Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Appendix
Bill S-21
An Act to Amend the Criminal Code
(protection of children)
Brief to the Senate Committee
On Legal and Constitutional Affairs
Presented by the Home School Legal Defence Association of Canada
A member of the Coalition for Family Autonomy
By Paul D. Faris, LL.B.
INTRODUCTION
1. The Coalition for Family Autonomy (hereinafter the "Coalition") consists of a coalition of the following groups: Focus on the Family, Canadian Family Action Coalition, the Home School Legal Defence Association of Canada and REAL Women of Canada, all of which have engaged in public policy activities to promote the well-being of families and the primacy of parents to raise and educate their children.
2. The Coalition vigorously opposes and condemns the abuse of children. The Coalition regards parents as the primary educators of children, whose tasks include an obligation to correct the conduct of their children. Under certain circumstances, the Coalition believes that parents are entitled, in the words of s. 43 of the Criminal Code of Canada (hereinafter "Criminal Code"), to use reasonable force for corrective purposes.
3. The Supreme Court of Canada’s recent decision in CFCYL v. A.G. Canada strikes an appropriate balance between protecting children from harmful physical contact while allowing parents freedom to choose their form of discipline from the non-harmful options available to them. To repeal s. 43 through the passage of Bill S-21 would cause greater harm to children than it would prevent.
The Canadian Criminal Legislative Framework: Sections 43 and 265
4. The Criminal Code defines criminal assault in s. 265 very broadly as the intentional application of force to another person, directly, or indirectly, without the consent of that person. The definition may include commonly accepted actions of parents, other than physical punishment, that take place daily in the performance of parents’ and teachers’ roles and responsibilities.
5. By contrast, s.43 operates as a narrow defence in very limited circumstances. The defence only applies to reasonable force used for the purpose of correction by specific individuals. Even where the law authorizes the use of force, s. 26 of the Criminal Code imposes overriding criminal liability for any excess force, further ensuring that excessive force is not used. Outside of the limited application of s.43, s.265 protects all children from assault by anyone, in the same manner as any adult. Section 265 protects children from physical abuse, as that term is ordinarily understood by the great majority of child development experts. Section 43 does not justify the mistreatment or abuse of children by anyone, regardless of their relationship with the child. The two provisions must be considered together for a proper contextual analysis.
CFCYL v. A. G. Canada
6. In this decision, delivered on January 30, 2004, the Supreme Court of Canada (hereinafter "the Supreme Court") determined that the Canadian definition of corporal punishment sanctions only "minor corrective force of a transitory and trifling nature". It is important to note that this corrective force cannot harm or degrade the child. Furthermore, corporal punishment is NOT to:
be administered on children under two
be administered on teenagers
be administered on children of any age suffering a disability
cause harm or raise "a reasonable prospect of harm" to children of two years or older
degrade children two years or older
include the use of objects such as a belt on any child of whatever age
involve slaps or blows to the head
Furthermore, the use of corporal punishment by teachers is not acceptable. In this way the best interests of the child are maintained within the parameters of mild corrective force administered by a parent.
7. In addition, the Supreme Court provides guiding principles of appropriate corporal punishment:
the person applying the force must have intended it to be for educative or
corrective purposes
the child must be capable of benefiting from the correction
Strong Protection for Children
8. The maintaining of a defence for corporal punishment in Canada by the federal government should be viewed in the light of other legislation that has been enacted to provide complete protection for children from all forms of violence. Every province and territory in Canada has strong legislation whereby the government has the legal obligation and duty to protect children who are at risk of abuse. All provincial and territorial legislation includes physical abuse as a reason to consider a child "in need of protection." Upon suspicion of abuse, a child can be immediately removed from the domestic context and a full investigation launched. These laws give great license to child protection workers to remove a child even when there is no established record of abuse but a threat for abuse has been established. Some examples of this allowance for pre-emptive intervention follow:
British Columbia
9. According to British Columbia’s Child, Family and Community Service Act:
13 (1) A child needs protection in the following circumstances: (a) if the child has been, or is likely to be, physically harmed by the child’s parent; (b) if the child has been, or is likely to be, sexually abused or exploited by the child’s parent; (c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child’s parent is unwilling or unable to protect the child.
