro­tec­tion or­der stop­ping the at­tacks from a jus­tice of the peace, and that or­der was later con­firmed by a judge of the Supreme Court. In­ter­est­ingly Judge McDougall would have con­firmed the pro­tec­tion or­der as well — if he had agreed the law wasn’t a vi­o­la­tion of the Char­ter.

McDougall found that “Preven­tion of cy­ber­bul­ly­ing is a pur­pose that aims to re­strict the con­tent of ex­pres­sion by sin­gling out par­tic­u­lar mean­ings that are not to be con­veyed, i.e. 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. There­fore, the pur­pose of the Act is to con­trol or re­strict ex­pres­sion.”

McDougall also found that the law vi­o­lated sec­tion 7 of the Char­ter, be­cause it could put in­di­vid­u­als in prison with­out due and fair process. The bot­tom line? Nasty lit­tle fights, even on­line, can stay, un­less they stray into li­bel and defama­tion — then, there are other tools.

But if there are tools for stop­ping on­line bul­ly­ing, gov­ern­ments haven’t found them yet.

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