4th Session, 40th Legislature
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THE CYBERBULLYING PREVENTION ACT
|Table of Contents||Bilingual version (PDF)||Explanatory Note|
(Assented to )
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
PURPOSE AND INTERPRETATION
1 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.
2(1) The following definitions apply in this Act.
"court" means the Court of Queen's Bench. (« tribunal »)
"cyberbullying" means any form of electronic communication, including social media, text messaging, instant messaging, websites and e-mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation 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. (« cyberintimidation »)
"electronic" includes created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic, optical or any similar means. (« électronique »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"minor" means a person under the age of 18 years. (« mineur »)
"parent", in relation to a minor, includes any person who is under a legal duty to provide for the minor or any person who has, in law or in fact, the custody or control of the minor. (« parent »)
"protection order" means an order made under section 7. (« ordonnance de protection »)
2(2) For the purpose of this Act, a parent of a minor is deemed to engage in cyberbullying if the minor engages in an activity that is cyberbullying and the parent
(a) knows of the activity;
(b) knows or ought reasonably to expect the activity to cause fear, intimidation, humiliation or other damage or harm to another person's health, emotional well-being, self-esteem or reputation; and
(c) fails to take steps to prevent the activity from continuing.
3 The following definitions apply in this Part.
"applicant" means a person applying for a protection order. (« requérant »)
"justice" means a person appointed as a judicial justice of the peace under The Provincial Court Act, and includes a provincial judge. (« juge de paix »)
"police officer" means a member of the Royal Canadian Mounted Police or a police service established or continued under The Police Services Act. (« agent de police »)
"respondent" means a person against whom a protection order is sought. (« intimé »)
"subject" means a person who, in an application for a protection order, it is alleged is or was subjected to cyberbullying. (« victime »)
"telecommunication" includes the use of a telephone, e-mail or the facsimile transmission of a document. (« télécommunication »)
4(1) An application for a protection order may be made to a justice by
(a) the subject, if the subject is at least 16 years of age; or
(b) if the subject is a minor,
(i) the subject's parent,
(ii) in the case of a subject who is in the care of a child and family services agency mandated under The Child and Family Services Act, by that agency, the child and family services authority responsible for that agency or the Director of Child and Family Services,
(iii) a police officer, or
(iv) by a person designated in writing by the minister for this purpose.
4(2) An application for a protection order may be made without notice to the respondent in the manner prescribed by regulation.
4(3) 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 in writing by the minister for this purpose, with the applicant's consent.
4(4) Subject to subsection (5), an application for a protection order must name a respondent. The respondent must be a person who has ownership or use of an electronic device, Internet Protocol address, website, username or account, e-mail address or other unique identifier, which has been used for cyberbullying, or a parent of the person if the person is a minor.
4(5) If 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, e-mail address or other unique identifier, identified in the application as being used for cyberbullying.
4(6) Evidence adduced in support of an application for a protection order must be given under oath.
5(1) A person submitting an application for a protection order by telecommunication must
(a) possess any document that is to be used in support of the application at the time the application is submitted;
(b) communicate the content of the document to the justice in a manner satisfactory to the justice; and
(c) transmit the document to the justice as soon as practicable in the manner prescribed by regulation.
5(2) A justice may administer an oath to a person and receive the person's evidence by telephone if the oath and evidence are recorded verbatim.
5(3) A justice must, as soon as is reasonably possible, certify the time, date and contents of the recording or transcript of an oath administered and evidence received by the justice under subsection (2) and cause the recording or transcript to be filed with the registrar of the court.
5(4) A justice may decide to make a protection order before receiving a document transmitted under clause (1)(c).
5(5) A protection order based on an application submitted by telecommunication has the same effect as a protection order based on an application submitted in person.
6 If an application for a protection order identifies the respondent in a manner set out in subsection 4(5), the justice may
(a) order any person having information respecting the ownership or use of any electronic device or use of any Internet Protocol address, website, username or account, e-mail address or other unique identifier, identified as being used for cyberbullying, to disclose information to assist in identifying the respondent or, if the person is a minor, a parent of the person; and
(b) make any other order that is necessary to identify the respondent.
