Striking Down The Nova Scotia Cyber-Safety Act: The 10 Most Interesting Things About Crouch v Snell

Nova Scotia's Cyber-safety Act1 is no more, after a successful Charter challenge to the legislation. In Crouch v Snell, 2015 NSSC 340, Justice McDougall of the Supreme Court of Nova Scotia found the entire statute—enacted in 2013 as a way to address cyberbullying—to be unconstitutional, and struck it down with immediate effect. This post provides a top-10 list of stand-out points from the decision.

The facts were not necessarily a 'typical' cyberbullying scenario. Rather, the case stemmed from a business relationship that went sour (ironically enough, the business was about helping "clients to better understand and use social media": see paras 17, 24). The Applicant, Crouch, applied for and received an ex parte "protection order" under the Act (a) to prevent his former business partner, the Respondent Snell, from cyberbullying him, and communicating with or about him in any way, and (b) to require the Respondent to remove any direct or indirect comments he'd made about the Applicant on social media sites (para 23). Both parties had been writing vague and not-so-vague posts about each other on their social media, although Snell's posts seemed to be more prolific (detailed at paras 28-66). The Court would have upheld the protection order on the facts. Applying the legislation on the assumption it was constitutional, Justice McDougall "re-confirmed" the protection order that was initially issued by a justice of the peace and then confirmed on review by the Supreme Court (paras 2-3, 16, 81). After some procedural wrangling, he considered this issue first; as the Attorney General pointed out, the Charter challenge could have been moot if the protection order was revoked (para 15). A report on cyberbullying was admissible to help prove the legislative history and purpose of the Cyber-safety Act, not for the truth of its contents. Professor Wayne MacKay's 2012 report on behalf of the Nova Scotia Task Force on Bullying and Cyberbullying, called Respectful and Responsible Relationships: There's No App for That, was a catalyst for the Cyber-safety Act (see para 69). The Attorney General was permitted to rely on the Report in support of its position that the Act was constitutional and based on sound objectives (paras 91, 94, 96). Because of this limited use, the Report did not have to be admitted for the truth of its contents under the public documents exception to the rule against hearsay (see paras 84-96 for an interesting discussion on this issue)...