We hear from a lot of youth who are experiencing homophobic and transphobic bullying in their schools and communities. Sometimes we hear about the fear, the pain and the feelings of isolation that happen when youth have been targeted because of who they are. Other times youth share their feelings of hopelessness, not seeing many options or knowing what their rights are. We know that LGBT youth may be at great risk of being targeted if they also have a disability, if they are youth of colour, if they are in a lower economic 'bracket' or if they don't conform to society's expectations of how gender should be expressed.
If you are being bullied or harassed because you are (or because you are thought to be) lesbian, gay, bisexual, transgender, Two-spirit, queer you need to know that YOU ARE NOT ALONE. A recent study by the LGBT rights lobby group EGALE shows that in Canadian schools 41% of students identifying as LGBT have been sexually harassed while educational facilities were the second most common places for hate crimes to be committed.
Many people feel that homophobic bullying is "just kids being kids" and that it's "harmless." In fact, this type of bullying is anything but harmless, particularly for LGBT youth, whose identity is insulted. We know from experience, and research has demonstrated that LGBT youth who experience bullying, harassment or hate are at risk of experiencing the following consequences: depression (low mood, a sense of hopelessness); poor health (e.g., headaches, stomach aches); school absenteeism and academic problems; running away; contemplating, attempting, or committing suicide; social anxiety, loneliness, isolation; low self-esteem; aggressive behaviours; drug and alcohol use.
If this is happening to you or to someone you care about, reach out for support and ideas. The volunteers at Youth Line are here for you anytime you want to talk or vent or make a plan. We've also got some downloadable resources on the topic of bullying that might be of interest.
Bullying, Harassment and Hate Crimes– Know Your Rights
Many of the questions youth ask us about bullying, harassment and hate crimes would be best answered by a lawyer. So we took your questions to the great minds at the University of Toronto student law clinic, Downtown Legal Services. Here are their answers to your questions:
The Safe Schools Act provides that all school members must:
- respect and treat others fairly, regardless of race, ancestry, place of origin, colour, ethnic origin, religion, gender, sexual orientation, age or disability;
- respect differences in people and in their ideas and opinions
Those students who hassle other kids may face disciplinary measures including:
- meeting with parents
- suspensions or expulsion
Principals are responsible for responding to each situation in an appropriate way.
The Toronto District School Board (TDSB) operational procedure manual entitled "Consequences of Inappropriate Student Behaviour" lists two classes of behaviour: Behaviour as a result of which a principal may notify police, and behaviour as a result of which a principal shall call police. Bullying is listed in the "may" column. However, some activities associated with bullying are listed in the "shall" column. These are: threatening serious bodily harm, extortion, possession of a weapon, robbery and any physical assault that causes harm necessitating treatment from a medical practitioner.
This written policy is obviously subject to interpretation by school principals. Speaking with several principals, some additional information became apparent. Firstly, "shall" does not mean must. Even when an infraction is committed for which the principal "shall" inform the police, the principal has the discretion to consider mitigating circumstances in deciding whether to involve the police. Secondly, the police may be involved for any instance of bullying if the parents of the bullied student choose to report it to the police. However, police will usually respect the discretion of the principal. Lastly, bullying that is suspected to be the motivated by discrimination based race, gender or sexual orientation greatly increases the probability that police will be involved.
Since bullying may include various types of activities, there are a number of criminal offences in the Criminal Code that may be attributable to bullying. Not all forms of bullying which are considered criminal are those that cause physical harm to another person. Bullying activities which are considered to be crimes include: causing bodily harm with intent, criminal harassment, uttering threats, assault, assault with a weapon, assault causing bodily harm, sexual assault, forcible confinement, wilful promotion of hatred of an identifiable group and murder.
The key factor that differentiates hate crimes from other offences is the underlying motivation. Hate crimes are committed when a criminal act is motivated by bias, prejudice or hate of a particular race, nationality, ethnic origin, language, colour, religion, gender, age, disability, sexual orientation, or other distinguishing factor. As such, individuals are often victims of hate crimes not because of anything they have said or done, but rather because of who they are.
Research suggests that hate crimes differ from non-hate crimes in a number of ways. Notably: Hate crimes tend to be more violent than non-hate crimes (assaults comprise almost 50% of all hate crime, but constitute less than 20% of non-hate crimes); The vast majority of hate crime victims live in urban communities; and Individuals committing hate crimes tend to be young males.
