Proceedings of the Standing Senate Committee on
Human Rights

Issue 15 - Evidence (evening meeting)


OTTAWA, Monday, June 11, 2012

The Standing Senate Committee on Human Rights met this day at 6:30 p.m. to study the issue of cyberbullying in Canada with regard to Canada's international human rights obligations under Article 19 of the United Nations Convention on the Rights of the Child.

Senator Mobina S. B. Jaffer (Chair) in the chair.

[English]

The Chair: Senators, we are reconvening for the last part of our study and the last meeting on cyberbullying. I am pleased to say that this meeting is the cherry on the cake as two exceptional people will testify this evening. They both kindly agreed to come back. They are among the busiest people in the world, but this shows their commitment to the issue.

I start by welcoming Mr. Patchin, from the United States. He is a director at the Cyberbullying Research Center and has written numerous articles on adolescent behaviour online. Mr. Patchin has co-authored a book called Bullying Beyond the Schoolyard: Preventing and Responding to Cyberbullying and has written about cyberbullying prevention and response. Certainly, he is very well known in Canada. I could go on and on about him but we are here to listen to him. Our next presenter is Mr. Wayne MacKay, who is also well known to all of us. Nova Scotia's Minister of Education appointed him Chair of the Task Force on Bullying and Cyberbullying and to write a report. In his report, Mr. MacKay said that bullying is a major social issue throughout the world and is one of the symptoms of deeper problems in our society: the deterioration of respectful and responsible human relations. He also said that the magnitude of the problem is daunting and there are no simple solutions on the horizon. Therefore, we need effective strategies.

We need help from both witnesses to determine those effective strategies. As both of you are aware, we have heard from young people who said that punishment is not the answer. What are the effective strategies?

Mr. Patchin will not make a presentation but will answer questions from senators. Is that correct?

Justin W. Patchin, Co-director, Cyberbullying Research Center, University of Wisconsin-Eau Clair: That sounds good. Again, I am happy to answer any questions.

The Chair: Thank you. We will begin with Mr. MacKay.

A. Wayne MacKay, Professor and Associate Dean of Research, Schulich School of Law, Dalhousie University: Thank you very much for having me back and for your interest in this important topic. I am sure you will make a difference.

I realize that you have had a very long day so I will do my absolute best to keep the presentation part short and make myself available to questions. I know you are down to thinking about what will be in your report, so you probably have specific questions about that. I will try to keep it brief.

There are four bits of information that you have in digital form. One is from the previous time and is the actual report on respectful and responsible relationships, which the chair has. There are three other pieces that I have provided digitally through Mr. Charbonneau for today: a brief PowerPoint presentation that I put together on some of the legal aspects; a review of legislation in Canada as well as in the provinces of what they are doing on issues of bullying and cyberbullying; and an appendix to a report by a colleague and me on the legal dimensions of bullying and cyberbullying. I will try to summarize them, but they are available if you find them of some use for your report.

In the very short time that we have, I will make a few key points and then open it up to questions. The first point, which I know has already been clearly established, is that this is a very significant world problem that needs attention. It is significant in its scope that cyberbullying and technology have changed bullying, or added to bullying, and made its impact much more pervasive. That is an obvious point that I am sure you have heard a lot about.

The critical points, as raised by the chair, are these: What are the responses? What do we do about that? Who should do things about that? One of the things I talk about in the PowerPoint is the need to have responses at many different levels, including the community, parents, both levels of government, private organizations, police, and so on. There is an important federal role that we can talk about as well, including possibly a kind of federal national strategy. Perhaps this Senate committee could play a role in that; it deserves a particular comment.

Another theme that we can come back to in the questions is the role of each of the three major components: education, prevention and law. What is the role of law? What is the role of education? What is the role of preventive interventions? That is a large question. In particular, the appendix I referred to talks about the possible role of law. Even though I teach law as a job, law is only one of the responses, although an important one, and must be in conjunction with prevention and with education and changing values and attitudes. The law can be an important part of that.

In particular, and we will come back to this in questions, there is the role of things like restorative approaches and whether on the federal side there should be a separate crime of cyberbullying or a similar thing, or do existing Criminal Code provisions go far enough? How would you put that together with restorative approaches?

One other quick initial point is human rights codes. If we have time through questions, I would like to talk about to what extent human rights commissions, certainly provincial but maybe federal, play a role in responding. That is a more user-friendly and more diverse way of responding because there do not have to be court cases but mediation instead. There are now restorative approaches in the Nova Scotia Human Rights Commission and so on. What is the role of federal and provincial jurisdictions? Australia has adopted such an approach, so many of the responses there have been handled through human rights commissions.

It is important obviously to talk about issues of accountability. I certainly heard a lot on the task force not only about the magnitude of the problem and how serious it is but also that parents and students were frustrated because everybody seemed to be kind of passing the buck — it is not for the schools because it is after school hours and it is not their jurisdiction; it is not for parents because they do not know enough; and it is not for the police because they do not have the tools. They come away frustrated, knowing that something serious is happening but not knowing where to turn.

Those are just a few major themes and I am happy to answer any questions. I tried to keep it brief.

The Chair: Thank you very much. I will start off the questioning.

There are many questions here today, but one is the passing of the buck. We met with young people today. One of the things that they kept saying was that when they went to the principal, the principal said that was outside of his or her jurisdiction. They did not get support from the school.

To both of you, one of the things that we are struggling with is where the school ends and where its jurisdiction ends and the outside world begins. If the school says they cannot help the people who go to the school and the police are not getting involved, where does that child turn?

Mr. MacKay: That is certainly a topic we looked at in some detail in the report. It is in both the appendix in more detail and in Chapter 4 of the report, and I think it is recommendation 31.

We make the point that both in the existing case law and in a number of statutes — a number of the American ones, and I will be interested in Dr. Patchin's comments on that, but also some Canadians ones like Ontario — they have now said that school jurisdiction extends beyond school premises and after school hours. Sometimes that is actually in the legislation. It is in the Ontario legislation and has also been the interpretation of cases, although there has not been a Supreme Court of Canada case on that directly yet.

There obviously must be a connection to schools, and that connection is usually formulated in terms of a detrimental effect on the school climate. If you have two students engaging in bullying or cyberbullying but it is off school premises or after school hours, very often we heard that schools say we are sorry, we cannot do anything. It was at that time or at a bus stop or at home, so we cannot touch it. I do not think that is true, even now, whether or not there is legislation.

