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Bullying:

Degrees of Harm

Bullying is unwanted, aggressive behaviour that involves an imbalance of power between the bully and victim. It is an attempt to inflict intentional harm on another and it may occur repeatedly. Often that attempt is carried out in a series of acts, such as harassment on the Internet (cyberbullying). Often, the acts of harassment are carried out by a group formed for that purpose. The end goal, as noted, is to inflict harm — to see the target hurt.

Bullying often takes place at school as a manifestation of problems germinating both outside and inside the school. A large number of youth are bullied: estimates indicate that one in five Canadian children are victims of bullying, and one in twelve students find themselves harassed on an ongoing basis. (http://www.child-abuse-effects.com/child-abuse-statistics.html)

Most young bullies are never brought before the criminal justice system. Some become known to parents and school authorities, who implement their own sense of what “justice” requires — such as an open assembly discussion or even school expulsion. Also, more family doctors (and pediatricians) are becoming involved in preventive bully action plans.

The school system itself has on occasion been implicated in bullying behaviour — such as at sporting events where some players see an open invitation to punish the opposition. The line between what society will permit and what the criminal law will condemn can be crossed. We will discuss one high school sporting event that resulted in the death of a player. The central question then became: What was the role of the criminal law where the act, resulting in death, took place on a playing field during a school event?

Other laws have been enacted that are designed to curb young offender behaviour, such as Ontario’s Parental Responsibility Act. This act states that under certain circumstances, parents of young offenders who (often as part of a group) have damaged or destroyed property may be taken to small claims court and held accountable up to $6,000. We will set out similar laws in other jurisdictions and the measure of their effectiveness in combating youth crime.

Among the questions raised in this chapter are:

 Is there always a rational explanation for bullying?

 How do students respond to bullying among classmates?

 What is the responsibility of parents for their children’s delinquency?

 Should cyberbullying be a criminal offence?

The Murder of Reena Virk

On November 14, 1997, Reena Virk, age fourteen, was lured to a quiet park in Victoria, British Columbia, where she was swarmed, brutally beaten, and killed by a group of seven girls and one boy, aged between fourteen and sixteen. Her body was found a week later submerged in water under a bridge. The cause of death, according to the pathologist, was not drowning. Rather, it was the beating and the injuries she had sustained, which the pathologist testified, were similar to “those which would result from a car being driven over a body.”

The autopsy was able to determine that Virk had been kicked in the head eighteen times and beaten about the body so severely that tissue was crushed between the abdomen and the backbone. The attack itself came in two stages. First was a severe beating from which Virk tried to flee. She was caught and dragged underneath a bridge. There, the second phase of the attack took place. Her forehead was burned with a cigarette. Attempts were made to cut her hair. Her head was held in the water, and there was evidence that one of the group delivered a karate chop to Virk’s windpipe.

Reasons for the Attack

It was clear that some of the attackers were angry with Virk. One teen claimed that Virk had spread rumours about her. Another said that Virk had sex with her boyfriend. But, for all the investigation and the trials that later occurred, there was no single reason for the swarming. It is questionable that Virk willingly would have gone to meet the other teens if she had reason to fear for her safety.

The Leaders of the Attack and Their Trials

According to the evidence, fifteen-year-olds Kelly Ellard and Warren Glowatski led the attack. Both were bound over to adult court for trial. Neither had any long-term relationship with Virk; based on the evidence, their relationship with Virk could be called brief, at most. Glowatski was tried first, and he was found guilty of second-degree murder. He was given a life sentence with the possibility of parole no earlier than seven years thereafter.

Glowatski had been abandoned by his father, and his mother was an alcoholic. He lived with a friend and was described as “mean,” especially when he was drunk. Glowatski described himself as a gang member. He was called upon to testify at Ellard’s trial, but he refused to do so. His reason: His sentence was under appeal. And perhaps more to the point, he feared for his own life if he testified.

Ellard was seventeen at the time of her first trial, which concluded two years after the fatal attack on Virk, and was found guilty of second-degree murder. She was given a prison sentence in April 2000 that made her eligible for parole in five years. At the time of sentencing, the trial Justice Nancy Morrison said:

Kelly, you are young and intelligent and you have a wonderful family.… They believe in you and I can only say that you should never let them down.… You owe it to Reena Virk to live a life that is exemplary and you owe it to yourself.… Kelly has an overwhelming love of animals. She is gentle and caring with them. She is a gentle and shy person. She has never been in trouble, before or since.… She may have a chance to become a worthwhile and productive citizen.

Ellard had no history of trouble with the police or the youth court. Yet the evidence of her role in the attack on Virk included this testimony: It was Ellard who crushed a lit cigarette into Virk’s forehead and punched her head at least twenty-five times. Another witness said that Ellard pushed Virk’s head into a tree and pulled her into the water and held her there (Simmons 2000).

The first trial was not the end for Ellard. Her conviction was appealed. Her defence counsel argued that the Crown’s cross-examination had been unfair, and the British Columbia Court of Appeal agreed. A new trial was ordered and it was held in 2004. The jury was deadlocked. Media reports indicated that, but for a single juror, Ellard would have been found guilty. This resulted in a third trial. The jury deliberated for five days and brought back a decision that would have sentenced Ellard to life in prison with no chance of parole until she had served seven years.

There then came another appeal from Ellard’s defence lawyers, who argued that the trial judge failed to instruct the jury properly, and that certain evidence was not given proper weight. By a 2-1 vote, the British Columbia Court of Appeal agreed, and a fourth trial was ordered. This time, however, the Crown appealed.

By an 8-1 vote, the Supreme Court of Canada restored Ellard’s conviction. Speaking for the majority, Justice Rosalie Abella said that even if the trial judge was in error, there was no reasonable possibility that it would have affected the verdict of guilty (Makin 2009).

