Repeal 43 Committee

Senate Bill S-209 to Repeal S. 43 | Senate Bill S-207 to Repeal S. 43 |
Committee Hearings on Bill S-207 | Senate Bill S-21 to Repeal S. 43 I
Committee Hearings on S-21 I Comments on presentations Opposing S-21

Senate Bill S-209 to Repeal S. 43

Mar 13/08 Senate Bill S-209 to repeal S. 43 again referred to committee
Conservative Senator Raynell Andreychuk joins those who do not believe in corporal punishment but is concerned about what defences, absent s. 43, would be available to parents and teachers who use force to restrain children. ‘We looked at the issues from a human rights issue point of view, from a child's perspective and from a Convention issue point of view. It is now appropriate that we not revisit the corporal punishment issue but that we look at the consequence and the intent of repealing section 43 in its full extent, which was not the mandate of our committee.’ She therefore moves that the Bill be sent to the Standing Senate Committee on Legal and Constitutional Affairs to study these issues. The motion is agreed to, on division – which means that a formal vote was not taken but at least one senator opposed the motion. Click here for speech and questions by other senators.

Mar 4/08 Senator Cochrane calls Bill S-209 ‘political spin’
Conservative Senator Ethel Cochrane resumes debate on 2nd reading of Bill S-209 to repeal s. 43 by first commending Liberal Senator Hervieux-Payette (sponsor of bill) for bringing forward the issue of preventing violence against children as ‘a goal we all share’ and then calling her bill a ‘knee-jerk reaction’, ‘exercise in political spin’, and ‘political tinkering… designed to side step the real issues’ re violence against children. She does not identify what she believes these issues are and opposes S-209 on the grounds that the Supreme Court held it constitutional and repeal would result in criminal charges for restraining, protecting or disciplining children. Click here for speech.

Comment: It’s odd, to say the least, to call a bill to repeal s. 43 ‘political spin’ etc when repeal was recently recommended by two Senate Committees, when more than 196 Canadian organizations and the UN Committee that monitors the UNCRC advocate repeal, and when 24 countries consider legal approval of corporal punishment so harmful they have changed their laws and banned it. See Supporting Organizations for list of the Canadian organizations that support repeal.

Dec 12/07 Senator Cochrane to reply to speech on Bill S-209
Senator Gerald Comeau, Deputy Leader of Govt, asks the Senate to reserve 45 minutes for Senator Ethel Cochrane to reply to Senator Hervieux-Payette’s Nov 14 speech. Senators agree. Senate rules give Senator Cochrane 5 more weeks (when Senate in session) to reply. This means that her reply should be sometime in Feb/08. Senator Cochrane (P.C, NFLD and Lab.) spoke against Senator Hervieux-Payette’s previous Bill S-207. See June 26/06 items below for her remarks and our comment.

Dec 12/07 Senator Poy speaks in support of Bill S-209
Senator Vivienne Poy (Lib, Toronto) reminds senators of the work done by the Senate Cmttee on Human Rights in examining Canada's international obligations with respect to children's rights; its conclusion that s. 43 violates the UN Convention on the Rights of the Child; and that Art. 19 of the Convention mandates the protection of children from all forms of physical or mental violence, injury or abuse. Click here for full speech.

Dec 13/07 Statement by Senator Milne in support of Bill S-209
Statement by Senator Lorna Milne (Lib, Peel County, Ont) pursues the international obligations theme, noting that while Canada ratified the UN Convention on the Rights of the Child in 1991, ‘we are disrespecting the terms of this convention by maintaining section 43 of the Criminal Code’. She also refers to the Supreme Court decision Canadian Foundation for Children, Youth and the Law v. Canada, saying that limiting legal approval of hitting children by restricting hitting to certain ages, degrees of force and parts of the body is not a viable solution to the problems posed by s. 43. Click here for statement.

