Crouch v. Snell, 2015 NSSC 340

Supreme Court of Nova Scotia Citation: Crouch v. Snell , 2015 NSSC 340 Date: 20151210 Docket: Hfx No. 434423 Registry: Halifax Between: Giles W. Crouch v. Robert (Bruce) Snell Library Heading Judge: The Honourable Justice Glen G. McDougall Heard: August 25 & 27, 2015 in Halifax, Nova Scotia Written Decision: December XX, 2015 Subject: Cyber-safety Act , S.N.S. 2013, c. 2; Protection Order Application pursuant to s. 5(1); Review of order pursuant to s. 13(1); Constitutional challenge based on s. 2(b) – Freedom of expression and s. 7 – Life, liberty and security of the person.

Summary: Former business partners became entangled in internet exchanges that amounted to cyber-bulling based on the definition of the conduct as set out in the Cyber-safety Act . A review of the impugned conduct in light of the Charter resulted in the Protection Order being declared a nullity after the legislation was deemed unconstitutional for infringing s. 2 (

b) and s. 7 of the Charter . Issue: 1. Does the Cyber-safety Act infringe s. 2 (

b) of the Charter , and if so, is this infringement saved by s. 1 ? 2. Does the Cyber-safety Act infringe s. 7 of the Charter , and if so, is this infringement saved by s. 1 ? 3. If necessary, what is the appropriate remedy? Result: The Cyber-safety Act is found to be unconstitutional based on s. 2 (

b) and s. 7 infringements.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Crouch v. Snell , 2015 NSSC 340 Date: 20151210 Docket: Hfx No. 434423 Registry: Halifax Between: Giles W. Crouch v. Robert (Bruce) Snell D E C I S I O N

Judge: The Honourable Justice Glen G. McDougall Heard: August 25 & 27, 2015, in Halifax, Nova Scotia Counsel: Barry Mason, Q.C. and Laura Veniot, Esq., for Giles Crouch Ian Dunbar, Esq. and David Fraser, Esq., for Robert Snell Edward Gores, Q.C. and Debbie Brown, Esq., for the Attorney General of Nova Scotia By the Court: McDougall, J. Consider: [ 1 ] Giles Crouch (the "Applicant" or "Mr. Crouch") applied for a protection order under s. 5(1) of the Cyber-safety Act , S.N.S. 2013, c. 2 (the " Act ").

The application was filed on December 8, 2014. [ 2 ] The protection order was granted by a Justice of the Peace on December 11, 2014 (the "Protection Order"). In compliance with ss. 11(1) and 12(1) of the Act , the Protection Order was served on the respondent, Robert (Bruce) Snell (the "Respondent" or "Mr. Snell"), and was forwarded to the Supreme Court of Nova Scotia for review. Procedural History in the Supreme Court of Nova Scotia: [ 3 ] On December 17, 2014, a judge of this Court reviewed, then confirmed, the Protection Order.

That same day, the Respondent filed a request for a hearing under s. 13(1) of the Act . [ 4 ] The matter first came before me on January 6, 2015. In order to give counsel for Mr. Snell time to file a notice of contest and to provide notice to the Attorney General of Nova Scotia (the “Attorney General”) of a constitutional challenge to s. 3(

b) and

Part I of the Act , and also to allow time for Mr. Crouch to retain legal counsel, a motion for directions was set for January 12, 2015. [ 5 ] A notice of constitutional issue was filed on the Respondent’s behalf on January 7, 2015, followed by a notice of contest filed on January 20, 2015. [ 6 ] The motion for directions was heard on the assigned date.

By then both parties were represented by legal counsel, and the Attorney General, after having received the notice of constitutional question, had arranged to have her agent attend. [ 7 ] In addition to setting aside two days to hear the application to decide the merits of the Protection Order and to determine the constitutional validity of certain aspects of the Act , deadlines were set for filing and for other necessary pre-hearing procedural steps. [ 8 ] During the motion for directions, counsel for Mr. Crouch raised a concern regarding the ability of Mr. Snell's counsel to continue to represent Mr.

Snell due to conflict of interest. The court left this issue with counsel for further discussion. If the issue could not be resolved then it was left to counsel for Mr. Crouch to bring a motion before the assigned hearing judge prior to the hearing of the application. [ 9 ] On April 29, 2015, Mr. Crouch filed a motion for an order to have Mr. Snell's counsel—specifically Mr. David Fraser and Ms. Jane O’Neill as well as any other lawyer at McInnes Cooper—removed due to conflict of interest.

This was only three weeks prior to the beginning of the hearing of the application, set to begin on May 20, 2015. [ 10 ] Given the tight timeframes and the deadlines that had been previously set for filing briefs, counsel for the Attorney General requested an adjournment of the hearing of the application together with a request to set a new deadline for filing his brief. The requests were granted. [ 11 ] The original dates for the hearing of the application were used to hear the motion for disqualification. After hearing the submissions of Mr. Mason on behalf of Mr. Crouch and Mr.

Charles Ford who had been retained to represent Mr. Snell for purposes of this motion, the Court reserved its ruling first to May 26, 2015, and then to June 5, 2015. The motion to disqualify counsel was denied. [ 12 ] The hearing of the application countenanced by s. 13 of the Act was set for two days commencing on June 29, 2015. Affidavits sworn by each of the parties were filed. In addition, the Respondent filed the affidavit of Michael MacKinnon, officer, director and shareholder of Mediabadger Public Affairs Ltd. ("Mediabadger"), a company co-founded by Mr. Crouch and Mr.

Snell. [ 13 ] The Attorney General filed an affidavit of Mr. Roger Merrick, the Director of Public Safety for the Nova Scotia Department of Justice. In that capacity, Mr. Merrick is responsible for attending to the management of Nova Scotia’s CyberSCAN Unit pursuant to the provisions of the Act (see

Part I, ss. 26A to 26X of the Safer Communities and Neighbourhoods Act , S.N.S. 2006, c. 6 (as amended)).

[ 14 ] Mr. Merrick’s attendance for cross-examination was not required. The other three affiants were called for that purpose. [ 15 ] Counsel for the Attorney General did not play an active role in the hearing to decide if the Protection Order should be re- confirmed, varied or revoked. They did, however, argue to have the constitutionality issue bifurcated until after the Court had ruled on the merits of the Protection Order. Counsel for Mr. Snell was opposed to this approach.

The Court reserved its decision on bifurcation until July 21, 2015, at which time an oral decision was delivered granting the requested relief. Counsel for Mr. Snell was given the opportunity to present further submissions on August 7, 2015, to tie together his arguments pertaining to the merits of the application proper, leaving the issue of mootness of constitutional issues to a later day. Counsel for the Attorney General reserved the right to seek a further ruling that the constitutional challenge should be declared moot if the protection order was revoked.

Counsel were asked to be ready to address this issue should the court, after hearing the evidence of both parties, decide to revoke the order. [ 16 ] On August 27, 2015, I delivered an oral decision wherein the Protection Order was re-confirmed. I briefly discuss my reasons at paras. 73 to 81 of this decision. As it turned out, the Court did not have to hear from counsel on the issue of mootness, and we moved directly into oral argument on the constitutional issues. After hearing the arguments, I reserved my decision. This is my decision on the constitutional issues. Factual Background: [ 17 ] Mr. Crouch and Mr.

Snell were founders of and former business partners in a company called Mediabadger, which was incorporated in or around May 2011. Their business relationship ended in late 2013 when Mr. Crouch resigned from Mediabadger and forfeited half of his shares in the venture. [ 18 ] Mr. Crouch attributes his resignation to an inability to work with Mr. Snell, whom he describes an immature, unprofessional, and prone to unprovoked fits of rage. Mr. Snell and Mr. MacKinnon, another partner in Mediabadger, say Mr. Crouch resigned after it was discovered that he had misappropriated funds. [ 19 ] Mr.

