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Nova Scotia’s proposed anti-cyberbullying bill creates access problems: experts

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WATCH: A new Nova Scotia law replacing anti-cyberbullying legislation struck down in the courts two years ago appears to be moving forward unchanged. As Marieke Walsh explains, that isn’t receiving a warm welcome from experts – Oct 23, 2017

A new Nova Scotia law replacing anti-cyberbullying legislation struck down in the courts two years ago appears to be moving forward unchanged, despite concerns from legal experts who say it will be costly and difficult for victims to use.

The governing Liberals pushed the proposed Intimate Images and Cyber-protection Act through the law amendments process Monday, despite previous assurances they would take their time and likely wouldn’t pass the bill until the spring.

Wayne MacKay, a Dalhousie University law professor, told reporters he was disappointed the bill was being sent back to the legislature without changes.

“I think there were and are some relatively friendly and simple amendments that could further promote the stated purposed of the act,” he said.

READ MORE: Privacy lawyer says Nova Scotia’s new cyber safety bill is a barrier for victims

The Liberals voted down Progressive Conservative amendments and an NDP motion to send the bill back to the Justice Department for more deliberation.

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MacKay was the only person to appear before the committee on Monday. Only a handful of presenters appeared before the committee during its initial hearing on the bill last Monday.

“I’m quite surprised that there’s not a long lineup of people given the importance of this bill,” MacKay told the committee.

MacKay said the bill is “too cautious” on the role of the province’s CyberSCAN unit.

Created by the old law, the unit could act on behalf of victims by pursuing their cases in court. But MacKay said the new law would “neuter” the unit and give it simply an advisory function that would leave many victims unprotected and unable to navigate the court system or bear the costs involved.

WATCH: New Nova Scotia anti-cyberbullying law tabled

Click to play video: 'New Nova Scotia anti-cyberbullying law tabled' New Nova Scotia anti-cyberbullying law tabled
New Nova Scotia anti-cyberbullying law tabled – Oct 5, 2017

MacKay, who chaired the province’s task force on cyberbullying, speculated the “omission” was made to avoid a violation of the Charter of Rights and Freedoms, something he said isn’t necessary as the law is written.

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“I don’t think there is sufficient power left in the agency (CyberSCAN) and that’s particularly important in terms of access to justice,” he said.

MacKay suggested reinstating an investigative or initiation role for the unit.

When the legislation was presented earlier this month, Justice Minister Mark Furey said it would cover cases involving cyberbullying and the distribution of images without consent. The bill redefines cyberbullying as an electronic action that is “maliciously intended to cause harm”‘ or as an action carried out in a reckless manner “with regard to the risk of harm.”‘

The previous law was passed in 2013 as part of the response to the death of 17-year-old Rehtaeh Parsons, a Halifax-area girl who was bullied and died following a suicide attempt.

In a written submission, lawyer David Fraser, who successfully argued the court case against the previous law, said he expects it would cost $10,000 for him to represent an applicant under the new process.

Fraser called that “daunting,” and said there should be a less formal approach, such as a peace bond, that allows victims to go to court.

Forcing a victim of cyberbullying to start a conventional lawsuit will represent a “huge barrier to access to justice,” he said.

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“What’s equally daunting is the prospect of a traumatized cyberbullying victim having to find, understand and precisely follow the Civil Procedure Rules,” said Fraser. “That greatly troubles me and I think should trouble you.”

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