Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence for May 14, 2008
OTTAWA, Wednesday, May 14, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-209, An Act to amend the Criminal Code (protection of children), met this day at 4:08 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs has been called to begin our study of Bill S-209, An Act to amend the Criminal Code (protection of children), a private senator's public bill, which has been brought by the Honourable Senator Hervieux-Payette.
This bill, except for a change of number and whatnot, is the same bill as Bill S-21, which this committee considered in 2005. The Standing Senate Committee on Human Rights considered it last year, when it was Bill S-207. It was reported without amendment to the Senate. It is now before us under the number ofBill S-209 in the present session of Parliament.
[Translation]
We are very pleased to have as our first witness today Senator Hervieux-Payette, who is the sponsor of this bill. I would like to welcome her to the committee. I think that you are familiar with this process. We would ask you to make an opening statement and then we will have a question and answer period.
[English]
Senator Oliver: Do you mind if we wait until the Deputy Chair arrives? She stepped out for a couple of minutes.
The Chair: I was turning off my microphone to wait, but Senator Hervieux-Payette told me it was all right to go on. I am taking my instructions from her. Of course, I would have been prepared to wait. Here she is.
[Translation]
Hon. Céline Hervieux-Payette, P.C., sponsor of the bill: Thank you, Madam Chair. I would like to thank you for giving me this opportunity to speak for the third time on a matter that is close to my heart. If you look at my background with respect to the protection of children's rights, it goes back to when I was in Quebec City developing the first youth protection legislation in the 1970s. So this is not the first time that I have presented before a committee on this and worked to improve the lot of children in our society. After all, they are the ones who will inherit our legacy and carry on in the future.
I will get into the heart of the matter and I will speak slowly, since my colleague has told me that it is difficult for the interpreters to hear properly if we do not speak slowly. So I will speak as slowly as possible. I will read this text that I wrote to present to another organization. It is unacceptable for a society that prohibits all forms of violence against adults to tolerate that adults inflict violence on children.
The concept of "reasonable force'' and the very idea of legitimate corporal punishment leave the doors open to every possible excess, since they imply that, in one way or another, violence may be used to deal with situations.
Punishment is not discipline. Discipline is needed to provide direction and guidance to help children learn.
Punishment is not urgent physical intervention. It is and will always be acceptable to use force, not to punish children, but to protect them from imminent danger, for example, punishment is the use of physical force to inflict a certain amount of pain or discomfort, even if it is very slight.
Punishment does not have a disciplinary or educational effect. On the contrary, although superior force will make the child obey in the given situation, it does not help develop either self-confidence or independence.
Moreover, the use of even a reasonable amount of physical force certainly does not provide a model for dealing with conflict in a non-violent way. After all, parents have a legal and moral responsibility to ensure an environment for their children that is based on respect for their physical integrity — which is an inalienable human right — and a clear understanding that violence is never justified.
I would add that when it is an adult who is hit, we call it assault. When it is an animal, we call it cruelty, and when it is a child, we call it discipline. We need to change that perception. There have been countless perceptions over time and most of them have been left behind.
For example, it used to be legal in western countries for husbands to beat their wives. The law protected masters who beat their apprentices or their servants. And it used to be considered instructive for young pupils to be hit by their teachers as a form of punishment. All those practices, honourable senators, were considered by men and women to be normal, appropriate, effective, fair and legitimate at that time. Yet they have been banned.
The one concept that survived in the West up to the 1920s was that of domestic discipline. It became illegal as well. The last remaining vestige of it is physical violence against children as a way of teaching proper behaviour.
The purpose of this bill is to bring this evolution in thinking to its logical conclusion by eliminating this last perception that it is normal, appropriate, effective, fair and legitimate to strike a child by way of discipline. Adults consider the banning of corporal punishment against them as an acquired right. That right should be extended to children.
We need to develop a new perception that is in line with the most recent findings in the area of child development. Parents who raise a hand against their children do not derive any teaching benefits from doing so. In fact, we now know that children rarely remember why they were hit. What stay with them are the humiliation, anxiety and sometimes anger.
As legislators, we need to show public opinion the way, since we have obligations with respect to human rights, because Canada ratified the Convention on the Rights of the Child on December13, 1991, and because we need to make our country's legislation comply with our international commitments. The United Nations' deadline for compliance is 2009.
To those who think that only parents should decide what is good for their children, I would say that beating children is not a divine right. Children are not the property of their parents, and human rights do not stop at the parents' door. Children are not mini-human beings with mini-rights.
I would add that there are laws governing the role of parents: for example, Nova Scotia bans smoking in vehicles when children are present — 82percent of Canadians support that measure, which shows that the times are changing — and drivers are required to put their children in approved car seats and strap them in.
Governments have a responsibility to protect all citizens, including children. The Council of Europe has undertaken to do this by launching a Europe-wide program to abolish corporal punishment against children. A number of countries have gone ahead and passed legislation against disciplinary violence. They include: Sweden in 1979, Finland in 1983, Norway in 1987, Austria in 1989, Cyprus in 1994, Denmark in 1997, Latvia in 1998, Croatia in 1999, Bulgaria in 2000, Germany in 2000, Iceland in 2003, Romania in 2004, Ukraine in 2004, Hungary in 2005, Greece in 2006, The Netherlands in 2007, Portugal in 2007 and Spain in 2007.
Countries outside Europe have also passed legislation regarding positive education: Israel in 2000, New Zealand in 2007, Uruguay in 2007, Venezuela in 2007 and Chile in 2007.
As you can see, honourable senators, there is a strong trend toward the adoption of practices and perceptions that are in keeping with our modern understanding of parental education methods.
We need to provide support for parents. After all, my idea is certainly not to punish parents but rather to help them carry out their role as educators in a well-informed and non-violent way.
To my mind, parenting involves helping children to grow up, setting boundaries, giving praise and encouraging independence. That is what we call positive parenting.
That is why my bill allows for one year of public education before section 43 is repealed.
All of Canadian society must be educated about non-violent education, how to practice it, why to practice it and what the benefits are for child development. All levels of government, all health professionals, education professionals, school boards, parents, and children themselves, must be involved with the process of change.
If parents ultimately have to be punished, educational sanctions should be considered in order to help them better fulfill their role, for example, training sessions on parenting or child development.
With respect to the fears expressed about multiple court actions being taken against parents, these concerns have proven to be untrue in all the countries mentioned. In law, the principle of minimis non curat lex, that is, the principle whereby the law does not concern itself with the trivial matters, protects parents from frivolous complaints.
Finally, we are also dealing with a societal issue. It is impossible to force a child to obey by striking that child and then still expect that the child will be able to think independently. Our democratic societies need children who are capable of thinking independently, of making choices and taking responsibility.
In order to achieve this change, we must send a strong, unequivocal and clear message that no one will be to interpret differently or perceive subjectively: that Canada must now forbid the use of violence in the education of children.
If it is necessary to educate, to provide reference points and to pass on values to children, then violence, whether it be major or minor violence, is never justified.