Crouch resigned on or around December 20, 2013, effective January 9, 2014. On January 9, 2014, he entered into an Employee/Founder Separation and Release Agreement (the "Separation Agreement") with Mediabadger. The Separation Agreement included a mutual non-disparagement clause. [ 20 ] For the balance of 2014, Mr. Snell and Mr. MacKinnon tried unsuccessfully to salvage Mediabadger. They eventually decided to wind down the company. [ 21 ] Mr. Crouch and Mr. Snell are both avid users of social media. Their platforms of choice include Facebook, Twitter, Google+ and LinkedIn. Mr.

Snell’s Twitter account has 1,900 followers, and he has tweeted more than 27,000 times. Mr. Snell also writes a blog in which he shares insights from his experience running a business. [ 22 ] Mr. Crouch says in the months following his resignation from Mediabadger, Mr. Snell began a "smear campaign" against him on social media that continued until December 11, 2014, when a Justice of the Peace granted the Protection Order against Mr. Snell. The Protection Order was granted on an ex parte basis, without notice to Mr. Snell. [ 23 ] The Protection Order included the following prohibitions: 1.

The respondent be prohibited from engaging in cyberbullying of the subject. 2. The respondent be restricted (or prohibited) from directly or indirectly communicating with the subject. 3. The respondent be restricted (or prohibited) from, directly or indirectly, communicating about the subject. …. 7. Any comments on any social media sites whereby the respondent has made reference to the applicant, either directly or indirectly, are to be removed. Further, any comments on any social media sites directed toward an unnamed or unspecified person(

s) are to be removed. [ 24 ] In his affidavit filed in support of the Protection Order application, Mr. Crouch stated that he began working with Mr. Snell in 2008 when the two men founded a partnership called Intevix, a business that assisted corporate and governmental clients to better understand and use social media. The name of the business was later changed to Mediabadger. [ 25 ] According to Mr. Crouch, Mr. Snell was a difficult man to work with. At times, he experienced unprovoked fits of rage that made Mr. Crouch fear for his own safety. On three occasions, Mr.

Snell’s rage culminated in the destruction of office furniture. [ 26 ] Mr. Crouch said his relationship with Mr. Snell began to deteriorate in 2011, due to Mr. Snell’s unprofessional behaviour. Mr. Snell’s transgressions included failing to establish a proper set of books for Mediabadger, failing to raise capital or attract new clients, clashing with a particular investor and business advisor, and criticizing potential investors on social media. [ 27 ] Mr. Crouch said he was in control of Mediabadger’s finances until 2012 when the partners decided Mr. Snell should assume that responsibility while Mr.

Crouch focused on other aspects of the business. Mr. Crouch denied having ever used company funds for personal expenses without making it known to the other partners. He said he was always open and transparent with Mr. Snell and Mr. MacKinnon about any company money he required. He indicated that prior to June 2014, Mr. Snell never communicated any concerns to him about Mediabadger’s finances. [ 28 ] The alleged cyberbullying of Mr. Crouch by Mr. Snell began in June 2014. After Mr. Crouch’s resignation from Mediabadger, he began a contract position with T4G, another technology company. On June 5, 2014, Mr.

Snell sent a text message to the Vice President of Human Resources for T4G, Peter Moorehouse, indicating that Canada Revenue Agency was searching for Mr. Crouch. Mr.

Moorehouse told Mr. Snell that he would prefer Mr. Snell communicate with Mr. Crouch directly. Mr. Crouch believes that by sending these messages, Mr. Snell intended to embarrass him and damage his reputation with his new employer. [ 29 ] According to Mr. Crouch, in July 2014, Mr. Snell began posting vague comments about him on various social media platforms in an attempt to intimidate him and ruin his reputation. Mr. Crouch said that given what he described as Mr. Snell’s "past violent behaviour", the tweets and posts made him fear for his safety. Mr.

Snell posted the first comment on Google+ on July 9, 2014: Surprises continue to creep up…. Looking forward to what is coming for someone. [ 30 ] On August 13, 2014, Mr. Crouch stated that he saw Mr. Snell in downtown Halifax as he drove by him on Lower Water Street. Shortly thereafter, Mr. Snell posted the following on Twitter: You see someone and want to clothesline them…. That is normal right? [ 31 ] On or about August 27, 2014, Mr. Snell tweeted: Received my weekly call where Agency X is looking for an idiot. Passed on the info & had a laugh. I’m going to miss these calls. [ 32 ] On September 15, 2014, Mr.

Snell posted the following on Google+: Getting burned in business…. So much more to this and one must learn, grow from it and ensure it doesn’t happen again. [ 33 ] Two weeks later, on September 29, 2014, Mr. Snell posted a blog entry that stated, in part: So this next post is around challenges I’ve encountered over the years within start ups from Scotland to Nova Scotia. Daily challenges will occur in the start up world, some that will challenge your will to continue down the path of self employment bliss and others that will provide a laugh.

Outside of the paperwork and other not so exciting challenges I’ve faced, the two that have had the biggest impact would be the winding up of a company and firing a co-founder. [ 34 ] Mr. Crouch believed the comment about "firing a co-founder" was a reference to him. [ 35 ] On October 4, 2014, Mr. Crouch was scheduled to appear on CTV News to discuss cyber security. That same day, Mr. Snell posted on Google+: That is brilliant, almost like asking a plumber for medical advice. #news [ 36 ] On October 23, 2014, Mr. Snell posted the following on Twitter: Working on the next blog post….

Internet and the rise of the fake. From companies to people and it even happens locally. [ 37 ] In November of 2014, Mr. Crouch began receiving emails from an anonymous email service. The subject line of the first email, received on November 5, was "Nice BS". The body of the email stated, "Can you be honest with people or is it easier to just bs them?" Convinced that Mr. Snell sent the email, Mr. Crouch says he felt increasingly intimidated and fearful for his personal safety. [ 38 ] Another email from an anonymous source was received by Mr. Crouch on November 15, 2014.

The subject line read, "Worried?" The email stated, "Do you think you will ever be honest?" [ 39 ] Also in November 2014, someone changed the login information for Mr. Crouch’s Twitter account. Mr. Crouch believed it was Mr. Snell, because the Twitter account was linked to his Mediabadger email address, which Mr. Snell had control over. [ 40 ] On November 23, 2014, Mr. Crouch received a third anonymous email. The subject line was "Nice", and the email stated, "Passion is important, but not as important as honesty. Give it a try in 2015." [ 41 ] On or about November 27, 2014, Mr.

Snell posted the following blog entry: First I will start this post off apologizing to anyone that was either confused, annoyed or puzzled by my Twitter feed in 2014. It was likely a confusing time for many if they read my random posts done in frustration (and there was a lot of that) and it all stems from a company I am involved with (and someone that was involved). I’ve had all of 2014 to stew and subject others to my frustration (which was likely annoying). Thankfully I have some great friends & family and the general consensus is that the

chapter needs to be closed on this book. So that being said, the year is drawing to an end and this too needs to come to an end. Yesterday really was interesting. I was sent a few screen shots of someone playing the victim on Facebook and he claimed that someone was trying to sell his company from under him. Most frustratingly people were buying into it, people I know. With that, there is no company for sale, I wish there was.

We’ve spent the last year working with professionals trying to sort out the indiscretions of one person going back to late 209 (when the company was actually founded) and the other nonsense is just that. Over the next couple of weeks this escapade will be wrapped up with December and 2015 looking good. New and continuing opportunities working with some great start ups, my own opportunities and looking forward to the 2015 golf season. Till next time. [ 42 ] On cross-examination, Mr. Crouch admitted that this post seemed like a response to the following post he made on his own Facebook profile:

The frustrating moment when you discover your former business partner and "friend" had been trying to sell your business out from under you and planning to work for your competitor. Wow. [ 43 ] On December 3, 2014, Mr. Crouch visited webconomist.ca, a site that Mr. Snell had set up for him in 2010, and which Mr. Crouch had regularly used to post material. On December 3, however, the site displayed the following message: This was a clients domain at one point, however they decided not to pay their bills. We’ve found a new use for this domain and keeping in line with its past we will tell a story here.

