Respectful and

Responsible Relationships:

There’s No App for That

A presentation based on the findings of the

Nova Task Force on Bullying and

Cyberbullying

A. Wayne MacKay C.M. Q.C. Professor of Law, Dalhousie University

Yogis and Keddy Chair in Human Rights Law

NS Cyberbullying Task Force Chair

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The Dark Side of Technology

and Social Media

“People become brave on Facebook; they

become keyboard warriors.” ~Grade 11 Student

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Background In the Spring of 2011, we had several youth die tragically in

Nova Scotia, and in a number of these cases bullying was thought to be a contributing factor.

The Minister of Education, in response to these deaths and the increasing concern around bullying in schools, decided to strike a Task Force in May of 2011 to examine and recommend how to address this problem.

The Task Force Report provided recommendations on legislative change, education and prevention programs with pragmatic and practical strategies supported by the findings of the Task Force and Working Group. The Task Force submitted its Report on February 29, 2012. It was released in March, 2012.

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Almost one year later in April, 2013 the tragic suicide of Rehtaeh Parsons at age 17 became public. An alleged sexual assault by four classmates from Cole Harbour High, followed by a photo of this event circulating online and consequent cyberbullying, were cited by her mother as critical contributors to her death.

The Parsons case received local, national, and international attention and sparked a ground swell of public opposition to the response (or lack thereof) of both the N.S. Education and Justice systems.

Police have re-opened the criminal investigation (which originally produced no charges) and the Nova Scotia Government launched a review of how both the schools and the police handled the alleged sexual assault and the relentless cyberbullying.

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A National and International

Problem Stubbenville, Ohio rape of young woman by

classmates and members of school football team –

original reluctance to prosecute but eventual

conviction. Victim attacked on social media.

Santa Clara County, California rape of 15 year old

Audrie Pott by Saratoga High classmates, followed by

relentless cyberbullying and ultimately her suicide.

Four boys have been arrested and charged criminally

and parents have filed a law suit for wrongful death

against alleged attackers.

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A Mainstream Issue http://www.submitthedocumentary.com/portfolio-item/trailer-1/

Amanda Todd

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Amanda Todd, a Vancouver-area teenager who posted a story

to Youtube about being cyber-bullied, committed suicide in

2012. Amanda’s video tells a heart-breaking story of being

bullied and threatened online, starting in the 7th grade.

http://www.youtube.com/watch?v=ej7afkypUsc&fb_source=message

How big is the Problem?

In order to gain an understanding of the scope of the

Bullying and Cyberbullying problem in Nova Scotia the

Task Force conducted an online survey which targeted

students, parents, and community members from

across the province (5000 responses).

The Task Force conducted Youth Focus Groups which

explored the topic of Bullying and Cyberbullying. The

Task Force also conducted targeted focus groups in

relation to particular minority groups within Nova

Scotia.

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Youth Consultations and

Focus Groups 39% of students answered “Yes” to being bullied

online.

When broken down we are able to see that 46% of High

School Students, 38% of Junior High, and 34% of

Elementary students answered “Yes” to being bullied on

line.

Reasons for being Bullied

1) Sexual Orientation

2) Physical Features

3) Personal Behavior

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Bullying as a Serious Problem in

Nova Scotia/Local Community

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% of students who felt this was a factor in

bullying*

The way you look 44%

Who you hang out with 40%

Others think you are weird or different 39%

Make good grades or poor grades 24%

People think you have lots of

boyfriends/girlfriends

18%

Other kids think you are rich or poor 16%

Others think you are gay or that you act

gay

12%

You have identified as being gay, lesbian,

bisexual…

8%

Race 7%

Religion 7%

You have a disability 6%

Come from a different country 5%

Reasons for being bullied

(as reported by students)

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How do we define Bullying

and Cyberbullying?

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The Nova Scotia Task Force Recommended

Definition: Bullying is typically a repeated behaviour that is intended to

cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another

person’s body, feelings, self-esteem, reputation or property

Bullying can be direct or indirect, and can take place by written, verbal, physical or electronic means, or any other

form of expression.

Cyberbullying (also referred to as electronic bullying) is a form of bullying, and occurs through the use of technology. This can include the use of a computer or other electronic

devices, using social networks, text messaging, instant messaging, websites, e-mail or other electronic means. A person participates in bullying if he or she directly carries

out the behaviour or assists or encourages the behaviour in any way.

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“Other people’s feelings should be more important than your own. If everybody thought

that way, there wouldn’t be any bullying”.

~ Grade 4/5 student

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Who should be responding to

this issue?

Parents

Teachers

Schools

Administrators

Schools Counsellors

Justice System

Judges, Police,

Lawyers

Community

Internet service

providers

Social Media

Networks

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How do we respond?

