Halifax lawyer to launch charter case challenge of Cyber-Safety Act
A Halifax lawyer is getting ready to challenge the Cyber-Safety Act in a Nova Scotia courtroom next week.
David Fraser, an Internet privacy lawyer with McInnes Cooper in Halifax says the law violates Canadian freedom of expression as guaranteed by the Charter of Rights and Freedoms.
"The law is so broad that it includes anything that is done electronically that could hurt somebody's self-esteem, that could harm their reputation and it doesn't matter whether it's true or not," Fraser said.
Fraser is currently representing a client who is being charged under the Cyber-Safety Act after posting on social media about a former business partner.
The business partner alleged cyber bullying and obtained a Cyber-Safety order from a justice of the peace. Fraser says his client's actions are not cyber bullying under the legislation and the order should never have been issued in the first place.
Act "jammed" through legislature
"We're also arguing that the cyber bullying legislation, if it's applied in a case like this, is actually not constitutional. it's contrary to the freedom of expression guaranteed in the charter that allows you to say whatever you want to say, subject to reasonable limitations imposed by law."
The Cyber-Safety Act was passed in 2013 by the NDP government after the highly-publicized case of Rehtaeh Parsons.
"Politicians, very often, rather than accept any blame that somehow, something had gone wrong on their watch, they always point to, there must be a problem with the law, we have to fix the law," he said.
Fraser says the law was written in a very short amount of time and "jammed" through the legislature with very little debate.
"All the political parties sort of stood up and saluted it because nobody wanted to have the appearance of being on the side of the cyberbullies," he said.
More nuanced
Fraser says politicians and public figures don't need the sweeping protection allowed under the Cyber-Safety Act and points to the case of Lenore Zann, who alleged cyberbullying after ahigh school student tweeted nude screen grab of the former actress and demanded the tweets be removed.
Fraser says the law could also apply to people who say things online that are critical of politicians.
In a courtroom on Friday, a judge will issue his decision on whether or not the Cyber-Safety order, as the law is written, should be issued in the case of Fraser's client. If the judge says the order should not be issued, Fraser will argue the judge should go a step further and also consider the charter.
If the judge decides the order should be issued, Fraser will be given the opportunity to challenge the legislation.
Fraser says he believes in the need for the law but he says it needs to be more clearly defined.
"I think the law needs to be much more nuanced about what is said, what is the reason why it's said, whether it's justifiable in the circumstances, and I think it should also take into account any particular vulnerabilities of the complainant, particularly those that are known by the person who is accused of being a cyberbully."
