Senate Bill S-204 to Repeal S. 43 | Senate Bill S-209 to Repeal S. 43 |
Committee Hearings on Bill S-209 | 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-204 to Repeal S. 43

June 10/10  Speech by Senator on 2nd reading of  Bill to repeal S. 43
Hansard, Issue 37 -  Senator Hervieux-Payette spoke on second reading of her Bill S-204 to repeal S. 43. Among other things, she said we all agree that the incidence of violence must be reduced and that we need to recommit to prevention and to deal with the root of the problem. This root is called parenting education. That is one of the reasons she would like to see section 43 of the Criminal Code repealed. Those who say this provision would result in the criminalization of parents or guardians for so-called "trifling" reasons are arguing in bad faith. Sections 34 and 37 of our Criminal Code already allow people to use reasonable force to defend themselves or anyone else in their care. Furthermore, "de minimis" and "necessity" defences in common law already protect parents independently of section 43. Not one of the 26 countries that have thus far banned the use of violence in child rearing has experienced this result.

All the more recent studies have shown, not only that force is ineffective in child rearing, no matter what level of force is used, but also that its consequences are counter-productive in the medium and long term. The most recent study published by the American Academy of Pediatrics in April 2010 investigated the risk of aggression that may develop in five-year-old children when they have been raised with spanking from the age of three. The study was conducted between 1998 and 2005, with 2461 respondents. The results are unequivocal. Spanking 3 year-old children significantly increased the probability of engendering higher levels of aggression by the age of 5. These findings are consistent with dozens of other studies of the subject.

After touching on scientific, religious, and psychological concepts concerning child discipline, the Senator said that Bill S-204 provides for a campaign that would help parents find alternative child rearing practices. She urged senators to fully support S-204 and the debate adjourned.

Mar 9/10 Senator introduces new bill to repeal section 43
Senator Hervieux-Payette introduces a new bill, S-204, to repeal s. 43. Click for Bill. This is the same as Bill S- 21 that she introduced in Dec/04 and simply calls for repeal without any qualifications.

Senate Bill S-209 to Repeal S. 43

Jan 15/10 Senator Hervieux-Payette will reintroduce amended Bill S-209
When Parliament resumes in March, Senator Hervieux-Payette confirms she will reintroduce Bill S-209. The bill was before the Legal and Constitutional Affairs Committee for study when Prime Minister Harper prorogued Parliament in December. The result is that all Private Members’ Bills in the Senate die. (Those in the House of Commons do not.)

Nov/09  Senate Bill S-209 on committee order paper but no hearings yet
Senator Hervieux-Payette’s private member’s bill to repeal s. 43, as amended by the Senate in June/08, is on the Legal and Constitutional Affairs Committee’s orders of reference, but as government bills take precedence over private member’s bills, a number of these must be dealt with before hearings can begin on S-209.

June 22/09  Amended  Bill S-209 to be studied again by Senate Committee
Senator Hervieux-Payette’s bill to repeal s. 43 as amended by the Senate in June/08 was reintroduced in Jan/09 when parliament resumed after being prorogued in Dec/08. On second reading today the bill is again referred to the Senate Standing Committee on Legal and Constitutional Affairs for study after Senator Sharon Carstairs speaks in support. She said Senator Wallace was correct when he said that changes made to the bill by the 2008 committee were not seen by previous witnesses and that perhaps they could be heard when the bill goes to committee this time round. Click for Sen. Carstairs speech.