Ellard, initially housed in a youth detention facility, has been involved in inmate assaults while incarcerated, including a group attack on a vulnerable person. At no time has she expressed any regrets to the Virk family. Having already served seven years, and now in an adult prison, she soon will be eligible for parole. In this regard, the parole officials are not required to release her. They will review her prison record, among other matters. It will be possible for her to be held in prison for several more years.

Glowatski, in the meantime, served his seven years mandatory prison term. He apologized to the Virk family and, by 2009, was on parole working in the Vancouver area.

In 2009, the Virk family, who witnessed the Ellard trials, apparently were getting on with their lives. As a way of dealing with grief, Virk’s father wrote a book about his daughter’s early years (Virk 2008). He said he wanted to “set the record straight.” Following the murder, the Virks often spoke in elementary and high schools sharing their daughter’s story. Mrs. Virk said, “Our main message is: When someone is being bullied, or you’re being bullied, speak out about it because if one person had made a phone call … things could have been very different. Kids learn from that story” (Armstrong and Makin 2009.)

The Virks’ emphasis seemed to be on preventive action — what individuals could do to stop more serious harm from occurring. It seemed that the judicial system was not central to the means for obtaining justice. Virk’s father said, after a fourth trial was ordered of Kelly Ellard (and before the Supreme Court of Canada set aside that order and restored her conviction), “I think we want to wash our hands of this now and live our life.… No more do I want to place any trust in this system.… It has become like a sad joke” (Mickleburgh 2009).

Other Trials and Sentences in the Case

The remaining six teens were tried and either found or pleaded guilty in individual youth court trials where they were charged with assault causing bodily harm. Their identities were shielded under the then Young Offenders Act. But the sentences handed down by the youth court judge were: one year, nine months, six months, one year probation, and one stayed and one conditional sentence.

There was a history of violence among the six teens. Their identity is referred to by letters, since publication of their names was prohibited:

 A., age fifteen, pleaded guilty to a charge of assault causing bodily harm to another girl at the same time as sentencing in the Virk trial. At the time of the second assault, A. was taking a mandatory anger management course at her school. The reason: She had punched a fellow student. A. saw herself as a friend of Ellard and Glowatski. While Glowatski was in jail, A. accepted collect calls from him.

 B., age fifteen, saw herself as A.’s best friend. B. said she was drunk the night Virk was murdered. The trial judge gave B. a choice of house arrest — if she agreed to have no contact with A. The alternative was close custody, that is, institutionalization. B. chose close custody.

 C., age fifteen, thought Virk had spread rumours about her. C. lived in a group home. The trial judge said that C. had “all the elements, quite frankly, of sociopathic conduct.” C. showed no remorse.

 D., age fifteen, lived in the same group home as C. She had a lengthy record of assaults, theft, and breaches of probation. She was angry at Virk for allegedly having sexual relations with her boyfriend.

 E., age fourteen, had tried to set Virk’s hair on fire.

 F., age fifteen, knew Virk. Apparently, she attempted to have the beating stopped. F. did this at a point when she felt Virk had “had enough.”

(Moore 2000a)

Fighting Back: Students to the Rescue

Ninth-graders from Ontario’s Keswick High School were in a heated game of speed ball in the school gym when one of the players, angry and unprovoked, shouted at his opposite number, Jack Kang: “You fucking Chinese.” He then punched him in the mouth. Jack, of Korean descent and holder of a black belt in tae kwon do, responded with a punch that broke his assailant’s nose. (Jack’s father was a master of tae kwon do, and Jack himself taught children at his father’s studio.)

The assailant, bloodied, dropped to his knees. Jack tried to comfort him. Both boys apologized, but that was not the end of the matter. Police school resources officers laid an assault charge against Jack the morning after the fray. They did so without interviewing witnesses, though they were aware of the racial slur — a matter that they simply put aside.

Police visited the home of Jack’s assailant. Both the boy and his father said they didn’t want to press charges because they didn’t want to “ruin anyone’s life.” (Both boys were honour students with 90 percent averages.) Still, charges were laid. Further, the school principal suspended Jack and, in a letter, stated that he would recommend his expulsion from all schools in the region.

A meeting was arranged. Jack and his classmate were present. Apologies again were made and they shook hands. The principal cancelled his suspension order and expunged the suspension notice from Jack’s record. He also withdrew the recommendation that Jack be expelled from any regional high school, stating that the letter had been sent in error.

Student Response

Students at Keswick High School were aware of the incident and the discipline meted out. They responded by staging a walkout — four hundred students marched from the school protesting the criminal charge against Jack.

The student response got the attention of the media and, through it, the chief of police, Armand La Barge. He ordered another investigation under the direction of a senior hate crimes police unit. Thirty-five witnesses were interviewed. At a large media gathering called by La Barge, he stated that the initial investigation was not “as detailed as it could have or should have been.” He recommended to the Crown that the charge against Jack be dropped. It was an action that the police themselves, in law, could not take.

The Crown agreed with him, and in open court, the charge against Jack was dropped. At one point, Jack’s father, uneasy about the incident, thought of leaving the community. After the response of the students, and the reaction of the police and school, he decided to stay. He accepted the good wishes of the mayor who personally welcomed Jack’s family to the community.

Jack’s immediate community, at least in terms of the incident, was his school. His classmates were aware of the incident. They assessed the facts and acted quickly, and their action brought a peaceful and effective resolution. Jack and his classmate cannot be said to be friends. But it can be said that they are able to get along with each other (Friesen 2009a, 2009b; Swainson 2009).

Rugby: Bullying and Manslaughter

The rugby game on May 2007 between two Mississauga, Ontario, high schools was heated. Manny Castillo, age fifteen, was the captain of his team from Lorne Park Secondary School. There was real competition between Castillo and a player from the opposing school — a major junior hockey player with an Ontario Hockey League team who had ambitions for professional status. Words were exchanged.

