Critics are warning that a proposed bylaw targeting bullies in Whitehorse could lead to racial profiling and infringe on free expression rights.

It’s a quandary that has plagued several jurisdictions that try to proactively stem bullying through legislation before the problem crosses a criminal line.

Russell Knutson, chair of the Yukon Human Rights Commission, said the proposed bylaw appears to trample on both the Constitution and the Canadian Human Rights Act.

“If a bully is defined too broadly and the powers of discretion that are in the hands of enforcement officers are too broad, then you set yourself up for the potential of conflict,” Knutson said.

The first draft of the bylaw defined bullying behaviour as repeated behaviour intended to cause, or that should have been known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person. It also included creating a negative environment and objectionable or inappropriate comments, but excluded “nuisance behaviours.”

Beyond that, it grants an enforcement officer the power to require a person suspected of bullying to produce identification.

Knutson said the practice of random identification checks, or “carding,” can lead to racial discrimination because visible minorities are often confronted more often by enforcement officers. Yukon’s large Indigenous population could be vulnerable to discrimination if the bylaw officer has a bias, he said.

“The likelihood that they will be the primary target is very high, so in that sense, the carding or the racial profiling would probably develop just by sheer numbers,” Knutson said.

Knutson said he has sympathy for any bus drivers and other city staff whose complaints must have led to the proposed legislation. But he said the fix should come from elsewhere.

“You can’t deal with a bully through legislation. You need to rely on education and reform, because the roots of the problem are so deep,” Knutson.

The staff report says groups like the Anti-Poverty Coalition and Bringing Youth Towards Equality felt the bylaw criminalized the bully. It also said those consulted supported an approach that treats both bully and victim, offering third-party programs and social services to address underlying issues.

Myles Dolphin, manager of strategic communications for Whitehorse, said no city staff or council members were available to comment before the bylaw goes to council Monday.

Other jurisdictions have also adopted, amended and dropped anti-bullying legislation.

Sgt. Kelly Kokesch of Grand Prairie Enforcement Services said the broad definition of bullying in that Alberta town actually means officers enforce the bylaw less often.

“It is a difficult bylaw to enforce, just because of the definition of bullying or what people consider to be bullying. It’s all up to interpretation, so it has to be a very blatant action,” he said.

But he said the threat of a fine can be a useful tool in convincing someone to curb their bad behaviour.

“We rarely use the legislation or charge anybody, but we do use it as leverage when we’re educating people and trying to diffuse a situation,” he said.

Kokesch said he’s aware of one conviction under the bylaw, since it was adopted in 2003.

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Other communities in Alberta with bylaws that address bullying include Edmonton, Consort and Rocky Mountain House.

In Regina, there were no convictions in the first nine years after a bully bylaw was introduced, until two high school students were charged in 2015 after taking a video of another student with Down syndrome while he was dressing for gym class.

Councils in both Halifax and Saskatoon have considered adopting anti-bullying bylaws, but declined.

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