Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence for June 9, 2005
OTTAWA, Thursday, June 9, 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 10:50 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. Our witness this morning is Mr. Paul D. Faris.
Welcome to our committee, Mr. Faris. We will hear from you first, after which, I am sure, senators will have questions to ask of you.
Mr. Paul D. Faris, Executive Director and Senior Legal Counsel, Home School Legal Defence Association, Coalition for Family Autonomy: Madam Chairman, senators, thank you for inviting me here today. It is a great privilege.
We have a huge amount of material on the subject. I have tried to pick the most cogent bits. I will be more than happy to supply further information as you may request it.
I am here on behalf of the Home School Legal Defence Association, which was a member of the Coalition for Family Autonomy that intervened in the Canadian Foundation for Children Youth and the Law v. Canada (Attorney General). The coalition was comprised of four organizations that came together to pool resources and present to the Supreme Court of Canada, the costs of which are obviously very high.
Thus, I can only speak for the other groups to a certain extent. I encourage you to invite them here, if the opportunity presents itself.
I am opposed, as are members of the other organizations, to any form of child abuse. We take no position on whether spanking is correct or not. We are not here to argue for spanking. We are here to argue against criminalizing parents who use moderate spanking. That is a very important distinction.
First, I wish go through some of the legal provisions which deal with this subject matter. Section 265 of the Criminal Code deals with assault, while section 43, which is dealt with in Bill S-21, sets out a defence for assault.
Section 265 states that any unwanted touching is assault and therefore liable to a penalty of up to five years in jail. It is a serious provision of our criminal law.
This is part of our tradition of individual autonomy and individual rights. It is important that a parent unprotected by section 43 and charged under section 265 is potentially liable to serve five years in jail, although admittedly it is unlikely that the parent would receive such a lengthy sentence.
The Supreme Court of Canada decision of January 2004 directly addressed these issues. In fact, it was a response to the intervenors and to the application brought to outlaw section 43 and have it removed from the Criminal Code.
The Supreme Court of Canada looked at the issue very extensively. It considered presentations that were given to it. World experts were flown in. We have boxes of evidence presented by as many experts as could be rallied by both sides. Three levels of court reviewed this expert evidence.
In the court proceedings to which I have referred, every main party had the opportunity to examine the witnesses and any expert who gave evidence. They were allowed to ask them any questions and a transcript of those questions was put before the judges. The evidence was not only presented but very extensively considered and then argued.
The Supreme Court of Canada decision states that section 43 sanctions only ``minor corrective force of a transitory and trifling nature.'' The corrective force cannot harm or degrade the child. If it harms or degrades the child then, as a result of the Supreme Court of Canada's decision, it is automatically in violation of section 43.
The Supreme Court set out further criteria. If the discipline is administered on children under the age of two, it does not fall under the provisions of section 43. It cannot be administered on children of any age who suffer from a disability. It cannot degrade children of any age. Objects, such as rulers, belts or anything like that, cannot be used. It cannot involve slaps or blows to the head. These are all grounds that will not be allowed or saved under section 43 and will be considered assault under the Supreme Court's decision.
Furthermore, the Supreme Court set out some guidelines for determining whether an action would be saved under section 43. One of those is that the person applying the force must intend it to be for educational purposes, and the child must be capable of benefiting from the correction.
That allows for some interpretation. For example, the number two is sort of an arbitrary number, but other factors are taken into account. If the child is over the age of two, or has a disability or is not capable of understanding the discipline was for correction, then the offence would not be saved under section 43.
Thus, there is strong protection for children as a result of the decision of the Supreme Court of Canada.
There are sections of other acts that protect children. Every province has child and family services legislation, which provide strong protections outside the criminal sphere. I have included in my brief three examples. These allow a child and family services agency to apprehend a child, if they fear the child is in need of protection because of physical violence or even emotional abuse.
There is a lot of protection outside the Criminal Code. As I believe was mentioned in the presentation yesterday, those acts would not need to be changed, even if Bill S-21 were passed and section 43 was removed from the Criminal code. We see that those protections are extensive.
A great deal of research has been done on this subject. I have included with my written presentation three major documents. In an attempt to provide a summary of this material, I contacted Dr. Larzelere, who is one of the main experts who appeared in the case, and asked him to prepare a short letter for the benefit of the committee. Dr. Larzelere is with the University of Nebraska medical centre. I encourage you to read his letter, which I believe provides a good summary of the evidence.
Dr. Larzelere is a recognized expert in the field. He has published dozens of studies and papers on this matter. In fact, when the American College of Pediatricians did a presentation to the UN, he was the person who wrote the brief and did the study.
As is usually the case with professors and different experts in the field, there is disagreement on the subject. Dr. Larzelere is an expert, as is Dr. Baumrind, whose briefs are included in my material. Dr. Baumrind is a professor at the University of Berkeley in California.
The evidence as to whether spanking is harmful is inconclusive. When applied in a moderate and reasonable way, for example, two smacks to the bottom — not done in anger — there does not seem to be any evidence to show that spanking causes harm to children.
What we see in most of the studies that show harm to children is that violence is lumped together under one category. No one is suggesting that violence in any shape or form should be condoned. There certainly needs to be some discrimination as to how it is done.
There has been much talk of Sweden and other European countries. In Sweden, their campaign against spanking started considerably before they actually made it illegal. Even when they made it illegal, it was not a criminal sanction. In fact, by my last count, only about a dozen of the 191 countries that have signed the Declaration of the Rights of the Child have made spanking illegal. None has made it criminally illegal. It has been done through child protection legislation and similar measures. If this bill were to pass, we would be the first country in the world to make it a criminal sanction, and arguably put parents in jail for spanking their children.
Social science research involves many different factors. You really cannot have a conclusive study where you take one child, spank her or him, and then take another child and not spank them. Obviously, that would not be appropriate.
It is interesting to note that in Sweden the incidence of violence and abuse of children by parents and the incidence of violence and abuse between children increased after spanking was outlawed. The numbers did not go down as was thought would happen. They went up. This is of concern.
Of course, this certainly does not prove anything. However, it is interesting that rather than reduce violence, it increased violence, both in terms of abuse by parents, as well as in terms of violence between children.
According to the evidence filed by the Canadian Foundation for Children, Youth and the Law, the applicants in the Supreme Court of Canada decision, at that time, 75 per cent of parents in Canada used some form of physical discipline. What we are looking at here by passing Bill S-21 and removing section 43 is making 75 per cent of parents in Canada criminals. The number may have gone down since then, but we are talking about a statistically large amount. That obviously raises huge concerns.
