Thank you for inviting my submission today.
I'm an academic and researcher at McGill University and I have studied legal and policy-related issues regarding cyberbullying for approximately 10 years. I currently hold a five-year grant from the Social Sciences and Humanities Research Council of Canada and an inaugural digital citizenship grant from Facebook.
Although cyberbullying is not specifically mentioned in Bill C-273, I have concerns about some of the inconsistencies in the bill, as we heard in the questions posed to MP Hedy Fry.
Cyberbullying can involve such acts as criminal harassment, threat of sexual assault, defamatory libel, extortion, identity fraud, impersonation with intent, intimidation, as well as sexting, many of which can currently be addressed under the Criminal Code.
My concern is also that there is no mention of smart phones, digital media.... I'm skipping over my notes because I know I don't have a lot of time.
My biggest concern is that the code applies to everyone. It talks about everyone. I'm worried that this amendment is in response, as Ms. Fry said, to a lot of media reports related to cyberbullying and related suicides.
The problem here is that we should be looking at two sets of audiences. One is adults, who are mature enough to be held culpable for some of these crimes. They're old enough to know what they're doing. What we're finding in our research, though, is that young people, digital natives—these are children growing up immersed in digital technologies—quite often don't realize what they're doing.
The norms and perceptions of harm by digital natives have changed. These kids, as young as eight, are on Facebook, even though it's illegal to be on Facebook under age 13. There is a higher tolerance for insults, jokes, and pranks. There's less consideration of impact on others. There's less recognition of boundaries between public and private spaces online. There's less awareness of legal risks, which is where I would argue for improved education on legal literacy.
Perpetrators of cyberbullying are often victims as well as perpetrators. This would place them in an awkward position if this code were amended and they were ultimately charged. We might be overreacting. We might be putting the wrong kids in jail.
A lot of kids are dealing with mental health issues. We've seen that putting young people in jail when they have mental health issues is a problem. We've repeatedly seen coverage of Ashley Smith when she was incarcerated, and the problems she had.
An Austrian study found that anger and fun are at the top of youth motivations to cyberbully. In question time I can cover some of the cases, should anyone have questions regarding exactly what I mean.
In light of these shifting social norms, amending the code might result in charges for the wrong reasons.
The other thing is that adults.... When you talk about the different audiences, adults are the worst models of behaviour, and yet so much of the focus has been on youth because of the media spotlight on youth. I fear that this amendment is being brought about just to calm the public's fears, that something is being done.
We need to do a lot more research. We need to look at how much the legal community knows and understands about how digital natives are using the Internet.
Our five-year research with SSHRC is looking at the assumptions that underlie judicial reasoning when it's listening to cases of cyberbullying. Cyberbullying is extremely complex. There are so many facets to it. We really need to make sure we're targeting the right kinds of issues.
There's defamation. There's sexting, which as many of you know the police here and in the U.S. have been using child pornography laws to address.
Kids are posting things online without really thinking about it, and repeatedly we see patterns in our research where the kids are saying they were just having fun: “It was just a competition between friends.” They forgot about the victim. They weren't even thinking about the person they were teasing. It was just trying to have their voices heard over the din of the Internet. These were kids who were wanting attention.
Now, I'm not suggesting that there should be no consequences. I'm very much a supporter of discipline for young people, and I think that can be done through education. We need to have relevant consequences. I don't think these sorts of piecemeal amendments to the code will have a lot of impact.
With regard to the implications of this bill for youth, digital natives who are unaware of legal risks may end up with criminal records when they cannot differentiate the impact of their jokes and pranks from serious criminal liability. Although they should be disciplined, they also need to be educated in legal literacy. Criminal records or jail terms would reduce their chances of being accepted into good post-secondary educational institutions and limit their ability to find jobs in an already difficult market, resulting in increased burdens on social assistance. Ultimately, this could cost the government substantial resources and cost some children their potential to succeed.
A more thoughtful alternative would be to invest in education, support for teen mental health, increased sensitivity awareness, and legal literacy. Last year we gave evidence at the Standing Senate Committee on Human Rights that looked at Canada's responsibility to protect children from cyberbullying under article 19 of the international Convention on the Rights of the Child. I'm sure many of you are aware of that report. That report brings together a very comprehensive range of issues that were raised by experts and researchers across Canada, and I think this committee ought to consider what was raised in that report.
One thing that was suggested was a children's commissioner. The other was a national strategy. I know that motion was defeated last year because it was controversial. But I think we need something, such as a task force that involves experts, to look at these issues and determine what legislation needs to be amended. How do we amend this legislation? What is the role of the law? Do we really want big-stick sanctions? A scholar at Harvard University, John Palfrey, made the same kind of plea to Congress, and he did this in 2009 when they wanted to amend their legislation.
My Australian colleagues, Kift, Campbell et al, are the ones who coined the term “big-stick sanctions”, because they don't really work given this context. Given that kids don't understand...they're not even differentiating between public and private spaces.
I have submitted a 25-page brief, as academics do, and I would urge you to read it or skim through it by tomorrow, before you make your comments. I really think this issue needs to have further consideration.
I have here—I can pass some of these around—my basic...almost my logo. For the last 10 years, as I've been studying cyberbullying, this is the reactive stance the schools and a number of provincial governments have taken to deal with these kinds of issues. I'm suggesting a much more proactive stance that addresses education.
We're talking about substantive law versus a positivist or more punitive law. Let's look at the pillars of our Constitution, our human rights laws, and let's see how we can help young people understand why they should not be engaging in this. The challenge is in bringing these kids to their own understanding. Engage the kids. They are the digital experts. Engage the kids in contributing to changes in legislation.
This is what we're doing.
Part of our research, if I may explain it quickly, with our grant from Facebook and SSHRC is doing surveys and focus groups with young people from the ages of nine to 17. We're asking them how they define the line between joking and teasing and criminal offences. How do they tell the difference when they're crossing the line to committing a crime? How do they define the difference between public and private spaces? In the third phase we will get the kids to develop online interactive projects. We'll engage the kids to do this, and that will get them thinking about how they're defining the line.
We've already piloted this in Vancouver, and we got some amazing responses. My website is www.definetheline.ca, and we've had a lot of responses to that. What we do is inform educators and policy-makers about the various legal—