Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 20 - Evidence for June 4, 2008 - Afternoon meeting
OTTAWA, Wednesday, June 4, 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 3:02 p.m. to give consideration to the bill.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs where we will continue our study of Bill S-209, An Act to amend the Criminal Code (protection of children). Before I introduce our first witnesses this afternoon, there is a small matter of committee business. The steering committee has discussed the fact that a number of the regular members of this committee will be away travelling with other committees this week. To simplify everyone's planning, the steering committee agreed that this week in this committee, we would not hold votes. We will do our work but not hold votes until we can resume our regular work next week.
I ask for a motion to that effect.
Senator Campbell: I so move.
The Chair: Opposed? Abstained? Carried.
Our witnesses this afternoon are Greg Del Bigio and Kerri Froc, from the Canadian Bar Association; and Norm Boxall, from the Criminal Lawyers Association. Following presentations by the witnesses for both associations, we will move to general questions.
Mr. Boxall, please proceed.
Norm Boxall, Vice-President, Criminal Lawyers Association: Thank you for the invitation to speak to Bill S-209 on behalf of the Criminal Lawyers Association. We take seriously the opportunity to participate in the parliamentary process and to have input, whether or not senators agree with us. The Criminal Lawyers Association is comprised of approximately 1,000 criminal lawyers practising in the courts of the province of Ontario on a day-to-day basis.
We are here today to offer a perspective, not to refer to legal cases and my interpretation of them. We can all read and understand what the Supreme Court said, and agree or disagree with it. The perspective I bring is one of the reality of what goes on in the courts, not what they talk about in the Supreme Court of Canada where nine judges impose the law. I and most of our members practice in the provincial courts daily. I am here to talk not only about theoretical law but also about the practical reality.
The CLA members are primarily defence lawyers. Some do prosecution work as well and a number of the members act for witnesses. Often in the criminal processes, witnesses, usually victims, will have witnesses; so some members act for witnesses or victims. We have the bias that we generally act for accused persons, and we come from that perspective.
First and foremost, we are opposed to violence against children. We do not support crimes against children. My remarks today should not be taken as any endorsement of any parenting procedure. The issue is not whether we agree or disagree with parenting procedures. In fact, I may well agree with some of the sentiments that are expressed by those who propose this bill, as a matter of parenting procedure. The perspective we bring is that leaving matters to the discretion of the authorities, to the prosecutors or the police, however well-meaning, to decide which cases will end up in court is dangerous. Our opinion is that we need the protection that section 43 provides. Parents and teachers need it so they do not have the threat of the criminal law hanging over their heads.
We have a great deal of first-hand experience in matters left to discretion or where discretion is not given. A primary example can be seen in the domestic or partner assault violence. We do not propose returning to an era when domestic violence was swept under the carpet or not dealt with. It is entirely appropriate that it be dealt with in the courts. However, we also see that the well-meaning goal with no controls over it effectively becomes zero tolerance, such that no discretion is exercised by the police or the prosecutor. We then see cases clogging the courts with trivial matters and the criminal courts used by persons in family law disputes on a regular basis. One of our concerns is that this bill will provide yet another opportunity for that to happen, and there would be few effective controls on it. By the time the court sorts out the case six months to one year later, someone has been removed from their home, denied access to their children, and denied contact with their spouse. The damage is done. Yes, children need to be protected from violence but children also need parents.
We agree that the Supreme Court's prior interpretation of section 43 did not reflect current social expertise and values.
However, its most recent interpretation is very narrow. I have passed out my speaking notes for you and I will try to go through them quickly.
Once understood, section 43 does not protect persons who act out of anger or frustration; it does not protect persons who would use corporal punishment for children under the age of 2; and it does not protect persons who would use corporal punishment for teenagers or persons over the age of twelve. Also, it does not protect persons who use an object, such as a belt or a stick, or persons who use a blow or slap to the head.
It only protect parents, teachers or persons standing in the place of a parent who use minor force for corrective purposes. It is to correct the behaviour. There are analogies and cases. It is not necessarily that we agree or disagree with the parenting technique. I often see parents at the supermarket or the playground and I say to myself, I would not treat my child that way; I would not say or do that to my child. However, it is a big difference to go from that to saying, I do not think you should talk to your child like that, and calling the police to arrest that person or persons.
There is potential harm in having a mother or father charged because he or she used a minor corrective technique — one that does not involve blows to the head, or that does not cause physical injury or involve a weapon. An example might be that of a child watching an inappropriate TV channel. There are too many of those on TV. Maybe we want to see laws protecting children from TV programming and Internet content, and from parents that would let them watch that.
However, what if a parent does not want to let their child watch something inappropriate, tells the child to change the channel and, in response, the child becomes aggressive and says they will not? The parent says, go to your room, and the child replies, no, I will not.
No amount of instruction moves that child. The parent then moves to the child, takes the child by the hand, leads him or her to their room and says, Sit there for a few minutes; you are in a time out. Likewise, if the child is in a tantrum, a parent may need to restrain the child and remove the child from the cause.
Our association does not think it is appropriate to call in the police and have a parent handcuffed, taken down to the police station, fingerprinted, removed from their home, barred from contact with their children, given a criminal record and potentially have their job taken from them. What is that in aid of?
The existence of this section does not encourage or promote conduct. It is a reasonable recognition that, in perhaps the most difficult job of all — being a parent — difficult situations can be recognized. In those cases where a parent uses the types of minor corrective application of force the Supreme Court of Canada has set out, in our submission, that defence should remain.
It is said, do not worry about it; other things can be relied upon; you can rely on the defence of necessity. However, defence of necessary applies only to imminent harm. That will not protect a parent who thinks their child should go to bed, come home from the playground, turn off the pornography channel, not use the Internet, stop being cruel to the cat, et cetera. That defence will not cover any of those situations.
Assuming the concept of de minimis non curat lex exists in law — and I like to think it does — success in advancing it is limited. I have been in front of judges that say that concept does not apply in domestic concepts. It is far from clear that there is such a concept in law, let alone rely on it.
We have seen a failure of prosecutorial or police discretion in other cases. This discretion leads to an uneven application of the law and bestows persons with tremendous power. Not all charges in this country are brought by the police or prosecutors. We still allow private charges. That would allow any parent in a domestic dispute who wishes to advance their custody case to say, I saw my person grab hold of Johnny's hand and pull him to his room. It would be sufficient to charge and possibly convict.
The criminal law is a powerful instrument but it is also blunt. It often acts like a sledge hammer. It is not the route we would propose. Even if we accepted that this issue is a social evil, and accepted that it requires something to be done or that it is inappropriate, the criminal law is not the first choice. It should be the last choice.
Even if there was a generalized view that the conduct was inappropriate, that does not equate to criminalizing it. We might think that a great deal of parental conduct is inappropriate. We do not need to criminalize it. We need to further advance educational programs, resources for the family and other forms of social assistance.
Being a parent is one of the hardest jobs. There is little training or education given to it, and often few resources applied to it. As a society and as a community, we should assist those parents in their job, not bring them down in handcuffs and chains and put them in jail.
The bottom line is, in our view, this defence, as narrowly interpreted by the Supreme Court of Canada, should remain, and it is a protection against what we see as a potential other harm. It is not a fictitious harm. We see it on a day-to-day basis. What you might think are trivial matters are prosecuted, families are disrupted and considerable harm occurs.
That is what I would like to say as an opening statement.
Kerri Froc, Legal Policy Analyst, Canadian Bar Association: The Canadian Bar Association is pleased to appear before this committee on Bill S-209. Our written submission has been circulated to you in advance.
The Canadian Bar Association is a national association with about 38,000 members across the country. The National Criminal Justice Section within the Canadian Bar Association is composed of defence counsel, prosecutors and academics from all provinces and territories. The primary objectives of the organization are improving and improvement in the law and improvement in the administration of justice.
It is in that light that we, today, have made our written submissions and make our comments to you. With that, I will turn to Mr. Del Bigio, the Chair of the National Criminal Justice Section, who will address the substantive issues in the bill.
Greg Del Bigio, Chair, National Criminal Justice Section, Canadian Bar Association: Thank you for allowing us to be here. Our position coincides with the position eloquently placed before this committee by Mr. Boxall. He has stolen our thunder a little bit. However, if you indulge me, I will present in brief our submission and make some other comments.
One reason that the National Criminal Justice Section of the CBA is different from Mr. Boxall's association is the composition of the membership. Our composition is both prosecutors and defence counsel. It is through that perspective that we arrive at our submissions and policy positions; it is through the experience of prosecutors and defence counsel across the country that we draw, and arrive at, our positions.
First, it is imperative I say this so there is no misunderstanding: Nothing that the CBA says today should be taken as suggesting we are not in favour of the protection of children. Children deserve protection, plain and simple.
However, it is our position that section 43 is perfectly consistent with the protection that children deserve.
While we understand that the bill is intended to protect children better, we do not support the passage of the bill. We are concerned that the changes suggested by the bill would dramatically expand the reach of criminal law in a wide range of circumstances, such as those that Mr. Boxall commented upon.
They would give rise to consequences such as those stated by Mr. Boxall: arrest, removal from the home and being subject to bail conditions that might prevent a person from returning home or having contact with the children. The person might be subject to those bail conditions until the charge is resolved. Depending where in Canada this occurs, that type of charge might take months to resolve.
In the meantime, there is a disruption to the family. There is the criminal charge itself. Then, if there is a trial, it creates a situation where family members, including the child, will testify against the parent who has been charged. There are the penalty consequences of a conviction and the further consequences that might impact the family, such as, for example, loss of employment. The potential consequences are far-reaching and in many ways dramatic. They need to be thought of carefully.
As Mr. Boxall and other witnesses have testified, it is essential that section 43 be properly understood. There is a lot of room for debate with respect to the Supreme Court of Canada decision; how they did it and whether what they did was good, bad or something else. The fact of the matter is that we now have an interpretation of section 43 that provides close limitation upon its scope of application. It does not permit the infliction of bodily harm, abusive conduct or striking out in anger, frustration or rage. It does not permit the application of force because of lack of control. The purpose must be corrective.
It is premised upon the role of parent and child, and the section properly interpreted recognizes the interests of children. It recognizes also that a sphere of protection should exist for corrective action, and that sphere of protection should not be construed or interpreted on an ad hoc or discretionary basis. In the words of the majority, it should be premised upon the rule of law, applicable to all.
It is not a subjective standard. It is not anything goes. It is not a defence to use force against infants. As Mr. Boxall said, it does not permit the use of objects such as belts or rulers, and no blows to the head, for example. In the words of the court, it refers to minor corrective force of a transitory and trifling nature.
It is our position that understood in that way, it is consistent with the duties and obligations of a parent or teacher in relation to children. It is consistent with the needs of the children and the need to protect children. It is consistent with the rule of law. To repeal this important provision could give rise to consequences that are far-reaching.
As was alluded to by Mr. Boxall, provisions of necessity are de minimus, if they exist, and inadequate. This matter should not be left to the discretion of one parent in deciding whether or not to call the police; discretion of the police in deciding, having arrived at the household, whether or not to arrest; and discretion of a prosecutor with a file that has landed on their desk in deciding whether or not to proceed.