Newfoundland
10. Newfoundland’s Child Welfare Act defines a "child in need of protection" to mean:
2 (b) (vi) A child who is physically or sexually abused, physically or emotionally neglected, sexually exploited or in danger of that treatment.
Ontario
11. Ontario’s Child and Family Services Act states:
37 (2) A child is in need of protection where, (a) the child has suffered physical harm, inflicted by the person having charge of the child or caused by that person’s failure to care and provide for or supervise and protect the child adequately.
PART II THE RESEARCH
12. In CFCYL v. A. G. Canada, as it progressed through three courts, extensive expert evidence was presented and considered. In the lower court litigation, the world’s leading experts were assembled by both sides of the debate. The evidence of the experts is summarized by the trial judge, Mr. Justice McCombs, as follows:
Of the twenty-five witnesses, the applicant’s roster includes internationally recognized experts on child development and behaviour, an expert on the approach to corporal punishment taken by other countries, an expert on child abuse and the effects of violence on children, a front-line child protection worker, legal scholars with expertise in human children’s rights issues, a leading expert on the effect of parenting styles on children, a Canadian diplomat, experts on research methodology, and a clinical and empirical research psychologist who has conducted studies on the effectiveness of spanking in achieving behaviour modification in children. Witnesses for the Teacher’s Federation include front-line educators with important, practical insight into the real world faced by teachers.
13. The Canadian Department of Justice summarized the evidence as follows:
Every one of the social science witnesses in this case (with the single exception of Professor Murray Straus) and the majority of the professionals involved in the issue, agree that mild or moderate physical force, such as "spanking," does not come within their professional definition of "abuse."
14. After all this evidence was presented and arguments were presented at trial and through two levels of appeal, the Supreme Court concluded:
Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children; in this way, by decriminalizing only minimal force of transient or trivial impact, s. 43 is sensitive to children’s needs for a safe environment. But s. 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children’s families and educational environments in such circumstances would harm children more than help them.
15. Professor Dr. Diana Baumrind, a research scientist of world renown with over forty years of experience on child and adolescent development and parental authority, recently completed a comprehensive study on this issue. Dr. Baumrind in sworn testimony stated that any claim of evidence for a casual connection between physical punishment and certain negative developmental outcomes "is baseless and misrepresents the data." After presenting her findings in a paper presented recently to the 109th Annual Convention of the American Psychological Association in 2001, Dr. Baumrind stated that:
The certitude with which one conveys one’s findings to the public school should not exceed the limitations of one’s science. Public trust in the integrity of evidence-based social policy recommendations is undermined by selective use of weak evidence to support an unqualified assertion that physical punishment harms children and hurts society, and therefore should be criminalized or stigmatized. Methodologically strong studies have not established that normative physical punishment is a casual risk factor for the detrimental child outcomes with which it may be associated. Although a value judgment that spanking is wrong is properly defended by its adherents on ethical grounds, a blanket injunction against disciplinary spanking is not warranted by causally relevant scientific evidence.
Sweden and Other European Countries
16. Sweden is touted by the Foundation as a model jurisdiction. However, a close analysis of the Swedish model reveals that the so-called "ban" on physical punishment is a civil or family law measure, of a declaratory nature, that bears no criminal sanction. Moreover, this is in the context of Sweden’s definition of assault that requires the infliction of bodily injury or pain of more than a temporary duration. Spanking is not assault under Swedish criminal law and was not intended to be.
17. Finland, Denmark, Norway, Austria and Germany have adopted similar approaches. The other countries referred to by Peter Newell have not legislated against the use of physical punishment. These include: Ireland, Switzerland, Poland (the proponent state for the Convention on the Rights of the Child) and Italy. Cyprus’s enactment addresses violence within the family by any member, rather than physical punishment, but "violence" requires actual physical injury.
