On July 12, 2008, the Canadian Teachers’ Federation adopted a policy to urge the federal government to amend the Criminal Code to include cyberbullying. It is the position of the Federation that the current laws do not provide the tools they need to investigate online harassment.

“We feel that there’s not enough teeth in the Criminal Code right now for cyberbullying,” said president Emily Noble. In recent years the Federation has highlighted the issues asserting that students and teachers are being targeted through email, instant messaging, chat rooms, blogs and social networking. The Federation argues that the harassment negatively affects the learning environment and should be viewed as a serious occupational health and safety issue.

A recent study conducted by Faye Mishna, a professor of social work at the University of Toronto, found that the Internet has not just taken bullying beyond the schoolyard; it has created new bullies. In studying the effects of cyberbullying, Professor Mishna interviewed more than 2,000 students at 32 Toronto schools. Professor Mishna said that some of the students who bullied online are not the ones who would bully face-to-face. She found that three-quarters of online bullies would not pursue their victims offline. She said that the reason for this conduct could be the false sense of anonymity and detachment on the Internet.

Professor Mishna’s research indicated that 21% of the students surveyed said that they were bullied online recently. 35% of the students who were interviewed said that they had bullied others. Of 28% of the students who saw online bullying taking place, about half either joined in or continued watching without intervening. Nineteen percent of the students interviewed said that rumours had been spread about them online.

In an interview with the Globe and Mail, Professor Mishna said that while online bullying is extremely serious, it largely happens among peer groups and is best targeted through education and intervention. Criminalizing this conduct would not be effective, she said, except in extreme cases.

It should be recognized that certain forms of cyberbullying may be criminal acts under the current Criminal Code.

Under the Criminal Code, it is a crime to communicate repeatedly with someone if a person’s communication causes them to fear for their own safety or the safety of others. The offence of threatening death or bodily harm is set out in section 264.1 (1)(a) of the Criminal Code, which reads:

“Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death or bodily harm to any person;”

Bodily harm is defined as “any hurt or injury to a person that interferes with the health or comfort of the person that is more than merely transient or trifling in nature.”

Case law has elaborated on these sections by establishing certain principles. Bodily harm includes psychological as well as physical hurt or injury. The threat does not have to be directed at a particular person, but simply an ascertainable or identifiable group. In addition, the offence does not require that the threatener have any intention to carry out or act on the threat. Furthermore, the Criminal Code contains provisions intended to prevent harm caused to racial, ethnic and religious groups by hate propaganda or the promotion of hatred.

Increasingly, the criminal courts of Canada have voiced serious concern about the implications of bullying and intimidation in schools. The courts have indicated that given the increasing number of threats by young people and growing incidents of bullying, a strong message must be sent to the community that this conduct will not be condoned. The Supreme Court of Canada has said that a threat is a “tool of intimidation” which is designed to instil a sense of fear in its recipient. It has asserted that the aim and purpose of the Criminal Code offences is to protect against fear and intimidation.

Prevention and Early Intervention

In past years, most school boards have developed written computer and Internet acceptable use policies which set out rules as to what activities are permitted and forbidden. It is recommended that these policies be updated to include harassment, threats or intimidation using mobile and wireless Internet information technologies. The acceptable use policies should be signed by both students and parents and there should be clear and serious consequences for anyone who does not comply with the policies.

It is important for schools to educate students, parents and teachers about the seriousness of cyberbullying. In this regard, students should be taught healthy relations strategies and communication skills. Schools should be encouraged to integrate curriculum-based anti-bullying programs into classrooms. Among other things, bullying prevention programs should encourage and reward fairness, equality, mutual respect and co-operation. Such programs should focus on improving relations among members of the school community and creating a peaceful school culture.

It can be a hurtful and difficult challenge for students and parents to deal with the effects of cyberbullying after it has occurred. It also can be trying to get Internet service providers and mobile telecommunications service providers to respond and deal with a student’s complaint about being cyberbullied.

Students should be encouraged not to give out or share their personal information number, e-mail address or passwords with others. Students should also be taught that if someone treats them rudely online they should not respond. In addition, they should not erase or delete messages from cyberbullies. Where there is evidence of an e-mail threat or harassment, the following information should be saved:

  • e-mail addresses;
  • date and time received; and
  • copies of relevant e-mail with full headers.

Students should be informed that they can report an e-mail threat or harassment to their Internet service provider with the full headers displayed. The full header indicates every state of an e-mail’s journey. This information can assist a support team to track down where the e-mail came from. In addition, where the conduct involves a criminal offence, such as a physical threat, the student and parents should inform the local police.

Students should be encouraged to speak out when they see someone being mean, threatening or intimidating to another person online. Students should also be encouraged to report incidents of bullying or harassment to a person they trust, such as a parent, teacher or principal. Principals should be able to access district-level support for any situation they feel is a threat to the safety of students, both inside and outside of school. Responding quickly and effectively to allegations of cyberbullying will serve to reduce a school board’s legal liability and assist in the creation of a safe learning and teaching environment that promotes responsibility, respect and civility.

Overall, cyberbullying represents a very serious problem for Canadian schools. It is my view that the Criminal Code in its current form provides a range of criminal consequences and remedies for extreme cases of cyberbullying. Amending the Criminal Code to add additional sanctions with respect to cyberbullying may not be effective. This conduct is best addressed through comprehensive education and a range of bullying prevention and intervention programs.