Hon. Dalton McGuinty
Premier
Room 281, Main Legislative Building, Queen's Park
Toronto, Ontario M7A 1A1
Email: dmcguinty.mpp.co@liberal.ola.org
Dear Mr. McGuinty,
Re: Bill 13, the Accepting Schools Act, Proposals to Amend to Ensure its Inclusivity, Constitutionality
The Evangelical Fellowship of Canada (EFC) is the national association of evangelical Christians. Since 1964 the EFC has provided a national forum for Evangelicals and a constructive voice for biblical principles in life and society. In addition to 39 evangelical denominations, the EFC affiliates include 68 ministry organizations, and 34 post-secondary educational institutions. Our denominational affiliates have over 3,000 congregations in Ontario alone. All affiliates uphold a common statement of faith.
We believe that every child is made in God’s image and of inestimable worth, deserving of dignity and respect. We believe that no child should be bullied, marginalized or suffer discrimination for any reason. Children have a right to learn, grow and flourish in environments that are safe, welcoming and instructive.
This week, and in the coming weeks, much debate and discussion will be had about Bill 13, the Accepting Schools Act, both inside and outside Queen’s Park. The purpose of the bill, to “help make Ontario schools safe and more accepting places to learn,” is laudable.
However, attempting to address an issue as complex as bullying by legislative force is debatable. And the approach adopted by Bill 13 lacks sensitivity, flexibility, and a full consideration of proper application of the Constitution Act, 1867, the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code.
While Bill 13 seeks to address the issue of bullying, several of its proposed amendments to the Education Act may violate the rights of religious and conscience rights of many parents and schools. The EFC holds that it is not necessary to violate the rights of some Ontarians, in order to ensure the protection of others.
Should your government fail to make the necessary amendments to Bill 13 to ensure its constitutionality, we share the opinion of several Canadian constitutional law lawyers that Bill 13 will be setting up the province of Ontario to likely face years of expensive, taxpayer funded litigation. We believe such resources could be better spent on providing schools with the necessary tools and staffing complement to address bullying, as well as ensuring support services are readily available to any bullied child or child that exhibits bullying behaviours.
We therefore urge you to amend the following sections of Bill 13, the Accepting Schools Act:
Proposed Amendment #1: Ensure a Legally Sound Definition of Bullying by Amending Subsection 1(1): “Bullying”
Of great concern is Bill 13’s definition of ‘bullying,’ which includes the terms, and consequently some legal concepts, such “likely to cause”, “ought to know” and “real or perceived power imbalance”:
“bullying” means repeated and aggressive behaviour by a pupil where,
(a) the behaviour is intended by the pupil to cause, or the pupil ought to know that the behaviour would be likely to cause, harm, fear or distress to another individual, including psychological harm or harm to the individual’s reputation, and
(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, race, disability or the receipt of special education;
The language included in the definition will likely lead to significant interpretational and application challenges.
The term “the pupil ought to know” is troubling, at best. Parents, educators and academics can attest that each child varies greatly in his or her level of development, understanding and maturity. Therefore, what each child “ought to know” will also vary substantially and it is precarious to qualify what any child should have known, in any given circumstance. While it is adults’ natural inclination to project our understanding and level of maturity on children, it’s best not to be done. Who will determine what a child ought to have known? Further, children do not understand the sometimes fraught terrain of political correctness, and what is unacceptable to an adult may be a child’s innocent expression.
The next troubling term is “likely to cause.” Similar language is used in the criminal law context, though its use is limited. Responsibility requires a known link of causation between an act and harm, but in those cases “objective foreseeability of risk” is required and can be useful because an objective adult could in fact reasonably foresee risk. Again, the vague language is troubling as children develop at different rates and parents can attest to the fact that children, depending on their age, may differ greatly in their ability to foresee the consequences of certain words or actions even within the same family. Given the severity of disciplinary sanctions that children may face, these concerns should not be taken lightly.
The last term of concern is “a real or perceived power imbalance”. Who perceives the power imbalance? From who’s perspective? And are power imbalances consistent? They may change from day to day. Who accounts for that?
Parents of a faith background are concerned that certain religious beliefs or religious texts on sexuality and marriage may be captured by the vague language “likely to cause”. Does Bill 13 take into consideration freedoms of religion and expression? This concern is heightened, firstly, given the special consideration that Bill 13 places on “incidents based on homophobia” without defining the term “homophobia” (see Preamble, and sections 4 and 7 of Bill 13). Secondly, the Minister is granted the power to establish disciplinary measures for “behaviours that are inappropriate” but “less serious behaviour” considered inappropriate is not defined. (see subsection 7(3)).