Nov 14/07 Senator moves 2nd reading of Bill S-209 to repeal s. 43
Senator Hervieux-Payette moves 2nd reading of her Bill S-209 to repeal s. 43. She refers to international commitments, research, defences to assault and other key issues. Click here for full speech.

Oct 17/07 New Senate Bill S-209 introduced
Senator Céline Hervieux-Payette (Lib, Bedford, Que) introduces a new bill, Bill S-209, to repeal s. 43. It is the same as her previous Bill S-207, which died when Parliament was prorogued in Sept/07. The Senate was in adjournment for 2 weeks since then and as of Nov13, the Bill has not yet come up for 2nd reading. Click here for S-209.

Senate Bill S-207 to Repeal S. 43

Sept/07 Parliament prorogued and Bill S-207 dies
The government prorogues Parliament in Sept and Bill S-207 dies.

June 19/07 Senate Committee refers Bill S-207 for 3rd reading by Senate
Senator Hervieux-Payette’s bill to repeal s. 43 is reported by the Senate Committee on Human Rights to the Senate without amendment or observations for 3rd and final reading.

During discussions preceding this decision, the Chair, Senator Andreychuk, emphasized that she does not support corporal punishment and that the Committee’s study of the UNCRC ‘speaks loudly’ as to why she does not. But she raised the issue as to whether a defence for using reasonable restraint should be retained in the Code. After discussing this with committee members, she accepted that it was not their wish to amend the bill in this way.

No one on the committee, she said, is against repealing corporal punishment and the debate seems to come down to whether a defence allowing force for reasonable restraint by teachers and parents is needed. Both the Chair and Vice-Chair, Senator Fraser, thought this could be raised and debated at 3rd reading.

On whether there would be a problem with assault charges against parents, Senator Hervieux-Payette (not a member of the Committee but invited as sponsor of the bill) said she had consulted Antonio Lamer, former Chief Justice of Canada, and he thought there would be no such problem.

Parliament resumes in Sept or October and 3rd reading of the bill should take place then.

Committee Hearings on Bill S-207

June 4-18/07 Senate Committee holds hearings on Bill S-207
Senate Committee on Human Rights hears 8 witnesses on Bill S-207. Five present in favour of the Bill and 3 against. The Chair of the Committee is Senator Raynell Andreychuk ( C - Sask). Other members are Senators Sharon Carstairs (L - Man), Roméo Dallaire (L - Que), Noël Kinsella (C - N.B.), Sandra Lovelace (L - N.B.), Jim Munson (L - Ont), Nancy Ruth (C - Ont), Lucie Pépin (L - Que), and Vivienne Poy (L - Ont).

The main points made by witnesses at the hearings on Bill S-207 were:

Canadian Teachers’ Fdn, Allan O’Brien, Legal Counsel
Teachers need s. 43 protection for using reasonable force for restraining or removing children from classroom and for securing compliance with instructions, not merely as corporal punishment, which is not supported by the CTF.

Canadian Coalition for the Rights of Children, Kathy Vandergrift, Chair
We must consider our international obligations and the recent UN Study on Violence by Dr. Pinheiro. Canadian children participated in that study and said the most frequent incidence of family violence was physical punishment. The concept of ‘reasonable force’ is so vague and subjective that children don’t know when they should ask for help.

Justice for Children and Youth, Cheryl Milne, Staff Counsel
Even after the Supreme Court decision, there are still inconsistencies in interpreting s. 43. Interviews with police and child welfare officials, as well as a survey done by Toronto Public Health, show little public knowledge and a lack of education on the meaning of s. 43. The section is not needed to allow restraint, as there is both an implied consent and a common law defence for using reasonable force for this purpose. There have been new international developments and new social science evidence since the legal challenge to s. 43 was launched and these must be considered.

