Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for June 8, 2005
OTTAWA, Wednesday, June 8, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-21, to amend the Criminal Code (protection of children), met this day at 4:03 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: At the outset, I will make a brief statement, and then we will proceed with our witness's presentation.
My dear colleagues, the proper conduct of our committee's meetings and business is a priority for me. Since I assumed my mandate in September, all of the committee's activities have been carried out with dignity and respect. I am very proud of this.
Last week, however, some remarks expressed here sparked controversy and provided interest for the media. I am concerned by these remarks, and I should like to make the following comments.
The committee strives to give time and energy to the study of senators' bills that demonstrate the drive and particular sensitivity of this house. It is critical to allocate time to the study of these bills resulting from individual initiatives and examine them seriously and methodically.
It is also important that the committee's hearings take place in an atmosphere of dignity and respect befitting parliamentary duties. Every senator attending committee meetings must live up to the prestige of his or her position and the dignity of the honourable title that is ours. We must always keep this in mind when carrying out our responsibilities.
Senators play a key role in the Canadian parliamentary system and, to this end, we must give our best. This is why we must absolutely refrain from making unparliamentary remarks that undermine the dignity and responsibilities of senators. We have a duty to give the utmost respect and pay attention and listen quietly when a senator is speaking at a committee meeting. This is crucial to the proper conduct of our work.
I am proud of the diversity of our committee's membership. I have great respect for Senator Joyal, Senator Milne, the former chair of this committee whose work has been applauded in the past, and Senator Cools, who has been made a significant contribution as an advocate for the reform of criminal justice. I name a few but I could name you all for the marvellous work you have done.
I have a serious request. Since the beginning of our proceedings, we have done remarkable work against a backdrop of cooperation and harmony. It is important to me that we continue in this way. Now more than ever, we must resist getting caught up in the partisan frenzy that is occurring in the other place at this time. We must not stoop to the level of petty partisanship. Our tradition of sober second thought must prevail, despite the current crises affecting Parliament. We must ensure the highest level of conduct in our debates.
I remain convinced that the nobility of our principles will prevail over any other consideration in moving our work forward from now on. I consider the matter closed, and I encourage you to continue with our work. Thank you.
Today, we are dealing with Bill S-21, to amend the Criminal Code (protection of children). We have, from the Canadian Foundation for Children, Youth and the Law, Ms. Milne. We will hear her presentation, and then we will ask our questions. Ms. Milne, welcome to our committee.
Ms. Cheryl Milne, Staff Lawyer, Canadian Foundation for Children, Youth and the Law: Thank you very much. The Canadian Foundation for Children Youth and the Law launched the application to have section 43 of the Criminal Code declared unconstitutional on November 20, 1998, National Child Day. By that time, at least six attempts had been made through private members' bills at both the House of Commons and the Senate of Canada to have this issue publicly debated. I thank you for this opportunity to be heard today, and I am grateful that senators, even those senators who may have reservations about Bill S-21, have agreed to have this important issue debated publicly.
I have been a lawyer at the foundation, which is also known as Justice for Children and Youth, since 1991. Our practice, although focused on the rights of children and youths, ranges from youth criminal justice matters, child welfare, education, family law and various other areas pertaining to young people. Our test case litigation, of which the court challenge was just one, comes from our direct work with young people. I want to give you an example of the type of case that would have generated the discussion and the policy work we have done on this particular issue.
A number of years ago, a 16-year-old young person came to me, asking what she should do about living independently. She wanted to know if she would qualify for Children's Aid care. In Ontario, a 16 year old is too old to be a child in need of protection. She wanted to know if she could qualify for social assistance so that she could live independently. In Ontario, in order to obtain social assistance, a young person must have something called ``special circumstances.'' That being the case, I went through the history of her life, mainly to find out why she was leaving home at 16.
She told me that things had gotten so bad with her mother that she could no longer live there. She described an incident that had happened in the last couple of weeks in which she had done something wrong, had disobeyed her mother, and had acted irresponsibly. When she arrived home, the response of her mother, who was sitting on the porch, was to kick her daughter in the chest. She had a bruise. I asked her why she had not gone to the police. That behaviour is abusive. At 16, you cannot go to Children's Aid, but you can seek help from the police. She told me, ``I went to the police when I was nine years old, and they did not do anything, so I do not trust them.''
That led to me asking questions about her history further back than the two previous weeks before she entered my office. She told me about an incident when she was nine and her mother was disciplining her using a broom stick. This 9-year-old girl called 911 because she was afraid. The police officer came, and her mother denied using an implement. She just said that she was hitting her with her hand, because that is how you discipline.
The police officer did not believe the 9-year-old girl and told her that, if she ever called the police again, he would lock her up. She no longer trusted the police.
That is a stark and extreme example of the kind of work that Justice for Children and Youth has done. It is the background to the test case work that we bring on. When we bring forward a case such as the constitutional challenge, it is based on some of the real issues faced by our clients.
I will make three essential points, and then I will allow you to ask me questions about the case and the law as it relates to Bill S-21.
There are three reasons for the foundation's support of the bill and for the support of the repeal of section 43.
First is the basic, fundamental human rights perspective, which is that the Criminal Code of Canada should protect children and adults at least equally. It is in our brief. You have heard that statement before. There is an argument to have greater protection for children due to their physical and emotional vulnerability. At this point in time, we have less protection for them.
Second, Canada's international obligations are clear. We are to be in compliance with the Convention on the Rights of the Child. The committee's word is that we will repeal this section, and that is a minimum not to be ignored if we want to be in compliance with our international obligations to children.
Third, and this is where there has been a lot of debate, I believe that the social science is consistent with our position. We will never have 100 per cent certainty as demanded by those opposed to repeal because that kind of certainty cannot ethically be achieved. I would commend to you the joint statement which has been distributed to all of you and to Dr. Joan Durrant's submission which summarizes the social science to date.
I think that the social science argument is the least of the three arguments. The social science debate will continue into the future. At this point we know there is no benefit to spanking, corporal punishment, hitting children, whatever you want to call it. There is no evidence to show it benefits children. The real justification for this bill is based upon the fundamental human rights principle — children are people.
Senator Andreychuk: The Standing Senate Committee on Human Rights is studying the Convention on the Rights of the Child and other issues related to children.
You referred to our responsibility and said that we should be in compliance. The Convention on the Rights of the Child is a rights-based convention. It indicates that children have certain rights. Canada signed and ratified that convention, yet it is not part of our national law. If it were part of our national law, we would not be having this debate. Do you agree?
Ms. Milne: I agree. I have advocated in front of the Human Rights Committee that Canada should enact the convention as part of our law. At this point, it seems to operate just as a principled document we hold up every now and then when it is convenient, but we do not seem to feel that, as a country, we need adherence to ensure we are in compliance for the benefit of children.
Senator Andreychuk: When the committee travelled to Geneva to meet with the working group dealing with the Convention on the Rights of the Child, one of the members indicated that compliance, particularly with the concepts in section 43, would only happen after some education. We were told that we would need to evolve towards compliance. It would be unfair to parents, teachers and other caregivers, and to children, if, overnight, corporal punishment became an offence under the Criminal Code. There is a duty and a responsibility on the government to provide publicity, education and to offer support systems before we move to full implementation. Would you agree with that?
Ms. Milne: Yes, I think that is one of the benefits of this particular bill, that there is lead-in time potentially for education. To date, we have done a fair bit of education. I am amazed at how public opinion changed from 1998 when we launched the application to today in terms of whether or not hitting children is an acceptable form of discipline. The acceptance rate has dropped. The Decima poll done under the auspices of Toronto Public Health shows that the public is now more supportive of repealing section 43.
