Proceedings of the Standing Senate Committee on
Human Rights
Issue 20 - Evidence - June 11, 2007
OTTAWA, Monday, June 11, 2007
The Standing Senate Committee on Human Rights met today at 4:04 p.m. to examine Bill S-207, An Act to amend the Criminal Code (protection of children).
Hon. Joan Fraser (Deputy Chairman) in the chair.
[Translation]
The Deputy Chairman: Honorable senators, welcome to this 30th meeting of the Standing Senate Committee on Human Rights.
Today, we are continuing our study of Bill S-207, to amend the Criminal Code (protection of children).
[English]
With us this afternoon we have Dr. Joan Durrant from the Department of Family Social Sciences at the University of Manitoba. She is joined by Corinne Robertshaw, Founder and Coordinator of the Repeal 43 Committee. Also with us is Ron Ensom, Co-author of the Joint Statement on Physical Punishment of Children and Youth.
I understand that Ms. Robertshaw and Dr. Durrant will be making opening statements. Mr. Ensom is here without an opening statement but is available to answer questions, as indeed we hope you all will do.
Corinne Robertshaw, Founder/Coordinator, Repeal 43 Committee, Toronto: Good afternoon, Madam Chairman and senators. Thank you for your invitation to appear before you on Bill S-207. You have already considered section 43 from the viewpoint of our international obligations respecting the rights of children and have recommended repeal.
On June 6, I filed a three- to four-page submission on Bill S-207 that recaps the main social policy reasons, as we see them, for repealing section 43; that addresses the main objections to repeal by the Department of Justice Canada and the Canadian Teachers' Federation; and that comments on recent legal reform in New Zealand and in other countries.
I will briefly summarize my submission and will be glad to respond to any comments or questions you may have.
Firstly, what are the main social policy reasons for repealing section 43? Section 43 is a 19th century approach to correcting children that reflects the belief that corporal punishment is an appropriate and necessary method of discipline. Contemporary knowledge of child development and an awareness of children's rights contradict this belief. It is time our law reflected this change by repealing section 43 and advising the public that this method of discipline is no longer approved by our law.
Child abuse is a major social problem in terms of human suffering and the financial cost of over $15 billion annually in dealing with it. Most substantiated cases of physical injury, i.e. abuse, result from attempts to discipline children by corporal punishment.
The negative emotional and psychological effects of even minor corporal punishment are indicated by research. Hitting is an assault on the mind and emotions as well as on the body.
Parents set a bad example when they hit children for correction. The example contributes to other domestic violence and the general level of violence in our society. Fear is not a good basis for self-discipline. Discipline that relies on punishment is not the way to teach children to discipline themselves.
Section 43 justifies and thereby encourages corporal punishment. Most parents who continue to use such punishment are simply following a practice legally approved in Canada since 1892. Section 43 contradicts education against corporal punishment. Your committee has recommended public education on the harm of corporal punishment and alternatives to it, and some such education exists but is contradicted and will continue to be contradicted if section 43 remains in the Criminal Code.
Law reform must be publicized to become part of the public conscience. If section 43 is repealed, this change in the law must be made known to children and the general public as well as to parents.
Second, what are the main objections to repeal made by the Department of Justice and the Canadian Teachers' Federation? Four claims are made about the effects of repeal. First, it is claimed that repeal risks prosecution for using reasonable force to protect oneself and others. Sections 27 to 41 of the Criminal Code are defences that justify the use of reasonable force in these and similar situations. Section 43 is not needed as a defence in such cases.
It is claimed that repeal risks prosecution for using reasonable force to prevent danger to children. Pulling a child away from danger in traffic and other situations or putting a child in a car seat are not assaults because assault is defined as the application of force without consent. Consent can be express or implied. The law will imply that a child consents to such force for his or her protection. Since no assault is committed, the question of section 43 as a defence does not arise.
The third objection made is the claim that the repeal risks prosecution for using reasonable force for restraint and control. Common law allows parents and teachers to use reasonable force for this purpose. Reasonable force for correction is a different common law power. Almost all section 43 cases summarized on our Repeal 43 Committee website involve hitting and not restraint.
However, honourable senators, you have the option of incorporating the power of restraint and control in the Criminal Code if you think it is necessary to reassure parents and teachers of this common law defence. We do not believe this is necessary for the reasons given. However, if your committee believes that parents and teachers need this reassurance, then this defence can be added to the code if its absence is a major stumbling block to ending legal justification for corporal punishment and if the justification for any and all corporal punishment is clearly repealed.
Fourthly, it is claimed that repeal risks prosecution for using de minimis force for correction. The fear of prosecuting parents for an occasional minor slap or spank is alarmist. Police and prosecutors use the de minimis rule to screen out charges for minor breaches of the law because such prosecutions are not in the public interest. Provincial Attorneys General can also issue guidelines to ensure that prosecutions are launched only when necessary and appropriate.