However, since a lot of school boards and schools take that position, as a matter of clarity we recommend that there be an addition to the provincial education acts making it clear that where there is a detrimental effect on the school climate that the jurisdiction extends beyond school boundaries and after school hours.

Mr. Patchin: I would agree completely with Professor MacKay. We are grappling with similar issues here in the United States. However, it is pretty clear. I have spent a lot of time analyzing the case law and state law. The boundary or line is whatever happens away from school, whether it is cyberbullying or a fight or whatever, to the extent that that behaviour or speech substantially disrupts the learning environment at school or infringes on the rights of other students, it is subject to school discipline. That is pretty clear. The question is at what point does it become a substantial disruption and interfere with the rights of other students?

According to Tinker v. Des Moines in 1969, a U.S. Supreme Court case, one of those rights is that students have the right to be left alone, to feel safe and secure at school. If a classmate and I are sharing a classroom and he or she is cyberbullying me at night and I do not feel safe going to school or I am intimidated, then clearly there is that link.

I agree that it would be helpful if there was legislation that clearly spelled it out. Here in the U.S. there are 49 states that have bullying laws. However, very few of them, a handful, include specific language in those laws that direct schools — or at least authorize them explicitly — to get involved in those behaviours that occur off school grounds, even though that is the law of the land based on the Supreme Court here in the United States, federal court cases and individual state law. That is the law, but to give the educators very specific information that they can respond is important because there is so much misinformation. Many principals and teachers say if it does not happen here, I do not need to deal with it. That is definitely an issue of concern, and I think it makes sense to provide that language in legislation.

The Chair: This is sort of our last hearing before we work on the report. We are looking at things that we need to add or need to hear so that our report is full. One of the things that Senator White has often raised is the issue of restorative justice. There are many people listening, so before you answer I would ask that you explain what restorative justice is.

My question is quite long. I will put it to you and maybe you can both answer it. Several witnesses have emphasized the importance of taking a restorative approach to dealing with cases of cyberbullying and bullying. Even the children and young people who have come before us have said punitive is not the answer. They do not say it that way, but restorative is what I think they imply.

Similarly, some have stated that zero-tolerance approaches in school are not effective with children and youth, and they have added that criminal law enforcement should be used only in the most extreme cases.

Other witnesses have recommended that the federal government amend the Criminal Code in order that it may more clearly set out an offence of cyberbullying and to show that this is an offence worthy of criminal sanction. As it would be in a study, you can see there are many different points of view.

Is an emphasis on restorative justice compatible with the exercise of amending the Criminal Code? If it is possible to prioritize restorative approaches while amending the Criminal Code and reforming criminal law policy regarding cyberbullying, how should this reform proceed?

It is a long question, but these are things that we are struggling with at the end of our study.

Mr. MacKay: It is a really important question, and I guess I will start with your last question first. I think you can, and should, put the two together. There are extreme cases that need to be dealt with using the criminal sanction. Either by interpreting existing provisions — and there are a number of them to apply to cyberbullying — or possibly adding new provisions on a crime of cyberbullying or some such phraseology. I think that is important, but for the extreme cases.

I will attempt a general definition of restorative approaches. It is one of these things that it is an old idea that has become new again. In many ways, one of the early forms was Aboriginal ways of decision making, which is reintegrating the offender into the community. Although it is not absolutely essential to restorative justice, it is often done in sentencing circles kinds of structures. The main idea is to have the alleged bully, the offender, be required to account not only to the victim but also to his or her community in a way that makes him or her understand the magnitude of what they have done, and ultimately to reintegrate that person back into the community.

There are probably schools in many places, some in Nova Scotia, that have been doing that in a very effective way. One of the reasons it is working quite well is that it is by and large a peer structure. It is mostly young people themselves — very impressive young people — who have these restorative structures and circles, and they head them. They have supports elsewhere, but it is handled by the young people themselves and they have had very large success. In fact, in schools at the elementary, junior and senior high levels where they have had restorative approaches in schools trying to deal with the less severe cases in this way, the number of infractions has reduced. The suspensions have reduced and the change is quite dramatic.

In the United Kingdom they have used it in cities like Hull to great effect. As I am sure you know, no one thing is a panacea, but a restorative approach is one of the most hopeful ways to respond because it has the critical elements. It tries to deal with preventing; it is not just after the fact. It is largely engaging young people as key players because that is peer influence, and aimed at reintegrating. I think it is really important, and there are a number of recommendations in my report that suggest it is one of the most hopeful ways to go and one of best preventive interventions. It changes the climate of the school, not only in relation to discipline.

One other important point is that where it is most effective, they adopt restorative approaches not just on discipline but how the school operates. I attended some elementary schools where the whole structure was very democratic and participatory. If they are deciding on an essay topic, they sit in a circle, and everyone gets to discuss and debate what the topic should be and why it should be that. That is the way the school operates. What is interesting is that teachers and administrators, as well as the students, bought into it. There was not as much resistance as you might think to changing things around. It is not a panacea, but it is a really important thing to do.

Senator Meredith: Professor MacKay, thank you very much for that. Let me just throw this in here. We have heard several individuals talk about the absence of parents. Where do parents fit into this restorative process? That has been sort of absent. We have heard of support for some victims who have been bullied. Others said that they had no support from administrators and so on. I agree that there must be some restorative approaches, but where do parents, in both of your opinions, fit into all of this as we move forward? In any system, if something is not being reinforced at home, there is a breakdown.

Mr. MacKay: Absolutely. That is a really important point. I thank you for that question. In the best restorative approaches, parents are included as part of the relevant community. Ideally, though it is difficult, not only the parents of the victim, who needs support, but also the parents of the perpetrator — because those are the parents not often in the picture — should be part of that community, which allows them to be aware and to reinforce it at home.

Elsewhere in the report, we actually recommend that there be a duty — it is not highly enforceable; it is not a big penalty — of parents to supervise the online activities and other activities of their children in the home. That is a big challenge, which requires education in technology and all kinds of things. There is a proactive obligation because it does go back to this point of accountability that I made earlier; everybody needs to be accountable to change this. They need to be doing that, but then they have to be valued as part of that community that deals with restorative approaches and be part of the decision making. They should be in both of those roles. They should have some duty, with the necessary support, so that they know about, within reason, technology and social media, and report to schools. They should also be included in these restorative approaches as part of the community.

