House of Commons Bills to Repeal S.43
Basic Procedure for Private Members’ Bills | Private Members’ Bills to Repeal Corporal Punishment for Crime | Private Members’ Bills to Repeal S. 43 – 1989 to 1999 | Private Members’ Bill C-329 to Repeal S. 43 – 2001
Basic procedure for Private Members’ Bills
The following are general rules for PMBs but are subject to change and exceptions.
All MPs, except the Speaker, Deputy Speaker, Ministers and Parliamentary Secretaries, may introduce one or more private bills at any time. They are drafted with the advice and approval of parliamentary counsel and must indicate the committee to which the MP wants the bill referred to if it reaches 2nd reading. A 48-hour notice of intention to introduce the bill is given in the Notice Paper and it is then placed on the Order Paper.
No two bills on the Order Paper can be substantially the same. If an identical bill has been introduced in the Senate, this does not prevent it being introduced in the House, although at some point a decision may have to be made between the two.
Only 1 hour, 5 days per week is allotted for Private Members’ Business. The time allotted can always be cancelled to deal with urgent matters. In the event of prorogation or an election call, all bills are dropped from the Order Paper. Given the number of MPs, the time allotted for private bills, the priority the sponsoring MP attaches to them (if he has more than one bill), the chances of drawing a high number in the List for the Consideration of Private Members’ Business and reaching the top of the Order of Precedence, but dropping to the bottom as other bills are considered, means that private bills proceed very slowly through Parliament. The period between their introduction and conclusion may be very lengthy.
When the notice period has expired, the bill is given a number and introduced during Routine Business for 1st reading. The MP gives a brief explanation to the House, but with no discussion. PMBs may be seconded by up to 20 MPs. The Order of Precedence for dealing with them is established at the beginning of Parliament when the names of all eligible MPs are drawn at random and placed on a List for the Consideration of Private Members’ Business. The first 30 names on the List are then transferred to the Order of Precedence to establish the order in which they will be debated at 2nd reading. To be transferred to the Order, a MP must have introduced at least one bill.
If an MP has not introduced a bill, his name is dropped from the List and will only be replaced once the current List is exhausted or at the beginning of the next Parliament. When fewer than 15 eligible names remain on the List, a draw is held again to establish a new List. When the number of MPs on the Order decreases, it is replenished as necessary to bring the number again up to 30. Only those items on the Order may be considered during this hour.
All PMBs in the House (unlike in the Senate) now continue from one session to the next within the same Parliament at the stage they reached in the previous session, except if defeated, withdrawn or dropped from the Order Paper for technical reasons. They do not continue from one Parliament to the next but can of course be introduced again for 1st reading in a new Parliament.
Generally all bills since 2003 are considered votable unless held non-votable by a House sub-cmte according to certain criteria. Votable bills that reach 2nd reading are entitled to 2 hours of debate. During the first hour, the sponsor has a maximum of 15 minutes plus 5 minutes for questions and comments. Other MPs may speak for a maximum of 10 minutes each. Then the debate is adjourned; the bill is moved to the bottom of the Order and works its way back to the top for a second hour of debate. At the end of the second hour, the sponsor has 5 minutes to conclude the debate and the House decides whether the bill should go to cmte. This decision is usually made by voice rather than a formal recorded vote.
The cmte hears witnesses, considers the bill and may make amendments to it. Within 60 sitting days, it must either report it back to the House, request a one-time extension for further study or recommend that the bill not be proceeded with. Two hours, on separate sitting days, are allotted for the combined report stage and 3rd reading.
If the House agrees that the bill should be read a 3rd time, it again goes to the bottom of the Order. At the end of the second hour, all questions necessary to dispose of it are put, unless up to 5 additional hours for debate have been agreed to by at least 20 MPs. If the bill passes 3rd reading, it is sent to the Senate and the sponsoring MP must find a senator to sponsor the bill in the Senate. If there are Senate amendments, the bill goes to the bottom of the Order when received back by the House.
Previous to 2003, it seems that if bills were not considered of significant public interest, they would be held non-votable and entitled to only 1 hour of debate, at the end of which they would be dropped from the Order Paper. The MP could choose to introduce the bill again in the next session of Parliament. If so, it would remain on the Order Paper and be allowed another 1-hour debate. Bill C- 329 introduced by MP Libby Davies in April/01 and summarized below is an example of a non-votable bill that was debated for 1 hour and then dropped from the Order Paper. If an MP thinks there are advantages to a bill being non-votable, he can ask that the bill be so designated, but it is the sub-cmte that makes the final decision.