Stay tuned for what’s next. It will be exciting and a learning experience for many. [ 44 ] Prior to this, believing that Mr. Snell had changed his Twitter login information, Mr. Crouch emailed Mr. Snell to request he relinquish control of the @webconomist.ca account. According to Mr. Crouch’s affidavit, the response he got from Mr. Snell stated: No idea what you’re talking about, haven’t touched at [ sic ] thing (with the exception of suspending email/hosting accounts). Not sure what the issue is as you still appear to be active with your twitter account. [ 45 ] On December 1, 2014, Mr.

Crouch received an email from an anonymous source. It read, "Was any of your work real or was it all faked?" [ 46 ] On December 2, 2014, Mr. Snell posted the following on Google+: Seeing someone take the piss on tax audits, when really should be audited….. 10 years of tax avoidance or stupidity and they are still going. [ 47 ] According to Mr. Crouch’s affidavit, this post was made shortly after he and another individual engaged in a public Twitter exchange about the Federal Government’s move to audit certain non-profit organizations for suspected political activities. [ 48 ] After posting an

article on LinkedIn about how technology companies are using digital tools to disrupt other businesses, Mr. Crouch noticed the following post made by Mr. Snell on Twitter: "Digital Disruptor. I know someone that was a Business Disrupter…." [ 49 ] Mr. Crouch believed this to be a direct reference to him. He also believed that Mr. Snell was the source of another anonymous email he received on December 5, 2014. The subject line stated: "Governance from a crook?" It went on to state: Interesting insights on governance coming from you it is laughable.

It will be interesting to see the reactions of people when you are outed as a fraud. [ 50 ] There is no evidence directly linking Mr. Snell to any of the anonymous emails. Mr. Crouch acknowledged that the only way to determine the source is by having access to the computer used to send the message. [ 51 ] After being cross-examined on his affidavit, Mr. Snell testified on re-direct that he had offered to give Halifax Regional Police access to his computers. According to Mr. Snell they passed on the opportunity to do so. It would require sheer speculation, on my part, to ascribe any blame to Mr.

Snell for these anonymously sent emails. I am not prepared to give in to that temptation. While receipt of these emails might have contributed to Mr. Crouch’s feelings of intimidation and fear or humiliation, insofar as these particular anonymous emails are concerned, Mr. Snell cannot be held responsible for them on the evidence before me. [ 52 ] That said, there are a number of other emails, tweets and posts authored by Mr. Snell that leave little doubt as to whom he is referring to. Indeed, Mr. Snell admits that in some instances, although he does not mention Mr.

Crouch by name, he was directing his comments sometimes to and sometimes about Mr. Crouch. [ 53 ] As previously indicated, Mr. Crouch is not entirely innocent in all this. He admitted to posting the following entry to his Facebook page: That frustrating moment when you discover your former business partner and “friend” had been trying to sell your business out from under you and planning to work for a competitor. Wow. [ 54 ] On cross-examination, Mr. Crouch denied he was referring to Mr. Snell. He suggested he was referring to a member of a Lodge he belonged to. In argument, counsel for Mr.

Snell submitted that even if this comment was not about Mr. Snell, it at the very least demonstrated that Mr. Crouch was not averse to "dishing it out" on the Internet. [ 55 ] Mr. Crouch also admitted that he had provided an incomplete picture of a conversation that Mr. Snell had with another individual on the Internet. Mr. Crouch had provided the following excerpt from Mr. Snell's side of the conversation: "Someone's getting hurt later …." On examining the surrounding messages (see Exhibit 10), it is clear the conversation is about the other individual's daughter's disillusionment with Santa Claus.

The comment had nothing whatsoever to do with a threat and certainly not one directed at Mr. Crouch. Yet, he used this to support his ex parte application to a Justice of the Peace. [ 56 ] These examples are not intended to focus attention away from Mr. Snell nor to justify his actions, but rather, to show that neither party to this application is beyond reproach. [ 57 ] I will now briefly refer to the evidence provided by Mr. MacKinnon who first joined Mediabadger as a consultant prior to its incorporation in 2011. Mr.

MacKinnon is now a Vice-President and Director of the company, and he considers himself a co-founder. [ 58 ] Mr. MacKinnon confirmed that he and others associated with Mediabadger, including Mr. Snell, were concerned when they first learned of the extent of the unauthorized withdrawals made from Mediabadger by Mr. Crouch. One report prepared by Mr. Snell and Bradley Jardine, an advisor to one of the company’s investors, set the amount at $85,530.36. This report was produced on October

8, 2014, and purports to cover the period from January 1, 2008, to October 8, 2014. [ 59 ] This amount was cited in a demand letter sent by Mr. MacKinnon to Mr. Crouch on July 24, 2014. In this letter Mr. MacKinnon characterizes the amount owing as a shareholders' loan but he makes it clear that it brings into question "the potential that company funds were being used personally and that such loans and personal expenses were made without written authorization, knowledge or consent of the directors of the company." (For the entire letter sent by Mr. MacKinnon to Mr.

Crouch see Exhibit 1 attached to the affidavit of Michael MacKinnon sworn on March 2, 2015.) [ 60 ] The Court is not being asked to decide if Mr. Crouch owes money to Mediabadger, or if Mr. Crouch withdrew money without authorization for his personal expenses. These matters are simply referred to in an effort to provide context to the events surrounding Mr. Crouch's departure from the company. [ 61 ] Mr. MacKinnon provided some additional testimony regarding Mr. Crouch's alleged concerns about Mr. Snell's anger issues. It is apparent that Mr. Snell is not a violent person.

On a couple of occasions he smacked a desk and on another occasion he hit a filing cabinet leaving a small dent. Different people react to situations in different ways. These few instances over a four- or five-year period do not amount to violent behaviour. The behaviour was perhaps a little over the top, and with the benefit of hindsight, excessive in the circumstances. But the behaviour was not directed toward another individual. At most it resulted in minor damage to office furniture, and likely a sore hand. [ 62 ] One must not overlook the several lapses in candour exhibited by Mr.

Crouch when he first applied for the Protection Order before the Justice of the Peace. Nor should one forget the messages he authored in which he appeared to be taking "cyber-shots" at Mr. Snell, albeit, he says, out of frustration at what was being sent to him or what he perceived was being said about him online by Mr. Snell. [ 63 ] Mr. Snell for his part took ownership of some of the things he communicated but pointed out that he never used Mr. Crouch’s name in any of the public posts. [ 64 ] Mr.

Snell, despite the existing protection order, had done nothing to remove any of the comments posted even those he admitted were about Mr. Crouch. His efforts to explain away some of his posts such as suggesting he was referring to a former business partner and otherwise downplaying the potential impact on Mr. Crouch, were quite disingenuous.

He showed very little, if any, remorse for his conduct although in his November 27, 2014, blog post (attached as Exhibit "I" to the Giles Crouch affidavit sworn February 9, 2015) he offered an apology "to anyone that was either confused, annoyed or puzzled by [his] Twitter feed in 2014." He attributed his posts to frustration. If he had stopped there he might have garnered some sympathy but instead he went on to make further negative references to his former business associate and "someone playing the victim on Facebook." There can be no doubt these comments were about Mr.

Crouch even though he was not identified by name. [ 65 ] Then there are Mr. Snell’s alleged efforts to alert Mr. Crouch of Canada Revenue Agency’s attempts to contact him. Instead of contacting Mr. Crouch directly, Mr. Snell sent a text message to Mr. Crouch’s employer. I find this to be particularly distasteful. This was an obvious attempt on Mr. Snell’s part to cause embarrassment to Mr. Crouch. [ 66 ] Mr. Snell’s post on Google+ after Mr. Crouch announced that he would be appearing on CTV News, where Mr. Snell likened Mr.

Crouch's TV appearance to "asking a plumber for medical advice", is another example of Mr. Snell’s efforts to embarrass his former business partner. The Cyber-safety Act : [ 67 ] I have reviewed the procedural history and factual background. Before going on to briefly explain my decision to re-confirm the Protection Order, and then to address the constitutional challenge, I wish to set out the relevant provisions of the Cyber-safety Act and the case law considerations of the statute to date.