Honourable senators, that is why I call upon you to immediately repeal section 43 of the Criminal Code.
[English]
Senator Andreychuk: Thank you, Senator Hervieux-Payette. I have had the opportunity to ask you questions in the past. I want to put on the record that I am not advocating corporal punishment.
I want to deal with section 43 of the Criminal Code. Do the countries that have abolished corporal punishment retain the ability for parents to intervene in any way by way of reasonable restraint or for corrective behaviour? Do they entrench that in the law in any way?
[Translation]
Senator Hervieux-Payette: The last time I appeared, I mentioned two types of defence, including the one I just referred to, that is that the law will not concern itself with the minor incidents, that prosecutors or their assistants will not intervene on all points. I would also like to remind you of the procedure to use: most countries have adopted a joint procedure where both social services and legal services examine the issue. This procedure has been used in Quebec in particular. Thus, when there has been a violent incident involving children, the youth protection services are immediately involved and they consider the situation before the prosecutor becomes involved and the legal process begins.
I do not have all the details for each country but I could provide them to you. Germany has even included verbal violence as grounds for the State intervening and punishing the behaviour of a parent who damages a child strictly through repetitive offensive and hurtful words that could destroy the child's ego and development.
[English]
Senator Andreychuk: Is that in the criminal law or in social services? I am speaking about criminal law. Have they retained anything in the criminal law? Even in our provinces, verbal abuse of children can constitute removal of children. Within the ambit of the criminal law, when corporal punishment was abolished, did the criminal law retain some ability for parents and teachers to restrain children?
Consider the situation of a child that has taken drugs to the extent that he or she is totally out of control. At that point, I would suggest the child is unmanageable and does not know what he or she is doing. What if there is an attack on another child? Can a teacher in that kind of situation restrain the child who is totally out of control for the protection of that child, for the protection of the other child and for the protection and integrity of the teacher? Can the teacher do something? My understanding is that they do have elements of that capability left in their law that do not then lead them automatically into the assault sections.
[Translation]
Senator Hervieux-Payette: Their legal systems are similar to Canada's. The Parliaments of Great Britain and New Zealand, unsurprisingly, also decided to consider similar sections of their laws. Both countries decided to repeal the equivalent of section 43. Some members of Parliament have advocated changing the wording or using different wording in order to cover other situations.
The British members of Parliament on the Joint Human Rights Commission, concluded that it would be even easier to provide some flexibility to those responsible for applying the law rather than having to use their judgement with respect to individuals' intentions, and having to interpret the law by allowing the old provisions, like Canada's, remain. England's legislation was repealed so that there could be no room for interpretation.
The Supreme Court's last ruling, which reduced the scope of section 43, stated that it was up to members of Parliament to amend the Criminal Code if children were to be protected against all forms of physical assault.
Teachers have told us that they are against physical discipline. Their conclusion is based on a premise that I agree with, however I do not agree with their actual conclusion. I do not know who their legal advisor was. However, there is a legal notion that states that there has to be an intention in order to commit a criminal act.
Obviously, an individual's spontaneous gesture — in this case the individuals being teachers — made with the purpose of protecting a child against another child or against himself could not lead to legal action because that individual — in this case, the teacher — would have been acting in order to protect the child, and not with the criminal intention of harming the child.
[English]
Senator Andreychuk: The most recent case that I have been able to find is R. v. Swan from the Supreme Court. It refers to other cases, not the spontaneous case so much but what I would call a known situation. In that case, a teenager had been with a boyfriend. There were drugs involved. She was in a very dangerous environment. The parent physically removed that child. Assault charges were laid, and I think the charges were filed under section 43. In that case, and I am not going to go into legal language but more into layman's language, the court interpreted that there was a distinction in section 43 between a parent that exercises corporal punishment and a parent who intervenes in the best interests of the child when that child is in jeopardy and they have to use some measure of reasonable force to get that child to a place of safety. Do you believe that there is room for a parent to exercise that kind of action?
Senator Hervieux-Payette: I must say I was very disappointed with this judgment after reading the facts. The facts are that the father ran after his daughter and almost dragged her home by the hair, exercising quite a lot of violence. Do we feel, as senators, that it is a way to educate a child and help that child to become autonomous, to learn things about society? I say this even though there is the other problem of drugs in the family. I have discussed that incident with the people at the Ministry of Children and Youth Services in Ontario, and they were not at all in agreement with the physical intervention. Normally, we do not do that even with people who are in distress as adults, although we have seen the cases of the taser recently.
There is a very little room for violence toward a child that is in distress. We are talking about a child in distress in this case. The case has stopped at the second level of the courts and has not gone to the Supreme Court.
I will make a comment to the committee that during a social occasion I met a judge. He said that even though he was beaten as a child, he became a well-adjusted adult, without any problems. Well, everyone in Quebec thinks that he has many problems.
That is just to say that it is not because it is part of our culture. I think I have underlined that quite rightly in my presentation; it is not because it was a tradition, a way of educating children. Now we have the study of Statistics Canada with 2,000 children. This study has been more and more examined by experts and they all conclude that when you exercise violence with children, the children become violent.
I was a former president of a school board. We know about the violence in the schoolyards; we know about the violence among children. Certainly, being violent with children at home does not set the example for children not to be violent with each other or with their teachers — because we have teachers who are afraid of the students these days.
The schools that are dealing with that properly are appointing mediators and the mediators are students. The students sit down with the two who are having a confrontation and they learn how to peacefully resolve their problems. If we exercise violence, we just entrench a culture of violence.
There is not one study that says it is a good way of educating children, to force them to do something in a crisis situation. A parent does not wake up in the morning and freely and openly, hit his or her child. It is always a dramatic circumstance that prompts a parent to exercise violence.
If that parent is doing so twice a year, I do not think the child will end up with some problem with the justice system. However, the problem is once you agree it is not an offence — that it is normal and it is protected by the law — people feel that they have the right to do it. This is the big problem and this is what our colleagues from Great Britain have concluded; removing it is one way of saying you should not do it.
Senator Andreychuk: I have another comment on this very important topic.
Senator Joyal: I want to raise a point of order, senator. I know we each have an allocated time, but we are flexible with that.
The Chair: We are very flexible, but we have already had 17minutes with Senator Andreychuk. While it is interesting, I happen to have served on the Standing Senate Committee on Human Rights with her on this bill and I know that her knowledge of and interest in this subject is inexhaustible.
Senator Joyal: The human condition is exhaustible.
Senator Milne: Senator Hervieux-Payette, have you considered the Council of Europe's recommendation against violence against children? This is what has led to the 18 countries in Europe that have outlawed it. In effect, they have gone even further. They have come up with a convention on children's rights, which is a whole list of rights that children should have.
Does this bill conform to the Council of Europe's recommendations or does it go further?
Senator Hervieux-Payette: Removing this article would set us in the right direction. You see the question of being specific about verbal violence. As far as I am concerned, verbal violence can be as damaging to the development of children as physical violence. Germany has included verbal violence in its definition of violence.