The prosecutorial discretion must be remembered. It might come some hours or indeed, even days down the line. If the case of a Friday night arrest, a person might be incarcerated and brought before a court for purposes of a bail hearing a couple of days later, depending upon the resources available in a particular community. It might take time to capture the attention of a prosecutor to have them exercise their discretion not to proceed on a particular charge or to relax bail conditions that exist.
It must be remembered that many police officers and many prosecutors will be guided by a cautious approach. What will caution dictate in a circumstance such as this one? Let it go a little bit further; learn a little bit more about what was going on before the situation is addressed.
It is our belief that once the process is engaged — and it is a powerful process — it will not be stopped easily. It is for those reasons that we do not support the bill.
Senator Andreychuk: Thank you to both witnesses. I think you have addressed some of the fundamental issues we must deal with.
Before I ask several specific questions, the term "corporal punishment'' has taken a universal meaning, particularly when the United Nations Convention on the Rights of the Child came into force. The convention talked about not using violence against children, and to try to break the link with the old way that a parent could do as they saw fit. It was to modernize and give respect to the child, but it never intended, as I understand the convention, to take away the parent's role of raising the child, correcting the child and hoping the child can assume their responsibilities as a citizen and as a human being.
The term "corporal punishment'' became a rallying cry around the world because of the variations. It seemed to gain resonance more than the right to have a family, for example.
Mr. Del Bigio, you pointed out properly that if a parent is arrested, we deprive a child of the right to a family and the right to grow up in a milieu of their own culture and religion, et cetera. My concern is that we want to continue to give the signal in criminal law that this excessive behaviour of parents will not be tolerated. In fact, the Supreme Court has said so. On the other hand, we want to leave some discretion for parents and teachers to deal with the child that is out of control and to use minimal force, as you have said.
With that preface, Mr. Boxall, I have one question. You say that this bill inevitably will result in zero tolerance. Is that because it will be difficult for a prosecutor, when we have so many different examples of children — you are in provincial court, and that is where I used to be — that we do not say, here is how you parent? We allow parents to determine how they raise their children. Every child is different and every family is different, so there is discretion within the family.
Is it because it would be difficult for the court system to determine what case could be left? There is police discretion and prosecutorial discretion. Is it because you think it will be hard for a prosecutor or police to know, when there is minor touching or restraining of a child — pulling the child back, for instance — that the prosecutor and the police will not know the full context of that family?
Mr. Boxall: First, I think Mr. Del Bigio's comment about delay is important. The prosecutor may not receive the file for some period of time. Once it is received, the prosecutor will act cautiously and want more input. There will be a delay aspect, and that delay aspect is not helpful for the parent who has been arrested, whose child has seen the parent arrested, whose neighbours saw the parent being taken out into the police car and the name appear in the newspaper. It is all too late when a month or two down the road, the prosecutor determines it was reasonable.
Similarly, with respect to the police, what can happen and what happens is we operate in a criminal law context where there is a huge amount of discretion in the common law. Crown attorneys and police officers are seen to have tremendous discretion, and for the most part that is good.
However, on a day-to-day basis, we see what I think is well intended in the general sense, but we see a limiting of the discretion. We see policies enacted for the general good but not for the specific. As communities become larger, it becomes too difficult, too time consuming, to deal with them on an individual basis so they have a one-size-fits-all rule. As criminal defence lawyers, we see that the police officers are becoming increasingly reluctant to use discretion. It is far easier to do it and then, let the judge decide.
Prosecutors are becoming reluctant to use their discretion. It is not that some do not because some do, but many do not. However, it is not much protection for the parent. Also, we are looking at the aspect that parents deserve, as I think the case said at one point, not only to be protected from the potential criminal sanction that the section gives at court, but parents and teachers — my wife is a teacher and she would have a few things to say about what happens in schools these days — also deserve to be removed from threat.
Children are well educated these days, so when an eight-year-old is in the face of a parent or teacher saying, Don't touch me or I'm calling the police, it is powerful. I think, as a parent there is a need to be protected not only from a criminal conviction or needing a defence, but also the threat of it.
Yes, I am concerned that when it is left to discretion that policies may decide not to exercise it. I am also concerned that there are 1,000 police officers in the city of Ottawa alone who will all have varying standards. It sounds good, but I would not want my freedom or my family subject to someone else's unfettered discretion.
Senator Andreychuk: Mr. Del Bigio, we referred to the R. v. Swan case. I am not sure if you have followed it as closely as we have so you might let me know. That case opens up the fact that the Supreme Court pronounced on corporal punishment, the essence of using excessive force on a child. However, the case was graphic when a parent uses corrective force that would not allow for the defence of de minimis probably, as you say, but more importantly would not allow for the other defence of imminent harm, et cetera, to be applied.
Do you think that case is meritorious in saying that the Supreme Court dealt with the essence of corporal punishment as we used to know it, and limited its use to between ages 2 and 12, under certain circumstances? The judgement said not before two years old and not for teenagers because it would be too volatile. The Swan case took another approach and said that there are other aspects of minor, corrective behaviour that are necessary and are still included as a defence in section 43, which it appears the Supreme Court did not fully answer. Can you comment on that?
With that, how does one deem consent to any touching of a child, as opposed to deemed consent in an adult situation where the adult can speak fully for themselves? How does one deem consent to an 8-year-old or a 13-year- old?
Mr. Del Bigio: I do not know that the parent-child relationship is best characterized as one of consent between equal parties. It seems that, indeed, many aspects of parenting are inconsistent with consent. In many instances, the role of the parent is to guide and at times to impose will upon a child in appropriate ways.
The notion of consent is sometimes a useful one in terms of certain situations in which an assault might otherwise be construed. Hockey is perhaps a good example. The notion of consent does not map well onto the children-child relationship. It is difficult to think that the child has somehow consented to being in that relationship with all the applicable rules such as a hockey player does when the hockey player steps onto the rink.
In terms of other facts, and to Swan, it is the nature of the law that different facts will be presented to different courts, and different courts will take what the Supreme Court of Canada said and interpret it and apply it. The law is not static in that way. Indeed, one of the most dramatic examples of the law not being static is perhaps the Supreme Court of Canada itself, which said it is time to look at this issue again and address what is meant by section 43 here and now, not 50 years ago, not a long time ago, but by the standards of here and now.
In some ways, perhaps legal academics will debate for a long time whether the Supreme Court of Canada should have read into section 43 the limitations it did. In some ways, that is good stuff and people might write about that, but I say, in a way it does not matter. They did what they did and that is the law and it will evolve necessarily in small steps at a time to other fact situations.
The notion of corporal punishment has all the negative connotations that it should, and perhaps it is best now to think of the application of section 43 in terms of the language of the court: minor, corrective action. The law no longer recognizes the notion of corporal punishment. Statements such as "spare the rod and spoil the child'' have gone. That notion is indeed now illegal.
Senator Baker: I thank the witnesses for their excellent presentations and, of course, the three witnesses are litigators who are reported widely.
You say that the normal defences that would apply to a charge of assault, common assault, assault simpliciter, simple assault, whatever you want to term it, are not adequate in this particular circumstance if we were to remove section 43 from the Criminal Code. That is your conclusion, is that correct?
Mr. Boxall: I would say yes, and it is important to know that an assault is an intentional application of force without consent. Once they have proven the identity of the person who applied force, the normal defences are really only two: consent, that is, the person was consenting to being touched, and self-defence.
The references I made, and I believe Mr. Del Bigio made with respect to necessity and de minimis, are extremely rare cases. I have practised criminal law for 30 years; I have had one necessity case and I have never had a de minimis case. If we went around my firm and we added up hundreds of years, we would see it is rare.
As I said, I am not sure de minimis exists. With respect to a parent, the situations we are talking about for corrective force are not necessity cases, and it is totally unclear if de minimis exists as a defence. If we look at the two real defences or the regular defences, as you say, I will say why they are inadequate.
The first defence is consent. The previous speaker indicated that consent does not apply as much in the parent-child situation. How can there be any implied consent? The law is, no means no. The child might be in the midst a temper tantrum and doing something totally inappropriate, although perhaps not imminently dangerous, and the child might say, do not touch me. How can that be implied consent? It is clear there is no consent in that case. The second defence is self-defence but if the child is three feet, six inches tall and the adult is six feet, three inches tall, it is not self-defence. The usual defences will not apply in the situations that section 43 now interprets as narrowly covering minimal force for corrective action. You are right in saying that the usual two defences will not apply. It is totally different with respect to husband and wife situations where the adult can speak.
Senator Baker: The offence of assault is addressed in section 265(1)(a). Section 265(1)(b) is if one makes a motion that the receiver of the alleged assault believes the person has the capacity to carry out, it will be classified as an assault under the law. However, I am sure you have not often seen that section litigated. Is the situation similar where something is in the Criminal Code as a criminal offence but we do not see it charged?
Mr. Boxall: I can tell you what we are seeing in the Criminal Code and that we are seeing things charged that might surprise you. I want senators to understand the bases of these remarks. As I said earlier, I do not propose turning the clock back on domestic violence but, in the city of Ottawa, what is the largest single section used by the police? It is not major crime; it is partner assault. About 20 per cent of the cases are partner assault. Obviously, there are extremely serious cases. We hear about such cases and wonder where the police were. A woman is murdered and it is atrocious. However, the cases I see involve such things as a husband and wife arguing over the car keys and pulling each other's hand; or an argument that results in one partner striking the other with a roll of Christmas wrapping paper, which is assault with a weapon resulting in the person remanded to custody. It does not even require application. You are right: if the person raises a hand in the position, it is now deemed a threat or an assault. With a perfectly legitimate goal and a perfectly legitimate interest, we see things in court today that we never would have seen before. We are seeing no discretion applied and there is no discretion available, whether that is because the policy instructions are out of fear that they will be judged, or what could happen.
I am not prepared to say that because we have not seen cases with children in court before, we will not see them now but if you take that direction, we might well see them.
Senator Baker: To buttress your argument, you say that the system is such that the police lay the charge and then the prosecutor decides whether to continue the prosecution. In the meantime, the person is held in detention and must make an appearance within 24 hours before a judge, if the law is followed properly. Conditions of bail ensue in the interim, which can cause disruption in the family.
Would you not admit that those conditions apply to every single person who is in a jail in any city? We heard a witness say before this committee that some 40 per cent of the people in jail have not been convicted of any crime. Are you justified in separating this particular offence and saying that we should not encumber a person with this kind of procedure, whereas everyone else is encumbered with that procedure who is accused under the law?
Mr. Boxall: You are right, but I deal with this on a regular basis when I deal with my clients who are charged in a partner assault. It will be even more dramatic if I deal with them in respect of an involvement against their child. It is usually easy in the criminal law: there is an accuser and the accused. My job in defending might be to show that the accuser is a liar but, when the accuser is someone close to the accused that they love, such as their child, criminal law is inappropriate. It will not be helpful to go to court and say that the child is a liar and the mother is a liar, or whatever. That is not helpful. In my submission, it would not be helpful either in dealing with the issues. If there is a concern that minor corrective force as narrowly interpreted, not violence on children, that should be dealt with, let us do so with public education, the Children's Aid, social education and high school courses to educate future parents. Let us do all kinds of things but let us not arrest daddy and take him out in handcuffs, and have the child appear as a witness on the other side six months later.
