Proceedings of the Standing Senate Committee on
Human Rights
Issue 20 - Evidence - June 19, 2007
OTTAWA, Tuesday, June 19, 2007
The Standing Senate Committee on Human Rights, to which was referred Bill S-207, to amend the Criminal Code (protection of children), met this day at 7:03 p.m. to give clause-by-clause consideration to the bill.
Senator A. Raynell Andreychuk (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are here this evening to proceed to clause-by-clause consideration of Bill S- 207, to amend the Criminal Code protection of children, correct?
Some Hon. Senators: Correct.
The Chairman: I see someone looking startled and I want to know whether we can proceed or whether we wish to have a discussion before we proceed to clause-by-clause consideration?
I want to put on the record that I have tried to discuss this study with all the regular members of the committee and also the sponsor of the bill. My concern was that the Standing Senate Committee on Legal and Constitutional Affairs started this study of this bill but did not conclude its studies when events intervened.
We, in the Human Rights Committee, started the study on UN Convention on the Rights of the Child, and we completed our first interim report on the broad convention. We then went to more of a study of the articles and produced the report that was tabled at the end of April.
Throughout our study, we were concerned with the issue of corporal punishment. We looked at what the committee said that is tasked with looking at the reporting and adherence to the UN Convention on the Rights of the Child. I think there was agreement, certainly full discussion, but agreement that we were concerned about education before any repeal of section 43. We advocated the repeal of section 43, but we also indicated that we were concerned about the defences if section 43 of the Criminal Code were repealed.
We then commenced studying Bill S-207. Senator Hervieux-Payette was certainly cooperative with our committee by allowing us to complete our study of the UN Convention on the Rights of the Child before we proceeded to study Bill S-207 as that seemed to be a more orderly flow of our work. We thank her for holding the bill in abeyance until we finished our study.
We then commenced study on Bill S-207. At that point, the committee turned its attention to section 43 of the Criminal Code. I will put this matter on the table as my own personal issue, as I am carrying the weight here this evening: I am concerned about families and I am concerned about children. I certainly do not support corporal punishment. Our study on the UN Convention of the Rights of the Child speaks loudly as to why we do not support corporal punishment, and why I believe it is timely to suggest to the government that corporal punishment be abolished, as a way of discipline in Canada.
When I came to the study of section 43, I noted that if we repealed the Criminal Code section, then any use of reasonable restraint by any person in authority with a child would not have any defence of reasonable restraint and we would be left with section 265 of the Criminal Code, which is an assault section.
We heard yesterday that assault is any intentional touching and that there is a problem also of implied consent when dealing with children. When can we imply the consent and when can we not? I raised the issue as to whether we should consider keeping some semblance of reasonable restraint in section 43. I have come to the conclusion, in speaking to the sponsor and various members of the committee, that given the numbers on the opposition side, and given their perspectives, there is no appetite in this committee for amendments. I want to understand that my assumption is correct. We have always worked on a consensual basis in this committee and I hope we will continue to do so.
With respect, I disagree with that assessment and the proper way to handle it would be on third reading, and have the full discussion and debate in the Senate.
If anyone wants to add anything, they can do so now and then we will go to clause-by-clause consideration.
Senator Hervieux-Payette: I did not attend the committee as a regular member, but tonight I come here as a member and sponsor of the bill. I have consulted and met with people as I travelled to Ontario, B.C. and Quebec, meeting with both the ministers responsible for families and children and also with the attorneys general of the various provinces. I figured out that 21 million people are represented by these three provinces. Following those meetings, I sent the guidelines that were developed by the province of Quebec to B.C. and Ontario, to show the different Crown attorneys an example.
It is a procedure whereby when the police have a complaint — whether from a member of the family, relative or neighbour — the police do not go directly to the justice system; they go first to the social system. When this offence is repeated — and usually incrementally — it is important to realize that at a certain point, it could go to the judicial system.
I discussed with you the question that you want to introduce a compromise, and my rationale for supposedly a compromise is that there is no compromise for the physical integrity of children in a family. They are not the property of the parents. If we have two children, one belonging to the neighbour, who play together and they commit some mischief, we cannot have a different behaviour with the two. I have consulted also the former Chief Justice of Canada, Antonio Lamer, who is a criminal lawyer, about whether there would be a problem in terms of the charges that could be laid against the parents, and he thought there would be no problem.