There is more than the right of physical protection. I think we have a long way to go. I salute the report on children's rights from the committee, but we have to be serious about Canada's reputation.
We have endorsed the convention, we have signed the convention and we are bound by the convention. The deadline is 2009 and we are now in the middle of 2008. As parliamentarians who are happy to say that we are champions of human rights, I would say children's rights are part of human rights. As a Canadian, I certainly would feel more comfortable meeting our counterparts in other countries who comply with this convention.
A convention should be in force and the European Parliament took that very seriously. They had some kind of a calendar for the implementation and they are targeting to ensure that the countries covered by the European Union legislation will abide. Some countries have not fulfilled their obligation, but they have to answer to their obligations under the Charter of Rights of children and also their international obligations.
Senator Milne: I agree with you on this issue, but in January of 2004, the Supreme Court upheld the constitutional validity of section 43 of the Criminal Code. What changes would the repeal of that section make that are not already included in the common law limitations established by the Supreme Court?
Senator Hervieux-Payette: First, we have to remind ourselves of that judgment that young babies, until they are two years old, cannot experience any kind of violence — and then there is the 12years old and more. We have to remind ourselves that it is only between the age of 2 years and 10 years. From the Statistics Canada study, which was a comprehensive study of 2,000 children over eight years, we have to look at where the violence was mostly exercised. It was between the ages of 3 years and 6 years.
If we cannot manage to educate a child between the ages of three years and six years without violence, we will have many problems with that child in the future. I think removing article43, would give a clear signal that violence toward children however mild, is unacceptable. When this violence is against children is on purpose, as a reason to educate, not one expert in this country that will say it is educational. It is an old-fashioned theory that dates back to the Old Testament. It has nothing to do with scientific evidence from psychiatrists, psychologists or sociologists. There are no faculty experts who will testify here and say these are valuable ways of educating a child. On the contrary, it causes damage to the child.
I feel that with the birthrate in this country, we must cherish our children and find other ways to educate them and help them grow up and become useful citizens in our society.
Senator Joyal: In your presentation, I heard something to the effect that this bill was referred after the study we began at this committee, which was interrupted by parliamentary dissolution, and then it was reintroduced by Senator Hervieux-Payette and sent to the Standing Senate Committee on Human Rights. I am not a member of the Human Rights Committee. I did not attend those meetings and, unfortunately, I did not have time to read the testimony and the study the committee completed on this bill.
Since Senator Hervieux-Payette is the witness today and not Senator Andreychuk, who is Chair of the Human Rights Committee, would it be possible for Senator Hervieux-Payette to provide us with the aspects of this bill that were reviewed by the Human Rights Committee.
Senator Hervieux-Payette: I am not a member of the Human Rights Committee.
Senator Joyal: I take it you have read what they had to say in the committee?
Senator Hervieux-Payette: Yes, but the report is extensive and covers more than violence. It has a broader scope on children, such as the right to education and the right to have food, decent shelter and so on. A normal child should have all the essential ingredients in order to develop properly and become a responsible adult.
As far as I am concerned, I have addressed this question and looked into this aspect. The report recommends the repeal of section 43 of the Criminal Code of Canada. As far as I am concerned, it reinforced my own opinion, and the opinion of all those in this country who are in support, that Canada will be infringing on its own international obligations if we do not legislate by 2009. As I say, we are supposed to be champions of human rights in the world.
I have spent over 30 years dealing with children's rights. I have spent my time ensuring that they are protected under all circumstances, even with respect to young offenders. Senator Joyal was there at that time.
There are different philosophies. There are those who want to reintegrate these individuals, but there is a direct link between juvenile delinquents and the violence exercised against children. We have seen, with the study I quoted from Statistics Canada, that children who on a regular basis were physically corrected eventually experienced more juvenile delinquency, committed more suicide and drop out of school more often because their self-esteem had been destroyed. They either exercise violence against society because they are unhappy with themselves, or they take their own lives because they cannot survive in society; they do not think they are useful citizens.
This is an in-depth study completed according to scientific data. There are not many scientists who have studied and interpreted that report. I have not done so myself. I have read the interpretation by several scientists who went through the data collected.
This report serves as a basis of where we should go from here. I felt that section 43 and the judgment of the Supreme Court in fact do not produce the problems that we have underlined. Children between the ages of 2 years and 12 years are the only individuals in our society on which parents can exercise physical violence, the people who are supposed to care for them. If a parent of another child is doing the same thing, it becomes an offence. We must realize that there is no reason in the world that if you cannot touch your neighbour's children, a person who is committing the same infraction in an act of simple aggression, there is no reason to give licence to parents to do the same.
Senator Joyal: I tried to obtain from your answer, if I understood you correctly, that the Human Rights Committee studied the issue of children's rights in its broadest sense and not this bill in particular. Is that correct?
Senator Hervieux-Payette: There was a section from this bill included.
The Chair: The Human Rights Committee accomplished two things. It completed a broad study of Canada's international obligations, which came out in April 2007. Pages 62 to 71 of that study concerned precisely this area, section 43, but also international law. You will find in those pages what I think is quite an interesting summary of what the witnesses told the committee.
In addition to that study, the Human Rights Committee also studied the previous incarnation of Bill S-209 and did not, as I recall, attach observations to its report. The Chair of the committee will correct me if I am wrong.
Senator Andreychuk: We had limited witnesses. I could add them up. That was all that we did. The bill was to go to third reading, the session shut down, there was a prorogation and Senator Hervieux-Payette had to reintroduce the bill.
Senator Joyal: I am trying to understand the dynamics of what we would do if we accepted your suggested amendment of removing section 43 of the Criminal Code. The way I see the dynamics, we will be go back on section266 of the Criminal Code— I do not want to use the word "trigger'' because that is an extreme word — and it will trigger the assault section of the code.
In fact, I read the case of R. vs. Swan, and I read the decision of the court that was made public on March13, 2008. This is the most recent case that reviews the jurisprudence in relation to section 43, as following the decision of the Supreme Court in the Canadian Foundation case. It seems that when a parent takes a corrective measure against a child, if section 43 is not available, we would go to the defence means of section266.
As I understand it, when there is a charge laid under section266, they fall back onto section 43 in order to try to explain the circumstances under which the force was used.
Senator Hervieux-Payette: It is a defence.
Senator Joyal: Yes, it is a defence. However, I read the case — of course, each person reads with his or her own glasses, if I may use that expression — and the parent in that case pulled the child by the shirt. Of course that was force, because by pulling her by the shirt, he put her into the truck, locked the door and took her home.
The Chair: This is the Swan case.
Senator Joyal: Yes, it is the Swan case. The first argument against the use of section 43 made to the court was that section 43 applies only to a child, and the girl in the case was 15 years of age, a teenager, and section 43 did not apply. However, the court, on the basis of reviewing a number of cases that are mentioned on page6 of the decision, came to the conclusion that section 43 was not limited to a child of seven or eight but could involve a teenager. I would think 15 years of age is a teenager.
