Liberal Government l PC Government l 1994 Brief
to Liberal Government l Government Response
l Parliamentary Committees l Private
In 1977, the Standing Senate Committee on Health, Welfare and Science began a study on Childhood Experiences as Causes of Criminal Behaviour. In a chapter dealing with child abuse, the Committee noted that several psychiatrists appearing before it agreed that violent criminal behaviour is a direct result of abuse and neglect in the first 3 years of life. The Committee also noted the importance of building self-esteem at an early age and that repression of normal behaviour in early childhood through unreasonable discipline can contribute to delinquency.
After hearing 27 witnesses and receiving numerous briefs over an 18th month period, the Committee tabled its report Child at Risk in 1980 and made the following recommendation:
We recommend that Section 43 of the Criminal Code of Canada entitled “Correction of Children by Force” and similar provisions in provincial
and territorial legislation be reconsidered by Federal, Provincial and Territorial
Governments in view of the sanction which this type of provision gives to the
use of violence against children.(#26)
In 1978, the Dept. of Justice produced a 54 page Memorandum Concerning Section 43 of the Criminal Code. It is a detailed analysis of Canadian and other laws on corporal punishment, with a commentary on their effects, and concludes that s. 43 should be ended. It recommends that it be made clear in the Code that force for correction is an assault.
The main reasons given for its conclusions are that physical discipline creates a risk of injuries, children should learn by example that force is unacceptable, and should have the same right to protection from assault as adults. In connection with this last reason, it refers to the UN declaration that 1979 will be the Year of the Child.
This memorandum was tabled at a 3-day federal-provincial conference on child abuse held in Ottawa in April 1978. According to a Toronto newspaper report, in addition to repealing s. 43, the government raised the possibility of creating a new charge of assault against children that would give legal recognition to the belief that assaults on defenceless children are “especially repugnant”.
In May 1979, after the defeat of the Liberal government, a minority government under Joe Clark took power. In the following years, s. 43 ceased to be a priority until 1990 during the Progressive Conservative government of Brian Mulroney.
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Prime Minister Mulroney's Progressive Conservative (PC) government
undertook a number of activities to promote the rights of children
following Canada's signing of the United Nations Convention
on the Rights of the Child in May 1990. These included the possibility
of repealing s. 43 as part of Canada's response to the Convention.
1990 World Summit on Children jointly initiated and co-chaired by Prime Minister Mulroney in September at the United Nations to encourage ratification of the Convention and draft a ten-year plan of action for children.
1990 Children's Bureau established at Health Canada to ensure that the Convention is taken into account in government policies and to facilitate consultations between government, private and voluntary sectors.
1991 Minister of Justice Kim Campbell instructed her department to undertake a study of s. 43 to see whether it conforms to the Convention.
1993 Minister Kim Campbell recommended in June that s.43 be abolished with an eighteen-month delay in implementation to hold consultations and launch a public education campaign.
1993 Children's Bureau sponsored a media strategy meeting on section 43 with NGOs in November.
1994 Consultation on section 43 was held in January with NGOs and officials from departments of Health and Justice.
After the PC government was defeated in October 1993, the new Liberal government ended all action on repealing s. 43 and the Children's Bureau was disbanded.
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1994 Brief to Liberal government
In April 1994, our Committee submitted a 30 page Brief to the
following Ministers of the newly-elected Liberal government:
Minister of Justice, Solicitor General, Minister of Health,
Minister of State for Status of Women, and the Standing Committee
on Justice and Legal Affairs. We also sent our Brief to the
Minister of Foreign Affairs in view of his responsibility for
the UN Convention on the Rights of the Child and to the Secretary
of State for Children and Youth.
A copy of our Brief in English or French can be obtained at a cost of $10 by contacting our Committee.
Recommendations of Brief
- Repeal section 43
- Alternatively, the Standing Committee on Justice and Legal
Affairs initiate an inquiry into the need for repeal of
section 43 and invite representations from the public on
- Department of Health initiate a publicity campaign to promote constructive, non-violent alternatives to corporal punishment
- Department of Health collect information annually from provinces/territories on reported incidence of child abuse
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Minister of Justice, Allan Rock, acknowledged receipt of our
Brief in July 1994 and followed up with a reply in December
1995. He assured us that the well-being of children was important
to the government and that he was concerned about child abuse.