At one point, Castillo’s opponent picked him up, flipped him, and drove him head-first into the ground. A referee testified that the opponent boasted that he had pile-driven Castillo as hard as he could. Castillo lay motionless on the ground. He died in hospital a few days later from head and spinal injuries.

Charged and Tried

Castillo’s opponent, whose identity could not be revealed under the Youth Criminal Justice Act, was charged and tried for manslaughter. Defence lawyers argued (1) self-defence, as Castillo had a choke-hold that the accused simply tried to break, and (2) that Castillo assumed the risk of injury when he became part of the game.

Ontario Justice Bruce Duncan heard the evidence and rejected the defences. He found the accused guilty of manslaughter. Players, he said, must obey the law and the codes for the conduct of games, including such contact sports as rugby. The response of the accused was in retaliation for the briefly held head-lock. Reading from a twenty-eight-page decision, Justice Duncan stated:

The playing field is not a criminal law free-zone. The laws of the land apply in the same way as they do elsewhere.… There was no justification in self-defence. Accordingly, the defendant committed an assault, an unlawful act. That unlawful act caused death. The defendant is therefore guilty of manslaughter.

The force applied by the defendant was not within the rules of the game.… Dangerous play inside or outside the rules is not acceptable.… The defendant intentionally applied force that was outside the rules of the game or any standard by which the game is played. Manny did not explicitly consent to that force, and I am satisfied beyond any doubt that no such consent can be implied.

Sentenced

The Crown sought a two- to three-year sentence, opting not to seek an adult sentence. The defence sought a one-year probation.

On July 6, 2009, the Mississauga youth was sentenced to one year’s probation, anger management counselling, and one hundred hours of community service. Castillo’s father did not comment on the sentence but handed out copies of the victim impact statement he had delivered that morning in the hope that its message about organized sports would be communicated to the public. In the statement, he said, “I hope that organized sports, especially organized sports in schools, puts a no tolerance policy in place for violence and aggression in sports” (Cheney 2009; Mitchell 2009; Peat 2009; “Teen Guilty of Manslaughter in Rugby Death” 2009).

CHALLENGE QUESTION

The Effect of a Manslaughter Conviction on a School Sport

Q: Does the manslaughter conviction influence how rugby is to be played at the school level?

The rugby case was one of the Crown against a single person charged with violating the Criminal Code. The accused was found guilty. That was the end of the matter so far as the Crown’s case under the Criminal Code was concerned. But schools, players, and parents were left asking how the conviction would affect the sport at the school.

Kieran Crowley, Rugby Canada head coach, said he had never heard of a death in rugby play prior to the incident involving Manny Castillo. Indeed, Doug Crosse, spokesperson for Rugby Canada, added that the manslaughter conviction would “confirm a lot of incorrect suspicions about the game.” (The suggestion seemed to be that rugby might be seen as a game without rules.)

On the other hand, the verdict was seen by some as a way of realigning what should be the mark of acceptable athletic behaviour. Clayton Ruby, a lawyer recognized as a civil rights expert, said of the manslaughter conviction, “Some athletes have a skewed perception of acceptable behaviour. They think violence is part of sports, and these guys get away with it on a regular basis. A case like this serves notice” (Cheney 2009).

New Rules and Their Enforcement

Educational authorities who allow school athletic competitions and set the rules for play and their enforcement are apparently reviewing the conviction handed down by Justice Duncan. Al Wolch, a former coach and, at the time of his quoted comments, a superintendent with the Toronto District School Board, said the decision of Justice Duncan will result in “significant” policy review concerning school athletics:

We see incidents and injuries all the time — undercuts in basketball, kids running others to the boards in hockey and other episodes in football.… We have to look at educating better, but we also have to understand the people coaching are volunteers. Both have to go hand in hand or we may be better off not having certain sports.… We’re always reviewing regulations. As you look at danger, you need to make sure coaches, responsible for these students, are qualified in theory as well as the technical and practical side (Grossman 2009).

In fact, the coaches and referees are much like the “police” on the field. The coaches can influence how the game is played, and the referees can enforce rules to prevent certain kinds of violence.

The Doctor and Unasked Questions

It was a routine physical for the fifth-grade boy. The doctor was one the boy had known, and trusted, for several years. Toward the end of the examination, the doctor casually asked the boy his favourite subject. The answer: science. His patient had even won a prize at a science fair and was to go on and compete in a multischool fair.

But the boy was unhappy. He was being teased, jostled, and even occasionally beaten up by other students because of his success at the science fair. This was not a one-time event, but an ongoing pattern that could only be called bullying. The boy’s mother wondered whether life wouldn’t be easier if her son “just let the science thing drop.”

The doctor had a sense of personal outrage. After all, he was a person of science, and he had worked hard to practice as a medical doctor.

Prescription

The doctor encouraged the boy’s mother to call her son’s teacher and complain. And, he encouraged the boy to continue his love of science.

On reflection, the doctor noted what he did not say to his patient or to the boy’s mother:

And here are three things I now know I should have done: I didn’t tell the mother that bullying can be prevented and that it’s up to the school. I didn’t call the principal or suggest that the mother do so. And, I didn’t give even a moment’s thought to the bullies, and what their lifetime prognosis might be.… Research has described long-term risks — not just to victims, who are more likely than their peers to experience depression and suicidal thoughts, but to the bullies themselves, who are less likely to finish school or hold down a job.

So what should I ask at a checkup? How’s school, who are your friends, what do you usually do at recess? (Klass 2009)

What the doctor suggested, as a part of routine examination, was greater medical involvement — of talking not only with his young patient’s parents, but also with their teachers and principal. In effect, the doctor becomes part of a program to change the culture of a school. The doctor attempts to put in motion the kind of ongoing inquiry to get the facts of bullying and then to address those facts not simply in terms of the victim, but also, and perhaps more importantly, activating the bystanders who in the past simply watched the harassment and walked on [emphasis added].