The parent wanted to prevent that teenage girl of 15 from going to a party with a boy who had already been found with drugs. Her father brought her back home. In the months that followed, the girl concluded that for reasons X, Y and Z, she should not go with that boy because he was a bad influence on her. She concluded that that was not the way to go.
I have difficulty in concluding that the use of force in that case was totally out of proportion — that her father hit her too much or that he exaggerated the force against the kid. In the end, the force met the objective, which was to bring the girl to her senses. She was running in a bad pack. It was a moment where you prevent the kid from falling into the river as she is leaning over the balustrade. When you see your daughter under the influence of a boy who is trying to drag her into drug use and so forth; what parent would not want to save their child? If we remove section243, we will then come back on section266.
[Translation]
Senator Hervieux-Payette: The result would be the same, if you read it.
[English]
Senator Joyal: I am sorry, but I am not finished, senator. I am trying to do the right thing and trying to understand the practicality of when that type of force is used. I must confess I have not had the benefit of raising a child, but when I read those cases, I agree that it is a thin line. How do we cope with such a situation and not criminalize parents? In my mind, it would be worse for a parent to not try to prevent a kid from being that situation and to say, "Go, if you want. I can try to reason with you by words.'' The kid would say, "I am going.'' I am trying to balance the things here.
[Translation]
Senator Hervieux-Payette: You can look at all the case law you like. I am talking about studies and statistics involving 2,000children, children from the ages of three to six years who are struck on a regular basis and who bear those marks for the rest of their lives.
You are telling me about a 15-year-old girl whose parents have problems and probably require assistance in raising that child. There were most certainly some problems. All parents with 15- and 16-year-old children go through difficult periods. I have four in my family. I could give you a list of all the problems that you experience when you have children from 15 to 17 years old.
The purpose of repealing section 43 is simply to prevent, to stop parents from striking their children supposedly for educational purposes. You are talking about preventing a child from experiencing greater damage.
I think I told you a few minutes ago that when greater damage has to be prevented — for example, a child beating another child in a schoolyard — is grounds for a teacher to intervene. You can consult all the case law on this. When there is physical intervention with a view to preventing greater damage, when an individual takes a child by the harm and harms that child because he was about to run into the street and there was a car coming, that individual will not be accused of a criminal offence. The question must always be asked: how and why?
I do not think you can write a bill that will deal with all our teenagers' problems today. A bill is drafted in order to ensure that young children will not suffer mentally and emotionally for the rest of their lives. I can send you all the studies. If you want to read them, there are studies that prove that this section gives parents a licence to intervene physically for educational reasons. The case that has been raised involves parents who intervened not to strike children for educational reasons, but rather to prevent their child from experiencing even greater problems.
That is a different matter, and the judge probably ruled on the basis of the evidence. In this case we are considering a bill that takes a defence tool away from parents because the defence is giving parents permission to discipline their children physically, supposedly in order to educate them. There is no school of thought in the area of child education that says that striking children has an educational benefit.
We have to live in the 21st century. I will not deny that 20centuries before the birth of Jesus Christ it was thought that striking children, wives and servants was a good thing. Today, we are trying to resolve many psychological problems in order to ensure that all citizens in our country have equal opportunities, and repealing section 43 is part of that. You have the evidence before you. I will send you other documents and you will find this specific evidence in the testimonies provided over the last few hearings.
In the United Kingdom and in all those countries where similar sections were removed, there has been no additional caseload before the courts. On the contrary. Violence has gone down. There have been fewer cases before the courts because parents have been educated. We have to send a clear signal that this method of educating children is no longer appropriate.
There can be legal procedures but defences can be used in those cases. During the last meeting I handed out the Government of Quebec's policy, which is to submit cases and inform the Child Protection Services. A decision is subsequently come to, along with the prosecutor, as to whether or not the parents are a danger to the children and whether or not the children are in serious danger.
I spoke earlier about sanctions that could be educational sanctions. None of the countries that repealed similar sections have ended up incarcerating the parents. I do not know where that idea comes from. That is not the purpose of the exercise, the purpose of the exercise is to get back to the basics. When physical violence is used towards an individual, whether they be an adult, a neighbour or a spouse, it is an offence. When it is done with the purpose of harming that individual, then it is an offence. With respect to a spouse with mental problems, if the spouse intervenes in order to prevent that individual from harming themselves, then they will not be accused of assault.
I think we have to get back to basics in order to understand why this section should be repealed. It should be repealed in order to send a signal. Most advanced European countries have done this, those with good research services and who have looked at this on the ground. Sweden did it and the level of delinquency went down dramatically in the following years. We have to look at experiences on the ground.
We can look at it case by case. What you are telling me proves the opposite of what I want to do. It proves that under section266, when parents intervene for the good of the child, they will not be punished.
Senator Joyal: But that is because there is section 43.
Senator Hervieux-Payette: No, it is not necessary because section 43, under a Supreme Court ruling, does not apply beyond 12 years.
[English]
Senator Joyal: That is not what the decision said.
Senator Merchant: I have not had the benefit of hearing any witnesses on your bill. I think it is a very important topic and I am very interested in it, but to me this is a philosophical question.
I was a teacher for seven years and I am the mother of three children. I was hoping that we might be able to hear from two different sides. You have given us a picture that every study and every expert will only give us facts that support the way you are proposing to go. You have said there are no other people that we can call upon to hear an opposing position.
The Chair: If I could interject here, Senator Hervieux-Payette is here today because it is her bill. She is presenting the bill and is here to defend it. We will hear other witnesses. However, it is also true that I believe all senators have received the extensive testimony from other committees. For those senators who are interested, my own staff is preparing summaries of that material. If you are interested, we would be glad to provide it. It was the view of the steering committee that given the heavy workload of this committee, it probably was not necessary to repeat all the work that had been done by prior committees.
We will, however, be hearing other witnesses. We will be hearing witnesses suggested by both sides in the chamber, starting tomorrow morning. We will be hearing some witnesses that have been proposed by the government side, and more as we go on. That is just to clarify the work plan of the committee.
Senator Hervieux-Payette: Up until two years ago, the Canadian Paediatric Society did not want to support the repeal; now they do. As I said, the associations of psychologists, psychiatrists and sociologists support it. I am talking about people dealing with human behaviour. These people are the experts.
The study and knowledge of human behaviour does not date back 500 years. We just started faculties at the end of the 19thcentury and beginning of the 20th century. Before that, there was very little scientific study on these sciences and some of them have a medical component.
I have used what is available from the scientific community, people who are not lawyers. When I look at the results in countries where this measure was repealed, the measure was positive. In Sweden, at the beginning, only 11percent of people thought it would be a good thing. Today you have over 80percent who think it was a good measure.
Yes, you need some courage to implement something new; but the experience of over 20 years of some other countries gives us comfort. It is not as if we are the first country to try this. We are not at the head of the occidental community. The European Union has adopted a measure that will apply to every European Union country, and they have given them a deadline.
More than one person has scientifically examined this aspect. In some countries like Great Britain, they had the same section. Our section dates back to 1892. It was legislated at a time when even violence against a wife was tolerated. We have repealed everything in every law except this one, but who will appear on behalf of the child?