7 A justice may make a protection order if the justice determines on a balance of probabilities that
(a) the respondent 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.
8(1) A protection order may include any of the following provisions that the justice considers necessary or advisable for the protection of the subject:
(a) a provision prohibiting the respondent from engaging in cyberbullying;
(b) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject or a person, or group of persons, specified in the order;
(c) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating about the subject or a person, or group of persons, specified in the order;
(d) a provision restricting or prohibiting the respondent from using a specified or any means of electronic communication;
(e) an order confiscating, for a specified period or permanently, any electronic device capable of connecting to an Internet Protocol address associated with the respondent or used by the respondent for cyberbullying;
(f) an order requiring the respondent to discontinue receiving service from an Internet service provider;
(g) any other provision that the justice considers necessary or advisable for the protection of the subject.
8(2) A justice may make a protection order for a period not exceeding one year.
9(1) A justice who makes a protection order must immediately
(a) arrange for the preparation of a written copy of it; and
(b) forward to the registrar of the court a copy of the protection order and each document submitted in support of the application for the purpose of review under section 11.
9(2) Within two working days after making a protection order, the justice must forward the transcript or recording of the proceedings to the registrar of the court.
10(1) A protection order must be served on the respondent in the manner prescribed by regulation.
10(2) A respondent is not bound by a protection order until he or she is served with the order.
10(3) A justice may dispense with service of a protection order and deem the respondent to have been served with the order if
(a) attempts at service or substitutional service of the protection order on the respondent have failed; and
(b) the justice is satisfied that the respondent is evading service.
10(4) When the subject is a minor, the protection order must be served on the subject's parent and, if the subject is at least 12 years of age, on the subject.
11(1) Within the time prescribed by regulation, the court must review a protection order and if the court is satisfied that there was sufficient evidence before the justice to support the making of the order the court must
(a) confirm the order; or
(b) vary the order.
The order as confirmed or varied is deemed to be an order of the court.
11(2) If, 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 must direct a hearing of the matter in whole or in part before the court.
11(3) If the court directs that a matter is to be heard, the registrar of the court must
(a) issue a summons in the form prescribed by regulation requiring the respondent to appear before the court; and
(b) give notice of the hearing to the subject or, if the subject is a minor, a parent of the subject.
11(4) The subject and, if the subject is a minor, a parent of the subject are entitled to attend and may fully participate in the hearing personally or by counsel.
11(5) The evidence that was before the justice must be considered as evidence at the hearing.
11(6) If the respondent fails to attend the hearing, the protection order may be confirmed in the respondent's absence.
11(7) Following the hearing, the court may confirm, terminate or vary the protection order.
12(1) If satisfied that it is fit and just to do so, the court, on application at any time after a protection order is confirmed or varied by the court, may
(a) remove or vary any term or condition in the order;
(b) add terms and conditions to the order; or
(c) revoke the order.
12(2) If the court is advised that there is an agreement that the protection order should be varied or revoked, but it is not satisfied that the agreement is free and voluntary, the court may adjourn the hearing to allow legal or other advice to be obtained.
12(3) Section 10 applies with necessary changes to an order made under this section.
13(1) The respondent or the applicant may appeal to the Court of Appeal a decision made under section 11 or 12 on a question of law or jurisdiction, within 30 days after the decision is made or within such further time as a judge of the Court of Appeal allows.
13(2) An appeal does not operate as a stay of the order under appeal and the order may be enforced as though no appeal were pending unless a judge of the Court of Queen's Bench or the Court of Appeal otherwise orders.
14(1) An application for a new protection order may be made in accordance with section 4 when
(a) a protection order has expired or will expire within the next 30 days; and
(b) a person believes that there is a continuing need for a protection order.
14(2) The respondent's compliance with a protection order does not by itself mean that there is not a continuing need for a protection order.