The Chair: Dr. Patchin, before you answer all of the questions, I hope you remember that Senator Meredith and I have asked that you please, for our audiences, give a brief definition of what you think restorative justice is.

Mr. Patchin: I think Professor MacKay did a pretty good job. The idea, at least from my perspective as a criminologist, is that the criminal justice system is very retributive, meaning that we penalize and punish and hold someone accountable. Especially here in the United States, it is very offender-focused. This person did something; now we need to deal with this person, put him in jail, fine him or punish him in some way. It completely ignores all of the other parties. Police officers are not trained to deal with victims or other community institutions that may have been harmed by the offender's behaviour. It is very focused on the offender. The promising thing about restorative justice is that it seeks to involve everybody and restore the situation and the relationships in a way that accounts for what was done but with the perspective of all involved, getting their perspectives on how to handle it.

Restorative justice is a very popular buzz program and term here in the United States, and it has been like that for 10, 15 years. I am afraid that if we say,  "You need to do restorative justice, " then it will be sort of a watered-down model. You will have people doing restorative justice who do not really know what they are doing. There is the potential for harm there because you need to have well-trained administrators of this kind of program. Essentially, you are often putting the target and the offender in the same room together. You are, ideally, holding the offender accountable while the target and supporters of the target are there. If that is done inappropriately, it can make matters significantly worse.

Victim-offender mediation is not the only form of restorative justice. There are victim impact panels and many other things that you can do. The point that I am trying to make is that it is very promising, and there are some programs being done here in the United States. Canada is much more progressive in that regard, and we need to learn from you.

I cannot remember if I mentioned this the first time I visited with you or not, but we really need the research. I know Canadian provinces and schools are doing a lot of really great things when it comes to restorative justice. As a researcher and a social scientist, I want to see data and evaluations on the outcomes for the targets because, as you mentioned, you met with a lot of these students. It would be very helpful for us to know whether or not they felt, if they went through the restorative process, that it was helpful for them, that it reduced the amount of bullying in the future and that they felt that they were in a climate at that school that was more supportive of them. As for the offenders, those doing the bullying, I would like to learn whether or not they felt like they were accountable, could move on and were not treated any differently in the school. I think there are a lot of questions that we do not know, but it also speaks to what I am looking for, which is really a tool kit — several different options available to everybody involved — restorative justice being one tool and, potentially, criminal statutes being another for those extreme cases. We need a whole range of consequences and remediation at the school, family and community levels so that we are not relying on these zero-tolerance policies that say,  "If you bully, you will get kicked out of school, " because the vast majority of bullying and cyberbullying incidents do not require that. What can we do that is short of that?

We need to come up with a list of promising options and provide resources to schools to implement those options, but then also study them so that we can learn. We can take those next five or ten years and start to formulate the best practices in this regard instead of schools doing this piecemeal because I hear stories from schools all over the country and abroad with some really great programs and promising things. However, as a social scientist, I cannot wholeheartedly, fully recommend them until we see data that there is some improvement both in behaviour and perceptions and the feeling of safety at school.

The Chair: What about Senator Meredith's question of the role of parents in restorative justice?

Mr. Patchin: I, too, believe that parents are a party in that. I think the key for parents is that both the parents of the alleged offender and those of the target need to be involved in all aspects of this. From a criminal standpoint, whether or not there needs to be legislation, the key is whether the parents were negligent, whether or not they knew that their kids were doing something either illegal or inappropriate and let them do it or turned a blind eye.

I was involved in evaluating a truancy program for elementary-aged kids — 6-, 7- and 8-year-old students — in the United States several years ago, and some of these kids were missing 20 to 25 per cent of the school day. If a 6- or 7- year-old is missing school, clearly there is some kind of parental influence there. It is not like they are skipping out the back door to go hang out with their friends. Understanding why these kids are cyberbullying others and determining whether or not there is a parental role there might determine whether there is responsibility.

Senator White: Thank you for your presentations. I was pleased to hear you refer to restorative justice practices. In Canada, restorative justice has been available to us in the Criminal Code through our Young Offenders Act since 1985. It is not new to us, although we sometimes behave like it is.

My question is about extension beyond the school. There are Canadian human rights cases that have identified that the workplace extends into the home and, in fact, into private events like golf tournaments. Would that not carry the same weight for the school as well?

Mr. MacKay: That is a very good analogy, and I agree with Dr. Patchin's point. I think the law, for lawyers and criminologists, is relatively clear that that is the case, but the problem is — and this seems to be the case in both Canada and the U.S. and beyond, probably — that that is not the way it is seen by schools and school boards. They tend to resist that, even though that is, I think, the state of the law from those workplace cases and the to Tinker v. Des Moines that Dr. Patchin referred to. There is also a Supreme Court case, here in Canada, the Malcolm Ross case, Ross v. New Brunswick School Dist. No. 15, that talks about the obligation to have safe schools, which means that you have to deal with matters outside of that.

One last obvious point: If a fight occurred and the fight was across the sidewalk — they stepped off school bounds and had a fight — no one would say,  "Well the school cannot do anything about that because they stepped across the sidewalk. If they were on the school side, we could do something. " However, because the whole school watched them do it, they cannot do anything. Of course they could.

The same principle applies if it is cyberbullying.

Senator White: Maybe it will take a civil suit against a school board.

I have a point for our friend from the United States. If you wish, go to the NSRJ-CURA website. They have some excellent evidence. Every time you present, you mention research. They have excellent research on school-based programs for school justice and success.

Senator Ataullahjan: My question was kind of answered, but I would still like to ask it. In our hearings, we heard from the youth that a law against cyberbullying would not be effective simply because they do not believe that laws affect them. They rather supported measures that made the bully think about what they had done, such as educational programs or community service. We heard that again and again.

Would you both agree with this, based on your respective research? Would you recommend making cyberbullying a criminal offence?

Mr. MacKay: I will start off on that. I think there is a role for a Criminal Code provision that can deal with this. Similar to the situation with the schools and the school boards, I understand that a lot of police feel that the existing Criminal Code provisions are not adequate. Personally, as a legal analyst, I am not sure I agree with that. There are a number of things in terms of defamatory libel, intimidation, criminal harassment, assault — all kinds of things that can be applied — but sometimes there is an educational role.

