Proceedings of the Standing Senate Committee on
Issue 20 - Evidence - June 4, 2007
OTTAWA, Monday, June 4, 2006
The Standing Senate Committee on Human Rights, to which was referred Bill S-207, to amend the Criminal Code
(protection of children), met this day at 4:07 p.m. to give consideration to the bill.
Senator A. Raynell Andreychuk (Chairman) in the chair.
The Chairman: Honourable senators, I see quorum. The committee is empanelled today to consider Bill S-207, to
amend the Criminal Code (protection of children). Appearing before the committee is the Honourable Céline
Hervieux-Payette, sponsor of the Order of Reference by the Senate. Senator Hervieux-Payette testified previously
before the Standing Senate Committee on Legal and Constitutional Affairs when the bill was in its original form. This
committee will proceed with the new bill in its current form.
Honourable senators, with the concurrence of the steering committee and all committee members, I propose to
move this week in the chamber that the Senate apply the evidence from the previous Standing Senate Committee on
Legal and Constitutional Affairs to this committee. Some of that evidence might be outdated but it can be assessed
accordingly. It would be helpful and timely to have that evidence applied to the committee's mandate.
Senator Hervieux-Payette, welcome to the committee. Please proceed with your opening comments.
Hon. Céline Hervieux-Payette, P.C., sponsor of the bill: Thank you, Madam Chair. First of all, I would like to
congratulate you on your last report on children's rights in which you refer to children as the ``silenced citizens''. I
think that is a most appropriate designation and I must commend the report's recommendation calling for the repeal of
section 43 of the Criminal Code, a legislative provision that dates back to the 19th century. We must not delude
ourselves into thinking that we our recommending something revolutionary, since this provision dates back to the
1800s and has never been amended.
This is the second time that I am speaking out on a bill that concerns children. In the past, I was involved in the
efforts to reform the Juvenile Delinquents Act which dated back to 1908. All of that to say that indeed, very often the
rights of these ``silenced citizens'' are not taken into account.
I would also say that probably one of the most important roles of the Senate is to lend a voice to those who do not
have one within our elected parliamentary system. I have taken the liberty of sending a copy of the report to all school
boards in my region of Quebec, to inform children of their rights and to initiate a dialogue with them on this bill.
This morning, I met with 60 elementary school students in Ottawa. We had an extremely positive discussion about
the proposed legislation. They sat in our Senate seats and debated this topic, some opting to sit on the government side.
I am pleased to report that they unanimously voted to repeal this legislative provision.
I wanted to relate this experience to you because someone could ask us if we have consulted young people. I have
consulted with a cross-section of young people from all communities: young Anglophones attending a French school,
young people who obviously only recently immigrated to Canada and others who are long-time residents of the
Nation's Capital. I had a good cross-section of young people to work with. Ultimately, as a result of this get-together,
young people were able to learn about their rights.
The report also points to the fact that one of the problems is a lack of information. You recommend an information
campaign targeting parents and all persons standing in the place of a parent. Not only do I wholeheartedly support
that recommendation, but I would make it a sine qua non condition. Before the bill passes into law, the government
should have a year to notify all authorities across Canada. It should be remembered that enforcing the provisions of
the Criminal Code is a provincial responsibility. Canada's Criminal Code provides the federal government with
exclusive jurisdiction to legislate criminal offences, but the provinces are responsible for enforcing Criminal Code
Mindful of this fact, I met with several attorneys general and other ministers responsible for children from around
the country. Their support was amazing. I gave each one of them a copy of the guide published by the Government of
Quebec for its prosecutors. The guide contains very specific guidelines on how to deal with children who have been the
victims of violence or who have been physically punished, even for corrective purposes, as the case may be.
No doubt you are familiar with a ruling by the Supreme Court of Canada for children under the age of two and
children between the ages of 13 and 18 — the act applies to adults — which sets much stricter limits on the use of
corporal punishment by parents.
However, the members of the Supreme Court maintained that they were applying the law and that they were not
lawmakers. They recommended that lawmakers examine this matter. Given the evidence I have heard across the
country and the studies that I have conducted, the findings are very clear, in my estimation.