Will a child be penalized for behaviour that is not bullying behaviour or has not caused any harm, fear or distress, but may potentially cause harm, fear or distress in the estimation of … who? Similar language (“likely to expose”) used in section 13, ‘Hate Crimes,’ of the Canadian Human Rights Act has been broadly and harshly criticized.
We therefore recommend that Section 1 be amended to remove the ambiguous language that may capture behaviours that are not bullying behaviours or are expression protected by the Charter of Rights and Freedoms.
Proposed Amendment #2: Create an Inclusive Act by Amending Section 9: Pupil Activities
While Bill 13 states that “all students should feel safe at school and deserve a positive school climate that is inclusive and accepting, regardless of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability,” it incomprehensibly proceeds to identify four groups that will receive board endorsed special status. These student organizations are those that promote gender equity; anti-racism; raise awareness for people with disabilities and gay-straight alliances.
While the spirit of the section is laudable, its effects are unfortunate. The section can be interpreted as expressing concern on the part of the legislature for some students over others. It also violates the religious freedoms of faith-based schools that cannot host Gay-Straight Alliances, but wish to encourage the formation of broader equity and anti-bullying clubs.
As explained in our recent report, By the Numbers: Rates and Risk Factors for Bullying in Canada, statistics evidence that the children who most frequently face bullying attacks are targeted because of their physical appearance (38%) or their grades and marks (17%). Equally tragic, but at a much lower frequency are children who are bullied because of their cultural background (11%) or gender (6%). Why are children separated into province-mandated groups? And why do some groups of children receive board support for their clubs and not others? This is not an inclusive response to a divisive behaviour.
Rather than permitting students to learn about their differences and recognize their commonalities in broader equity clubs, Bill 13 specifically sets out to isolate students into issue-specific groups. As such, students, teachers, principals and families do not have the ability to form groups based on their intimate knowledge of their communities’ demographics, history and challenges.
A thoughtful and more constitutionally-sound alternative can be found in the Ontario Catholic School Trustees’Association’s Respecting Difference policy paper. The flexible and inclusive approach proposed there respects the religious and conscience rights of schools and families by permitting customization of the clubs to reflect schools’ and communities’ beliefs and cultures.
We therefore recommend that Section 9 be amended to simply require boards to support equity or anti-bullying clubs or, alternatively, that Section 9 be removed from Bill 13.
Proposed Amendment #3: To Encourage Diversity within our Communities, Remove Section 7: Third Party Use of Schools
Two of the proposed amendments to the Education Act risk restricting community access to school facilities. One amendment makes an addition to the province’s Code of Conduct (subsection 7(1)) to add the purpose of “to prevent bullying in schools.” The proposed amendment found at subsection 7(2) requires that third parties using school space must “follow standards that are consistent with the code of conduct.”
These amendments to Education Act may appear benign, but within the scope of Bill 13, the uncompromising way in which it is being imposed on all schools, without accommodation or exception, gives cause for great concern.
The concern is that reading or discussion of religious texts that address issues such as love, marriage, and sexuality may now be found to be in violation of the Code of Conduct. As a result, church, synagogue, mandir and sangat groups, along with others, that cannot afford to purchase their own facilities will face expulsion from Ontario’s public spaces.
Presently, countless Ontarians meet together for prayer, worship and community service in rented school facilities. They are seeking space in which they can practice their Charter-protected right to religious worship and expression, and schools are convenient place to meet.
We therefore recommend that Section 7 be removed from Bill 13.
Conclusion
These proposed amendments will not only ensure that Bill 13 is inclusive and demonstrates equal concern for all students facing bullying, it will also increase the likelihood that Bill 13 could be found to be constitutional by an impartial court of law.
We, as well as our constituency members, look forward to receiving your prompt reply.
Sincerely,
Faye Sonier, LL.B.
Legal Counsel
Centre for Faith and Public Life
The Evangelical Fellowship of Canada
Don Hutchinson, B.A., J.D.
Vice President, General Legal Counsel
Director, Centre for Faith and Public Life
The Evangelical Fellowship of Canada
cc. Liberal Party Members of the Provincial Parliament
Progressive Conservative Party Members of Provincial Parliament
New Democratic Party Members of Provincial Parliament
Deputy Minister of Education, Mr. George Zegarac
Parliamentary Assistant to the Minister of Education, Mr. Bob Delaney
Affiliate Leaders of The Evangelical Fellowship of Canada