For extreme cases, I think it is worth considering whether there should be some kind of a crime of cyberbullying. However, again I want to emphasize that the young people are partly right: If that were the only thing that happened, it would not be enough. However, I think there are some cases that require it. Unfortunately some bullies and cyberbullies will not change their ways by being dealt with in a softer, more integrative way. Many will, but not all.

There are some really outrageous cases where something needs to be done. I will give a dramatic example. The task force in Nova Scotia was set up in part because of the very high profile and tragic suicides of three young women. Fairly recently, a person who was identified and tracked down actually said that he and his cross-Canadian group of 15 people successfully forced those young women to commit suicide — that they convinced them to commit suicide — and that they had other targets they were now pursuing.

The police investigated that and were able to track down the individual who put that on Facebook. They concluded, at least at this point, that there was nothing they could do. I find that shocking. That is both the RCMP and the local police saying they cannot deal with that within the existing structure. If that is true and if they cannot deal with that, then I say you need something to deal with that.

It is also one of those really disturbing comments that anyone would think that it is something to brag about on Facebook that you successfully convinced three young women to commit suicide and were now targeting others. You may have seen the bullying documentary, where they were after a young person who hanged himself in the United States. They showed up at school with nooses around their necks, claiming credit for this. There is that awful value system in the first place.

In those extreme cases, I am not sure restorative circles or approaches are enough. There is still a role for the criminal response, as well.

Mr. Patchin: I would agree. There are those rare cases where a criminal response might be necessary. As was mentioned, at least here in the United States we have criminal laws against harassment and assault and even felonious assault, even if there is not physical harm. There are a whole host of potentially civil remedies, but those are expensive to pursue.

On the extreme end, you do need criminal legislation. It also legitimizes the problem.

I also agree with the young people you spoke to. We know from decades of deterrence research in criminology that people in general, and teens especially, are not likely to be deterred or are not likely to refrain from criminal behaviour just because there is a law. I wrote a paper 12 years ago that basically asked kids whether it was likely they would get caught for smoking marijuana or doing various things. Then I asked whether they did those same things, thinking their behaviours would be based on their perceptions of whether they would be caught and punished, and there was no correlation whatsoever. They just did not think they would get caught or punished.

The last thing I want to see happen is the police march into these schools and handcuff these kids and drag them off and throw them in jail for their bullying behaviours, because the vast majority of these cases do not require that.

To think a little bit about what needs to happen, you need to think about what the target is after here. What is the target of the bullying or cyberbullying looking for? If I am being bullied or cyberbullied, it is simple what I want to happen, and that is that I want the bullying to stop. For some, that might mean some sanctions in school. For the bully, maybe the bully gets punished at home. Maybe it is the threat of legal response.

That is why I think we need a range of these things so that, ideally, you can start off at the lower end and hold the bullies accountable, make them aware that what they are doing is wrong — potentially illegal, but it is certainly immoral — and for a whole host of reasons they need to stop doing it. If they do not, and if they continue or if the behaviour increases, then you need to ratchet up the response, as well.

Kids tell me pretty much every day that the reason they do not tell adults about their experiences with cyberbullying is, one, they do not think it will work to stop the behaviours, but even worse, they think it will make matters worse for them in terms of more bullying or cyberbullying. We need to respond as adults in a way that gets those behaviours to stop.

Again, I am hopeful it will not be a criminal response in most cases. However, if you have tried everything within the lines or if it is a particularly egregious form of cyberbullying that perhaps does result in the death of a target, then perhaps criminal responsibility is appropriate.

Senator Ataullahjan: I have another question, Mr. MacKay. You mentioned in your report that the most important role models for children are their parents. Kids need to be provided digital training before using the Internet. However, as digital natives, they often have more knowledge than their parents. I have talked to parents who have children about cyberbullying, and quite often I am asked,  "What is that? " It is amazing how many people are not aware that this is a big issue. It shows lack of conversation with children.

For the benefit of the parents watching this and hearing, and for our future report, what can parents do to promote safe Internet use, and what if they are unaware of the dangers that children face?

Mr. MacKay: Again, that is a really important point. That is part of the difficulty. By and large, it is not that parents do not care and do not want to do something, but they often feel they do not know what to do. As you say, they do not know about cyberbullying and they do not know about the Internet. Certainly for me it was an education from a lot of younger people in our task force and working group about some of the websites and things that are out there.

One of our recommendations is that those parents need support; they need education programs. Many people could do that, but the schools would be one good place to start in terms of educating them about technology and the nature of the Internet, positive and negative. The Internet is a positive thing in many ways, but it does have its negative side. They need to be educated.

These students then need, at home as well as in school, to learn what we talk about and many others do: good digital citizenship. I am not sure they teach citizenship in schools anymore, though I think we do to some extent. Regardless, we also need digital citizenship in terms of what is a respectful and responsible way to behave online.

The other realization, through my exposure and immersion in the last year or so to this issue, is that it is in many ways a more important reality for youth than the nice, sunny world outside of us here that is the real world; the virtual, online world is as or more significant for many of them. The things they need to learn are how they behave, how they should behave, what is acceptable, and what is disrespectful.

It is the kind of thing, in a sense, that parents have always taught. In some ways, probably parents and adults — I would be a good example — are overstating the difficulty.

There are still basic things like respect, responsibility, and a sense of community and accountability. It is in a different medium and a different forum, but the same kind of good citizen, good human being lessons that we teach people are what we need to teach children about online. The point you quoted was that we would not think of having students drive cars without some kind of training, but we give them a computer and say  "go. " We do nothing about some of the risks, dangers and appropriate use of that powerful instrument.

Mr. Patchin: It is not surprising to me that parents, as an issue, have come up here. In my view, that probably is the biggest challenge. We can develop laws and school policy, but it is hard to legislate parents to be good parents. The vast majority of parents are decent or good parents, but the 2 per cent or 5 per cent who are not good or decent parents are where we tend to see the problems.

Generally speaking to the majority, it is important in my view for parents to develop a positive relationship with their children so that the children feel comfortable talking with them about any concerns they have, whether it is online or off-line — no doubt these days much of it is online — and not to sort of knee-jerk respond or react to any problems they might be facing.

Teens fear telling Mom that they are receiving mean text messages from someone at school because Mom will respond by taking away the cell phone so they do not receive any mean text messages. That just makes the problem worse because they no longer have their technology. It is important for parents to explain to their children that they will listen to the problem, will try to understand it and will respond in a way that is appropriate and hopefully helpful to the child.