I also am aware of the education campaign that is focused toward at-risk communities, which are those communities people are most worried about if things change overnight. hat is where Health Canada targeted much of its education. Dr. Joan Durrant participated in writing some of that excellent material. We have come a long way. With lead time, we can get to where we need to be.
We cannot underestimate the educative value of the press release that will go out once this bill is passed. Consider the amount of attention focused on the judgment of the Supreme Court and, quite encouragingly, their in-depth reporting on the content of the decision, as opposed to just yes or no. They went through the findings of the majority of the court in a way that I thought was helpful to parents. We can do more. It is not insurmountable. I think it can be done easily.
Senator Andreychuk: Teachers and caregivers, whether they are in institutions or elsewhere, sometimes have to deal with children who are unruly, emotionally traumatized, and hard to handle. Time out is not always an effective or appropriate discipline choice. In my experience, some children need restraint for their protection, the protection of other children around them and the protection of the caregivers. This includes teachers, social workers and institutional workers in communities. If we repeal section 43, what protections do you offer to those groups so that they are not vulnerable if they use any kind of physical restraint?
Ms. Milne: You gave the three bases upon which the defence of necessity is founded, and those are that force is necessary to protect the young person, others or the person applying the force. We have the common law defence of necessity. Not only does that apply to teachers, who at this point can use reasonable restraint, but it also applies to caregivers who are not caught in the definition of a person in the place of a parent, such as group home workers who apply restraint.
We have regulations in Ontario, for example, dealing with the use of restraint under the Child and Family Services Act that try to limit it to being non-abusive. A caregiver not in the place of a parent, necessarily because he or she has not taken on all the responsibilities, may be a group home worker, and, for the reasons you described, those people have not been charged when they have used restraint on young people.
When you use restraint as a punishment because a child, say, has not done his homework or not out of necessity, that is another grey area where I would argue you should not be allowed to use it. I think necessity would be the defence that would apply for restraint in the kinds of dangerous situations you mentioned.
Senator Andreychuk: Even if we repeal section 43?
Ms. Milne: Yes, because I do not think they are relying on section 43 for that group that are in the place of a parent right now who are not teachers, and who are not parents, who are using restraints in their care home. They use necessity as the basis for their defence. There have been some minor cases, but they have not gotten to prosecution. We must keep in mind that not every case will be decided by the Supreme Court of Canada so that we have a clear-cut precedent for every situation. In fact, judgment is being exercised on the ground on a regular basis. Those kinds of cases do not even get to either charges or beyond a charge to court.
Senator Pearson: Ms. Milne, there is an area of law with which I am not well acquainted and I would like your help. The Supreme Court judgment and so on were raised before, so I am familiar with certain cases. My difficulty lies in the area of laws or precedents to do with the role of the family and the child, as opposed to the body of law regarding assault. Could you expand on that area of law?
Ms. Milne: To narrow down the decision of the court, it was that section 43 is constitutional. Essentially, that was the decision. It does not speak to all of the other permutations and other relationships.
Family or parental rights are one concern. However, there are other rights. People have their own constitutional rights, and those rights do not extend to causing harm or injury or assaulting others. The case did not uphold parental rights. The case said that section 43 did not infringe children's Charter rights, and that is a difference. They are not the flip side of the same coin. To equate the two would be overstate the finding of the court.
Senator Pearson: Is it correct that the court was talking about Charter rights, not about the convention?
Ms. Milne: That is right. In fact, the court did talk about the convention and ignored what the committee said.
Senator Pearson: That is what I mean. I was told by a former judge that one of the issues of concern is that there is not an adequate body of law on this issue. The Supreme Court, makes its findings not based solely on questions of principle, it makes its findings based on the law and the judgments that already exist. Is there inadequate jurisprudence in this area? Why do you think that remark was made to me?
Ms. Milne: Was that regarding the convention in particular?
Senator Pearson: Does the Supreme Court have a huge amount of jurisprudence on which to base its judgments, or is there little jurisprudence on this issue on which they could base another judgment?
It is different from a moral judgment, that is, a finding that something is right or wrong. The Supreme Court bases its decisions on the law and precedents. It uses what is out there just as we, as a committee, must base our reports on the evidence we hear. We cannot invent evidence.
Ms. Milne: We do not have a well-developed body of jurisprudence with respect to children's rights. I have been practising in this area for 14 years and I know that only a small number of cases involve children's rights. For the most part, children's rights cases tend to be argued from the point of view of a family member, the parent asserting a right on behalf of his or her child as opposed to the child asserting the right themselves.
The section 43 challenge was done slightly differently in that we relied on the jurisprudence of all of the cases that been decided before interpreting section 43. We relied on those facts. The court determined that those cases had been wrongly decided, which is an unusual finding since they were at many courts of appeal. However, we did not have a fact scenario of a young person who was the actual person asserting the rights. There were good reasons for that. It was not challenged by the government when we took the application the way it was.
What is slowly evolving across the country in lower level courts is a greater acceptance of the UN convention and the principles in the convention. Those cases are starting to come forward.
The Baker case at the Supreme Court of Canada is the first case to acknowledge the UN convention. Even though many people tout it as a children's rights case, I do not, because the children had no standing and were not given standing. It was really about administrative law and whether Ms. Baker had a fair hearing. They did say that the children's issues or the best interests of the child needed had to be considered, but it is not what I would call a children's rights case.
That said, it had a beneficial impact on courts subsequently in that they accepted that the convention was something they had to follow. Even though the majority of the court in the Foundation case did find that the convention did not require that section 43 be either repealed or struck down, we must remember that the second report from the Committee on the Rights of the Child came out after we argued that case, so that there was a timing issue. It was picked up by Justice Arbour in her dissent, but it was not referred to at all in the majority decision. Partly, I would attribute that to the timing issue and so it might be that that might be viewed slightly differently today because the committee came out with such a strong statement in the fall of the year before the judgment came out.
[Translation]
Senator Rivest: I would like you to tell us, once we have criminalized the fact of physically disciplining a child, about the process of whistleblowing. You talked earlier about a 9-year old child who goes to the police station and who files a complaint. How do you assess such a complaint in the existing situation? There is a similar process with the child protection legislation where the child or a relative or a neighbour can complain to the police. As we have seen in cases of sexual abuse, it took some time for police organizations to get some training in order for police officers to be able to receive and deal with such complaints. If we do amend the Criminal Code — and I agree that we should go along with section 43 and comply with the Convention —, there is an administrative process that we must follow, otherwise it will be a failed attempt. Do you have any expertise on the situation about the process of whistleblowing and the routing and handling of complaints?
[English]
Ms. Milne: Currently, there is a hodgepodge or inconsistent types of protocols across the country in which police forces work hand in hand with child protection authorities to try to determine whether it is appropriate the lay charges in certain circumstances. We cannot equate child abuse necessarily with minor applications of force. Certainly, without section 43, many uses of force would be technical assaults. However, it is unlikely that they would result in charges because we need a process that involves an assessment of what is in the best interests of both the family and the child in the family.
We need to build on the existing protocols and the existing relationships between police forces and child protection authorities to ensure that we do not do more harm. I understand that is a concern. I do not think we need to go a zero tolerance stage of implementation of this legislation by any means.
Other jurisdictions deal with charges differently. I am most familiar with Ontario. Being defence counsel for young people, I am familiar with how charging works, especially in the City of Toronto. In other provinces such as Quebec and British Columbia, there is another level of scrutiny before charges are laid. It is not only the police officer who makes the decision. There is another level of scrutiny as to whether this is in the best interest — that is, whether it is in the public interest and whether it might be in the best interest of the child who is the victim. We have models across the country on which we can build. We have some time to do that.
