Anti-bullying legislation directed at incidents in schools is getting a lot of attention in Ontario.
While lots of people are talking about the issue, the proposed legislation contains glaring holes.
Last Nov. 30, the Ontario government introduced bill 13, the accepting schools act, that gained considerable traction following the suicides of two young people. Jamie Hubley was a 15-year-old student who took his life after being targeted for his sexual orientation.
The boy was the son of an Ottawa city councillor. The other suicide involved Mitchell Wilson, an 11-year-old in Pickering, Ont., who suffered from muscular dystrophy.
Tory MPP Elizabeth Witmer, a former minister of education who recently resigned her seat in Kitchener-Waterloo, proposed her own legislation through bill 14, the anti-bullying act, on the same day the government introduced bill 14.
The government had initially aimed to have bill 13 become law on Sept. 1, 2012. However, bell-ringing tactics by Ontario Conservative MPPs helped delay the debate on bill 13. Both bills 13 and 14 are now before the standing committee on social policy and there’s a move afoot to merge the two.
The committee will be holding public hearings in Toronto and Ottawa.
Clearly, there’s politicking going on. That’s unfortunate because bullying is a serious problem in Ontario schools that the government should address. It’s not that this is new. But what’s new is an attempt by legislators to get tough with bullies.
Let’s have a look at bill 13. The wording is such that it’s largely targeting discrimination and bullying specific to sexual orientation. While that’s fine and good, the bill has some glaring holes.
For example, what about the kid who gets relentlessly teased about his red hair to the point where going to school becomes a nightmare?
What about the kids attacked on Facebook, Twitter or other social media channels to the extent that they can’t look another student in the eye?
And what about the student bullied by a teacher or, for that matter, the teacher bullied by a student?
There’s nothing in the proposed legislation to address these situations. But all of these things happen in schools and it might be naive to think that legislation is going to put an end to such abuse.
What’s important, however, is that people know there will be consequences when teasing becomes bullying. And this, of course, begs the question as to where to draw the line. It all goes back to the fact that we can’t really legislate behaviour.
Bill 13 defines bullying to be repeated and aggressive behaviour by a pupil where the actions aim to cause, or the student ought to know that they would be likely to cause, harm, fear or distress to another individual, including psychological harm or harm to the person’s reputation.
At the same time, the behaviour must occur in a context where there’s a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, race, disability or the receipt of special education.
As for the consequences, bill 13 says that students who bully may face expulsion. It proposes an amendment to subsection 310(1) of the Education Act and adds a provision for bullying if the pupil has previously been suspended for engaging in bullying and the student’s continuing presence in the school creates an unacceptable risk to the safety of someone else.
That one could be a problem. For example, what if the perpetrator commits a very serious act and it’s only a first offence? Should they only be suspended with no consideration of expulsion?
This is a political football now. Gay-rights advocates want to see the proposed government legislation become law in order to protect gay students.
On the other hand, many Catholic parents are against bill 13 because they feel it goes against Catholic teachings in schools and could prevent students from expressing their religious views.
In fact, one group of Catholic parents has already staged a protest at Queen’s Park. Their major concern is that the accepting schools act would require school boards, including Catholic ones, to support students who want to form support groups along the lines of gay-straight alliances.
Bullying at school isn’t an issue specific to Ontario.
Anti-bullying legislation has also taken root in Quebec, Alberta, New Brunswick, and Newfoundland.
In an ideal world, the school climate wouldn’t allow bullying at all. But passing legislation is one thing; truly changing behaviours is another.
The risk is that once bill 13 or any other legislation becomes law, the government will be content in the belief that it has well and truly solved the problem.
Of course, that won’t be the case. We don’t need window-dressing legislation. What we need is for the government to allocate sufficient funding to school boards and other social agencies for effective anti-bullying programs and for addressing any underlying mental-health issues of students who engage in bullying.
Sheila MacKinnon is a lawyer in the Windsor, Ont., office of Shibley Righton LLP. She’s a member of the firm’s education and public law group and has been involved in issues such as access requests under privacy laws, as well as privacy complaints, suspensions, expulsions, investigations under internal board policies, school board governance, workplace employment policies, and human rights matters. She represents school boards throughout Ontario.