Senator Baker: You both concluded that the defence or the excuse of de minimis, which is that the law does not concern itself with trivial matters, is not recognized. You said there is nothing in the code on it as a common law principle or an ancient maxim that dates back hundreds of years. You say that you have not seen it used successfully. Are you saying that de minimis is not a defence in Canada?
Mr. Boxall: No, that is not what I am saying.
Senator Baker: I thought that is what you both said.
Mr. Boxall: I am saying that it is not clear. I have been in court where the judge says there is no such thing in a domestic context; I have heard the judge say that.
Senator Baker: Is that in domestic context?
Mr. Boxall: Yes, and then we would be into parent-child situations and the judge will say it does not apply there either. As a defence lawyer, I would argue that. If there is a hint of dissent out there, I will say that this argument should be advanced. I am only saying that my review of the law is such that although de minimis is talked about and it has, on occasion, crept out there, there is not a clear delineation of the principle in the case law. You might say, fairly, prior to the decision of the Supreme Court of Canada in 2004 with respect to section 43, we did not have the guidance as to what it meant for all those trial courts. What we think is minor, for the person who is charged or the people close to them, that is the most important case. When someone is charged with a push and shove on their spouse, that is more important to them than the person in the newspaper who is charged with murder. To society as a whole, the case might not be deemed suitable to go to the Supreme Court of Canada and obtain the definition. I want a Supreme Court of Canada case that sets the parameters of de minimis but I do not know how we would accomplish that goal. That is the problem, although it would be nice if we could do it.
Senator Baker: The Court of Appeal would need to pass judgment on it.
Mr. Boxall: It would need to work its way up, and I should tell you about the costs involved in that process. I do not know whether we will have that case any time soon.
Mr. Del Bigio: I agree with Mr. Boxall's remarks. It strikes me that at least with the uncertainty surrounding de minimis and its application, it is preferable to operate on the basis of section 43 because it adds much greater certainty and clarity to the law, both of which are desirable.
Senator Di Nino: Mr. Boxall, I want to confirm something you said on four occasions in the last seven or eight years. I spent New Year's Eve patrolling the streets with the chief of police of two separate police forces in the city of Toronto. It was astounding where the action was; where the officers were called to solve problems. It was mainly marital or family problems, which confirms what you said before.
I have a simple question for the record and for clarity. We talk about "children,'' "child'' or "pupil.'' What is the definition of those words? How do we define a "child'' or a "pupil''? Is there an age?
Mr. Boxall: The Supreme Court of Canada has told us it is between 2 years and 12 years of age.
Senator Di Nino: Therefore it is until the age of 13. I wanted to put that on the record.
I heard one comment from both of you. Mr. Boxall, perhaps you can comment. I understood from you that there is a concern that the repeal of section 43 would be subject to abuse that could lead to inappropriate charges, whether it is mischief or meant in some other more serious way. Did I understand that correctly?
Mr. Boxall: The charge itself is important, but do not also forget the chilling aspect of the threat of charge. I am here speaking more for parents. However, my wife is a teacher and I know there is a chilling aspect in schools where teachers now feel powerless, I would say. They are seeing levels of inappropriate behaviour at younger and younger ages that is amazing.
No one is saying to turn back to the type of punishments that were available when I was in school. Maybe those punishments are why I am a defence lawyer. No one is saying to return to that. However, it is important for a teacher or parent to have the ability to use minor corrective or restraining force when something is happening. It is important for a teacher to be able to have the child taken out of the classroom so the others are not disrupted and can continue their education, or for the parent to be able to deal with it.
I think it is important. Therefore, it is not the charges but the chilling effect of knowing there is a potential for charges. For the same reasons that police officers have protection for various aspects of their work and parliamentarians or senators probably have protections in their respective chambers to say things, parents need some as well. In the course of their duties, they need certain protections.
As Mr. Del Bigio mentioned, one important thing that we talked about in the parent-child relationship is that it is not a consent relationship. The parent has the legal and moral responsibility to raise that child or a minor outside the age of 2 to 12. However, as I am trying to deal with some of my own children, they want to do something and I say I have a responsibility. I am responsible. The buck will stop there.
Senator Di Nino: Mr. Del Bigio, in your presentation, at least the written one, on page 3 you make a strong statement. You say that removal of section 43 ''might actually represent an increased risk to children.''
Can you expand on that thought?
Mr. Del Bigio: Children need and deserve protection. It is recognized that children do not always know what is best for them. Not all issues can be a matter of reason and debate, particularly for children who are closer to 2 than 12.
If certain parenting methods are removed, it might mean that, in certain instances, a parent is not able to be as effective as the parent ideally might be. In such instances, there is sometimes, at least, the risk of harm to children.
Senator Di Nino: On the final page of your brief, you list three points. I was struck by the third one. You say:
...it would have no impact on actual assaults on young people by parents and authority figures.
Can you expand on that point, please?
Mr. Del Bigio: Section 43 provides a defence or a protection to parents. It does not exempt criminal conduct. The repeal of section 43, thus, will create a zone of uncertainty as to where the protection or defence will be availed to a parent. That uncertainty is undesirable for the reasons that Mr. Boxall has said.
However, the repeal does not change the notion of assault. What constitutes a criminal assault now with section 43 will continue to constitute a criminal assault. If section 43 were to be repealed, there will be a lot of litigation with respect to issues such as de minimis. That is guesswork on my part.
My guess is that defence lawyers will do their best to carve out a zone of protection within the common law. Judges probably will find it desirable somehow, or in some instances, to recognize a zone of protection. However, that litigation is uncertain, it is time-consuming and it is expensive. One must remember, also, that each time a case reaches a stage where there a legal argument is made upon a point of law, the evidence has been heard. In these cases, the evidence likely will be family members — the child and perhaps the spouse — testifying against a parent and subjected to the cross-examination that will, in most instances, be part of that evidence.
Like Mr. Boxall, I have worked on these cases. These cases are horrible, in many ways. If I put down my pen and push away my papers and talk in plain language about these cases, it is not good for the family unit to have one spouse testify against another; to be subjected to cross-examination to try to demonstrate that the person is inaccurate, is intentionally lying or misleading; that there is a consensual incident rather than a criminal assault or that the person had consumed alcohol or narcotics such that the person's recollection is inaccurate. I can tell you, none of that is good for the family unit.
Trying to carve out the zone of protection that might exist if section 43 were gone will follow all that evidence and all that cross-examination. That is my legal argument. I am not saying that should never occur. There are cases in which people are properly charged with an assault in which there is no defence through section 43 or otherwise. There are cases in which actions of parents against children are characterized properly as criminal. Those cases will continue to be properly placed before the courts and litigated as people instruct their counsel.
However, I return to where I started: Section 43 should continue to exist to ensure that those cases placed before the courts are cases where the actions are wholly inconsistent with parenting and the interests of the child.
The Chair: Mr. Del Bigio, in the summary section of your submission, where you say, "In summary, repeal of section 43 would have at least three undesirable consequences,'' you go on to say that repeal "would grant immunity to children and teenagers for unruly, dangerous or destructive behaviour'' and that "it would hinder parents, teachers, or other persons in authority from appropriately restraining a child or teenager whose behaviour endangers or is disruptive to others.'' However, I thought the Supreme Court told us that section 43 does not cover the use of force against teenagers. Can you explain what that is about?
Mr. Del Bigio: Your question is a good one, and I thank you for it. Here is where I need to fall on my sword and say that better language would not have included the word "teenager.''
The Chair: I am grateful for the clarification.
The other thing that has always baffled me about the Supreme Court's explanations and interpretations of section 43 is the passage you conveniently, for my purposes, quote, where the court said, "It is wrong for law enforcement officers or judges to apply their own subjective views of what is `reasonable under the circumstances'; the test is objective.''
I can see why some of the elements of the test would say that. Ages 2 to 12 is clear. It is like theft over or under a given dollar value. No objects to be used means you cannot strap somebody. That is clear as well.
Even so, how confident are you — you are practising — that it is possible to have objective tests? For example, this decision came after the court was talking about conduct stemming from frustration and loss of temper. Who can separate out something that may have stemmed, in part, from frustration because a child needed to be corrected? Do you understand what I mean?
First, are you, as practitioners, satisfied that everyone understands these objective criteria thoroughly? Second, if they do not, do we face more litigation on further interpretation of section 43, as, presumably in the absence of section 43, we might face litigation on what de minimus might mean and where it might apply?
Mr. Del Bigio: I am satisfied that the wording is adequate. To elaborate, the nature of the law and language is that there will always be uncertainty around the edges, but that does not detract from the fact that there will be a core meaning that is understood. I think we are incredibly fortunate to live in Canada where we have highly trained judges and highly trained prosecutors and defence lawyers who put cases before these judges, and the judges do their job in applying the law.
The importance of the language of objectivity is that it does not permit somebody to come to court and say, "I thought this was okay.'' That is not a defence. That statement needs to be measured against an objective standard of whether, in those circumstances, the action in question constituted minor corrective action.
Will there be disagreement: absolutely. Is there always disagreement in the meaning of particular words within the law: absolutely. Does that mean it is not well phrased in this instance? I do not think so.
The Chair: The question may have arisen because I used to be a journalist, and we learned early on that objectivity is in the eye of the beholder, but thank you for that. Mr. Boxall, do you have anything to add?
Mr. Boxall: No, I do not think so.
The Chair: We thank all three of you very much indeed. This was interesting food for thought, and we are grateful because we know you are all busy.
While Mr. Boxall, Mr. Del Bigio and Ms. Froc gather their materials together, I will invite our next witnesses to come forward.
Mr. Macaulay and Mr. Dudding, thank you both very much for appearing. We have Chief Superintendent Fraser Macaulay, Director General, National Youth Strategy, Royal Canadian Mounted Police; and Peter M. Dudding, Executive Director, Child Welfare League of Canada. This topic is interesting, and we know that what you say will be helpful to us as we go forward.
Peter M. Dudding, Executive Director, Child Welfare League of Canada: It is my pleasure to be here today, and I want to thank you for this opportunity to provide our best advice on deliberations concerning Bill S-209.
I recognize that the concern about child protection is foremost in your minds and that determining the appropriate role of the state in the best interests of the child requires a great deal of wisdom, courage and foresight.
The Child Welfare League of Canada is a national child and youth rights organization. We are comprised of 125 members in all provinces and territories, including child protection, child and youth mental health and young offenders services. Our members employ social workers, child and youth workers, family support workers, foster parents and volunteers who see the tragic and ugly consequences of the real trauma and harm experienced by these children and youth.
The Child Welfare League of Canada has taken the position of endorsing the excellent work of the Standing Senate Committee on Human Rights report, Children: The Silenced Citizens, in particular, recommendation 2, "that the federal government take steps towards the elimination of corporal punishment in Canada.''
My own background, with 36 years of experience as a child protection worker in many parts of Canada, and now as the co-chair of the National Steering Committee on the Canadian Incidence Study on Reported Child Abuse and Neglect, leads me to the conclusion that both legal and social remedies are required to address these complex issues. The Canadian incidence study is a national surveillance program of the Public Health Agency of Canada regarding reported child abuse and neglect.