It is important for parents to be involved in that technology as well. I meet with parents a couple times a week in different schools and tell them that they need to be online. If they have a child on Facebook, they need to be on Facebook. They tell me,  "I do not have time for Facebook. " I tell them that if their child is on Facebook, they do not have time not to be on Facebook. They need to have a basic understanding of the technology, which the child can help with; and the parent can help the child to understand the basic common-sense rules of the road, such as not posting inappropriate pictures, your phone number, your address or any information that could be used to bully or harass you.

As Professor MacKay alluded to, it is about teaching these values, respect, integrity and doing the right thing, whether it is online or off-line. It does not matter where these things happen. As parents, we need to instill these values. The problem we are wrestling with is how to legislate that. How do you force parents to learn it? I did over 50 school presentations last year, and I did parent presentations in most of them. On average, about 15 or 20 parents showed up for the meetings. You can get the schools involved and you can create opportunities for parents to learn about these technologies and the problems, but unless their child is experiencing something like this, often they do not show up. It is a huge challenge; and I do not have an answer for that.

Mr. MacKay: I will add one point that was triggered by Dr. Patchin's comments. The other important role for parents is as adult role models. The focus is on youth, but youth do not have a monopoly on bullying behaviour. Much of what they are doing is copying bad adult role models of bullying behaviour and, in some cases, parent behaviour. Parents have a responsibility to not act in a bullying fashion. If they go to a parent-teacher meeting and bully the teacher, that is what the child sees. I talk about the role model in the report, and there are some not very good adult role models. That is another important thing. You have to practise what you preach. Young people are perceptive. It is what you do, not what you say, that is significant.

In a Canada-wide study it was found that the number one reason young people did not tell adults, including their parents, about being bullied or cyberbullied was not what you would think — it will get worse — but rather fear of losing access to the Internet.  "If I tell my parents, they will tell me to disconnect and it will be gone. " Kids would rather put up with bullying than be disconnected from that important reality. The study was fairly recent, within the last two or three years. That was the number one reason. Ms. Wendy Craig and Ms. Debra Pepler did a Canada-wide study on why young people did not tell adults, including parents; and that response is outdated.

Senator Ataullahjan: In your study, you talk about talking to a grade 9 student who says that talking to parents about this kind of stuff is awkward; there is no point to it. They talk to peers instead who might not know how to deal with the situation.

One thing stood out for me as we near the end of this study: Children want their parents involved. You might be aware as you have been talking to children. The one thing we kept hearing was that they want their parents to be involved. What do we do? What recommendation could this committee make about parents being involved?

I have a comment about how instant everything is. My daughter was at a wedding. By the time she came home an hour and a half later, a picture had already been posted on Facebook, and about 10 people had commented on it. It shows how instant everything is these days.

Mr. MacKay: Exactly. On that last point, it is so true. They probably were sent out during the wedding, I suspect, which is how the world works.

Valuing the parent input is important, as we talked about earlier, and including them where appropriate. Probably the most important thing is to give them the tools. As Dr. Patchin said, I think the communication between the child and the parent online or off-line is really important. In some cases, they provide teachable moments. If something is happening online, you need to be able to have a conversation with them about that. To get to that stage, parents need the tools and the confidence to engage in that conversation and be on Facebook. They need to be comfortable enough with the technology at some level to be able to do that. That is a real issue and gap for parents. Somewhere, whether it is community services or provincial departments of education, I am not sure, someone is not providing that. It is not happening as much as it should happen for teachers, students and parents, in particular older parents. This is changing somewhat because the parents have grown up and are digital natives as opposed to digital immigrants, to use their language on the age basis; but there are still many people who are not comfortable with that and need to get that level of comfort. It does not mean they have to be as good at it as the children are, but they need to be able to have those conversations. Providing those supports is vital.

Emphasizing parental accountability is important because schools and police can go only so far. At the end of the day, parents have a vital role, as our report talks about, in children's attitudes, their behaviour and their conduct. The fact that it is online does not change that basic equation.

Mr. Patchin: I agree. The key is getting parents involved in the online lives of their children at an early age; but I do not know how you can do that. I do not have a quick and easy way except to suggest something as simple as marketing and showing them what powerful tools some of these technologies are. A good example is that many adults eventually get involved in different online technologies, social networking, for example. The fastest growing segment on some social networking sites, and Facebook in particular, are older people who did not want to get involved but are involved now and seeing some benefit to it. Maybe they need more encouragement in terms of learning the technology. We are in an interesting time because the parents in the next 10 to 15 years will have some basic technology skills. It will be interesting to see how that shapes their involvement in the lives of their kids and whether the behaviours are responded to more quickly.

The key is to get parents involved in the online lives of their kids. I just do not know how you, as a committee, can directly encourage that. That is the challenge.

Senator Harb: I heard both of you talking a bit about the changes to the criminal status, legislative or otherwise. It strikes me that it is almost like we are hitting a little bug with a sledgehammer. We are dealing with kids in grades 7, 8 and 9, mostly. We can change all the laws in the world, and they still do not apply to underage kids. It has to be something else, and that is specifically dealing with the tool.

We heard over and over again that in some cases those kids — the offender and the one who gets offended — are best friends. It seems to me that the tool is the problem. The Internet, the device itself, is what is causing the problem. What can we do specifically if we were to focus on trying to address the real trouble, the tool?

Mr. MacKay: First, I think you are right, although I guess I would change it a little bit. It is actually not the Internet that is the problem; it is how it is used. Nonetheless, the Internet is a good thing. Lawyers are bad about splitting hairs, so I apologize in advance. One small thing is that the Criminal Code actually applies, but it is applied in a different way through the Youth Criminal Justice Act. The penalties and structures are different. Nonetheless, that does not change the essence of your question.

Going back to the Criminal Code point, the value is not just in applying the Criminal Code and having police officers go into schools, because hopefully that is rare, or having it apply. The criminal sanction is a blunt instrument. It is kind of taking a sledgehammer to kill a fly. Sometimes flies need to be killed, so it needs to be there sometimes.

The other part of a criminal law or any law is educational. In our laws — and the Criminal Code is a significant one — we make a statement about what is and is not acceptable behaviour. That is another reason why I have advocated in Nova Scotia putting some of this in the actual statute. Some other provinces have done this. It is a statement of significance if it is a statutory or Criminal Code statement, as opposed to a policy, guideline or something like that.