I am there to represent, as a senator, a minority that does not have a voice in our system. I am proud to be their representative and come here. I have three children and seven grandchildren. I have never seen and discussed violence or intervening with the mothers more than the fathers. I believe that asking a child to go to his room for reflection is certainly more positive to reinforce the fact that they should think before doing things that are not appropriate.
If you think hitting a child is the way to help a child change his behaviour, I do not think it has produced any kind of benefit anywhere. We are not talking about a parent who, out of nervousness, would intervene in the middle of a chaotic situation in the house and would end up before the judge and go to jail. We are talking about repeated violence. We know that in a family where there is repeated violence against children, it is done on a regular basis. It is not done once in awhile; it is done day after day, week after week, and it is producing damaged children.
Senator Merchant: I thank you for your reply and I am sorry if I gave the impression that I have made up my mind one way or the other. We want to do the right thing because this is something that will affect everyone. Families are the basis of our society.
In order to be better educated myself, I would like to hear from a variety of sources. However, I understand that we are going to hear many witnesses and you will provide us with materials.
On the education side and the enforcement side, I am not absolutely sure. I will give you an example. What if I slap a child's hand lightly because he or she is about to touch a hot stove? Would that be considered violent? In the interpretation of this, where is the breaking point?
Senator Hervieux-Payette: I happened to live with a family where the children were not eating properly, were not dressed properly, were regularly beaten and so on. I did not phone the police; I phoned the social services. In fact, there was a problem because the mother had mental problems.
We have to address this in a global vision of society. If that family needs some help, we should give it to them. The fact that we decriminalize in a way, or we do not allow the Criminal Code to intervene except when there are real offences, is giving permission to be a little bit lenient on this and give a licence to intervene physically.
I have the evidence. You will see, whether it is Sweden or in other countries, once they implemented the measure, the violence started to diminish. They started to have less juvenile delinquents and less mental problems in children. We have to look at the evidence.
If you take the time to read what has been submitted to you in writing, you will see that there is not one statistic that shows that when they repeal it, it has created some problem for the parents — quite the opposite. I have met with the minister responsible for children in British Columbia, Ontario and Quebec and they all support this repeal. They are all in favour of going the social services way. However, when there are some real offences and repeated offences, you need the tool of section266. To go there, you have to have the evidence and not give a licence to others repeatedly but not necessarily well seen.
You asked me who was in support of section 43. There are many religious organizations in support of that section, much more so than from the scientific community. The scientists, who are conducting real studies with the children, are not saying the same thing as the religious groups.
Senator Merchant: I would like to say that this folder was brought to my office last night. As often happens with these committees, you get all this work thrown at you just before the meeting. I was asking about this over the weekend, and nothing was sent to my office until yesterday afternoon. I received it last night.
The Chair: You make a fair point, Senator Merchant. This is not the only committee that Senate staff and library staff are trying to serve. However, it may be some comfort to know that we will have time as we proceed with our study of this bill to absorb, even if we have not all been able to absorb it all in the past 18hours.
Senator Stratton: This is an interesting debate. I do not question the issue of a parent striking a young child. In a related case last week a child went to school with a fat lip, the result of a parents' strike, and child and family services marched over to the house. I think the issue of striking a child is being dealt with to a large degree in society today.
My concern, as Senator Joyal and Senator Andreychuk have pointed out, is not the striking of a child to discipline or educate them. It is that area where you have the daughter being hauled away from a bad situation or, as I experienced a case in Winnipeg, where a teenage girl — fortunately, the law was not passed at the time — 15 years of age was arrested by the police in order to get her out of a very difficult situation.
As kids, we fought and we brawled and people had to pull us apart. My father used to have to pull us apart. Is that violence? That is called "reasonable restraint,'' in my mind, and that is what section 43 is, in my view. We have to be cognizant of that. We can be concerned about the younger kid being struck by his or her parent, but it is the issue of when those kids get older, they get big and they start brawling. What does one do then? They get in bad situations like the two girls did.
How do we deal with those cases if we get rid of this clause? Never mind the parent and the youngster; we are talking about that specific area. How do we deal with it?
Senator Hervieux-Payette: I have to repeat myself in that reasonable restraint is already a defence. Of course, a prosecutor would certainly exercise his or her judgment and in most cases take the issue to social services in order to assess if that child was assaulted by the parent or was restrained because of his or her own difficulties.
As far as I am concerned, we do not need more than the actual defence. That exists. It has always existed under section266. It can apply to a child or an adult. If we prevent an adult from suffering injuries and then you hurt them, it will be judged according to the circumstances. If you prevent more harm, you will have a reasonable defence.
As I said, these cases will not end up in court. If you look at the study I have been quoting from the beginning of this meeting, you will see that the number of interventions and the number of children who are being assaulted is much greater before the age of 6 years. If you look at the study on the development of children, you will know that by 6 years of age, the child has almost everything he or she needs in society to become an adult. The fine-tuning constitutes 20percent after the age of 6 years, but 80percent of a child's personality develops before the age of 6years.
Senator Stratton: We are not talking about that. What we are talking about is when they get older and they get into difficult situations and they need restraint by the parent or some other individual. That is what we are talking about today.
Senator Hervieux-Payette: I have already answered you Senator Stratton. This restraint is permitted, under section266, when an adult prevents a bigger problem by exercising force, which will have to be judged by reasonable people such as social services or a prosecutor. The studies show that 14-year-old children repeatedly found in difficult situations, it is because the parents used force with the child when he or she was under the age of two years. Parents do not start to restrain their children and hit them when they are 14 years of age; they usually start when the child is 2 years old.
Senator Stratton: We are not talking about that. We are talking about them getting into difficulty by going to a drug den with their parents hauling them out of it, or getting into a brawl with their parents or other people hauling them out of the difficulty. That is what we are talking about.
The Chair: For purposes of clarification, as I understand the present state of the law, the Supreme Court of Canada said that section 43 could only be used on children between the ages of 2years and 12 years.
Senator Andreychuk: No corporal punishment.
Senator Hervieux-Payette: It is between the ages of 2 years and 12 years. I have read the current section about 10 times. I do not have it with me, but I am sure of that. The judges said between the ages of 2 years and 12 years. They exclude between the ages of zero to 2 years. After the age of 12 years, the court determined children to be mature enough that adults could not physically intervene with them. I will table the judgment.
The Chair: You do not have to do that. We can look it up ourselves and circulate it to all members of the committee, if we have not already done so, as well as the Swan decision, to which reference has been made this day. Senator Stratton, have you concluded?
Senator Stratton: Yes.
The Chair: Do you wish to make any further comment to Senator Stratton before going to a second round, Senator Hervieux-Payette?
Senator Hervieux-Payette: I wish for him to read the judgment of the Supreme Court. As I said, I talk to my daughters on a daily basis about their 14- and 16-year-olds, and I know what they are experiencing. I am in the middle of it. There are four teenagers, and all sorts of situations occur.
