Anti-bullying bylaw could lead to racial profiling, human rights commission warns

The Yukon Human Rights Commission has weighed in on the City of Whitehorse's proposed anti-bullying bylaw, saying it threatens guaranteed individual rights, and that it could also "open the floodgates to racial profiling."

"As a layperson reading this, as soon as I looked at it I could see constitutional red flags waving all over the place," said Russ Knutson, the commission's chair.

A draft of the proposed Community Standards Bylaw was presented at Monday's city council meeting. It follows months of work and consultation with various local groups, including the Yukon Anti-Poverty Coalition, the Golden Age Society and the Salvation Army. Several First Nations and Yukon government departments were also consulted.

Under the bylaw, 'bullying' is defined as behaviour intended or known to cause "fear, intimidation, humiliation, distress or other forms of harm to another person's feelings, self-esteem or reputation." It also includes making "objectionable or inappropriate comments," and "creating a negative environment for another person."

Among other things, the draft bylaw would allow city bylaw officers, managers, police, or other city officials to ask a person suspected of bullying in city facilities to produce ID, as well as remove them from the facility if they fail to do so. 

The official could also obtain a warrant from the court to seize or search "any item, object, or instrument," if there are reasonable grounds to suspect bullying behaviour.

Anybody convicted of an offence under the bylaw could also be fined $100 (increasing to $500 for a second offence), or banned from a city facility for up to two years. Ignoring a court order under the bylaw would result in a $2,500 fine.

Targeting vulnerable people

Human Rights Commission director Jessica Lott Thompson said the draft bylaw seems to go against "existing, established legal principles related to fundamental rights and freedoms."

She said similar bylaws elsewhere have been said to target vulnerable people, such as those that are homeless or living in poverty.

"This type of bylaw has been criticized that it's a way for security officers, for example, to then charge someone who talks back to them during an interaction — like with bylaw, or mall security, for example, in other jurisdictions," she said.

In a letter to the city, the commission also detailed concerns about allowing officials to ask people for ID if they're suspected of an offence.

"The discretion provided to a designated officer under this bylaw ... could potentially open up the floodgates to racial profiling and/or carding for racialized individuals in Whitehorse," the letter states.

"Experience from other Canadian provinces have shown that the ability to stop and ask for identification has been disproportionately applied to visible minorities." 

The commission also fears the bylaw's definition of "bullying" may be too broad, and restrict the guaranteed freedom of expression.

Another concern is the allowance of search and seizure of someone's personal property, which the commission said may also violate a person's rights.

"My worry … is that this is a potential constitutional quagmire, for the city to go down this route," Knutson said. 

'We're there to help both parties,' city says

City bylaw manager Dave Pruden told council on Monday that "education is the primary goal" of the proposed bylaw, and that it's not just about about punishing bad behaviour.

"The bully typically ends up being a bully because at one point in time, they were a victim. So really we're there to help both parties, and we're not there to try to, necessarily, go out with a stick on the bully," he said. 

"That being said, there are penalties in the bylaw."

Pruden said it's meant to target behaviour that falls short of criminal — such as name-calling or verbal abuse. He said if left unchecked, such behaviour can eventually lead to criminal acts.

"The bylaw may offer an intermediate solution that may stop the escalation of bullying," he said.

But Lott Thompson is not convinced. She said people in Whitehorse should look closely at the proposed bylaw, "and think about how it would impact themselves, in their community."​

"What is the city actually trying to achieve with this? Is the goal employee safety? Is the goal public safety? And are there other ways that are much less restrictive of the rights of people?" Lott Thomspon asked.

The draft bylaw will be back before council in the coming weeks.