Whether de minimis can be used in court as a defence to a charge of assault has been questioned. However, a Quebec judgment in Queen v. Freedman in 2006 canvasses the issue at length and concludes that as a defence, de minimis is ``alive and well in Canadian criminal law.'' The judgment runs to 24 legal-sized pages, and I can leave a copy and a summary of it with you if you wish.
Lastly, it is important to note recent law reforms in New Zealand and 18 other countries. In April of this year, New Zealand repealed the reasonable force defence in section 59 of its Crimes Act, a defence to assaults similar to our section 43. Amendments to the original New Zealand bill allow reasonable force for control and affirm that police have discretion not to lay charges where the force used is inconsequential and prosecution is not in the public interest. This bill will come into force this month.
As your committee is aware, 18 other countries have prohibited corporal punishment. Sweden, Finland, Norway and Austria had defences in their Criminal Codes to assaults on children similar to our section 43. These defences were repealed between 1957 and 1977. The repeal of these defences was later followed with prohibitions in civil laws for educational purposes.
Other countries that prohibited corporal punishment in their civil laws apparently had no defence similar to section 43 in their criminal law, so no changes in their Criminal Codes were required.
As Department of Justice officials have noted, Sweden's assault law is narrower than ours, and a minor open- handed hit that causes no pain is not an assault the under Swedish Penal Code and therefore would not be prosecuted. Neither would such a hit be prosecuted under our Criminal Code because of the de minimis rule. In practice, the result respecting a minor spank in both countries is the same with or without section 43. I am referring only to minor spanks.
In conclusion, Madam Chairman, we very much appreciate the work your committee has done in completing your study of Canada's international obligations respecting the rights of children. We ask you to follow this up by recommending passage of Bill S-207.
The Deputy Chairman: Thank you very much. Indeed, if you would give the clerk a copy of the Quebec court decision, we will see that it is circulated to members of the committee.
Ms. Robertshaw: I would be pleased to do so.
Joan Durrant, Department of Family Social Sciences, University of Manitoba: Thank you for this opportunity to speak with you today. I will be speaking as a child-clinical psychologist and an academic whose research focuses on the prevention of violence against children.
I have studied physical punishment for 17 years and have published 25 peer-reviewed papers on the topic. I am the co-author of the Joint Statement on Physical Punishment of Children and Youth, as well as a book on corporal punishment that was commissioned and published by UNESCO. I have copies of everything for the members of the committee.
I was a member of the Research Advisory Group for the United Nations Secretary-General's Study on Violence against Children, and I have lived in Sweden for extended periods every few years to study the history, implementation and outcomes of the world's first ban on corporal punishment.
As I read through the transcripts of the hearings to date, one comment in particular resonated deeply with me. It was made by Senator Munson who said, with reference to Bill S-207:
It seems to be such a common sense, simple piece of legislation. Why do we continue to face these stumbling blocks?
Those of us who work in this area ask ourselves this question every day. I have devoted most of my academic career to trying to find an answer to this question. I would like to share with the committee what I have learned and provide information that I hope will break through those stumbling blocks.
Several arguments have been put forth to justify maintaining section 43. One is that physical punishment works, so parents should be allowed to use it; but, in fact, not a single study has demonstrated long-term beneficial effects of physical punishment.
A meta-analysis of this extensive research literature published in 2002 showed that physical punishment was consistently related to negative outcomes for children. For example, at that time, 27 studies had been conducted of the relationship between physical punishment and child aggression. All 27 of them found that physical punishment predicts higher levels of aggression in children.
Consistent relationships were also found between physical punishment and poorer mental health, poorer parent- child relationships, weaker internalization of moral values and delinquency. These relationships continue into adulthood. Physical punishment is a reliable predictor of antisocial and violent behaviour, as well as poorer mental health in adulthood. Therefore, physical punishment is inherently unjustifiable and contrary to the best interests of the child.
What if we did find that physical punishment produces positive outcomes? Would section 43 then be justified? I would ask the committee to consider whether we would allow corporal punishment of seniors if it kept them from wandering outside or motivated them to eat more of their dinner. Of course we would not. The reason is that it would violate their fundamental rights to physical security and dignity. The question of whether physical punishment ever ``works'' would be irrelevant.
A second argument that has been made to justify section 43 is that its application has been narrowed by the Supreme Court of Canada to a point where it only justifies ``non-abusive'' corporal punishment. In my view, this is an oxymoron. Not only does this idea suggest that there is a zone of non-violent violence, it is also contradicted by 30 years of research showing that most physical abuse is physical punishment. We have known since the mid-1970s that parents who abuse their children rarely intend to harm them; the majority intend to correct them. If parents believe that physical punishment is an acceptable method of correction, they are likely to use it. If the child will not or cannot comply, the punishment escalates.
