Nova Scotia judge reserves decision on law inspired by Rehtaeh Parsons

Arguments have now concluded about the constitutionality of Nova Scotia's ground-breaking legislation designed to combat cyberbullying.

After a day and a half of arguments from lawyers, Justice Glen MacDougall reserved his decision to a later date.

Privacy lawyer David Fraser brought the Charter challenge to the Nova Scotia Supreme Court, saying the 2013 provincial statute violates Sections 2b and 7 of the Canadian Charter of Rights and Freedoms.

Those sections pertain to the freedom of expression and the right to life, liberty and the security of person.

"The definition of cyberbullying is too broad and is defective," said Fraser.

He argued in court that any comment made online that could hurt a person's feelings may constitute cyberbullying. That could result in sweeping communication restrictions to the person who made the comments, Fraser argued.

The current legislation, he said, captures everything from political advertising to benign online commentary.

Legislation passed at 2013

"I think that's very problematic, because it actually undermines and damages what is in fact a real problem with real victims," Fraser said.

The legislation was originally written and passed in 2013, three weeks after the death of Rehtaeh Parsons. It was the first statute of its kind, designed in part to fill a gap left between laws governing criminal harassment and civil defamation. 

In defence of the Cyber-Safety Act on behalf of the Attorney General, lawyer Debbie Brown argued the legislation does not infringe on any rights, and that any infringement that does exist is reasonable.

Brown told the court that Freedom of Expression protects three categories of speech:

• Pursuit of truth
• Participation in social or political decision making
• Self-fulfillment

She argued that cyberbullying — in this specific case and in general — rarely falls into any of these three categories. If the speech is not protected by the Charter, the Act should be allowed to stand, Brown said.

Lawyers also tackled a procedural issue.

Court orders issued under the current Act can be enforced "ex parte", meaning without comments from both parties involved.

No date for decision

Victims can request a court order under the act, without the accused being notified. That means the first notice an accused cyber-bully may receive, is a document served by police immediately restricting their online communication.

"If it's not urgent, if it's not an emergency, then it's always better to have both sides giving their story, so that the judge can come to a reasoned conclusion," Fraser said.

Brown argued the current Act could be interpreted to mean courts could choose "inter parte" proceedings and hear from both parties before an order is issued.

A third lawyer, Laura Veniot also defended the value of the current legislation. She said the law provides remedies other legislation does not.

People who find comments written about them online could sue the authors of the comments for defamation, but the Cyber-Safety Act offers a quicker option to begin removing the posts and stop the commentary, Veniot told the court. 

Overall, Fraser argued that the definition of cyberbullying needs to be revamped and rewritten.

"The definition has to be up to the task to capture harmful cyberbullying and to make sure that it doesn't incidentally impair political discourse and other forms of protected expression in this country," he said.

Justice Glen MacDougall did not give a precise date when he may return with a decision.