Repeal 43 Committee, Corinne Robertshaw, Founder/Coordinator
Section 43 reflects a now discredited 19th century belief that corporal punishment is needed to correct children. Legal approval of such punishment can lead to child abuse, psychological problems, and societal violence generally. It contradicts parent education on non-violent discipline. The objections that repeal would lead to prosecutions for protecting self and others and for using restraint are ill founded because of other defences in the Criminal Code and common law. If the Committee believes that the common law defence for restraint needs to be spelled out in the Code, this can be done although we believe it unnecessary. New Zealand recently banned corporal punishment and 18 other countries have also done so.

Joan Durrant, Dept of Family Social Studies, University of Manitoba
Research shows that physical punishment is consistently related to negative outcomes in children. It violates their fundamental rights to security and dignity. There is no such thing as ‘non-abusive’ corporal punishment. The question of whether it ‘works’ is irrelevant. Most physical maltreatment cases are cases of physical punishment. There is no evidence that assault prosecutions increase where a s. 43 type of defence is ended. In the majority of cases, families are dealt with by social services – not by prosecution. The Supreme Court decision is an obstacle to prevention. In Sweden, Germany and Israel where physical punishment is banned, public support for such punishment has declined substantially. Law reform works because it ends the mixed message given by this kind of s. 43 defence.

Ron Ensom, Co-author, Joint Statement on Physical Punishment of Children and Youth
Senate Bill S-207 is the 9th Private Members’ Bill to repeal s. 43. When Canadians get credible evidence of threats to public health or safety as they did on drinking and driving, smoking, seat belts etc, they accept it. The Aug/03 survey by Toronto Public Health showed that 51% of Canadians would support repeal and 72 - 80% would do so if guidelines would prevent inappropriate prosecutions and research showed that physical punishment can be harmful. The Joint Statement is an effort to show the evidence on the harm of physical punishment. But public education on this will not be effective as long as s. 43 continues. A survey of Ontario CASs reported that the Supreme Court decision contradicts the purpose of the Ont child protection act and undermines the ability to get parents to refrain from spanking. No professionals who deal with children, other than schoolteachers, have the same concern about s. 43 as the Can. Teachers’ Fdn.

Institute of Family and Marriage Canada, Dave Quist, Exec Director
Child abuse is abhorrent but spanking is not abuse. Research in Australia and the US does not show that spanking makes children more aggressive or anti-social. A 2002 Canadian poll showed that 72% of parents believe that spanking should remain a legal option. Each child is different and needs to be disciplined in a way that is most effective for them. Spanking is a disciplinary tool that many parents need, such as when children are willfully disobeying. But it is probably not the best means to use in every situation. No unwarranted restrictions should be placed on the family. In answer to a question about the Institute, Mr. Quist replied that it was opened in Ottawa over a year ago and is the policy research arm of Focus on the Family Canada. When asked about pro-corporal punishment statements made by Dr. James Dobson, founder and international president of FOF, Mr. Quist replied that as the Supreme Court has decided that only an open hand can be used on a child, ‘we would have to abide by the court’s ruling’.

Dept of Justice Canada, E. Lieff, Senior General Counsel, G. Blackell, Senior Counsel
This will be a technical assessment of s. 43 and will not address the question of whether spanking is appropriate or effective. Assault in the Criminal Code is broadly defined. Simple assault does not require any actual physical harm. Consent cannot be implied where a child says ‘Leave me alone’. Non-consensual force against children is common as in putting a child’s winter boots on when she prefers sandals in the snow. The Supreme Court gives clear guidelines to interpret s. 43. Criminal law is a blunt, harsh tool. Its purpose is to protect public at large while prov protection law is focused on best interests of the child. It seems the goal of S-207 is not to increase criminal liability but to enhance parenting education and child protection. These are laudable goals but primarily within prov jurisdiction. Amending the Code for educational purposes is not without risks, eg, we don’t know whether without s. 43, a parent putting a reluctant child in a car seat or in bed could be convicted of simple assault. The stigma of criminal prosecution is significant. The defences of necessity and de minimis cannot be relied on. Repeal could hamper responsible parents. Criminal and prov law already protects children from abuse. The Justice Dept. funds public legal education products such as What’s Wrong with Spanking? and has launched a website on family violence. In answer to a question on whether s. 43 ‘opens the opportunity for children to be abused’, counsel replied that Justice Dept does not have any research or statistics on this.