The Canadian Incidence Study of Reported Child Abuse and Neglect is the latest in a growing list of studies demonstrating that physical abuse of children originates in a parent's intent to correct the child. In 2003, 75 per cent of substantiated cases of physical maltreatment in Canada were cases of physical punishment. This amounts to more than 18,000 cases in a single year. Because this study only examines reported cases, this figure is surely an underestimate.
These findings corroborate many that have gone before. For example, in a large Quebec study, children who experienced minor violence were seven times as likely to experience severe violence. By maintaining section 43, Canada sanctions an action that places large numbers of children at risk and guarantees harm to many of them.
A third argument for keeping section 43 is that it is necessary to defend against charges of assault in cases where a child has been restrained or otherwise touched. There is no evidence that prosecutions increase in countries without such a defence. In Sweden, for example, there was no change in the prosecution rate following the 1979 ban on corporal punishment. There are now 19 countries that have banned all corporal punishment. In addition, Nepal has also repealed its criminal defence. All of these countries have been able to overcome this once assumed or threatened obstacle.
More than 100 countries have no criminal defence for teachers, including all the countries of Europe. All of these countries have been able to ensure that teachers are not charged in cases of non-corrective but necessary use of force. Surely we can do the same in Canada.
Although Mr. Staple of the Canadian Teachers' Federation believes that the CTF speaks for all teachers on this issue, there is evidence to the contrary. The Joint Statement on Physical Punishment of Children and Youth, which recommends full repeal, has been endorsed by the Council of Ontario Directors of Education, the Ontario Public Supervisory Officials' Association and the Canadian Safe School Network. In addition, the Ottawa-Carleton District School Board, Toronto District School Board, Saskatoon Public Schools, and Eastern School District of Newfoundland and Labrador have endorsed the joint statement.
A fourth argument for maintaining section 43 is that without this law, children will be removed by provincial or territorial child welfare authorities from their families when their parents strike them. In fact, physical punishment is one of the most common forms of child maltreatment investigated by the child welfare system now because it is a reliable indicator of risk. In the majority of these cases, families are given support through referrals to family support services, special education programs or counselling. In the absence of other risks for abuse and neglect, the child welfare system responds in supportive ways in these cases.
However, child welfare professionals do have substantial difficulty in implementing preventive approaches because they are unable to tell parents that physical punishment is not allowed. This difficulty has only been intensified by the Supreme Court decision. An Ontario study found that child protection workers report that their work ``has become more difficult as parents insist they can use physical discipline.'' They have stated that the parents who come to their attention are often those most at risk of striking their children, and the court's decision presents an obstacle to reducing that risk. Others report that some parents believe they can do whatever they want with their children between the ages of 2 and 12 years.
Because 19 countries have now prohibited all corporal punishment of children, we have opportunities to see what happens following law reform. I will speak about Sweden first, as that is the country with which I am most familiar.
In Sweden, the criminal defence was repealed in 1957 — 50 years ago. Then, in 1979, an explicit ban was implemented to ensure that the law would not be misinterpreted. Whereas 100 per cent of Swedish children raised in the 1950s were struck by their parents, many on a frequent basis, only 11 per cent of children raised in the 1980s had ever been struck, and most of these only once or twice in their entire childhoods. There is an extremely low rate of child abuse fatalities in Sweden. The 32 years between 1971 and 2003 saw only nine children die this way, never more than one in any given year and in most years zero. Swedish youth are doing better today than they were before the ban was passed. They are less likely to be involved in crime, less likely to use alcohol and other drugs and less like likely to commit suicide. While in the 1960s a majority of Swedes believed that physical punishment was necessary, only 11 per were positively inclined toward even the mildest forms of physical punishment by the 1990s.
Similar shifts have been seen in other countries. In Germany, where physical punishment was banned in 2000, children are less likely to be slapped and beaten than they were in 1992. As we would expect, the most severe forms of punishment have declined the most quickly there. For example, the percentage of German children who had been hit with objects declined from 41 per cent to 5 per cent. Furthermore, the percentage of parents who define slapping and smacking as ``violence'' has increased. For example, the proportion of parents who define a slap on the face as violence increased from 24 per cent to 31 per cent between 1994 and 2001.
A substantial decrease in approval of physical punishment also has been seen in Israel, where the criminal defence was repealed in 2000.
Law reform works because it makes the rules clear and because it supports the rationale for civil behaviour. Currently, Canadian parents are getting a mixed message. Biological parents can hit, but foster parents cannot. Two- year-olds can be hit, but 18-month-olds cannot. Hitting with a hand is acceptable, but hitting with an object is not.