The relevant provisions of the Act are as follows: 2 The purpose of this Act is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying. 3

(1) In this Act , (a) "Court" means the Supreme Court of Nova Scotia and includes a judge of the Court; (b) "cyberbullying" means 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 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; …

PART I Protection Orders 5

(1) An application for a protection order may be made to a justice, without notice to the respondent, in the form and manner prescribed by the regulations, by (

a) the subject, if the subject is not a minor; or

(

b) where the subject is a minor, (

i) the subject's parent, (ii) a person designated by the regulations for this purpose, or (iii) a police officer.

(2) Subject to subsection (3), an application for a protection order must name as a respondent any person associated with an electronic device, Internet Protocol address, website, username or account, electronic-mail address or other unique identifier, identified as being used for cyberbullying, or a parent of the person if the person is a minor.

(3) Where the name of the respondent is unknown and cannot easily be ascertained, an application for a protection order may identify the respondent by an Internet Protocol address, website, username or account, electronic-mail address or other unique identifier, identified in the application as being used for cyberbullying.

(4) An application for a protection order may be submitted (

a) in person, by the applicant; or (

b) in person or by telephone or other means of telecommunication, by a lawyer, a police officer or a person designated by the regulations for this purpose, with the applicant's consent.

(5) Evidence adduced in support of an application for a protection order must be given under oath. … 12

(1) As soon as practicable after making a protection order and in any event within two working days, the justice shall forward a copy of the order and all supporting documentation, including a transcript or recording of the proceedings, to the Court in the prescribed manner.

(2) Within such period as the regulations prescribe of the receipt of the protection order and all supporting documentation by the Court, the Court shall review the order and, where the Court is satisfied that there was sufficient evidence before the justice to support the making of the order, the Court shall (

a) confirm the order; or (

b) vary the order, and the order as confirmed or varied is deemed to be an order of the Court.

(3) Where, on reviewing the protection order, the Court is not satisfied that there was sufficient evidence before the justice to support the making of the order, the Court shall direct a hearing of the matter in whole or in part before the Court.

(4) Where the Court directs that a matter be heard, the clerk of the Court shall (

a) issue a summons in the prescribed form requiring the respondent to appear before the Court; and (

b) give notice of the hearing to the subject or, where the subject is a minor, a parent of the subject, and the subject or, where the subject is a minor, a parent of the subject, is entitled to attend and may fully participate in the hearing personally or by counsel.

(5) The evidence that was before the justice must be considered as evidence at the hearing.

(6) Where the respondent fails to attend the hearing, the protection order may be confirmed in the respondent's absence.

(7) At the hearing, the Court may confirm, terminate or vary the protection order. Court may confirm, vary or revoke order 13

(1) Where satisfied that it is fit and just to do so, the Court, upon application at any time after a protection order is confirmed or varied by the Court, may by order (

a) remove or vary any term or condition in the order; (

b) add terms and conditions to the order; or (

c) revoke the order. 14

(1) The respondent or the applicant may appeal to the Nova Scotia Court of Appeal a decision made under

Section 12 or 13 , on a question of law, in accordance with the Civil Procedure Rules.

(2) An appeal does not operate as a stay of proceedings, and the protection order under appeal may be enforced as though no appeal were pending unless a judge of the Supreme Court of Nova Scotia or the Nova Scotia Court of Appeal otherwise orders.

[ 68 ] In Nova Scotia (Public Safety) v. Lee , 2015 NSSC 71 , [2015] N.S.J. No. 95 [ Lee ], the Honourable Justice Arthur J. LeBlanc noted that while the Act is a comprehensive regime in its own right, it also amended other statutes, including the Safer Communities and Neighbourhoods Act , S.N.S. 2006, c. 6 (the " SCNA "). This particular case addressed a prevention order under the SCNA rather than a protection order under the Cyber-safety Act , but many of LeBlanc J.'s findings are relevant to both regimes. [ 69 ] Applications for prevention orders under the SCNA are made directly to the Court.

At the hearing of the application, LeBlanc J. heard submissions from the applicant, but the respondent did not participate. The prevention order was granted. In his written decision, LeBlanc J. made the following comments respecting the purpose of cyberbullying legislation: 1 Cyberbullying is a destructive phenomenon. By its nature, it involves the use of electronic platforms and methods that pose serious challenges for the law. The Nova Scotia Legislature has addressed this problem by means of the Cyber-safety Act , S.N.S. 2013, c. 2 (the CSA).

The CSA is a comprehensive regime in its own right, but it also amended other statutes, including the Safer Communities and Neighbourhoods Act , S.N.S. 2006, c. 6 (the SCNA). … 19 The Nova Scotia legislature passed the CSA partly in response to a report written by Professor A. Wayne MacKay, Q.C, of Dalhousie University ( Respectful and Responsible Relationships: There's No App for That (Halifax: Nova Scotia Task Force on Bullying and Cyberbullying, 2012)).

Professor MacKay discussed the causes, scope, and effects of cyberbullying, which, he observed "knows no boundaries and it permeates all aspects of the victims' lives. It is also corrosive for the bullies and the bystanders as well, and one role sometimes morphs into another" (p. 1). Professor MacKay noted the spatial and temporal dimensions of the internet and the challenges they pose to civil relations, at p. 84: Cyberbullying poses a particular challenge to the community because it happens in a sort of "no man's land".

The cyber-world is a public space which challenges our traditional methods of maintaining peace and order in public spaces. It is too vast to use traditional methods of supervision. It easily crosses jurisdictional boundaries. It takes place 24 hours a day, seven days a week, and does not require simultaneous interaction for communication to take place.

If we continue to rely on traditional methods of responding to bullying, these challenges will be too daunting. 20 During the second reading of the bill, the Minister responsible for the Advisory Council on the Status of Women Act explained the purpose of the bill, emphasizing the dangers of cyberbullying in relation to young people: Nova Scotia, Legislative Assembly, Hansard, 61st Leg, 5th Sess, (26 April 2013) at 1482-1484 (Marilyn More). However, cyberbullying is not specific to any age group, nor is the legislation so limited.

People of all ages are grappling with the challenges posed by social media. 21 The purpose of the SCNA amendments was described in the CSA as "to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying": CSA, s. 2 . Cyberbullying is defined in s. 3 (1)(

b) of the CSA and s. 2 (1) (ba) of the SCNA: "cyberbullying" means 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... 22 There are two avenues available to cyberbullying victims under the legislation.

Under the ss. 5 and 6 of the CSA itself, a complainant can apply to a justice of the peace for a protection order. Pursuant to s. 9, the justice of the peace can grant an order if he or she is satisfied on a balance of probabilities that (

a) the respondent has engaged in cyberbullying of the subject; and (

b) there are reasonable grounds to believe that the respondent will engage in cyberbullying of the subject in the future. Pursuant to s. 12, the justice of the peace must forward a copy of the order and all supporting documentation to the Court, which may confirm, vary, or terminate the order. 23 The second avenue -- which Ms. Murray has pursued in this case -- arises from the provisions added to the SCNA by way of the CSA amendments. Pursuant to s. 26A(1), a person can make a complaint to the Director: 26A

(1) A person who wishes an order to be made under this Act to deal with cyberbullying shall first make a complaint to the Director stating that the person believes that the person or another person is being subjected to cyberbullying. … 27 The CSA is new legislation. It has only been applied by this court once, by Robertson J in Director of Public Safety v Prosper (11 February 2014), Halifax 423784. The CSA and cyberbullying in general have been considered by the Provincial Court in two reported decisions.

The first such decision was R. v C.L. , 2014 NSPC 79 , a sentencing decision of a youth offender convicted of offences including sexual assault, harassment, and assault with a weapon. Although in obiter , Whalen J noted in her decision that much of the offender's behavior towards the victim constituted cyberbullying under the CSA: 53 A few days later between December 6th and December 8th, 2014 C.L. began a long, insulting, misogynist diatribe on Facebook towards A.B.

