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TRANSCRIPT
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
1
The Dark Side of Technology
and Social Media
“People become brave on Facebook; they
become keyboard warriors.” ~Grade 11 Student
2
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
9
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.
10
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
12
% 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)
13
How do we define Bullying
and Cyberbullying?
14
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.
15
“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
16
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
17
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
18
Safe Schools
• Criminal Code
• Lawsuits
• Negligence
• Defamation
• Constitutional Limits
• Human Rights
• Restorative Justice
19
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.
20
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
21
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.
22
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
23
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.
24
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).
25
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)
26
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
27
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.
28
The Role of Human Rights
Commissions
Education
Mediation
Complaint/Investigation
Harassment
Accessible/ Low Cost
Restorative Approaches
29
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.
30
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.
32
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.
34
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
36
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
40
Discussion Period
41 cyberbullying.novascotia.ca and unlikecyberbullying.ca