Dec 14/06 Bill S-207 passes 2nd reading and referred to HR Committee
Senator Hervieux-Payette resumes debate on her Bill S-207 noting that the Standing Senate Committee on Human Rights is on a cross-country tour to explore the issue of violence against children. This committee will therefore be able approach Bill S-207 from a knowledgeable perspective. She reminds senators that the UN World Report on Violence against Children recommends that all countries, including Canada, prohibit all forms of violence against children, however light. The Senate adopts her motion to read the S-207 a second time and refers it to the Standing Senate Committee on Human Rights.

Nov 2/06 Debate on Bill S-207 resumed by Senator Comeau
Saying that the protection of children is of the utmost importance to all Canadians, Senator Comeau asks for second reading of S-207 and for the bill to be debated in detail.

June 28/06 Debate on Bill S-207 adjourned due to summer recess
Senator Hervieux-Payette expects the debate on her Bill S-207 to resume after Parliament returns on September 18.

June 28/06 Senator Carstairs speaks in support of Bill S-207
Senator Sharon Carstairs is a former schoolteacher who sponsored a bill to repeal s. 43 in 1996. She notes that the common law formerly gave a power of correction similar to s. 43 to husbands over wives and masters over apprentices. The law no longer gives these powers, so why, she asks, are we frightened to remove this power over children? Too many still believe children are the possessions of their parents without intrinsic rights of their own and that without the power to hit, parents would be unable to discipline their children. The UN Convention on the Rights of the Child makes it clear that children have rights and widespread parenting education would teach alternatives to hitting.

June 28/06 Senator Dallaire speaks in support of Bill S-207
Senator Roméo Dallaire is a retired Lieutenant General and author and was a Special Advisor to Canadian International Development Agency and Dept. of Foreign Affairs before his appointment to the Senate. Senator Dallaire notes that while many countries have ended legal approval of corporal punishment, Canada is still mired in legal confusion on this issue. His main reasons for supporting repeal are the need to implement the UN Committee’s recommendation to prohibit all violence against children, ‘however light’, research showing the negative effects of spanking, and the need to prevent minor violence against children from escalating into more serious violence.

June 26/06 Senator Carstairs’s questions Senator Cochran
Senator Carstairs asks Senator Cochran about the Court’s rationale for making a distinction between a child 23 months old and a 2-year-old, and between an 11 years, 11 months old and a 13-year-old. Senator Cochran replies: “I do not know where the Supreme Court was coming from when it made that decision…I think there should have been a limit placed at least to the age of 12 and maybe older”.

June 26/06 Senator Cochrane speaks against Bill S-207
Senator Ethel Cochrane, a Progressive Conservative senator from Newfoundland and Labrador, was a schoolteacher and principal before her appointment to the Senate. She argues that s. 43 does not allow violence or any force that ‘harms’ a child, and that repealing s. 43 could make placing an unwilling child on a bus or in a car seat or restraining a student from fighting or removing a disruptive student from a classroom a criminal assault. Senator Cochran would rely on education as the best way to end corporal punishment. The senator voices her approval of the Supreme Court’s 2004 decision, noting that it allows corrective force on children between 2 and 12 years of age but not on younger or older children.

Comment: Senator Cochrane seems to assume that physical harm such as bruises and welts are the only kinds of harm we need to address. In fact, a growing body of research shows that lasting emotional and psychological harm can be caused by frequent “minor” slapping and spanking and by threats of these attempts at correction.

The Senator’s argument about the school bus and car seat ignores the fact that the law defines assault as the unconsented use of force and will imply consent where the force is reasonable and used to protect the child. These actions are therefore not criminal assaults and the issue of s. 43 as a defence is irrelevant.