There is a significant amount of jurisprudence on the subject of children and the family. We are not parental rights advocates; we are child advocates. We believe that the family is important to a child's development, that children develop best in a family, and that we must be careful when we intrude upon that family sphere.
We see the law throughout the jurisprudence as being reluctant to intrude upon the family. I have quotes that I have included in my brief.
The law also recognizes — and we must be very careful of this when we are dealing with child rights — that children are equal under the law, but they are not the same. Throughout our jurisprudence and statutes, we see that children are not treated the same. The obvious example is that children are forced to be educated. This would not be legal for adults. This would be false imprisonment in a civil context or wrongful imprisonment in a criminal context. It would not survive under the Charter. You could not force adults to attend an education program unless they had committed some crime. Yet, it is essential that we force children to be educated. We see how children are in a different setting than adults and they need to be treated equally but that does not mean treated the same.
Parents also have a strong obligation in many regards to their children, and education is one of them. I deal with home education. Many parents are criminally responsible if they do not — or certainly under education statutes — educate their children. There are many other areas where the parents are responsible and have positive obligations towards their children. We need to be careful when we limit parents' abilities to educate or control their children.
I will finish with a quote from the Supreme Court of Canada. I am more than happy to talk about this judgment because it goes into many aspects that may be of concern. This is a quote from the majority of the court. The court wrote as follows at paragraph 62:
The reality is that without s. 43, Canada's broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute ``time out.'' 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.
Those are my submissions. I welcome any questions you may have.
[Translation]
The Chair: In 1991, Canada ratified the United Nations Convention on the Rights of the Child, which, in Article 19, explicitly protects children against all forms of physical or mental violence, injury or abuse.
Canada submitted two reports in application of the Convention. In response to Canada's second report, the United Nations Committee on the Rights of the Child affirmed, in October 2003, that it noted with deep concern that the State-Party has not adopted legislation to the effect of expressly prohibiting all forms of corporal punishment and has taken no action to repeal Section 43 of the Criminal Code, which authorizes corporal punishment.
This international Convention is obviously important to Canada. It also benefits from considerable influence and, according to the United Nations Committee, Canada still has not implemented, in its domestic law, all of the legal standards arising from our country's adherence to the Convention.
On page 9 of your presentation, in number 35 of your document, you affirm that, of the 191 States-Parties to the Convention, very few have reformed their domestic law. You also maintain that, instead, the civil law and family law have been the object of reforms in the States which have opted for legislative changes.
Do you have an example in mind where a reform of criminal law would have been necessary to meet the international requirements?
[English]
Mr. Faris: There are two thoughts on this subject. The first one is that the Supreme Court of Canada did look at the Convention on the Rights of the Child in Canadian Foundation for Children, Youth and the Law case. The court wrote at paragraph 33:
Neither the Convention on the Rights of the Child nor the International Covenant on Civil and Political Rights explicitly require state parties to ban all corporal punishment of children.
Admittedly, the decision from the UN body came out after that. However, the court did look at that section and they found that it did not apply to this situation.
I will reference one more affidavit although it is not included in my brief. It is an affidavit from one of the main Canadian diplomats who attended and drafted the convention.
The Chairman: What is the name of the diplomat?
Mr. Faris: The diplomat is John T. Holmes. I would be more than happy to provide the affidavit.
Senator Hervieux-Payette: What is the date of the affidavit, please?
The Chairman: We will it have distributed to all of you.
Mr. Faris: He stated that the drafters of the convention did not intend to outlaw corporal punishment.
We see two very strong statements stating that they did not believe that corporal punishment is prescribed by that section.
In response to the second part of your question with reference to criminal law, I am not aware of any criminal laws in the world that outlaw spanking. Ones that do would be children and family services type of thing stating that spanking may be harmful or it may be a public awareness type of document. I do not have any of those with me today, but if you would like, I could find some examples of that.
Senator Mercer: You quoted a large number of experts, and I get nervous when people start quoting experts. Where I come from, an expert is defined as a guy from out of town.
The difficulty we have as legislators is to do the best we can for Canadian society, especially for those who are least able to act for themselves or on their own behalf. In this case, we are talking about children.
I find it curious that an organization such as yours would not want us to err on the side of children in giving them the most protection possible. I am struggling with that. That is one of the reasons I like this bill; if we are going to err, I would rather those mistakes be ones of compassion and concern than ones of neglect and ignoring the realities of what is going on in this big bad world. We do make mistakes. We have before, and we will again.
Mr. Faris: One of my biggest concerns and the reason we are here is because we do not believe Bill S-21 errs on the side of children but that it is actually harmful to children. This is because we are not in a situation where we can say, ``Stop any physical harm or any physical application of force to children.'' We cannot just make it stop. We have to apply penalties.
My concern is that we will see 75 per cent of parents put in jail. This is an extreme example. However, under the law strictly applied, that is what should happen. If 75 per cent of parents spank and the laws require that criminal sanctions be brought against anyone who spanks, then we are looking at parents in jail for applying two smacks to the bottom. That is why we believe that section 43 is needed for families and that Bill S-21 is not erring on the side of children but is actually harmful to them.
I said this at the beginning and I cannot state it strongly enough: This is not a debate over whether spanking is good or bad. We have no position on that. In fact, we have no problem with public education campaigns that seek to encourage parents to use other forms of discipline. We are concerned about putting parents in jail.
Senator Mercer: When we adopted gun control, police were going to be raiding houses to seize guns. You are suggesting Bill S-21 does not err on the side of the children, and I think it does. That is where I want to be.
The Chairman: The legal aspect is also important. That is Mr. Faris' message.
Senator Ringuette: When you state that 75 per cent of Canadian parents would be put in jail, you seem to have little trust in parents.
I have been going through your written presentation, and I have not seen anywhere what you verbally stated a few minutes ago; since Sweden has begun spanking, there has been an increase of violence by Swedish parents towards their kids.
Do you have any facts to substantiate that statement?
Mr. Faris: Yes, I do. I can provide quite a bit more resource on this.
Senator Ringuette: I do not want a statement. I want a study that proves what you have said to us in your statement.
Mr. Faris: I will provide Statistic Sweden's actual results to you.
Senator Ringuette: Thank you. I do not want to take that statement for granted.
The Chairman: That document will be distributed.
Senator Ringuette: You said that Bill S-21 is harmful to children. With all the documentation that we have been given, I see no proof that Bill S-21 is harmful to children. Could you please tell us how this is so?
Mr. Faris: I would be glad to. Bill S-21 is harmful to children because it threatens to put their parents in jail. As we have seen, children do best in a full family. A child's benefits are not served if their parents are in jail.