Current members of Legal and Constitutional Affairs Committee are:
Fraser,   Joan   Lib. - (De Lorimier - Quebec) Chair
Nolin,   Pierre Claude   C - (De Salaberry - Quebec), Deputy Chair
Angus,   W. David   C - (Alma - Quebec)
Baker,   George   Lib. - (Newfoundland and Labrador)
Bryden,   John G.   Lib. - (New Brunswick)
Campbell,   Larry W.   Lib. - (British Columbia)
Dickson,   Fred   C - (Halifax - Nova Scotia)
Joyal,   Serge   Lib. - (Kennebec - Quebec)
Milne,   Lorna   Lib. - (Peel County - Ontario)
Rivest,   Jean-Claude   Ind. - (Stadacona - Quebec)
Wallace,   John D.   C - (New Brunswick)
Watt,   Charlie   Lib. - (Inkerman - Quebec)

Mar 24/09  Senator moves 2nd reading of amended Bill S-209
Senator Hervieux-Payette moves 2nd reading of her amended bill to repeal s. 43 but asks leave of Senate to postpone her speech saying she has just received results from Europe of recent studies that provide new insights and would give senators ‘new food for thought’. She will speak on her bill when she has finished her research.

Jan 27/09  Bill S-209, as amended, introduced by Senator
This time, progress on ending legal support for corporal punishment is set back by Parliament being prorogued in Dec/08 at request of Prime Minister Steven Harper.   The PM’s request came shortly before his government would likely have been defeated over the Opposition’s criticism of his Economic Statement. The Governor General granted prorogation and Parliament resumed on Jan 26/09. True to her word, on Jan 27 Senator Hervieux-Payette introduced Bill S-209 as amended by the Senate in June/08. Click for bill as amended.

Sept 7/08  Federal election means Senate corporal punishment bill dies
Once again, progress on ending legal support for corporal punishment is set back by a federal election. The Prime Minister’s call today for an election on Oct 14 means that Senate Bill S-209 as amended, passed June 16 and introduced in the House of Commons the same day will not be proceeded with.  This was the third bill to repeal s. 43 introduced by Senator Hervieux-Payette. However, she announced during the Senate debate that she would keep introducing a bill until one is passed. We expect she will do so in the new Parliament and either introduce a new bill or the amended Bill S-209.

June 17/08 Bill S- 209 passes 3rd reading and referred to House of Commons
Senator Céline Hervieux-Payette moves 3rd reading of her amended Bill S-209. It passes on division with some senators dissenting. Click Bill S-209 for bill as amended and passed.

June 12/08  Bill S-209 amended after Committee hearings and reported to Senate
Six senators (2 Conservative and 4 Liberals) spoke to the Bill on 3rd reading as follows:

Senator Ethel Cochrane (Conservative) said s. 43 provides a balance between a child’s need for protection and need for guidance and discipline. The guidelines given in Supreme Court decision make it clear that only limited force is permissible. Without section 43, Canada's broad assault law would criminalize force falling far short of what we think of as corporal punishment. This is a valid and fundamental concern. She referred to committee witnesses from the Council of Criminal Defence Lawyers, Criminal Lawyers Assn, and Canadian Bar Assn in defence of her views, and to the New Zealand witness but ended by saying that she continues to support s. 43 as is.

Senator Céline Hervieux-Payette (Leader of Liberal Opposition in Senate) replied referring to the number of organizations that support repeal, the dissenting judgments in the Supreme Court decision, the Council of Europe recommendations and law reform in European countries.

Senator Raynell Andreychuk (Conservative) said the issue of corporal punishment is over in Canada. It is not advocated by anyone. The debate should not be about hitting or striking a child. This is not where the debate lies. The debate is that the UN Convention on the Rights of the Child is a transforming type of legislation. It points out the needs and rights of children. One of those rights is the right to grow without corporal punishment and being struck; in other words, to live without violence. It is appropriate to discipline children and some form of touching and force may be necessary. New Zealand was thinking of deleting their section 59 that is similar to section 43. Then good parliamentarians said: We have to let parents have some discretion. They built back some defences. She thinks that is what we have done in amending Bill S-209. “ I think we have started the proper and appropriate debate for parliamentarians and Canadians”, she said, but we need to have enough time for education and a one-year lead time before implementation may not be enough.