We agree with Senator Cochrane on the need for education on alternatives to corporal punishment. But education against corporal punishment cannot be fully effective where the Criminal Code specifically allows it. Effective education must be based on a consistent message. Repealing s. 43 is therefore an essential part of such a campaign.

May 11/06 Speech by Senator Hervieux-Payette on 2nd Reading of Bill S-207
In moving second reading of Bill S-207, Senator Hervieux-Payette made several points in support of her bill. These included recommendations for repeal by the UN Committee on the Rights of the Child and the Council of Europe, legal reforms in Germany, Justice Louise Arbour’s dissent in the 2004 Supreme Court of Canada decision, studies published by Statistics Canada, the Law Commission of Canada and Toronto Public Health, and the number of organizations that have endorsed the Joint Statement on Physical Punishment calling on the government to give children the same protection from assault as it gives adults.

Ap 5/06 Senator tables new Bill S-207 to repeal s. 43
Senator Céline Hervieux-Payette tables first reading of her new Bill S- 207 to repeal s. 43 because her previous Bill S-21 died due to the federal election. Bill S-207 is identical to her previous bill and like it calls for repeal with a one-year delay in implementation to allow time to educate Canadians and coordinate action with the provinces. Click here for copy of Bill S-207

Senate Bill S-21 to Repeal s. 43

Dec 2/04 Senator introduces Bill S-21 to repeal section 43
Quebec Senator Céline Hervieux-Payette introduces Bill S-21 to repeal s. 43. It would take effect one year after enactment to allow time for the public to become educated on the change in the law. In a news release, the Senator said the bill would eliminate discrimination against children, highlight the government’s commitment to protect the most vulnerable, and comply with the UN Convention on the Rights of the Child. Click here for copy of Bill.

This is the second senate bill introduced to repeal s. 43. The first was sponsored by Senator Sharon Carstairs and reached 2nd reading in 1997 but debate was adjourned and the bill died. Several Private Members Bills have also been introduced in the House. See Political Response, Private Members Bills for list.

In 1977, the Standing Senate Committee on Health, Welfare and Science began a study on Childhood Experiences as Causes of Criminal Behaviour. After hearing witnesses and receiving briefs over an 18th month period, it tabled its report Child at Risk in 1980. A chapter of its report deals with child abuse and the Committee recommended that s. 43 be reviewed “in view of the sanction which this type of provision gives to the use of violence against children.” See Political Response, Liberal government for more information.

Dec 7/04 Debate begins on 2nd reading of Bill S-21
Senator Payette moved 2nd reading of S-21 by reviewing the history of the s. 43 defence in English common law, the UN Committee’s recommendation that it be repealed, and European countries that have ended similar defences.

She referred to studies showing the harm associated with corporal punishment and the need for education to increase knowledge of child development and effective parenting. Saying she drafted the bill as a response to the 2004 Supreme Court judgment, she said this decision still allows young children to be subjected to common assaults by parents. This legal approval of such assaults must end and that is the reason for her bill. The Senate adjourned for the Christmas recess.

Mar 10/05 Senate Bill S-21 to repeal s. 43 passes 2nd reading
Second reading of the bill began March 8 with a speech in support by New Brunswick Liberal Senator John G. Bryden, a lawyer and former New Brunswick Deputy Minister of Justice.

Debate continued on March 10 with a speech by Ontario Conservative Senator Anne Cools. She stated that she had no problem with making some change to s. 43 but was strenuously opposed to repeal, claiming it would leave millions of parents exposed to criminal prosecutions and would not reduce child maltreatment and abuse.

Senator Rompkey, Deputy Leader of the Government in the Senate moved that the bill not be read a 2nd time but instead referred to committee prior to 2nd reading. Senator Stratton, Deputy Leader of the Opposition, did not agree, stating that bills tend to linger there where this procedure is followed. The Conservative side of the Senate, he said, supported the bill in principle and it should be passed and go to committee.

