Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 21 - Evidence for June 11, 2008
OTTAWA, Wednesday, June 11, 2008
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-31, An Act to amend the Judges Act; and Bill S-209, An Act to amend the Criminal Code (protection of children), met this day at 4:10 p.m. to give clause-by-clause consideration to the bills.
Senator Joan Fraser (Chair) in the chair.
[English]
The Chair: Honourable senators, this meeting of the Standing Senate Committee on Legal and Constitutional Affairs is gathered here today to conduct two agenda items. The first item is clause-by-clause consideration of Bill C- 31, An Act to amend the Judges Act; the second is clause-by-clause consideration of Bill S-209, An Act to amend the Criminal Code (protection of children).
This agenda was approved by the steering committee. I would therefore ask colleagues if it is agreed that the committee move to clause-by-clause consideration of Bill C-31, An Act to amend the Judges Act.
Is it agreed?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Opposed? Carried.
Shall clause 1 carry?
Senator Joyal: On division.
The Chair: Carried, on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that this bill be adopted?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: No.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
Senator Joyal: On division.
The Chair: It is so agreed, on division. I shall do that, therefore, colleagues, at the next sitting of the Senate.
We will now move to agenda Item No. 2, which is clause-by-clause consideration of Bill S-209, An Act to amend the Criminal Code (protection of children).
Is it agreed, honourable senators, that the committee move to clause-by-clause consideration of Bill S-209, An Act to amend the Criminal Code (protection of children)?
Some Hon. Senators: Agreed.
Senator Andreychuk: No.
Honourable senators, as we studied this bill, we had many good witnesses. However, I think two of the things that stood out for me and, I hope, for some of the other senators was the fact that we would be changing the law so fundamentally for families by this bill and that there had been no opportunity to have a proper, full extensive review of the defences available.
In the Standing Senate Committee on Human Rights, we had asked that review be undertaken and we were requesting the Department of Justice Canada to do so. In deference to the other committee, which clearly stated that they were dealing with the issue of corporal punishment, the UN Convention of the Rights of the Child and not the Criminal Code, per se, I think that study is very much warranted.
Second, we have been very conscious on this very historic day today not to interfere with parents as well as all the consequences for children if we, in any way, disturb the law on section 43. There has been absolutely no consultation with two fundamental groups that will be affected: One is the Aboriginal community and the other is youth groups.
It was pointed out in the study that we undertook on the UN Convention on the Rights of the Child that we should no longer pass laws that affect children without consulting them. Equally, we have said — and the law says — that we should consult with the Aboriginal community. They are over-subscribed in our courts already and they should be consulted.
I move that:
Clause-by-clause voting be deferred for six months and that the committee request the Department of Justice to conduct an analysis of the defences available to parents and teachers should section 43 of the Criminal Code be removed from the Criminal Code and;
That the committee call witnesses from the Aboriginal community and youth groups to seek their opinions on the impact of the deletion of section 43 of the Criminal Code.
I have the motion in French.
The Chair: Thank you. We will distribute the motion.
We have before us a more-elaborate-than-usual form of a hoist motion. Is there any discussion?
Senator Carstairs: This bill has been with the Senate for a very long time. I first introduced this bill when I was a new senator in the early 1990s. This bill has passed this committee in the past and has been brought to the Senate chamber.
The study that I think Senator Andreychuk requires in her motion is a study that, at least in large part, was conducted by the very committee that she chaired on the rights of children. On that study, for which I was for the most part the deputy chair, there was certainly overwhelming support for the elimination of section 43 of the Criminal Code of Canada.
There have been some suggestions that the New Zealand model might be a good model for us to follow in that it presents some elaboration of the defences that could be used by parents. However, I must say in no uncertain terms that, just as the Aboriginal people deserved their apology today, so do children in this country.
The Chair: Thank you. We have, therefore, before us a motion to defer clause-by-clause voting for six months and I do not think I need to read the details of the proposed studies. All in favour of the motion?
Some Hon. Senators: Agreed.
The Chair: All opposed?
Some Hon. Senators: No.
The Chair: I declare the motion lost.
Is it agreed, honourable senators, to move to clause-by-clause consideration of Bill S-209, An Act to amend the Criminal Code (protection of children)? I assume from the vote we conducted that it is.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Opposed?
Carried.
Shall clause 1 carry?
Senator Milne: I have an amendment to clause 1 that I hope will be distributed as I am reading it.
That Bill S-209 be amended . . . .
I will read it while it is coming around because I will then ask Senator Joyal to read it in French.