Whole School and Inclusive Approach

Inter-agency Government Responses (Schools Plus as one

example)

Proactive Interventions

Education

Progressive Discipline

Restorative Approaches

Youth Engagement

Providing Support Networks

Legal Actions

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Safe Schools

• Criminal Code

• Lawsuits

• Negligence

• Defamation

• Constitutional Limits

• Human Rights

• Restorative Justice

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Criminal Law

Criminal Code

Defines crimes, such as:

Assault (section 265)

Criminal Harassment (section 264)

Uttering Threats (section

264.1)

These definitions apply to

everyone.

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Youth Criminal Justice Act

(YCJA)

Applies to youth age 12-17

Provides procedure and

sentences, which are different

from those of adults

Provides more protections for

youth charged with offences,

such as

Right to have parent &

attorney present at

questioning

Ban on publishing name of

accused

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Crime of Cyberbullying?

44: It is recommended that the provincial Minister of

Justice make representations to the federal Minister of

Justice about evaluating the effectiveness of current

Criminal Code provisions in responding to bullying and

cyberbullying and exploring the pros and cons of a distinct

crime of bullying and cyberbullying.

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Lawsuits: Negligence

Negligence: Failure to execute a legal duty in a

reasonable way. (foreseeable?)

“When things go wrong and school authorities do not take

the reasonable steps needed to protect students from

foreseeable risks such as bullying and cyberbullying,

parents are increasingly considering negligence lawsuits.

It is important to note that school boards cannot and are

not legally required to guarantee the safety of their

students but they do have a duty to take reasonable steps

to ensure a safe school environment”.

Task Force Report pg. 54-55

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Lawsuit: Defamation

Defamation: Untrue statements that damage another’s

reputation

Defamation is a tort (a civil wrong), which could be

applicable to some cases of cyberbullying, for example, in a

case where someone has published or circulated false and

harmful information on the internet. When done publicly,

bullying of this sort may cross the line into defamation.

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AB v. Bragg Communications Inc.

2012 SCC 46

Plaintiff, victim of cyber-bullying, couldn’t pursue her tort case without her name being published

The SCC recognized that there are interests sufficiently compelling to justify restricting access to her information: privacy and the protection of children from cyberbullying.

The SCC cited the NS Task Force report: Respectful and Responsible Relationships: There’s No App for That. The decision included the Report’s definition of bullying, and noted the harmful consequences associated with bullying.

MacKay’s Task Force Report is consistent with the inference that victims are more likely to pursue legal action if they can remain anonymous. Half of all bullying goes unreported, in part because reporting is seen as causing more problems than solutions (para 24).

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Constitutional Limits Division of Powers (Jurisdiction)

Federal jurisdiction (e.g. Criminal law, national

communication networks)

Provincial jurisdiction (e.g. Education, hospitals, property

matters)

Canadian Charter of Rights and Freedoms

Privacy

Free Speech

Brown v. Entertainment Merchants Association. (USA)

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Brown v. Entertainment Merchants Association (2011 USSC)

“But what sense does it make to forbid selling a 13 year old

boy a magazine with an image of a nude woman, while

protecting a sale to that 13 year old of an interactive video

game in which he actively, but virtually, binds and gags the

woman then tortures and kills her? What kind of First

Amendment would permit the government to protect

children by restricting sales of that extremely violent video

game only when the woman – bound, gagged, tortured and

killed – is also topless?” ~Dissenting Justice Breyer

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Human Rights

Human Rights

Commissions have a pivotal

and significant role to play

in any bullying prevention

strategy.

Recently the Human Rights

Commission in Australia has

been addressing issues of

school bullying as a human

rights issue within their

jurisdiction.

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The Role of Human Rights

Commissions

Education

Mediation

Complaint/Investigation

Harassment

Accessible/ Low Cost

Restorative Approaches

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North Vancouver School Board v. Jubran (2005) BCCA

This case found the School Board in breach of the B.C.

Human Rights Code for not providing proactive and

preventive measures to combat homophobic bullying

against its students, including Mr. Jubran. Merely

suspending the individual bullies was not enough: a

systemic change was needed to ensure a safer school

climate.

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Nova Scotia Task Force on Bullying

and Cyberbullying Recommendations

45. It is recommended that the Department of

Justice further explore the links between bullying

and marginalized groups such as those protected

under the Nova Scotia Human Rights Act, to

determine whether changes need to be made to the

Nova Scotia Education Act, regulations or policies

to better protect these groups from bullying and

cyberbullying.

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23. It is recommended that the Nova Scotia Department of Education and the Nova Scotia Human Rights Commission work together to develop a protocol whereby issues of bullying and cyberbullying in schools can, where appropriate, be referred to the Human Rights Commission, to be handled as matters of human rights. Whether these issues should be handled through the complaint mechanism, mediation, restorative approaches or educational initiatives and what factors should determine the mode of disposition should form part of the jointly developed protocol.

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Restorative Approaches

“Restorative Justice (and its school cousin, restorative approaches) are part of a growing movement to examine social issues in terms of relationships between individuals and to move away from a more individual centered view of the world.*”

“A restorative approach can also be taken to handle conflict and discipline within the school while promoting and building positive relationships and school attachment. This approach holds individuals accountable for their actions while encouraging their involvement and voice within the school community.*”

*Task Force Report pg. 74- 75

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The following are some guiding principles that assist in understanding a

restorative approach:

Students learn best when they have positive relationships within the school community.