We have to look at the development of children, and we have to make sure that the laws we have are not hurting our children but helping them to grow and become contributing adults. I am saying that the law has changed elsewhere in the world and where countries have removed that defence the situation has improved. The children have better respect for their rights and their education has improved.
I am not saying it was as a result of changing the law. I am saying that the countries that have changed their laws have undertaken to educate parents about educating children without violence. Of course, the legislation and the education go hand-in-hand.
The Department of Justice Canada has an open line — I do not know how often it is used — for parents who are in distress when their children are exhibiting bad behaviour.
If we look at a case, for example, that could provoke and necessitate physical intervention, I have members in my family who have autistic children. Very often, the children are violent, and the parents need to intervene so that the children do not hurt themselves. It is not because that child has bad behaviour but because that child is sick. I know it is a drama for the parents, but the law would not interfere and say the parents were committing a crime because they have to intervene physically. Whenever there is a rationale for restraint, it cannot be interpreted as a criminal act or a simple assault or a serious assault. We have to look at the substance of the infraction before looking at the defence. The substance of the infraction is that you cannot hurt any one in anyway, your wife, another adult or a child from your neighbourhood. The ones who are closest to the children are the parents and the educators. It is the same in other countries. I do not think there is a special problem in the European Union with the children in school. The have managed to reform their system and make sure that this old fashioned, religious way of raising kids is eliminated.
Senator Stratton: I do not think religion has anything to do with it. I had to make that point.
Senator Hervieux-Payette: Look at the testimony from the previous witnesses.
Senator Stratton: I do not think that has anything to do with the argument.
The Chair: Senator Hervieux-Payette has stated her point of view, and you have stated yours.
Senator Andreychuk: I want to remind honourable senators that we do have a package of material coming. This committee started looking at the previous Bill S from the legal standpoint, and the Human Rights Committee spent a lot of time on the issue of corporal punishment but not section 43 per se.
We are not the Standing Senate Committee on Legal and Constitutional Affairs when we sit as the Human Rights Committee. The previous testimony is valuable and has to be taken into account.
section 43 was obviously crafted in a previous time. It did include corporal punishment. The Supreme Court has limited — not taken away, but limited — corporal punishment and the exercise of section 43 in certain ways, but it left the rest of the bill intact. I understand R. v. Swan is one attempt to look at this since that case to define an area that was not directly part of the Supreme Court decision. It goes back to what else is in section 43, and that is where my preoccupation is, not corporal punishment but what else is in section 43.
Senator Hervieux-Payette, if we take out section 43, we are back to the assault sections. I was a great advocate of trying to combine all of the assaults, particularly on women. You cannot touch them sexually or physically; it is an assault. We have done a commendable job in Canada of identifying what we believe is intolerable for criminal law purposes.
If we take out section 43, we put parents in a position of aggressor and offender because it triggers the assault section. What is left for a parent who in the position of dragging the kid out of a drug den or is hitting another child? With adults, you cannot touch each other. You have the defence of necessity, and you have the defence of de minimus, the least touching. How do we deal with a child? How do we get an implied consent? The Convention on the Rights of the Child says that they are children because they are not in full maturity and cannot make the same judgments. That is my first question. How do we deal with implied consent, and how does a parent exercise a common law defence? I am not talking about identified defences. This was an identified defence.
There is evidence in Canada that we over-criminalize our Aboriginal people. If you look at the child welfare services, they are over subscribed there. What is a parent in that situation to do? Who would be more vulnerable if we do not identify a role of a parent somewhere, somehow on restraint? We are trying to educate parents to use other means. We are no different than the people in Sweden. A number of governments have said violence is not tolerable. Go read the policies. Violence is not tolerable; education should supplant it. However, there will be cases left in section 43, after you take out corporal punishment, that will put the child and the parent in an adversarial position, and that is the concern. I would like you to address this issue legally, not by saying that the police will exercise discretion. I am not sure the police are the correct people to get between the parent and child. I am not sure they have the skills to do that type of intervention. I am worried that those who will be most vulnerable to this are those who are already the most vulnerable in our society. Believe me, my case loads on these kinds of cases were just those kinds of cases. The parent already has problems, and we lay this on them.
How will we handle all of this? Do you think it will just go away?
Senator Hervieux-Payette: I guess we are unique in the world and only our country sees it differently from people all over Europe and many South American countries. You say you oppose corporal punishment, and when I read section 43, it talks about using force by way of correction. Perhaps in French it does not mean the same thing. Maybe I do not understand. I will read what it says in French.
[Translation]
[...] using force to correct a child, provided that the force used is reasonable in all of the circumstances.
So there is the issue of force. Obviously this is not rational. You are telling me that a child does not have the same judgment. If the parents had good judgment, they would not use force.
When you are talking about educational methods for children, about wanting to shape responsible citizens, about all the damage that this educational philosophy has done to our children and that is shared by some judges, I have to tell you that I am concerned. I am especially concerned if on top of that, violence in Aboriginal communities will become criminalized to an even greater extent. If there is a community where children need to be protected, I think it is the Aboriginal community. My colleague, Senator Watt, knows full well how involved I have been in order to help put Aboriginal children on the same footing as White children.
When things do not work through incarceration, they work through social services. However, we can no longer allow children to be struck, to be punished in this way, and we can no longer say that it is right to do this. There is a lot of education that has to be done. The studies show that what you are saying did not happen in any of the European countries, some of which have 20 years of experience, so I do not see why Canada would not act as these countries have.
The opposite has happened. I went to Costa Rica. There is a sign that shows that it is forbidden to strike children — similar to the one we have that forbid smoking — in order to show parents that children must not be struck.
As far as I am concerned, physical discipline is over. That is not how you educate children. You want me to look at the Criminal Code and say that this common law defence argument must be used because the behaviour will end up being criminalized. However we have practically given people permission to physically abuse our children for more than a century and no good has come of it. You can look at the statistics, they are appalling. These children become delinquents, dropouts, they end up with psychiatric behavioural problems and they end up crushed on the inside. That is the result of violence to children.
We need to withdraw this symbol and section 43 that, ultimately, gives individuals an excuse to continue striking children. The text states:
[English]
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
[Translation]
I think that under section266, we will always know what an assault is, what the intention was. I am certain that Canada's legal system will be just as effective as the German, Swedish or Finnish system.
I cannot compromise in any way and I cannot see how section 43 serves our Canadian society. On the contrary, this section has prevented children from having the same rights. One cannot say that because they are not completely intellectually developed, they cannot have the same rights to protect their physical integrity. A child should have all rights, especially that of being loved by his parents and not being struck by them.
[English]
Senator Andreychuk: The last right, to be loved by a parent, is not the subject matter of section 43 and not a correct characterization of what I have said, so I take issue with that. I do not think you heard from me the use of the word "violence.'' That is a laden word that I am not advocating, nor is the Supreme Court advocating, nor is the use of force by spanking or slapping, etcetera. We are trying to determine, when a parent is trying to deal with a child, the agony of trying to help that child and what is in the best interests of child and society, which I believe the Supreme Court struggled with and the Swan case struggled with and we are struggling with. How do we do the best for the child in the context of the parent and not set that parent up for a criminal charge or further drive more cases into the social welfare system?