I move:
That Bill S-209 be amended, in clause 1, on page 1, by replacing line 5 with the following:
"pealed and replaced by the following:
43. (1) Every schoolteacher, parent or person standing in the place of a parent is justified in using reasonable force toward a child who is under their care if the force is used only for the purpose of
(a) preventing or minimizing harm to the child or another person;
(b) preventing the child from engaging or continuing to engage in conduct that is of a criminal nature; or
(c) preventing the child from engaging or continuing to engage in excessively offensive or disruptive behaviour.
(2) In subsection (1), "reasonable force'' means an application of force that is transitory and minimal in the circumstances.''.
Senator Andreychuk: I think we have all been struggling with the same issue in this committee, and I do not think we disagree with that. I think there was some fair consensus on this issue.
The Chair: Let me ask you something, Senator Andreychuk, if I may. If you want to propose other amendments, I am prepared — given that there is only one clause to this bill — to have all the amendments on the floor so that we all know what we are talking about.
Senator Joyal: I was going to propose the same thing.
The Chair: If you are opening the discussion on this amendment, however —
Senator Andreychuk: No, it was my preface that we are not with the corporal punishment. I think we had fairly compelling evidence from the Canadian Bar Association, the Canadian Council of Criminal Defence, the Ontario defence lawyers association, and others, that the striking, hitting, or violence of children is not what we were discussing. We agreed that corporal punishment has had its day. The Supreme Court of Canada has limited it to such an extent that the real debate was the other situations where parental authority and guidance is necessary and the needs of the child to have discipline and to have a family environment and to have an environment to grow in a positive way would necessarily need some intervention by parents.
We were struggling with the question of, if you ban corporal punishment and delete section 43, there was that vacuum that would be created. Parents or teachers would be charged with assault and they would not have a defence that put them within the realm of reasonable actions, if I can call it that, to help the child and to maybe help others in a similar situation.
I have struggled, and our side has struggled, with how we give a signal that corporal punishment is not to be used in situations but that there may be other instances and, therefore, this particular defence should be maintained.
I struggled with three possible amendments on that point.
The Chair: My goodness. Are you going to move them all?
Senator Andreychuk: I will move one and then, perhaps, I can discuss, with your leave, the variations that might be possible.
The Chair: Is this a point of order, Senator Oliver?
Senator Oliver: Yes, a point of order. Could I ask you, Madam Chair, if it would be useful to have Senator Milne speak to her amendment and then we could have another? It would help me understand what is going on, rather than having a whole pile of things on the table.
The Chair: I was prepared to have all the amendments put, followed by a general discussion. You will remember I said that a moment ago.
What we are getting from Senator Andreychuk is a discussion first, before her motion. I am in your hands, colleagues. Would you rather hear an explanation of the motion that has come from the opposition side and then hear an explanation of Senator Andreychuk's motion?
Senator Milne: I would prefer to hear them all so that we can thrash out the best. I suspect we are all trying to do the same thing.
The Chair: Senator Andreychuk had the floor and I will ask her indulgence. I will ask Senator Joyal if he could speak briefly to the intent of the amendment that Senator Milne presented. I think there may be a previous agreement to this effect.
Senator Joyal: I do not want to interrupt Senator Andreychuk, who was already into her presentation.
Senator Andreychuk: No, I just think it is a struggle to try to find the right words for two reasons. One reason is to give the signal that corporal punishment is not acceptable; and, second, other actions for purposes of restraint and corrective behaviour should remain as a defence in section 43 to any assault charge.
I am struggling with what would be the best words to protect the case law, because we are the Standing Senate Committee on Legal and Constitutional Affairs. It is to protect the case law that has grown up, which is very helpful. The Canadian Foundation Case for Children, Youth and the Law, the Supreme Court of Canada case, laid out quite thoughtfully how the UN Convention on the Rights of the Child applies and how the Charter is not violated by the use of section 43 of the Criminal Code. It was to maintain the integrity of the case law that has led up to this point and accomplish what we want to do.
The Chair: What is your proposal?
Senator Andreychuk: I am proposing that we could simply say:
That Bill S-209 be amended in clause 1, on page 1, by replacing line 5 with the following. . . .
Senator Milne: Do you have copies for us?
Senator Andreychuk: Yes. I was trying to find my French copy because I have other variations.
The Chair: Perhaps we could distribute the English, to be followed by copies in French?
Senator Joyal: Be very careful. We have a question of privilege in a committee.
The Chair: That is true; we will distribute them together.
Senator Joyal: I suggest to avoid any kind of discussion it would be better to have both of them at the same time; not that I want to be picky.
The Chair: Sometimes "picky'' is good.
