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Law professor speaks on legal consequences in connection with Fredericton altercation between 2 teens

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A law professor from Dalhousie University in Halifax says there are many legal aspects that could come into play in connection with a physical altercation that happened between two Fredericton high school students last month.

The Fredericton Police Force says an arrest has been made in connection with the altercation.

A news release from the force Friday said a 16-year-old Fredericton female was taken into custody in relation to the incident that happened on Cliffe Street on April 30.

Police say, as per the Youth Criminal Justice Act, the teen has been released on conditions and charges are pending.

The investigation into the incident is ongoing.

One of the involved teen's parents spoke to Independent MLA Dominic Cardy shortly after the incident. Cardy said the family is Jewish and believes that's why she was targeted.

Wayne MacKay, professor emeritus of law at Dalhousie University, was instrumental in preparing the 2012 report on cyberbullying following the death of Halifax teenager Rehtaeh Parsons.

He says, although the incident in Fredericton didn't take place on school grounds, it doesn't necessarily mean the school is clear of any responsibility.

"Definitely not. One of the things we looked at in the 2012 cyberbullying taskforce report in that process was that jurisdiction for schools is quite broad and if there's an impact on the school and the students, then it's pretty clearly in their jurisdiction even if it's not right on their premises," explained MacKay.

According to MacKay, even being a bystander could be considered bullying in these types of situations, although there is no legal responsibility for them to intervene.

"That's not atypical unfortunately that people are videoing or cheering or egging on, and the definition of bullying in Nova Scotia, and most other provinces, includes participating, which itself is very broad," said MacKay.

"So, they might even themselves be seen to be bullying by that kind of participation. There isn't an actual legal responsibility to intervene, but perhaps there should be. But there isn't at the moment."

As far as privacy, MacKay says there are many issues in this specific situation.

"Particularly on the videoing and the distribution on YouTube, and that's one of the big problems with online bullying. It has such a board audience. It goes to so many people, and so much damage," he said.

MacKay says it's striking to him that after 12 years, these kind of incidents are still happening.

"In spite of a lot of studying and a lot of changes and good intentions, it's still a problem and continues. Some might even be getting worse," said MacKay.

"So, that's one thing. I think the other is that schools and others are key players but it has to be a concerted action on many fronts. The law needs to change. Education needs to change. People need to be more aware of what is bullying and what we can do about it. So, I think it really demonstrates the ongoing need for action and attention."

Since MacKay released the 2012 report on bullying and cyberbullying, social media has only expanded, playing a larger role in incidents like the one in Fredericton.

"I guess one way to look at this is a series of Toronto schoolboards are now suing for multi-billion dollar damages against various media platforms and there's more and more evidence of the potentially addictive nature and the damaging impact, especially on younger people, of social media and the various platforms. So I think there is a big role there," said MacKay.

"And one other important aspect of this, the proposed federal Online Harms Act, if it passes, is going to try to put some responsibility on the platforms themselves. So, for example here, I think it was YouTube or whatever, who takes and shows a video of a fight, do they have some responsibility for doing that? So, that's one new development."

"And another new development from that is the issues of hate speech. If there is a hate speech component here, that's going to be expanded in the Online Harms Act as well."

MacKay says the physical altercation in Fredericton could also involve a civil component.

"Certainly in Nova Scotia, for sure under the Intimate Image and Cyber Protection Act, there's ability to sue for damages. In fact, you could have criminal charges, civil charges and the school consequences, so all of that can happen, which I guess suggests that the law is starting to catch up a little bit with this problem," said MacKay.

"But still, there's still gaps that exist there and not every province has it, although I think New Brunswick has a version of this as well."

MacKay said limiting cellphones in schools could help with these type of situations, a recommendation made in the 2012 report. Some provinces are now looking into that.

"One of the fairly small recommendations in there was that, at least on a trial basis, other than for immediate use or disability purposes, cellphones should be left outside of classrooms and it was immediately rejected as unworkable and unthinkable," he said.

"But, 12 years later, New Brunswick is doing some of it, Ontario, we're looking at it. Quebec. So, its time may be coming."

Dr. Simon Sherry says violence among youths has increased since the COVID-19 pandemic.

"So, there is an upward trend there now. Unrelated to the occurrence of that violence is how it gets shared," said Sherry.

Sherry is urging decision-makers to think about banning cellphones in schools if they haven’t already.

He says although cellphones aren't the only culprit for any increases in violence or bullying, they aren't helping.

"As much as these can be portals for education or social connection, they can also be portals for bullying and major mental health problems,” he said.

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