CHALLENGE QUESTION

A Doctor’s Time

Q: In the average appointment time of fifteen minutes, how can a doctor examine a patient, ask the questions relevant to bullying, and follow up if a problem is spotted?

Pediatricians and family doctors — indeed most physicians — have busy practices. Most physicians make a living as a result of the number of patients they see. Their time is limited. As a practical matter, it is difficult for a doctor to give any one patient more than a fixed amount of time.

Many medical schools specifically train doctors to be attuned to their patient’s health through observation — questions as well as tests. Indeed, one hurdle the medical student must jump in Toronto (as in other medical centres) is to diagnose a test patient within fifteen minutes. Many medical students fail the test. Others identify accurately the problem within five minutes.

Five minutes would hardly suffice if the doctors were in practice. There would be tasks of prescribing, perhaps seeking specialist help, and asking the patient to return to see how the treatment is progressing. Identifying a bullying problem is not the same as developing a specific response and then following up to see that the problem has been resolved.

In June 2009, the American Academy of Pediatrics updated and expanded its policy on bullying. It suggested doctor involvement with, among others, parents and schools. It also developed readable brochures addressing specific aspects of bullying that doctors could place in their waiting rooms.

The following, taken from an introductory brochure, is a warning and a challenge, especially to parents who come with their children for a pediatrician check-up:

While bullying has received increased media attention, there are still many misperceptions of this problem and its solutions.

 Bullying is different than fighting or teasing. It is repetitive, negative actions by one person or persons against chosen victims.

 There are three groups of children involved: bullies, victims, and bystanders.

Bullying prevention is a highly researched and well-proven area of violence prevention. The social dynamics of bullying are similar in most settings — bullies begin the school year by picking on a large number of children. Those children whose emotional responses gratify the bullies become the chosen victims for the year. Victims are smaller and weaker (boys) or more socially isolated (girls) than the bullies. Since harassment rarely occurs overtly in the classroom, teachers may be slow to recognize the dynamics of bullying or to prevent it. Thus, parents should be counseled to discuss bullying prevention with school guidance counselors or administrators. While victims may be more likely to seek medical attention, long-term studies demonstrate that the poorest outcomes are among bullies themselves. Children labeled by their peers as aggressors or bullies at age 8 are more likely to end up incarcerated and are less likely to be steadily employed and in stable long-term romantic relationships by the time they reach age 30. Consequently, bullying prevention programs have a long-term benefit for both bullies and victims.

How to Use This Tool

 Since parents and children are concerned about bullying, leave this brochure in the waiting room.

 Ask the parents: ‘Is your child picked on in school?’ When you discover a child is being picked on, discuss the specific strategies with parents. Parents should be advised to discuss bullying with the school guidance counselor and/or principal.

 This brochure is particularly useful as a handout for school and community groups.

 When faced with a child who has an unusual new onset of school phobia or attention problems, gently probe about being picked on or teased before, during, or after school. This child may have difficulty focusing on class work, be reluctant to attend school, or have a variety of psychosomatic conditions.

 Victims often internalize the criticism of bullies and feel that they deserve the teasing and may be ashamed.

 When the school has alerted parents that their child is aggressive or a bully, insist that the child receive counseling and that the parents take the issue seriously.

When giving this brochure to their parents, note that bullies, especially male bullies, are at a high risk for poor long-term outcomes unless the bullying is stopped at a young age.

The reason why certain students become victims is not always as clear as the Academy might suggest. Sometimes it is simply a matter of happenstance. Sometimes they are chosen simply because they are, for example, new to the school. But this much is certain: they are unable to defend themselves from the taunts of others.

A central questions remains: How can schools establish an anti-bullying environment? A roving school police officer, like a constable on patrol (cop), might lessen the urge for violent behaviour. But, as we shall see, it will do little to thwart such harassment as cyberbullying. In a major article in Pediatrics, the journal of the American Academy of Pediatrics, the authors spoke of the role of teachers as an anti-bullying force:

Teachers play a key role in preventing and intervening with bullying at school, yet they receive little if any help or training in how to effectively deal with such problems. They lack information, and they are reluctant to intervene when they witness bullying. Although teachers have the benefit of understanding the social context of bullying, they do not necessarily know how to best use this knowledge to intervene. In school settings, bullying and victimization are often considered as personal problems of individual youth rather than problems requiring a collective response. Therefore, it is essential: (1) to educate teachers about ways in which schools can alter social norms toward bullying; (2) to assist them to intervene effectively with incidents of bullying; and (3) to work together with clinicians to deal with the symptoms of bullying and victimization (Juvonen 2003).

CHALLENGE QUESTION

Parental Responsibility

Q: What responsibilities should the law impose on parents in guiding and supervising their children?

Recognizing that citizens can influence the kind of laws enacted, what should be the public policies made into law affecting parents in their child-raising responsibilities?

In 2000, a new Ontario law expanded parental responsibility for property damage done by their children (those under eighteen). Under the law, it is assumed that such property damage was intentional — unless the child’s parents can prove otherwise. The parent must also show that he or she made “reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.” The victim’s remedy is through an action in small claims court with an upper limit of recovery of $6,000. To initiate such a suit, court fees of between $50 to $100 must be paid.

Manitoba has a parental responsibility law, but it is not one that sets up a presumption that the damage done by the child was intentional. And it should be noted that Ontario has had a law that declares that in “damage to property or for personal injury or death caused by the fault or neglect of a child who is a minor … the onus [burden] of establishing that the parent exercised reasonable supervision and control over the child rests with the parent” [emphasis added].

Of the law, the Globe and Mail concluded, editorially:

The parent must show that he or she made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage. And, what are reasonable efforts? The law offers hints: attending courses to prove parenting skills, and seeking professional assistance for the child designed to discourage activity of the kind that resulted in the loss or damage.… Does this mean the usual advice and remonstrations of parenthood will count for little if parents haven’t been to courses or sought professional assistance? …

The Ontario government clearly hopes to kill two birds with one stone: to make it easier and faster for victims of malicious damage to receive compensation, and to force willfully negligent parents of young terrors to more actively monitor and address their children’s misbehaviour. But the wording of the new law appears to put a greater, vaguer and unfair onus on all parents of children who damage property, and to encourage judicial inconsistency as the already overburdened courts try to figure out where to draw the new dividing line of liability (“Who’s a Bad Parent, Then?” 2000).