Senator Joan Fraser (Liberal) said the Standing Senate Committee on Legal and Constitutional Affairs took on board all the work that had been done by previous committees. The outcome was an amendment to the bill to set out explicit defences. As Senator Andreychuk indicated, there is a year for education, communication and planning. It is not as if this legislation were coming as a surprise; this bill has been around for a long time. Everyone has known that it was on the agenda. As Senator Andreychuk indicated, a year for education, communication and planning is included in the bill.

Senator Sharon Carstairs (Liberal) said this bill has been around for a very long time. She introduced it 12 years ago. For 12 years this bill has been before the Senate of Canada. What she still does not hear in enough responses is the risk to children. We talk about the risk to parents; we talk about the risk to teachers. What about the risk to children? This bill is about the risk to children. Parents have interpreted the Supreme Court decision as saying that it is now permissible to hit children between the ages of two and twelve. Senators should look at case law on section 43 prior to the Supreme Court decision. It ruled that it was acceptable under s. 43 to hit a child with an extension cord,  to kick a child down a flight of stairs, to throw a child on the front of an automobile, strip her panties off and spank her. Violence does not work, and I urge all to support this bill.

Senator Marilyn Trenholme Counsell (Liberal) said little children are so defenceless. She practiced medicine for 27 years and saw much of that. Any child, any person who has even once been spanked never forgets it until their dying day. It is traumatic; it is such a scar; it is such a wound. All of the things the senator said about it leading to violence and bullying are true. It is indefensible. There are other ways to discipline. As parents, we try to learn other ways, but we often do not succeed. This bill will give us a chance to study how we prepare young people for parenting. Would it not be proper to have a leaflet of some sort given to every single parent at the time of the birth of each child? This new legislation would be very clear. It is so unfathomable to think that you cannot hit a child until he or she is two years old and thereafter you can hit them when they are between the ages of 2 years and 12 years. That does not make any sense, but what we are doing tonight makes sense.

June 5 and 4/08 Committee Hearings on Bill S-209 resume
Click Committee Hearings on Bill S-209 to read excerpts from oral evidence given to committee on June 5 and 4 and May 14 and 15.

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.

Committee Hearings on Bill S-209

Members of Standing Senate Committee on Legal and Constitutional Affairs are:

Excerpts from oral evidence given to Committee:  

June 5/08  Professor Anne McGillvray, Faculty of Law, University of Manitoba
The decision of the Supreme Court of Canada in the Canadian Foundation case in 2004 was an extreme disappointment. The guidelines and the analysis are not helpful. One thing the court did not do that it usually does is talk about where this law comes from. Therefore, I want to do that for you today. This law originates in a series of Roman laws that were enacted to curtail the power of the father. The power pater potestas gave the father all power over all members of his household, adult children and little children included. In this series of developments in Roman law, child killing began to be treated as murder and, eventually, the senate began to curtail the degree of physical punishment that a father could commit. This became known as the power or defence of reasonable correction. Assault committed by the father against his child, his wife, his servant and slave were legal. Magistrates, masters of ships, schoolmasters, prison masters and masters of trades were similarly empowered to use corporal punishment that was reasonable, moderate chastisement against those in their control.

The colonies of Canada came together in the 1867 British North America Act, making criminal law a federal responsibility.  This would require a consolidation of colonial criminal law which was a combination of common law and statutes that each colony administered separately; most of it was English common law and, in Quebec, the civil law. This consolidation was achieved in the 1892 Criminal Code, our first Criminal Code and includes the defences to assault, including correcting a child by force. Today, I would invite the Senate to end the legal sanction of violence provided by section 43 and rid the criminal law of what is clearly an archaic as well as dangerous provision.