I have been heavily involved in public education on this issue, and I have found that section 43 is the primary obstacle to change. The government cannot send a clear message because it cannot contradict its own law. Professionals must tell parents that they cannot hit unless the child is of a certain permitted age, they use their hand, use minor force and so on. Public education will always be profoundly undermined as long as our law tells parents that hitting children is justified. Once Canada takes a stand on principle and states clearly that children have the right to the same protection as adults, the norm will shift and children will be hurt and harmed less.
There is now strong national consensus on this issue. The Joint Statement on Physical Punishment of Children and Youth has been endorsed by 261 organizations to date. These include the Canadian Paediatric Society, the Canadian Psychological Association, the Canadian Academy of Child and Adolescent Psychiatry, the Canadian Association of Paediatric Health Centres, the Canadian Association of Social Workers, the Canadian Child Care Federation, the Canadian Council of Provincial Child and Youth Advocates, the Canadian Federation of University Women, the Canadian Institute of Child Health, the Canadian Public Health Association, the Canadian Nurses Association, the Canadian Physiotherapy Association, the Canadian Red Cross, the College of Family Physicians of Canada and the National Council of Women of Canada. All of these organizations, in addition to about another 250, support the repeal of section 43.
This is a simple matter. It is simply a matter of basic human rights. We no longer justify this rights violation with regard to women, prisoners, sailors or any other group of adults. We, as adults, have protected ourselves. Now it is our duty to extend the same protection to children that we adults enjoy every day of our lives.
History will show that Canada was not among the first three, 10 or even 15 countries to stand up for children. Will Canada finally do the right thing for its children now, or will we wait until we are embarrassed before many more nations of the world into properly protecting our children?
The Deputy Chairman: Again, if you could leave us a copy of your book and the statement, that would be terrific.
Before I turn to senators, Mr. Ensom, did you have anything that you wanted to add?
Ron Ensom, Co-author of the Joint Statement on Physical Punishment of Children and Youth, as an individual: Not at this point, senator, thank you.
The Deputy Chairman: I understand that you support the basic thrust of what they are saying. You are in favour of the bill?
Mr. Ensom: Fully.
The Deputy Chairman: Before Senator Poy asks her questions, did you have something to say, Senator Carstairs?
Senator Carstairs: No, I did not, because I agree fully with everything our witnesses have had to say.
Senator Poy: I agree with everyone's position. This question is, in particular, for Dr. Durrant. To me, it is common sense that violence will bring about violence. If you treat a person with violence, especially children, they will grow up acting the same way and perhaps worse. Why do you think countries like Sweden are so far ahead of some Canadians in not recognizing that fact? You spent a lot of time in Sweden. Do you have a sense why that is?
Ms. Durrant: That is an interesting question, one I have spent a considerable amount of time trying to answer myself. The major factor is their long history in being at the forefront of the child rights movement. Their children's rights groups are taken very seriously and treated with great respect. They were one of the first countries to have a children's ombudsman. They were heavily involved in drafting the UN convention. The Swedes have never feared the notion that children have rights, and that is important.
It was in 1977 that the Minister of Justice appointed a commission on children's rights. Thirty years ago it was an acceptable notion in Sweden that the government would look for ways to protect, promote and affirm children's rights. That is probably the key factor. Sweden does a lot of child rights education, so that it is understood; it is not interpreted in the alarmist way that it sometimes is in Canada. There is good understanding of what it means.
Senator Poy: I find it difficult to understand why the Canadian government has not done anything about this issue. It is simple common sense, as you mentioned. We would not do the same to our elderly population; why would we do it to children?
Ms. Durrant: Exactly.
Senator Munson: Ms. Robertshaw, child abuse is a major social problem in terms of human suffering and the financial cost of dealing with it is over $15 billion annually. That figure comes from a Law Commission report, but where does this figure come from? It is an incredibly high figure.
Ms. Robertshaw: It is an incredibly high figure. It is on the Repeat 43 Committee website, under the chapter headed ``Research.'' I printed a copy of that chapter for you. The study that I am referring to is on this page, which I can leave with the committee.
The Deputy Chairman: If you could read it, it would be helpful for those watching on television. We will also ask you for the actual document so that we can circulate copies of it to members of the committee.
Ms. Robertshaw: This is a study called ``The Economic Costs and Consequences of Child Abuse in Canada, 2003'' from the Law Commission of Canada. This research paper, funded by the Law Commission, is a collaborative effort with the Department of Economics and Women's Studies, University of Western Ontario. It measures the economic costs of all forms of child abuse in Canada during 1998 and concludes that child abuse is not only devastating for the individual but also for society as a whole. It estimates the economic costs at $15,705,910,047 annually broken down as follows. Judicial costs are over $616 million — the exact figures are here. The social services costs are $1,178,062,222. The education costs are estimated at $23,882,994. Health costs are $222,570,517; employment costs, $11,299,601,383; and personal costs, $2,365,107,683, which gives us a total of $15,705,910,047. It is an important study.