Senator Joyal: I think you understand what I mean.
The Chair: I do. "Picky'' is particularly good during clause-by-clause consideration.
Senator Andreychuk: I can read it. I move:
That Bill s-209 be amended in clause 1, on page 1, by replacing line 5 with the following:
"placed by the following:
"43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force, other than corporal punishment, by way of correction toward a pupil or child, as the case may be, who is under that person's care, if the force does not exceed what is reasonable under the circumstances.''.
The Chair: May I ask what this does.
Senator Andreychuk: It adds the words "other than corporal punishment.''
The Chair: To the existing section 43?
Senator Andreychuk: Yes, to the existing section. We could discuss whether we also amended it, by way of correction, to something like "by way of restraint and control.'' I say this not to confuse but, hopefully, to enlighten. That could be one option.
It could be "for exercising in guidance and discipline,'' if the word "correction'' was a difficulty, also. It was how to do it simply without getting into that situation. Therefore I put in the basic amendment, which would be simply to add the words "other than corporal punishment;'' if I may say it that way as a shortened version.
The Chair: I will return and ask Senator Joyal to speak to the earlier amendment that was put forward.
Senator Joyal: I think honourable senators will realize that the amendment introduced by Senator Milne in a way — I will not say "contradicted'' the bill — but reinstated section 43. As you will notice, clause 1 says, "Section 43 of the Criminal Code is repealed.'' We knew the original bill was to delete it from the Criminal Code.
The introduction of the amendment by Senator Milne reinstates section 43. In fact, if you read the first three lines of paragraph 1 along with section 43, it is almost verbatim of the same article. There is no question that I think that proposal, in a way, gives effect to the position that was presented by the Quebec Bar in its letter of May 30, 2008.
I will quote the last paragraph from the Quebec Bar letter, if I may. I do not know if I should translate it, it is in French. Do you have it in English? You have it in English. I will leave it in French and I think honourable senators have a copy of it. I will read it slowly:
[Translation]
In our view, the archaic wording of section 43 is problematic because it appears to condone gratuitous violence against children, which is clearly not the case.
[English]
In other words, they were questioning the labelling of section 43 as it stands now. They then go on in the letter:
[Translation]
As a result, we support the idea of rewriting section 43 to more clearly indicate the scope of this exception.
[English]
In other words, they suggested rewriting section 43 in order to take into consideration the various elements that were included in the former decision of the Supreme Court of Canada in the Canadian Foundation case with which we are all familiar. They then continue:
[Translation]
It would be infinitely preferable to put forward an updated definition of this defence —
[English]
— the one very specific point that Senator Andreychuk mentioned.
[Translation]
— in order to protect the rights of children while at the same time allowing parents and educators to exercise their power and authority, within reasonable limits, in fulfilling their role.
[English]
In other words, they were stating that we need section 43 in the Criminal Code. However, we need a section 43 with some very specific means of defence and we need to recognize that parents, schoolteachers or persons supervising the care of children in certain circumstances, might be allowed to use force.
The idea of corporal punishment was excluded, per se — that is what they said clearly in their first line. That is how the proposal of Senator Milne answers that suggestion of the Quebec Bar: By having a definition of what is "reasonable force,'' which is not presently defined in section 43. As you read section 43 it says:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force. . . .
It does not indicate the limit of the force. Senator Milne's amendment proposes to define "reasonable force,'' in the context of the Supreme Court decision for the Canadian Foundation. It therefore means an application of force that is "transitory'' — a very short question of time — and "minimal in the circumstances.'' "Minimal in the circumstances'' means the force has to be evaluated in the context in which it was used.
In other words, it is essentially within the line that was defined by the Canadian Foundation decision. There is no question also that the various subparagraphs that define the context into which the reasonable force can be used reflects what the committee has heard from individuals from New Zealand with regards to the precedent of amendments to their own code in relation to what they call domestic discipline.
To meet Senator Andreychuk's concern, there cannot be the use of force for correction. That is clearly excluded. Second, the parameters defined in the Supreme Court of Canada decision in the case of the Canadian Foundation are included as are the experiences that were drawn from New Zealand.
Therefore, section 43 is kept in the Criminal Code, which is the important change from the bill from Senator Hervieux-Payette. That is essentially the objective here.
The Chair: We will now move to general discussion of both of these items before us.
Senator Carstairs: I have to say I like aspects of both of these amendments. I must say I particularly like the section of Senator Andreychuk's in which she actually has the phrase "other than corporal punishment.'' I think we can put that phrase in Senator Milne's amendment and it would still make sense. We could say a parent "is justified in using reasonable force toward a child, other than corporal punishment,'' by way of correction. Then we can define the limitations as we have done.