Students do not necessarily get that immediately. However, part of digital citizenship is being able to say abusing the Internet is such a serious thing that it is a criminal offence, and serious things can happen.

Let me give you a local example, although I am sure it has played out elsewhere. Around Christmas last year, a number of young people were texting nude pictures at a particular high school. One in five young women between 13 and 16 send nude or semi-nude pictures, which is a pretty shocking statistic in terms of dangers and what people need to be aware of.

This might be good or bad, but one of the things they did was bring the police into the school for an educational session. They pointed out that since the pictures they were sending were underage, they were engaging in distributing child pornography, which is a serious Criminal Code offence. They were shocked. I do not know if it is the total answer, but educate them about the fact that what they are doing is not appropriate, not respectful, all those kinds of things. You are also engaging in a serious Criminal Code offence by distributing. As soon as you send one underage picture to someone else, technically you are distributing child pornography and that is a serious crime. There is the educational value. You are right, we will not be using it in terms of locking people up, but the educational value is large.

Mr. Patchin: I think we have to set up a separate set of hearings on the whole sexting question, and child pornography, because that is a huge issue. I will not speak about the criminal statute, because Professor MacKay got it right, in my view. That is why need that element. It is a blunt tool and hopefully we use it rarely. I also think there is a role for explicit language in legislation — whether it is at the federal or provincial level — that reminds or demonstrates to schools in Canada that they have the authority to intervene in these behaviours that happen away from school.

Here in the United States, a lot of states pass laws saying bullying and cyberbullying are bad, but they stop short. In my opinion, the most important thing is providing resources to those schools. They say schools need to deal with this problem, but they do not give them training, money, staff or additional resources to deal with it. There could be a role in legislation in that regard, in addition to the hopefully rarely used criminal statute.

Senator Harb: My final question deals with whether or not you have done any study to find out why is it we have this bell curve of grades 7, 8, and 9 where you have the majority of the cyberbullying happening. Suddenly it falls off after grade 10 and you do not see much of it before grade 7. I am thinking aloud here. Does it have anything to do with the fact that when you hit grade 6 you move to high school, you are not in the general population, and suddenly it becomes the survival of the fittest?

Mr. MacKay: It is an interesting Darwinian analysis; those most injured are already are gone, which may be. One of the big impacts of bullying, apart from the extreme suicides and so on, is dropping out of school and bad academic performance. In fact, that is partly what is happening. They are dropping out and in some cases it is the bully as well as victim. That is some of it.

Nova Scotia may be a rarity on this, but we had an online survey of 5,000 people. The growing numbers were actually in the smaller areas. There are more elementary — junior high was still the most — comparatively than there used to be and more high school than there used to be. Maybe we are aberrant in that regard, but the curve was flattening out a bit in Nova Scotia.

I am not a psychologist on this, but apart from that I think it is partly the issue of belonging. Being part of the group is important throughout school, but probably nowhere as much as in junior high. At elementary other things are going on and in high school you have more of an identity and it is established. In some ways the need to be included, respected and to be part of that school community is probably greater at junior high.

I do not have any real statistics on that, but that might be the other reason. I think one of the most damaging aspects of bullying is that you are ostracized. You are already identified as being different on the outside, and we will reinforce it with bullying and cyberbullying, and others join in by liking the comment online. Bystanders support it and you are even more on the margins. While that is important all through, it is probably most important in junior high.

Mr. Patchin: I agree. I have posed that question to a lot of educators. What is it about grade 6, 7 and 8 students? There is more bullying, cyberbullying, and other problems. In fact, I posed the hypothesis that as technology expands to younger students, will we see more cyberbullying in fifth grade, fourth grade? A lot of the sixth, seventh and eighth grade educators I speak with — counsellors, teachers, principals — say,  "No, it will always be sixth, seventh, eighth grade. " There is also something unique developmentally, biologically, chemically, psychologically about those students.

We see individuals targeted for bullying or cyberbullying because they are different or perceived to be different. There are so many changes going on during adolescence and particularly middle adolescence, where you can find just about anything to say that someone is different and it is us versus them. There are so many psychological and sociological reasons. It certainly speaks to the importance of early intervention and prevention programs. I speak to third and fourth graders about these issues all the time so hopefully when it does get into sixth, seventh and eighth grade it evens out the problems they might experience.

Senator Ataullahjan: I just realized one thing we have not touched on is that in Ontario you have parent councils and school advisory councils. As someone who was very involved with the parent council, if we felt a topic was important enough that other parents should hear we would organize a gathering and speak to the parents. Have you looked at anything like that, Professor MacKay? Is there anything like that in Nova Scotia?

Mr. MacKay: The closest to that is we have elected school boards, which do have parents on those. However, we also have PTAs or parent-teacher associations.

I forget exactly what form, but one of our recommendations about getting parents more involved in providing education was, in part, to work through those parent-teacher associations or parent associations, in particular, because they already have connections and relations with the school. There is a great deal of interest among those groups because they recognize that the need is there and that things need to be done. I think that that is a very useful vehicle to use where they exist.

Often, I think that they feel marginalized, that they are not really part of the community that makes the decisions and deals with this.

Senator Meredith: Thank you, professor and doctor. I will just bring it home here to the fact that we are finalizing our report. We are about to start writing our report, and we are looking at Article 19 of the United Nations Convention on the Rights of the Child and the 13 comments on playing with the minds of our children and how we can protect them.

Dr. Patchin, you spoke of the United States having just sort of piecemeal legislation. There is not a coordinated effort to deal with cyberbullying.

My question is related to a national strategy. We talked about that with our previous witnesses. Would that national strategy come with some resources and a child commissioner who would then report to the government and request resources, on a yearly basis, to say,  "Let us deal with this problem effectively? " We have seen the consequences of not dealing with it, and every jurisdiction is trying to deal with it in a piecemeal way. Would you support national strategies across the United States and across Canada, and would that include a commissioner of some sort with additional resources?