The reality of parental control was noted by Anthony Doob, Centre of Criminology, University of Toronto, and Jennifer Jenkins, Department of Human Development and Applied Psychology, University of Toronto:

Canadian survey evidence from a representative sample of 10-year-olds and 11-year-olds suggests that it is a minority of parents who know about the misbehaviour of their children. In one study, only 30 percent knew their children had been questioned by police. As for children who reported that they had skipped school, only 20 percent of the parents knew this. Adolescents work hard at keeping their parents ignorant of certain aspects of their lives (Doob and Jenkins 2000).

Other Approaches: The United States

Truancy Control

Public school officials and prosecutors in a number of states are working together to fight truancy by holding parents criminally responsible through a fine and/or jail. The problem of truancy is often seen as acute. In 1998, for example, 63,000 of Detroit’s 180,000 public school students missed more than a month of classes. Parents of sixty-seven of the worst offenders were called in by officials and warned that they could be jailed if they did not get their children to school. In February 1999, six mothers in Springfield, Illinois, were charged with a misdemeanour for improperly allowing their children to miss school. They were liable for $500 fines and thirty days in jail (Meredith 1999).

Criminal Responsibility

Oregon enacted a law in 1995 allowing parents to be held criminally liable for the delinquency of their children. This could mean fines, jail time, or mandatory parenting courses. The law resulted from experience with an ordinance of Silverton, Oregon, where a curfew for young people had been in effect. The Silverton police chief, Randy Lunsford, said of the ordinance, “I don’t think we’re telling people how to parent. We’re just giving them a tool to become better parents, trying to get at some of the parental apathy and neglect” (Egan 1995).

Crime Data on Young Offenders

The individual stories of violent youth crime can be alarming. The Reena Virk story was one that remained in the media for the better part of a decade. But, there are other stories that go beyond the young preying on each other.

Residents of a Montreal North community, long seen as safe, were jolted when a sixty-seven-year-old woman was assaulted at a bus shelter late on a May night in 2009. She was attacked by three boys aged fifteen to sixteen. They beat here savagely — all apparently only for the purpose of taking her purse. Two of the three assailants were later captured by police. They faced possible aggravated assault charges.

Many residents of the area were frightened. They questioned whether they should change their pattern of living — whether it was safe to go out at night (Marotte 2009).

Yet, youth crime is not on the rise — at least according to 2006 Statistics Canada data. The homicide rate for those twelve to seventeen was three per 100,000 in 2006. This broke down to eighty-four young people charged in fifty-four killings. Statistics Canada noted homicides were responsible for just .05 percent of overall youth crime and less than one percent of all violent crimes in which a weapon was present in 2006.

This is not to say that youth crime is at minimal levels. It is only to say that, relative to years past, youth crime has not shown any significant increase. Putting aside traffic offences, about 180,000 young people were involved in some Criminal Code violation in 2006. Youth violent crime increased 30 percent from 1991. About 80 percent of such crimes involved common assault, the least serious of that kind of offence.

Does the data warrant laws that toughen the criminal sentencing provisions for youth? Nicholas Bala, professor of Youth Justice Law at Queen’s University, said youth crime must be taken seriously. He added, however, that there are other approaches that might be more effective, such as improving access to mental health programs and youth employment programs. Professor Bala said that, “these kinds of programs are actually changing the lives of young people” (Bala 2009).

The overall rate of youth crime was down 6 percent compared to a decade earlier and 25 percent since the peak year of 1991. The rate climbed 3 percent between 2005 and 2006 (Lawrence 2008).

YOU BE THE JUDGE

A Matter of Sentencing: Deterrence?

The Facts

John, age sixteen, had been found guilty of aggravated assault. He had been tried before a judge alone. The facts seemed clear. John had been a gang member since he was twelve.

To be initiated as a gang member, John had to rough up two seniors. It didn’t matter that they gave him whatever valuables they had without resistance; they had to be beaten up. No mercy was to be shown. That was the gang’s mandate for membership.

John met the gang’s requirements. In a period of three years, he had assaulted and seriously injured seven seniors. His net cash return was slightly more than $85, but from his point of view, the minimal return didn’t matter. He had done what was expected of him. He rose in the ranks of the gang. He was held up as a “model” for incoming gang recruits.

Police eventually caught up with John. His seventh victim, a ninety-year-old retired teacher, was able to describe him as her assailant. At John’s trial, a number of his fellow gang members turned out in support.

At the time of sentencing, the judge stated:

I have a range of sentencing I can impose for your crimes.… But, I must centre the fact that you are a gang member and that your crimes were designed to further your gang’s activities.… I think it necessary to consider the need to impose a sentence that falls at the more severe end of the sentencing scale.… Your sentence hopefully will serve to deter others, including your gang, and yourself from ever committing such crimes in the future.

The Issue

Can deterrence be a factor in sentencing?

Points to Consider

 John was deemed a youth within the meaning of the Youth Criminal Justice Act (YCJA).

 However, he was tried before a judge alone. He could have elected for trial by jury.

 Nothing in the YCJA refers to deterrence as a consideration in sentencing, though the provisions for sentencing are substantial.

 The Crown argued that (1) the judge had an inherent right to consider deterrence in sentencing and, (2) in any event, deterrence should be implied as a consideration in sentencing.

 Throughout his trial, and at sentencing, John did not indicate any remorse for the crimes he committed.