Senator Noël Kinsella, Leader of the Opposition, said that the principle of the bill is clear and he supported it. There was no point in sending it for study prior to 2nd reading. The bill was then voted on and passed. On motion of Senator Hervieux-Payette, Bill S-21was referred to the Senate Standing Committee on Legal and Constitutional Affairs for study.

Committee Hearings on Bill S-21

Senate Standing Committee on Legal and Constitutional Affairs begins hearings on Bill to repeal s. 43. For a full report of hearings, see the Senate Committee website, “Committee Proceedings”. Our comments on some of the arguments made in presentations opposing S-21 are at the end of this chapter.

June 1/05 Presentation by Senator Hervieux-Payette
Senator Payette addressed the Committee in support of her Bill, reminding senators that at the time s. 43 became part of our Code, our population was small, mainly rural, and the social sciences of psychology, psychiatry, and pediatrics in their infancy. Corporal punishment was widespread in many institutions. Among other arguments in support of her bill, she referred to:

seat belt laws as a successful example of prevention, stressing the difficulty and expense of dealing with problems after the damage is done. S-21 seeks to prevent problems associated with corporal punishment before they arise

the UN Committee overseeing the implementation of the UN Convention has twice reminded Canada that s. 43 violates the Convention

Quebec’s amendment of its Civil Code (1980) to remove the parental authorization for corporal punishment gave both adults and children equal rights to civil protection against assault

the government does not support spanking yet won’t end s. 43 that justifies it. One can’t be both for and against it at the same time

Canadian public opinion has learned from various studies, and opinions have evolved in favour of repeal as evidenced by the Oct 2003 Decima survey

the Justice Minister’s claim that bodily harm is not allowed by s. 43 ignores the psychological harm and humiliation that repetitive slaps — even light slaps — can cause, especially when they are rationalized as “loving” slaps

the argument that the family must not be interfered with was the same argument used against intervening in cases of wife assault. Police will not lay charges for minor slaps. Quebec practices extensive consultation on whether charging is appropriate. There is a high standard of proof in criminal law and prosecutors are not going to embark on inappropriate proceedings

even in very severe cases, such as a recent one in BC (Korean father beats son 100 to 300 blows), there is no jail sentence. In this case, the court tried to educate the father by requiring him to write an article for a community newspaper to show that this kind of force is not allowed under our law

in the constitutional challenge, Justice Arbour was right in holding that the meaning of “reasonable” was uncertain and subjective in the context of a parent striking a child. The definition of what is “reasonable” will vary according to age, region and religion. It is important that everybody understand the law, especially the criminal law, in the same way.

June 2/05 Presentation by Global Initiative to End All CP
The Global Initiative to End All Corporal Punishment is an international movement based in London, UK. Peter Newell, its Joint Coordinator, addressed Senate Committee. He stressed that repealing laws justifying corporal punishment of children is a question of basic human rights. Although controversial, it is not a complicated issue. Added to the human rights imperative is the overwhelming social science evidence of potential harm.

The fear that repeal would lead to automatic prosecution is unfounded as prosecution must be in the public interest and there is no public interest in prosecuting parents for minor smacks. Prosecution is not the sole function of the law. It also sets standards and serves to educate on what those standards are. If there is concern that repeal would make the use of reasonable force to protect children illegal, this right can be confirmed by statute. There will soon be 20 countries that have no defence similar to s. 43 and a number that explicitly prohibit corporal punishment.

June 8/05 Presentation by Can. Fdn. Children, Youth and the Law
This is the organization that launched the constitutional challenge to s. 43. Cheryl Milne, its staff lawyer, addressed the Committee. After citing 3 basic reasons in support of Bill S-21, i.e.,human rights, our obligations under the UN Convention on the Rights of the Child, and social science evidence that shows no benefit to spanking or other forms of corporal punishment, she responded to questions from senators. These included questions about:

the need to restrain children and protect them and could reasonable force be used for this without s.43
what the law has to say on the role of the family
the process for reporting, routing and handling complaints about physical discipline
since the Supreme court has decided that s. 43 is constitutional, what would be the legal foundation for repealing it
should we not limit s. 43 more clearly, rather than ending it
what judicial decisions have interpreted s. 43
the effect repeal would have on provincial family laws
the state of the law in the UK.

