Canada: Pink Shirt Day: The War On Bullying

Last Updated: February 23 2017
Article by Harris Rosen

Dedication: For Mitchell Wilson and his family. I never knew this brave young man, but I came to know his story, which I have retold in various forums as a cautionary story.

WHAT IS "BULLYING"

In my law practice I routinely advise the private post-secondary sector, which includes private career colleges, private degree granting institutions, language schools, and corporate trainers-- almost exclusively. Some time ago, I began adding anti-bullying policies for post-secondary institutions. While people commonly think of bullying as behaviour that is exclusive to elementary, middle, and high school students, I beg to differ.

I do confess, however, that my real interest in this issue is as father of three. My 9 year old son and my 6 year old twin daughters are more likely than ever to experience bullying on the web, than in the playground. After the province of Ontario had passed anti-bullying legislation not long ago, I wondered whether this would really make a positive difference. Or by contrast whether the raging hormones and emotions of teenagers and the sheer ubiquity and speed of smart phones would supplant the futile attempts of lawmakers. While I acknowledge that anti-bullying legislation is a necessity, I prefer to think of it as a necessary but not sufficient condition of progress.

There are many definitions of "bullying" amongst education statutes from province to province in Canada, across the United States, and in the United Kingdom. But I like the definition as articulated by Christoph Burger, Dagmar Strohmeir, Nina Sprober, Sheri Bauman, and Ken Rigby at https://en.wikipedia.org/wiki/Bullying, as follows:

"Bullying [is] defined as the activity of repeated, aggressive behavior intended to hurt another individual, physically, mentally or emotionally"...

Three critical elements are involved in bullying, according to these experts (1) hostile intent, (2) imbalance of power, and (3) repetition over a period of time.

I would agree with the above definition advanced by these experts, but I wonder whether the imbalance of power should have to be an actual one or merely perceived by the victims of bullying? In Ontario there is a subjective element to bullying legislation. Repeated conduct of the perpetrator is an element of most or all of the definitions which I have seen across different jurisdictions.

In Canada, the courts are considering a breadth of new cases which touch the subject of bullying. In one such case before the Ontario Court of Appeal (D.E. v. Unifund Assurance Co., 2015) the court denied homeowners insurance coverage to parents who were sued for their children's alleged bullying activity. While there are far more compelling reasons than pecuniary ones to discourage your children from bullying other children, the courts will be increasingly called upon to consider liability and damages thresholds for bullying.

Cyberspace is open 24/7. So a willing perpetrator need not relegate herself or himself to the school playground any longer.

I will take you for a short but sad and sobering journey of a few cases that we have come across here in Canada, and which are a reminder of why this is a "war" of sorts. But I will end on a very high note which includes reference to a bullied teenager that created an "App" that combats bullying, normalizes collegiality in a high school setting, and makes bullying uncool. Rather than focus on the evils of technology, let's teach our children to use technology to make the world a better place. Social innovation subsumes innovation to combat terrorism, climate change, poverty, water shortages, and food shortages. But it should also include measures to combat the devastating damage to the psyche known as bullying. Bullying has lasting impact to both the bullied and the perpetrators and the web is littered with such credible studies.

WHAT "WAR"?

I have no medical background and nor do I purport to be a bullying expert. Though I am developing some expertise that is context-specific to post-secondary bullying. While much bullying activity may be caught under the provincial human rights codes of each province in Canada, this is only so to the extent that a complainant can demonstrate that the bullying conduct also subsumes a specific enumerated ground of discrimination. Bullying, as defined above, is something broader. While we should be very careful not to throw out the proverbial baby (free speech and expression in this case) with the bath water, progressive institutions organizations should strive to consider precisely what kind of culture they wish to promote in order to ensure not only physical health of their employees and students, but also the emotional health of these groups.

I am a committed parent who thinks about what his children could be walking into as they approach "middle school" and high school years. The impersonal nature of a cell phone and the myriad of apps allow children to communicate faster than ever before, and in ways they never did before. Even for children, I am guessing that it is much easier to be a bully when you don't have to show your face.

Mitchell Wilson

Mitchell was an 11 year old boy with Muscular Dystrophy. He could not physically fight back when other classmates physically bullied him. A student was expelled after smashing his face to the ground, but the real fight of his life (aside from the obvious, Muscular Dystrophy) must have been to preserve his own self-esteem, his own psyche and self-worth. His peers allegedly bullied him even more, following the expulsion of their co-conspirators. He lived in fear. He committed suicide. https://www.thestar.com/news/crime/2012/03/05/mitchell_wilson_bullying_case_notguilty_verdict_for_accused_attacker.html

W.R.: Shoulder Bump Constituted Bullying (a case involving an alleged Young Offender/minor, in Ontario)

In W.R., the accused and the complainant (S.R.) were adolescents at the same high school. S.R. "shoulder bumped" W.R. and allegedly called the latter a "faggot" and "loser". S.R. approached the accused in an intimidating way again during the break and the accused punched the complainant many times, injuring him (stiches to lip). The relevant aspect of the court's decision is that it rightly considered a shoulder bump to be a form of bullying. It was not the physical hurt that mattered here, but the subjective element of fear, imbalance of power, and damage to W.R.'s self-esteem.