June 5/08  Eric Roher, Partner, Borden, Ladner, Gervais, LLP
Partner and national leader of the Education Law Group at the law firm, Borden, Ladner, Gervais and adjunct professor at the Faculty of Law at the University of Toronto: I represent school boards and independent schools across Ontario. Among my clients are the Toronto District School Board, the Toronto Catholic District School Board, and many other school boards. Educators must be able to act quickly and effectively to ensure the safety of students and to prevent serious violations of school rules. The elimination of section 43 of the Criminal Code would be detrimental to the ability of teachers and school officials to maintain a safe and secure environment for all students.

My first major concern is that repealing section 43 will eliminate a very valid defence that is valuable for teachers and school administrators. Currently, section 43 is the only defence specifically designed to provide teachers and school administrators with legal protection that is essential in their ability to exercise their duty to maintain a safe learning and teaching environment. It protects teachers and school administrators who use reasonable corrective force to restrain or remove a child in appropriate circumstances. The concern is that if section 43 is repealed, the general, wide and liberally construed assault provisions of the Code would apply to teachers and school administrators who use any force at all against a child without the child's consent. Without the protection of section 43, a teacher or school administrator could potentially be committing assault if a teacher separates a bully from a classmate that he may be taunting; if a teacher removes a disruptive student who refuses to leave a classroom or the school; if a teacher removes a student from a school bus.

My second concern is that there are no other defences in the Code that are an appropriate substitute for the protection offered under section 43. My third is that if section 43 is removed from the Code, we run the risk of a dramatic increase in the number of assault charges filed and prosecuted relating to schools, teachers and school administrators. The fourth is that repealing section 43 might unnecessarily stigmatize blameless teachers and school administrators who may be subject to criminal prosecution. The fifth is that the reasonableness test would be removed regarding the court's consideration of the individual facts of each case. Chief Justice McLachlin's interpretation of section 43 in the Canadian Foundation case reaches a valid and important compromise by providing much needed guidance as to the scope of section 43. She asserts that teachers may reasonably apply force to remove a child from a classroom or to secure compliance with instructions, but not as corporal punishment. A complete repeal of section 43 would do more than prohibit corporal punishment. It would, in fact, prohibit the use of any kind of force in all circumstances involving children in a school setting.

June 5/08  Mark Carter, Associate Professor, Faculty of Law, University of Saskatchewan
If we did not have the corporal punishment defence in the Criminal Code, could the exercise of discretion by prosecutors provide some middle ground? Our law does recognize the existence of these kinds of discretionary powers that may be exercised by individual prosecutors in relation to individual cases. For legal and constitutional reason, the "individualness'' of that has to be emphasized. I am speaking about the common-law power of prosecutors to withdraw charges and the Criminal Code power to stay proceedings. For people who want some assurance that in the absence of section 43, the law of assault may still be applied with some sensitivity, we can say that the law does allow prosecutors to decide not to prosecute for using force to correct children in situations where that force would otherwise be defined as assault.

On the other hand, because the law does require the exercise of this kind of discretion to be specific to the facts of a case and a prosecutor's perspective on those facts, we cannot say that parents will never be prosecuted for the kind of conduct that is presently shielded by section 43; some of it would still fall within that range of discretion. This suggests that reliance on discretion injects some uncertainty in the law in relation to assault in these circumstances. I believe, however, that much uncertainty already exists due to the wording of section 43 and notwithstanding the Supreme Court's attempts to give a clear framework for the application of the defence. The difference is that, as the law presently stands, we begin from the assumption that the use of force against children can be justified. In the absence of section 43, it places the uncertainty more firmly and appropriately on the people who decide to take the risk of using physical force to discipline children. It is hoped they will not take that risk and consider alternative, non-forceful approaches to correction.