No doubt you have received a letter about UNICEF. One important thing that this bill does is to enable Canada to
comply with the International Convention on the Rights of the Child. Canada is a signatory to this convention, but has
not updated its laws accordingly. To date, 18 countries have reformed their legislation and a seventeenth is in the
process of doing so. South Africa is examining this question.
Personally, I know that Costa Rica, a developing country, has taken the dynamic step of preparing posters showing
a red circle with a bar intersecting a hand, to convey the message that corporal punishment of children by parents is
prohibited. This is not an issue that pits developed countries against developing nations, or wealthy parents against
single-parent or struggling families. Statistics Canada studies show that there is no difference in the use of corporal
punishment by wealthy parents and by lower income parents. However, according to this study which involved 2,000
children and to a scientific sampling from across the country, the startling finding is that 83 per cent of children who
were physically chastised were more aggressive and more prone, for example, to depression or to dropping out of
school because of low self-esteem. A child who is struck by an adult certainly does not have a lot of self-esteem. The
most heart wrenching situation of all is the children who commit suicide. When a loving parent strikes his child, it is
difficult for the child to trust the parent. Not so long ago, lawmakers moved to address the problem of spousal abuse.
Provinces enacted measures to support families.
Canada is not leading the way on this issue. We are talking about physical punishment, not mental abuse. Germany,
however, has gone so far as to broach the subject of verbal abuse. Verbal abuse can be just as damaging as physical
abuse. I think all of the experts would agree with that statement.
Initially, Canada would simply be upholding its international commitment by applying the Convention on the
Rights of the Child. I want to congratulate all of the organizations that have called for this legislative initiative. To
date, 260 organizations from coast to coast concerned about the physical and mental well-being of children have
expressed support for repealing section 43 of the Criminal Code. We are not acting in a vacuum. We are responding to
a general request from all those who work closely with young people.
Having touched on the international situation and mentioned that we are not pioneers in this field and that
Canadian organizations that work with children also fully support this measure, I would also like to point out that a
number of school boards have made known their views on this matter. The situation of teachers is not specifically
addressed in this bill. However, if necessary, the committee could review their situation with some experts. To my
mind, when a child leaves home for school, the person who takes the place of the parent is the teacher. I do not have a
problem with stating that clearly.
I would like to call your attention to a letter dated May 30 — it is very recent — received from a Montreal-area
school board after your committee had tabled its report. I find it very interesting indeed that a school board took the
time to comment on your report. It agrees that children are entitled to the same protection, in terms of physical
integrity and human dignity, as adults, but goes on to add that there is an assumption here that adults are qualified to
intervene and to take constructive disciplinary action which would allow a child to establish some reassuring reference
points and to learn to deal with the notion of authority.
While this particular letter was written by a Montreal Island school board, school boards in other provinces have
also made their views known, including the Ottawa-Carleton District School Board, the Eastern School District of
Newfoundland and Saskatoon Public Schools.
On the substantive issue, namely the physical integrity of children, teachers and educators, whom I consider to be
experts on children, must recognize that children have the same rights as adults. It is against the law, as the public
knows, to physically assault an adult, however minor the nature of the assault.
It is also interesting to note that this topic is currently being debated in Toronto. My meetings with the responsible
ministers in Toronto were, I must admit, very fruitful. In light of recent incidents in Toronto, of teenagers being killed
in schools, you have two groups squaring off against each other. On the one hand, we have individuals who have gone
so far as to suggest that children should take guns to school — you can understand that I am not at all in favour of this
— and on the other hand, we have those who believe that ensuring children's safety is the job of adults and school
boards. However, the first step is to protect a child's physical integrity before and after school.
I have here the results of a survey on people's awareness of the limits set by the Supreme Court in its ruling. Only 20
per cent of all Canadians are aware of the five limits set by the Supreme Court respecting the use of corporal
punishment. However, 53 per cent of Canadians know that according to the Supreme Court ruling, parents can use
physical force on children between the ages of 2 and 13 years.
Generally speaking then, I believe the public needs some clear information. It is so very important to me that section
43 be repealed because to maintain this legislative provision would simply allow people to continue physically abusing
defenseless children and would perpetuate family violence, which has no place in a society where psychologists,
psychiatrists and sociologists have thoroughly analysed the harmful effects of violence directed at children.