As part of the case, we commissioned some research on police charging practices. We had a researcher from Ryerson University look at police incident reports in three centres, Winnipeg, Timmons and Toronto, and we saw the disparity in charging in those communities. We found that the highest rate of charging that went beyond the realms of ``reasonable'' in terms of the use of implements and injury was 40 per cent. Not 100 per cent of those cases resulted in charges against parents. In one of the communities, only 2 per cent of the cases involving injury to a child or the use of a weapon resulted in charges.
I will not draw causal conclusions from that because there might be different reasons for that. Winnipeg had a good level of relationship between the child welfare authorities and the police. A situation may have resulted in police scrutiny, but they may not have laid a charge but referred the matter to the child welfare system. There was not the hauling of parents into court and into jail. I am not saying that there should be a higher number of charges, but, even as the legislation is being implemented now, we are not charging people in cases where we think charges should be laid.
Senator Milne: Following on what Senator Andreychuk said about the three reasons for which you may need to restrain a child, namely, for the safety of others, for the safety of the child, and in order to safely and non-violently restrain children who act out, if this bill becomes law — that is, if we repeal section 43, as I believe we should — do you think there will be an increased use of drugs to control children? Presently, there seems to be an increasing reliance upon drugging our children in order to make them socially acceptable at school and for the benefit of the teachers.
Ms. Milne: On the one hand, I would say I hope not — and I actually think not. I do not think we need section 43 to do restraint. Therefore, I do not think there will be a greater need to use another method to restrain children because we are already doing so without the need for the law. I do not think there will be a dramatic increase there.
With all of these things, we are trying to predict what might happen. There may be one or two cases where this comes forward, but I would like to think that there is a level of common sense that people would use in determining the most appropriate way to respond to children's misbehaviour or to dangerous activities. It is about children who may, because of disabilities or whatever, not be able to control their own behaviour. The law as it is now supposedly written by the Supreme Court of Canada would suggest that you cannot use section 43 as a justification to use force on children who are disabled. In those kinds of situations, the physical restraint is not there to teach them anything; it is to control the situation. It is not about correction. It is not for the benefit of child's education. It is for a different reason.
Senator Milne: I have heard of situations where parents have taken a child to a doctor and have received a prescription for Ritalin, or whatever they use for children, because the teacher could not control the child. That raises concerns in my mind.
Ms. Milne: That particular practice raises serious concerns in my mind. It is something that the clinic has dealt with in terms of how the children's behaviour is dealt with in schools. That has nothing to do with section 43. It concerns another issue. That is, about how we generally view children and their behaviour and how we provide the appropriate resources to children in schools.
Senator Joyal: Ms. Milne, I understand that you are the appellant in the decision of Supreme Court last year. It bears the name of the Canadian Foundation for Children, Youth and the Law. You were probably involved in the case since you said you were acting as lawyer for the group since 1991. You have been at each stage of the progress of the complaint up to the Supreme Court?
Ms. Milne: Yes.
Senator Joyal: I notice in the description of the case that there were many interveners. Were they all in support of your position?
Ms. Milne: No.
Senator Joyal: The following were announced: Focus on the Family (Canada) Association, Canada Family Action Coalition, Home School Legal Defence Association of Canada and REAL Women of Canada, together forming the Coalition for Family Autonomy, Canadian Teachers' Federation, and so on. I will not enumerate all of them. They were not all in support of your views, then?
Ms. Milne: That is right.
Senator Joyal: In your opening statement, you mentioned that there were three reasons to support the removal of section 43. First, the basic fundamental human rights of Canada; second, compliance with the international obligation of Canada; and, third, social science is consistent with your position.
I wish to address the first two issues. The first one is the basic fundamental human rights of Canada. The way I have read the decision — and I would like to get your comments on this — the Supreme Court of Canada has ruled that section 43 is not an infringement on the rights recognized in the Charter of Rights of Canada to any person of section 7 of the Charter. In other words, if the right exists, it is not a right protected in the Charter. That is the conclusion I draw from this.
Ms. Milne: For the majority of the court, yes.
Senator Joyal: Yes, six out of three, and the seventh one is in between.
The second group of reasons for which you justify your position relates to compliance with Canada's international obligations to children. The way I read the decision — paragraph 31, which fully recognized the convention that Senator Pearson mentioned earlier. Paragraph 31 of the decision states that ``statutes should be construed to comply with Canada's international obligation.'' The court formally recognized Canada's international obligation.
In paragraph 32, it is stated: ``Canada is a party to the United Nations Convention on the Rights of the Child'' — the seminal convention to recognize the rights of the child. Then they quote articles 5, 19(1) and 37(a) of that convention. They come to the conclusion, on balancing the rights or the responsibility of the parents versus the rights of the child, that that convention is not an infringement on section 43.
They go on, in paragraph 33, with the International Covenant on Civil and Political Rights, another convention that Canada is a party to. They go through the same enumeration of sections of the International Covenant on Civil and Political Rights, and they come to the same conclusions.
I understand, and it has been mentioned earlier here, that the United Nations human rights committee might have interpreted those two instruments differently, but the Supreme Court of Canada has not read in those two instruments the same conclusions that the United Nations human rights committee did in its admonition to Canada on the implementation of section 43 of the Criminal Code.
In other words, your first two points, to me, according to the decision — although it is a six to three decision — are not fully in support of your arguments. Perhaps the third one is a better one to use to try to convince me that this is the right thing to do. Again, I am not against the principle of it; I am trying to establish the legal foundation on which our decision will be taken.
Ms. Milne: There are a couple of ways to answer that. I do not want to be in contempt of the Supreme Court of Canada, so —
Senator Joyal: You are protected by the privilege of Parliament.
Ms. Milne: However, obviously, I disagree with the majority and much prefer the minority decisions in the case, and that should not be a surprise to anyone. One thing that the majority did say was that, to some extent, it is still evolving. The social science is still evolving, but the international standards are evolving as well. You see that with respect to the issue about consensus in paragraph 36 of the judgment, and what they were going from was a certain consensus at that particular time. In fact, when it was argued, the committee had not pronounced on the second report by Canada on the UN Convention on the Rights of the Child.
My preference is to go to the committee, which is the highest body in respect of that convention, in that we are to follow what the committee says, as they are the international body that is interested with interpreting the convention. We do not have enforcement provisions with the convention, so it does not sit as a committee that interprets it that way, but it does have the power to monitor the compliance that Canada has with respect to the convention, and they have made a very clear statement. In that sense, I believe that the, in my very respectful opinion, is a higher body than our Supreme Court of Canada with respect to the convention. That is why I would still go back to what the convention says.
I also think that, although we have reached a certain point with what the Supreme Court of Canada has said, we can still do better. That does not mean that we do not want to go much further in protecting children and recognizing their rights beyond what the court has been prepared to say in a particular case that was argued, and yes, there were people on both sides of the issue, but I do not think that we have to stop there. This is why it is appropriate that this now be back in the hands of the political actors to look at again and say, ``You know, the court has pronounced, but we would like to do something better for the rights of the children and uphold them in a greater way than what the court was prepared to do.''
Senator Joyal: I fully agree with you. The Supreme Court has interpreted the Charter of Rights and interpreted the international obligations of Canada in relation to the rights of the child and has concluded, last year, which is recent — this is not a 10-year-old decision whereby your argument of evolving reality would probably speak louder because, as you properly expressed, it is an evolving issue and the attitudes of people are evolving. As you said yourself, social science's understanding of the issue is evolving as there is more research done and different ways of seeing the responsibilities of parents versus the development of the child and so on. There are still many areas open for research. Nevertheless, we are certainly facing a decision of the court that is still very actual. It is not an old decision of 10 or 20 years ago. The decision is not a year old.