Individual or front-line provincial Crown prosecutors exercise most of the prosecutorial power under the Criminal Code. In theory, prosecutorial discretion is supposed to be concentrated in the stage of the criminal process that follows charges being laid. However, prosecutors may act as independent advisers to the police in deciding whether to lay charges and, in some jurisdictions, charge approval processes are followed. Within the range of decision-making powers available to Crown prosecutors, the common-law power to withdraw charges and the ability to stay criminal proceedings once commenced are the most applicable to this issue. Two principles are expected to guide decisions by prosecutors in relation to whether to enter stays or withdraw charges. The first is perhaps the best known: the sufficiency of proof principle. The second is the public interest principle. The sufficiency of proof principle provides a threshold test whereby a Crown prosecutor must be satisfied that there is a reasonable chance of gaining a conviction at trial. This involves considering sufficiency of evidence in relation to every element of the offence as well as any defences that might be raised. For as long as the criminal law has contained a formal corporal punishment defence, we can assume that the sufficiency of proof principle has been of particular significance when considering whether to pursue assault prosecutions in these circumstances. In the absence of a formal defence, we could expect that there would still be consideration of other defences that might arise.

The public interest principle, the second complement of considerations, holds that even when there is a likelihood of conviction, a prosecution should only proceed where it serves the public interest. One important factor that militates against a decision that a prosecution serves the public interest is that the conduct in question is only a technical breach of the law. For example, no actual harm has been done even though it might technically constitute an assault. This addresses to some degree concerns about the scope of conduct that falls within section 265 being as broad as it is, particularly at the least violent end. Another example of a public interest factor is whether it would be unduly harsh or oppressive for a conviction to arise under the circumstances. Also, the opinion of the victim is important. Both of these, you will appreciate, could relate to a corporal punishment situation. These are frameworks that are of the two grand principles that prosecutors uniformly recognize across Canada.

In closing, I want to emphasize that these exercises of discretion by individual prosecutors have to be distinguished from broad, top-down, non-prosecution policies that might be passed by Attorney General offices and imposed on individual Crown prosecutors. Those kinds of non-prosecution policies have been held to be invalid, precisely because they effectively remove discretionary power. The rejection of those policies would speak to some aspects of prosecutorial discretion that make people the most uneasy, suggesting that it might be, in some circumstances, a wholesale refusal to prosecute in certain areas. That is not the case with the legitimate range of prosecutorial discretion that is accepted by our law and the constitution.

June 4/08  Criminal Lawyers Assn
Norm Boxall, Vice-President: The CLA members are primarily defence lawyers. We have a bias that we generally act for accused persons, and we come from that perspective. We are opposed to violence against children but we need the protection that section 43 provides so that parents and teachers do not have the threat of the criminal law hanging over their heads. It effectively becomes zero tolerance, such that no discretion is exercised by the police or the prosecutor. We then see cases clogging the courts with trivial matters and the criminal courts used by persons in family law disputes on a regular basis. Our association does not think it is appropriate to call in the police, have a parent handcuffed, taken down to the police station, fingerprinted, removed from their home, barred from contact with their children, given a criminal record and potentially have their job taken from them.

June 4/08  Canadian Bar Association: Criminal Justice Section
Greg Del Bigio: It is through the experience of prosecutors and defence counsel across the country that we arrive at our positions. It is our position that section 43 is perfectly consistent with the protection that children deserve. While we understand that the bill is intended to protect children better, we do not support the passage of the bill. We are concerned that the changes suggested by the bill would dramatically expand the reach of criminal law in a wide range of circumstances. In the case of a Friday night arrest, a person might be incarcerated and brought before a court for purposes of a bail hearing a couple of days later. It might take time to capture the attention of a prosecutor to have them exercise their discretion not to proceed on a particular charge or to relax bail conditions that exist. We operate in a criminal law context where there is a huge amount of discretion in the common law. Crown attorneys and police officers are seen to have tremendous discretion, and for the most part that is good. However, on a day-to-day basis we see a limiting of the discretion. We see that police officers are becoming increasingly reluctant to use discretion. We are seeing no discretion applied or there is no discretion available, whether that is because the policy instructions or out of fear that they will be judged. If there is a concern that minor corrective force as narrowly interpreted should be dealt with, let us do so with public education, the Children's Aid, social education and high school courses to educate future parents. It is important for a teacher to be able to have the child taken out of the classroom so the others are not disrupted and can continue their education, or for the parent to be able to deal with it. Section 43 should continue to exist to ensure that those cases placed before the courts are cases where the actions are wholly inconsistent with parenting and the interests of the child.