Where there is evidence that a crime committed was motivated by hatred, the Criminal Code enables judges to increase the severity of the sentences levied for the underlying criminal offences.
The Criminal Code also includes specific provisions making it an offence to (a) "advocate or promote genocide" (i.e. to promote the killing of members of group based on particular identifiable traits), and (b) to communicate (through audio or visual means, such as telephone) hatred in a public place so as to incite hatred of a particular identifiable group.
Canada's Criminal Code
Hate Crime in Canada: An Overview of Issues and Data Sources
CBC News: In-depth Report
Media Awareness Network
To fully answer this question, I am going to break my response into two parts. First, I will explain the equality guarantees under the Charter of Rights and Freedoms. Second, I will explore what rights against hateful conduct the law in fact makes available.
1. Equality Guarantees under the Charter
It is important to note from the outset that your rights are no different from those of other individuals. As Canadian citizens, we are all entitled to the same protection and treatment under the law, regardless of our race, colour, religion, sex, or sexual orientation. This is a matter so fundamental to our society that it is entrenched under s.15 of the Charter of Rights and Freedoms. This section guarantees your equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. Thus, no matter your sex or sexual orientation, you have the same rights as others. Let us now examine what some of these rights consist of.
2. Protection from Hate Crimes and Hate Speech
Hate crimes generally refer to regular crimes committed in such a way as to intimidate, harm, or harass a person and the group to which that person belongs. Hate crimes are thus distinguishable from regular crimes by their motive. The crime may be general, like harassment, assault, or murder. But if the victim is targeted because of who they are, the crime takes on the additional significance of being a "hate crime."
The hateful nature of a crime is assessed at sentencing. Under s.718.2 of the Criminal Code of Canada, the court is required to consider whether the offence was motivated by "bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor." It is fair to say that a crime motivated by hate towards transgender people would fall under such a category. Accordingly, if one commits a crime against another because of their sex or sexual orientation, that individual can be prosecuted both for the crime committed and the aggravated circumstance of hateful motivation.
The Criminal Code also provides protection from hateful speech. S.319 of the Criminal Code is perhaps the most important section. It imposes criminal liability for those who publicly communicate statements that promote hatred against an identifiable group. This may include members of a particular ethnicity, religion, race, sex, or sexual orientation. If a person violates this law, they can potentially be found guilty of an indictable offence and liable to a term of imprisonment not exceeding two years.
Canadian law thus takes seriously your right to be free from hateful crimes and speech.
The reasoning behind this seriousness is found under s.7 of the Charter. All Canadians have the right to life, liberty, and security of the person. Without this right a peaceful society becomes impossible. Thus, while the constitution does provide for freedom of expression, it does not sanction the expression of hateful speech (R. v. Keegstra). Accordingly, if one violates s.319 of the Criminal Code, they can be prosecuted under the criminal law. And as a citizen, you are entitled to the protection such laws provide.
Yes. If you respond with physical aggression then you can be charged with an assault under Section 266 of the Criminal Code. This is true even if the other person agrees or invites you to fight (R v. B (G.)(1994) 30 C.R (4th) 393). If you respond verbally but issue threats to cause serious harm to that person or to that person's property then you can be charged under Section 264.1 of the Criminal Code.
However, if your response to the bashing is strictly due to self-defence, Sections 34-37 of the Criminal Code do allow the use of "reasonable force", generally defined as the minimal force required in order to deter the attack and to prevent it from reoccurring. These sections will likely not preclude you from being charged with assault, but can be raised as a defence to the charge at trial.
If the cops are homophobic, you may file a complaint with your local Police Service by mail, email, fax, or in-person to any police station, the Complaints Administration section of the PRS-Risk Management Unit, the PRS-Investigative Unit or the Ontario Civilian Commission on Police Services. The complaint must be in writing and signed, filed within 6 months of the incident.