In addition, even if the parent is defended successfully, if they go through criminal prosecution, which is what this is, they have to go through the whole expense of retaining a lawyer and defending the case. I can almost guarantee that the family services would remove the child from the home if the parent were prosecuted. There would be tens of thousands of dollars in costs and possibly years, certainly a year, in terms of disrupted lives.
As the Supreme Court of Canada describes it, criminal law is a blunt instrument. They have actually said that removing section 43 of the Criminal Code would be harmful to children. That was their conclusion and I have several quotes from the court stating that conclusion.
Senator Ringuette: It is your right and privilege to have the views that you hold, but you seem to have little faith in the people that deal on a daily basis with family situations such as social interveners, police authorities, et cetera. You seem to be questioning their ability to judge a situation, and that only a parent is able to do that.
We see in the media almost on a weekly basis situations where we thank God that these law enforcement officials and social interveners are there to help children. I respect your opinion, but I do not share it. Thank you.
Mr. Faris: I would like to express my deep respect for law enforcement officials and for the various child and family service workers that protect our children throughout this country. I do not want to disparage them in any way. I really believe they have one of the hardest jobs in this country. I sympathize with them.
In regards to the idea of prosecutorial discretion, the idea that we can make something illegal and then leave it up to law enforcement officials to determine what they will prosecute is of concern to us.
The Supreme Court of Canada, on numerous occasions but directly in this recent case, has said that this violates the rule of law because in a country that follows the rule of law, citizens are supposed to be bound by laws, not by the decisions of individuals. We see that these decisions will vary across the country not because there is anything wrong with the officials, but simply because they have to interpret it in a difficult situation.
I would like to quote the Supreme Court of Canada majority decision. It is paragraph 16 of the majority judgment in the Canadian Foundation for Children, Youth and the Law before the Supreme Court of Canada.
This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving ``basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Those are the Supreme Court of Canada words, not my own.
Senator Andreychuk: I want to thank you for your very thoughtful brief.
Do you have any statistics on the number of children in care with respect to any violence of any kind used by parents?
My point is that I still believe that parents are the best resource children have and that when we take them into care, we can create as many problems for the children as we are trying to solve.
We have problems in foster homes and we have the added problem that we do not have resources for those children we want to take into care. I certainly dealt with children who were moved from temporary care to more permanent care to out of that care, and would be moved five and six times from one place to the other.
When I look back at the cases, the initial incident that took the child into care was difficult, but what we did after was even more difficult for the child. I do not see that as being a panacea.
I would still like to know how many children are taken into care as a result of violence. In other words, are we doing the job today to protect children to ensure that they are not being left in homes where violence is used as opposed to spanking?
Mr. Faris: I do not have those statistics on me, but I would be more than happy to get them and provide them to the committee.
Unfortunately, I do not have these studies with me either, but we see increasingly recognition in child welfare departments that children are best in their home, as you mentioned. There are certain circumstances where they have to be taken out of the home, but those are always less than optimal circumstances. I know that is generally the prevailing view in child and family service agencies today.
Senator Andreychuk: You mentioned Sweden. Sweden has not put the Convention on the Rights of the Child into its national law. In other words, they are not bound by the Convention on the Rights of the Child. They use it as a guideline. They try to be in conformity with it, but they have not taken the convention and made it national law.
Have you studied Norway, which I understand has incorporated the Convention on the Rights of the Child as national law?
You pointing out that there have been increases in violence in Sweden since they started a campaign of no corporal punishment. I would be interested to know if you had any statistics on Norway, where they have followed the convention, the letter of the law.
Mr. Faris: I do not have any of those statistics with me. Again, I would be happy to find them and provide them for you.
Senator Andreychuk: Have you used them at all?
Mr. Faris: I have come across them, but I cannot recall other than that they generally supported the position I am taking. I would like to be able to answer you more directly on that one with specific statistics.
Senator Andreychuk: If you stand back from the Supreme Court of Canada decision, do you feel that the court really is evolving on this issue?
Fifty years ago, it might have been more the norm of the day to exercise corporal punishment of some sort. Today, it is less likely by parents, less acceptable by parents, but not totally excluded as a means of discipline.
Do you see the court evolving or do you believe that this was a definitive position?
Mr. Faris: Absolutely, I see the court evolving on this subject. In fact, the Supreme Court of Canada specifically said that in determining reasonableness under section 43, the court has to look at societal views on the subject.
Where we are now is very similar because the Supreme Court of Canada only decided a year ago. If society was universally opposed to any form of spanking, I would expect the Supreme Court of Canada to recognize that in section 43. Certainly, there has been an evolution and the Supreme Court of Canada has specifically mentioned that should happen.
Senator Andreychuk: The reason I say that is that I would be an advocate of the Canadian government expending a significant amount of its resources in educating the public to use alternate forms of discipline and to diminish the use of corporal punishment to extinction. As we know, that would take an incredibility amount of education. At present they are making good efforts, but they are not sufficient or broadly based enough.
I am going back from my experiences. We have a lot of work to do in the Aboriginal community. We have many difficulties to address with young mothers, and teenage suicide. If we actually started to address those problems and had an overall campaign that was constant and consistent across Canada to stop corporal punishment, would we be better off.
Mr. Faris: Absolutely. I believe the best way to go is to have a public awareness campaign and that would change people's views. Once people's views changed, then the Supreme Court of Canada's decision on what is reasonable and allowable under section 43 would almost certainly change as well. That is my reading of the judgment, that they would change in accordance with societal views on the subject.
Senator Andreychuk: We have signed and ratified the Convention on the Rights of the Child. However, we have not incorporated the convention into a national law.
Would your views change, and would perhaps the Supreme Court of Canada's view change, if we had actually put the convention into law?
Mr. Faris: I can remember one of my professors arguing that there was no such thing as international law, the reason being that it is a treaty. It has no force or effect in Canada other than once the government agrees to it, they are bound, as between countries, to enforce it.
However, individuals outside of NGOs really have no standing. If the UN Convention on the Rights of the Child was incorporated into national law, then it would have direct legal standing in the country. Depending on how it was incorporated, whether on a provincial or federal level, or even within the Charter, then it would influence how the courts would view it. That would be very, very different.
Senator Andreychuk: I will leave to another day whether there is such a thing as international law. One of our other committees is struggling to get law professors and others to understand international law as it currently is, not as it was 20 years ago.
You indicate that we would be in a better position to adopt a universal standard of what the act says about corporal punishment, if we were abiding by it fully through our national law.
