Legislation of this sort is an ineffective solution to a complicated problem

CALGARY, Alta. – OPINION – On March 21 of this year good sense prevailed as Saskatoon City Council sent a controversial proposed anti-bullying bylaw back for review. Legislation of this sort is an ineffective solution to a complicated problem.

It should be no surprise when elected officials try to solve problems with new legislation. After all, that’s the most common response to all social problems in our day and age. Perhaps little has changed since Biblical times when people cried out for a king to rule over them. More authority and less freedom can be an attractive answer.

And that’s the problem. Legislation of this variety forces us to sacrifice our right to freedom of expression for the chance that some good might come of it. It’s a trade off, and it’s too high a price to pay, especially when there are less costly options available.

City officials touted their bylaw as carefully considered. And upon reading, it is obvious that efforts were made to avoid the same mistakes that plague other similar prohibitions from elsewhere in Canada. Yet even if a court were to uphold Saskatoon’s bylaw as a justifiable restriction on freedom of expression, the question remains – is it wise to enact this bylaw?

The bylaw would make bullying or aiding and abetting in bullying illegal in any place that the public has access to, including schools, buses, sports fields, and privately owned restaurants. The first offence can result in a fine of up to $300 and subsequent offences in fines of up to $2,500.

The devil is in the details. The bylaw defines bullying as “unprovoked, repeated and inappropriate comment or conduct,” that results in, “harm, fear or physical or psychological distress to another person . . .”

The bylaw then lists three categories of behaviour that are illegal if done intentionally or recklessly to cause harm to another. The first category prohibits speech like name calling, insulting, and mocking. The second bans physical acts like kicking, pushing, and pinching. And the last category disallows social behaviours like shunning, excluding, and gossiping.

Some of what this bylaw prohibits is uncontroversial: for example, intentionally and repeatedly inflicting an unprovoked physical harm on another. But it gets trickier when someone recklessly causes another to feel fear due to an insult. “Fear” is an emotional term that reflects a subjective mental state. Such terms make enforcement nearly impossible.

How should someone feel when insulted? At what point does psychological distress become illegal? Who decides when a reckless comment crosses the line and becomes inappropriate? Consider that an ongoing disagreement on a religious topic could be perceived as inappropriate mockery causing psychological distress. This demonstrates the irremediable flaw inherent in all legislation relying on vague emotional terms to define liability. And as a result, Saskatoon’s bylaw must inevitably function as a proxy for the personal views of those enforcing it.

Defenders of the bylaw may respond that bullying has to be both unprovoked and repeated. What makes bullying wrong is a pattern of unmerited harmful behaviour.

But why “unprovoked?” Must bullying have no antecedent causes? Surely a provoked bully is nevertheless a bully.

What about “repeated?” Repeated to whom? There is nothing in the bylaw saying “repeated” means habitually brought against a single victim. Insulting 30 individuals discretely on 30 occasions equally violates this bylaw.

Further, there is a real problem of manipulation. This bylaw provides a means to make spurious complaints against those you dislike. It’s easy to conceive of circumstances where an individual or group conspires to complain about an unpopular peer. If such false victims claim to have suffered purely emotional harms, how is it possible to sort out the truth? Ironically, this bylaw could be used by surreptitious bullies to dominate their victims.

And if you believe we should trust enforcement to sort through these issues, a single word should give you pause: Martensville.

So what’s the answer then? Ironically, the bylaw itself contains the answer – persuasion.

Under the heading “principles and purposes”, the bylaw makes mention of the Saskatchewan government’s plan to alleviate the harms of bullying with awareness campaigns, prevention and reporting strategies, and educational initiatives. The bylaw also mentions that parents have a role to play by recognizing, addressing, and preventing bullying.

That is the best answer. Persuade people of the problem and provide them with reasonable solutions to prevent bullying, instead of punishment once the harm has been done.

Look, we live in an imperfect world. I’m convinced that bullying is a real problem. But is restricting freedom of expression and issuing fines the best solution? I’m equally convinced that it’s not.

Derek James From is a staff lawyer with the Canadian Constitution Foundation in Calgary. www.theccf.ca

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