Senator Munson: The recent law reform in New Zealand is positive news. You talked about amendments. Do we know what those amendments are that allow reasonable force again — that word — for control and that affirm that police have the discretion not to lay charges whenever the force used is inconsequential and prosecution is not in the public interest? Where is that line again?
Ms. Robertshaw: I can file a copy of the bill for you, which has now been passed in New Zealand. We can turn to section 4 of the bill; it is fairly short. I can read it to you.
Section 4 indicates that new section 59 is substituted. Section 59 is repealed. Section 59 is the one that is very similar to our section 43. Section 59 is repealed and the following section substituted:
59 Parental control
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of
(a) preventing or minimizing harm to the child or another person; or
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
(d) performing the normal daily tasks that are incidental to good care and parenting.
Senator Munson: That is important to have as well. As has been mentioned by Dr. Durrant, the Joint Statement on Physical Punishment of Children and Youth has been endorsed by 261 organizations. We will be trying our best, as usual, to move this section of the Criminal Code to where it should be moved — that is to repeal, from my perspective. How do you get the government's attention? Do you take 261 organizations and march them up to the Hill to rattle some cages? People come before our committee, and we do try to implement change. I just do not know what it takes for you to do that. I know you said the first step is to recommend passage of Bill S-207 by the Leader of the Opposition in the Senate, Senator Hervieux-Payette. Is that the first step or the only step? Where do you go? Have you talked to the minister?
Ms. Durrant: That is a very good question. No, I have not.
Senator Munson: Can I arrange the appointment for you?
Ms Durrant: Sure. For many people, this issue is not on their radar. It is up to those of us who understand its importance, both symbolic and practical, to get it on the radar. The consensus demonstrated by the joint statement could be one way of doing that, one component of demonstrating that this is not just some individual who has an idea but is actually a position held by the major organizations that serve children and families.
In some cases, fear is still an obstacle, so it is important to have discussion and generate understanding about what this is all about. I suspect that Mr. Ensom might have some suggestions.
Senator Munson: I am curious why it is not on the radar screen. It seems obvious to me that it should be.
Ms. Durrant: It is partly because we do not have a children's commissioner or ombudsman. We used to have the children's bureau; we do not any longer. There is really no federal body dedicated to children's issues and to implementing the UN convention, which is probably one of the reasons this committee took it on, as there really was no other dedicated body.
Many countries throughout the world, throughout Africa and Asia, have children's commissioners and children's ombudsmen, but Canada still does not, which plays a very big role. The provincial advocates are definitely hard at work on this issue, but that is at the provincial level, so it does not reach the federal government.
Ms. Robertshaw: I have a list here of about 170 organizations. These organizations have individually written the Minister of Justice over the past 13 years. We started this committee in 1994. I got in touch with a number of organizations that I thought would be concerned about this issue and asked them to write the Minister of Justice. They have done so.
Many of these have written about 110 individual letters. The others signed an open letter. We hope that you have seen over the years the open letters to ministers and MPs that have been published in The Globe and Mail, The Hill Times and one or two other papers. Those organizations have actually written, either by endorsing those open letters or writing individual letters. As I say, they have been doing this over a period of 13 years.
There is an answer I can provide you, but it is not very flattering to politicians.
Senator Munson: I am an accidental politician. I would like you to tell it like it is.
Ms. Robertshaw: Children do not vote. There are some organizations in Canada that for Biblical reasons do not want to see section 43 repealed. Those organizations are in the minority, but they are very vocal and some are quite powerful.
When there is an issue dealing with children who do not vote and you have powerful segments of society that do not want to see this section repealed, you do not see action.
Senator Munson: Liberal and Conservative governments have ignored this?
Ms. Robertshaw: Liberal governments have ignored it. The Conservative government under Prime Minister Mulroney came close to repealing section 43, and we put that on our website in a chapter called ``Political Response.''
Senator Munson: What stopped him?
Ms. Robertshaw: In 1994, when we started this committee, I wrote a brief, which has probably been filed with you. It sets out all the basic reasons that we have been hearing, which Joan Durrant and I have been repeating. There is not much action being taken, but I think people are coming around to it now. I think your committee is leading the way. We are hoping the Senate will lead the way on this issue.
Mr. Ensom: Eight private members' bills, arising from both the House and the Senate, have failed to repeal section 43. This is the ninth of many efforts.