You base your point on the fact that the United Nations human rights committee that interpreted the convention has criticized Canada for not removing or repealing section 43, and you state that that committee is a higher body. Of course, it is not enforceable in court, because if that would have been enforceable, there are many other issues for which the human rights committee has criticized Canada. The treatment of Aboriginal women in Canada, for instance, has been the object of comments in the human rights committee.
We are studying that at another committee of the Senate, and of course it is not enforceable. They draw attention to Canada, but Canada must take a decision on the basis of its interpretation of how Canadian society today might evolve in a point of time.
You said something that I think is an important next step, which is that the court has interpreted section 43 in a restrictive way. I wonder if one of the steps toward your overall objective of totally removing section 43 would not be for us to limit section 43 in a clearer way so that parents and general opinion in Canada, the groups that are involved, the groups that appeared in the court, all have a better understanding of where Canadian society is at this point in its evolution. Would that not be a better intermediate step towards the objective that you expect all society should reach in terms of a goal, or do you think that it is better to ask for the total removal independently from the decision of the Supreme Court?
Ms. Milne: I certainly prefer the removal, and I do so because even though the court has made the pronouncement that this does not infringe the equality rights of children, I think that we should make a strong statement that we want to treat children equally and that we want to protect them equally to adults, that they are people too. We can move beyond the Supreme Court decision and make that as a strong statement.
In terms of tinkering with it or changing it or trying to restrict it, I have difficulty with what the Supreme Court has set out as their new standard. Time will only tell, as we very slowly start to see cases in respect of the jurisprudence with this section — because it has been over a long period of time that the cases that we brought forward had been decided. However, we will start to see cases that even whittle away at those criteria, some of which I believe are illogical.
For example, there was a case decided in Toronto this past fall in which a judge held that it was reasonable force for a mother to slap her teenage daughter in the face. Now, that would seem to be contrary to at least two of the criteria that the Supreme Court had set out. Certainly, the Canadian foundation case was made known to this particular judge. The Crown did not appeal that case, and that is part of the problem of the jurisprudence in this area. We do not see appeals of the cases because the prosecution is hard on the parties involved and hence children feel that the courts do not uphold their rights. Even a case that went so far as a Crown attorney determining that we need to go forward ends up in a result like that, which would appear to us to be contrary to the decision.
The Chairman: Do you have the name of the case?
Ms. Milne: It is in my materials. In the submission, there is a reference to it. I believe it probably just has initials.
Senator Cools: Could we get it on the record here now?
Ms. Milne: I am looking for my reference. It is R. v. D.K. That is just one case. There have been other cases — where the case was still at the court of appeal level and the Supreme Court had not pronounced on it. There was a case out of Newfoundland where the court said that all the Ontario Court of Appeal has said is that the section is constitutional and everything else about the social science stuff is all obiter and we do not need to pay any attention to that because that is just an aside. That is a real danger as well, that subsequent courts will reduce the judgment down to just a statement that the section is constitutional, and we are back looking at the individual interpretations by individual judges as to what is reasonable.
As to the last point, about some of the criteria being illogical, one of the things the court has said is that parents should never administer corporal punishment in anger or frustration. We, as part of the work that we do at the clinic, do public legal education for young people, and this is a case that often comes up when we are discussing with high school students. We run through the criteria and state what the law is, that parents are not supposed to hit you if you are under two or a teenager. We go down the list and then we get to the one that says that parents are not supposed to hit out of anger or frustration. You can imagine that this group of high school students then erupts into laughter because they know that is not their lived experience.
Chief Justice McLachlin says that it is not supposed to be punitive, but that is what spanking and hitting children is by definition. Hence, there are some inconsistencies then in the judgment. I am concerned about how that will then filter down to subsequent cases and other courts trying to interpret what the Supreme Court had said.
Any time you start to fashion these exceptions, you start to run into those kinds of problems. Why two? The age of two is actually quite arbitrary, and some of the criteria were described as being a consensus. At the first level of court, the justice, in trying to make sense of all the social science evidence — which consisted of 10,000 pages of material — asked for them all to be distilled down to where these experts agreed. When you do not critically examine what each expert is saying and ask where they agree, you end up with the lowest common denominator and an arbitrary age of two under which you should not hit children. Certainly, the experts we put forward would never have supported a cut- off age at two. It does not make sense. We can jokingly say, well, that is some birthday party. How do you explain 20 months, 24 months? What is the difference in terms of this kind of action?
There are some consistencies that came out partly because of the way the case was argued — and I will take responsibility for that. Partly that is because there was not a really good alternative as to how we would argue it, but we have ended up with consensus-like pronouncements from the judgment that, when you go back and really look at it more carefully and look at what the experts were saying, would not necessarily get to the same conclusion.
Senator Joyal: You illustrate in the last part of your answer to a point that there is no unanimous consensus among ``social science,'' and I include in that psychologists, psychiatrists, all the professional people involved with the study of the fact of raising children. I wish to consider the situation of the court having before it a kind of unanimous, overwhelming conclusion.
[Translation]
As my colleague Senator Rivest was saying earlier, the restraint of children is an unacceptable manner of educating children and it is contrary to their fundamental rights as persons. The court would have concluded as such. It is not what it has decided.
Consequently, when one reads the judgment, one feels that there is not a unanimous opinion or such a strongly deciding view that the court could not have concluded differently, especially when I see the whole list of social groups that are interested in this case that you have shepherded.
It is a value judgment that we all do for ourselves. It is not an absolute evidence. That is why I am wondering whether we should not focus on the elements of the decision that are the most clear, such as the fact that one should not restraint a child of less than two years, that one should not hit a child on the head, et cetera. Should we not clarify section 43 in such a way that cases such as those that you are referring to in Ontario or in Newfoundland will not allow a judge an open ended margin of interpretation? A judge could simply say that section 43 is legal and then proceed to give any interpretation of it. If we were to limit the scope of section 43, this would have an impact on lower courts and on the manner in which they would approach the implementation of section 43. I know that is not what you want.
[English]
When you cannot get the best, you ask for the second best. Do you think the second best is to leave things as is, so that there will be so many outrageous cases and decisions that, at that point in time, there will be a rebellion and people will press everyone to change the law?
Ms. Milne: How many children are harmed in the process?
Senator Joyal: Yes, that is it. We have a certain responsibility to act if we feel something should be done.
Ms. Milne: Right now, we have confusion about what we should and should not be doing. The government's argument at the case was we do not want to get rid of section 43, we are doing all this great education, but the two messages are completely contradictory. The legal message contradicts the educational message, and it makes it difficult. Whereas many parents take it upon themselves to learn good discipline practices and how to best act to look after their children, there will be a subgroup of parents who will take the legal message and wield it to actually justify behaviour that is contrary to the educational message. That is one point.
The other thing is that if we try to fashion something from the judgment — and you mention that there is this consensus. I am telling you that the consensus is not that. It is not what is in that judgment. The consensus is more accurately depicted in the joint statement on physical punishment. If you look at the list of organizations with extensive expertise in child development and families from across the country, 157 have signed on to that joint statement. That is the consensus in this country.
This other definition was because of two U.S. experts hired, Dr. Robert Larzelere and Dr. Diana Baumrind. There are problems with their research that could not come to the fore because of the method in which we argued the case. It was difficult to argue. We put it in our materials, but it was filtered out because of the method of bringing forward the case. Financially, it could never be brought as a trial in which the judge could hear each expert give their testimony. It would have been prohibitively expensive. We did it as an application, which meant everything was entered by way of documents.