June 4/08 RCMP
Fraser Macaulay, Director General, National Youth Strategy: I see clearly that the decision before you is as much a social policy decision as a legal one. And that is a dilemma that faces police officers every day. In Canada, every police officer is afforded discretion when it comes to enforcement. Enforcing section 43 is no exception. Any changes to section 43 will lead to more uncertainty. First, we may see an increase in complaints, investigations and ultimately an expectation of charges. Second might be an increase in court time in dealing with numerous areas of assault as defence lawyers attempt to create new jurisprudence as to the meaning of words. Police already have heavy case loads and Canadian courts are so full that many criminal cases are being stayed, diverted or screened out. The removal of section 43 would only increase the demands on an already overburdened system. The RCMP has worked hard to stay away from the American model of police providing security in schools. I ask that you consider carefully the impact that removing section 43 could have on the school environment and on the demands for police services in schools.

June 4/08  Child Welfare League of Canada
Peter M. Dudding, Executive Director: The intention of correcting behaviour by using corporal punishment can lead to serious maltreatment. Make no mistake: Children who live in a home where physical punishment is used are at a greater risk of child abuse. From 1998 to 2003 the rate of substantiated physical abuse increased by 107 % and represents only those incidents that were reported to a child welfare authority. Therefore, this represents only the tip of the iceberg. Virtually every child welfare agency in Canada prohibits the use of corporal punishment. It has long been recognized by these agencies that the use of corporal punishment is unacceptable. I remind you about the general comment of the UN Children's Rights Committee that eliminating corporal punishment in the family, schools and other settings is also a key strategy for reducing and preventing all forms of violence in societies. Section 43 covers only assault for the purpose of correction. To say that it is about diapering babies, putting them in car seats, stopping them from running into the road and so on is not correct. It was never about the ordinary interaction of parents and children. It is about hitting children to teach them a lesson, to correct them. We must give a clear message that hitting children is wrong: as wrong as hitting anyone else. The Supreme Court has given us a tighter and narrower definition. Nevertheless, there is still a problem with the level of understanding of Canadians generally and even professionals about what constitutes that protected area under section 43. There is still confusion over the basic thrust of the Supreme Court's determination.

June 4/08 Professor Don Stuart, Professor of Criminal Law, Queen’s University:
How can police remember the criteria laid out by the Supreme Court of Canada? Under this decision, section 43 can only be used to justify violence once a child reaches the age of 2 years until they are aged 12. That is a vulnerable group of children, but we are deciding that we can still use minor physical force against them. The decision also rules out anything where the parent acts out of frustration and loss of temper. I find that confusing. It is only the cold rational person who is never frustrated or acting in anger who can discipline their children in a minor way. It also confuses me that the discipline does not depend on what the child has done. And what is the meaning of "capable of correction? These guidelines are ‘grey’. However, the Supreme Court majority judgment is to be commended for reading down this legislation. It does not give a right to corporal punishment; only to use minor force for corrective reasons against people aged 2 to 12. That is an advance.

There is the justifiable concern that you will criminalize all parents and teachers but we have self-defence, defence of property, defence of duress and the defence of necessity. We also have section 27 and section 30 about the use of no more force than is necessary to prevent harm or crime. That would apply to lots of these situations without a section 43. The authority for the de minimis non curat lex doctrine exists in the Supreme Court of Canada in the Canadian Foundation case. Several senators say we are worried that police will be called into schools and domestic situations, and there will be many more prosecutions. We have a discretionary system. Police officers always exercise discretion. They have to. It is impossible to do otherwise. There are many professionals in Canada — childcare workers and psychiatric care workers — who deal with children in more vulnerable and dangerous situations. No one else has the same type of justification to use force.