Mr. MacKay: If I could start off, I think that would be a really important role for your committee to play, to start that movement toward some sort of a national strategy. The summary that I have done of the provincial legislation, which is available to you, really emphasizes your point. There are a lot of good ideas, but it is very piecemeal. Some do it by policy; some do it in very different ways. For example, B.C. does not have very much in the way of legislation, but they dedicated $2 million toward responding to issues of bullying and cyberbullying. Normally, provinces do not have enough resources, and I think a national strategy that would suggest some resources and dollars would be very important. The Nova Scotia government was pretty good at responding to my report in its early days, but those points that they are resisting are mostly the ones with big dollar figures attached, like hiring more counsellors, having more supports available or offering courses. I think that that resistance would be much less if someone said,  "There is money to do that, and it is earmarked for that. " You think of national daycare strategies or national health strategies and things like this where there needs to be both a statement nationally that this is an important matter for Canadians in every territory and province and some supports and resources there if you want to do it in your own way. I think that would be really important. I would completely support that.

The Chair: Dr. Patchin, do you have something like that in the United States?

Mr. Patchin: No, we do not, but I wish we did. I think the financial resources are, obviously, the most attractive aspect of that, but even more important than that are the knowledge, the access to the research, the best practices and the model policies. In some ways I feel like I am trying to do that because I go into all of these different schools across the United States and abroad, and they are asking me for help.  "What does a model policy look like? What can we do in terms of prevention, response and research? " If only there were resources at the national level to organize this information in a way that could direct it. School districts, parents and communities are genuinely looking for help. If we could show them that we have money to implement this program and have done this program in X number of other school districts and cities and it has worked, I think school districts would be happy to do it, especially to pilot it for a year or two and then to take it on themselves. Once they see that it is working, they would be happy to take it. I think that from the standpoint of the buying power and legitimatizing the problem and, hopefully, the solution, it would be a great idea.

Senator Meredith: That would also relate to the international community as well. You talked about travelling abroad and finding that there is a hunger for this sort of coordinated effort to deal with this problem. We heard from Great Britain today, and, in their education act and other acts they empower teachers and administrators more. However, there is not that coordinated effort, and I think that that would go a long way to protecting the lives of our young people. That was more of a comment than anything else.

The Chair: My first question is on a children's commissioner. Our committee has, in many other reports, such as the sexual exploitation and children report, recommended that there be a national children's commissioner who could look at issues specifically faced by young people. May we have your comments, Professor MacKay? Then, we will go to Dr. Patchin to see if there is something like that in the United States.

Mr. MacKay: I think that that is an interesting idea, and I think it would be useful, partly as a kind of national presence and coordinating role as part of this national strategy. It would be very important, though, that there be resources to go with that. That there not only be a commissioner but also the resources to actually do something would be quite important.

Perhaps it is an obvious point, but perhaps part of that mandate should be First Nations education because there is clear federal jurisdiction with respect to First Nations education. I know that there was a protest on the Hill today with young students talking about a lack of schooling and quality education for First Nation students. Again, as Dr. Patchin said, there needs to be more study, but bullying and cyberbullying is certainly a big issue within First Nation schools and perhaps even more so when First Nation students off-reserve go to the regular schools, stand out as being different and are targeted for bullying. A commissioner should be for all children but should certainly include First Nations and perhaps other vulnerable groups who are particularly targeted by this.

Probably you would get a little provincial resistance, but you probably do not have to worry about that in the kind of recommendations that you make. That is partly why I mentioned the First Nations point as giving a national or federal jurisdiction to it.

Mr. Patchin: I do not think that we have anything like that here in the United States, or at least I cannot think of any one sort of person, cabinet member or anything who would be responsible for that. We do have a number of initiatives within different departments — the Department of Education and the Department of Health and Human Services — where they try to funnel some resources or grants.

There certainly would not be a shortage of work for a national children's commissioner. My concern would be there would be too many issues. You talk about bullying, cyberbullying, sexting and child exploitation; there is a laundry list of things. I would be worried that this person would be overwhelmed with information and obligations and responsibilities, but maybe starting with one person leading a group would be useful, especially if there are resources available that they could direct to known problems, using known or at least promising solutions.

Mr. MacKay: One other thought that occurred to me as sort of a federal link to that was the point that Senator Meredith made about the international obligations under Article 19. Collectively, Canada is responsible for its international obligations. The national level needs to take the lead on that, and there are a number of conventions, obviously including Rights of the Child and a number of things like child exploitation, that have international obligations. One aspect of a very large role for this person might be to look at the extent to which Canada is living up to its international obligations and assisting the provinces, who are ultimately responsible for things within their jurisdiction, in also living up to these international obligations. The First Nations element and the international element might give you a kind of federal hook to this, which otherwise would look very much like property and civil rights in the provinces.

The Chair: When we started this evening, I think one or both of you spoke about the triangle — education, law and prevention. I have been thinking about this triangle. Is it equal — one third, one third, one third? Where would your emphasis be? From what I am hearing from you — and this is why I am testing this with you — is that education and prevention would be the major part, and law would figure in extreme cases. Have I interpreted you wrong?

Mr. MacKay: No, you have not interpreted me wrong. However, you are right that it is that sort of triangle and it would not be totally equal. They are integrated. I see law as also being educational and making a policy statement, and it has a preventive element. I do not see them as entirely separate; that is perhaps the only qualification I would make. If I had to make choices myself, the intervention prevention is the most important one because it is always better to prevent these negative impacts and to prevent suicides, dropouts and academic failures. It is a money and support thing.

Effective interventions would be the largest segment of the triangle to me. Law and education might be about equal for the other two. I do not know if that works as a triangle. I am obviously not a mathematician, but in any event that would be the way that I would kind of prioritize it.

I know our time is getting short, but Dr. Patchin made a point about evidence. There is something that a lot of schools told us. There are all these useful programs out there, and every year they send us hundreds of programs, but we do not have the time to investigate them. Therefore, the number one criteria that we set out in our report as a recommendation is having evidence-based results, or at least promising results. Certainly we need more access to that. Providing access or a clearing house to this kind of information could be a national role, as Dr. Patchin said.

What are the evidence-based effective programs? My triangle would be a little lopsided — maybe it is a quadrangle or something else.

The Chair: My expert says it is isosceles.

Mr. Patchin: I see it more as a pyramid with the intervention and the prevention at the bottom — the bulk — and the law at the top. There are many layers the person would have to go through before the weight of the law played down on them.

The criminal law side is relatively easy; it is easy to pass a criminal law. The more challenging issue is one that we have grappling with most of our time here: the resources and the money, because those education and prevention efforts cost money and time in terms of knowing what works.