Very few people are familiar with the issue of reasonable force. No one is really able to provide a definition of what
constitutes reasonable force. Twenty-three per cent of the population claims not to know what reasonable force is, 64
per cent says it has no idea, whereas only 13 per cent acknowledges having some idea.
The point is that when arbitrary reasonable force criteria are used in the current legislation, we are operating in the
dark. As I often say, there is a good chance that reasonable force does not mean the same thing to a lightweight person
of small stature as it does to someone who is 5 feet 9 inches tall and weighs 198 lbs.
This is a very important consideration in criminal law. I also concur with the Supreme Court's finding that it is very
difficult to measure reasonable force. It is truly a subjective criterion and criminal law demands objective criteria.
When there is no adequate way of measuring reasonable force, it is very difficult for the courts and for judges to make
A few minutes ago, I mentioned Quebec's Attorney General who had issued guidelines for all stakeholders on the
use of reasonable force. What exactly did these guidelines cover? They laid out the steps that should be taken if
someone, a parent or neighbour, suspects that a child is being repeatedly abused.
As is the case in Ontario, the first step is to have social services intervene. They analyse the situation before the
Justice Minister takes any action whatsoever. I am not talking about legal action as such, but about seeing to the
interests of the child and weighing the repercussions or effects on a child of physical punishment inflicted on a regular
basis, ostensibly for educational purposes.
The court established criteria to avoid having to judicialize the process. Every parent's fear is that they could end up
in court if section 43 is repealed.
We need to place our trust in the provinces. They have experts and exceptional social services. My objective in
proposing this measure — and my personal goal as a lawmaker — is not to embarrass parents or drag them before a
court of law. Rather, I want to resolve the issue of the harm done to children, to protect their rights and to make sure
that parents who are not properly educated about this receive some support.
Several years ago, the Department of Justice set up a toll-free number that parents can call to obtain advice from
experts on how to deal with hyperactive or rambunctious children. As far as I know, there are no universities offering
parenting courses. Parenthood does not really come with any proper directions or training in the art of disciplining a
hyperactive child. This service is very important and should be expanded with this bill. Parents need to be informed
and supported. To my mind, this is essential if the bill is to achieve its stated objective.
I have reflected on the range of measures that the federal government has initiated jointly with the provinces. This is
an area in which jurisdiction is shared and we can certainly help the provinces bring in additional measures that they
would be in charge of overseeing. However, we must be sure that the repeal of this provision does not result in court
action. The first thing that needs to happen is for children, and most probably parents as well, to be better informed
and to be made to understand that physical punishment does not lead to behavioural changes, but more likely to
Summing up, the important thing to understand is the possible defences that can be invoked by a parent who, on the
basis of substantial evidence, ends up in court for repeatedly striking his children. The Criminal Code currently
provides for two defences. The defence of necessity would apply in the case of parents who have three or four children
fighting or hitting one another. This occurs primarily in families with boys. Girls do not tend to fight as much, but in
families with boys, physical contact is all part of the game. As I see it, when one child is a little too dominant and
another child is in danger of being injured, parents must intervene using reasonable force to separate the children so
that one does not suffer a physical or mental injury.
The second type of defence is the de minimis defence. When a scuffle breaks out at home or in the schoolyard, a
parent or teacher may lose patience and intervene, but their actions could never be equated with the use of reasonable
force for educational purposes. In this instance, any minor use of force is more of an impulsive, one-time gesture. No
judge in the country will prosecute a parent simply for losing patience with a child.
If as a result of the measure, parents were required to attend educational sessions to learn to handle difficult family
situations, I think all young families in Canada would benefit.
My dear colleagues, I fervently hope that section 43 will be repealed as soon as possible and that our colleagues in
the House of Commons will support this initiative. They will have to examine this matter, but we will certainly share all
of the information we have with them.
Again, I want to congratulate the committee on doing an outstanding job and, if I may, I would especially like to
mention the extraordinary work of our former colleague, Senator Landon Pearson, who advocated for children's rights
in the Senate. We should all be very proud of her efforts. Nor can I forget to mention Senator Carstairs, who
sponsored a similar bill before me. I am the seventh member of Parliament to table an initiative of this nature.