The New Zealand provisions will cause more problems and are not needed. We have them already in the Criminal Code. The NZ provision that the police have discretion not to prosecute "where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution'' is odd to put right into the criminal law. As the RCMP witness said, police officers exercise discretion all the time. Some members of the committee probably would favour a provision dealing with physical restraint, especially for teachers. I think it is unnecessary, simply because we already have existing Criminal Code provisions. If you were to decide, however, to put in a physical restraint provision, please put it in the Canadian tradition of saying, "only as much force as reasonably necessary.''

Witnesses from New Zealand spoke by videoconference.
June 4/08 Youth Law, New Zealand: John Hancock, Senior Solicitor: The UN committee made a strong recommendation about section 59 in New Zealand. They recommended that it be repealed or amended. That provided a basis or at least a context for the amendment bill that was introduced a year or two later. Corporal punishment in schools in New Zealand was banned in 1990 in an amendment to the Education Act. That is some of the historical context leading to New Zealand's repeal of section 59. The main debate was around whether the defence should be removed entirely. The opposition wanted a limitation of "trifling and transitory'' force as a way of defining reasonableness. Whereas those opposed wanted to remove the defence of reasonable force altogether. That was the main delineation in the way the issue was debated at the committee. The most powerful point regarding the new wording is that it removes the use of force for the purpose of correction. That was passed overwhelmingly and it was the difference between the two sides during consideration in the Select Committee. It brought them together to decide to remove the use of force for the purpose of correction, but ensure that police discretion was spelled out. Generally, the public accepts where the law is now and it is ready to move on. I found the views of children and young people fairly overwhelming, unequivocal almost, in terms of wanting to be free from physical punishment. But in terms of the actual debate and the public debate, their voices were not really there.

June 4/08 New Zealand Human Rights Commission
Rosslyn Noonan, Chief Commissioner: The New Zealand Human Rights Commission has had the issue of corporal punishment of children on the agenda almost since its inception in 1978, so there is a body of work that has been undertaken by the commission, right until the repeal of section 59 of the Crimes Act. I also wanted to highlight that a major review undertaken by the commission and published in 2004 on how well human rights are recognized and respected in New Zealand, identified children and young people as the group most at risk of human rights abuses. NZ’s earlier removal of the ability of early childhood centres and schools to hit children as punishment or correction, did not prove to be a great difficulty. Both the major teachers' and principals' organizations were part of a long campaign to remove school corporal punishment from the law. There were a handful of objections from traditionalists, but since the removal of corporal punishment, with the exception of a couple of Christian schools who believe for religious ideological reasons that they should be able to hit children, there have been no other attempts to bring corporal punishment back into the school.

The commission always accepted the ability of parents to reasonably restrain their children in dangerous situations, in situations where they might have been about to harm themselves or others. We would not have been suggesting prosecution in those cases, and the doctrine of necessity would have applied. For the avoidance of doubt, the commission is comfortable with the wording that was finally achieved in the New Zealand law change. It believes that this wording confirming that restraint is clearly still a possibility where required is a practical and pragmatic solution to something that was causing a high level of anxiety in the wider community and amongst decent and caring parents.

June 4/08 New Zealand Human Rights Commission
Ian Hassall, Former NZ Commissioner: As I said in my opening statement, there is a perceived difficulty in distinguishing between restraint and correction. I say "perceived''  because I think ordinary people do know the difference between holding a child and striking a child. Unfortunately, even after the law was passed and after all the discussion we had, there were still some journalists who seemed to be unable to conceive of a child being restrained without that child being struck. To me, that is a matter of education rather than anything else. Being able to hold a child so that she will not run out on to the road is not at all the same as striking a child in order to intimidate her into not running out on to the road. Those are different things, but for some people they were being interpreted as the same thing.