Mr. Faris: Absolutely. I did not mean to imply that I do not believe in international law.
Senator Milne: Mr. Faris, you say the Supreme Court is evolving. Do you think the court's decision would have been different if the United Nations resolution had come down in time for them to consider it before they rendered their decision?
Mr. Faris: That is a difficult question. I suppose the honest answer to it is that I do not know. I do not believe it would have changed their position. I say that because our Supreme Court is obviously well versed in the law and in the interpretation of the law. The judges of that court have to make decisions that are best for Canada. They had before them all the sections of the Convention on the Rights of the Child, as well as all the international treaties that would bear on this issue. They addressed them directly and stated they did not believe that any of those international treaties, including the Convention on the Rights of the Child, required them to outlaw corporal punishment. That is my conjecture.
Senator Milne: Fair enough.
You quoted the decision of the Supreme Court of Canada as saying that removing the section would put too much discretion in the hands of individuals. How do you react, then, to the 2004 decision of the Ontario Superior Court, in which the mother clearly broke two of the criteria of the Supreme Court when she publicly slapped her teenage daughter in the face? Perhaps our present situation now puts too much discretion in the hands of courts and they are not following the Supreme Court decision.
Mr. Faris: This is of concern concerning the courts, police officers and child enforcement workers not following the law. We heard yesterday about a child who was beaten when she was young. She went to the police but the police did not believe her.
The important thing about these things is we see law officials and courts not following the law as it is now. If they are not following the law as it is now, how will changing the law help them to follow it? We need better education programs for our enforcement officials so that they can be better versed in their obligations and rights.
For example, we need further education for family child and service workers and police officers explaining that parents may not beat their children, that they may not use objects, that they may not perform these heinous acts, which we see are already proscribed. I believe that would be much more helpful to ensure the safety of children than changing the law when we see it is not always being followed.
Senator Milne: You spoke about Sweden and the statistics there. I find quite disturbing the fact that, statistically, spanking has increased since they brought this new act into play.
Would you not expect it to go up? If it were suddenly made illegal in the country, would you not expect there to be more reports?
Mr. Faris: Yes, that could very well be the case. We really do not know why it has gone up. There is some information in Dr. Larzelere's letter, which I presented to the committee. He sets out an opinion on the statistics involving a Swedish study. I will forward that study to the committee.
What we saw in Sweden is that the public education campaign began quite a bit before spanking was outlawed. There was a great deal of awareness of this matter before the law was changed.
Senator Milne: Did they do testing in the interim period to see if reports of violence were starting to go up before they changed the law?
Mr. Faris: Yes. In fact, the incidence of spanking went down considerably before it was outlawed in Sweden. That was as a result of the public education campaign.
Senator Milne: Then did it go up beyond the previous level afterwards?
Mr. Faris: It increased, not in terms of mild spanking but in terms of violence and abuse. In terms of the violence between children, that would never have been allowed anyway. That should not have been affected.
Senator Milne: I have a question for you, whether it is legal or not. Is spanking good or bad? Are there any studies that would allow a policy that says spanking is good?
Mr. Faris: Senator, I will do my best with your question. It is a difficult one. It is one that would depend upon whom you ask.
When we were dealing with this issue both before and after the Supreme Court decision, I found it interesting to hear people on public talk shows discuss whether spanking is good or bad. I am not sure it will ever be something on which we will have a 100 per cent decision one way or the other.
Senator Milne: What I need, though, is some policy reason that says, ``Leave section 43 where it is.''
Mr. Faris: Leading advocates for and against criminalizing spanking presented before three levels of court. They brought forward all the leading experts who know about this stuff. The court looked at all these experts and, based upon their expert reports, came to the decision based upon its belief that these actions are not harmful to children while other actions are.
At the trial level the judge set out what most experts believe is harmful and what is not harmful. It was after analysis of the greater evidence that the Supreme Court decided what they would and would not allow to happen.
I suppose the greatest debate we have to date has led to the Supreme Court of Canada decision.
Senator Milne: That leads me back to the fact that the decision is not being followed.
Senator Pearson: To add to the general discussion, I wish to make a couple of comments about what you have just said. First, I wish to address the issue of Sweden.
Senator Andreychuk and I were in Sweden as members of our human rights Committee. There has been a great deal of change in the demographics of Sweden. I do not think we can make any statement about the increase or non- increase in violence without taking into account this very large influx of refugees. That is what is incorporated in that study. I do not think we can use Sweden as a good or bad example. Our challenge is our issue here at home. You mentioned John T. Holmes and I know him well.
In the development on the Convention on the Rights of the Child, it was hoped that it would become universal, which in fact it virtually has. Therefore, there were huge cultural issues. No one said explicitly that corporal punishment would be banned. That is why it is not in there and not in the covenant. Corporal punishment is only one potential form of violence; they were not prepared to go there. I think they were correct. They talked about was two articles in the convention, article 19, which concerns violence against children, and the other was that no punishment or discipline in the school should impair the dignity of the child. It was a question dignity. Those are the issues we have here.
It is not a question of proscribing or not proscribing. The core of the issue we are discussing with this bill and with our discussion here is how to diminish violence against children.
Section 43 has taken on a life of its own. The discussion has gone beyond a legal issue and has become something much more symbolic. That is why people feel so strongly about the issue.
We can argue this matter on legal grounds and a good deal of the arguments that have been put forward are at least sustainable on both sides.
A new national incidence study on child abuse and neglect is coming out this week. Unfortunately, that study will show that violence against children is increasing in this country. We now have that data. We are deeply concerned and we need to figure out ways to diminish violence and neglect.
I am sympathetic to not having excessive interference in family life. We know that many cases of abuse come from alcohol use and other issues.
I agree with Senator Andreychuk that we need more resources to help families conduct their responsibilities in raising their children. There will always be a core of families where nothing we are able to do will protect the child.
This is an issue that has been in my mind since 1979, the International Year of the Child, when I was the vice chair of the Canadian commission. We called for the repeal of section 43. That was 26 years ago. I have always felt that it is symbolic. I see the repeal of section 43 for its symbolic value. We have had people in front of us who have suggested that a repeal of section 43 will not have the kind of impact that is being suggested. You will not reach 75 per cent of Canadian families. That will not happen.
I know that the argument that we are criminalizing corporal punishment. We are basically removing the defence. There may be other ways than the Criminal Code to allay the concern that no one is prosecuted improperly. The defence of necessity has been addressed.
In a sense, this becomes an argument between evolution and acting now or acting more slowly. That is the argument. In my view, the argument is not to retain this forever and ever, any more than we retained the defence of hitting your wife. Children should be protected in the same way that all human beings are protected.