We did cross-examination, and I cross-examined both of those experts. I know where the weaknesses are with the research, but it was very hard to communicate that. Dr. Larzelere has done a meta-analysis, and he is a very good researcher. I do not wish to disparage him as a researcher generally, but on this particular point he has done a meta- analysis, which is a study of studies, in which he includes a number of studies from a psychologist by the name of Dr. Mark Roberts. He cites them as being excellent studies on this issue. Dr. Roberts conducted spanking experiments at the University of Idaho. In one of his studies, a child was hit more than 50 times in a period of 60 to 90 minutes.
At the first level of court, Justice McCombs was appalled and said he would disregard everything Dr. Roberts said and did not care about him as an expert. What he failed to see was that Dr. Larzelere's opinion was based to a great extent on the work Dr. Roberts had done. You had to read through Dr. Robert's charts and figure that out. It was not square in the study. You had to go through his little charts, and I often say I should have an honorary Ph.D. after going through all these studies. When I pointed out to him that this one child seemed to have been abused in his study, he said that is why I no longer recommend that we use spanking, and furthermore, he never recommend we use it with families identified as abusive by the child welfare agencies.
We do not do that with section 43. We do not say it does not apply if you have had encounters with child welfare agencies. It applies to everyone. There are flaws in the logic for those who are proponents of keeping section 43 or keeping this as a protection for parents.
Dr. Baumrind has done recent research, and her initial findings were part of the case. She had done it as part of an affidavit. She had not written it up yet. She had a very insignificant number of families with zero spanking or no corporal punishment on their children. When asked, she said that meant it was statistically insignificant. She could not do a comparison between a group that had never spanked their children and groups that had. That is a flaw. It is the same kind of flaw that those social scientists have levelled at all the others.
In Canada, we have the Canadian Paediatric Society saying we were not sure about signing on to the joint statement so we did our own research. We wanted to see if the research compiled in that statement was consistent with what our members also knew. They independently came to the same conclusions and signed on to the statement.
We have to be very careful when we think the evidence in that case is really the social science consensus, because I do not think it is.
Senator Cools: I wish to welcome the witness to the committee. Is your office still on Spadina Road?
Ms. Milne: We recently moved to Yonge Street.
Senator Cools: I have a great respect for the work you do. I am not an advocate of corporal punishment. I deplore violence in all its forms, minor and major. I also understand when attempting to foist new ideas or new concepts upon a public one must proceed carefully, vigilantly and cautiously. As I have said many times, when you are putting into the hands of powers that be enormous prosecutorial discretion and new powers in respect of initiating prosecutions, invariably there will be a plethora of malicious and wrongful prosecutions. I just wanted to put that on the record.
The way this debate proceeds, it seems you always have to premise that you are not an advocate of corporal punish, and I spent my life in this field.
You related at the outset the case of a 16 year old who was badly abused by the child's mother. You say that the policeman would not believe this child. How would the repeal of section 43 assist in that? The problem with those cases, and I have done a lot of work on this, is that quite often individuals refuse to believe that women can be as violent as they are. All the literature abounds.
Some years ago, Judge Gove did a study when little Matthew Vaudreuil perished. He made as an essential point that the child protection agencies acted as though the mother, who was consistently abusing the child, was the client, and not the child. I have read endlessly of those cases, some documented by Dr. Greenland, and it is quite often the disbelief that women do these things. We see this again and again.
I would submit to you that a paradigm change is necessary in the minds of many in the child protection business. However, I want to make the point clearly that the case you described is a sad and terrible, but the proposal in this bill would have had no impact on them — because even if you repeal section 43, the child still may not be believed in the current atmosphere of women are virtuous and men are violent. I have a lot of sympathy for the people who work in this field. I have worked with a lot of them and I know the challenges.
Madame Chairman, the witness mentioned the names of Dr. Baumrind and Dr. Larzelere. Perhaps we can put them on our witness list. I have other names to consistently bring forward.
I hear a lot from you on this question of repealing section 43, but there are many areas of abuse to children that we tolerate. What is your organization's position on this situation? It has been held in cases of divorce as acceptable and legal for mothers to alienate children from their fathers, the total marginalization of fathers from children's lives. A whole language has grown up around this phenomenon: parental alienation, parental alienation syndrome. It bothers me deeply.
I have always maintained that the first interest of the best interest of the children is the child's entitlement to a relationship with both its parents. Many individuals will stand up for not abusing a child physically but they will support parents who separate children from their fathers. Could you explain to me whether your organization has adopted a position on that phenomenon? For any parent to deprive a child of the other parent is a terrible thing.
I am putting this to you, and to make my third point, there is beautiful, stunning literature currently coming out of the United States of America now showing that the real and most solid indicator of children's well-being is the active involvement of both parents in children's lives. In other words, research of people like Daniel Patrick Moynihan is showing that family structure rather than race or poverty is the real indicator of children.
I am concerned that you are looking down one road, but there is a vast other area about children. I am wondering if you thought about it. If not, I quite understand, because our plates are full, but it is something I have given a lot of thought to.
Ms. Milne: I can answer your question in two ways. We have not taken an official position about the precise situation that you have described. However, to answer your first comment, which was not part of your question, about whether section 43 would cure the scenario I described, and the issue about the alienation of children from their parents and the need for the active involvement of both parents, we are not child focused. We do not believe children because we believe the parent — the parent, whether the mother or the father, in that case. Taking a position with respect to section 43 is highly symbolic.
Repealing section 43 would assist in the first scenario in that there will be a strong public message that hitting children to discipline them is not acceptable — so the broomstick would clearly be out of the picture. Hence, lying about the broomstick versus the hand is not what we are quibbling about. It should not happen.
With respect to your second issue, which I think is very important, we have always taken the position that access rights and custody rights should be from the perspective of the child and what is in the child's interest. It is really in the highly contested divorce situations where the courts do not handle it well, and no one handles it well. As a society, we need to stop viewing children as property of parents and see them as individuals and people. They are not little adults. They have their own developmental needs, and we need to be cognizant of that. Part of those developmental needs is having a relationship with both parents, where that is appropriate, and there are times when it is not.
We need to see children as individuals capable of having their own human rights, not as something they earn as they get older but rather as something they have right from the beginning. In the case of section 43, it is the most fundamental level in terms of the security of their own bodies from being hit. Until then, we will not move on to those other issues. We are back during not the previous century but the one before that in terms of how we view children, especially with respect to this issue. The convention is a good place to start, and it is a good basis for arguing that we need to take more steps in recognizing children as people and as human beings worthy of dignity and respect.
Senator Cools: I wanted to make one more point. If any parent in today's community is badly beating a child with a broomstick, I am telling you that there are few who would not take action in today's community.
Madame Chairman, there are so many of these issues, and there are so many people who have tried to get prosecutions in some of these questions, especially in child murders. Among our witnesses, perhaps we could bring some of these individuals who can describe to us the difficulties they encounter, even in respect of trying to get prosecutions. I am thinking of people from the coroner's office, for example, Dr. Jim Cairns, the deputy coroner who some years ago conducted a series of studies on a particular series of inquests into children's deaths. It would be instructive for us to get some of this information.
As a closing point, children are no longer viewed as the properties of their fathers. In contemporary society, children are viewed as the properties of their mothers. Divorce is a new and contemporary and widespread problem. Since divorce became a woman's right, the children obviously have been set aside. You see this coming through in the judgments. I admire your work, and I thank you for that.