We need to remind ourselves that this clause dates back to the 19th century, not even the 20th century. It comes from England, and at the time, probably it was the appropriate thing that people knew. There were not that many faculties of psychology, psychiatry, sociology and so on.
The longest existing system to repeal that provision is in Sweden — and we are talking about over 30 years. Other countries over time, in the European Union, in South America and elsewhere, also have adopted the repeal of that article and they were not all in the Commonwealth area.
In fact, Sweden has the lowest rate of juvenile delinquency. In terms of the treatment of children, the fact that violence was not used in the family has produced a good result when we look at the overall statistics of children from that country, compared with children of other countries.
If we were jumping into the unknown and we were the first one to break the ice, I could understand that uncertainty could be something that would prevent us from going ahead with repealing the section. However, over 20 countries now have done that — even developing countries such as Costa Rica, for example. Because of my interaction with the Americas, I have seen the sign — the red circle and the red bar when they show a hand — that parents cannot touch the children. That is to say it can be very visual.
The question of the one-year implementation is important because we must educate; we must put in place and reinforce the measures that already exist in the Department of Justice. There is a hotline. We have a hotline in Quebec; on a 24-hour basis, parents who really have some difficulty with a child can ask for specialized advice from a psychologist, rather than losing their temper and being violent with their children.
All the necessary precautions were taken before introducing that amendment and recommending to this committee the repeal of article 43. Needless to say, you have had the briefs of over 200 organizations in this country dealing with children also recommending the same thing — some with a more legal approach and others with a more social approach — but all in all, they recommend this measure.
I think it is the best for our children. As I mentioned to Senator Andreychuk, as senators, we are the voice of minorities. In this case, we are dealing with children who have no voice in our system. We are the ones who must make sure that their physical integrity will be respected and there will be no Canadian that anyone has the right to touch, even under the label of restraint.
I have heard the argument about putting a child in a car seat. I brought this example to the Chief Justice to say that we received that argument some years ago. I thought it was a little too much personally, but I checked with a legal authority and I have been assured that we will not throw all the parents in jail. What we want to do is educate parents to help them to educate their children.
Senator Fraser: I think the procedure that you outlined, chair, is an appropriate way to go for a number of reasons. First, as I read it, this bill is in conformity with this committee's own recommendation in their report on the rights of the child. I reread it to make sure my memory was not failing me. Therefore, I think there is an internal consistency for the committee to proceed with this bill.
Second, I found persuasive the evidence brought by a number of witnesses that the concerns expressed by other witnesses were not justified.
However, I think the concerns raised by those witnesses, some of which are echoed in your opening remarks, probably still exist to a significant degree even among members of the Senate — not to mention in the public. Therefore, I think it probably would be a useful contribution to the public good to have these matters raised at third reading. In my view, the countering arguments would provide public reassurance; but in any case, I think the Senate chamber would be a good place to carry this argument further.
The Chairman: To conclude, and not to make this into a legal rebuttal situation, but in starting our hearings here, my regret was that we did not have the Canadian Bar Association here because they could not attend on June 18th.
With the decision in the steering committee to conclude today, we did not have the ability to call other witnesses. I would sincerely have liked to hear the former Chief Justice on the record, and others also.
Those issues were not explored and, as Senator Fraser has said, there are issues that need to be explored fully about the legal consequences of repealing section 43 of the Criminal Code. Where does it leave people who have children in their care in varying situations — situations of restraint for the child's good, and for the good of other children, the community and the parents themselves?
Also, my concern is that people not be taken into court on assault charges to defend themselves when they used what would be reasonable force, but we can have those discussions at third reading to find the balance, as I say, with corporal punishment.
I keep reminding everyone that no one in this committee indicated that they were against repealing corporal punishment. The debate is whether reasonable restraint is necessary and whether defences are necessary for those who have children under their authority. Otherwise, are they vulnerable to the blunt edge of section 265 of the Criminal Code?
I hope we can carry on that debate, and if there is nothing further we can go to clause-by-clause consideration.
Senator Munson: For the record, chair, I have had my views long before I was appointed to the Senate, and my views are clear. They have been echoed in my questioning over the last three or four months. I am comfortable because of the process we went through on the rights of the child, as a mature nation, and as we echoed the voices of those who spoke to us. We say things to the rest of the world through our report on the silent citizens. I take that as a backup to what we are trying to do in a maturing country. I am curious to hear what other senators on our side will say about what you are speaking about but, at the end of the day, I am not swayed to move any way, shape or form from repealing — repeal it, and then we move on.