Value of Private Members’ Bills
The main value of a PMB is to bring the issue to the attention of govt and MPs, keep it before the public by generating publicity through news reports, articles, letters to editors, and the internet. Even if the bill doesn’t go to 2nd reading, its introduction will be noticed by govt and media. Ministers will be briefed on PMBs and successful bills may be adopted by govt. An example of a successful PMB to end whipping for certain crimes is the Criminal Law Amendment Act, 1972 in which this punishment was removed from the Code.
Private Members’ Bills to Repeal Corporal Punishment for Crime
Prior to 1972, the Criminal Code allowed male persons to be subjected to corporal punishment (‘whipped’) for certain crimes in addition to imprisonment. The punishment could be applied either by the lash on the bare shoulders or a leather strap on the bare buttocks.
Background to repeal of cp for crime
In 1954, a joint committee of the Senate and House of Commons was asked to study capital punishment, corporal punishment and lotteries and in 1956 recommended (among other things) that corporal punishment (cp) be abolished for any offences for which it was prescribed in the Criminal Code on the grounds that it did not deter crime either by the individual concerned or the general public. This prompted 8 private members’ bills (PMBs) to abolish cp for offences under the Code. Each bill had an Explanatory Note stating that the purpose of the bill was to carry out this recommendation.
Some of the reasons given by MPs for repealing cp for crime are similar to those for repealing S. 43; eg, that evidence showed it is not a deterrent, that it tends to create antagonism, and that it violates basic human rights. The few MPs who spoke against repeal either argued that much of the public wanted cp to continue or that it might be premature to end it in view of some public acceptance.
Bill 245 – Jan/1958 introduced by Harold Winch, CCF (Vancouver East) but did not come up for 2nd reading.
Bill C-5 – May/58 introduced by Harold Winch and debated. MP Winch argued for repeal on the basis that the evidence before the joint Senate/Commons cmte found it didn’t deter bad behaviour, made the person more antagonistic to society, was brutal, and contrary to the 1948 Universal Dec’l of Human Rights, signed by Canada. 3 Progressive Conservative (PC) MPs spoke: 2 were in favour of repeal; one because the onus for retaining cp was on its supporters and they had ‘difficulty in doing so’ and another (a former RCMP officer) who agreed cp has no benefit and said it was abhorrent that the person punished was unable to defend himself. He also recommended that cp be prohibited in the home. The third PC favoured repeal in principle but thought it ‘a little bit premature to pass at present time’. Debate adjourned when private business time expired.
C-19 – Jan/59 introduced by Frank McGee, PC (York- Scarborough) and debated on 2 days. 9 MPs spoke: 1 CCF, 2 Liberals, 6 PCs. 4 PCs were in favour of repeal; one citing the Universal Dec’l of Human Rights against cruel, degrading treatment or punishment. 1 PC (A. R. Smith, Calgary South) opposed on grounds that much of the public supported cp and that much said against it was ‘maudlin sentimentality’. The other PC was uncertain as to whether cp should be ended in all cases. Debate adjourned when private business time expired.
C- 7 – Jan/60 introduced by Harold Winch but did not come up for 2nd reading.
C-10 – Nov/60 introduced by Frank McGee and debated. 5 MPs spoke: 1 CCF, 1 Liberal, 2 PCs in favour and 1 uncertain; the Liberal MP supported the bill on the principle of human dignity; the PC (M. Bell, Parl Sec’y to Minister of Justice, Davie Fulton) stated he did not have ‘definite views’ but thought many members of public still felt cp should be retained. Debate adjourned when private business time expired.
C-22 – Jan/62 introduced by Frank McGee and debated. MP McGee stressed that when cp for crimes was abolished in the UK in 1948, 75% of the public wanted it retained. He described the UK govt’s action as one of ‘courage and an example, in an enlightened way, of not accepting public opinion’. 3 PC MPs spoke: 1 in favour on the grounds that it was ‘bad legislation’ and the onus for retaining it should be on its supporters. 2 PCs were against; one saying that taking away the strap from teachers was ‘one of the reasons for so much juvenile delinquency’.
C-123 – Feb/66 introduced by Auguste Choquette, Liberal (Lotbinière) but did not come up for 2nd reading.
C-210 – Mar/68 introduced by David MacDonald, PC (Egmont, PEI) but did not come up for 2nd reading.
Beginning in Dec/68 the following 4 PMBs were introduced. These did not reference the 1956 recommendation of the joint Senate/Commons committee as the explanation for the bills. Instead, the Explanatory Note for each stated that the purpose of the bill was to ‘bring punishment for the commission of some crimes in keeping with the social concepts of the twentieth century’.