[Translation]
Senator Hervieux-Payette: Madam Chairman, I have here a copy of the September 2004 judgment that we referred to earlier. I can give copy of it to the clerk so you have access to it. I agree that the judgment demonstrates that even the judges did not understand the judgment. In the January 2004 Supreme Court decision, what we thought not to be ``reasonable force'' has been termed ``reasonable force.''
One of the criteria that we have talked about is the non-objectivity of the phrase ``non reasonable.'' The word ``reasonable'' is subjective to anyone and it is a concept that is difficult to apply. In redefining section 43, we would have to redefine or to recreate the jurisprudence and perhaps it would be simpler to repeal it completely.
My question is directly linked to the opinion that the Minister of Justice has sent to us, according to which in the absence of section 43, parents who spank a non-compliant child, who place a child in a car seat or remove him to his bedroom for him to calm down are using force without the consent of the child and could be found guilty of assault.
Since you are a lawyer and have a rather extensive experience in this area, I would like to know, given the legal advice that has been given to the Minister of Justice, what interpretation our courts would give of this question? By putting a child in a car seat, according to our provincial legislation, or by having him sit on a chair and requiring him to stay calmly sitting on a chair, thus depriving him of his freedom to run around, would we be applying the criteria of assault and would parents be exposed to a criminal complaint later on? I would like your opinion on this issue.
[English]
Ms. Milne: My comments about necessity and the use of restraint partly answer that in the sense that, without section 43, we still have the ability to do that without fear of criminal prosecution.
The best way to answer is to do the analogy to adults. We have a section of the Criminal Code that is broad, and there are many forms of force that occur on a daily basis as a part of human relationships that do not encounter police attention, and will not. There are also many examples of parental force on a child where there is no consent and that do not constitute correction. For example, holding a child's legs still or lifting a child up for diapering or grabbing a hand to cross the street are not things one would define as being for the purpose of correction. They have another purpose. Section 43 cannot apply to that as a defence.
The Ontario Court of Appeal has recognized in R. v. EA recognized the principle of implied consent for mild force for the purposes of nurturance. I will read from a paragraph in our factum that says that there exists a ``common law right of parents to touch children without their consent in situations involving nurture and care, such as diapering a child, which is more easily equated with the kinds of non-corrective applications of force described by the court. It may be too trite to point out that parents are not routinely prosecuted for hugging and kissing their children without their consent, touching that has no corrective purpose.''
Those comments are part of in terrorem argument that we will have busloads of parents hauled up to the police station. I do not think that will happen. It does not happen in the daily existence that we have with adults, the touching or patting or even sometimes grabbing someone's shoulder that may be technically considered an assault. It is regrettable that the majority of the Supreme Court did not like to expound on the defence of de minimis non curat lex. Justice Arbour did in her dissenting opinion. Even though it is not in the Supreme Court judgment, it is used on a daily basis in terms of law enforcement and our daily lives as to whether we even call the police for invasions of our own personal privacy. It is too ridiculous to think about us going to court for these things. That is what I think. The failure to acknowledge that as a proper defence is in an unreal space. I do not know where that comes from.
This answers an earlier question about whether we should just redraft section 43 to make it look more like the decision. There are those who would argue that it more severely limits the discretionary powers of the police and courts to not prosecute these minor applications of force because they set out strict criteria that leave no leeway for de minimis argument. If a child is under two and is reaching for the hot stove and you slap away his or her hand, does that mean we will prosecute the parent? That is what the court would suggest. If there is no de minimis argument, and you cannot do it under two, what happens to that behaviour? It is another example of lack of logic in the criteria set out by the judgment, but it also shows that we have to operate with a certain level of this discretion that finds itself in a legal principle of common law defence that is protected under section 8 of the Criminal Code of de minimis non curat lex, which is that the court is not to be concerned with trifles.
Senator Hervieux-Payette: Is the one-year delay for the implementation of the bill for removing it and putting it into force a comfortable time frame for governments, both at the provincial and federal level, provincial for administration purposes and federal for educational purposes, to ensure that the repeal would not cause any chaos in the implementation?
Ms. Milne: We waited 21 years since the Law Reform Commission made the recommendation. One more year for those of us who want this to happen is reasonable. Government has been talking about what to do in the absence of section 43, and there are people who have given a lot of thought to this. There was a workshop held a couple of years ago in Winnipeg sponsored by Professor Ann McGillivary, and Dr. Durrant helped to organize it. We got together groups, including police and child welfare, to talk about what the world will look like without section 43 and about drafting protocols. There are people who are ready to work on that, so a year is sufficient.
Senator Hervieux-Payette: I presume that, as a professional, you also meet with all the provincial people dealing with these matters. All of you who work in this sector are discussing this issue. Have you seen resistance in some parts of the country, or is your feeling that people dealing with children's issues are, in the great majority, supporting the repeal of section 43?
Ms. Milne: It is important to note that in every province where there is an official provincially appointed child advocate all the advocates are in agreement with the repeal of section 43. That is across the country, and there are eight child advocates now. That shows that those who are working in the area, who see what happens to children — many are advocating for children in state care and make stronger or more broadly based comments and policy statements regarding children more generally — are very experienced in the area. They all agree that this should be repealed.
Senator Ringuette: I made a commitment to provide copies of a case I was trying to identify through only the media that surrounded the case. I thought it was a case in Aylmer, Quebec, but it was a case Aylmer, Ontario. I thought it had gone to the Supreme Court, but it had gone to the Ontario Court of Justice, so I would like to table this for my colleagues, and it is the basis of my question for you. You seem to be familiar with the case.
Ms. Milne: I am.
Senator Ringuette: The following statutes and regulations are cited: the Canada Evidence Act; the Canadian Charter of Rights and Freedoms; the Child and Family Services Act of Ontario; the Child and Family Services Amendment Act, which is called the Child Welfare Reform Act, which is also in Ontario; the Constitution; the Courts of Justice Act, section 43; the Criminal Code, section 46, which we are looking at; the Evidence Act; and the Family Law Rules.
With your knowledge and expertise, could you briefly summarize this particular case for my colleagues and its particularity to the Charter? When you look at all the statutes and regulations that were brought into this case, if we do repeal section 43, in regard to this panoply of legislation — all the different provinces have different family legislation — how will this be implemented?
We were also talking about a one-year delay. That one-year delay will have to be used by the provincial attorneys general and justice ministers in order to amend their provincial legislation as well. There are all those ramifications.
Ms. Milne: The Aylmer case, even though they cite section 43, was not a section 43 case. There was never a criminal prosecution of the parents. It was strictly a child welfare case. It was also inaccurately described in the media as a case involving spanking in which a child welfare authority had removed a number of children because the parents had supposedly spanked the children. The community, and it was a religious community, had come out publicly and said that that was what it was all about. The reality was that it was not. It involved the use of implements on children. It involved lack of medical care for a particular child. Thus, it was a much more complex kind of case. It was also a case where the protection worker had tried very hard to work with the family, and had wanted to work together with them, but was not getting answers or a response. When she met a brick wall, she used the drastic route of apprehension. She felt the children were at risk because of the things she had seen, which involved actual injury to at least one of the children.
It was a dramatic case in terms of the media as the children were being hauled out, but it is a much more complex one, as you cited all the various statutes. Reference was made to section 43 because the parents argued that their religious freedom permitted them to use corporal punishment and that one of conditions that the society had wanted to impose on the family before the children could return home was that they not use it. Ultimately, they reached an agreement.