Positive (restored) relationships require equal respect, dignity and concern.

In order for students to understand and learn how to relate as human beings they need to take responsibility for their actions.

Responsibility and accountability can best be fostered through an understanding of the impact of our actions on our relationships with others; it is rarely meaningful when it is inflicted or forced through punishment.

Developing healthy relationships requires student engagement, leadership and a holistic, community based approach.

Conflict provides an opportunity to restore and to build positive relationships.

All practices and processes, not simply discipline processes, within the school, should be centered on a relational, restorative approach.

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Education, Legislation on Bullying

and Cyberbullying Ontario, Nova Scotia, Quebec and New Brunswick are leading the

way with anti-bullying legislation:

Ontario: In 2012 the Accepting Schools Act received Royal Assent. The Act amends the Education Act and requires that school boards take a proactive approach to combat bullying and endorse a “whole school” approach to the issue. The Act also creates a bullying awareness week in schools and provides instruction regarding issues of bullying and dealing with situations where bullying occurs.

Nova Scotia: NS has legislation in place regarding bullying. The Promotion of Respectful and Responsible Relationships Act amended the preamble to the Education Act to make it a much more inclusive, safe, restorative, and whole school approach.

Quebec: In June 2012 the Quebec Government adopted legislation titled Bill 56: An Act to Prevent and Stop Bullying and Violence in Schools. The text of the legislation places great emphasis on prevention. The Act states that rules of conduct for schools now must include behaviour on social media as well.

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Nova Scotia Continued:

The Preamble to the Education Act was amended to include:

AND WHEREAS students, parents, teachers, support staff, principals and school boards share responsibility for creating a school-wide approach with supports embedded within codes of conduct to maintain a positive and inclusive school climate where everyone has a role to play in the awareness and prevention of disruptive and severely disruptive behaviour—including bullying and cyberbullying—and where all students are supported to develop healthy relationships, make good choices, continue their learning and achieve success;

AND WHEREAS an orderly and safe learning environment where all students feel respected and accepted is a necessary condition for student success;

AND WHEREAS students must be held accountable for their actions, and responsibility and accountability can be fostered through preventative, proactive and

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Provincial Legislation on Bullying and

Cyberbullying PROVINCE ANTI-BULLYING RESPONSE

BC No specific anti-bullying legislation. However, on June 1, 2012,

Premier Christy Clark announced ERASE (Expect Respect and a

Safe Education), a $2 million, 10-point strategy to combat bullying

and ensure every child feels safe and accepted.

ALBERTA Bill 3, the Education Act, came into force in November 2012. It has

been described as the toughest anti-bullying legislation in Canada.

Students are required to report acts of bullying, even those outside

of school hours and even if the bullying does not take place within

the school.

SASKATCHEWAN No specific legislation. In 2005, the Saskatchewan government

announced a province-wide Anti-Bullying Strategy. In 2013 the

Ministry of Education finished a review on bullying in Saskatchewan,

and it said “there could be room for an anti-bullying law in the

province.”

MANITOBA Bill 18 currently before the Legislature. The Public Schools

Amendment Act would define “bullying” and expand the duty to

report cyberbullying. The Act has been subject to criticism from

religious organizations who say that the Bill would force

accommodation of students who want to start anti-bullying clubs,

including gay-straight alliances. 37

Provincial Legislation on Bullying

and Cyberbullying

PROVINCE ANTI-BULLYING RESPONSE

NEW BRUNSWICK Passed legislation in 2012 under Bill 52: An Act to Amend the

Education Act, includes a definition of bullying and amends the

Education Act to add that bullying is cause for suspension.

PEI No specific legislation, although In April 2012 the Legislative Assembly

passed Motion 14 to “encourage the government in the adoption of

anti-bullying legislation in Prince Edward Island.”

NFLD No specific legislation at present. Newfoundland established the Safe

and Caring Schools policy in 2006, which includes a code of conduct

for creating healthy school environments.

YUKON, NWT &

NUNAVUT

The Yukon introduced a Safe and Caring School policy in 2008. The

policy defines bullying and outlines how schools are to respond to

incidents of bullying.

The Northwest Territories debated Motion 5-17(2) regarding anti-

bullying measures in February 2012. The motion called for a territory-

wide campaign against bullying.

No specific anti-bullying legislation for Nunavut.

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Concluding Thoughts

“Bullying is a major social issue

throughout the world and is one of

the symptoms of a deeper problem

in our society: the deterioration of

respectful and responsible human

relations.

The magnitude of the problem is

daunting and there are no simple

solutions on the horizon. There are,

however, some effective strategies.”

Wayne MacKay

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Law as Catalyst for Change

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Discussion Period

41 cyberbullying.novascotia.ca and unlikecyberbullying.ca