C-139 – Dec/68 introduced by John Gilbert, NDP (Broadview) but did not come up for 2nd reading.
C-76 – Oct/69 introduced by David MacDonald but did not come up for 2nd reading.
C-16 – Oct/70 introduced by David MacDonald and debated. He moved that the bill be referred to the Standing Committee on Justice and Legal Affairs. 4 MPs (3 Liberals and 1 NDP) all supported bill on grounds of principle and practice, but John Gilbert disagreed with the bill being referred to cmte since it had already been studied and now was the ‘time for action’. Liberal MPs said the Minister of Justice (John Turner) had publicly announced that cp for crimes would be abolished and said it would be better to wait for his bill rather than referring it to cmte – where it could be delayed due to other business. Debate adjourned when private business time expired.
C-9 – Feb/72 introduced by David MacDonald. By unanimous consent, the order for 2nd reading and reference to the Justice and Legal Affairs Cmte was discharged and the bill withdrawn.
In June/72, the Criminal Law Amendment Act was assented to and proclaimed in force in July. After 14 years and 12 PMBs, corporal punishment for crimes was finally abolished as a result of efforts by private members of the Commons.
Old ideas die hard. In June/95, Liberal MP Rex Crawford (Chatham) called for caning to be brought back as punishment as he ‘knew it can be an effective deterrent’ because one of his friends had been caned as a youth and is now a police officer.
Private Members’ Bills to repeal S. 43 – 1989 to 1999
To date, 8 PMBs to repeal S. 43 have been introduced in the House: 7 by NDP members and 1 by a Liberal MP. A note on each is given below in order of their introduction. (For PMBs in the Senate, see Senate Bills to Repeal S. 43.)
Bill C-235, April 12, 1989 Svend Robinson, NDP, Burnaby-Kingsway, introduced the first bill to repeal S. 43 in the 2nd session of the 34th Parl saying the purpose of the bill was to prevent parents and those in place of parents from using force toward a child as a means of correction; both the Canadian Commission on the International Year of the Child and the Canadian Council on Children and Youth have recommended repeal; and S. 43 has been used as a shield to cover considerable violence to children and young people. This bill and his subsequent bills simply called for repeal and did not go beyond 1st. reading.
Bill C-245, June 19, 1991 MP Robinson introduced this bill in the 3rd session of the 34th Parl saying that while we have abolished corporal punishment in most schools, too many children remain victims of violence and abuse within the family. The bill did not go beyond 1st reading.
Bill C-296, Dec 9, 1994 MP Robinson introduced this bill in the 1st session of the 35th Parl saying that condoning cp can lead to physical and psychological injury and death, contributes to violence in society, and is contrary to the Charter and the UN Convention on the Rights of the Child; S. 43 allows punishment causing bruising and contusions and striking with belts and other objects; it is the relic of a bygone age and has no place in a democratic society that respects and values children; several European countries have prohibited corporal punishment of children for correction. MP Robinson distributed our April/94 brief to the Minister of Justice to all MPs.
C-296 was designated non-votable, placed on the Order of Precedence and was scheduled to be debated for 1 hour on Dec 15/95. We sent an information package to all MPs and to all organizations and individuals that had written federal ministers advocating repeal, and planned a press conference for the day of the debate. But debate was postponed to Feb 9/96. To support C-296 in the February debate, we issued a news release and organized a press conference with reps from 5 other supporting organizations. However, Parliament was prorogued Feb 2 and again the debate did not take place.
Bill C-305, June 12, 1996 MP Robinson introduced this bill in the 2nd session of the 35th Parl with the same introductory statement he made on introducing Bill C-296. However, elections were called in April/97 and the bill dropped from the Order Paper. In Sept/97, MP Libby Davies became the NDP critic for Children and Youth and took over the issue from MP Robinson.
Bill C- 276, Nov 5, 1997, Libby Davies, NDP, Vancouver East, introduced her first bill to repeal S. 43 in the 1st session of the 36th Parl saying she believes S. 43 contravenes the Charter, the UN Convention on the Rights of the Child and that legal sanctioning of cp leads to physical and emotional injury of children. This bill and her subsequent bills simply called for repeal. The bill did not go beyond 1st reading.