The case has stopped at the level of the Ontario Superior Court. An attempt to have it heard in the Court of Appeal of Ontario was found to be moot, so that is where it will stay. It is a case that has been used and cited as being related to section 43, but I would argue that it is not. It has much more to do with the kind of child abuse scenarios that we know child welfare authorities are entrusted with and are investigating, and it was ultimately resolved. That is an example of things spinning out of control when you get the media involved.
Senator Ringuette: We all know about how that happens.
Ms. Milne: Your other question was how the other pieces of legislation might be impacted on a repeal of section 43. I would say that for the most part they will not be. I say that because we do have a system of child protection legislation across the country and each province has its own equivalent to Ontario's Child and Family Services Act that defines when a child is in need of protection and when child welfare authorities need to go in and investigate.
They have their own criteria. They talk about physical harm and risk of physical harm. Just because you remove a defence to corporal punishment does not change their definition of whether a child is at risk for emotional or physical harm. They already have that authority separate from whether section 43 exists or not. Section 43 prevents criminal prosecutions in some areas because there is this defence of reasonable force. One of the problems with the Criminal Code is that it deals with charges that relate to a single incident and not with repeated uses of mild spanking, for example. When does mild spanking becomes abusive? If it is a single incident that involves two spankings to the bottom, that would not be a charge, but if it is done on a daily basis or every two hours, what do you do then? The Criminal Code cannot deal with it as long as we still have section 43.
We do have child welfare authorities that can deal with that sort of thing. It still needs to meet their criteria of what abuse is. It is important to look at what is coming out of the Canadian incidence study. The latest numbers are coming out this week. It gives you a small snapshot of incidence of child abuse across the country. It does not answer all your questions, but certainly some of the work that Joan Durrant has done in analyzing the data and teasing out where the physical punishment was the motivation for what ultimately ended up in physical abuse is quite helpful in terms of determining whether we will be scooping a whole group of parents into the realm of child welfare. I believe their conclusion is, no, we are actually already seeing those families. There will not be an increase. It will stay the same.
The provincial legislation does not need to be amended as a result of this, I would say. I know people are working on trying to get provincial legislation amended separately, regardless of section 43, in order to make statements such as, in the education act of various provinces teachers shall not use corporal punishment. The Supreme Court has essentially said that. Until the most recent decision, we had a number of teacher cases. Even though in some provinces the education act said that teachers cannot use corporal punishment, teachers would still be acquitted, because even though community standards are to be looked at to determine what is reasonable, courts would still find it reasonable because it is in the Criminal Code.
[Translation]
Senator Nolin: On page 6 of your brief, you list a series of countries, mostly European, including Italy and Portugal, where court decisions have made it illegal for parents to use corporal punishment. Do you have in writing the legal reasoning on which these two decisions are based? If you have this information in writing, perhaps you would prefer to have it sent to us.
[English]
Ms. Milne: I have, but not with me. I could make it available and pass it on to the clerk. I do not have the one for Portugal. I could probably find it with the assistance of Peter Newell, whom you met last week. We have a copy of the judgment from Italy, and I would add to that the Israeli supreme court judgment. That judgment was part of our materials before the Supreme Court. It makes reference to the UN convention as well as to Canadian law and Canadian authorities. You might find it helpful.
[Translation]
Senator Nolin: My second question deals with the United Kingdom. There is no mention of that country in your brief and, as you know, the United Kingdom's influence, especially in criminal law, is rather important in Canada. I would like to know what is the state of the law in the United Kingdom regarding corporal punishment? Again, if you do have this information in writing and if you would prefer to send it to us, please feel free to do so.
[English]
Ms. Milne: I have not really done an analysis of the U.K. because to some extent they are similar now to what we have. I do not think it gets us anywhere in terms of advocacy. I think Mr. Newell is probably the best person to describe the U.K. situation.
Senator Cools: I wonder if the witness could tell us a little bit more about the case on which she proceeded on section 43 before the Supreme Court.
Could you give us a summary of the intervenors on the opposite side? Also, could you review with us again what you said about Dr. Larzelere's expert testimony? This is important because if and when we call Dr. Larzelere before us he should have an opportunity to respond to what you say. Could you expand so that it is clear?
Ms. Milne: The intervenors that supported us included the Child Welfare League of Canada, the Ontario Association of Children's Aid Societies, and the Council of Canadian Child Advocates representing the advocates across the country.
The intervenors that supported the government's position included the Canadian Teachers' Federation. They took the position that they were not supportive of corporal punishment but felt that the section was necessary for teachers to use restraint. Then the other group was joined, and there is a whole long list, by the Coalition for Family Autonomy, which included Focus on the Family and REAL Women of Canada.
They purported to present the parent perspective. I would say it was a parent's perspective because I am a parent too and it is not mine. There are dangers in lumping people together and saying that that was the parent perspective. It was a parent's perspective, certainly.
Senator Cools: Perhaps we should identify Dr. Larzelere for the record. He is a director of behavioural health care research, but I forget the institution right now. He is very prominent.
Ms. Milne: He used to be at the Bible Institute of Los Angeles, Biola University.
Senator Cools: I believe he is also associated with Boys Town, n the United States, which is a famous school. I do not know what they call them in the U.S., but in Quebec we used to call them youth protection schools. Do they still call them youth protection schools?
Ms. Milne: Dr. Larzelere has done some studies on the effects of different forms of punishment, including corporal punishment. He has also done some analyses of studies and has been fairly critical of the Gershoff study, which is the meta-analysis of 88 studies. He has defined what he calls normative corporal punishment, which is two spanks to the bottom of a child between the ages of two and six. He does not go up to teenagers. My personal criticism is that it is a fairly artificial definition of what is normative. I do not think there is a definition for what is normative.
The other concern I have is that some of his analyses that suggest that there is not enough evidence to talk about whether there is long-term causative harm for the use of this normative spanking rely heavily on some of the studies by Dr. Mark Roberts, who, as I said earlier, conducted the spanking experiments at the University of Idaho, which for one, in Dr. Roberts' own words, did not look at long-term harm or long-term benefit, only looked at short-term compliance. The longest term he followed the families was 14 days after the session, so that would not be considered a longitudinal study in any way.
Some of the criticisms he has levelled at the Gershoff study and others he is actually vulnerable to as well. He and Dr. Diana Baunrind are the only social scientists I have seen out there who actually oppose the position that the social scientists suggest you should not hit children. In fact, they both agreed that the social science does not prove that corporal punishment is good for children and that there is a benefit. That is the one thing that all of the social scientists actually did agree on, which is that there is no evidence of a benefit to children. That then led to the American Pediatric Association issuing a statement against the use of corporal punishment and encouraging their members to discourage it amongst parents.
Senator Hervieux-Payette: Maybe I do not understand, but was there a study conducted with a willing child or willing parents that they were hitting for a number of days as an experiment to see what would be the result? To me, it is incredible that a university and scientists would conduct such a study, but do I understand correctly that this was the study that was done by Mr. Roberts?
Ms. Milne: Yes.
Senator Hervieux-Payette: Did the child know he was participating in the study? Of course, the circumstances are not the same as when the parent is hitting a child. Is it correct that the child did nothing and he was hit?
Ms. Milne: I do not think the children had given informed consent; it was the parent that participated. There were about three studies. They were studying the use of spanking as a backup mechanism for chair time out, or room time out. It was within an experimental model in which the mother had identified the child as being what they called deviantly non-compliant. It was a child between the ages of three and six who had been defined as being deviantly non- compliant and in need of help. The mother would be in a room with a two-way mirror, with a little bug in her ear for the researchers to tell her what to do, and she would be instructed to tell her child to put a block over at a certain place or to clean up the blocks. If the child refused, the child would have to sit on the chair.