The Chair: Here is an innocent question. Would the insertion of that phrase fit better there or in subsection (2) which is the definition: ". . . means an application of force that is transitory and minimal in the circumstances, and does not include corporal punishment.''?
Senator Carstairs: I believe what Senator Andreychuk is trying to get at is the perception that has existed for generations in this country that, although section 43 says "force,'' it has not been interpreted as "corporal punishment.'' If we can, in our amendment, delete the word "corporal punishment'' while still giving parents certain defences then I think that is a reasonable approach to make.
I do not really care whether it happens in the first or the last paragraph. The intention would be to rid ourselves of the image that is out there that it is okay to slap, kick and push a kid around.
The Chair: Is there any further discussion?
Senator Andreychuk: The point that I want to continue to reinforce is that none of this is meaningful if we get families before the courts. Successive governments have been telling parents to use alternative methods of corrective behaviour for children, do not hit, strike and use violence.
It seems it would fit better in using "reasonable force'' and you would put "other than corporal punishment'' at the top.
Senator Joyal: I might be out of order. Senator Carstairs, I understand the reasoning in your position but would I put it immediately after "in using reasonable force, other than corporal punishment.'' I saw it somewhere else. No, she said anywhere you want to put it. However, in all fairness, I would suggest it be put there.
The Chair: Senator Carstairs, can I assume you moved a subamendment?
Senator Carstairs: You can assume I have made a subamendment "other than corporal punishment'' and you can decide, Madam Chair, where you want to put it in.
The Chair: It is moved by Senator Carstairs,
That the amendment proposed by Senator Milne be further amended by inserting the words "other than corporal punishment'' following the words "using reasonable force'' in the proposed section 43(1).
I think that is what we moved.
I do not see anyone leaping into action on this one. Could we vote on the subamendment?
Senator Joyal: Can I translate it in French?
The Chair: Yes, that is a good idea.
Senator Joyal: I will borrow from Senator Andreychuk a French translation, if she allows me. In English it would be "other than corporal punishment.''
[Translation]
In French, it would read: mais non un châtiment corporel.
[English]
This is the French translation used by Senator Andreychuk in the French version of her own amendment.
The Chair: All those in favour of the subamendment? This is just so that we are all clear what we are discussing here. All those in favour of the subamendment.
Opposed?
Carried.
The subamendment is therefore carried.
What is now before us is the amendment of Senator Milne, as amended, and the amendment of Senator Andreychuk. Further discussion?
Senator Andreychuk: I have already spoken, but I speak a second time.
I continue to read the Supreme Court of Canada decision in the Canadian Foundation case, and the majority decision, I may say. I have read the dissenting decisions, and while they have some merit I think that the Supreme Court did an extremely laudable job of understanding international law of the Convention on the Rights of the Child, the needs of children today, the needs of parents today, the needs of teachers. It struck a balance that I thought was extremely useful, to bring us along to using alternate methods of correction.
The signal is that we have moved in this society — and the Supreme Court captured it very well — that corporal punishment, as we understood it — we used examples of, well, my father did this to me or my grandfather did this to my father. We moved a long way to say alternate methods of correction are more appropriate than corporal punishment. I think the Supreme Court was almost there. They had the age 2 to 12 example, but it was a laudable decision.
The difficulty that I have with the amendment, as proposed by Senator Milne, is that it identifies the kind of intervention that a parent or teacher can do; specifically A, B, C. Life is not that simple for families these days. As Senator Cochrane has pointed out, what about autistic children?
When I was in court, 20 years ago, I did not have to deal with children on drugs of the kind that they are on today. They did not have the kinds of technology that they have today. They were not subject to the abuse from the Internet and sexual predators in the way they are today. The load that teachers, parents and I must say children carry today is incredibly complex.
Why I would like my paragraph and my motion is that it contemplates we will continue to make changes. The case law brings us up to today. The policies are up to today. We just do not know what parents will need in two years or three years, and the law does not change that quickly, I must say. Therefore, it gives more latitude to build on the existing case law, if we take the motion that I have put, than the one that Senator Milne has put.
It is a laudable motion that Senator Milne has put in as well because it has identified the present and existing needs in the main. Mine simply broadens that capability for the courts.
If you will remember what the Supreme Court said, the onus before you use any force is on the adult, on the parent, to be absolutely certain that it is necessary. It cannot be done in anger. It has to be minimal and transitory. To that extent, Senator Milne has picked up the Supreme Court implication. I think that is good.