Discussion

The youth court judge was wrong. In a unanimous decision, the Supreme Court of Canada ruled that deterrence cannot be considered as an element in sentencing under the Youth Criminal Justice Act (YCJA). The decision, written by Justice Louise Charron, was based exclusively on an interpretation of the YCJA.

That is, the Court attempted to determine the meaning of the YCJA as applied to the question of deterrence. The Court did not try to determine whether deterrence was a worthwhile goal in youth sentencing. It made this determination both in terms of general deterrence and specific (or individual) deterrence. It did not matter whether the youth court sought to use deterrence as applied to the community, or deterrence as it might relate to the accused — preventing him from committing crime again.

Justice Charron stated, in part, that:

Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence,” when directed at others, “general deterrence.” The focus of these appeals is on the latter.

General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not. Those who advocate its abolition as a sentencing principle, particularly in respect of youth, emphatically state that there is no evidence that it actually works in preventing crime. Those who advocate its retention are equally firm in their position and, in support, point to society’s reliance on some form of general deterrence to guide young people in making responsible choices on various matters, for example, about smoking, using alcohol and drugs and driving a motor vehicle.

The question whether general deterrence works or not is not the issue before this Court. Whether the principles for youth sentencing should include deterrence was a matter of considerable debate in the passing of this new legislation. Ultimately, the repeal or retention of deterrence as a principle of sentencing for young persons is a policy choice for Parliament to make. This Court’s role on these appeals is to interpret the relevant provisions of the YCJA so as to determine what choice Parliament in fact made.

The YCJA introduced a new sentencing regime. As I will explain, it sets out a detailed and complete code for sentencing young persons under which terms it is not open to the youth sentencing judge to impose a punishment for the purpose of warning, not the young person, but others against engaging in criminal conduct. Hence, general deterrence is not a principle of youth sentencing under the present regime.

Specific Deterrence

Justice Charron continued, addressing the matter of specific, or individual, deterrence:

The YCJA also does not speak of specific deterrence. Rather, Parliament has sought to promote the long-term protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done.

Undoubtedly, the sentence may have the effect of deterring the young person and others from committing crimes. But, by policy choice, I conclude that Parliament has not included deterrence as a basis for imposing a sanction under the YCJA.

Justice Charron seemed to draw a line between the YCJA goal of rehabilitation of the young offender and specific deterrence. It is rehabilitation that the YCJA is directed toward, not specific deterrence.

Cyberbullying: Wounding from Afar

A high school sophomore had a crush on a boy who showed no interest in her. Angrily, she turned to the Internet and sent an email to her friend. It contained a racist comment about the boy. The friend forwarded the message to the boy, who forwarded it to his friends.

The sophomore felt she had done no more than confide in a friend. But her email was instantly conveyed to much of the student body, and its contents became a subject for talk, gossip, and ridicule. She and her parents felt they were under pressure, and she left the school.

A parent, who was also a lawyer, said, “If she had said those offensive things to her friend on the phone, I have a feeling the friend wouldn’t have called [the boy] and repeated what she said, and even if she had, I doubt it would have had the same effect” (Harmon 2004).

Spewing Hate

At an elite boys’ private school, a grade 10 student set up a chat board, open only to his classmates and grade 10 students at two other private schools, one of them a girls’ private school.

However, it was not long before the chat board was hijacked by other students who started their own cyber rooms on the site with names such as “The Reichstag” and “Gas Chamber.” Photos were posted of Nazi rallies and of Nazis torturing Jews. The Holocaust was glorified. (Yet, it should be noted that the site sent other messages that had no hate content.)

A student from the girls’ private school became aware of the website. She and three of her classmates looked at it and posted a note to the server asking that the hate-filled content be removed. The response: The girl who initiated the complaint was called a “hook-nosed parasite” who “should be thrown into an oven with the rest of them” (Teotonio, 2004).

Investigation suggested that students running the hate site were not actually animated by anti-Semitism. (Indeed, one of the hate site managers was Jewish.) Rather, it might have been, as another student suggested, that the hate dispensers thought it was “funny to outdo one another by making grossly politically incorrect statements” (Alphonso and Friesen, 2005).

Bullying Outside School: Action and Reaction

The messages described were not sent from school computers. The boys were students, but the questioned computer activity was done at home. Still, the schools, their student bodies, and the faculties got involved. (Indeed, the popular media reported the story.) The boys’ school principal said, “I think in this particular case, given the severity of what we were dealing with, rather than hide behind the attitude of ‘well, we’re going to leave this to parents and it’s their issue’ … we just felt that there was a moral and an ethical reason to get involved in this.”

The female students went to their parents, and to their principal who praised them — and did so in front of an assembly of students. (They also went to the computer server, reported the incident, and asked that the site be closed. Within hours the site was closed.) The girls’ school principal said to her students in one of several assemblies,

We want girls to have a voice.… We encourage you to take a stand and not be afraid to make a difference.… Four girls at [this school] also decided that they would not be bystanders last week, and we are proud of their courage in coming forward to do something about unacceptable material on a student-created website.…

When you hear of a fellow student being deliberately excluded, ridiculed or called names, or when you hear unkind rumours about someone, it is not a joke.… Each of you can play your part to make sure that, as a community, we do not tolerate bullying of any kind (Black, 2005).

The boys’ school principal also acted quickly. He expelled three boys for either posting offensive photos or for the hate reply sent to the girls. He suspended four other students for not stopping what they saw happening. The suspensions were from two to four days. The expulsions were for the remainder of the school year. Any attempt on the part of those expelled to return, the principal said, would be subject to school review.

The Toronto Star wrote that the incident had a broader lesson in terms of prejudice and tolerance. Editorially, it stated:

Of course, some might argue, kids will be kids. That sometimes means acting impulsively and foolishly. But that does not mean that students who posted the images and messages should be let off lightly for their abhorrent expressions of hate. While the students, one of whom is Jewish, apparently did not commit the odious acts on school property, the schools have dealt with the incident swiftly and appropriately.