There is a standard form available at any station and online:
Legal Aid Ontario
Legal Aid Ontario (LAO) provides legal services to financially disadvantaged people, as long as the legal issue is one that LAO covers. LAO covers criminal charges that would likely result in jail time, as well as some family, immigration and refugee matters. Those on social assistance or with no income usually meet the financial qualifications and will likely be provided with free legal services. Those that have some income or assets may still be eligible for legal aid, but may have to pay for part of their services, depending on the situation. LAO runs a certificate program through its network of 51 offices across Ontario by issuing certificates to retain a private lawyer to represent low-income clients in proceedings before the criminal or family courts, certain administrative tribunals or immigration/refugee boards. LAO also provides duty counsel services for people who arrive in criminal, family or youth courts without a lawyer.
LAO can be contacted at 1-800-668-8258 to find lawyers that accept legal aid certificates. Detailed information regarding financial eligibility and the kinds of areas covered is available on the LAO website.
Community Legal Clinics
There are numerous community legal clinics throughout the province. Those not eligible for a legal aid certificate can often receive legal help with issues such as:
- Tenant Rights
- Ontario Works and Welfare
- Ontario Disability Support Program
- Government Pensions
- Employment Insurance
- Workplace Safety and Insurance
- Workers' Compensation
- Employment Rights
- Criminal Injuries Compensation
- Human Rights
Many if not all communities in Ontario are served by Community Legal Clinics. There are also numerous satellite clinics with toll-free numbers. The LAO website provides a list of clinics based on geography. Clients are able to find local offices by clicking on the online map: http://www.legalaid.on.ca/en/locate/
There are six student law clinics operating throughout the province, including four outside of Toronto, which provide legal services for summary offences and a variety of other areas, including family law, immigration law, tenant and housing.
Queen's Legal Aid Ontario
213 Macdonald Hall
Kingston ON K7L 3N6
University of Ottawa
Community Legal Clinic
17 Copernicus Street
Ottawa ON K1N 6N5
University of Toronto
Downtown Legal Services
655 Spadina Avenue
Toronto ON M5S 2H9
Osgoode Hall Law School
Community Legal Aid Services Program (CLASP)
4700 Keele Street
Toronto ON M3J 2R5
University of Western Ontario
Clinical Legal Education Program
London ON N6A 3K7
University of Windsor
Community Legal Aid Ontario
304 Sunset Avenue
Windsor ON N9B 3A9
Pro Bono Lawyers and Online Help
Pro Bono Law Ontario (PBLO) is a charitable organization that promotes opportunities for lawyers to provide free legal services to persons of limited financial means.
Law Help Ontario provides pro bono legal services to people who cannot afford to hire a lawyer and are unrepresented in a legal matter. There are currently two self-help centres in Toronto, but future centers may be launched in other locations across Ontario. The website provides free online resources available to the public.
Lawyer Referral Service
The Law Society of Upper Canada also operates a Lawyer Referral Service (LRS). The LRS charges $6 to provide the name of a lawyer who will give a free 30 minute consultation over the phone or in person. The service can be accessed by calling:
Those who are incarcerated, institutionalized, under the age of 18, calling about a Child Protection issue, or are in crisis (domestic abuse) situations may call toll-free from anywhere in Ontario.
For more information and frequently asked questions about the Lawyer Referral Service, consult the Law Society's website:
There is no one response that is right for everyone in every situation, when it comes to experiencing bullying, harassment and hate. We encourage you to talk about what's happening with one of our volunteers, or with someone in your school, your family or your community whom you trust.
If you believe that what you are experiencing, or what's happening to someone you care about is against the law, and you would like to report what is happening to police you can do so anonymously by using this reporting tool.
When you click on the tip button, you will exit youthline.ca and enter a secure site that will not track your IP address. Your tip will be submitted to Crime Stoppers, and forwarded to your local police service in Ontario.
Things to consider:
If you are reporting something that you have personally experienced, the resulting police investigation may uncover your identity. If you just need some help to make the first step to reporting, this tool may be a good fit.
We know that Crime Stoppers has welcomed this tool, and that the Ministry of Community Safety is aware that LGBT communities don't tend to report the hate crimes they experience. We cannot guarantee that the local police service in your community will respond respectfully to your concerns. Take a moment to review the legal questions and answers above.
You do not have to identify as LGBT to be a victim of homophobic violence, being identified as LGBT by the attacker is what makes it a hate crime.
If you are not sure what you want to do, talk it through with us. We won't tell you what's right for you, but we can help you explore your options.