I know numbers being what they are in this committee, as we always say, and we can count, I would prefer my amendment. I would ask you to consider it, although I think that for the moment acknowledging the needs of parents and teachers, as Senator Milne does, is good.
Senator Milne: I was going to remark that we are on the same page. We are trying to do exactly the same thing. My amendment is more specific, but I do like mine because it defines "reasonable force.'' I think that is very important.
Senator Joyal: May I say something to Senator Andreychuk?
The Chair: You can, because you have not spoken on this yet.
Senator Joyal: I can wait.
Senator Carstairs: I think there are two things that we should not ignore. The first is that the case that was taken to the Supreme Court of Canada was essentially a case of whether children had rights under the Charter. The Supreme Court went way beyond whether they had rights under the Charter, but that was the case.
What they said, in essence, was, in the majority, children do not have rights under the Charter. You have to be an adult to have rights under the Charter. Yes, I think they pushed the envelope as far as they possibly could in their judgment in order to limit the amount of physical force used against a child, but I very much like the amendment that has been introduced in the phrases beginning with (a) and ending with (c) which, in fact, further limits that within the law.
I also want to remind senators that there is a section 2 of this bill. It would only be an irresponsible government that did not use the year between the passage of this bill and the coming-into-force of this bill, which is a one-year period, to fail to educate parents from coast to coast to coast as to what this new bill means.
I do not think this government is irresponsible and I do not think that future governments will be irresponsible in the necessity to use that year to provide the appropriate education.
Senator Joyal: I was listening carefully to Senator Andreychuk and I want to say to honourable senators, the decision in Canadian Foundation is not a unanimous decision. There is a trick in there. It means that if you look into the dissenting judges and the majority judges, there are many judges there that are gone. I can mention them without offending their reputations: Justice Gonthier is gone, Justice Major is gone, Bastarache is gone, Iacobucci is gone, and Binnie is gone. The bench will change, and in a decision like this one where there is a split, if you bring another case you can get a different interpretation.
It seems important to limit section 43, if we keep section 43 and I think it is a very important safeguard in the context of the decision and to protect the rights of the child as defined by the courts.
It seems to me it is a double-edged sword when are you facing a decision that is so split and where, as Senator Carstairs has said, we are in a field of evolving societal behaviour. What was accepted when we were kids is no longer acceptable. We all understand that. That is why we say not a corporal punishment. We all, in our respective positions — and I think I can speak for each of you — might have had a little corporal punishment when we were children. Maybe not much, but maybe a little.
In today's context it is not acceptable. Where we will be in X number of years from now is an evolutionary context. The fact that the decision was so split, and when you read the arguments there — difficult to choose — I think it is wise to do a redefinition of section 43 as we do now. It meets the objective of protecting, as Senator Andreychuk has rightly said, part of the case law that has been given by the court in relation to that.
The Chair: Senator Andreychuk, I know you want to comment on this. However, your colleague, Senator Stratton, has not had a chance to say anything yet.
Senator Stratton: No, mine has a different slant.
Senator Andreychuk: I have fought for the rights of the child, but I very much agreed with the court when they said this was not a violation of the Charter because equal treatment is not the same as identical treatment. I think equal treatment and fairness for children — I keep going back to read the convention where it says the right to a family, the right to grow up with the proper environment, where you are disciplined, corrected, looked after, respected and loved is the ideal that we are looking for. It is not any action a parent takes cannot be viewed as inappropriate when they use some force. It is in the best interest of the child.
The vulnerability of children is that the Convention on the Rights of the Child talks about the rights of the child to be fully obtained when they reach maturity. They are transitory rights, and therefore you do not grow on day one with all the rights an adult has, you grow into them. They are transitory rights. Consequently, the best tools ever for a child are parents, whether they are adoptive parents, grandparents or what have you, but someone who takes an interest and looks after you and allows you to grow in a proper environment.
I do not know what that will be for children tomorrow. I do not think that the majority and minority opinion in the Supreme Court were that different. Where they differed was on the corporal punishment issue. I think they agreed that corrective behaviour was necessary in some form. That is why I am looking for the best possible flexibility, because we know that our child protection laws do not say this is an ideal parent. Child protection laws are put in, and the state will intervene when you drop below the minimal standards. We hope most parents do more than what the state looks at before they intervene.
Unfortunately, we have some parents and some children who drop below that minimal standard. We want to give flexibility for parents. We have a very diverse society with different interests and cultures and historical facts, and all of those help the self-image of a child grow. I am appealing for more flexibility, but at least acknowledgement that intervention by teachers and parents is needed. I could go on forever.