It appears to me that this committee is debating two fundamental questions. First, what are the consequences of the repeal of section 43? Second, what are the experiences of other countries that have banned the use of corporal punishment? I want to focus my comments in a manner that hopefully enables you to better answer these two questions.
From Canadian and international studies, well documented in the Canadian Joint Statement on Physical Punishment of Children and Youth — we brought this document for senators as well — we know that the escalation of violence in child rearing, the intention of correcting behaviour by using corporal punishment, can lead to serious maltreatment. Make no mistake: Children who live in a home where physical punishment is used are at a greater risk of child abuse.
The Canadian Incidence Study on Reported Child Abuse and Neglect estimates that there were 82,000 investigations regarding physical abuse in 2003. An estimated 32,000 investigations involved concerns about a child hit with a hand, and 18,000 involved concerns about shaking, pushing, grabbing or throwing. From 1998 to 2003 the rate of substantiated physical abuse increased by 107 per cent.
We must also remember that these numbers represent only those incidents that were reported to a child welfare authority. It excludes those incidents not reported or reported to another organization, such as the police and never came to the attention of the child welfare authorities. Therefore, the numbers I have given represent only the tip of the iceberg.
The Standing Senate Committee on Human Rights heard compelling evidence regarding the psychosocial damage, antisocial behaviour, criminal behaviour and the cycle of violence that can result from corporal punishment. The body of psychological and psychiatric evidence continues to grow.
Virtually every child welfare agency in Canada, whether a government or a non-government agency, has a ban in place prohibiting the use of corporal punishment. My personal knowledge of this ban was the resolution of the Foster Parents Association of the Children's Aid Society of Toronto in 1972. It has long been recognized by these agencies, staff, foster parents and volunteers that the use of corporal punishment is unacceptable.
Remember, these committed caregivers are looking after more than half a million children and youth who have been traumatized and can often exhibit difficult and challenging behaviours. These policies carry consequences for these caregivers, including the loss of position, career, role, and compensation. Yet these policies are widespread, enforced and well accepted by those working in the field of child welfare.
You will learn more about it, I know, but New Zealand introduced amendments to section 59 of its Crimes Act in June 2007, abolishing the use of parental force for the purpose of correction. There was a debate about the potential criminalization of parents and therefore, specific provisions were built into the act to define the reasonable use of force and to monitor the effects of the act. I respectfully recommend to this committee, and I have provided a copy for each of you, the report, Three Month Review of Police Activity Following the Enactment of the Crimes Amendment Act 2007. This review shows a "small increase in police activity in attending and/or investigating child assaults and there were no prosecutions for `smacking' or acts of physical discipline.''
I remind you about the general comment of the UN Children's Rights Committee that "addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is not only an obligation of States parties under the Convention. It is also a key strategy for reducing and preventing all forms of violence in societies.''
Section 43 covers only assault for the purpose of correction. To say that section 43 is about diapering babies, putting them in car seats, stopping them from running into the road and so on is not correct. It was never about the ordinary interaction of parents and children. It is about hitting children to teach them a lesson, to correct them. We must give a clear message that hitting children is wrong; as wrong as hitting anyone else. Children tell us that physical punishment is not an effective parenting technique.
This is an opportunity for this Senate committee to provide leadership on giving children and youth equal protection while promoting the legitimate need for authoritative parenting to support positive child and youth development.
The Chair: We have circulated the three-month review in New Zealand to which you referred, as well as your presentation. Thank you, Mr. Dunning.
[Translation]
Chief Superintendent Fraser Macaulay, Director General, National Youth Strategy, Royal Canadian Mounted Police: Madam Chair, on behalf of the RCMP, I would like to thank the committee for providing us an opportunity to speak on this issue. At the same time, I would like to clarify the role of police in your deliberations.
[English]
As you are well aware, the RCMP is Canada's national police force and our mandate is outlined in the RCMP Act, which states, in part that:
It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody.
This duty is the basis of all police activity, so while grateful for the opportunity to speak on this important issue I must situate all my comments within this context. The RCMP is mandated to preserve the peace and prevent crime, guided by law. We are not legislators and, more importantly, we rely strongly on the judiciary to interpret legislators' intentions appropriately and to set appropriate guidelines.
[Translation]
Having said this, I can assure you that the police have a valuable contribution to make to your deliberations from a grassroots perspective. In reviewing a couple of days of testimony before this committee, I see clearly that the decision before you is as much a social policy decision as a legal one.
And that is a dilemma that faces police officers every day.
[English]
In Canada, every police officer is afforded discretion when it comes to enforcement. Enforcing section 43 is no exception. In today's reality, when called to a scene, police officers must first determine whether an offence has taken place, then must balance this determination with the probability of conviction if charges are laid and then consider the potential outcome.
They must make these assessments knowing that at every step of the way after they make their decision, another layer of review will be applied. They will be scrutinized as to whether they used excessive power or authority or not enough. They will be called to task for spending too much time on an investigation or not enough.
Finally, they must deal with their own values and beliefs as they conduct their business. Every day, a peace officer balances the social impact of an offence versus their legal authority to deal with such an offence.
[Translation]
Again, as I have read the minutes of your debates, it becomes clear to me that any changes to section 43 will lead to more uncertainty regarding the role of police in schools on the part of Canadians, the judiciary and legislators.
[English]
This lack of clarity could impact police in two ways. First, we may see an increase in complaints, investigations and ultimately an expectation of charges on what is now deemed legal authority. The second impact might be an increase in court time in dealing with numerous areas of assault as defence lawyers attempt to create new jurisprudence and basically argue many of the same points that you argue as to the meaning of words.
Police already have heavy case loads and the Canadian courts are so full that many criminal cases are being stayed, diverted or screened out. The impact of the removal of section 43 would only increase the demands on an already overburdened system. One suggested impact was to remove a teacher's ability to a defence under section 43 if they apply corrective action. As a police officer, I can assure you that this removal will only increase the demand for police to fill the security void in schools.
The RCMP has worked hard to delineate the role of police in schools in an attempt to stay away from the American model of police providing security in schools. Our goal is to be in the schools as much as possible, providing students with education and awareness on crime issues, mentoring and educating them and, at times, intervening in cases of offence or dispute. As much as possible, we want to be a positive part of the school system and the education and development of youth in our communities by identifying youth at risk and ensuring that appropriate services are available to them. We all know that a safe and secure environment is an essential part of learning.
I ask that you consider carefully the impact that removing section 43 could have on the school environment and on the demands for police services in schools.
In closing, I do not want you to be left with a sense that the RCMP or police in general condone the use of violence against children or anyone else. I can assure you that any case brought to the attention of the police is investigated appropriately and charges are recommended where warranted. However, I will quote from the May 15, 2008, testimony of Mark Lapowich, from the Canadian Council of Criminal Defence Lawyers. He stated:
. . . It is our position that section 43 is a uniquely Canadian approach to an extremely difficult issue. It is one that appropriately balances the various competing societal interests and fosters respect for the rule of law. It has been drafted to reflect the fact that, despite the good intentions and best efforts of legislators, they can never foresee all situations that may arise. Moreover, our country enjoys a very strong judiciary and the council feels that they will continue to apply the law appropriately in relation to these difficult issues.
I can assure you that the police do not often quote a defence lawyer.
[Translation]
Thank you again for this opportunity to speak. I would be glad to answer any questions you may have.
[English]
Senator Andreychuk: Mr. Dudding, you and I have been at this for a long time to give Canadians the signal that using violence against children will not be tolerated. We fought for it internationally and nationally. The Supreme Court should be given a great deal of credit because before the Senate committee could finish its study, it gave a definitive new look and restriction on the use of corporal punishment. We are now left with the dilemma of how to help people who are young, who are parents and who are family units? It is not the dilemma that you and I fought: The big fight is over. Corporal punishment is not part of Canadian law, nor is it tolerated, although, as you pointed out in your testimony, there is still a lot of abuse of children. I do not think the Criminal Code is the answer. You have pointed out that the answer is child welfare and education. Am I characterizing that point correctly? We still have a job to do but it is not a Criminal Code job. Rather, our job is to help families overcome abuse and perhaps child welfare and education are the two keys.
Mr. Dudding: You have characterized it correctly. Fundamentally, as we have heard in so many other areas, we are stuck with the same kinds of issues. Domestic violence cases are a large percentage of police services. Police services and child welfare do so much work together it is often confusing as to who plays the role of social worker. Police are often called upon to perform social work.
There are still issues, despite what the Supreme Court has given us in terms of a tighter and narrower definition. I agree that it is an improvement and takes us a long way from where we were, as you so aptly characterized it. Nevertheless, there is still a problem with the level of understanding of Canadians generally and even professionals about what constitutes that protected area under section 43.
We have completed many qualitative studies with social workers in the field to ask about the levels of understanding of families with whom they interact and police officers. There is still confusion over the basic thrust of the Supreme Court's determination.
Senator Andreychuk: New Zealand was planning to ban it outright but Australia except for one state, Belgium, the U.K. and Scotland have not done so. Scotland has underscored that there are times when a corrective behaviour is acceptable. Many countries under the rubric of the Europeans say they have banned corporal punishment but have not totally banned it. They face the same conundrum that Canada faces. New Zealand said that they would do away with it but, as I understand after speaking with their parliamentarians who were all for banning it when they first heard of the bill, they began to realize the dilemma for families exercising their responsibilities. Therefore, they started adding exceptions to the rule. My fear is that it will happen here too. I had hoped that was the fear of the Human Rights Committee that produced the report, Children: The Silenced Citizens. We suggested banning corporal punishment but then, we suggested studying the defences. If we remove section 43 in the snap of a finger, where does it leave the parent? We agreed to take away corporal punishment but suggested taking care not to eliminate the legitimate defences.
Therefore, the bill pre-empts us because we banned corporal punishment in our minds but we have not addressed removing section 43 and inserting something that is absolutely necessary in a society that produces more violence in the schools. We have heard about the difficulty of the roles of the police, monitors and teachers and about the bullying issue, et cetera. If we remove section 43, will we not create more problems unless we look carefully at today's issues before we ban the defences?
Mr. Dudding: The short answer is, yes. The wisdom of your Senate committee recommendation was that it was not an immediate elimination of section 43. You suggested placing at least a two-year period in advance of that. You also added an emphasis in terms of the public education component and the study in terms of the implications. All those things are the kind of moderation, balance and foresight that makes eminent good sense in terms of ensuring there are not unintended consequences to what we all clearly agree to be a good thing.
As I reflect upon the New Zealand experience, and having seen and thought about their amendment, the thing that strikes me about their amendment is how positively framed it is. They have set out "parameters'' around good, authoritative parenting regarding the use of force. If you juxtapose that to our own Supreme Court decision, ours seems more negatively framed: Do not do it here; do not do it here; do not do it above here or below here. Putting positive messages in place about what we expect is probably the key to finding the right compromise.
Senator Baker: In listening to the opening comments of Senator Andreychuk, a former judge, she proffered that you were, perhaps, not totally in favour of this bill; that perhaps you would suggest other alternatives. However, as I read your statement and as I listened to you, you are squarely in favour of this legislation. Is that correct?