I have worked for almost 20 years at Children's Hospital of Eastern Ontario in the child abuse program. I have seen more abused children and worked with more fractured families than most Canadians could imagine. I have thought long and hard about what it is that produces this violence directed at children and at innocent and loving members of family.
I have thought about the successful work we have done in this country at promoting health, safety and well-being. Part of the answer for me is that when Canadians obtain credible information about something that is a threat to health or about a way forward toward good health and safety, they buy it.
As a result, look at the successes we have had in public health in relation to not driving after you drink. What is the phrase that every Canadian knows? ``Don't drink and drive.'' We now protect our children from the sun and UV radiation. We protect our children from second-hand smoke. We increasingly protect all Canadian adults from exposure to second-hand smoke as a result of solid science and laws that support the science.
I believe that when we give Canadians solid information based on research that happens to make good common sense as well, and we make it clear through law that we are serious about health dangers — we are serious if you do not strap your child into a car and municipalities are now serious if you expose customers to second-hand smoke — they buy the message. When we become serious about a public health issue and the law reinforces the issue rather than cuts the legs out from underneath the educational efforts to address the issue, Canadians respond.
On page 12 of the joint statement, there is a brief summary of a Toronto Public Health public opinion survey conducted in August 2003. Ending section 43 protection for parents was supported by 51 per cent of Canadians but would be supported by 72 per cent if guidelines were in place to prevent prosecutions of mild slaps or spankings, 72 per cent if research showed that physical punishment is not effective and can be harmful, and 80 per cent if research showed it would decrease child abuse. The Canadian public said, ``If you can convince us of these things, we are in favour of repeal.'' The information is there now and common sense is resonant with the information. At the time of the poll, they were ahead of many Canadian politicians.
The joint statement was an effort to produce the evidence base that has driven change in public attitude regarding exposure to second-hand smoke, strapping people into motor vehicles and protecting people from UV radiation. The evidence regarding physical punishment will do the same thing if the Government of Canada supports the message.
We will not be effective in public education at all if section 43 continues to cut the legs out from underneath the public health messages saying, guess what parents, this does not work as discipline. Not only that, it is full of all kinds of longer-term harm that you would not imagine when you were simply doing the best to discipline your children. Here are effective ways of disciplining your children.
Senator Munson: Who writes this stuff? I know that Canadian parents are getting a mixed message. Biological parents can hit, but foster parents cannot. Who makes those decisions? I know the Supreme Court came to this conclusion in a very tight vote, but where is the rationale?
Mr. Ensom: There is no rationale.
Ms. Durrant: There is no empirical basis for it or for those age restrictions. It makes no sense. It is not rights-based or evidence-based. I think it was an attempt to come up with something that sounded reasonable but in practice has actually been counter-productive.
I was involved in an analysis of postings to the Canada.com website following the release of the decision, and we analyzed the first 400 or so postings. The majority were saying — I will give you a quote — ``Finally somebody got it right; those little bastards need to know who's boss.'' That is the type of belief system that was affirmed by that decision. There were parents who thought that physical punishment was prohibited before the decision and that the decision actually introduced a new law saying now you can hit your child. They were happy.
That decision only muddied the waters more. It is a totally counter-productive, undermining, unprincipled, self- serving and hypocritical decision.
Mr. Ensom: I have a specific piece of information for you, Senator Munson, that I think would directly and in a concrete way address your question.
The Ontario Association of Children's Aid Societies, which speaks for provincial Children's Aid Societies, did a survey of the societies in the province after the Supreme Court of Canada decision regarding section 43. They asked the Children's Aid Societies to tell them what their child protection workers were experiencing as they worked with clients who had many issues, one of which would have been physical punishment of children often, as we know, crossing the line into physical abuse.
Here is a quote from one of the Children's Aid Societies in this province:
Our workers report that on a consistent level parents are advising they can legally hit/spank their children. The Court's decision contradicts the purpose of the [Child and Family Services Act] and it undermines our concerns and ability to get parents to not use spanking as a disciplinary tool. Parents insist with our workers that they will continue to use physical discipline. Some clients and workers are confused and some parents believe they can do whatever they want with their children between the ages of 2 and 12 years. We have local police officers contradicting child welfare and advising parents that CAS workers are wrong and they can hit their children — sparking complaints and community confusion amongst child welfare and other community professionals and the public.
Senator Munson, the day of the Supreme Court decision, my family's cab driver dropped me off at the Supreme Court. He is an immigrant man who is bright, who has tremendous family values and who cannot believe that parents think they need to hit their children, never mind actually hit them. When he picked me up after the decision, he said, ``Ron, I am so sorry. I just heard on the radio that parents are now allowed to hit their children.'' This reminds us of something that we saw in a New Zealand newspaper that reported on the repeal of their former section 59, which simply talked about the narrow window of permission that New Zealand parents still have for hitting their children. That was the take. This is what seems to happen when you attempt to write permission into a law that basically says no Canadian should ever hit a another Canadian — period. There is no point and no benefit from it, only harm.