Senator Stratton: I am going to go off tack from the Supreme Court and down to the level of the teacher. I thought to myself, okay, what would a teacher think? I went and talked to one in Winnipeg who teaches in a school division, and I asked her what took place, in her experience with violence in the classroom. I asked do you as an individual deal with it. Does an aide deal with it? Does someone outside the office deal with it? She looked at me and said in the last few years they now install emergency buttons in all classrooms. They hit those and someone comes. Not the police, but someone in authority comes to deal with the situation.
My real concern is what we do with each step along this way is what we are going to end up with: Police in the schools. That is just appalling to me. The police do not want that job. It gives the wrong image to students. That is why I was all for holding off on this bill, and let us talk to people who will be directly affected in their ways of life. Teachers, Aboriginals, those people have not been talked to.
We have talked here, but we have not talked to the people who will be directly affected. I think that is wrong, fundamentally wrong.
Senator Oliver: I agree with Senator Milne when she says both of these proposed amendments are trying to get at the same thing and trying to resolve the same difficulty with section 43. However, I see, when you look at the language of the two, that there is a fundamental philosophical difference in the way that they are going about it.
In Senator Andreychuk's amendment, there is the use of the word "correction.'' In the other is what a schoolteacher can do with a child under his or her care, and the circumstances under which certain things can take place. Those circumstances are A, B and C.
If you see that philosophical difference in the two approaches to this new section 43, which gives the greatest leeway to schoolteachers and parents? I think that Senator Andreychuk is correct. By the use of the word "correction,'' who is under a person's care if the force does not exceed what is reasonable under the circumstances. I just wanted to point that out.
The second thing, I am wondering if everyone who gets to come under this section, as amended, should it become law, would understand what is really meant by corporal punishment. In neither of these does anyone attempt to define what that is. What kind of punishment is corporal punishment and what should a teacher or a school board or an individual take it to mean?
Senator Merchant: I tried to go and see teachers too and I was not able to, but I did teach school. I do think — I will say this because it bothers me a little — that we are constantly concerned about the police or the parents or the families. I said this last week too, that we also have to look at it from the lens of the rights of the child.
This is where I agree with Senator Andreychuk, that we did not hear from children. If we are going to be so concerned about grown-ups, I think we miss out if we do not think of the children first.
The Chair: Any further interventions?
Senator Joyal: May I ask Senator Carstairs a question? Of course I was not a teacher by profession, and I think you have been. What is your reaction to those proposals and the use of reasonable force in schools or classrooms, on the basis of your experience?
Senator Carstairs: I taught for 20 years. I taught senior high, although I taught junior high, as well, which means Grade 7 to Grade 12. I know that Senator Cochrane was also a teacher.
As a student, I remember the strap as the most obvious form of corporal punishment. I remember entire classes being strapped because of the poor behaviour of one child.
There is no question that there is violence in the schools today. There are often times when a teacher has to step between two children. Quite frankly, she may have to push the two away. That is why you must have a "reasonable force'' definition. It may be necessary to separate those two children.
I believe that "corporal punishment'' is quite easily defined. I think it means "using excessive force against a child.'' The courts made this definition very clear. They said you could not use an external object and you could not hit a child on his or her head. I think all of those definitions included in their judgment were positive ones, except they said you could start using some force between ages 2 and 12.
In the school system, the most obstreperous children are the 13 year olds and the 14 year olds, not the 5 year olds. You are told by the court that you cannot hit a child who is 1 year, 11 months and 27 days old. However, wait a week because then you can. You are then told that once the child has reached his or her twelfth birthday, you cannot do it because he or she has reached some age of maturity. I must tell you some 12 year olds have reached the age of maturity beyond what would be realistic and other children at age 12 are totally out of control.
I think you all know my preference. I take the bill just as is. I can understand the arguments that have been put forward that, unless we coach it, parents will not have any defence. If a child is in danger and they act to pull that child out of danger, we know, in theory, that individual has the doctrine of necessity but they will feel somehow or other encumbered if we repeal all of section 43. Although I do not think they need it, I am prepared to give it to them.
In terms of "reasonable force,'' however, I think that is what the public relations program that we launch is all about. I think parents will quickly come to understand what is "reasonable'' and what is not. Hitting a child with an extension cord is unreasonable. Kicking a child down a flight of stairs is unreasonable. Yet, prior to the court's decision, those are cases on the books in Canada in which judges have said, "Reasonable force was used under section 43.''
The Chair: Thank you, Senator Carstairs.
Senator Cowan: I did not have the benefit of hearing many of the witnesses that dealt with this matter when it was before the committee. I apologize for that.