This is not really a question, it more a comment. I want to ensure that we understand what the debate is really about. I do not know if you have some kind of response to what I have said.
Mr. Faris: I agree that abuse of children in Canada needs to be stopped. I support anything that would stop that abuse. The problem is that abuse is already a violation of the law. My concern is that if we change the law that will not help the enforcement, it will only increase the range of people who are not being punished under it. At the same time, it would potentially punish people who perhaps should not be punished.
Madam Justice Arbour, in her dissenting opinion, recognized the necessity and de minimis defences. I am looking for the response from the majority of the court. The problem with both of these defences is really two-fold. First, they are rare things in law. Most lawyers had to go back to their legal textbooks to figure out what these things were or how they were applied. Necessity is basically that the situation forces you to act. A child is in the street, about to be run over, you grab the child out of the way. That might be necessity. That is technically an assault, but necessity requires you to act in the moment. The necessity defence would not apply to any sort of spanking or the two swats to the bum example would not be defended under necessity nor de minimis. Basically, the idea is that the court is saying, ``Do not waste our time with trifles.'' By removing section 43, this will not be considered a trifle. This is something you need to look at.
Typically, the de minimis defence is not developed in Canadian law. The Supreme Court mentioned that both are problematic and that we would certainly see prosecutions and problems if we rely on those two issues.
Senator Pearson: Do you know how many times section 43 has been used?
Mr. Faris: I do not have that number. It is used quite a bit, sometimes successfully and sometimes not. If there is abuse by a parent, the lawyer looks for a defence and section 43 invariably comes up. Where it is abuse, it is obviously not successful.
Senator Pearson: You have been very generous in offering data about other things. Can you get data on that subject?
Mr. Faris: I can try. I estimate the number is in the thousands and possibly tens of thousands of cases. The criminal law informs child and family welfare statutes.
When the child and family services is involved, they try to get the family to stop using any forms of physical punishment. I have seen judges' orders where, if there has been an incidence of abuse in the past, the judge may order that the family not use physical punishment in any form.
This defence often comes into effect in child and family services. I will try to find the information concerning criminal trials that have referenced child abuse.
Senator Andreychuk: Senator Pearson has pointed out that there will be a report released next week. It would be very helpful if that report were circulated to us. The issue of abuse and children is now bullying and the abuse between children. I want to know whether this abuse has accelerated with parents or in institutional care.
Senator Pearson: Some of the bullying data has turned up information that the kids who bully tend to be ones that have received corporal punishment at home.
Senator Andreychuk: If we could get that, it would be helpful.
Senator Cools: I would like to thank the witness for appearing before us. I would also like to thank you in my personal way for the good work you do for the Home School Legal Defence Association of Canada. I know the organization very well, and it is doing marvellous work.
You have clarified a couple of issues for me. One is the phenomena of international law. International law is about treaties and not law where a body of people elected by the population sit down and make a decision as to what would bind them. International law has become a runaway phenomenon where people are using so-called international law to remake the world in their image and not in the image of those who have been elected by the population. I thank you for putting that on the record.
What we are talking about is the imposition of treaties between sovereigns. A treaty is an agreement between two kings, between two sovereigns. What we are talking about is bringing that in and imposing that on an unsuspecting country. These issues are very noble, but when it is with reference to matters like the creation of international criminal courts, it really bothers me because the jurisdiction is very, very questionable. The cases are indicating this, especially in the case of Milosevic, but that is neither here nor there.
I would like to deal with the question that you clarified: Why the removal of section 43 would be harmful to children in the long run.
Many are no longer aware that in previous times, when women were imprisoned for crimes not related to the well- being of their child, if those women were pregnant, they were allowed to have those babies in prison. They were allowed to raise those babies in prison. People do not know that the prison system allowed the child to live in the prison with the mother for many years thereafter.
There was a very famous inmate in the Ontario system who himself was born in prison. It is an interesting story. Even at that point, the system contrived to keep the family together. I belong to that group. The practice has fallen into disuse, but I thought it was a good policy on the part of the correctional systems. We are doing the opposite now in our system.
You pointed out that when a prosecution is invoked on a parent, first you have the ungodly expense of hiring lawyers and in addition to that, the child is removed from the home. The parent awaiting trial cannot contact the child. This is happening in our domestic assault systems.
On a side note, mothers are more abusive to children than fathers in these bad cases. The evidence points in that way.
These variables combine to pressure the accused to plead guilty so that some prosecutor or data collector can say, ``Look at the amount of convictions we have.'' I have watched this happen in these so-called domestic assaults situation.
This is one of my concerns. I have worked in the field of family conflict, and I know that success comes by working with the whole family as a unit. That is the big danger.
The second big danger, as any person in the child protection field can tell you, many of the complaints that go forth to the child protection agencies are false. On another committee some years ago, we had a witness from a particular children's aid society who testified that a huge number of claims and allegations turn out to be false. The mere fact that they turn out to be false and only established as such after extensive investigation is in itself proof of the potential for immediate prosecutions. These prosecutions will succeed because these other variables will combine to pressure the innocent to plead guilty.
None of these things have anything to do with the well-being of the child. They may have something to do with vindictiveness, reprisals, or retribution, but that child is still left there in a very sad and terrible state.
Madame Chairman, I do not know if we could get some witnesses to speak to what is happening in these circumstances. The pressure will be on the prosecutors to prosecute more rather than less. This is why I believe we should not have an existing situation where we are relying on the faith of prosecutors, but we should rely instead on the law.
The Montesquieu types had a saying: To be governed by laws, not by men. That was the old notion, except it is men who administer laws, so you have this situation.
If you have any thoughts on that, I would like you to comment. I have known many parents to be in bad circumstances with children and do a remarkable turnaround. We are also quite often deceived, but I do not believe that one slap should have the effect of branding a parent or grandparent as ``abusive.''
Senator Pearson is quite correct: The real issue is not who is for or against corporal punishment; the real issue is how one should proceed. I agree with the Supreme Court who stated that the Criminal Code is a blunt instrument. I thank you for that statement.
My reading of the development of criminal law has always cautioned that you do not invoke it against your population. It is really a question of the exercise of power against your subjects. It is the power of the king as against his subjects. It is a process that we should rarely revert to and with great circumspect.
I am sure you know where I stand on many of these issues. My concern is that we will quickly get into a class war because many of these problems occur in certain segments of the community. We are talking about bringing laws that apply to the working classes.
This bothers me deeply. I spent a lot of time trying to advance and to work with these people. I am glad that you have brought forward these questions for me.