15(1) If the subject, the respondent or a witness in a proceeding relating to an application for a protection order is a minor, no person shall publish or broadcast the name of that person, or any information likely to identify that person.
15(2) For greater certainty, subsection (1) continues to apply once the subject, respondent or witness is no longer a minor.
16 On the request of a party to a proceeding relating to a protection order or a witness, the court may make an order prohibiting the publication or broadcast of the name of a person involved in the proceeding relating to the protection order, or any information likely to identify that person, if the court is satisfied that the publication or broadcast could endanger the safety or well-being of that person.
17(1) A person who contravenes section 15 or an order made under section 16 is guilty of an offence and liable on summary conviction,
(a) in the case of an individual, to a fine of not more than $5,000 or imprisonment for a term of not more than two years, or both; and
(b) in the case of a corporation, to a fine of not more than $50,000.
17(2) An officer, director, employee or agent of a corporation who directs, authorizes, assents to, permits or participates or acquiesces in the contravention of section 15 or an order made under section 16 may be convicted of an offence under subsection (1), whether or not the corporation has been prosecuted or convicted.
18(1) Any person who fails to comply with a protection order is guilty of an offence.
18(2) Any person who, knowing that a protection order has been made, causes, contributes to or permits activities that are contrary to the order is guilty of an offence.
18(3) A person who is guilty of an offence under subsection (1) or (2) is liable on summary conviction to a fine of not more than $5,000 or to imprisonment for a term of not more than six months, or both.
LIABILITY FOR CYBERBULLYING
19 A person who subjects another person to cyberbullying commits a tort against that person.
20(1) In an action for cyberbullying, the court may
(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;
(b) issue an injunction on the terms and conditions the court determines appropriate in the circumstances; and
(c) make any other order that the court considers just and reasonable in the circumstances.
20(2) In awarding damages in an action for cyberbullying, the court must have regard to all of the circumstances of the case, including
(a) any particular vulnerabilities of the plaintiff;
(b) all aspects of the conduct of the defendant; and
(c) the nature of any existing relationship between the plaintiff and the defendant.
20(3) If the defendant is a minor, a parent of the defendant is jointly and severally liable for any damages awarded to the plaintiff unless the parent satisfies the court that the parent was exercising reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the harm and made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the harm.
20(4) For the purpose of subsection (3), in determining whether a parent exercised reasonable supervision over the defendant at the time the defendant engaged in the activity that caused the loss or damage or made reasonable efforts to prevent or discourage the defendant from engaging in the kind of activity that resulted in the loss or damage, the court may consider
(a) the age of the defendant;
(b) the prior conduct of the defendant;
(c) the physical and mental capacity of the defendant;
(d) any psychological or other medical disorders of the defendant;
(e) whether the defendant used an electronic device for the activity that was supplied by the parent;
(f) any conditions imposed by the parent on the use by the defendant of an electronic device;
(g) whether the defendant was under the direct supervision of the parent when the defendant engaged in the activity;
(h) in the event that the defendant was not under the direct supervision of the parent when the defendant engaged in the activity, whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant; and
(i) any other matter the court considers relevant.
21 A right of action or a remedy under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under the common law or by statute.
22 The Lieutenant Governor in Council may make regulations
(a) respecting the forms to be used and procedures to be followed for making an application for a protection order and for hearing applications for protection orders, including the transmission of applications for protection orders;
(b) respecting other forms, including the information to be contained on the form of protection orders;
(c) respecting the forwarding of protection orders and other documents to the court by justices;
(d) prescribing the time period within which the court must review a protection order;
(e) respecting the form and manner of serving notices, summonses and other documents required to be served, issued or given, including substitutional service and a rebuttable presumption of service;
(f) defining any word or phrase used but not defined in this Act;
(g) respecting any matter necessary or advisable to carry out the purpose of this Act.
23 This Act may be referred to as chapter C370 of the Continuing Consolidation of the Statutes of Manitoba.
24 This Act comes into force on a day to be fixed by proclamation.