I believe it is a comprehensive approach with a lot of tools and resources. No one magic bullet will solve this problem, so we need to take a comprehensive approach to it.

The Chair: My last question is on the human rights. We are the Human Rights Committee, and we are looking at this from the human rights framework.

Professor MacKay, under recommendations 20 and 23 of the task force report, you envisioned a role for the Nova Scotia Human Rights Commission, dealing with cyberbullying, both as a potential partner in educational awareness raising and as a possible forum for resolving bullying and cyberbullying issues and complaints. Recommendation 23 also recommends that a protocol be developed jointly between the Nova Scotia Human Rights Commission and the Department of Education on how to handle the restorative approaches.

Could you explain more fully what potential role the Nova Scotia Human Rights Commission could fill in dealing with cyberbullying?

Mr. MacKay: I am glad you asked that question because I think that is a really promising area for the law. The Criminal Code, as we have discussed, is a last resort sanction and a pretty blunt instrument. However, human rights commissions have a lot of potential to assist with this issue.

There are used extensively in Australia, so there is a model to look to in terms of what Australia has done on that. The critical provision is harassment on prohibited grounds. As we have discussed today and I am sure you have discussed in other meetings, frequently the targets of bullying and cyberbullying are those who are vulnerable and different. It is not exclusively prohibited grounds, but certainly sexual orientation is big, Aboriginal origin, race, gender — we could go down the list. All those kinds of things are major target groups among the top groups.

When we did our youth focus groups and online survey, the number one identifying factor for those being bullied was being different, in particular looking or behaving differently. That can be race or a number of things. There is a great deal of overlap on that.

Most importantly why I think it is a promising alternative and why I suggest the protocol is that they have a range of ways to respond: You can have a full-scale investigation and a tribunal if it is extreme, but you can have restorative approaches, mediation, education, et cetera. There is a range of different kinds of things that human rights commissions can do.

Perhaps most importantly, in terms of accessibility, in most cases, you do not have to pay money to use the resources of the human rights commission. Therefore, if you are a child or parent who does not have the resources to go to court or to pursue the legal avenue, you can go to a human rights commission where the investigators and staff there will act on your behalf. That is a very promising alternative.

As a final point on this, I note that in Ontario's definition of bullying, they refer within their definition to a number of grounds that include all of the human rights ones plus some others as examples of the kinds of things that might well be bullying.

The overlap between the human rights area — this is my last comment — is very analogous to sexual harassment. There are many analogies between bullying harassment and sexual harassment, including the fact it needs to be repeated, that there is a power imbalance, and that very often the defence is  "I did not know it was problematic " with the response being  "Well, you ought to have known. "

There is already a lot of good law on sexual harassment that could be applied in the context of other forms of harassment that include bullying and cyberbullying.

The Chair: Do you see a role for the human rights commission working with schools to resolve disputes between students?

Mr. MacKay: Yes, I would. Part of the protocol that I would see would involve a great deal of flexibility, perhaps even just having people go in and talk. We had three different presentations to our task force from the different parts of the human rights commission: the intervention group, the education group and the investigation group. They talked about the roles that they could play.

I think the Canadian Human Rights Commission could also play a role here, although I was going to suggest expanding section 13, but I guess that will be up to the senators now. I believe section 13 has gone through third reading in the House and been eliminated from the Canadian Human Rights Act, which is the hate speech —

The Chair: It is Bill C-304.

Mr. MacKay: Yes, regarding section 13 of the Canadian Human Rights Act. I think that there would be potentially a role short of what might be seen as a kind of hate speech for cyberbullying or bullying speech, as well, being controlled in a human rights process, which does not criminalize it. The hate provisions of the Criminal Code I think have only successfully been used once in Canadian history, and have been tried a few other times.

There is a role for commissions and maybe also a role for the Canadian Human Rights Commission at that level, as well, particularly online. In terms of the Internet, jurisdiction over the Internet crosses borders; it is more of a federal jurisdiction, so that might be helpful, as well. There is something to think about there.

Senator Meredith: Professor MacKay, you talked about Canada's obligations and whether we are meeting them on the international stage. That is of concern to me and I am sure other senators around this table. Could you comment on that and your perspective? Where are we at? Are we 60 per cent there? What else do we have to do to ensure that we are adhering to Article 19?

Mr. MacKay: I think there is quite a lot to be done, actually. I think there was an earlier Senate report under Senator Andreychuk. I presented that one in Halifax one time. I believe it was on international obligations and on the extent they were or were not being met. There is some improvement, but there is still a lot of room to go.

In relation to Article 19 on safe schools and things like bullying and cyberbullying, I think we have a long way to go, for the very reasons we have been talking about, largely coming back to accountability. No one is really tasked with being responsible for that. Schools say,  "If it is off school premises, it is not us. " Police say,  "We do not have the actual basis in the Criminal Code. " Parents say,  "We do not know enough. "

Whoever is responsible at the end of the day, Canada as a nation state has committed itself internationally, and morally and legally, to saying it should be, among other things, high on our priority list to look after the safety of our children. If you are not safe in school, how can you learn and advance? You cannot, really.

I think we have made progress, but there is a long way to go. Another important role that this committee could have is in really emphasizing that this national strategy and some of the things that you suggest might move us closer to fulfilling that obligation.

The Chair: Dr. Patchin, do you have any last words to add to your presentation?

Mr. Patchin: No, except to say that ever since I started this work over 10 years ago I have viewed Canada as ahead of the curve in dealing with cyberbullying. In fact, many of the first media inquiries I got were from people in Canada in 2003 and 2004. I think you should take advantage of that position and try to be progressive and experiment with some things that appear promising. As well as, you could spread the wealth in terms of the knowledge that you are gaining through this enterprise because the worldwide stage definitely could learn from some of what you are doing.

The Chair: Dr. Patchin, you are a very busy person and you came not only once, but twice. We very much appreciate your input.

Professor MacKay, it is the same. You both have done us a great service. To end our study with your remarks makes this a very special day for us. It has been a long day, but it feels like we have just started with all the information you gave us. Thank you very much.

Senators, as you know, this is the end of our study, subject to the good recommendations that Senator White made. If we are able to get witnesses on those suggestions, we will try to hear from them before we adjourn for the summer, when our writers will write the report. We will have a draft in late September for review. Please look at the suggestions that Gary made on the kind of report we should have.

Thank you for your patience.

(The committee adjourned.)