I wonder if you have any data or information particularly about the phenomenon of vexatious and malicious prosecutions and the use of abuse of child claims as vindictiveness, even between neighbours.
As common as it is, there is little documentation. It is very common, but there have been very few studies on this phenomenon. I know because I embarked on very extensive studies of false accusations.
Mr. Faris: I have run across that personally in my own practice. I am not aware of any statistics on this subject. The problem is that child and family services' referrals are protected by privacy. That is the basis — that someone who makes a referral to child and family services is protected by privacy. Their name is protected, and no prosecutions can be brought against them. It makes research on this subject virtually impossible unless you can get someone who has worked extensively in the child and family services field to comment on it. Through no fault of their own, it is unlikely that someone who has spent their entire career in a field is going to come out and speak against it in that regard. I am not aware of any statistics on that other than anecdotally.
In regard to false accusations, it is of considerable concern. I did not believe how often it happens before I got into practice and actually saw it myself. When neighbours have a dispute, they typically refer to two things if they really want to get back at the other one. They either refer them to animal rights groups and say they are beating their dog, or they refer them to child and family services and say they are beating their children. It is very unfortunate because these are avenues that need to be kept open to protect children. However, time and again, we see them or I have personally — this is anecdotal evidence that I have experienced myself — seen it abused by people who are angry with each other. That is certainly a concern.
When that does come up, it is very disruptive to the family. It might be an allegation of sexual abuse or terrible physical violence and they have to follow up on the allegation. It is very disruptive to the family and it tends to separate the spouses because the other spouse may not be sure whether the allegation is true or not, particularly in the case of sexual abuse. You could have the father charged and the mother does not believe it happened, but there is no real proof. How do you ever know for sure?
There is a substantial amount of family discord. It is very traumatic for the children because they are very often young. Especially in cases of extreme physical or sexual abuse, a strip search or a visit to an unknown doctor may be needed to determine if the allegations are correct or not, which is obviously very difficult for the child. False allegations are a huge concern.
We see that in our work with home schooling. Very often neighbours see that children are not in school, and they call child and family services. When that happens, it is always a long process to work through it and satisfy child and family services as to whether there is a legitimate concern in that family.
Senator Joyal: Mr. Faris, do you have the 1995 UN Committee on the Rights of the Child with you? Paragraphs 14 and 25 seem to deal with the fact that Canada would still have section 43 of the Criminal Code. That would be against the interpretation that the United Nation's committee gives to the convention.
As I understand it, those paragraphs were under consideration by the Supreme Court of Canada in the decision in which you were one of the intervenors.
Mr. Faris: I have it, but not with me: I would be happy to provide that report. Was that the 1995 decision?
Senator Joyal: Yes. As I understand from the court decision, the court heard your case in June 2003.
There is another UN report from October 2003 that you might not have pleaded or alleged in your documentation because at that time the report was not published. Since the court does not have judicial knowledge of it, they might not have taken the second report into consideration.
The point I am trying to clarify is if the report of 2003, paragraph 32, is similar in substance to the report of 1995, paragraphs 14 and 25. What I am trying to check is if the fact that the Supreme Court did not consider the report of 2003 is substantially an omission in comparison with what they have taken into consideration in 1995. If the report of 2003 is just a repetition, more or less, of paragraphs 14 and 25, then the fact that the Supreme Court did not consider it is not material in the conclusion of the Supreme Court. That is the point I am trying to clarify.
Mr. Faris: The 1995 report, if I recall correctly, was before the court. This is the interesting thing about the tribunal; I do not believe that that report called for the outlaw of corporal punishment in Canada. I will get that report and supply it to the committee.
Senator Joyal: According to the excerpts that I have, the committee stated, in relation to paragraph 32 of the 2003 report in response to Canada's second report,
... that it is deeply concerned that the state party has not enacted legislation explicitly prohibiting all form of corporal punishment and has taken no action to remove section 43 of the Criminal Code, which allows corporal punishment.
In other words, if the committee is concerned that the state has not enacted legislation, it means that they requested it in their previous report. That is the way I interpret it.
The fact that the Supreme Court did not consider the 2003 report did not change their decision. That is an important point in understanding that the proof that was in front of the nine justices of the Supreme Court was essentially the interpretation that the United Nations commission gives to the Convention on the Rights of the Child in relation to section 43.
The judges might have reached a different conclusion if they had seen the 2003 report. Personally, that is what I want to satisfy myself clearly on in reading paragraphs 14 and 25. That is why I ask the question.
Mr. Faris: I will obtain that report and I will also put a note specifically responding to that question with the report.
Senator Joyal: It is specifically paragraphs 14 and 25, according to the reference I have here.
My second point follows up on the intervention of Senator Pearson, which is very accurate from the way I understand our situation. This is an evolving issue. The general attitude towards children has changed and evolved considerably in the last 20 years, especially since the follow-up on the implementation of the objective of the convention. The Supreme Court has given a very narrow interpretation to section 43. As Senator Andreychuk stated, Canada must involve itself in the education process over the rights of the parents and over their attitude to using force to their children.
In order to be current in that evolution should we amend section 43 to include the parameters that the Supreme Court stated in its decision?
I have taken paragraph 6 of your brief, which took some extracts from the Supreme Court decision and section 43 would read like this:
Every parent or person standing in the place of a parent is justified in using...
I would add:
... minor corrective force of a transitory and trifling nature...
Those are the words of the Supreme Court.
... by way of correction toward a child for an educational purpose...
That is another criterion of the court.
...who is under his care, if the force does not exceed what is reasonable under the circumstances.
I would add:
... nor harm or degrade the child.
Those are the words of the Supreme Court. In other words, what would that do?
It would recognize that using force is acceptable, but it is acceptable in a limited and constrained context. That limited and constrained context would be the one that the Supreme Court stated in its decision.
I do not say that is the perfect solution because I understand the overall objective of banning all force. For a matter of principle, as some contend, the child should not be the object of force any more than another human being should. I understand that argument. On the other hand, as Senator Andreychuk mentioned, as a society, Canada has reached a certain level of evolution. The best way for us to signal where we are in that evolution would be to clearly state in section 43 the level of our evolution, which is essentially,
...minor corrective force of a transitory and trifling nature for educational purposes that cannot harm or degrade the child.
That would not meet the objective of Senator Hervieux-Payette or the Canadian Foundation for Children, Youth and the Law. However, that would have a clear educational purpose for Canadian society that there are strict limits to the use of the force and to the objectives for the use of it and to the consequences of using it.
How do you react to that idea?
