Understanding Canadian Law Three-Book Bundle. Daniel J. Baum
want girls to have a voice.… We encourage you to take a stand and not be afraid to make a difference.… Four girls at [this school] also decided that they would not be bystanders last week, and we are proud of their courage in coming forward to do something about unacceptable material on a student-created website.…
When you hear of a fellow student being deliberately excluded, ridiculed or called names, or when you hear unkind rumours about someone, it is not a joke.… Each of you can play your part to make sure that, as a community, we do not tolerate bullying of any kind (Black, 2005).
The boys’ school principal also acted quickly. He expelled three boys for either posting offensive photos or for the hate reply sent to the girls. He suspended four other students for not stopping what they saw happening. The suspensions were from two to four days. The expulsions were for the remainder of the school year. Any attempt on the part of those expelled to return, the principal said, would be subject to school review.
The Toronto Star wrote that the incident had a broader lesson in terms of prejudice and tolerance. Editorially, it stated:
Of course, some might argue, kids will be kids. That sometimes means acting impulsively and foolishly. But that does not mean that students who posted the images and messages should be let off lightly for their abhorrent expressions of hate. While the students, one of whom is Jewish, apparently did not commit the odious acts on school property, the schools have dealt with the incident swiftly and appropriately.
[The boys’ school] has expelled the boy who posted the photos and the two boys who responded to [the girls’] complaints. Both schools have also held assemblies to educate students about anti-Semitism. That sends a message to all students at these schools that anti-Semitism will not be tolerated. It is the right message.
The incident also reminds us that Canadians must remain vigilant against expressions of hate.… Tolerance must be nurtured both at home and at school. Children must learn the troubling histories of the Holocaust, the slave trade, the internment of Japanese Canadians during World War II and other human-rights atrocities. More important, we all must be ready to stand up to bigotry and racism, wherever it confronts us (“Standing Up to Hatred,” 2005).
The Criminal Law and Cyberbullying
Cyberbullying has not been made a criminal offence. Current laws do not provide police with all the tools needed to investigate online harassment. Such was the position taken in 2008 by the Canadian Teachers Federation (CTF). Emily Noble, CTF president, stated:
We feel there’s not enough teeth in the Criminal Code right now for cyberbullying.… A lot of people get on the electronic medium and think they can send whatever emails they want and they’re anonymous. The reality is we need to take responsibility and care for each other. We all have to treat each other with respect.
The internet is the new playground. So let’s get some ground rules in terms of how we treat each other. Teachers would like to know they’ve got some backup, and they’ve got some support from parents, the community and decision-makers (Mahoney, 2008).
Applying the criminal law to web harassment, however, has some difficulties, especially as it relates to those under the age of eighteen. Contrary to what cyberbullies may believe, tracing their identities is possible. The difficulty comes from their youthful status under the criminal law. The Youth Criminal Justice Act might treat the intimidation or threatening of another as an offence. But the young offender’s identity, for the most part, would be protected.
A Media Awareness Network Survey in 2005 found that 34 percent of Canadian students had been bullied, and 27 percent of those bullied were threatened over the Internet:
The anonymity of online communications means kids feel freer to do things online they would never do in the real world. Awareness Network research from 2005 shows that 60 percent of students pretend to be someone else when they are online. Of those, 17 percent do so because they want to “act mean to people and get away with it.” Even if they can be identified online, young people can accuse someone else of using their screen name. They don’t have to own their actions, and if a person can’t be identified with an action, fear of punishment is diminished (“Challenging Cyber Bullying.” www.bewebaware.ca/english/cyberbullying.html).
The problem may not be the need for new laws so much better police training to enforce existing laws. Such seems to be the message of Prime Minister Stephen Harper who said: “I think we’ve got to stop using the term bullying to describe some of these things. Bullying to me has a kind of connotation of kids misbehaving. What we are dealing with in some of these circumstances is simply criminal activity. It is youth criminal activity. It is sexual criminal activity. And it is often internet criminal activity” (Taber and Walton, 2013).
The reach of the law over cyberbullying could include existing offences such as sexual assault, child pornography (even when produced and shared by other minors), the sexual exploitation of children, criminal harassment (no matter what the medium), uttering threats, and intimidation.
Nick Bala, a Queen’s University law professor and expert on youth crime, says that “investigations often founder for lack of computer acumen. Police need the expertise not only to identify the individual who posted a message or photo, but those who reposted and distributed it (Makin and White, 2013).”
“Kick a Ginger Day”: Just a Joke?
In November 2008, some Facebook groups picked up the idea of “Kick a Ginger Day” to target red-haired children. Lacking any objective cause, the reason seemed to be for fun. (It may be that the “idea,” if such it may be called, came from an episode of South Park, a popular animated television show in which a character speaks to his classmates about the evils of “ginger kids.” They are called “nasty” and “born with a disease.”)
But, Kick a Ginger Day was not so much fun for the recipients. The activity spread throughout North America. In Prince George, British Columbia, a red-head was kicked eighteen times before being allowed to go on his way. In Flin Flon, Manitoba, an elementary school principal met with a worried mother concerned about the safety of her red-headed son. In Ottawa, a mother let her thirteen-year-old red-headed son stay home because he was afraid of what a day in school might bring from his class mates (Windgrove 2008).
Neo-Nazi Attacks: A German Penalty
Germany has experienced a number of violent attacks — including murders — against foreigners, many from Africa. The attacks seemed to have dated from November 25, 1990, when rightists killed an Angolan. On August 30, 2000, Judge Albrecht Hennig was responsible for sentencing three young neo-Nazis who had beaten to death Alberto Adriano, age thirty-nine, a meat packer from Mozambique. They did this because of the colour of the victim’s skin.
One of the three was an adult, the other two, sixteen years old, were sentenced as juveniles. The adult was given a life term, the most severe penalty under German law. The youths were given detention terms of nine years each, one year less than the maximum allowed under German law.
Judge Hennig stated, “[The attack] was the latest in a long series of attacks to which we must put an end.… We need the engagement of civil society.… We need a repeat of what the people in the east of our country did in the peaceful revolution of ten years ago, an involvement in the fight for what is right” (Cohen 2000a; 2000b).
References and Further Reading
* Cited by the Supreme Court of Canada.
Alphonso, Caroline, and Joe Friesen. 2005. “Jewish Pupil among Three Expelled.” Globe and Mail, May 3.
American Academy of Pediatrics. “Bullying: It’s Not OK.” http://www.aap.org/connectedkids/samples/bullying.htm
Appleby, Timothy. 2000. “Making Sure Myles Didn’t Die in Vain.” Globe and Mail, September 2.
Armstrong, Jane, and Kirk Makin. 2009. “The Reena Virk Murder.” Globe and Mail, June 13.
Bala, Nicholas. 2003. “Understanding Sentencing Under the Youth Criminal Justice Act.” 41 Alberta Law Review 395.
Barriere, Darlene.