The repetitive, vil [ sic ] nature clearly shows he wanted to cause harm, fear and humiliation. 54 There are 22 references to words like "dead", "die" or "death", clearly trying to provoke A.B. to commit suicide. There are 25 references to "pedo" and "bitch". There are 27 incidents of C.L. calling A.B. a "ho". ... 57 C.L.'s behavior meets the definition of cyberbullying ... cited by the Crown but his behavior went well beyond that to criminal

behaviour. He exhibited a "complete breakdown in respect for others", particularly the three victims. 28 The second decision is R. v. Avery , 2014 NSPC 40 , [2014] N.S.J. No. 322 , another sentencing decision, where the offender was convicted of assault causing bodily harm. The accused had begun anger management prior to sentencing, but made questionable progress as evidenced by a Facebook post that Atwood J found to constitute cyberbullying: 6 Mr. Avery's level of remorse and commitment to rehabilitation are questionable.

He approached anger management with what was described by the program facilitator in the pre-sentence report as "a bad attitude", but appeared to adapt positively. However, one must question seriously Mr. Avery's commitment to rehabilitation and anger management given the social-networking post published by Mr. Avery shortly after the court adjourned 20 May 2014. That post was exhibited before the court and reads as follows: It should just have dropped considering I will already have done about 8 months house arrest. Two nights in Burnside and wrongfully accused of assaulting a girl and breaking into a house.

All for beating someone up who a majority would say deserved it just in my opinion. 7 This, in my view, displays a singular lack of empathy and a certain lack of reality. In fact, at the point in time that Mr. Avery composed that message, he had been subject to approximately six and a half months of house arrest rather than the eight referred to by Mr. Avery and the eight to nine mentioned at the sentencing hearing. Furthermore, making public such a comment-- "all for beating someone up who a majority would say deserved it"-- causes me to draw the inference that Mr. Avery continues to pose a threat to Mr.

Watt, if not of actual physical harm, then of psychological harm, as comments of this nature clearly constitute cyberbullying within the definition of para. 3(1) (

b) of the Cyber-Safety Act . 29 Although the foregoing remarks were obiter , these decisions demonstrate a recognition by the courts of the seriousness of cyberbullying in the eyes of the Legislature.

I note as well that the definition of "cyberbullying" in s. 2(1) (ba) of the SCNA indicates that an objective standard is to be applied: the definition refers to electronic communication "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). [ 70 ] LeBlanc J. concluded at para. 30 that the respondent's conduct amounted to cyberbullying: Mr.

Lee repeatedly sent messages and made posts that he either intended or reasonably ought to have expected to cause fear, intimidation, humiliation, distress or other damage or harm to Ms. Murray's health, emotional well-being, self-esteem and reputation. This is clear from the content of the messages, the harm described by Ms. Murray, and the timing of the campaign, being immediately after their mother's death. [ 71 ] The only significant decision to directly address an application for a protection order under the Cyber-safety Act is Self v. Baha'i , 2015 NSSC 94 , [2015] N.S.J. No. 126 [ Self ].

In deciding to revoke the protection order granted by the Justice of the Peace, the Honourable Justice Gerald R.P. Moir looked at the purpose of the Act and found it to be at odds with what he called "the mild meanings apparent in the

definitions when read literally" (see paras. 28 and 29). Moir J. noted a "disconnect between the ordinary meaning of [cyberbullying] and the literal definition" (see para. 24). He described cyberbullying as being a loaded word and concluded that "despite the literal definition, 'cyberbullying' is intended in this statute to include malice" (para. 31). [ 72 ] In deciding Self , supra , Moir J. noted that the power of the court under s. 13(1) of the Cyber-safety Act is broader than that of a Justice of the Peace under ss. 8 and 9.

He also noted that “[A] judge who hears both sides is given a broad discretion, and must consider the adverse impacts on free speech and property rights in addition to the possibilities for continuation of malicious 'cyberbullying'" (para. 32). It should be noted that in the Self case, supra, Moir, J. was not presented with a constitutional challenge as in the present case. Consideration of the Protection Order: [ 73 ] Assuming the Cyber-safety Act to be Charter compliant, I had no difficulty concluding Mr. Snell had engaged in cyberbullying of Mr.

Crouch as that term is defined in the Act , and the behaviour was likely to continue. I was therefore satisfied the Protection Order should be confirmed, but with the addition of the following conditions under para. 7: That the Cyber-safety Protection Order first issued on the 11 th day of December, 2014 and subsequently confirmed by a Justice of the Supreme Court of Nova Scotia on the 17 th day of December, 2014 is hereby amended as follows but remains subject to a further review in order to consider the constitutional validity of

Part I of the Cyber-safety Act under the Canadian Charter of Rights and Freedoms : ⋅ Any comments on any social media sites whereby the respondent has made reference to the applicant, either directly or indirectly, are to be removed. ⋅ Further, any comments on any social media sites directed towards an unnamed or unspecified person(s), that might reasonably lead one to conclude that they refer to the applicant, are to be removed. ⋅ The Protection Order is subject to further variation, or revocation, after this Court decides the merits of a Constitutional challenge to certain provisions of

Part I of the Cyber-safety Act and the definition of “cyberbullying” contained in

Section 3(

b) of that Act, based on alleged infringements of ss. 2(

b) and 7 of the Canadian Charter of Rights and Freedoms . [ 74 ] My decision to re-confirm was guided by the wording of the Act , as well as this Court’s reasons in Lee and Self . I did, however,

take a different view of the meaning of cyberbullying than that taken by Moir J. in Self. As noted, Moir J. read in a requirement formalice; that is, in order to find the respondent engaged in cyberbullying, it would be necessary to find the respondent acted maliciously. In deciding to re-confirm the Protection Order issued against Mr. Snell, I declined to adopt this approach, for the following reasons. [75] In Sullivan On the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada Inc., 2014), Ruth Sullivandistinguishes between exhaustive and non-exhaustive statutory

definitions. At para. 4.33 on page 72 she writes: §4.33 Statutory

definitions are conventionally classified as exhaustive or non-exhaustive, and the courts rely on this distinctionin interpreting them. The distinction itself is simple enough: exhaustive

definitions displace the ordinary (or technical) meaning of thedefined term whereas non-exhaustive

definitions do not. As illustrated below, however, this classification does not fully capture thecomplexity of statutory

definitions and can be misleading. [76] At paras. 4.34 and 4.38, the author provides further help in distinguishing between the two classifications: §4.34 Exhaustive

definitions. Exhaustive

definitions declare the complete meaning of the defined term and completely displacewhatever meanings the defined term might otherwise bear in ordinary or technical usage. An exhaustive definition is generallyintroduced by the verb “means”… §4.38 Non-exhaustive definition. Non-exhaustive

definitions do not purport to displace the meaning that the defined termwould have in ordinary usage; they simply add to, subtract from or exemplify that meaning. Non-exhaustive

definitions are generallyintroduced by “includes” or “does not include”… [77] The definition of cyberbullying set out at s. 3(1)(

b) of the Act is an exhaustive statutory definition. The Legislature chose adefinition that says “’cyberbullying’ means”, not “’cyberbullying’ includes”. In so doing, the Legislature declared the complete meaningof cyberbullying, and it displaced the ordinary meaning. While the ordinary meaning of cyberbullying might include malice, thisordinary meaning was displaced by the statutory definition. [78] I distinguish Rasa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 670 [Rasa], R. v. Nova ScotiaPharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J.

No. 67 [Nova Scotia Pharmaceutical], andCanadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] S.C.J. No. 6 [CanadianFoundation], on the basis that in all of those cases, the statutory term in question was not a defined term. This gave the Court a widerdiscretion to use various techniques of statutory

interpretation to ascribe meaning to the impugned term. [79] Furthermore, on examining the meaning of “malice”, I find it to be incompatible with the statutory definition of cyberbullying. “Malice” is defined in Collins Canadian Dictionary, 1st ed., 2010 to mean: The desire to do harm or cause mischief to others. And in Black’s Law Dictionary, 9th ed., it is defined as: The intent, without justification or excuse, to commit a wrongful act. 2. Reckless disregard of the law or of a person’s legal rights. 3. Illwill; wickedness of heart. [80] It is clear malice means acting with culpable intent.

Yet the statutory definition of cyberbullying includes conduct where harmwas not intended, but ought reasonably to have been expected. As was noted by LeBlanc J. in Lee, supra at para. 29, this part of thedefinition sets an objective standard. The statutory definition has both subjective and objective elements, but reading in a requirementfor actual malice ignores the objective element. [81] Thus, my decision to re-confirm the Protection Order issued against Mr.