Bill C-368, March 11, 1998, Tony Ianno, Liberal, St. Paul’s introduced his first bill to repeal S. 43 in the 1st session of the 36th Parliament, the same session as PMB C-276. His bill differed from the latter as in addition to repeal, it would clarify the mandate of the Dept. of Health by specifying its power to educate Canadians on the health and social risks associated with cp and alternatives to it use and coordinate prov authorities to provide guidelines on law enforcement for the protection of children. This bill was identical to S-14 introduced in the Senate by Liberal Senator Carstairs in Dec/96. We provided MP Ianno with our information package sent to all MPs in 1995, along with judicial decisions and press reports since then. Click for bill.
MP Ianno’s press release for the bill referred to a father acquitted for kicking his child and pulling out hair as well as other examples of violence sanctioned by S. 43, and said his bill is a necessary and proactive approach to ensure the safety of children. The bill did not reach 2nd reading and when he became Minister of State for Families and Caregivers, he could not re-introduce it.
May 12/99 MP wants notwithstanding clause used to prevent repeal.
In Nov/98, the Canadian Foundation for Children, Youth and the Law filed an application in the Ontario Court to declare S. 43 unconstitutional. In a motion during Private Members’ Business, Reform Party MP Maurice Vellacott moved that the govt defend S. 43 in the courts and invoke the notwithstanding clause of the Charter if necessary to maintain the section. He said S. 43 is a good law, well conceived, has served its purpose and continues to serve us well today. Discipline by loving parents is simply intended as a negative consequence and the child is in no way physically harmed. His motion was non-votable, spoken to by 3 MPs and dropped from the Order Paper.
MP Vellacott is a former pastor and current Conservative MP. He supports Focus on the Family whose US founder, James Dobson, recommends ‘mild’ spankings of children as young as 15 months and advises that ‘spankings’ should generally be administered with a switch or other object.
Bill C-273, Oct 27, 1999 Libby Davies introduced her second bill in the 2nd session of the 36th Parl. She said that S.43 is the only section of the Criminal Code that is permissive in that it condones the use of force toward a child as a means of correction or discipline. Repeal would make it clear that the use of physical force as a means of discipline is totally unacceptable and inappropriate for children and should not be sanctioned by law. The bill did not go beyond 1st reading.
PMB C-329 to repeal S. 43 – 2001
Bill C- 329, April 4, 2001, Libby Davies, NDP introduced her 3rd bill to repeal S. 43 in the 1st session of the 37th Parl saying it would seek to uphold the rights of the child as outlined in international law and in other policies and programs of the govt, and that there are adequate means of correcting children that need not involve physical harm or force. The bill was designated non-votable and debated for 1 hour on Nov 9/01.
MP Davies issued a press release Nov 9/01 referring to support by the Repeal 43 Committee and other organizations. Our committee organized a press conference in the parliamentary press gallery on the morning of the debate. Corinne Robertshaw represented the Repeal 43 Committee, Michéle Matte, Canadian Institute of Child Health, Victoria Norgaard, Child Welfare League of Canada and Mathew Geigen-Miller, National Youth in Care Network.
C-329 debated as non-votable Nov 9/01 for 1 hour
MPs Davies, Myers, Spencer, Keddy, Comartin, and Epp spoke in the debate. Davies, Keddy and Comartin are current members of Parl. MP Myers was defeated in 2006; MP Spencer expelled from the Canadian Alliance in 2003 for his public comment that homosexuals should be ‘banned’, and was defeated in 2004 when he ran as an independent conservative; MP Epp announced in 2006 that he would not seek re-election.
Main comments made in the debate
MP Davies – NDP. S. 43 is contrary to basic human rights; violates the Charter and UNCRC; is based on English common law that also allowed cp of wives, servants and apprentices, as well as children; has allowed children to be hit with straps, belt, sticks and extension cords. Canadian research shows 68% of physical abuse investigations are inappropriate physical punishment; numerous studies, some funded by the federal govt, find cp ineffective and associated with aggression, delinquency and later crime; arguments that repeal will lead to a flood of prosecutions are unrealistic and a red herring. The issue warrants study by a Commons committee and a full debate.
MP Lynn Myers – Liberal, Parl Sec’y to Solicitor General. Children are our most precious resource; the object of the bill is the protection of children but we disagree that it would achieve this; S. 43 is currently the subject of a constitutional challenge and it was inappropriate to speak in detail about the case; the UNCRC recognizes the rights of parents to provide appropriate guidance and the family as a fundamental group responsible for the well-being of children. S. 43 does not authorize physical abuse. It is a limited defence to assault and the test of ‘reasonableness’ is well understood. Absent S. 43, ‘loving, well-intentioned parents’ using ‘normative’ discipline would be criminally charged. Health Canada specifically advises against physical punishment and prov legislation does not permit child abuse.