June 9/05 Presentation by Home School Legal Defence Assn.
The Home School Legal Defence Assn. was a member of the “Coalition for Family Autonomy” that intervened to support the government in opposing the constitutional challenge to s. 43. Its director and legal counsel, Paul Faris, addressed the Committee by stating that his organization takes no position on whether spanking is correct or not and opposes S-21 because any unwanted touching is assault with a penalty of up to 5 years in jail. The individual rights and autonomy of parents, he stated, is a tradition that must be protected. Other points he made in answer to senators included the following:

the Supreme Court guidelines give strong protection to children
the evidence on whether spanking is harmful is inconclusive
no countries have made spanking a criminal offence
placing un unwilling child in a chair for a time-out would be a crime
75% of parents will be in jail if s. 43 ended and strictly applied
whether spanking is good or bad is a difficult question
it would be educative to amend s. 43 but would freeze the definition
it is amazing that nobody but home schoolers know about the Supreme Court decision.

June 15/05 Presentation by Minister of Justice
Carole Morency, Dept. of Justice lawyer, appears before the Committee on behalf of Justice Minister, Irwin Cotler, stating that the government does not condone physical correction but opposes Bill S-21 on the grounds that the full force of the criminal law should not be brought to bear on parents for a “mild, non-injurious spank”. The Dept. is tracking judicial decisions on s. 43 to see how the courts are interpreting it in light of the Supreme Court decision. In answer to questions by senators, she made the following points:

amending s. 43 to codify the Supreme Court decision is an option
no other country has banned corporal punishment by its criminal law
other countries have a much narrower definition of assault than we have
education is the most effective tool to end spanking
the Supreme Court decision provides a lot of clarity and guidance. We want to give the law time to settle and work its way out
we have been trying to get the Supreme Court message out
after the 1979 Swedish ban, the rate of abuse increased and there was more violence between young people
the majority of Canadian parents do not spank, even though s. 43 allows it
the meaning of “reasonable” is clear to the courts
the Supreme Court guidelines will guide courts. The courts will determine borderline cases — not the parents
municipal protocols between police, child protection, and social service agencies on how to deal with reports of maltreatment are common
we will explore Senator Joyal’s suggestions on informing the public about the Supreme Court decision
Senator Joyal’s suggestion about putting the s. 43 issue on the federal-provincial annual conference agenda is important but we have not done so as yet.

June 16/05 Presentation by Realwomen of Canada
Realwomen, along with Focus on the Family, Home School Legal Defence Assn. and Family Action Coalition were the principal interveners, as the “Coalition for Family Autonomy” to support the government in opposing the constitutional challenge to s. 43.

Diane Watts, researcher, Realwomen, appeared before the Committee stating that it takes no position on spanking and does not advocate it but opposes Bill S-21 on the grounds that if spanking is reported, it will have to be investigated and would be “the go-ahead for an army of social workers to intrude into family life”; without s. 43, putting an unwilling child to bed would be a criminal offence; after spanking was banned in Sweden, 22,000 children were removed from families and child and peer abuse increased. In answer to questions from senators, she said:

common law defences and good judgment by prosecutors will not protect against unwarranted prosecutions
repeal would discriminate against cultures that are not white, upper-middle class
we are shocked that the Children’s Hospital of Eastern Ontario would lend its name to the Joint Statement on Physical Punishment of Children
there is an educational component to a slap to obtain order and develop proper habits
we don’t want parents to be vulnerable to criminal charges where their intentions and motives are good.

The Committee adjourned noting that certain government bills have to be considered by the Committee before Parliament recesses for the summer. These take priority over Private Members Bills.