18. Statistics Sweden’s own conclusion was that further research was necessary. The lack of effect of the Swedish ban was even more surprising with respect to the increased rates of reported child abuse. The Foundation’s witness, Newell, admitted that there is no evidence, to date, that the Swedish ban has decreased abuse rates.
PART III CONSEQUENCES FOR CHILDREN AND THEIR FAMILIES
19. According to the evidence filed by The Canadian Foundation for Children, Youth and the Law (hereinafter the "Applicant"), at least 75% of Canadian parents use some form of physical discipline in their attempts to control or change their children’s behaviour. While the repeal of s.43 is styled primarily as an effort to criminalize the hitting of children, the repeal of s. 43 of the Criminal Code would have much broader ramifications, criminalizing such behaviour as physically removing a screaming child from a shopping mall or holding a child in one place against his or her will. This application thus seeks to drive the enforcement mechanisms of the criminal law deep into the day-to-day activities of millions of Canadian families.
Family Integrity Important to Children
20. In the case of B. (R.) v. Children’s Aid Society of Metropolitan Toronto (the "Richard B. case"), Mr. Justice LaForest discussed the "protected sphere of parental decision-making":
While acknowledging that parents bear responsibilities towards their children, it seems to me that they must enjoy correlative rights to exercise them…. As already stated, the common law has always, in the absence of demonstrated neglect or unsuitability, presumed that parents should make all significant choices affecting their children, and has afforded them a general liberty to do as they choose. This liberty interest is not a parental right tantamount to a right of property in children…Nonetheless, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself. Moreover, individuals have a deep personal interest as parents in fostering the growth of their own children.
21. The family, therefore, is the crucible in which children are raised and educated, and laws must respect and support the integrity of the family to perform these tasks.
Law Reluctant to Intrude upon Family
22. It is for this reason that the law is reluctant to intrude into the sphere of family decisions relating to the upbringing of children.
23. In recognition of the origins of the family, and out of a respect for the social and political importance of the relationship between parent and child, positive law, whether statutory or judge-made, has been reluctant to interfere with the parental obligation to raise children. In the Canadian context, state intervention in the family is confined to cases of "necessity". Justice LaForest in the Richard B. case, stated the principle as follows:
[a]lthough the philosophy underlying state intervention has changed over time, most contemporary statutes dealing with child protection matters, and in particular the Ontario Act, while focusing on the best interests of the child, favour minimal intervention. In recent years, courts have expressed some reluctance to interfere with parental rights, and state intervention has only been tolerated when necessity was demonstrated. This only serves to confirm that the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to society.
24. Canadian child welfare statutes and the Young Offenders Act also evidence an approach of minimal intrusion into family matters unless necessity so dictates.
Limited Capacity of Children
25. The law recognizes that a child’s decision-making capabilities are not the same as those of an adult.
26. Another critical contextual factor involved in this case is the simple, but important, observation that children lack the decision-making capacity of adults. One’s growth from infancy to adulthood is marked by radical changes in one’s capacities – the capacity to discern, the capacity to distinguish right from wrong and the capacity to restrain one’s impulses and desires, i.e. self-control. A person moves from complete dependency on one’s parents to independence as an adult. The differing capacities which characterize the process of "growing up" have resulted in the law crafting legal rights and obligations which evolve as a child matures. For example, as the 1996 report of the Federal Provincial Taskforce on Youth Justice stated:
The present minimum/maximum ages under the Young Offenders Act roughly correspond to the period of development known as adolescence during which there are significant changes and physical, sociological, and social maturation. It is a period of development set between childhood during which there is full dependency on adults and adulthood in which there is full social and economic independence. It is the transitional nature of this period of development which contributes to uncertainties about whether and how responsibilities should be attributed to adolescence as is reflected in societies inconsistent approach to the rights and privileges accorded adolescence.