I listened to the discussion here today and I understand the struggle that people have with this. I am not sure that we would not be adding the possibility of some confusion in people's minds if we were to insert those words about corporal punishment.
In the draft amendment, it speaks about "reasonable force'' and "force that is transitory and minimal in the circumstances.'' I think people would understand those concepts; I think parents and school teachers would understand those concepts.
The Chair: You may recall we voted in favour of a subamendment to insert those words. If you want to reopen that, we can do that.
Senator Cowan: No, the question was: Is there a definition of "corporal punishment''? I do not know the answer to that question. If there is not, are we introducing a concept or a phrase without introducing a definition? If so — and not every word must be defined in the Criminal Code — is that a term which, if it is to be inserted in this, ought to be defined? If so, how would one define it?
The Chair: As I recall, the Supreme Court of Canada in the Canadian Foundation case did use the phrase "corporal punishment'' without attaching a definition to it, which I would tend to assume meant that they thought it was a plainly-understandable phrase. "Corporal'' means physical and "punishment'' means punishment, as distinct from prevention or restraint.
Senator Baker: Yes, but in this circumstance, you are using it as an exclusion. I would tend to agree with Senator Cowan that you would have to define it in that case. If you use the term generally and then you define after you use the word generally what is not permissible or what is permissible, that is one matter. When you use the words to connote an exception to the rule, as you are inserting it in this case, between commas, then I would suspect you would have to provide a definition for it.
The Chair: I believe the subamendment as adopted did not include commas.
Senator Baker: I thought it did.
The Chair: I take your point.
As I dictated it, the subamendment to Senator Milne's amendment did not include commas. Senator Andreychuk's proposed amendment does include commas.
Senator Baker: It does. I see.
Senator Andreychuk: Does that change your opinion?
Senator Baker: No.
Senator Milne: We have already voted on it.
The Chair: Colleagues, since this has been raised do you wish to reopen the subamendment.
Hon. Senators: No.
The Chair: In that case, we will proceed to consideration of the amendments that are before us.
Senator Joyal: On a point of order, the word "punishment'' is in section 43 of the Criminal Code. The concept of punishment is in the Criminal Code, Senator Cowan. Everyone will understand that the word "corporal'' is touching the human body. I do not think there is a major question mark about that.
Senator Andreychuk: There is capital punishment and corporal punish.
Senator Joyal: Yes. That is found in many sections of the Criminal Code.
The Chair: Thank you for that point of clarification.
Senator Cowan: Can I clarify the point of order?
I am grateful to Senator Joyal for pointing out the definition of "corporal punishment.'' Should I understand, then, that "corporal'' would be understood by everyone to mean any touching, laying of the hand or anything held in the hand on a human body?
Senator Baker: That is not reasonable, is that right, Senator Carstairs?
Senator Carstairs: That is one of the exceptions.
The Chair: I believe that is the sense of what I have heard around this table.
Speaking personally, I would think that "corporal punishment'' is a widely understood phrase. It is more widely understood than many other phrases that crop up in legislation. That is just a personal opinion.
Senator Andreychuk: It is understood more so than "terrorist activity.''
Senator Oliver: Senator Baker, what is an "assault,'' therefore?
The Chair: That is a far more contentious question.
Colleagues, I think we have had a good discussion around these two proposals.
They are both before us and I propose that we now proceed to a vote. First, colleagues, I propose that we now proceed to a vote and, since we have two separate motions, it will have to be two votes on the motions in the order in which they were presented to us. I think we should all understand that if we accept one amendment we are essentially rejecting the other amendment.
Having said that, I will now ask colleagues to turn their attention to the amendment proposed by Senator Milne, as amended.
Shall the amendment, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Opposed?
The Chair: Carried. I am so sorry, abstentions?
Some Hon. Senators: Yes.
The Chair: Carried, with abstentions.
We now have still before us the motion put by Senator Andreychuk.
Senator Oliver: You just said that if one is carried, there is no need to do the other.
The Chair: What I will ask you, colleagues, is whether we should then consider this amendment to have been withdrawn?
Senator Carstairs: Agreed.
Senator Joyal: Agreed.
The Chair: We can have a vote on it if its mover wishes, but we have already accepted an amendment that, in essence, overtakes it.
Senator Andreychuk: I must say that you have caught me off guard because I do not intend to withdraw it. I understand that it has been negated.
The Chair: In that case, I would propose simply to rule that it has been negated, on division, I assume?
Senator Stratton: No.
The Chair: No. It has been negated, then.
Senator Andreychuk: Just one other issue, since we have a collegial atmosphere here.