MP Larry Spencer – Canadian Alliance. We confuse ourselves by always trying to be politically correct and today it is politically correct to trumpet the rights of everyone from children to burrowing owls. Parents are primarily responsible for disciplining children; children are not wards of the state; removing S. 43 would revoke the God-given right of parents to carry out the proper disciplining they desire; some are failing to discipline for fear of damaging the poor child’s self-esteem and many are afraid of bleeding heart social workers. We were all made to learn physical lessons from physical consequences to our bodies. US researcher Diana Baumrind finds no evidence for unique detrimental effects of normative physical punishment, and absent compelling evidence of harm, family privacy should be respected. Three of my children required almost no cp. However, one did and I needed the option of S. 43. The idea of repealing it is oppressive and offensive.
MP Gerald Keddy – Progressive Conservative. S. 43 clearly prohibits hitting and beating children. I am not a lawyer but without S. 43 it could be argued that we would be unable to use reasonable force to prevent a child riding a bike off a cliff or running in front of a car. Family violence is no longer tolerated; there is no cp in public schools; S. 43 is not an option that is abused on a continual basis; it protects the rights of parents in accordance with their particular moral and religious beliefs; this does not condone cp; when circumstances require it, I do not think the state can intervene if the force is not excessive; the implications of the constitutional challenge to S. 43 is that the state is directly interfering with good and loving parents who believe in judicious physical correction. We need a debate on S. 43 to recognize its positive as well as its negative aspects. Perhaps it is time to update the law.
MP Joe Comartin – NDP. I have a great deal of experience with S. 43 on a personal and professional level. I practiced in this area fairly extensively earlier in my career as a lawyer. A century after S. 43 became part of the Code, we are at a milestone in human development and I believe we evolve and develop. It is time to say that whatever their religious persuasions or philosophical underpinnings, parents can no longer apply physical force. In the situations mentioned, we apply physical force to restrain children – not to punish them. Other sections of the Code allow this. If we looked at the cases where S. 43 was used as a defence and justification, the House would be shocked. That is why it is important for the bill to go for further review, discussion and debate.
MP Ken Epp – Progressive Conservtive. When I was a youngster, our teacher had a strap in her desk – a hunk of a belt. Just knowing it was there was more than sufficient to guide my behaviour. My own beloved dad applied the rod of correction twice. I believe I have a well-rounded personality. I find it abhorrent to think that my dad would have been guilty of a criminal sanction. At the same time, I believe the abuse or beating of children is wrong. What do you do with a youngster who uses excessively bad language in the schoolyard? I’ve seen such a situation involving a grade 2 child. A good, gentle and loving spanking with a clear explanation could retract that behaviour. I’ve seen 12, 13 and 14-year-olds in detention centres for assault. I would much rather see them get a good, careful and loving spanking than visiting them in jail.
MP Davies concluded the debate, thanked MPs and the groups that have worked to repeal S. 43 and said it is simply not the case that any parent who strikes or slaps a child would be criminally charged. She noted some of the contradictions by MPs speaking against her bill; that it was quite offensive to characterize the issue as being about political correctness or bleeding heart social workers; that this kind of rhetoric does not do justice to the seriousness of the issue, and that the debate should continue.
Deputy Speaker – The 1-hour time for debate had expired and as the bill is non-votable, it is dropped from the Order Paper.
Press coverage: The Vancouver Sun published a report of the debate Nov 10. It was reprinted in the news sections of the Edmonton Journal, Calgary Herald, and Victoria Times Colonist. The National Post noted in its news section that the bill had been defeated.
Our comment on the debate: Some statements by MPs speaking against the bill show a lack of knowledge of the kind of hitting justified under S. 43 and the obvious difference between hitting for correction and restraining a child from riding a bike off a cliff or in front of a car. The assumption that the test of ‘reasonableness’ was well understood was proven wrong by the 2004 decision of the SCC. The interpretation of the UNCRC by the UN Committee contradicts the inference that S. 43 accords with the Convention. MP Spencer’s references to the rights of burrowing owls, political correctness and bleeding-heart social workers trivialize a fundamental issue of children’s rights and protection.
Reference by MPs Spencer and Epp to their own childhood spankings and spanking of their children seems based on a need to defend their own parents and themselves rather than the effects of S. 43 on children and society as a whole. These MPs show an unwillingness to see beyond their own personal stories and a wish to sentimentalize ‘loving’ hits by a father and intimidation by a teacher’s belt. The link between cp and reports of child abuse is not acknowledged and the question of whether it is morally right for our law to justify hitting defenceless children is not mentioned. See Parliamentary website, 1st session, 37th Parliament for full debate.