Mr. Dudding: I am squarely in favour of not hitting children. My many years as a child protection worker lead me to understand that the business of parenting is complicated. Dare I say that every day in this country, thousands of times, child protection workers are forced to exercise good discretion around whether the child is in need of protection and the level of risk or harm that child may face. Child protection workers, themselves, need to think in terms of how to balance the question of the risk of the child relative to the other harms that have been so eloquently spoken about in terms of loss of family, loss of parenting, et cetera.
I suggest that clearly in the message around not hitting children; four square. Around the issues of how we assess a level of risk for children and how we deal with and manage the issues around parenting, those require more discretion and judgment.
Senator Baker: Are you in favour of this bill or are you opposed to it?
Mr. Dudding: I will return to my earlier comments. I do not think it is wise to do anything of a legal nature without considering the other kinds of issues associated with it — the education, the preparation and, indeed, ensuring we are not into unintended consequences.
Senator Baker: I do not know if I completely understand what your position is concerning the bill. I think you are saying that you agree with the bill but you also recommend that other measures be taken concomitant with this one to arrive at the conclusion that you wish to arrive at.
Mr. Dudding: That is a very fair way of summarizing it.
Senator Baker: Chief Superintendent Macaulay, you said — and the Canadian Bar Association and Criminal Lawyers Association agree with him — that, if this bill were to pass, there would be an increase in the numbers of cases the RCMP would be called upon to adjudicate in the first instance, and an increase in the need to decide whether to lay charges.
Chief Superintendent Macaulay, you said you are already over-extended. I forget your exact words. However, you said that you are overworked, or everything is blocked as far as your officers are concerned; you would not be able to stand a further increase on your responsibilities if a new law was created with the passage of this bill.
Is that correct?
Mr. Macaulay: Sort of: I will do a little dance, as well.
For the RCMP, the elimination of section 43, without something new around it — whether education or whatever that will be — will mean an increase in calls. They will come from inside families or from those people who have zero tolerance for spanking or any type of behaviour that would require us to investigate, where today we would not be required to do so. That first being said, there would be an increase.
Second, with the elimination of section 43, a defence around assault will now create a whole new set of attempts by defence lawyers to find where that grey area is. A gentleman here earlier today said, the law is here, and then there is all the grey. We play in the grey.
The unfortunate thing about that is we are generally the brunt of the grey. If they cannot use what we do as behaviours to form a defence, they use other things. However, it would bring all these other areas of assault into play because that is where the sections must be laid.
Senator Baker: Chief Superintendent Macaulay, when you have only one case that you are called upon to attend to, when you assume authority in that situation and you decide to lay a charge, there is a whole procedure that your officers go through regarding officer's notes, continuation reports, Crown attorney's case reports and so on before this charge even goes to trial.
You say each case imposes an extra duty on the specific investigating officer and, in some cases, another officer who was with the investigating officer; both of them must attend to the pre-trial arguments, in some cases, and the actual trial. You say this extra duty will put a burden upon the force. Is that correct?
Mr. Macaulay: Not only would it impose a burden but I am even more concerned about the responsibility of an individual arriving at the scene.
Section 43, although not perfect in its clarity, is setting jurisprudence. You can apply case laws and other things as you come to a scene as to whether you will proceed into the investigation. It starts down that continuum. Without it, and without anything new being added, the expectations are all new again and, depending on the complaint and who is there, the expectations are that the officer starts to become that decision maker.
That is not what this country is about. We have enough discretion. With discretion comes responsibility. I listened here. I have watched how many years you, senators, in a calm, educated manner, have been fighting this. Imagine the situation for an officer on the street or in a home being forced with making those decisions.
None of our members, as it is today, want to close their eyes to any type of situation and then find out later that child has been subject to continual abuse. By the same token, no member wants to put a family through the rigours of a child abuse trial. We have seen, in some cases, even with sexual assault, where the trial comes to an end and the judge or someone else says, "No, that is perfectly legal.''
Those rules are tough rules. Our people are at the front end. We want as much clarity as possible and then we understand rules. I refer it as "Monopoly.'' We all know the rules of the game. Suddenly, someone comes the other way and it is okay. That is when it becomes confusing.
Senator Baker: Mr. Dudding, how do you answer the testimony that we have heard so far that if this section were removed, it would expose persons to the existing provisions of the Criminal Code in the area of assault, which are broad and general in nature and would lead to, they claim, an unnecessary and onerous result for parents and teachers in Canada? How do you answer that question?
Mr. Dudding: I look at it from this point of view: First and foremost, with respect, the decision making about what constitutes an assault is the kind of decision that police officers make in Canada every day of the week. Therefore, with respect to the level of judgment and decision making, I do not think there is anything terribly new about that argument, in my opinion.
I also think that, in terms of the experience of so many other jurisdictions, what is a legitimate concern about whether we will have our courts full of all these parents in matters of minor and trivial nature has not been the experience of other countries that have gone this route. I rely upon the current experience we have about these things. It is not easy, but it is there.
Senator Stratton: Not being a lawyer, this discussion is fascinating. I thank you for being here.
I look at the last three generations — for example, my parents, myself as a parent and my children as parents — and I have watched the evolution of corporal punishment where it does not exist today in the family.
I am more interested in the sake of the teaching profession because, in watching the transition over time, for example, from when I went to school, there was corporal punishment and there were other forms of physical punishment that made students pay attention. I am concerned for the sake of the teachers — who I have not had the chance to talk to, but I hope we will have that chance — and where they stand with respect to this issue.
What we hear now and what I am worried about, as Chief Superintendent Macaulay talked about, is that the police do not want to be in the schools enforcing discipline; they want to be there to educate and show a positive side of policing but not the negative side. Where do teachers fit in this whole thing? Will someone as a teacher feel powerless if this section is removed?
Mr. Dudding: That is a great question. However, I am not sure I can speak on behalf of teachers. I can speak on behalf of child and youth workers, foster parents and volunteers who deal with these children. I want to re-emphasize my point that for the last 30 years, if people were in that role with any child welfare agency in this country, they were working under a strict ban on the use of corporal punishment. That would be the policy of the organization, with consequences if they used physical punishment with a child. I can speak on behalf of those people and those constituencies.
To put it into a quick context, Rudolf Dreikurs, one the most famous child psychiatrists in the 1960s, wrote a book called Children: The Challenge. His observation was that as society becomes increasingly democratized, so will the business of parenting, and so will it become more challenging, and we will need to think in terms of different ways and different approaches around child rearing.
Let us also be clear about it, because the language we like to use now is that of an authoritative parent. An authoritative parent is someone who has clear expectations, clear rules and clear boundaries around what they expect from their children that are appropriate to the age, stage and level of understanding of the child. That is what we are trying to achieve.
Senator Stratton: I can understand not using corporal punishment in schools. That is history. However, how do you control a student who marches up and says "make me'' when the student is disruptive in class? How do you deal with the child you tell to take a hike out the door and down to the principal's office and the child says no? How do you give teachers some control over what takes place in that classroom without threat?
Mr. Dudding: In my experience with those things, although we describe that behaviour as happening out of the blue, in fact, most typically, a whole series of events will have lead up to that culminating incident.
In my own experience as a professional social worker in those areas, being able to be on top of, and anticipate, what is going on with kids who are having problems so they do not arrive at those kinds of classic confrontations is important. I can say that, having also worked as a child and youth worker, their own skill set and experience in terms of being able to anticipate what is going on with kids and understanding what the circumstances are will, by and large, allow them to avoid that classic kind of confrontation.
I think these are real problems in schools. What has happened in terms of the expectations around what teachers are responsible for has been profoundly disturbing, and I think there is a need for a great deal more resources and attention to be paid to what is happening in the classroom.
I do not think that we immobilize people or that it is real to have the kind of conversation about that culminating episode without thinking about what has gone on leading up to it. For the purpose of clarity, when that happens, the teacher needs to be an authoritative person who is in charge of the situation to keep peace in the classroom.
Senator Stratton: How do they do that?
The Chair: Senator Stratton, I will put you on a second round.
Senator Stratton: I have had only one question in the whole two rounds. Let us be fair.
The Chair: I am being fair. Each round is an independent entity.
Senator Merchant: First, I have been a school teacher, but it was a long time ago. I have had my own children since then. I think too many things have changed for me to have an understanding of what happens in the classroom, apart from what we see on television with the incidents that are reported, which are extreme cases.
I have a question for the chief superintendent. There was a statement made by, I think, the Criminal Lawyers Association, but I may be misquoting. Perhaps I heard it from the gentleman from the Canadian Bar Association. Nonetheless, he made a statement saying that the police were reluctant to use discretion. He spoke of all the instances where they must use discretion. How do we interpret that comment? What kind of impression should that comment leave us with? He said the police are reluctant to use discretion.
Mr. Macaulay: We use it every day in every instance that we perform our duties. There is not a frontline police officer who does not use their discretion every day.
As to whether we would appreciate clarity in those issues, absolutely. I believe, as part of the comments that I heard, when it is a free-for-all, the Supreme Court of Canada is our guide as far as jurisprudence is concerned. That decision sets the tone. Obviously, as we come right down to magistrates and into the provincial courts, those are the guidelines which we follow. Yes, it is nice when it is clear to some extent as to what is an offence, what is not, what is acceptable in evidence gathering, and what is not. However, for anyone to say that a police officer does not use discretion, it is there every day.
Senator Merchant: I wanted to hear your side of it. I know each of us has varying standards and we must bring our own experiences into the issue. Sometimes, the impression is left that once the police are called, charges will be laid.
Mr. Macaulay: Absolutely not: I can say that the police could not operate if they did not have discretion. We would not want to live in a society where we did not have that discretion. You would all be unhappy people at breaking the law at one kilometre over the speed limit.
Let us go into the narcotics issue. Look at Parliament and look at Canadians discussing the legalization of marijuana. Are the courts full of people with half a joint passing it among four individuals? The law is there. Therefore the discretion by police officers is paramount. Going into the family home and dealing in these situations, first, the situations are extremely volatile; second, depending on the family and the circumstances in which the family is operating, there is lots of discretion being used the whole time. We could not operate without discretion but yes, we sure like to know the rules.
Senator Di Nino: Mr. Dudding, I do not think anyone around this table or in the Senate would disagree with the principle that you espouse and fight for so strongly. We applaud you for that. However, you have to agree that this is a sensitive issue, a difficult issue when talking about interference in parental duties, and about the potential impact it will have on teachers in trying to keep order in a school. That is the dilemma we have.
I understand that when New Zealand changed its legislation, they also put in additional provisions that may have similar effects to what section 43 does. For confirmation, is that the case?
Mr. Dudding: That is correct. In that section, they have 59 parental controls defined in four subsections with parameters around what they mean.
Senator Di Nino: Therefore, do they recognize that this issue is not black and white, and there still needs to be some discretion by putting in those provisions?
Mr. Dudding: Yes.
Senator Di Nino: Chief Superintendent Macaulay, through you we should thank all the police officers for what they do in this country. You may have heard before that I have relationships with two or three of the police forces in Ontario and I try to spend time with them from time to time. I have nothing but great respect for them.
I am concerned though about the removal of section 43. In your statement, you talked about what happens when an officer goes to a home. I think in New Zealand they call it "smacking.'' I do not like the word "hitting'' that is used here. A smack has a gentler connotation. Will this not create a more difficult situation for the RCMP officers who are asked to investigate some of these issues?