Snell was based on the wording of the Act, assuming itto be Charter compliant and without reading in a requirement for malice. [82] I will now proceed to examine the constitutionality of the Cyber-safety Act, and in particular, whether the definition ofcyberbullying at s. 3(1)(

b) and the protection order process set out in

Part I infringe ss. 2(

b) or 7 of the Canadian Charter of Rights andFreedoms (the “Charter”). If any part of the Act is found to violate the Charter, I must consider whether the offending provisions aresaved by s. 1. Based on the results of this analysis, the fate of the Protection Order remains to be determined. Issues: [83] The issues to be determined are as follows: 1. Does the Cyber-safety Act infringe s. 2(

b) of the Charter, and if so, is this infringement saved by s. 1? 2. Does the Cyber-safety Act infringe s. 7 of the Charter, and if so, is this infringement saved by s. 1? 3. If necessary, what is the appropriate remedy? Preliminary Issue: Admissibility of MacKay Report [84] Before proceeding, I wish to address a preliminary issue. The Attorney General seeks to rely on a report of the Nova ScotiaTask Force on Bullying and Cyberbullying as evidence of the purpose of the Cyber-safety Act. The Respondent argues the Task ForceReport is inadmissible. He relies on Gay v. New Brunswick (Regional Health Authority 7), 2014 NBCA 10, [2014] N.B.J. No. 117, aff'g

2010 NBQB 128, [2010] N.B.J. No. 130. In that case, the plaintiffs sued Dr. Menon, the Chief of Pathology and Director of ClinicalLaboratory Services at the Regional Hospital in Miramichi, New Brunswick, for professional negligence. The plaintiffs also sued theHospital for deficient hiring processes and lack of quality control in the Hospital's pathology laboratory. At the certification motion, theplaintiffs sought to introduce the report of a Commission of Inquiry that had been established to investigate into the Hospital's pathologyservices.

The plaintiffs relied on s. 43 of the New Brunswick Evidence Act, R.S.N.B. 1973, c.

E. 11, which provides: 43 Any report, publication or statement on any matter of science, technology, geography, population, natural resources, engineering orother matter of fact or fact and opinion purporting to have been prepared by or under the authority of any department or branch of theGovernment of Canada or of the Province or of any other province is, in so far as relevant, admissible as evidence of the matters statedtherein [85] Ouelette J. found as follows: 12 The Court is of the opinion that the Inquiry Report is a public document for the purpose of public reference and is a report that wasprepared after the issuance of an Order-in-Council by a proper authority.

For those reasons, it could be admitted in a court of law undersection 43 of the Evidence Act for the purpose intended by the plaintiff for certification. [86] In finding the report to be admissible, Oulette J. distinguished Robb v. St. Joseph's Health Care Centre (1998), 87 O.T.C. 241,[1998] O.J. No. 5394 (Ct. J. (Gen. Div.)), aff'd (2001), (ON CA), 152 O.A.C. 60, [2001] O.J. No. 4605 at paras.209-210 (C.A.).

In Robb, a plaintiff sought to have admitted into evidence a report of the Royal Commission of Inquiry into BloodServices and a report of the Information Commissioner, as prima facie proof of the subject matter contained therein. The reports wouldassist the plaintiff with establishing liability. The plaintiff argued the documents were admissible under the public documents exceptionto the hearsay rule. [87] MacDonald J. reviewed the public documents exception: 10 The public documents exception to the hearsay rule permits into evidence statements contained in public documents.

Thestatements are admissible without proof because of their "inherent reliability or trustworthiness and because of the inconvenience ofrequiring public officials to be present in the court to prove them." See R. v. AP., (ON CA), [1996] O.J. No.2986(C.A.).

To my mind, this is the fundamental basis which gives rise to the doctrine. 11 Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Butterworths: 1992) at 231 sets forth the basis for publicdocuments exception to the hearsay rule: Founded on the belief that public officers will perform their tasks properly, carefully, and honestly, an exception to the hearsay rule wascreated for written statements prepared by public officials in the exercise of their duty.

When it is part of the function of a public officerto make a statement as to a fact coming within his [or her] knowledge, it is assumed that, in all likelihood, he [or she] will do his [or her]duty and make a correct statement. The circumstances of publicity also adds another element of trustworthiness. Where an official recordis necessarily subject to public inspection, the facility and certainty with which errors would be exposed and corrected provides anadditional guarantee of accuracy.

Before this exception to the hearsay rule comes into play, the following preconditions, cumulativelyproviding a measure of dependability, must be established:

(1) The subject matter of the statement must be of a public nature;

(2) The statement must have been prepared with a view to being retained and kept as a public record;

(3) It must have been made for a public purpose and available to the public for inspection at all times;

(4) It must have been prepared by a public officer in pursuance of his duty. [88] MacDonald J. concluded that the reports could not be admitted under the public documents exception to the hearsay rulebecause the conclusions and opinions contained therein were based on a record not before the court, and were not based on the civilstandard of proof (paras. 19 & 25). Furthermore, to admit the reports would be to turn the inquiry process "into something that it wasnever intended to be" (para. 24).

The Ontario Court of Appeal affirmed the decision. [89] Ouellette J. distinguished Robb because, inter alia, "the object of the plaintiffs at bar in filing the Inquiry Report is not for thepurpose of determination of liability" (paras. 15-16). Rather, the plaintiffs sought to use the report for purposes of class definition andother certification requirements (para. 21). The decision was upheld on appeal, Drapeau C.J.N.B. and Deschenes J.A. concluding atpara. 18: In due course, the Commission, chaired by the Honorable Paul S.

Creaghan, produced a comprehensive report, which was received inevidence at the hearing in the court below. The motion judge's decision on admissibility is reported at 2010 NBQB 128, 361 N.B.R. (2d)1. While that ruling was challenged in the Regional Hospital's written submission on appeal, the issue was not forcefully pressed at thehearing.

The fact is that the disposition of the present appeal does not turn on any controversial feature of the Commission's report and, inany event, we have not been persuaded that the motion judge's admissibility ruling is unsustainable, having regard to the limited purposefor which the report was received. [90] However, the Respondent relies on Robertson J.A.'s dissenting opinion, where he stated: 181 In my view, the Hospital's objection is well-founded. Like the motion judge, I am of the view that none of the findings orobservations contained within the Report can be used to establish the Hospital's or Dr.

Menon's liability. Correlatively, those findingscannot be used in proceedings leading up to the trial, even if those findings are offered for the limited purpose of reinforcing the case forcertification. This view is consistent with Robb Estate v. St. Joseph's Health Care Centre, [1998] O.J. No. 4419 (Ont. Ct. J.)(QL); Rintoul v. St.Joseph's Health Centre, (ON CA), [2001] O.J. No. 4605 (C.A.) (QL);Farrow v. Canadian Red

Cross Society, [1998] O.J. No. 5394 (QL), aff'd [2001] O.J. No. 4605 (C.A.) (QL). 182 In Robb Estate, the plaintiff at trial moved to have the Report of the Royal Commission of Inquiry on the Blood System inCanada (the Krever Report) and the Report of the Information Commissioner John W. Grace admitted into evidence as prima facie proofof the subject matter contained in both reports. The plaintiffs claimed the reports were public documents and, as such, were admissible asan exception to the hearsay rule.

The trial judge disagreed, noting that "the public documents exception to the hearsay rule was neverintended to be applied to admit into evidence at a trial documents such as the Krever Report" (para. 20). His rationale was twofold: First,to the extent that the Reports' conclusions relied on evidence which may be inadmissible in a civil trial, the defendants would beprejudiced.

They would not have the opportunity to test the evidentiary findings contained in the Reports, could not cross examine theReports, and could not know the evidence upon which the particular findings contained in the Reports were based (para. 23). Second, itwould be contrary to public policy. Admitting the Reports into evidence in a subsequent civil proceeding would convert "a commissionof inquiry into something that it was never intended to be" (para. 24).