Surely what we should be about is trying to build stronger families and respect for children within that because the Convention on the Rights of the Child says a child has a right to the family, a right to develop within a family.
The essence of section 43 is how we can appropriately get the balance that we do not want violence used against children, we do not want corporal punishment used against children. However, there is that other part of section 43 where you have to come to the defence of the child, where you have to weigh how you will help and correct that child, whether it is with a restraint or not.
Therefore, I would ask you to think about how we can accomplish what I think you and I both want to do. We want to bring in a more modern look at today's family. We can erase discussions about corporal punishment. I wish the Supreme Court had attacked that problem differently, but I understand that kids are not kids like you and I growing up. With the use of drugs and the Internet and the systems on them, how do we give parents and teachers tools to help those children?
Senator Hervieux-Payette: If you were telling me that we are not dealing with that, I think the question of the solicitation by adult society on children and the kind of treatment they have and how much they are put at risk with the new technology, with the Internet and so on, is monumental. I have worked with the question of predators using the Internet to attract children. As far as I am concerned, it is always the responsibility of the parents to ensure they are protecting their children, and using force for correction is not permitted, period. You will not build the self-esteem of a child by hurting them in any way, even lightly, on a repeated basis. When they experience violence or are corrected using violence for educational purposes, it is always repeated. It creates damages that society must live with for the entire life of the individual.
The Chair: Before going back to Senator Joyal, it seems to me that the horrible conundrum here involves the word "correction.'' That is not what I wanted to say. I wanted to clarify my earlier non-clarification to Senator Stratton. I have now gone back to the Supreme Court decision in the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) case, paragraph37.
[Translation]
Senator Hervieux-Payette: Are you reading the ruling or is it in our book?
The Chair: No, it is in the English version of the ruling. I can read it:
[English]
Corporal punishment of children under two years is harmful to them and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful because it can induce aggressive or antisocial behaviour.
It goes on to talk about corporal punishment using objects, slaps or blows to the head:
These types of punishments, we may conclude, will not be reasonable.
That is the passage I got wrong in my memory, and I wanted to say that for the sake of accuracy in the record.
Senator Joyal: I want to refer to the Canadian Foundation case also. What I read from that case is that section 43 should not be used to legitimize child abuse, or to sanitize violence against children.
I recognize that if you read section 43 literally, you might try to give section 43 a much broader scope than what the Supreme Court has given it. The Supreme Court has put limits on section 43. There are three criteria the way I read it. section 43 ensures that the criminal law will not be used where the force is part of a genuine effort to educate the child. I am not talking here of corporal punishment. That is the first one. The second item states that it poses no reasonable risk of harm. In other words, if you use too much force, in a way that you break the child's arm it is unreasonable. To cause a reasonable risk of harm probably means slapping the child with an object.
We must interpret what it means when it says that the force is more transitory and trifling and is reasonable under the circumstances. It is difficult to make an absolute determination and the court has to look into the particular case and the particular circumstances.
The way I read section 43, the Supreme Court has circumscribed it. I say to myself, there is the state of law in Canada as interpreted after that by at least three decisions on the issue of teenagers, what we understand by teenagers; and the ages in cases I have before me here in reading Swan are above 12 years, sometimes 13 years, and Swan is about a 15-year-old girl.
I can not understand the position you take when you say you are against the use of physical force, whatever the case, whatever the balance and strength of it and whatever the circumstance. Then you end up in a situation like the Swan case. When you read the Swan case, you think that the father should have ended up in prison because, as you know, the Swan case is an appeal where the judge concluded that the scope of section 43 within the interpretation of the Supreme Court should disqualify an assault accusation. Therefore, that means that we would only have section266 to rely upon.
When you read what an assault is in the Criminal Code, an assault is defined by two definitions in the code, the first being bodily harm. What is bodily harm? "Bodily harm'' means any hurt or injury to a person that interferes with the health or comfort of the person. Mind you, that is not much. I could body check you, and you can say I have assaulted you. I do not want to open a hockey game kind of scenario.
"Bodily harm'' means any hurt or injury, which is more serious, to a person who interferes with the health, which is serious, or comfort of the person, which is very light, and is more than merely transient or trifling in nature.
That means that Mr. Swan is caught under this and we would remove what I call forceful restraint. Not corporal punishment. There is a distinction in my mind between corporal punishment and physical restraint. The way I read Swan, they talk about restraint. You say to us that any force should be banned.
I can understand the reasoning behind your position, and I totally respect it. I am not questioning the psychologists and the studies and so forth. As much as I have been able to read some of the material, I share the conclusion that a person of younger age who is submitted to abuse and force reacts by force. It is almost psychological. If you provoke with force, the person reacts with force. I understand that. However, restraint is something different. It is a different reality.
What is the appropriate decision on this case, as much as I can read from it? Again, I am not an expert. I am not a parent. I have read these cases as much as I have been able to, and I have heard from you and from some very learned experts. We have to be very conscious that if we remove section 43, we fall under section266, which has been used with the understanding that section 43 does not protect teenagers. The judge had a case where he in fact found that it was so outrageous to apply section266, that he tried the teenager under section 43 instead.
You have been put into a very difficult position. This case means that in the future, the only capacity for a judge who would be faced with a Swan-type of case could dismiss it and not have any kind of fallback to answer the particular circumstances.
I will tell you frankly, and I will be very candid with you, I am still not convinced that we should delete section 43 without doing anything else. I am still not convinced.
Should we on a fallback limit section 43 to restraint, to protect those circumstances that we have seen in cases such as Swan? We would then remove any kind of reference that there might be an abuse of force. Or should we put into section 43 the very specific limit that the Supreme Court has put into section 43? I understand that will not meet your purposes because as I understand from your statement this afternoon that you are against force in principle, whatever the case may be.
[Translation]
Senator Hervieux-Payette: I was however clear when I said that it is to protect the child against an even greater threat of danger, whether it involves the teacher or the parent — the Swan case is included in that example. According to the grounds of defence provided under section266 of the Criminal Code, force can be used in order to prevent an offence in the case of self-defence. One would have to look at all the case law in order to determine what self-defence is. When two children are fighting in a schoolyard and the fighting increases, an adult has to intervene. That adult has to use a certain amount of force in order to prevent assaults— I am talking about the teacher — or to protect property.
