Crouch v. Snell, (2015) 367 N.S.R.(2d) 357 (SC)

• Judge: McDougall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 10, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 367 N.S.R.(2d) 357 (SC);2015 NSSC 340

Crouch v. Snell (2015), 367 N.S.R.(2d) 357 (SC);

    1157 A.P.R. 357

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.032

Giles W. Crouch (applicant) v. Robert (Bruce) Snell (respondent)

(Hfx. No. 434423; 2015 NSSC 340)

Indexed As: Crouch v. Snell

Nova Scotia Supreme Court

McDougall, J.

December 10, 2015.

Summary:

A Justice of the Peace granted Crouch a cyberbullying protection order against Snell under the Cyber-safety Act. Snell and Crouch were former business partners. Snell was allegedly engaged in a "smear campaign" against Crouch on social media. The order was confirmed on review and Snell filed a request for a hearing under s. 13(1) of the Act. Snell challenged the constitutionality of the Act, alleging that it violated freedom of expression (Charter, s. 2(b)) and his right to life, liberty and security of the person (s. 7).

The Nova Scotia Supreme Court first held that Crouch had engaged in cyberbullying as defined in the Act and it was likely to continue. Assuming that the Act was Charter compliant, the court would have confirmed the protection order, with additional conditions. However, the court held that the Act violated ss. 2(b) and 7 of the Charter and was not a reasonable limit prescribed by law under s. 1. The Act was struck down and the protection order was declared to be a nullity.

Civil Rights - Topic 659.2

Liberty - Limitations on - Cyberbullying legislation - [See Civil Rights - Topic 1843.4 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 1843.4 ].

Civil Rights - Topic 1843.4

Freedom of speech or expression - Limitations on - Postings on social networking websites (incl. cyberbullying legislation) - The stated purpose of the Cyber-safety Act (s. 2) was to create administrative and court processes to address and prevent cyberbullying - The Act defined "cyberbullying" as "any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] 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, and includes assisting or encouraging such communication in any way" - The Act provided for an ex parte protection order, an automatic review, and the right of the respondent to have the order reviewed - The Nova Scotia Supreme Court held that the Act had both the purpose and effect of controlling or preventing freedom of expression, thereby violating s. 2(b) of the Charter - Since a possible consequence of non-compliance with a protection order was imprisonment, the Act also violated the s. 7 Charter right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice - The Act was not saved as a reasonable limit prescribed by law (s. 1) - Although the definition of cyberbullying was not void for vagueness, it was overly broad - Section 8 of the Act required reasonable grounds to believe in future cyberbullying, but provided no guidance on what evidence and considerations were relevant - There was no intelligible standard to avoid arbitrary and discriminatory applications - There was no "limit prescribed by law" - Although the objectives of the Act were pressing and substantial, the process set out in s. 5(1) of the Act (ex parte orders and subsequent review) was not rationally connected to the legislative objectives and the Act failed the minimal impairment test - The court stated that "the Act restricts both public and private communications. Furthermore, the Act provides no defences, and proof of harm is not required. These factors all culminate in a legislative scheme that infringes on s. 2(b) of the Charter much more than is necessary to meet the legislative objectives. The procedural safeguards, such as automatic review by this Court and the respondent's right to request a hearing, do nothing to address the fact that the definition of cyberbullying is far too broad" - Finally, the Act failed the proportionality test - The court stated that "many types of expression that go to the core of freedom of expression values might be caught in the definition of cyberbullying. These deleterious effects have not been outweighed by the presumed salutary effects." - The entire Act was struck down, as severance was inappropriate - See paragraphs 97 to 221.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1843.4 ].

Evidence - Topic 1700

Hearsay rule - Exceptions and exclusions - Official statements - Reports - A person against whom a cyber-bullying protection order was made under the Cyber-safety Act challenged the constitutionality of the Act, arguing that it violated his freedom of expression (Charter, s. 2(b)) and right to life, liberty and security of the person (s. 7) - The Attorney General of Nova Scotia sought to admit a report of the Nova Scotia Task Force on Bullying and Cyberbullying as evidence of the purpose of the Act - The Nova Scotia Supreme Court held that "In the present case, the Attorney General seeks to rely on the Task Force Report as authority on the legislative history of the Cyber-safety Act. The Attorney General does not assert that the facts stated therein are true, only that the Report discloses what was in the Legislature's mind when it drafted the Cyber-safety Act. I find the Task Force Report is admissible for this purpose." - See paragraphs 84 to 96.

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See Telecommunications - Topic 3602 ].

Statutes - Topic 1642

Interpretation - Extrinsic aids - Legislative history - Evidence and proof - [See Evidence - Topic 1700 ].