Inquiries are intended to inform the government on a particularissue; they could not "have the collateral purpose of providing evidence in civil proceedings" (para. 24). 183 In brief, the mandate of a Commission of Inquiry and the inquisitorial nature of administrative proceedings are inimical to the civilrules of evidence and the burden of proof which rests on plaintiffs in civil actions, seeking to impose liability on a defendant for breachof a legal duty. At the same time, the existence of the Commissioner's Report is matter of public knowledge, as are its recommendationsand ultimate findings.

Hence, it should be permissible to refer to the Report to the extent those references do not embrace matters that aredirected at establishing critical or controversial facts and any legal conclusions eventually made. In the present case, the Report is oflimited relevance. It tells us that the Government of the day recognized the seriousness of the problem over the delivery of pathologyservices at the Hospital and of the need for fundamental reform.

We also know that the Government formally responded to the Report.More importantly, the Report also explains why the appellants have been persistent in tying their class action to a novel duty/standard ofcare: a duty of professional competence and a corresponding duty to hire only those who so qualify. [91] I do not find the dissenting reasons of Robertson J.A. to be particularly relevant to the circumstances before me.

The AttorneyGeneral seeks to rely on the Task Force Report not for the truth of its contents as evidence of liability, but as evidence of legislativehistory for the purpose of determining the Act's objective. In Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007) at 60-3,Peter Hogg writes that legislative history is routinely admitted for the purposes of determining whether a statute is justified as areasonable limit under s. 1, citing R. v. Edwards Books and Art, (SCC), [1986] 2 S.C.R. 713 (law reform commissionreport) [Edwards Books], and Irwin Toy v.

Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927, [1989] S.C.J. No.36 [Irwin Toy] (parliamentary debates).

He explains: Legislative history is admitted, not for the purpose of proving the truth of any facts contained in the material, but for the purpose ofproving the considerations that were taken into account by the legislative body that enacted a statute. [92] As to proving the material: Because legislative history takes the form of publicly available documents, the Court does not require proof by sworn testimony, but willtake judicial notice of the material (60-3 to 60-4). [93] Furthermore, the very Task Force Report in issue in this proceeding was admitted by the Supreme Court of Canada in A.B. v.Bragg Communications Inc., 2012 SCC 46, [2012] S.C.J.

No. 46 at paras. 20-24, as evidence that cyberbullying is "psychologicallytoxic" and causes extensive harm, and as evidence that a bullied child may not pursue responsive legal action without adequateprotections. In Lee, LeBlanc J. relied on the Task Force Report for the very reasons the Attorney General seeks to introduce it in thiscase. For all of these reasons, I find the Task Force Report to be admissible. [94] I distinguish Sweetland v. Glaxosmithkline Inc., 2014 NSSC 216, [2014] N.S.J.

No. 368, wherein the Honourable Justice Woodfound a Staff Report prepared by staff of the Committee on Finance of the United States to be inadmissible on a certification motion. The plaintiffs sought to use the Staff Report to show "some basis in fact" for some of the certification requirements. The plaintiffssubmitted the Staff Report was relevant to the determination of common issues, class definition and preferable procedure.

Wood J.found the plaintiffs had failed to establish the Staff Report was relevant, and further, the Report was "rife with opinion on factual,medical and legal issues", and he had "no information with respect to the identity or qualification of the authors and no evidence withrespect to the mandate or authority under which the report was prepared": paras. 16 & 22. I distinguish this case because, among otherreasons, using a report as evidence of the truth of its contents to support a certification motion is very different from using it to showlegislative history. [95] In Barton v.

Nova Scotia (Attorney General), 2014 NSSC 192, [2014] N.S.J. No. 266, the Honourable Justice Chipman alloweda Royal Commission and the Government of Nova Scotia Response to Recommendations of the Royal Commission to be used asauthority for the plaintiff's pre-trial brief, but did not allow the reports to be entered as exhibits. He reasoned as follows: 99 … The plaintiff also sought to have entered into evidence the Royal Commission on the Donald Marshall, Jr., Prosecution("Marshall Report") as well as the Government of Nova Scotia Response to the Recommendations of the Royal Commission on theDonald Marshall, Jr.

Prosecution ("N.S. Government Response Report"). … 100 The plaintiff appended the two reports to his pre-trial brief and during the pre-trial conference I allowed that Mr. Barton couldrely on the Marshall Report and the N.S. Government Response Report as authority. The subsequent request that they be entered asexhibits, however, is an entirely different matter. … 102 In any case, having reviewed the jurisprudence, I am particularly drawn to Robb v. St. Joseph's Healthcare Centre,(1998), 87O.T.C. 241, [1998] O.J. No. 5394, (Ont Ct. J. (Gen. Div.)), affirmed at (ON CA), 152 O.A.C. 60, [2001] O.J. No.4605 (Ont.

C.A.), where Justice MacDonald considered whether the report of the Royal Commission of Inquiry into the Blood System,prepared by Commissioner Krever, should be admitted into evidence in an action for damages arising from tainted blood transfusions.

The Court found that the Krever Report met the "public document" test, but declined to admit it into evidence because it was unreliable.The Commission's record was not before the Court and the civil trial standard of proof had not been applied. The Court set out thefollowing rationale at paras. 20-24: . . . The public documents exception to the hearsay rule was never intended to be applied to admit into evidence at a trial documents suchas the Krever Report. . . .

To the extent that Commissioner Krever relied on evidence which may be inadmissible in a civil trial to come to his conclusions, thedefendants would be prejudiced by the introduction of such evidence. If the report were admitted, the defendants would be unable tohave the opportunity to test the evidentiary findings which are contained in the report. They could not cross examine the report. Theycannot know the evidence upon which the particular findings contained in the report are based. This was never a purpose for which theKrever Commission was intended.

There are also public policy considerations which prevent the Krever Report from being admitted into evidence. To admit the KreverReport as evidence in this trial would have the effect of converting a commission of inquiry into something that it was never intended tobe. A commission of inquiry is a means by which the executive branch of the government can be informed on a particular issue. Acommission of inquiry cannot have the collateral purpose of providing evidence in civil proceedings.

If I were to so find, parties in futurecivil proceedings could attempt to make use of the findings of a commission of inquiry for that purpose. 103 The Robb decision has been repeatedly followed. Canadian courts have been emphatic that documents such as Royal Commissionreports, public inquiry reports, R.C.M.P. public complaint commission reports, Senate Committee reports and ombudsman reports cannotbe admitted for the truth of their contents without proof. 104 Even when there is a close nexus between the subject matter of the report and the litigation, courts have consistently refused toadmit such reports.

In Robb, supra, the Court refused to admit the Krever report in a civil trial for harm caused by tainted blood.In Rumley v. British Columbia, 2003 BCSC 234, at para. 52, the B.C. Supreme Court refused to admit a special prosecutor's report aboutabuse at a school for the blind in class action litigation seeking compensation for students abused at the school. In Ernewein v. GeneralMotors of Canada Ltd., 2005 BCCA 540, leave to appeal refused,[2005] S.C.C.A. No. 545 (S.C.C.) at para. 8, the B.C.

Court of Appealupheld a decision refusing to admit a report about a truck defect prepared by the US Secretary of Transportation in litigation to recoverdamages caused by that defect. 105 Given the authorities, neither the Marshall Report nor the N.S. Government Response Report should be admitted into evidence. 106 The reports have been relied upon by the plaintiff as authority, but they provide limited assistance to this Court.