Mr. Macaulay: I presume those are guidelines that have been put in place, subsequent to the removal of a section 43 equivalent in New Zealand. That is the key. I think that has been reiterated many times in this forum. You will never get right today where the line is, so that it will last 20 years from now. I will go back to the lawyer who said, it is clear it is here and then there is that little parameter. Right now, if the section is removed, there are no more parameters The expectation of Mr. Dudding in making a complaint about another gentleman having spanked his child in a parking lot, or other corrective action, is that I will charge this gentleman immediately. Now we are into, without clear guidelines, what do I do? Do I move on that expectation? Now, I do not know where the courts are going. I have expectations from the public that I have a job to do. If I do not do that job, I will receive a complaint through the Commission for Public Complaints Against the RCMP. This is where the game becomes mucky. This is where we go back to, while we need some discretion, we need some rules. Section 43 now has provided those parameters. There is jurisprudence. The Supreme Court of Canada is becoming clear. Those guidelines 2 to 12 are being set. That provides the ball game on which to apply common sense and discretion, and move forward. Without that section, and only the blanket removal, the situation will be difficult for policing agencies. It will be difficult for everyone. It will be confusing, and some youth will take advantage of this confusion.
Senator Di Nino: I appreciate that.
The Chair: As I said, I want to put a couple of questions. I have one specific question for each of you and one general question for both of you.
The general question is: How often in your experience is section 43 now used in court? We are aware of the spectacular cases that go all the way to the Supreme Court of Canada. Is this section something that comes up a lot in the course of relevant cases at the lower court levels?
My specific question for Mr. Dudding has to do with the fact that this bill, as written, would provide a one-year period between Royal Assent and coming into force. Do you think that is enough time to engage in the kind of ancillary programs that you believe are necessary? I think most people would agree they are necessary and would assume those programs include producing new guidelines for the police.
To Chief Superintendent Macauley, this may be a little harder to answer, but even impressionistically, can you give us any sense of how often the existence of section 43 and the jurisprudence around it influences the police not to proceed further with a case; not to ask the Crown to proceed with a case where otherwise they might?
As you have said repeatedly, you must exercise discretion anyway, and for that matter under the assault provisions of the Criminal Code I assume you must exercise huge discretion every single day.
Do you understand what I am trying to get from you there? If so, can you give me your answers? I do not care which of you goes first.
Mr. Macaulay: The last one ties into the first one. I cannot tell you how many times in this country in the course of a day people do not make complaints under section 43 regarding abuses they see. It could go either way: People who believe what they saw is only a parent correcting their child's behaviour or, in effect, it is truly ongoing abuse. Every coin has two sides. Again, it is about the clarity of the rules. We would never be able to put a number on it, whether the police officers go in and judge from a complaint, whether people do not complain, or whether youth do not complain.
As for using section 43 in the courts, I cannot tell you but I can say that, in today's environment, so many charges are on the table that the Crowns and defence lawyers would argue this out long after I made any decision as a police officer on how they would work that through. It would come also with the aid of social workers, et cetera, if there were some fear of this issue being bigger than what it was to ensure that the social agencies had taken a look to find that there is some peek-a-boo into the reality. To say that there would be 10,000 or 15,000, I would be guessing.
Mr. Dudding: My answer to the general question in all honesty is to say that a section 43 defence would be used on a relatively infrequent basis.
Mr. Macaulay: The time gap is an interesting question. I guess it becomes a matter of the commitment of resources by government to do the kind of public education awareness to be appropriately ready for the law to be changed. There would need to be a strong commitment in terms of doing anything, with government association. It is always a bit of a challenge but those things are doable when the right motivation is present.
The Chair: Thank you both very much indeed.
It was extremely interesting testimony from both of you and we are grateful for your expertise and common sense.
We are fortunate to welcome Professor Stuart from the Faculty of Law at Queen's University. Mr. Stuart, please proceed with your presentation.
Donald Stuart, Professor, Faculty of Law, Queen's University, as an individual: I have been fortunate to be a teacher of criminal law in Canada for 37 years. One thing I learned is that after two hours, no one is listening. It is not possible to hold attention beyond two hours so I think I am up against it a bit.
I begin by congratulating the Senate. I do not think there are better educated people about this issue than the Senate. When I think about how many times this issue has been raised in the House of Commons and how many Ministers of Justice said they were not touching such a political hot potato, given that it is about family values and all the rest, I want to urge the Senate committee to continue. My position today will continue to be that the straight repeal of section 43 is required and that there should be no other provisions.
When defence counsel spoke this afternoon, in particular Mr. Boxall, a well-respected defence counsel, I thought about it making things more difficult for the police and for defence counsel. Yes, it probably would do but I am not sure it is true. When I came to Canada from South Africa in the 1970s, it was the era of Pierre Elliott Trudeau's words, "the state has no business in the bedrooms of the nation.'' Over 10 to 15 years, we began to remind ourselves that the bedroom was where women and children were being hurt. I took one year off teaching to be a prosecutor, and I am well aware of how difficult it is to prosecute domestic assault. I do not agree with policies of zero intolerance either and, as the chief superintendent said, everything turns on discretion.
The trouble is that it reminds me of the old days in the 1970s when police conspicuously avoided domestic violence: That is a family matter and if anything, it should go to the family court. I agree that it is difficult to prosecute domestic assault. I do not think many people in Canada would say that it is not worth a candle.
Section 43, ever since 1892, has had a chilling effect. The section was not recently invented as a unique Canadian compromise. Sir James Stephen, an old English guy in Victorian England, deciding who can punish who, wrote it into our Criminal Code.
When police officers arrive at a scene where someone looks like they have been hurt, in this case a child, officers will be careful about going into the issue because they know about section 43. The chief superintendent has left but I would challenge him to think of the police officer who has a difficult job investigating a domestic issue. How can they remember the criteria laid out by the Supreme Court of Canada? I cannot do that and so I write it out.
I do not want to repeat grounds covered by the other witnesses, and I certainly do not want to go into the Charter rulings of the Supreme Court, although Justice Arbour in dissent had it absolutely correct: It is too vague, dangerous to vulnerable children and hypocritical for us to frustrate our signed international agreements to protect children.
My brief presentation is in three parts: First, what is wrong with section 43 as interpreted by the Supreme Court; second, why repealing the section will not over-criminalize parents and teachers; and third, if we were to go along with what New Zealand has done, it will make the Canadian situation worse.
We heard a great deal about what the Supreme Court has said in Canadian Foundation for Children, Youth and the Law v. Canada . The section sets up an arbitrary zone such that the section 43 can only be used to justify violence once a child reaches the age of 2 years until they are aged 12. That is a vulnerable group of children, but we are deciding that we can still use minor physical force against them.
I point out that a previous witness seemed to be worried about corporal punishment by teachers, which has been abolished by the Supreme Court. A teacher cannot use corporal punishment. I do not see an outcry of teachers' federations calling for the reintroduction of corporal punishment in schools.
I remind you all what the Supreme Court said before I move on to my points. This section rules out anything where the parent acts out of frustration, and loss of temper, in particular. I find that provision confusing. If you think of a situation of a single mom, there is an element of acting out of frustration. I would have thought that the very area where she lost control with her child is that which you might want to consider not criminalizing. However, apparently, according to this provision, it is only the cold rational appearance of someone who is not ever frustrated or acting in anger who can coolly discipline their children in a minor way.
I will now draw your attention to what really confuses me: The discipline does not depend on what the child has done. If your child spits at you or burns down the barn, you are not supposed to take into account what the child did. I think that provision runs at cross purposes to most of what criminal law is about. That is my first part.
What is wrong with the law as presently interpreted? I am not sure why parents have a right to assault, within the parameters of the Supreme Court, children between the ages of 2 and 12 years. Assault is a wide definition. If someone intentionally applies force to another or threatens somebody with force, that is an assault. Another mind-boggling example is this: An unwanted kiss is a sexual assault. Do all unwanted kisses result in prosecution: no. Do all assaults result in prosecution: no. Normally speaking, police officers and Crown attorneys investigate and decide whether the situation is serious enough to proceed.
In this particular area, however, it is complicated because suddenly parents have a right to use physical force. It is not given to anyone else. The protection of any others of us who threaten somebody or who apply force against somebody is contained in those defences that Mr. Boxall and others found too vague. There is no indication of over- criminalization of assault or sexual assault laws. Somehow, we all survive.
Yet, somehow parents are given this right. In the old days, we used to justify spousal violence because of marriage rights; my wife is my property. There is a little bit of that here, too. Parents are justified in disciplining the "fruit of their loins.'' I think that it is dangerous proposition.
Why choose the ages of 2 to 12? I think this committee is better aware than I am that it was because social science evidence tendered at the trial in Canadian Foundation said these children are the types of people who could benefit from correction. Since that time, your committee has heard many people say that information is already dated. It is vague. Why is it that it is alright to slap somebody on the bottom but, if you slap them on the head, it is a criminal assault? That is one of the lines that the Supreme Court draws.
What on earth is the meaning of "capable of correction?'' Again, the big problem I have with the reading by Chief Justice McLachlin is this point that it does not depend on what the child does. She says you cannot do that; it is not punishment, it is correction.
I do not know of a single lawyer, police officer, prosecutor or judge who does not say, essentially, the issue is, how serious is this incident? When the chief superintendent said police need guidelines, I suggest to him that if you borrow section 43, one of the guidelines would be: When you go to the scene of a house and you see a child has been injured or someone has used force, ask, "How serious is this incident?''
That guideline is a good one. Another is the academic things that came about from the Supreme Court decision. I also think the chair of the panel asked how often section 43 comes up. Corinne Robertshaw is well known to you. If you read her website, you will see these cases are still coming out. I edit the criminal reports; the actual reporting system. I suggest there are 10 to 15 section 43 cases a year. I would say there is a still pattern of acquittals, which is what concerned Justice Arbour.
In my paper, on page 6, there was a case called Plummer where there was a use of a belt to correct. There was an acquittal. That is contrary to what the Supreme Court of Canada said. In the case of Swan — the father who threw his daughter into a truck because he thought she was in bad company — looks like an assault to me. Whatever you think of that case, the most interesting thing is that the two levels of court had completely different views as to how to interpret these new guidelines from the Supreme Court.
I will say therefore that the guidelines are "grey,'' to use the words of the chief superintendent. They are also incoherent.
My second point is the justifiable concern, which is where this debate usually starts: You will criminalize all the parents and teachers. I say this to remind ourselves: Assault laws are wide already and, if we were charged with an assault of any description, what defences do we have? We have self-defence, if we fear violence and we use no more force than was necessary. We have a defence of property and we have defence of duress if we were threatened. We also have the defence of necessity and I agree it is narrow. It should be narrow. We should not let somebody off after they have broken the law because they thought it was necessary to do it. Therefore, we have a criterion.
I refer you also to section 27 and section 30, which talk about the use of no more force than is necessary to prevent harm or to prevent crime. That would apply to lot of these situations without a section 43. I was fascinated by our practicing lawyers regarding the de minimis non curat lex. The authority for the de minimis non curat lex doctrine exists in both judgements in the Supreme Court of Canada in the Canadian Foundation case. Justice Arbour goes on page after page. Justice McLachlin is brief: says it is a vague doctrine but she does not say it does not exist. Therefore we have it.