Senator Carstairs: More by way of comment than by question, although I will conclude with a question, I am the author of two of the nine bills. I would like to give the committee some benefit of what I heard while I went through those stages.
I heard from one senator who said the only difference between the way he disciplined his children and the way his parents had was that he used a different end of the belt, meaning his father used the buckle and he had not.
A group of 26 children from a school in Winkler, Manitoba, wrote to tell me, obviously at the behest of their teacher, why corporal punishment was good for them.
I think the reason we have not repealed this section up to this point is because many of the lawmakers in this country have in fact been spanked and hit by their parents. They believe that it did not hurt them, so why would it hurt future children? I really think that has a great deal to do with it.
Dr. Durrant has perhaps not met with all the Ministers of Justice over the last few years, but I certainly have. Justice officials have consistently given the Minister of Justice the advice that it is not necessary for us to repeal this section, that it will not do the kinds of things that those of us who introduced the various bills hoped it would.
To be fair to the Supreme Court of Canada, I believe they thought they were doing good when they came down with that decision. The Supreme Court of Canada does not like to toss out legislation. I think they felt that, by setting parameters, they were perhaps weakening the impact of section 43. As we know, it did not work that way, but to be fair to the jurists, I believe that was their intention. They did not feel they could strike it down because the case, frankly, and many people do not realize this, was not on section 43, per se, but was section 43 in conflict with the Charter. The tragedy is that children do not have Charter rights, so the Supreme Court could not rule the section as being unconstitutional in terms of the Charter. Therefore, they tried to fix it. However, in fixing it, we have heard from the witnesses today that they only made it worse.
Now for my question: Will we make it worse if we repeal section 43 and then amend the Criminal Code in some way by suggesting that we still need to have phrases in there with respect to correcting the child? If we do what New Zealand did and amend the repeal — because what they did was repeal, but then they amended the repeal — would we not find ourselves in the situation that Mr. Ensom made reference to, such that all parents hear is about what they can do, not what they cannot do?
Ms. Durrant: That is a major risk to such an approach. Full, clear, absolute repeal without qualifiers and conditions is absolutely what we need to do.
Newspaper reports out of New Zealand were very clear that the amendment, the inconsequential use of force, was taking prominence. The reports were not saying that they have prohibited corporal punishment, which is what they did. They said that they still allow inconsequential spanking. That became the foreground, when it was really just a background to try to put into words what already existed in law. It was not a new idea in law. It was there all the time. However, they felt, as did the Supreme Court of Canada, that everyone would be more comfortable if it is right in there in the words, but unfortunately it has caused difficulties. They did, clearly and explicitly, prohibit corporal punishment, but the message from the amendment has muddied the waters as far as public education goes and people understanding what actually happened.
Ms. Robertshaw: With respect to New Zealand, I read about 10 or so news reports. One can take different messages, no doubt, from what one reads. In my estimation, the fact that Parliament had repealed the power to use corporal punishment came through pretty loud and clear.
Mr. Ensom: I am still puzzled as to why we would need it. We so often talk about teachers and their sense of risk. I must tell you that I have been involved in the professional training of thousands of teachers. I always hear something different from teachers than I hear from their teacher federation representatives.
I began my professional work as a child care worker. Over those years and the years that I supervised the residential treatment of what we then called delinquent, disturbed and dangerous children and adolescents, I had to restrain many, as did staff members I was teaching and for whom I was responsible. I have had to restrain more young people than most teachers would ever imagine in their most terrible dreams. Never once did I or my colleagues worry that we would be at risk before the justice system of this country for doing what needed to be done for a child who was about to harm herself or hurt someone else. Never. None of the folks I speak to who perform professional duties with regard to children, outside the teaching profession, have the same concern as teachers' federations claim on behalf of teachers. I do not know why we would need that small door of permission in our code or, God forbid, right in an amended section 43 when it seems from experience elsewhere and from within our country that it would be the source of more confusion.
We are simply not allowed to hit people in Canada. Men cannot hit women. Masters cannot hit apprentices. Why would we have to write something special in our code to indicate that children can be hit in these special circumstances and run the risk of the public message being as confusing in the future as it is now after the Supreme Court's best effort to narrow, in nine ways, the interpretation of the protection provided by section 43?