They are notprobative of the facts in issue and do not help the Court to determine whether a negligent investigation and/or a breach of s. 7 and/or s.12 of the Charter occurred. [96] In the present case, the Attorney General seeks to rely on the Task Force Report as authority on the legislative history of theCyber-safety Act. The Attorney General does not assert that the facts stated therein are true, only that the Report discloses what was inthe Legislature's mind when it drafted the Cyber-safety Act. I find the Task Force Report is admissible for this purpose. Issue 1: Does the Cyber-safety Act violate s. 2(

b) of the Charter? [97]

Section 2(

b) of the Charter states: 2. Everyone has the following fundamental freedoms: … (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; … [98] Mr. Snell argues that the definition of "cyberbullying" in s. 3(1)(

b) of the Act, and the procedures for obtaining a protectionorder set out in

Part I of the Act, infringe upon the fundamental freedom of expression protected under s. 2(

b) of the Charter. [99] The burden of establishing that the Act is prima facie unconstitutional rests with the person challenging its constitutionality: R.v. Collins, (SCC), [1987] 1 S.C.R. 265 at paras. 21-22. If Mr. Snell succeeds in this regard, the burden shifts to theAttorney General to show the infringement is justified under s. 1 of the Charter. [100] In Irwin Toy, supra, and R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131 at paras. 29-31[Keegstra], the Supreme Court of Canada adopted a two-step inquiry to determine whether freedom of expression is infringed.

The firststep involves determining whether the activity in question falls within the sphere of conduct protected by freedom of expression. If itdoes, the second step is to determine whether the purpose or effect of the government action is to restrict the expressive activity. Is the expression protected by s. 2(b)? [101] The Attorney General says that the impugned provisions do not violate s. 2(

b) of the Charter because communications that comewithin the definition of "cyberbullying" are, due to their malicious and hurtful nature, low-value communications that do not accord withthe values sought to be protected under s. 2(b). The Respondent submits that the nature of the expression and its proximity to the core ofthe Charter values are not relevant at this stage.

[102] The Supreme Court of Canada in Irwin Toy, supra, affirmed that any activity that conveys or attempts to convey meaning isconstitutionally protected expressive activity: "all expressions of the heart and mind, however unpopular, distasteful or contrary to themainstream" are deserving of Charter protection (para. 41). The only type of expression that receives no Charter protection is violentexpression: ibid. at para. 42; R. v. Khawaja, 2012 SCC 69, [2012] S.C.J. No. 69 at paras. 67-71.

Indeed, hate propaganda, defamatorylibel, and publishing false news have all been found to fall within the ambit of s. 2(b): Keegstra, supra; R. v. Lucas, (SCC), [1998] 1 S.C.R. 439, [1998] S.C.J. No. 28 [Lucas]; R. v. Zundel, (SCC), [1992] 2 S.C.R. 731, [1992] S.C.J. No.70. [103] The Supreme Court of Canada elaborated on this principle in Ross v. New Brunswick School District No. 15, (SCC), [1996] 1 S.C.R. 825, [1996] S.C.J.

No. 40: 60 Apart from those rare cases where expression is communicated in a physically violent manner, this Court has held that so long as anactivity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee offreedom of expression; see Irwin Toy, supra, at p. 969. The scope of constitutional protection of expression is, therefore, very broad. It isnot restricted to views shared or accepted by the majority, nor to truthful opinions.

Rather, freedom of expression serves to protect theright of the minority to express its view, however unpopular such views may be; see Zundel, supra, at p. 753. The wide ambit of s. 2(

b) isunderscored by the following passage from McLachlin J.'s reasons in that case, at pp. 752-53: The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false: Irwin Toy, supra, at p.968. Tests of free expression frequently involve a contest between the majoritarian view of what is true or right and an unpopularminority view.

As Holmes J. stated over sixty years ago, the fact that the particular content of a person's speech might "excite popularprejudice" is no reason to deny it protection for "if there is any principle of the Constitution that more imperatively calls for attachmentthan any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate":United States v. Schwimmer, 279 U.S. 644 (1929), at pp. 654-55. [104] Some types of expression will, of course, lie closer to the core of freedom of expression than others. The Supreme Court ofCanada in Ford v.

Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712, [1988] S.C.J. No. 88, identified the threecore values underlying freedom of expression: individual self-fulfillment, truth attainment, and political discourse.

The Court went on tostate at para. 57: While these attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful inemphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions ofwhether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and thequestion whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of theCanadian Charter and the Quebec Charter.

These are two distinct questions and call for two distinct analytical processes. [Emphasis added] [105] Errol Mendes and Stéphane Beaulac in Canadian Charter of Rights and Freedoms, 5th ed. (Markham, Ont.: LexisNexis CanadaInc., 2013) at 435, state their belief that the Court's findings in Ford reflect well the structure of analysis that has been adopted infreedom of expression cases.

They note that although the Supreme Court of Canada recognizes and embraces the distinction betweenhigh- and low-value expression, the former being expression that lies closer to the core values, the distinction is relevant "not in thedetermination of whether the activity is protected expression, but in the determination of whether a governmental interference isjustified" (at 435). [106] I find this approach to be the correct one.

At this step of the analysis, we must ask whether the conduct in question—in this case,cyberbullying as that term is defined in the Act—is expressive, i.e. does it involve conduct that conveys or attempts to convey meaning. Ifind that it does. To the extent that cyberbullying falls short of violence or threats of violence, it is within the sphere of conductprotected by s. 2(b). Does the purpose or effect of the legislation restrict the applicant's freedom ofexpression? [107] The second step of the s. 2(

b) analysis requires me to consider whether the purpose or effect of the government activity is torestrict the expressive activity in question. [108] The Supreme Court of Canada in Irwin Toy held if the government's purpose is to restrict: (

a) the content of expression bysingling out particular meanings that are not to be conveyed; (

b) a form of expression in order to control access by others to the meaningbeing conveyed; or (

c) one's ability to convey meaning, the government "necessarily limits the guarantee of free expression". On theother hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaningbeing conveyed, for example a prohibition against littering, the purpose is not to control expression: Irwin Toy, supra at para. 49. [109] Even if the government's purpose is not to control or restrict expression, the court must still decide whether the legislationnonetheless has this effect.

If the applicant can demonstrate that the legislation has the effect of controlling or restricting expression thatpromotes at least one of the core values underlying freedom of expression, the applicant will have succeeded in showing that s. 2(

b) isengaged: ibid. at paras. 52-53. In this regard, the value of the expression can be relevant at the second step of the s. 2(

b) analysis. TheSupreme Court of Canada in Irwin Toy, supra at para. 53, put it this way: 53 We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a societysuch as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attainingthe truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and

(3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element.

If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis.

But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. [Emphasis added] [ 110 ] Thus, it is only in the case of content-neutral laws that might, in their effect, restrict free expression, that the applicant must demonstrate that the expressive activity promotes or reflects at least one of the principles underlying the guarantee: Mendes & Beaulac, supra at 437-38.

Mendes & Beaulac go on to explain that although this second inquiry shifts the burden of proof to Charter claimants, the threshold will not typically be a burdensome one (at 438): Though this second inquiry shifts the burden of proof to Charter claimants, it might not be thought of as burdensome in many cases. Just as "all expressions of the heart and mind, however unpopular or distasteful" … will qualify for protection under

section 2 (b), it often should not be too difficult to show that he activity promotes one of the underlying values (438). [ 111 ] Applying these principles to the Cyber-safety Act, I must first consider whether the purpose of the Act is to restrict expression.

The purpose of the Act is set out at s. 2 : 2 The purpose of this Act is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying. [ 112 ] Prevention of cyberbullying is a purpose that aims to restrict the content of expression by singling out particular meanings that are not to be conveyed, i.e. communication that is intended or ought reasonably 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.

Therefore, the purpose of the Act is to control or restrict expression. [ 113 ] It is not necessary for me to consider whether the Act also has the effect of restricting expression that promotes at least one of the core freedom of expression values, although I find that it does. [ 114 ] The Attorney General submits that the effect of the Act is to limit harmful expression only after review by a Justice of the Peace or a Justice of the Supreme Court, and only upon issuance of a protection order. This is not, the Attorney General says, the type of effect which is contrary to the Charter .

The Attorney General further submits that the type of speech in question is far removed from the core values, because it is nothing more than malicious personal attacks on an ex-business partner with the intention of harming him. The Attorney General argues that if the communications in question are harmful to Mr. Crouch, that type of expression is far removed from the core values sought to be protected by s. 2 (b).

The Attorney General likens the communication to defamation or hate speech, and says that this Court must balance this low-value expression with the Applicant's right to protect his reputation, which has been described as a fundamental value. [ 115 ] With respect, I find this approach, which confines the analysis to only the

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