I heard several senators say we are worried that police will be called into schools and domestic situations, and there will be many more prosecutions. As I said, I believe, like the chief superintendent, that we have a discretionary system. Police officers always exercise discretion. They have to. It is impossible to do otherwise. For example, if they are called to the scene of a domestic attack, and the mother says the father spanked my daughter, they try to investigate the best they can and discover there was, at best, one slap. I think most police officers, without section 43, might consider stopping the investigation there. If they thought there was harm or if they thought it was patented violence and they believed the mother that the father was an abuser, they would charge, just as they exercise discretion in domestic assault.
I think that protocol would develop. The other thing that is interesting is that, under section 43, the only protected groups are parents and teachers. There are many professionals in Canada — child care workers and psychiatric care workers — who deal with children in more vulnerable and dangerous situations. No one else has the same type of justification to use force.
I think judges also have the ability to exercise their judgment; to give conditional discharges if they feel that, after all, the offence was not serious. I think the de minimus stay is developing and it should develop.
I hope you have my paper. Finally, I was asked on Friday to look at the New Zealand restraint provision. In my paper, that is on pages 8 and 9. I think that provision will cause more problems. If you look on page 8, at the bottom, it says:
(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of —
(a) preventing or minimising harm to the child or another person; or
We do not need that provision. We have section 27 already.
(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
Again, that provision falls under section 27.
(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
What is "offensive behaviour''? It is extremely subjective.
None of this use of force is in the Canadian mode. Apart from section 43, all the other defences — self-defence, duress and necessity — have a proportionality component. Was it reasonably necessary, given what was apprehended?
Our section 43 has never had that proportionality. It says only, "reasonable under the circumstances.'' The Supreme Court has not written that in because they determined it is correction and it does not matter what the kid has done, which I think is ridiculous.
In this provision, it would be consistent not with section 43 but with the development of mountains of case law in Canada, particularly in the area of self-defence, but also in the others, that there is a degree of proportionality. Someone cannot completely overreact.
The law of self-defence is liberal. It allows people to exercise reasonable self-defence, and it says things such as, in times of crisis, one does not exercise hindsight judgment and say that people have to measure with nicety the degree of force. If someone attacks another with a knife and they have a gun, one could not say they should not have used a gun but a knife. That would be ridiculous. Our courts are generous about that defence.
What is lacking from the New Zealand provision is any sort of thought about that defence. If you were to abolish section 43 all together, we would start with the assumption that parents and teachers do not have any unusual right to exercise force as a defence. If they happen to be charged with an assault, then they can be acquitted if they can establish any other defence that normally applies to anyone else charged with assault, whether it is two men fighting outside a bar or it is between a husband and a wife. They all have the same defences, so I do not think there should be anything distinctive about a parent or child.
The last point I wanted to make is at the bottom of page 9. There seems to be a new amendment to New Zealand law. It seems to want to put into law, into the section, that the police have the discretion not to prosecute "where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.''
That seems to me an odd provision to put right into the criminal law. As the chief superintendent said, police officers exercise discretion all the time. I think the discretion can be capsulized mostly by whether this incident is serious enough to involve the criminal apparatus. Putting it into a section would encourage a doubting police officer going to a domestic dispute to think domestic assault is between a husband and wife, but with children it is a parental thing and not all that serious. I think that provision should be taken out and left to the police to exercise discretion.
I think notions about overcharging or overreaction by police or prosecutors is something for the Mr. Boxalls of this world to fight out in the courtroom and for judges to make their responses, and they do.
The last thing I wanted to say is that I feel old under the tooth. I have written much about Canadian criminal law. If anybody is familiar with what I have written or what I have testified to Parliament on several occasions, I am a softy. I am more in favour of rights of the accused than rights of the state, but this one is so odd to legitimize the right of the parent to apply force to a vulnerable child aged 2 to 12 in the name of correction, and what the Supreme Court of Canada has said is simply unworkable.
Senator Andreychuk: Professor Stuart, you have laid a lot on the table. It would seem to me you have a substantive disagreement with the majority decision of the Supreme Court. You talked about Justice McLachlin, but what you mean is that you disagree with the majority. You seem to have taken a liking, if I may say, to Justice Arbour's position, which was a minority decision. I think I will let that point lie. That is obvious from all your comments.
Mr. Stuart: I do agree that the Supreme Court majority judgment is to be commended for reading down this legislation. It is not a right to corporal punishment; it is a right to use minor force for corrective reasons against people aged 2 to 12. That is an advance.
Senator Andreychuk: It is a substantive advance because we are saying corporal punishment is not of this day and age. It may have fit society, if it did at all, 100 years ago. We are in agreement about that.
Incidentally, on another preface, I agree with you. The New Zealand situation was an absolute ban on corporal punishment, and then when parliamentarians started to study it in a modern context of caring about children, they started to see dilemmas. The problem in Parliament is sometimes we do not have sufficient time to delve into all the dilemmas, so we do the best we can. With respect, I hope we do not make the same mistakes in Canada where we are confronted with a bill that suggests eliminating section 45, and we are under a time limit, so we question how to take into account modern day difficulties for parents, teachers and children. I spend a lot of my time talking to children, and they want discipline. They want rules. It is a difficult society.
If we do not have the rules, I was taught, how we you explore? How do we break them and come back into the fold? How do we test ourselves as a young person if we do not know where the rules are? There must be discipline and rules. I hope we are on the same wavelength.
We should not look at the Criminal Code per se; we should look at all the dilemmas in society today with young people. You said you did not understand one of the phrases that the New Zealand people put into their legislation. In England, they put in a whole bunch of new legislation on anti-social behaviour orders, ASBOs; difficult behaviour, everything from graffiti and spitting, where exhibiting inappropriate behaviour will brand someone before the courts and society. I hope we will not go that route of banishing corporal punishment and then putting in all kinds of laws and pieces that will be more detrimental to parents and children.
The Chair: Is that a question?
Senator Andreychuk: Do you agree?
Mr. Stuart: One issue I was trying to address — and I must admit that I only did so on Friday afternoon — was that I understand that some members of the committee probably would favour a provision dealing with physical restraint, especially for teachers. I think it is unnecessary, simply because we already have existing Criminal Code provisions.
The Criminal Code has trebled in size in my 37 years of teaching. It is easy to put provisions in the Criminal Code to meet a particular problem. What is good about this committee is that you realize that quick fixes are usually fraught with danger.
While I was looking at the Criminal Code today, I came across a provision I had never seen before. It is provision 27.1, which was enacted in 2004. Suddenly you have a provision for saying anybody on a plane is justified in using as much force as reasonably necessary to prevent the commission of an offence if that person believes, on reasonable grounds, that it would be likely to cause immediate and serious injury to the aircraft, any person or property therein.
That example is a classic one of a provision that was not necessary because the preceding section covered it completely. However, some lobby group asked about the use of force on an airplane. I show you there as well that if you were to decide, contrary to my lonely view here, not to have a physical restraint, please put one in along the Canadian tradition of saying, "only as much force as reasonably necessary.'' It is "not any force to restrain a child.''
A teacher with an out-of-control class does whatever. That does not necessarily mean it is not criminal, even if there is a restraint provision. The restraint must be reasonably necessary in the circumstance. A court will look at this teacher who was out of control. What happened? What was the precipitating event? What was the evidence? Was it reasonably necessary? Was there a judgment call: yes. Is there subjectivity in the decision: yes.
Senator Andreychuk: If we take out section 43 and put nothing else in, you are saying we are okay. That is not what I hear on a daily basis. The real debate is, we have children in situations we have not had before; children who have an awareness of their rights, which I think is excellent. I hope there is more of that. Parents are confronting situations they did not confront 50 years ago. Running away was going across the city; now they run away across the world. Using difficult substances was beer and wine, not crystal meth. Children were not subject on the streets to the kinds of exploitation by gangs and exploiters that we hear about, such as the fact that one of the greatest difficulties is human trafficking, especially in young people.
How do parents handle all those situations and have some reasonable assurance of support from society if we simply give them a signal today that they cannot touch their child ever? That is the message we will give to the public if we remove section 43 without any other signal.
Mr. Stuart: The signal is that Canadian society does not tolerate use of force against anyone. We have wide laws of assault. We have general defences like self-defence, duress, necessity and de minimis, which in every other context but this one seems to have worked.
Section 43 cannot be seen at all, even in its existing form or as interpreted by the Supreme Court of Canada, to solve problems of drugs and that sort of trouble. Senator, I am with you. I am a parent myself. I would hate to have been a single parent. I think that is the key variable for me. What about a single parent beside herself or himself and something happens with the kid, whom they love; something goes wrong? I would rather have it resolved according to the traditional principles of, is what happened in justifiable self-defence; was the child a threat; and was it necessary to do what happened in that particular case? If it was not, I think that there is a case for criminal sanction, simply on the basis that children aged 2 to 12 are vulnerable. I have a lot of skepticism about the evidence that suddenly you can cut off correction at the age at 12; that a child aged 12 years and one day cannot be corrected but 12 years less one day can. I find that odd.
Senator Andreychuk: You have made your point many times on the fact that you want the dissenting judge's opinion to rule, not the majority decision, but section 43 is not only about the 2 to 12 age group. R. v. Swan in its latest form tells us that it is over 12 and under 2. We are talking about the other points of section 43.
Mr. Stuart: That case is an interesting decision because it is open to interpretation. Two judges saw it in different ways. I tend to think that the judge who resulted in giving acquittal was wrong on the law, as I interpret the Canadian Foundation case. That is another instance where people of good intent can look at this decision, read it carefully and have different views.
I believe it was intended that section 43 was limited to age 2 and 12, and that nothing else applied any more. That was a reading down. That is only one person's interpretation, but what is so interesting about that is two judges read the same case and reached different results; one wanted to convict, and one wanted to acquit.
Senator Andreychuk: The most interesting thing is that parents are being asked, if we take out section 43, to make all those decisions that even the judges and lawyers have difficulty with.
Senator Di Nino: Maybe this issue has been covered a bit but for clarity purposes it is worth repeating. Section 43 is not about committing assault. Section 43 is a provision that deals with the disciplining of a child and no one is talking about section 43 protecting a teacher or a parent from whacking a kid with a baseball bat. Obviously, I am being descriptive because we want to make the point.
I was concerned about your comment when you talked about the parent should not have right to apply force. Applying force, in my opinion, means section 43 would not apply. Applying force would still be subject to the normal laws that would deal with those things. Am I correct? I want to ensure we understand we are talking about the same thing.
Mr. Stuart: One case I mentioned in the footnote was of a parent who used a belt against a kid in discipline. There was an acquittal based on section 43 because the kid was not actually hurt. Now, according to the Supreme Court of Canada, they do not have that right to use any object any more. Here, someone is disagreeing and not applying the Supreme Court of Canada decision properly.
Those who have been parents have often been frustrated, and often children are not perfect all the time. That is why this is such an area we all worry about, that is, over-criminalization. I want to think that few of those parents who touch their children deserve criminal sanction. I suspect that if you abolish section 43, few of them would be prosecuted.