In 1984, the Law Reform Commission stated that the law should send a clear message by forbidding all useless violence and that section 43 should be repealed. We haven't just been studying this issue since last week. And it hasn't been considered in light of the all the facts. The Criminal Code is a code of ethics and behaviour amongst individuals. Morality and behaviour amongst individuals include the right of children to their physical integrity when they are being educated, not simply to their protection. Section266 will never be used against a parent who prevents children from hurting themselves or from committing any wrongdoing against brothers, sisters or neighbours. It will always be possible to use the minimis and necessity lines of defence. They exist and they are very important. Those lines of defence will always exist. We do not need section 43 because the grounds for defence under section 43 are equivalent to giving permission to strike children. That is how this was interpreted in the countries that repealed it. It was giving parents permission to use physical force for the purposes of correction. It was a means of education. That is the origin of this section. Today, still, those who use physical discipline believe that this is a way of educating children. Not one expert in Canada will tell you that this is a means of education. Parents who lose their patience, who do not necessarily have all their wits about them, will use violence on a child not for the educational purposes but because they have become exasperated.
The moment a red flag is raised, a message is given that people no longer have permission to strike children for supposedly educational purposes, and that from now on children have the same rights to physical integrity as adults do. It is all very well to talk about the possibilities for abuse under section266, but that has never happened.
At the same time there has been a concerted effort to inform the general public that this is not a way to treat children. When children are exposed to an outside threat, parents have the authority to intervene and they do not need section 43. section 43 is about force being used for correctional purposes. It is not about force being used for the purposes of protection. The word "protection'' is not used in section 43, but rather "correction.'' In my view that is a very important word because that is how this section has been used.
I know that my colleague does not like it when I talk about religious movements. However the Law Reform Commission was referring to a practice used under parental rights in what were rather religious laws. I am not the one who invented them, they are in the Bible. There is a line in the Old Testament that states — you are probably more familiar than I am with it in English — that if you love your children, you will use the rod. Here we are 2,000 years later and we are still speaking like this. This is still suggested in parenting magazines in the United States. You can still obtain a rod for the purposes of correcting your child. I am not inventing history.
[English]
Senator Joyal: I do not want to extend the sitting as it is already late, but I wonder if we should have a copy of the cases referred to in the Swan case.
The Chair: I will add that to the list of items and get that information out to committee members as soon as possible.
Senator Joyal: There is one case in Saskatchewan, another in Ontario etcetera. Perhaps we could look into those cases — how they have seen section 43 in relation to section266. I have questions — I have already explained some of them — and I would like to have additional information on this to be able to move on.
The Chair: It shall be done. As we proceed, we will have interesting questions to put to witnesses who come before us. One that I would like to know is whether the balance of legal opinion is that in the Swan case, section 43 was necessary or whether the defendant had other avenues open. The judge said section 43 was available but would other things have done the trick? I do not know.
Every time this bill comes up, the study of it is fascinating. Demonstrably, it will be fascinating again. Do you have a question, Senator Watt?
Senator Watt: My question is not a lengthy one, and I can understand Senator Hervieux-Payette's points. It is similar to the way I was brought up — what to believe, what not to believe; what to hurt, what not to hurt; what is right and what is wrong?
Let me go through them. If you are a parent, or not a parent but are responsible for the guidance of a child whatever that age that might be, we were led to believe if it is verbal abuse, that will continue. You will be passing it on to a child, and that child will also pass it on to another child. It is a repeated behaviour. When it comes to physical abuse, again, it is the same principle; it is passed on. Our ancestors told us not to exercise those two important things that make a life a life, because they will have consequences if you do not deal with them properly.
That is fine for me to say that, but when it comes down to the actual practice, do they practice those rules? I could say the only practice that I have really seen in those areas is reasonable restraint. You have to try to reasonably restrain yourself, because without even thinking, at times — depending on the hard time that child is giving you, whatever that age might be — you might end up losing control of yourself.
There are many different aspects that are important. I see both sides on this issue. I have also dealt with you in the past on this particular issue and I know where you are coming from, but that is not what really got me to raise my hand. I believe we have already dealt with this before, but maybe not in so much in detail as the way we are looking at it now. By removing section 43, is this enough or do we need to have a combination of this and another section? The first time I heard that was today.
The reason I have raised my hand on this issue is because I do not want this to become a problem down the road, saying we have already passed it so what are we doing? Have you looked into this, chair? This is not the first time we have this bill in front of us. We have passed this bill.
The Chair: It has, and I think my memory does not fail this time when I say that, to some extent, these issues have been considered. If you look, for example, at the extracts from the Standing Senate Committee on Human Right's report on our international obligations under the Convention on the Rights of the Child, the passage on what is, in the Canadian context, section 43 also contains quite a lot about the issues that are addressed by Senator Watt.
Certainly, testimony before the Standing Senate Committee on Human Rights, when it studied this bill in its previous incarnation, also went to some of those issues. I was not here for the Standing Senate Committee on Legal and Constitutional Affairs' study of this bill before that, but there is a lot of material available.
I think some of it has already been circulated to senators. If you want more, we can certainly see if there is anything missing from what has been sent to you, other than the legal cases that Senator Joyal and others have requested. There is a great mass of material, but I think you might gain some comfort if you started by looking at the report from the Human Rights Committee on the international obligations, which was called Children, the Silenced Citizens, and it was presented in April 2007. It is actually the most thorough work on all of the rights of the child and on all of our duties to children that I think the Senate has ever done. I think it has to be a foundation stone of all the work that we do going forward in this area.
[Translation]
Senator Hervieux-Payette: In fact, I have been quoting one of the works that reflects my own thoughts. We have discussed the grounds for defence that exist under section266 and section 43 is an additional one. That section is no longer needed. It isolates children and turns them into victims. I believe that as far as their safety or their physical integrity goes, this is an anachronism in our law. It took several decades to, legally, prevent violence to women.
If this bill is not adopted, I will spend the rest of my career in Ottawa bringing it back. Perhaps we have to get used to the idea. Perhaps we do not have the courage to move forward. However, the British Parliament — which was actually the inspiration for our own Criminal Code that is almost an exact copy of theirs in the 19th century — repealed that section and used reason grounds to remove it. They stated that keeping it in order to supposedly protect the family, would send the opposite signal and that in fact, it was not resulting in the intended outcome.
I think that repealing section 43 is the beginning of a solution to violence to children. I can tell you that if I, as a parent, struck my child on the arm when I became impatient, I was more punished than the child was and I regretted having acted that way. And if it happened once a year on one of my three little devils — because I had three children in four years — that was a lot.
I can tell you that parents who are aware that this is something that is not appropriate are hurt more than the children are. But the signal has to be sent to society that this is not tolerable. I see people in shopping centres who strike their children. I see people in the street or restaurants who mistreat their children. I often have to stop myself from physically intervening. This is something I cannot tolerate and I have great difficulty in tolerating it as a society.
The day we state that this is no longer to be tolerated, we will not see these things happening in public. You have probably all had an opportunity to see a parent use violence on a child in a public place. I can tell you that we do not have very many means at our disposal. And the day that society forbids physical correction on children for educational purposes, will be a day when we, as Canadian citizens, may have accomplished something. We will have understood that we must respect children and give them the same rights that we enjoy.
[English]
The Chair: Colleagues, we will continue our study of this bill tomorrow morning, at 10:45 in this room. Our witnesses will be from the Canadian Council of Criminal Defence Lawyers.
Until then, colleagues, thank you very much. This meeting stands adjourned.
The committee adjourned.