Parental Obligations
27. Parental obligations include an obligation to correct a child.
28. The most important obligation owed by parents to their children consists of the duty to provide them with the necessities of life. These include not only the material elements that are required to sustain life, such as clothing and food, but also intangible elements, such as the knowledge of how to act properly and in a socially acceptable manner towards other human beings. A parent must provide a child with the understanding and skills needed for the child to live constructively with other members of society. As stated by Wilson J. in Racine v. Woods:
"[A]s has been emphasized many times in custody cases, a child is not a chattel in which parents have a proprietary interest; it is a human-being to whom they owe serious obligations."
29. Flowing from this general duty to provide one’s child with the necessities of life comes the parental duty to correct the conduct of one’s child. Anyone familiar with the actions of young children will be cognizant of their inability to discern what conduct is actually in their best interest and what regard they must show to other people at appropriate times. A child’s will, or impulses, must be infused with an understanding of the regard which must be shown to others, an appreciation of the conduct appropriate to any particular time and place, and an ability to curb one’s desires so that self-gratification does not become the singular goal pursued in one’s life. In short, parents bear the obligation to raise their children to grow up to become responsible members of society.
30. As Professor Gilles has stated:
"Young children should not have rights to control their own education or their own lives because they lack maturity to exercise such rights in ways consistent with their long-run self interest."
As a result, any legal analysis of children’s rights must take into account the fact that children lack the knowledge and experience that adults possess, as well as their physical and emotional maturity.
31. A corollary of the parental duty to supervise and correct children is the responsibility imposed on parents in some jurisdictions to supervise their children or to make good any damages caused by their children to others or the property of others.
32. Common sense dictates that the task of determining how the parental obligation to correct is carried out must in the first instance lie with the parents. Parents know their children best and therefore are in the best position to predict how their children will react. Parents are also in the best position to view the long-term development of their children, and how correction in specific circumstances will tie in with their long-term development. It is the parents who are faced with the infinite number of situations which arise in which they must correct their children’s conduct. This requires flexibility and an ability to respond in different circumstances. As stated by Madam Justice L’Heureux-Dubé in Young v. Young:
Common sense requires us to acknowledge that the person involved in the day to day care [of children] may observe changes in the behaviour, mood, attitude and development of a child that could go unnoticed by anyone else. The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will often provide the most reliable and complete source of information to the judge on the needs and interests of that child.
33. The relationship between parent and child is not, in its essence, a legal relationship; it is a relationship between two persons who owe each other a complex set of duties and obligations based upon the personal relationship between them. These duties and obligations arise outside of and exist apart from the law and, as has been discussed in paragraphs 25 to 28 above, the law is reluctant to interfere in the day-to-day workings of the parent-child relationship. The law recognizes that any solution which it may craft in the family context is always one which is second-best because the law lacks that element which is integral to the family – mutual love.
34. Since the law does not and cannot love, it has tended to limit its interference into family matters to those cases where love itself seems to have left the family – marital separation, divorce or the leaving of a child in need of protection. Otherwise, the law stands outside the family, recognizing the law’s own properly limited sphere of operation.
35. In the international sphere, this principle is also recognized. There are 191 State Parties to the Convention on the Rights of the Child. Yet very few states have attempted to prohibit parents from using physical punishment through legislative reform. Those that have done so have used civil or family laws, rather than criminal law reforms, and in so doing, none have chosen to legislate criminal sanctions. Their legislative reforms are meant to have an educational effect on parents, carry no penalty and are not intended to result in increased prosecutions against parents. In most cases, public education campaigns went hand in hand with the reform and were a crucial, if not prime, focus of the state’s program.
36. Section 43 of the Criminal Code reflects this limited operation of the law in family affairs, restricting the reach of the law – its criminal sanction – to those acts which are not reasonable and are not done in the interests of the child.
CONCLUSION
37. The Coalition is deeply grieved by the instances of abuse that continue to occur in our country and are deeply committed to combating this abuse. The Coalition applauds the Senate for seeking measures to protect children from harm. However, after considering the evidence and reviewing s. 43 in its context as interpreted by the Supreme Court, we must conclude that passage of Bill S-21 would have a deleterious effect upon children in Canada. Criminalizing corporal punishment by parents would expose children and their families to undue consequences. The Supreme Court summarized the harm of criminalization in this way:
The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families – a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.