As senators intend to call more witnesses on Bill S-21, the Committee expects to continue hearings after Parliament resumes in the fall.

Comments on presentations opposing S-21

Home School Assn. claims the evidence that spanking is harmful is inconclusive. Obviously, the government does not agree. It has been telling parents since 1997 “it’s never okay to spank children. It’s a bad idea and it doesn’t work”.

The assertion that no country has made spanking a criminal offence is simply incorrect. Any hitting that causes pain is a criminal offence under Sweden’s Penal Code. Spanking causes pain — as the Quebec Court of Appeal said in a leading case on s. 43: “That the punishment naturally may cause pain hardly needs to be stated; otherwise its whole purpose would be lost”. Sweden’s Penal Code included a defence similar to s. 43 until it was removed in 1957. Once removed, spanking could be prosecuted like any other assault. In practice, however, it rarely is because Sweden seeks to educate rather than prosecute parents who spank or use other forms of corporal punishment. See International Developments, Sweden, Other Countries for information on Sweden and countries that have removed defences similar to s. 43.

The claim that using reasonable force to put an unwilling child in a chair for a time out or to bed would be a crime ignores the common law — and common sense. The right to use reasonable force to restrain and control a child is acknowledged by the common law and is not a crime, with or without s. 43.

There is no evidence to support the claim that 75% of parents would be in jail if s. 43 were repealed. On the contrary, the table of assault convictions in our 1994 brief to federal ministers shows that prison sentences were imposed in only 3 out of 12 convictions – and these were for severe assaults. The recent Quebec case of R. c. J. M. also indicates that jail sentences are imposed only in severe cases. See The Law, Judicial Interpretation of Supreme Court of Canada Decision.

The point that “nobody but home schoolers know about the Supreme Court decision” may well be true. The Minister of Justice concedes a lack of public knowledge of the law on s. 43. This is not surprising in view of the government’s silence on the issue. S. 43 has been rewritten by the Supreme Court but not debated by Parliament. Until it is, the public will continue to be unaware of the current state of the law. This is a serious failing because basic criminal law should be understood, especially by the persons directly affected.

The Minister claims that education is the most effective way to end spanking. Parents whose religious beliefs include spanking and those whose authoritarian views demand unquestioning obedience will not be changed by education alone.

Contrary to the Minister’s claim, the Supreme Court decision does not provide “a lot of clarity”. The limits on age, implements, and where a child may not be hit may be clear. But, quite apart from the basic question of whether the law should approve any hitting of young children, the circumstances in which a 2 to12-year-old can be hit and the frequency of the hitting allowed are far from clear.

The Minister believes that the meaning of “reasonable” is clear to the courts. Past judicial decisions on s. 43 do not bear this out. More importantly, its meaning is not clear to the public. Section 43 decisions and parenting books show that many people have quite different ideas on what constitutes “reasonable” corporal punishment. While “reasonable” may well be a workable standard in other areas of the law, it is far too subjective to be a workable standard for guiding the public on what constitutes a “reasonable” assault for “correcting” a child.

The Minister, Home School Assn. and Realwomen would have the Committee believe that ending the corporal punishment defence in Swedish law has led to an increase in child abuse and violence. This is a misinterpretation of the effect of Sweden’s reforms. We believe the Committee should hear evidence directly from Sweden on this issue.

We agree that municipal protocols on how to deal with reports of corporal punishment are common. The conclusion we draw from this is that protocols can be used to avoid inappropriate prosecutions and establish alternative ways to help parents learn better methods of discipline. Decisions on whether prosecution is necessary would depend on these protocols rather than on the discretion of individual prosecutors.

Realwomen suggests that good intentions and motives determine whether hitting is acceptable. This cannot be the test. Law reports and newspaper articles on parental assaults show that parents who believed their assaults were for the good of the child have inflicted serious injuries.

Government defeated and elections called

When Parliament adjourned for elections in January 2006, Senator Hervieux-Payette’s bill died. We expect she will reintroduce it in the new parliament.