Crouch v Snell or: How Adults Ruined It for the Kids
The tragic suicide of Rahtaeh Parsons as a result of relentless cyber-bullying in 2013 elicited the sympathy and concern of not just Canadians but also the international community. Only three weeks after her death, the Nova Scotia legislature enacted the Cyber-safety Act, SNS 2013, c 2 [CSA]. The CSA aimed to address cyberbullying and was the first standalone act to do so in Canada. This past week, two years after its enactment, the Nova Scotia Supreme Court struck down the law on the grounds that it violated the Charter.
It is a sad reality that many children experience bullying when growing up. Some of us were lucky to grow up at a time when technology could not reach the inside of our homes. And as such, our homes provided a safe haven from bullies. But for today youth, there are no safe havens. The bullying comes directly into one’s home over the internet and it is there to stay. But reactive laws that aim to prevent this kind of bullying may create more problems than they resolve. After less than two years, the Nova Scotia Supreme Court declared the CSA to be in violation of sections 2(b) and 7 of the Charter in Crouch v Snell, 2015 NSSC 340 [Crouch].
Facts: It is Not Just Minors that Need Protection
The facts in Crouch are enough to make anyone cringe—not because the bullying is particularly vicious, but because it involves two people that display a level of indecency unbefitting mature adults. Briefly, Mr. Crouch and Mr. Snell were the founders of a company that specialized in helping governments and organizations utilize social media. When the business relationship went sour in 2014, Mr. Crouch left and the company started performing poorly under Mr. Snell. In the following months, Mr. Snell engaged in online passive-aggressive attacks on Mr. Crouch without mentioning the latter’s name. Though it was Mr. Snell that instigated the online attacks, Mr. Crouch was willing to add fuel to the fire. In the end, Mr. Crouch was granted a Protection Order under the CSA by a justice of the peace. The Protection Order was issued upon application by Mr. Crouch, without notice to Mr. Snell. It instructed Mr. Snell not to communicate with Mr. Crouch and to remove all social media postings that referenced Mr. Crouch directly or indirectly.
Cyber-bullying is defined in section 3(1)(b) of the CSA 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 (emphasis added).
Under sections 5 and 6 of the CSA, the victim could apply to a justice of the peace for a protection order. Under Section 26A(1) of the Safer Communities and Neighbourhoods Act, SNS 2006, c 6 [SCNA], one can also make a complaint to the Director of Public Safety. Section 26B(1) of the SCNA gave the Director discretion to open an investigation, require further information, send a warning letter, request an Internet Service Provider to discontinue service, attempt to resolve the complaint by agreement or informal action, apply for an order under another section of the SCNA, take any other action that the Director considers appropriate, or simply not act at all.
Mr. Snell’s lawyers challenged the law on the grounds that it violated sections 2(b) and 7 of the Charter. The Court relied on the two-part inquiry set out in Irwin Toy v Quebec,  1 SCR 927 [Irwin Toy] to determine if freedom of expression was infringed. Irwin Toy established that courts should look at whether the activity in question falls within the sphere of conduct protected by freedom of expression and whether the purpose or effect of the government action is to restrict the expressive activity (Crouch, para 100). According to Irwin Toy, any activity that conveys or attempts to convey meaning is constitutionally protected expressive activity, including expressions of the heart and mind that might be “unpopular, distasteful or contrary to the mainstream” (Irwin Toy, para 41). The only type of expression that is not protected under the Charter is violent expression (para 41).
Justice McDougall found that cyberbullying as defined in the CSA is expressive in that it involves conduct that conveys or attempts to convey meaning but falls short of threats of violence and as such is within the sphere of conduct protected by section 2(b) of the Charter (Crouch, para 106). In looking at the legislative intent behind the CSA, the court found that the prevention of cyber-bullying is a purpose that aims to restrict the content of expression by singling out particular meanings that are not to be conveyed (para 112).
After he found that the CSA restricts freedom of expression in both purpose and effect, Justice McDougall went on to consider whether the law was saved by section 1 of the Charter. In the first step of the Oakes analysis, Justice McDougall considered whether the limit on expression imposed by the CSA was prescribed by law. This inquiry involved the analysis of whether the legislation provided sufficient guidance to those responsible for considering and reviewing protection orders (para 124). Justice McDougall found that the law itself was not vague. He also found, however, that the requirement that the justice of the peace have reasonable grounds to believe the respondent will engage in cyber-bullying in the future was problematic (paras 128-30). He found that the law did not allow an intelligible standard under which a justice of peace could determine whether the respondent was likely to continue cyberbullying (para 136). On these grounds alone the law could not be saved.
Justice McDougall went on to perform the rest of the Oakes analysis regarding the CSA’s violation of section 2(b). He also engaged in a separate analysis to determine whether the legislation violated section 7 of the Charter. He found that it did, that the law could not be saved, and thus that it must be struck down (para 220). Despite government objections, the CSA was ruled unconstitutional—and so the Nova Scotia government is back to the drawing board. If there is a correct way to deal with cyber-bullies, the CSA was not it.
There were 820 investigations under the CSA, 378 of which involved cyber-bullying between adults. The Nova Scotia legislation aimed to put the issue of cyber-bullying at the forefront of the national debate. Across Canada most of the debate and media attention around cyber-bullying centred on youth of school age, with a lot of pressure put on schools to address the issue. This has also been reflected in the way provincial legislatures have addressed cyber-bullying concerns. In 2012, the Ontario legislature passed amendments to the Ontario Education Act, RSO 1990, c E2 to now include a definition of cyber-bullying. The Ontario definition, in section 18.104.22.168 of the Act, defines bullying to include “bullying by electronic means … including (a) creating a web page or a blog in which the creator assumes the identity of another person; (b) impersonating another person as the author of posted content or messages; and (c) communicating material to more than one person or posting material on an electronic medium that may be accessed by one or more persons.”
The Ontario legislative framework is limited in that it addresses cyber-bullying in the educational context only. The Nova Scotia experience demonstrates a different reality, one where adults are much more likely to report instances of cyber-bullying. Striking the appropriate balance between freedom of expression and the increasingly more prevalent phenomenon of cyber-bullying, however, can be a tricky exercise. Perhaps a better solution would adopt a different standard for young offenders and adult offenders, giving accused cyber-bullies an opportunity to defend themselves and introducing more transparency mechanisms for the investigation stage before it reaches the courts.