The Chairman: Thank you, Senator Munson. I hope you do not mean that nothing anyone has said in this committee has in any way persuaded you. I hope that you have taken into account what we have all said and come to the same conclusion you had before. I want that on the record.
Senator Munson: That is right. We talked about the silent citizens; I do not remain silent on an issue such as this. I am curious what will be said on third reading and where this issue goes as it moves into the House of Commons. Let us get it done. That is my feeling.
The Chairman: Shall we go to clause-by-clause consideration?
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Is it agreed that the bill be reported without amendment?
Hon. Senators: Agreed.
The Chairman: Now I go to observations. Is there any agreement on observations?
Senator Hervieux-Payette: This is not an observation. I wish to thank the committee for its good work on the largest question of children's rights. This committee has done a fabulous job and I want to congratulate the committee. As far as the bill is concerned, I made it one cause and I want to say to my colleagues, I was the sponsor of the first bill in Quebec, the Youth Protection Act in the 1970s. In the 1980s, I was the sponsor of the reform of the young offenders' bill at the federal level. Therefore, this bill was for me a case of knowing from the beginning that maybe we do not win points with this issue and we do not win elections, but we win a better country. Thank you.
The Chairman: Thank you and I thank the members. The bill shall be reported without amendment and without observations.
Senator Fraser: Did you wish to make observations?
The Chairman: I would like to make a lot of observations but I think, as I say, knowing the tenor of the meeting I will make my observations in third reading and I hope other honourable senators will do so also.
Senator Fraser: If I may make a personal observation as distinct from one attached to the bill, I think the arguments in question are better suited for third reading speeches than for observations because, as you say, the committee perhaps will not reach total unanimous agreement on said observations and so let us display the arguments carefully and thoughtfully in the Senate.
The Chairman: Agreed?
Hon. Senators: Agreed.
Senator Munson: The only observation I have is that you are doing a great job.
The Chairman: We will see.
Senator Fraser: I am still bleeding after my exchange with Senator Corbin this afternoon.
The Chairman: It has not always been easy. As I say, I wish we had explored the legal aspects of this bill because I think it is important. having been around as long as Senator Hervieux-Payette, probably longer, because I remember the first Young Offenders Act, and going through the first amendments.
Senator Hervieux-Payette: It was 1982.
The Chairman: Yes, and I go back to the 1970s, when we formed the first judicial committee of family court judges across Canada to talk about the amendments and were brought to Ottawa.
Senator Hervieux-Payette: If you want a comment about this, I hated every change they have done since then because instead of sending more young people for rehabilitation and protection, most of them were sent to the judicial system. I think it is the wrong way for this country to go. I do not say that it was a perfect bill, but if changes are to be made, it is not with boot camp but we must go back to a good life.
The Chairman: I do not think we will ever solve whether the first Juvenile Delinquents Act, which was a criminal bill but was treated as social services bill, was better than the Young Offenders' Act, which was supposed to give more rights and opportunities. Did it turn out to be more or less criminal or social? That debate will go on and on as we make changes.
Senator Hervieux-Payette: These things are not addressed at our level because, like the young offender bill, the bill that was previously passed was in 1908. When we know in a society we do not touch bills that touch people who have no voice in the system, which is the title of your study, it means we need to have someone who really cares about children. I have three daughters and seven grandchildren and I am doing that for them and for all the other children of this country. Personally, I will not win an award with that bill for sure, and certainly I did not win my election in 1984 with this bill.
The Chairman: In defence of all the parliamentarians before us, while the bill was in place, the Criminal Code since 1908, the first Juvenile Delinquents Act, it was the subject of study in attempt to amend through many decades. I do not think it was left by other parliamentarians; they simply did not have a better solution than the Juvenile Delinquents Act, and did not have a consensus.
Senator Hervieux-Payette: There were few mothers in this place at the time, but probably a lot of fathers.
The Chairman: That may be another human rights thing.
We need to have a steering committee because we have agreed to study a number of issue and we need to set plans of action and targets, so I will rely on the two steering committee members to meet later this week with Laura Barnett and Vanessa Moss Norbury so we can map out a strategy over the summer for the two issues that we have agreed to, if I recall correctly. The third item we should anticipate when Statistics Canada produces it, so we should be in readiness for that.
The committee adjourned.