There was a parade of judgments mentioned by Justice Arbour, and the ones that occur in Ms. Robertshaw's web page show, notwithstanding the reading at the Supreme Court of Canada, what looks to me like serious forms of force against children in the name of correction are resulting in acquittals. It seems to me, that is wrong. It seems to me that we should start with the hopeful idea that there is not a great deal of child abuse in the name of parental discipline in Canada, but there is a hell of a lot.
"Abuse'' is a bad word to use because lawyers always ask what we are saying. I would say we need to look at it anyone who intentionally applies force in the name of correction to see whether it was serious. Hopefully, under no scheme would a person who used one slap, one direction to stop doing something or to put something down be charged with a criminal offence, and I do not think many police officers would make that charge.
However, in a situation where the officer is there and it looks like the child seems to have been beaten, or slapped, the Supreme Court of Canada says you can slap them on the bottom. The police officer arrives and sees welts and hand marks on an open bottom, that is apparently okay according to the Supreme Court of Canada. I do not think that is okay. I think that incident should be prosecuted and the parent should be investigated. Then the police officer and the prosecutor can decide whether to proceed.
Senator Di Nino: I will refer to the comments you made. I believe on several occasions you referred to Chief Superintendent Macaulay's testimony mostly in disagreement. I was struck by Chief Superintendent Macaulay's comments that if section 43 is removed, in his opinion — and it is a learned opinion, you must agree — more parents would be charged because the police officer likely would not have as much discretion. Although we all agree that the protection of children is first and foremost, we also must balance this protection with the rights of parents and teachers to apply appropriate discipline. You say we should let a court of law decide that.
I am sure you understand, sir, what it would do to a parent to be dragged into court on a criminal charge involving their own child, even if they are found to be not guilty. The stigma that would go along with that charge is something that would last throughout their whole life.
Does section 43, to some degree at least, not provide protection to those parents and teachers who are trying either to fulfill their parental responsibilities or to do their job as teachers?
Mr. Stuart: You are forgetting about the plight of the child.
Senator Di Nino: Not at all.
Mr. Stuart: If there is no criminal prosecution and if the intentional application of force in the name of correction was without real justification in the sense that it does not meet any normal defences available to everyone else charged with assault, then the person who loses is the child; the child is assaulted with impunity.
Senator Di Nino: I am struck by the comments made. I was convinced by the chief superintendent who said that if we do not have section 43, more parents will be charged. I say to you, more innocent parents will be charged; and that is a travesty of justice as well, sir.
Mr. Stuart: I heard the chief superintendent talking about more work for police officers to investigate, and police are already burdened. I have every respect for overworked police officers but, as I said, I wanted to raise the issue that I spent a year prosecuting domestic assault. Police officers are, in my experience in Toronto, well trained in the prosecution of domestic assault. I look forward to the day when they are also well trained in hard-to-investigate alleged use of force by parents against children. We are having this debate but if it were abolished, 10 years from now, we would say how odd it is that we resisted so long. When I came to learn and teach criminal law in the 1970s, domestic assault, husband on wife, was a family matter best left to the family and the family courts. When police officers saw that it was a family matter, they left the scene.
There will be more strain on police officers and on the Norm Boxalls of this world. If you think about an application of force in the so-called name of correction, think about a conscientious parent trying to do the best for their child but making mistakes along the way. It would be unfair to sanction the parent criminally. You can also put into that mix some concept of an angry, violent parent who beats the heck out the kids and tries to get away with it all the time. Section 43 ends up protecting such a parent. They should be investigated more and I think there would be a chilling effect if we were to continue with section 43. If I was a police officer today and called to a domestic dispute involving a child, the first question I would ask is the age of the child. If the answer was 11, I would have to say, fine, goodbye, because that age is covered by the decision in the Canadian Foundation case. That situation makes no sense to me at all.
Senator Di Nino: I do not think that is the way it would happen but, thank you.
Senator Baker: In the Swan case, the child was 15 years of age. I am always hesitant to take on a person of your reputation, Professor Stuart. I sometimes wonder about you, Professor Stuart. In every judgment that comes out in this province, we have the judgment reported and the head notes to the judgment, but before we get to the judgment, there is an annotation signed by Don Stuart. I wonder how the judge feels when the judge is criticized, substantially at times.
What also fosters my hesitation is the Supreme Court of Canada decision in Daley regarding the use of the defence of intoxication in which you gave a commendable annotation. You amazed them but, of course, when I looked inside I noticed that in the majority decision, at paragraph 102, the judge says, I agree with Don Stuart's criticism of Robinson in this respect. Then, he quoted you and said that he would recommend therefore that in the future this be the way charges to juries be accepted.
You were only praising yourself in that annotation. I wanted to put that on the record. You have contributed greatly and I hesitate to contradict you.
Professor Stuart, my question is: You put forward the defence of de minimis. I recall that you railed in your annotation against a decision of the Court of Appeal of Ontario, the highest court in this province, in a case about a woman who entered a church and took on the pastor. A same-sex marriage was taking place at the time and she was charged with assault. The lower court of Ontario had determined that there was a defence but the Court of Appeal of Ontario ruled that the defence had no standing.
How can you suggest to this committee putting forward the defence of de minimis, while at the same time realizing that the highest court in this province has said there is no such defence?
Mr. Stuart: The highest court in Ontario is trumped by the Canadian Foundation case where both judgments say there is such a defence. Chief Justice Beverley McLachlin, Justice Louise Arbour, and the other great defender of the de minimis defence, Justice Claire L'Heureux-Dubé said there is such a defence. I would regard it as completely open in the Supreme Court of Canada on the existence of de minimis and there are no limits for any other offence.
At times, the way in which people respond to more technical, trivial violations of the Criminal Code is through discharges. They will not have a criminal record if they keep their nose clean for another year.
On the writings and my comments, my experience is that I am always quoted when I am right wing and never quoted when I am left wing. This time, I appear before the committee as a right winger, and I hope you will listen.
Senator Baker: Professor Stuart, I generally look at the most recent case law. The Newfoundland case law is 2006 and Canadian Foundation was 2004. The defence of de minimis does not apply in the province of Newfoundland and Labrador but in Quebec, it does; in the lower court in Ontario, it does; and in the lower court in B.C, it does. However, some courts are still holding on to the fact that there is an unsettled feeling about that defence. You would prefer, I suppose, if that defence were codified.
Mr. Stuart: Yes, that is correct. It is codified in all the American codes based on the model penal code. It would be a good addition, rather like the New Zealanders are trying to do for the police, and we could do it generally. Clearly, in the criminal justice system, the judges at the trial level are discretionary.
It was interesting when Norm Boxall noted the Supreme Court up there and how it is actually done in the trenches. All kinds of room exists for discretion and points of view amongst trial judges who have the hardest job of all. I suspect that in cases where parents use force against a child, most judges would wonder what the child did and how serious it was; and that is not reflected in the present law.
Senator Baker: There is a problem with the defences you have listed in your paper. At page 8, you state:
There is also a chance for the judiciary to develop the emerging concept of judicial stay for de minimis.
Of course, a judicial stay would be after the elements in this particular case of the defences. It would act almost as an excuse and not as a defence. In other words, after the elements of the offence have been proven, then a judgment would be made that it does not fit a prosecution.
Mr. Stuart: Yes.
Senator Baker: That, of course, is the problem, is it not? They have gone through all the stages of the trial — which the objectors to your position point out is not a healthy situation — to arrive at an excuse at the end almost like an officially induced error in certain offences.
Mr. Stuart: That is also a stay, sir; it is an entrapment.
Senator Baker: Exactly.
Mr. Stuart: You have a good point on this particular area. I can see that, if the idea is to avoid over-criminalization, this comes at the end of the process. Meanwhile, they dragged the parent into the court room unnecessarily.
Senator Baker: It took you 10 years to change the law and you have changed the law with intoxication as a defence. Maybe 10 years from now you will change this law.
Mr. Stuart: The Senate has been at it for 10 or 15 years. You have a much better shot at it than I have.
The Chair: I have a couple of questions before we let you go.
Maybe this question is in the category of dumb questions. I continue to be perplexed about what is meant, in this context, by the word "correction'' or about the words "corrective force.'' What are we talking about?
Mr. Stuart: As I understand it, the Supreme Court took holus-bolus the views of physical corrective force by a series of experts and said that certain age groups are capable of being corrected. I think it is extremely nebulous.
The Chair: Does "correction'' mean having an educational impact, or does it mean punishment? What does it mean?
Mr. Stuart: According to the Supreme Court, there is a clear distinction between something done for corrective reasons and something done for punishment. If that is inherent in your question, I do not understand it.
As I said, my particular feeling is that what amounts to physical assaults occur on a daily basis across the country. They are often done out of all sorts of motivation: panic, frustration and anger. Those emotions are not considered to be relevant on the issue of section 43 as interpreted by the Supreme Court.
The Chair: Nor, as you noted, is the gravity of the precipitating event relevant.
Mr. Stuart: Yes.
The Chair: On the matter of discretion, if section 43 disappeared and we were left simply with the law on assault, have you any reason to believe that the police or the Crown would not continue to exercise discretion in the way they always have?
I am looking at an extract from the Department of Justice Canada Crown Policy Manual, which dates from January 1993. However, I think it is still in effect. It says, for example:
Where the alleged offence is not so serious as plainly to require criminal proceedings Crown counsel should always consider whether the public interest requires a prosecution. Public interest factors which may arise on the facts of a particular case include:
(a) the seriousness or triviality of the alleged offence;
(b) significant mitigating or aggravating circumstances;
It also lists various other things including whether prosecuting would be perceived as counterproductive.
Is that set of instructions sufficient to avoid the kinds of horror stories that people like Senator Di Nino and Senator Stratton understandably are concerned about?
Mr. Stuart: That type of instruction is in every prosecutor's manual. They differ from province to province. However, they essentially state things relating to public interest and the likelihood of conviction. They are written in various ways.
As I become older in the tooth, I believe in becoming simpler. I think the variable here is how serious it is. Cluttering it up with criteria and sophisticated things that no one could keep in their heads at one time in a hurry, as a police officer must, is unnecessary.
If someone sees someone in a mall grabbing a kid and saying, "Stop that or I will box your ears'' or something like that, if you called the police officers, I do not think, without section 43, they would proceed with that. It is like threats.
One area where violence is used and threats are made — one of the most dangerous places imaginable — is outside a bar. How many charges are actually laid in situations like that? Not many are.
Therefore, I think that discretion is endemic in our system. It is everywhere: The police officers must be well trained — as they were not in the 1970s — to deal with domestic assault. It was ingrained that they do not become involved with family matters. They are a family court matter: if they want a divorce, go and have one; if they have trouble with their children, sort it out in a custody matter. It is a family matter and they would write on their forms in the 1970s: Family matter; Matter referred social worker. Thankfully, we do not do that any more.
The Chair: I could go on asking questions for hours and I am sure my colleagues could, too. You will be glad to know that I will not do that. On behalf of the committee, thank you for an illuminating testimony and submission. We are grateful to you for that.
Colleagues, we will adjourn now. However, I will ask you to be back at 6:30 p.m. because our next meeting is a teleconference. We will have two teleconferences, one right after the other this evening. Both are with New Zealand. We have discussed New Zealand so often. You know how teleconferences work: It will be important for us to be on time.
The committee adjourned.