The indigenous people here are the Maori people. Each community has had to argue this whole issue through in their own way, but in the end we have a law which covers all communities. It is not a matter of imposing on other communities what the majority says. It is a matter of everyone coming to a position. One of the interesting things that occurred some time before the law was passed was that the Maori Party that represents many Maori in our Parliament unanimously came to the conclusion that this was a good law change for their people. There has been considerable support among Maori people for this, before and since the law was passed.

As far as public education on the law itself and its meaning, regrettably, there has been no official public education in New Zealand. I think perhaps officialdom were a little wary, given all of the controversy there had been, of stirring it up again by issuing statements about what the law meant and so on. It may be that they thought because it had been so well publicized with the controversy, that everyone understood what it meant. I think there is some justification for that view.

May 14/08  Senate committee begins new hearings on bill to repeal s. 43
The Standing Senate Committee on Legal and Constitutional Affairs (LCAC) begins hearings on Senator Hervieux-Payette’s Private Member’ Bill S-209 to repeal s. 43. Senator Joan Fraser, Chair, opens hearings by noting that this is the same bill that was considered by LCAC as Bill S-21 in 2005 and as Bill S-207 by the Senate Committee on Human Rights in 2007. Hearings on S-21 ended because of the federal election and those on S-207 were completed but failed to reach 3rd reading because of summer recess.

The main points made by witnesses at the hearings on Bill S-209 were:

May 14/08  Senator Hervieux-Payette speaks in support of her Bill S-209
Senator Hervieux-Payette began by stressing that legal support for corporal punishment opens the door to the use of excess force and the belief that violence is an acceptable way to deal with problems. It is not educational. It does not favour the development of confidence, autonomy and self-respect. We also have an international obligation, she said, to uphold a child’s right to physical integrity.

Senator Andreychuk replied by putting it on record that she does not support corporal punishment and that she wants to deal with s. 43. She asked whether countries that have abolished corporal punishment retain the ability of parents to use reasonable restraint and referred to the recent Ontario decision R. v. Swan. Much of subsequent discussion revolved around this decision.

May 15/08  Council of Criminal Defence Lawyers
Mark Lapowich: Eliminating section43 to address the real problem of violence against children is simply unnecessary. Violence and abuse of children are adequately dealt with by the Criminal Code as it is currently structured. By repealing section 43, our broad assault laws would criminalize behaviour falling short of that which has been typically considered to be corporal punishment.

The defence of necessity is based on involuntariness of one's actions and has been interpreted by the courts very narrowly. The defence of de minimuis non curat lex is only available for trivial or technical violations of law. It does not offer the type of protection for valid uses of force, such as reasonable restraint, as does section 43. Our third concern is that, by eliminating section 43, we run the risk of flooding the courts with cases that are better dealt with outside of the criminal justice system. Our fourth is that, while the criminal law may serve an educative function, the need to inform and educate the public about these real and pressing concerns is better addressed in other fora. Finally, while I agree with Mr. Bernstein, the Children's Advocate for the province of Saskatchewan, that Canada must be a world leader with respect to the protection of children, I would respectfully disagree with any notion that, by not repealing section 43, we are somehow condoning violence against children. In relation to the recent Supreme Court of Canada's decision with respect to the Canadian Foundation for Children, we feel that was appropriately decided by the majority.

R. v. Swan is one of those cases where section 43 and the appropriate analysis of that section allows for the reasonable restraint defence that may not be available if we remove that section from the Criminal Code. It is extremely difficult to get into a defence of complied consent when we are dealing with children. For a long time, we have had this concern with human dignity, and that extends beyond non-consensual touching to threatening gestures and actions. The safeguards for these types of grey areas of conduct that we are discussing are not sufficiently addressed by the common law defences that would be left if section 43 were repealed. Those defences are set out, codified by section 8 of the Criminal Code to say that these are the common law defences, historically, and that they are available to people.

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.

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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.

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 are noted above.

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

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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.

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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.

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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.

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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.

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