He rejected repeal of s. 43 stating:
In 1998 the new Minister of Justice, Anne McLellan, responded to our brief by repeating the first three arguments given by Mr. Rock. As a constitutional challenge to s.43 had been filed, Ms. McLellan added that further comment would be inappropriate as the issue was now before the courts and the government was opposing the challenge.
- repealing s. 43 would not help prevent child abuse
- provincial protection legislation addressed the problem of child abuse
- the courts had worked out criteria to ensure that 43 does not "condone" child abuse
- repealing s.43 would "criminalize all forms of physical correction even the most minor"
- "prosecuting all cases of physical correction would trivialize the serious child abuse that occurs daily in Canada"
Other Ministers who were sent the Brief did not comment on the legal issues, advising that this was the sole responsibility of the Minister of Justice.
In May 2002, a UN Special Session on Children was held to follow up on the 1990 World Summit on Children. It was attended by sixty heads of state. Prime Minister Chretien did not attend.
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2008 Bill S-209 to repeal section 43 is referred to the Senate Standing Committee on Legal and Constitutional Affairs on March 13/08 and studied by the committee in May and June. It is amended, referred back for 3rd reading, and on June 17/08 passes the Senate as amended. However, Parliament was prorogued and the bill died. See Senate Bills to Repeal S. 43 for further information.
2007 Bill S- 207 to repeal section 43 is referred to the Senate Standing Committee on Human Rights on Dec 14/06. It is studied by the committee and reported back to the Senate without amendment on June 22/07. However, it did not reach 3rd reading in the Senate because Parliament adjourned for the summer and was prorogued in Sept/07. As a result, the bill died.
2005 Bill S- 21 to repeal section 43 is referred to the Senate Standing Committee on Legal and Constitutional Affairs on March 10/05 and studied by the committee in June/05. There was no report from the committee as Parliament adjourned for the summer in June. Federal elections were held in Jan/06 and the bill died.
1981 House of Commons Standing Committee on Health, Welfare and Social Affairs responded to the report of the Canadian Commission for the International Year of the Child and recommended section 43 be "repealed immediately".
1980 Senate Standing Committee on Health, Welfare and Science recommended section 43 "be reconsidered in view of the sanction which this type of provision gives to the use of violence against children".
1976 House of Commons Standing Committee on Health, Welfare and Social Affairs recommended "further consideration of section 43".
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Private Members Bills
The following Private members Bills have been introduced in
Parliament since 1994 to repeal s. 43. Because they have not
been supported by the government, none have been referred to
a parliamentary committee for study.
1994 Bill C-296 House of Commons, M.P. Svend Robinson
1996 Bill C-305 House of Commons, M.P. Svend Robinson
1996 Bill S-14 Senate, Senator Sharon Carstairs
1997 Bill C-276 House of Commons, M.P. Libby Davies
1998 Bill C-368 House of Commons, M.P.Tony Ianno
1999 Bill C-273, House of Commons, M.P. Libby
2001 Bill C-329, House of Commons, M.P. Libby
2004 Bill S-21, Senate, Senator Céline Hervieux-Payette
2006 Bill S-207 Senate, Senator Céline Hervieux-Payette
2007 Bill S-209 Senate, Senator Céline Hervieux-Payette
2009 Bill S-209 (as amended) Senate, Senator Céline Hervieux-Payette
Due to the Liberal government's refusal to repeal section
43, the Canadian Foundation for Children, Youth and the Law
filed an application in the Ontario Superior Court of Justice
in November 1998 to have the section struck down. The basis
of the application is that section 43 violates the Charter
of Rights and Freedoms and the United Nations Convention on
the Rights of the Child and is therefore unconstitutional.
The application will be heard by the Supreme Court of Canada
on June 6/03. See Constitutional Challenge for more information.
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