Jubran (a case involving school board in B.C.)

High school students bullied another in this case, on the basis of sexual orientation. They repeatedly harassed the victim, calling him a homosexual. While he was not homosexual, that did not matter to the trier of the fact. The perpetrators burned cigarette holes in the victim's shirt, swarmed him, and visited upon him constant and unwavering forms of bullying. The case also highlights the dangers of ring leader and follower mentality.

My objective in this piece is not to cover off current cases or to highlight the law, which I have done in a non-exhaustive fashion as a mere overview of some of the conduct that has been heard by the courts. The sad reality is that most of the bullying activity which occurs today is likely driven by the fast and impersonal nature of technology. Technology is, after all, a blessing and a curse. Let's make it a blessing. Victims and their families will be remiss to come forward for fear of reprisals, even with a broader support network. Support of an organization or academic institution, as the case may be, is necessary but not sufficient.

Section 162.1 of the Criminal Code of Canada as amended on March 20, 2015 now criminalizes certain activities such as "sexting", which can also be a form of bullying. Cyber-bullying is also expressly recognized now, and the above are steps in the right direction. But (and I am beaming with joy when I think about this) the Criminal Code of Canada could not accomplish what a socially aware teenager did, by creating a clever "App".

"COME SIT WITH US" ANTI-BULLYING APP

While there is no substitute for the hard work of committed parents to assist children in understanding the concept of self-worth, Come Sit With Us is one of the best forms of social innovation I have heard of in some time. It is a kick in the pants to would-be bullies and it is a high road solution. The article in the Huffington Post (link below) speaks for itself, but at the core of this App is a privacy feature that allows teenagers who feel alone, bullied, or isolated to invite others to lunch or sit with them.

If we make people like 16 year old Natalie Hampton our heroes, other kids will gravitate toward the new "cool": helping and empowering, and not hurting others.

http://www.huffingtonpost.com/entry/teen-creates-app-sit-with-us-open-welcoming-tables-lunch-bullying_us_57c5802ee4b09cd22d926463

Most 10 year olds, 13 year olds, and even 16 year olds are unaware of what eventually happens to "nerds". For anyone who do not see the blockbuster film, Revenge of the Nerds, I can assure you that the nerds got even with the people who bullied them: http://www.imdb.com/title/tt0088000/ Different era of course, and putting aside the levity and vigilante components of a film like this, there is nothing whatsoever funny about bullying itself. There is some real merit, however, to children understanding what happens to "nerds" later in life. They become Bill Gates, Joni Mitchell, Taylor Swift, Natalie Portman, Albert Einstein... and Miss Universe.

LOW TECH SOLUTIONS

Webcasting the stories of famous people to recount their own stories of how and when they were bullied, is important. Famous individuals cannot be everywhere, but social media makes it much easier to broadcast this message today.

Earlier this year I had the privilege of moderating an event at a language school where Miss Pia Wurtzbach (Miss Universe 2015) and Paola Nunez (Miss Universe Canada 2015) recounted to hundreds of young students-- many of them young women-- about how they themselves had been bullied. Since the event had been broadcast in the Philippines, the message got out to potentially millions of young women. We need to continue to press on with these messages so that kids who feel bullied do not feel isolated-- apart and aside from any other form of remediation or assistance that might exist.

BULLYING IN THE POST-SECONDARY CONTEXT

While we would not want to overuse the word "bully" so as to dilute its meaning, the notion of bullying should be looked at more closely in the post-secondary context. Free speech and expression are constitutional underpinnings of a free and democratic society. But the "sticks and stones" adage i.e. that "names will never hurt me", is a misguided phrase. Words can be hurtful, and they can create lasting impressions which are neither desirable nor just in the circumstances. In a post-secondary environment or in the workplace, bullying can lead to an erosion of one's reputation (not to mention that of the organization that is the locus of the conduct in question), lost productivity, and an overall failure to achieve learning or productivity outcomes.

HAZING RITUALS

A "rite of passage" of fraternities, sororities, secret societies and sports teams, hazing has been extremely problematic. Just months ago, a "No Gay Thursday" ritual prompted the poking of a 14 year old boy with a broom handle. The physical act in this case paled in comparison to the emotional trauma. And while many see hazing itself as tradition which should not be readily abandoned, there was also a time when smoking was fashionable and even "cool". Rituals which start from a place of humility and further humanity, are those we should strive for. This recent example is obviously egregious, but even the less egregious rituals which have humiliation at their core in one way or another, should be abandoned and made unfashionable.

http://www.cbsnews.com/news/pennsylvania-high-school-football-players-settle-hazing-case-over-no-gay-thursday/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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