Telecommunications - Topic 3601

Internet (World Wide Web) - Cyberbullying - General - The stated purpose of the Cyber-safety Act (s. 2) was to create administrative and court processes to address and prevent cyberbullying - The Act defined "cyberbullying" as "any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] 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, and includes assisting or encouraging such communication in any way" - The Act provided for a protection order to be obtained ex parte, but then provided for notice and a review - The Nova Scotia Supreme Court held that the Act violated ss. 2(b) and 7 of the Charter and was not a reasonable limit prescribed by law under s. 1 - The Act was struck down and the protection order was declared to be a nullity.

Telecommunications - Topic 3602

Internet (World Wide Web) - Cyberbullying - Defined - The Cyber-safety Act defined "cyberbullying" as "any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] 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, and includes assisting or encouraging such communication in any way" - The Nova Scotia Supreme Court opined that cyber-bullying did not require proof of malice - The court stated that "The definition of cyber-bullying set out at s. 3(1)(b) of the Act is an exhaustive statutory definition. The Legislature chose a definition that says '"cyberbullying" means', not '"cyberbullying" includes'. In so doing, the Legislature declared the complete meaning of cyberbullying, and it displaced the ordinary meaning. While the ordinary meaning of cyberbullying might include malice, this ordinary meaning was displaced by the statutory definition." - See paragraphs 74 to 77.

Cases Noticed:

Director of Public Safety (N.S.) v. Lee (2015), 357 N.S.R.(2d) 100; 1127 A.P.R. 100; 2015 NSSC 71, refd to. [para. 68].

Self v. Baha'i (2015), 357 N.S.R.(2d) 108; 1127 A.P.R. 108; 2015 NSSC 94, refd to. [para. 71].

Rasa v. Canada (Minister of Citizenship and Immigration) (2000), 191 F.T.R. 129 (F.C.T.D.), dist. [para. 78].

R. v. Nova Scotia Pharmaceutical Society (No. 2) (1992), 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91 (S.C.C.), dist. [para. 78].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004), 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, dist. [para. 78].

Gay v. Regional Health Authority 7 et al. (2014), 421 N.B.R.(2d) 1; 1094 A.P.R. 1; 2014 NBCA 10, refd to. [para. 84].

Robb Estate et al. v. St. Joseph's Health Care Centre et al. (1998), 87 O.T.C. 241 (Gen. Div.), affd. (2001), 152 O.A.C. 60 (C.A.), refd to. [para. 86].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 91].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 91].

A.B. v. Bragg Communications Inc. et al. (2012), 434 N.R. 323; 322 N.S.R.(2d) 1; 1021 A.P.R. 1; 2012 SCC 46, refd to. [para. 93].

Sweetland et al. v. GlaxoSmithKline Inc. et al. (2014), 347 N.S.R.(2d) 328; 1098 A.P.R. 328; 2014 NSSC 216, dist. [para. 94].

Barton v. Nova Scotia (Attorney General) et al. (2014), 346 N.S.R.(2d) 1; 1095 A.P.R. 1; 2014 NSSC 192, refd to. [para. 95].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 99].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 100].

R. v. Khawaja (M.M.) (2012), 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 102].

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161, refd to. [para. 102].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 16, refd to. [para. 102].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 103].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 104].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 119].

R. v. Sharpe (J.R.) (2001), 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 121].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 121].

Harper v. Canada (Attorney General) (2004), 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 121].

R. v. Morrisette, [1970] S.J. No. 269, refd to. [para. 131].

R. v. Lalo (C.) (2004), 225 N.S.R.(2d) 344; 713 A.P.R. 344; 2004 NSSC 154, refd to. [para. 133].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 145].

Rosenblatt v. Baer (1966), 383 U.S. 75, refd to. [para. 145].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2013), 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 160].

Equustek Solutions Inc. et al. v. Jack et al. (2015), 373 B.C.A.C. 240; 641 W.A.C. 240; 2015 BCCA 265, affing. [2014] B.C.T.C. Uned. 1063; 2014 BCSC 1063, refd to. [para. 171].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1; 2002 SCC 68, refd to. [para. 172].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 178].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 183].

Chaoulli v. Quebec (Attorney General) (2005), 335 N.R. 25; 2005 SCC 35, refd to. [para. 183].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 186].

R. v. Malmo-Levine (D.) et al. (2003), 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 188].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 199].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 204].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 206].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 206].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 210].

Statutes Noticed:

Cyber-safety Act, S.N.S. 2013, c. 2, sect. 2, sect. 3(1), sect. 5, sect. 12, sect. 13(1), sect. 14 [para. 67]; sect. 19 [para. 180].

Counsel:

Barry Mason, Q.C., and Laura Veniot, for Giles Crouch;

Ian Dunbar and David Fraser, for Robert Snell;

Edward Gores, Q.C., and Debbie Brown, for the Attorney General of Nova Scotia.

This application was heard on August 25 and 27, 2015, at Halifax, N.S., before McDougall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on December 10, 2015.