They did various versions. In one, they administered the spank procedure; in another, they issued a warning. They would then sit the child on a chair. Those who were in the experiment in which they did the spank backup, if the child escaped from the chair the mother was then instructed to administer the spank procedure, which was two spanks to the bottom.
Senator Cools: Was it two spanks or two slaps?
Ms. Milne: They called it two slaps. Two slaps to the clothed bottom, so it was not supposed to produce injury or be that hard. The problem was that there was one child — there were others who had escaped a fair number of times as well, but one poor child had escaped 25 times. I asked how long these sessions were, and he said 60 to 90 minutes roughly. I asked whether, in the case of the child who had escaped 25 times, the child was hit 50 times and he said that would be right.
For some of the kids in those experiments, you cannot say they actually produced much compliance. The other real flaw in the study, which I think really gets at the heart of it, other than the inhumanity, was that these kids had been defined as deviantly non-complaint. However, in the late 1980s, Dr. Roberts did a study of kids in a particular neighbourhood to determine, because he had not determined prior, what was deviantly non-compliance. He just assumed, because the parents had said he was out of control and other people said he was out of control. Lo and behold, all the children in this neighbourhood between the ages of three and six were deviantly non-complaint. It was a middle-class neighbourhood. It was just a normal neighbourhood. Therefore, my conclusion, which is my gloss on it, is that they were punishing children for normal behaviour.
Senator Cools: I am interested in the whole phenomena of probability and possibility. If we were to go around this table, for example, and ask all of us adults here how many were, to use your language, spanked as children, what do you think the probability would be based on your outlook of the world?
Ms. Milne: Looking at the age of the people around the table, I am sure it would be very high.
Senator Cools: If you were to go around the table and ask those who are parents how many of them have spanked their children, what do you think the number would be?
Ms. Milne: I would say it could very well be very high.
Senator Cools: That is exactly what I am saying to you. This is the reason that, whereas I laud your goals, I come back to the fact that the Criminal Code is not an educative tool. If we want to educate people, we do that, but a tool of coercion should not be used as a tool of education because I do not have the confidence that those prosecutorial powers will not be invoked. I have seen many children who fall through the cracks of the child protection agencies and who die and perish, but I have also seen a lot of abuse on the part of child protection agencies as well.
The point is that the witness is saying that the probability is pretty high around this table.
The Chairman: My question would be: How many regretted it?
Ms. Milne: I think that would probably be very high.
Senator Joyal: I can understand the approach to the issue that says our understanding of human rights should be that any human being, whatever the age, should not be the object of physical constraint.
I can understand that approach — like we have been told it is no longer acceptable to hit women or seniors. That has been mentioned around the table here before. I can accept the logic of that, a strict interpretation of the Convention on the Rights of the Child or the international covenant, the way that the UN human rights committee interpreted it. I can understand the logic.
Where I have a reserve is when social science tells us that any physical constraint on a child is not beneficial. We know so many instances whereby limited force at a finite time in the education of the child can be beneficial. I am not talking of someone who has been hit regularly for 10 years. We all understand exaggeration, but spanking a child once to have the child recognize danger or realize that he or she should not do this is reasonable — that this is not beneficial in absolute terms, the way it is presented supporting the approach, that that should be the conclusion for us to support section 43. Then we are told about the rate of suicide today, the rate of this and that. Physical constraint has been used for generations. The level of suicide in those generations is not higher than today.
There are other consequences of what I call modern education. Those consequences are much more difficult to understand for a layman. How people get socialized, how they accept authority, how we redefine authority in society, all of that is part of the education and the method of education. As much as I understand the logic of the first one, we hear all kinds of theories about the second one. We have heard the theory that using force against a child marks him or her for life. For me, that is an outrageous conclusion. There are other sociologists or authors who contend that modern education has its fallout.
Hence, we have not found an absolute system to guarantee the overall result all parents or those responsible for children would like to achieve. Once we started listening to expert witnesses here, I was reminded of a book published two years ago that said that everything has to serve the child and that you should never contradict the child. Let him loose. The child is pure and it is society that creates the bad characters and so on. This is the other absolute theory.
It seems to me that common sense is somewhere in the middle. That is where it is difficult for any reasonable person, I would use the indefinable term reasonable person, on the basis of our own knowledge and experience to know where we have to draw the line on this, and I am still wrestling with this. As you said, you can contradict some expertise and someone else would contradict you too, so there is the social science. It is not an exact science. It evolves, as you said. The Dr. Spock theory of 40 years ago that was supposed to be the ultimate in theories is now seen as antiquated as dinosaurs.
It is not a science that is absolute. To make a decision on this, we try to find parameters that respect the child. There is absolutely no question about that. The recognition of the rights of the child is something that is a very welcome development in the last 20 years. It is an evolving notion and commands a cultural change to society generally. We have listened to you carefully, but I still have some questions. I want to achieve the best for the child and the parents, but there is still a grey zone in all of this.
Ms. Milne: There is a grey zone, and right now we err on the side of allowing abusive parents justification to the detriment of the child. By repealing section 43, you will err on the side of protecting children instead. This will not create a perfect world, and I am not here to advocate that the child is king and never contradict the child and we let them run wild. However, we want to do better in terms of disciplining children, and we have to see discipline as something that does not disrespect their bodies or disrespect them as human beings.
The social science only gets you so far. We will be arguing about study after study from now until well in the future because that is the nature of the way science develops. It is people criticizing studies and how we perfect what we think the results are. However, the results will also change over time as human behaviour changes.
Part of the social science difficulty is we do not have anything that will prove one thing or the other. All we can say is what it does not prove. It does not prove it is good for kids and does not prove that for each child they will be harmed, but we do know it is a risk factor. For me, it is important to err on the other side now and stop erring on the side of the adults.
One key risk factor is what Sheila Noonan commented on in R. v. Ogg-Moss, the first case in the Supreme Court on this issue. The reasonableness standard shades murkily into abuse. We see that most parents do not abuse their children. We do not say it is abuse right now, but physical punishment that occurs in anger, where you give license, you end up shading into abuse. If you repeal 43, you err on the side of protecting children. You are not saying that parents are bad and you should be hauling all parents into police stations. We do have some common sense that is exercised consistently, but we take a principled stance stating that children are human beings we need to respect, which teaches children respect for others. That is an important thing. Our bodies are something we have control over, and we respect the views of children as people. That does not mean they get to rule the day. I am a parent. I know that. We need a law that clearly states that children are people when it comes to something as important as physical assault.
[Translation]
Senator Hervieux-Payette: In social sciences, I do not know whether that applies.
The Chairman: You will be able to talk about it after the meeting.
Senator Hervieux-Payette: No, but for our information, would social sciences include psychiatry and pediatrics? I just want to know because that issue has been raised two or three times. For me, social sciences do not include medical sciences.
The Chairman: Social science is not medicine.
Senator Hervieux-Payette: The medical disciplines; this is the reason why I am asking the question.
Senator Joyal: Social science is not an exact science, it is the science of behaviour within society. It is not medicine.
The Chairman: That is what I had understood.
Senator Hervieux-Payette: I thought that all specialists who have subscribed to it, including the Canadian Association of Pediatricians, who have made studies, were opposing it.
The Chairman: Still, we must understand both sides of the issue. We are not monolithic. We are trying to understand the issue and the various options for resolving it. I thank you, Ms. Milne, for your generosity.
[English]
You have spent two hours with us. I know we have benefited from your knowledge and your expertise in the field. Thank you very much for being here with us. Feel free to send us any documents you feel we should have.
The committee adjourned.