Mr. Faris: That is reasonable. In many ways it would be educative. It would not really change the law. It would simply be legislating what the Supreme Court has already determined.
One of the negative aspects to that would be that the Supreme Court has stated that the concept of what is ``reasonable'' evolves. Societal attitudes about spanking, largely because of education campaigns, are shifting away from spanking. It is my expectation that 10 years or 20 years from now the Supreme Court might restrict the section 43 defence even more if societal attitudes had shifted.
If section 43 had been amended in that way, it would have the effect of freezing the definition in the law, although I suppose the Supreme Court of Canada could still write it down. That would be a reasonable proposal.
Senator Joyal: The way I read the decision and the comments, the court has tried to understand where Canadians are in relation to that situation. They expressed that in their decisions. They expressed the grey zones. It is not that clear. There is certainly a movement in one direction. Nobody would quarrel with that, but we are not there yet.
The proponents of the bill say that we need an educational campaign. We are not sure that an educational campaign will take place. We have not heard that on the removal of section 43 that all provinces will start an education campaign if they have a budget for it and it is a priority and so on.
If we are to do something useful and helpful immediately, should we not do that?
Mr. Faris: That would be reasonable. The proposed amendment would need to be studied more extensively. Ball parking, it would basically legislate what the Supreme Court of Canada has said.
The comment about the education campaign raises many concerns. Our organization interacts on a legal basis with parents who home school their children. We have made a point to, whenever a family calls us or if we are interacting with someone, if it is possible, to make them aware of the Supreme Court of Canada decision and what the law is and where it stands at this point. It is amazing that no one really knows about it. We have been quite successful in educating our members and letting them know about behaviours.
My concern is the same as yours. It is always said that there would be an educational campaign, but if there is not, then problems will certainly arise.
Senator Gustafson: My question came out of a phone call that I had this morning in relation to education and the importance of it. Senator Joyal has put his finger on the subject.
I was talking to a representative of the Canadian Wheat Board and he said his biggest concern is suicides on farms. There have been four suicides near where I live because of the pressures of agriculture. He tells me he is getting these phone calls every day.
With these agricultural pressures we see family violence, poverty and other problems that we have not looked at in society. We have to start looking at what is causing these things to happen, where there is abuse of children, and so on. You cannot tell me in a home where a father commits suicide that there is not pressure in that home that may have gone on for three or four years.
I was surprised that Aaron Gross, who is our representative of the Canadian Wheat Board in that area, raised that with me. He said, ``Len, I hate to pick up the phone any more, because I have pressures and pressures and pressures.'' He said, ``One farm group says go this way, another one says go that way.'' ``They are not getting their message out to the Canadian people.'' ``They have closed their eyes and ears to the problem.'' ``They do not want to hear about it any more.'' I agree with him.
Education is a big job. How will we deal with the pressures, the poverty and the things that cause the problem? To me, that is the priority. That is a statement.
Mr. Faris: That is an excellent point because there is so much extreme abuse and violence; my personal belief is that resources would be best spent on the extreme form. There are so many children in horrific situations.
As you mentioned, senator, there is so much pressure and stress on the family, and bad things can start to happen, such as suicide and violence. Those are the situations in which children are harmed, not in situations involving full and loving families who occasionally spank a child.
We can argue about whether that is good or bad. I do not take a position on it, other than to say that I do not believe it is good to criminalize spanking. We need to focus on the extreme situations in which our children are harmed.
Senator Cools: Senator Gustafson and the witness have put a human face on the problem. A couple of months back a parent came to me and said her child was nearly hurt because she threw something at her child. That shook her into consciousness. As a result, she will be okay for the future.
We have to understand that human beings are living in the real world, barely eking out a living, living paycheque to paycheque. There are lots of stress problems. I strongly believe that you do not involve the Criminal Code unless the behaviour is egregious.
Senator Pervious-Payette: Since you start your brief by saying that you are strongly against child abuse and violence against children, I wish to refer you to the Canadian Incidence Study of Reported Child Abuse and Neglect published by Health Canada that shows that the overwhelming reports of physical abuse start as corporal punishment.
We also have a document from a U.S. group called Violence and the American Family. The board of this group is made up of people from the departments of psychology from Harvard, the universities of Massachusetts, Miami, Wisconsin, Johns Hopkins, Kansas, Chicago and California. All of that to say that it is really made up of people from all across the United States. In the same vein, the report states:
American culture currently fosters a perception that violence and fear-induced compliance are effective in achieving short-term objectives in controlling the behaviour of others....Religious and parental experiences with corporal punishment and child discipline also need to be considered in examining attitudes towards the use of violence against family members in American culture.
Later in their report, they state:
The strong association in the research literature between the use of corporal punishment and child abuse suggests that greater attention needs to be given to the prevention of ``spanking'' and other forms of physical discipline. In particular, health professionals need to be informed about alternative forms of discipline to guide parental behaviours.
I would like to table this report, Madam Chairman.
We have to look at the social context of Canada and the degree of violence in our societies. In a national report about murders in the United States, I see that they have 12,658 murders per year while in Canada we have 489 murders per year. If we are to put that into percentage terms, we see that they are 300 per cent more violent than Canadians.
If American specialists and our own government are reporting that child abuse starts with mild corporal punishment, I would like to know why you continue to say that we need section 43. After all, more or less, section 43 is the justification for parents to continue spanking.
Unless you can send us another report, there is not one single report that tells us the positive aspects of continuing the use of corporal punishment.
Mr. Faris: I strongly urge the Senate to call Professors Larzelere or Baumrind. That would be very helpful. Professor Larzelere is quite aware of this situation. It would be very interesting and informative for you to talk to him. I am not a social science researcher. I have attempted to inform myself on the subject, but he would be the best one to respond to your question, senator.
There has been a major problem with all the research because the terms themselves are very often changed. One study that calls corporal punishment ``any physical activity against a child which seeks to cause compliance,'' and other says that corporal punishment is ``two smacks to the rear with clothes on.'' We see a wide variety of definitions of corporal punishment and then studies based on those definitions. It is not surprising, of course, that we get a wide range of outcomes.
The most recent study by Professor Larzelere deals with 13 different forms of punishment, including everything from time out to yelling. It found that in terms of obtaining compliance corporal punishment tied with the top three. It was one of the top four in terms of getting the desired results. That is the newest research that has come out from Professor Larzelere on this issue.
I strongly urge you to speak to someone like him so that you extensively consider the research. He would be able to postulate situations for the committee.
Senator Cools: Dr. Larzelere began his training at the University of New Hampshire at the Family Violence Laboratory, I believe, under Dr. Murray Straus. Am I correct?