[The boys’ school] has expelled the boy who posted the photos and the two boys who responded to [the girls’] complaints. Both schools have also held assemblies to educate students about anti-Semitism. That sends a message to all students at these schools that anti-Semitism will not be tolerated. It is the right message.

The incident also reminds us that Canadians must remain vigilant against expressions of hate.… Tolerance must be nurtured both at home and at school. Children must learn the troubling histories of the Holocaust, the slave trade, the internment of Japanese Canadians during World War II and other human-rights atrocities. More important, we all must be ready to stand up to bigotry and racism, wherever it confronts us (“Standing Up to Hatred,” 2005).

The Criminal Law and Cyberbullying

Cyberbullying has not been made a criminal offence. Current laws do not provide police with all the tools needed to investigate online harassment. Such was the position taken in 2008 by the Canadian Teachers Federation (CTF). Emily Noble, CTF president, stated:

We feel there’s not enough teeth in the Criminal Code right now for cyberbullying.… A lot of people get on the electronic medium and think they can send whatever emails they want and they’re anonymous. The reality is we need to take responsibility and care for each other. We all have to treat each other with respect.

The internet is the new playground. So let’s get some ground rules in terms of how we treat each other. Teachers would like to know they’ve got some backup, and they’ve got some support from parents, the community and decision-makers (Mahoney, 2008).

Applying the criminal law to web harassment, however, has some difficulties, especially as it relates to those under the age of eighteen. Contrary to what cyberbullies may believe, tracing their identities is possible. The difficulty comes from their youthful status under the criminal law. The Youth Criminal Justice Act might treat the intimidation or threatening of another as an offence. But the young offender’s identity, for the most part, would be protected.

A Media Awareness Network Survey in 2005 found that 34 percent of Canadian students had been bullied, and 27 percent of those bullied were threatened over the Internet:

The anonymity of online communications means kids feel freer to do things online they would never do in the real world. Awareness Network research from 2005 shows that 60 percent of students pretend to be someone else when they are online. Of those, 17 percent do so because they want to “act mean to people and get away with it.” Even if they can be identified online, young people can accuse someone else of using their screen name. They don’t have to own their actions, and if a person can’t be identified with an action, fear of punishment is diminished (“Challenging Cyber Bullying.” www.bewebaware.ca/english/cyberbullying.html).

The problem may not be the need for new laws so much better police training to enforce existing laws. Such seems to be the message of Prime Minister Stephen Harper who said: “I think we’ve got to stop using the term bullying to describe some of these things. Bullying to me has a kind of connotation of kids misbehaving. What we are dealing with in some of these circumstances is simply criminal activity. It is youth criminal activity. It is sexual criminal activity. And it is often internet criminal activity” (Taber and Walton, 2013).

The reach of the law over cyberbullying could include existing offences such as sexual assault, child pornography (even when produced and shared by other minors), the sexual exploitation of children, criminal harassment (no matter what the medium), uttering threats, and intimidation.

Nick Bala, a Queen’s University law professor and expert on youth crime, says that “investigations often founder for lack of computer acumen. Police need the expertise not only to identify the individual who posted a message or photo, but those who reposted and distributed it (Makin and White, 2013).”

“Kick a Ginger Day”: Just a Joke?

In November 2008, some Facebook groups picked up the idea of “Kick a Ginger Day” to target red-haired children. Lacking any objective cause, the reason seemed to be for fun. (It may be that the “idea,” if such it may be called, came from an episode of South Park, a popular animated television show in which a character speaks to his classmates about the evils of “ginger kids.” They are called “nasty” and “born with a disease.”)

But, Kick a Ginger Day was not so much fun for the recipients. The activity spread throughout North America. In Prince George, British Columbia, a red-head was kicked eighteen times before being allowed to go on his way. In Flin Flon, Manitoba, an elementary school principal met with a worried mother concerned about the safety of her red-headed son. In Ottawa, a mother let her thirteen-year-old red-headed son stay home because he was afraid of what a day in school might bring from his class mates (Windgrove 2008).

Neo-Nazi Attacks: A German Penalty

Germany has experienced a number of violent attacks — including murders — against foreigners, many from Africa. The attacks seemed to have dated from November 25, 1990, when rightists killed an Angolan. On August 30, 2000, Judge Albrecht Hennig was responsible for sentencing three young neo-Nazis who had beaten to death Alberto Adriano, age thirty-nine, a meat packer from Mozambique. They did this because of the colour of the victim’s skin.

One of the three was an adult, the other two, sixteen years old, were sentenced as juveniles. The adult was given a life term, the most severe penalty under German law. The youths were given detention terms of nine years each, one year less than the maximum allowed under German law.

Judge Hennig stated, “[The attack] was the latest in a long series of attacks to which we must put an end.… We need the engagement of civil society.… We need a repeat of what the people in the east of our country did in the peaceful revolution of ten years ago, an involvement in the fight for what is right” (Cohen 2000a; 2000b).

References and Further Reading

* Cited by the Supreme Court of Canada.

Alphonso, Caroline, and Joe Friesen. 2005. “Jewish Pupil among Three Expelled.” Globe and Mail, May 3.

American Academy of Pediatrics. “Bullying: It’s Not OK.” http://www.aap.org/connectedkids/samples/bullying.htm

Appleby, Timothy. 2000. “Making Sure Myles Didn’t Die in Vain.” Globe and Mail, September 2.

Armstrong, Jane, and Kirk Makin. 2009. “The Reena Virk Murder.” Globe and Mail, June 13.

Bala, Nicholas. 2003. “Understanding Sentencing Under the Youth Criminal Justice Act.” 41 Alberta Law Review 395.

Barriere, Darlene. “Bullying.” Child Abuse Effects. http://www.child-abuse-effects.com/bullying.html.