The Government of Canada has still not written a letter to the families of all children who are about to turn two. Frankly, the Government of Canada should send a letter to every parent and guardian in the country to say, ``Will you please read this to your 2-year-old?'' The letter would warn children that they have been protected by Canadian law, or at least the Supreme Court's interpretation of section 43 until now, but should watch out when they turn two. It is as though there is social science evidence that children who are physically struck and hurt between age 2 and 12 do not demonstrate the same negative outcomes as those under 2 and over 12. It makes no sense, especially when the government is not communicating clearly and consistently to Canadians what they should and should not do and why, and how children can be disciplined effectively without harming them.
The Deputy Chairman: Part of the problem with section 43, and I have not been involved with this issue over the years as so many others have, is that word ``correction,'' which means ``punishment.'' The Supreme Court of Canada tied itself in knots to say, no, it does not, because basically it should not; but there it is. There is pretty widespread agreement that we should not be using force as a method of punishing children. Also, section 43 does not just refer to hitting children; it refers to using force, which can mean, under certain circumstances, restraint.
In justice to the Canadian Teachers' Federation, they did cite several cases where the teacher presumably had been trying to do the right thing, namely, to restrain a child who — at least as they recounted the cases — needed to be restrained.
You will get no quarrel from many people that Canadians should not be hitting Canadians, but it seems to me that what the New Zealand bill was trying to do was address the other definitions of ``force,'' notably ``restraint.''
I do not know if it is beyond the wit of man or if it is even desirable — we have heard some interesting legal arguments that it is not desirable — but, nonetheless, for the sake of deepening the discussion, I am throwing it out again. If it could be done, would it, in your view, be appropriate for the law to make a sharp distinction between the use of force for punishment and the use of reasonable, under the circumstances, restraint, where necessary, or do you think that is just too slippery a slope?
Ms. Robertshaw: I can answer that question to some extent. The common law makes the distinction between using force for correction, by which basically it refers to physical chastisement, and using reasonable force for restraint and control. I am not claiming that the writers and the scholars who deal with common law enlarge upon that to a very large extent. However, Blackstone, who is the legal scholar of the late 18th century and into the early 19th century, makes a distinction. He talks about reasonable force for correction and reasonable force for restraint and control, basically in one line.
If you go a little later than that to Halsbury's Laws of England, which is in 1850 or thereabouts, he makes a distinction more clearly — namely, that there are two common law powers here. One is to hit, as long as the force is reasonable.
The Deputy Chairman: That is for correction, chastisement and punishment.
Ms. Robertshaw: Yes. It is clear. If you look at the cases that have been decided under section 43, you will find that the overwhelming majority deal with either parents or teachers hitting children. There are a few, but very few, that deal with restraint, I think because it is so common sense that parents have to restrain their children from time to time using reasonable force that it is hardly necessary to expound upon it in law. It is a given.
Ms. Durrant: I would like to make two points. If this was truly necessary — that is, if we needed to have such a statement in law with regard to parents and children or teachers and children — then we should also need it for people who work with troubled youth and in personal care homes, for police, for prison guards, for people who restrain children infinitely more often than teachers and parents do; yet we do not need that. Why? Because that is how the law works. ``Correction'' means ``correction.'' It does not mean ``restraint.''
I would also like to make the point that New Zealand only introduced this amendment with regard to parents. They took teachers out of their section 59 in 1990 and introduced no such amendment then. That was at a time when children were still being strapped in schools and the argument was around the strap. Now it is a non-issue. No one would ever dream of having anything akin to a section 59 or section 43 with regard to children for that reason. It just has not been a problem. It really is a red herring. You do start to get into a slippery slope debating what is control and what is correction. It already works for those who work with people who have dementia every day when they have to put them into their beds and place them into their wheelchairs. It works when some rather forceful restraint must take place with people who are mentally ill. No one else claims a need for a section 43. Child care workers who deal with 32- year-olds all day long do not need a section 43. What is it that teachers are doing that they seem to need it so much? I do not understand it at all. It does not make any logical sense.
Mr. Ensom: Not long ago I was involved in a situation where there were concerns amongst parents and some teachers about a particular teacher's physical handling of a child. I will never forget a session that I conducted for the parents and teachers in which the parents basically said to the teachers, ``If my son or daughter is about to be hurt or is about to hurt someone else, I would expect you to do what we would do at home: Tell him no or hold him down and then let us know.'' The teachers were hugely reassured but not surprised because, frankly, most teachers are parents. When I have talked with teachers and had debates with representatives of teachers' federations, I have had applause from teachers when I have said, ``Teachers need to touch children appropriately.'' Can you imagine if we had a generation of children that had never been touched appropriately by teachers? What would those children think come that first comforting, reinforcing or safety touch?
The Deputy Chairman: Thank you very much. This has been an extremely interesting session and very instructive for all of us and I think also for the television audience. You want to get your message out, and you got a bit more of it out today.
We thank all three of you very much, Mr. Ensom, Ms. Robertshaw and Dr. Durrant.
The committee adjourned.