Mr. Faris: Yes.
Senator Cools: There is a huge body of knowledge out there.
One thing we should bring into these studies is the difference in racial compositions of many of these countries about which we are speaking and the levels of physicality that exist among different peoples and different ethnic groups. That quite often accounts for many of the differences.
When one is actually looking at questions such as murder, deaths and so on, one also has to understand that there are factors of deaths that are always carefully concealed. I am always of the opinion that of the 4,000 men who commit suicide every year you will find a bunch of them that were murders. You can only study what you have.
Senator Hervieux-Payette: I am certainly in agreement. Madam Chairman knows that I would like to call some Canadian experts. I will also table two studies by Professor Durrant from the University of Manitoba. Professor Durant is leaving for Sweden for the seventh time to spend the summer to continue her study of this whole question.
I have a very short conclusion from her latest study dated October 9, 2004. I think she will be able to rebut everything said by Professor Larzelere, who has never set foot in Sweden. She has spent every summer for the last seven years in Sweden studying this particular question.
Professor Durant cites available evidence that demonstrates that violence against children has declined in Sweden over recent decades. She notes that Swedish parents are less likely to strike their children as compared to North American parents and when they do, they are less likely to view these acts as constructive or necessary.
The rate of severe violence is very low in Sweden as evidenced by findings that the average number of homicides of children under the age of 5 has been four deaths per year since 1975 due specifically to physical abuse, which is almost non-existent in Sweden.
In conclusion, evidence from a number of sources indicates that Sweden has been a very successful country in reducing rates of violence against children through legislative reform and public education.
I agree with everyone on education, but I want to make sure it is on the record that the law regarding corporal punishment was changed in 1957. The law that was changed in 1979 was the law regarding the social aspect of child protection. These are two legislations that were passed, so their history is much longer than we think.
I am going to distribute two studies that I think are complimentary to Professor Larzelere's study.
Yesterday, there was a decision passed by the Council of Europe responding to human rights complaints brought against five countries. The European Committee of Social Rights has confirmed that Supreme Court judgments in Italy and Portugal do prohibit corporal punishment. Some countries such as Belgium, Greece, and Ireland were told they are in breech of the human rights obligation.
The committee's ruling is as a result of complaints submitted in 2003 by the World Organization Against Torture. This is very serious. That is why I would like to see Canada go that route and to be told to change its law because we are not in compliance with another treaty. This treaty made the case that the law in these countries failed to protect children from corporal punishment and other humiliating treatment.
They said:
We welcome these ground-breaking decisions, which should speed up moves to give children throughout Europe the same right to protection from being hit or humiliated as adults enjoy. They put Europe on the fast-track to becoming a corporal punishment free zone where children's human rights to equal protection is respected.
For me, it is not only a matter of law. The question about treaties is how they incorporate into our own legislation. Those of us with legal backgrounds are quite aware that we do not give up our sovereignty when we sign a treaty. We are always capable of complying or not complying. We have seen many countries who do not comply, especially with regards to human rights. Canada usually stands by its word and complies.
I would like your reaction. You were talking about 190 countries. I agree that the rest of the world is not going at the same pace as Canada with the development of human rights, but now there are 16 countries in Europe that will comply. You stated that this is almost non-existent. As a matter of fact, the Council of Europe is enforcing that all countries that are a signatory to them comply.
They may be ahead of other countries, but their signature has been respected. Not every country has signed the treaty on child rights.
How do we reconcile that with your position that states the Supreme Court has said that?
As Senator Joyal mentioned, the report from the United Nations was not tabled before the Supreme Court. Should we comply, or should we wait to be cited as non-compliant with another treaty?
I would be ashamed as a parliamentarian and as a Canadian if we were told we are not complying because we still permit corporal punishment.
Mr. Faris: I wanted to comment on the study by Dr. Durrant. These statistics were directly responded to in Professor Larzelere's letter, which I included in my materials.
It starts out on page 2 of his letter: Evaluation of Sweden's 1979 spanking ban. He specifically responds to this. He admits that both of them have been studying the Swedish issue, and both have come to opposite conclusions.
The reason for that is in the tables they show. Perhaps I could read a short portion of it. He first praises Dr. Durrant for being an excellent researcher. At page 2 of the letter from Professor Larzelere, and this is referring to Sweden, it says:
The only age group that was raised entirely after the 1979 spanking ban had 718 criminal assaults against minors in 1994, a 519 per cent increase for that age group from 1984, a much larger increase than for any other perpetrator age group. The second largest percentage increase were those aged 15 to 19 in 1994 who were zero to four years of age at the time of the spanking ban.
He goes on to say:
How then did Dr. Durrant conclude that the youngest perpetrators were increasing at a slower rate than older perpetrators? She did that by treating the youngest group as those in their 20s, which included the group with the smallest increase, those 25 to 29 years old in 1994.
That sort of explains the difference in those results; it depends which group you look at.
As to the 16 countries in Europe that have done this, I am at a bit of a disadvantage because I was not aware of yesterday's decision.
I have a few thoughts. As you mentioned, we are our own country, and we have to look at the issues in our country and decide what is best for us. Europe has a very different societal dynamic than we do, as does the United States. We have to look at the issues and decide what is best for Canada.
I am interested to know whether the 16 countries in Europe dealt with things in a criminal manner as opposed to children and family services legislation, which is much less intrusive than criminal law.
Senator Hervieux-Payette: Do you agree that when the Criminal Code was modified to increase the penalty for drinking and driving, or when we passed legislation such as gun control, that these legislations modify behaviour?
It is not just by a public awareness campaign that we have success. Sometimes we have to have legislative measures to change the behaviour of people.
Mr. Faris: I agree that sometimes legislative reform is necessary to change people's behaviour. There are two thoughts I would like to express in that regard.
We have a different situation than with heinous or harmful behaviour such as drinking and driving. In this situation, we have conflicting evidence from a variety of experts. We argue that this behaviour is harmful, and others would argue it is not, but certainly three levels of court recognize that moderate spanking does not seem to be harmful according to the majority of research on the subject. We are not dealing with something that is seen as or has been proven as being heinous or destructive to society.
Second, just to reiterate what the Supreme Court of Canada stated, criminal law is a blunt instrument. Yes, it would increase awareness, but I argue that making parents criminals is not the way to increase awareness. There are better and less intrusive ways of increasing awareness.
The Chairman: Thank you, Mr. Faris. Since you did not utilize all of your text in your presentation, we will formally file it as an exhibit.
The committee adjourned.