Beaulieu, Lucien.1988. “From ‘Challenges and Choices’ to ‘A Climate for Change.’” In Y.O.A. Dispositions: Challenges and Choices, a Report of the Conference on the Young Offenders Act in Ontario. Presented by the Ontario Social Development Council. Toronto: Ontario Social Development Council.*

Black, Debra. 2005. “Racist Incident Offers Lessons.” Toronto Star, May 3.

Brown, Dana. 2009. “School Suspensions Over ‘Kick a Ginger’ Anger Parents.” Toronto Star, November 24.

Canadian Department of Justice. YCJA Explained. http://www.justice.gc.ca.*

_____. 1999. Youth Criminal Justice Act: A New Law —A New Approach. Canadian Department of Justice: Ottawa.

“Canada Tougher on Crime than U.S.” 2000. National Post, May 8.

Cheney, Peter. 2009. “Family, Friends Weep as Athlete Found Guilty of Manslaughter.” Globe and Mail, May 29.

“Clark Unveils Tories’ Tough Stand on Crime.” 2000. Globe and Mail, September 1.

Cohen, Roger. 2000a. “Neo-Nazis Show No Remorse at Trial, and a German Widow Is Overcome.” New York Times, August 23.

_____. 2000b. “3 Neo-Nazis Guilty of Immigrant’s Murder.” New York Times, August 31.

Cusson, Maurice. 1983. Why Delinquency? Translated by Dorothy R. Crelinsten. Toronto: University of Toronto Press.*

“Cyberbullying Should Be a Criminal Offence: Teachers.” 2008. CBC.ca, July 12.

Doob, Anthony, and Jennifer Jenkins. 2000. “Loaded Dice in the Parenting Game.” Globe and Mail, August 16.

Egan, Timothy. 1995. “If Juveniles Break Law, Town Is Charging the Parents, Too.” New York Times, May 31.

Friesen, Joe. 2009a. “As Assault Charge Dropped, Jack Was Facing Another Test.” Globe and Mail, May 14.

_____. 2009b. “Chief Urges No Charge in Schoolyard Punch-up.” Globe and Mail, May 7.

Gadd, Jane. 2000. “Making Parents Pay Won’t Work, Critics Say.” Globe and Mail, August 16.

“Getting Out of Prison.” 2008. CBC.ca, March.

Gray, Jeff. 2005. “School Probes Student Involvement in Anti-Semitic Internet Chat Room.” Globe and Mail, May 2.

Grossman, David. 2009. “Rugby Case Stirs Debate for Schools.” Toronto Star, May 29.

Harmon, Amy. 2004. “Internet Gives Teenage Bullies Weapons to Wound from Afar.” New York Times, August 26.

Juvonen, Jaana, Sandra Graham, and Mark A. Schuster. 2003. “Bullying Among Young Adolescents: The Strong, the Weak, and the Troubled.” Pediatrics 112 (December): 1231–37.

Klass, Perri. 2009. “At Last, Facing Down Bullies (and Their Enablers).” New York Times, June 6.

Lawrence, Daina. 2008. “StatsCan Reports Rise in Violent Youth Crime.” Toronto Star, May 16.

Mahoney, Jill. 2008. “Criminalize Cyberbullying, Teachers’ Proposal Urges.” Globe and Mail, July 12.

Makin, Kirk. 2009. “Supreme Court Restores Ellard Conviction in Virk Case.” Globe and Mail, June 12.

Makin, Kirk and Patrick White. 2013. “Parsons Case Provokes Larger Debate About the Law and Policing of Cyberbullying.” Globe and Mail, April 13.

Marotte, Bernard. 2009. “Teens Held in Savage Beating of Woman, 67.” Globe and Mail, May 19.

Martin, Sandra. “Murder in Victoria: Why Did Reena Virk Die?” Chatelaine, May 1998.

Meredith, Robyn. 1999. “Truants’ Parents Face Crackdown Across the U.S.” New York Times, December 6.

Mickleburgh, Rod. 2009. “Reena Virk’s Family Stunned as 4th Trial Ordered for Ellard.” Globe and Mail, September 6.

Mitchell, Bob. 2009. “Teen Guilty in Rugby Death.” Toronto Star, May 28.

Moore, Dene. 2000a. “Girls Who Beat Virk Had Long Histories of Violence.” Canadian Press, April 1.

_____. 2000b. “Testimony Virk Jury Didn’t Hear.” Canadian Press, March 29.

Peat, Don. 2009. “Probation in Rugby Death.” Toronto Sun, July 6.

Roberts, Julian V., and Nicholas Bala. 2003. “Understanding Sentencing Under the Youth Criminal Justice Act.” Alberta Law Review 41: 395–423.*

Simmons, Steve. 2000. “Teen Sentencing a Judicial Disgrace.” Toronto Sun, April 24.

“Standing Up to Hatred.” 2005. Toronto Star, May 4.

Swainson, Gail. 2009. “Charges Dropped in Racial Slur School Fight.” Toronto Star, May 13.

Taber, Jane and Dawn Walton. 2013. “Bullying Can Be a Crime, PM Says as Halifax Vigil Honours Rehtaeh Parsons.” Globe and Mail, April 11.

“Teen Guilty of Manslaughter in Rugby Death.” 2009. Globe and Mail, May 28.

Teotonio, Isabel. 2005. “Anti-Semitism on Website Has Elite Schools in Uproar.” Toronto Star, May 2.

Virk, Manjit. 2008. Reena: A Father’s Story. Vancouver: Heritage House.

“Who’s a Bad Parent, Then?” 2000. Globe and Mail, August 17.

Windgrove, Josh. 2008. “Kick a Ginger Prank Gets Police Seeing Red.” Globe and Mail, November 21.

Wingert, Pat, and John Lauerman. 2000. “Parents Behaving Badly.” Newsweek, July 24.

Zimring, Franklin E. 1981. “Kids, Groups and Crime: Some Implications of a Well-known Secret.” 72 Journal of Criminal Law and Criminology 72, no. 3: 867–85.*