Repeal 43 Committee

Liberal Government l PC Government l 1994 Brief to Liberal Government l Government Response l Parliamentary Committees l Private Members Bills

Liberal Government

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.

PC Government

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.

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 the question
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

Government Response

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:

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"

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.

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.

Parliamentary Committees

1976 House of Commons Standing Committee on Health, Welfare and Social Affairs recommended "further consideration of section 43".

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".

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".

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 Davies
2001 Bill C-329, House of Commons, M.P. Libby Davies
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

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.