My concern is that we are in June and we know what life is like —
The Chair: Could we, perhaps, conclude the clause-by-clause matter?
Senator Andreychuk: No, I wondered whether there was an appetite for another motion. My concern is very realistically on the education. I do acknowledge and appreciate that the proponent of this bill did change the bill from immediate implementation.
The Chair: Are you talking about clause 2 of the bill?
Senator Andreychuk: Probably.
Senator Joyal: Yes, that is in clause 2.
The Chair: I do not think we have quite yet finished with clause 1.
Senator Andreychuk: All right.
The Chair: Shall clause 1, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Some Hon. Senators: Abstain.
The Chair: Carried with abstentions.
Shall clause 2 carry?
Senator Andreychuk: Basically, the proponent of the bill did take into account that education is extremely important and had put in a one-year implementation period. It seems that one year is not realistic. I want to know if there is an appetite to put in two years here. I will not force the amendment now; I would like to hear from my colleagues if they think that would be an education period of two years, being realistic how governments and policies work, in particular, when there is a very strong provincial aspect, in particular with teachers and everyone else.
The Chair: We have a pre-motion discussion here. Comments?
Senator Carstairs: I do not think there is any need. Let us be realistic: This will not pass the House of Commons this year. If there is prorogation, God knows how long this will take.
Hopefully, colleagues on the other side and, in particular, the cabinet colleagues in the Department of Justice Canada should be looking at this if this passes the Senate as something that might realistically pass the House of Commons. Therefore, they should be putting programs in place.
This amendment was put in both in Senator Hervieux-Payette's bill and in my bills as being necessary. I believe that if you delay it for two years, governments will delay doing anything for one year of that two years.
Senator Stratton: Would you accept a year?
The Chair: There is year.
Senator Carstairs: I accept a year.
Senator Stratton: So you accept a year.
Senator Joyal: I understand Senator Carstairs' point and Senator Andreychuk's point. We could contemplate adopting clause 2 as it is. We can always amend at third reading if we feel, upon consultation with the Department of Justice Canada or whoever else, that it would be better to do it within two years. We can amend it at third reading.
I understand Senator Andreychuk's point but I am not in a position to say either yes or no to it. It does not seem to be unreasonable to say two years. On the other hand, if those who are the masters of that information can tell us in the meantime that one year is acceptable, then I would deter to their former experience. I do not know. I cannot say yes or no to you. I also understand Senator Carstairs' point, namely, that the ball must start rolling some time. That is why I suggest that we adopt it as is. We will then hear from the people involved in the transfer of information to the Attorney General, and so on, if that would make more sense.
Senator Andreychuk: I put in a motion to defer because of the need to consult Aboriginal communities. Many of the new Aboriginal communities that I am dealing with have school systems within their reserves. They also have child welfare systems within their reserves. We did not do the kind of preconsultation that New Zealand did. They consulted, as they said, up and down the roads with the Maori community; we have not.
Being a bit of a pessimist like Senator Carstairs, if we do not do something to say that is necessary, then it might not happen. I want to build in something that would give sufficient time to let the communities have some involvement in this legislation.
The Chair: I should note for the record that the Department of Justice Canada was invited to send officials before this committee and, apparently, took the view that its previous testimony in earlier incarnations of this bill sufficed.
Senator Andreychuk: Yes, and we did apply the evidence of the witnesses from the previous committee to this one.
The Chair: Yes we did, from this committee and from the Standing Senate Committee on Human Rights.
Senator Carstairs: I do not recall them ever indicating to us that one year was not sufficient.
The Chair: Nor do I, but I cannot claim to have a photographic memory at this point.
Senator Andreychuk: No they did, not because they were called in the Human Rights Committee and they dealt with why the defences were necessary in section 43 of the Criminal Code. I do not think we asked them about implementation at that time.
The Chair: There was some discussion, glancingly, I must say, in this committee this time around, but it was not a prime focus of our inquiries. Further discussion on this point?
Shall clause 2 carry?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Senator Stratton: On division.
The Chair: Carried, on division.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Is it agreed that the bill be adopted, as amended?
Some Hon. Senators: Agreed.
The Chair: Opposed?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report?
Senator Milne: No; it speaks for itself.
Senator Joyal: No; we will make speeches at third reading.
Senator Stratton: On the floor; that is where it counts.
The Chair: No observations.
Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, colleagues.
I shall report the bill tomorrow.
This has been a busy afternoon. I thank you all very much. Our next meeting will be in this room tomorrow morning at 10:45, when we shall continue our consideration of Bill S-225.
The committee adjourned.