I have told everyone that I intend to serve until the age of 75 and that by that time, I expect this bill to be passed. So
then, I may tend to go on a little, but I feel that we have reached a crossroads. Major studies conducted by leading
Canadian institutions support this proposed legislative initiative. As I said, this is a short bill which quite simply calls
for section 43 to be repealed and for a public education program to be put in place within the year before the coming
into force of the legislation.
The Chairman: Thank you for the presentation. We did start a bit late, so I will ask senators to be extremely short.
Otherwise, we will back up our panels, and I understand some of our members cannot stay after 6:15 or 6:30.
Senator Hervieux-Payette, you referred to various studies and reports. It would be helpful if could you file those for
the benefit of the committee.
Senator Hervieux-Payette: Most of them were tabled with the previous committee.
The Chairman: If you are referring only to those previously filed, that is fine.
Senator Hervieux-Payette: There is a new study from Toronto, about the amount of knowledge people have with
regards to the judgment of the Supreme Court, and it will be helpful to the committee, so it would be my pleasure to
The Chairman: Thank you.
Senator Nancy Ruth: As you know, I come from part of the English women's movement in Canada. That is where I
am starting in terms of this bill, because one of the things we did was to change the legal framework around violence
against women. I have no trouble with also supporting your bill. Part of its intent is to decrease violence, which
historically has been put against the defenceless and disadvantaged in Canada.
A Toronto professor, Ursula Franklin, has often talked about feminism as a way of social ordering, as opposed to
what she sees as patriarchy, another way of social ordering. The repeal of section 43 is consistent with Professor
Franklin's approach, the same way that women have taken against violence against women. Our criminal laws should
reflect the social ordering that we want.
However, I need to ask: How much violence against children is being sheltered now under section 43, and what
would change if the section were removed? Part of my question is this: Is it just symbolic? Will it make a difference to
the social ordering of children's lives in their day-to-day lives? What will be the substantive difference in social
Part of my problem is that women have criminalized violence against women, but social ordering has not changed.
What exists now, and what will happen if it is repealed? That is a short question, Madam Chair.
Senator Hervieux-Payette: Perhaps I could make a brief, general comment about feminism. I must remind my
colleagues that this is a concern many of my male counterparts share, so it is not a feminist approach to society. It is a
point of view of the feminine gender. I share your analysis that there is a different angle, and in our society we should
be equally making decisions about the future of the people in our country.
What would change? Statistics Canada presents statistics by category, by age group, and you will see the level of
violence and the number of people using violence against their children. That is why I concluded that 83 per cent of
those who were encountering violence were more violent. It is a very significant number. The category that is
experiencing more violence is children aged three to six, those who are most at risk. For that age group, some
psychiatrists in Quebec are saying, especially for women, that the stigma is absolutely for life. It creates in young girls
far more trauma than it does in young boys. As I said before, young boys are more used to physical contact and
physical violence. This does not mean that this violence by adult to children should be exercised.
You talked about social ordering, and we are in progress as a society. Because I am also active with the women's
movement, I can see that we have made some progress in terms of joining the decision-making process. The process is a
long one. If I were to compare Canada to the rest of the world, we are privileged to have open-minded people and to
have our point of view on legislation being taken into account. I am not pessimistic — because the rest of the world
experiences a lot of violence. The first victims are women and children. We see that in Lebanon, in Iraq, in Afghanistan
When women are part of the decision-making process and when violence does not start in the family, the level of
violence will be reduced. Sociological studies demonstrate that violence is learned. I have experience with interviewing
young children. Children aged 10 and 11 understand very well that when you are not respected as an individual, you
are not likely to respect others. By changing and by educating, which is the parallel to the change in the law, we will
diminish the degree of violence, and Canada should stand apart with this.
Senator Munson: Briefly, you say you are the seventh senator to bring this forward.
Senator Hervieux-Payette: I am the seventh parliamentarian.
Senator Munson: I am curious as to why there have been roadblocks and where those roadblocks are. Those children
between 2 and 13 are now in their early 20s, and they have probably been abused. It seems to be such a common-sense,
simple piece of proposed legislation. Why do we continue to face these stumbling blocks?
Senator Hervieux-Payette: I understand some people, but there are those I hardly understand — for example, the
religious belief that we should apply the Old Testament, which says that if you love your children, you abuse them
physically and hit them. We are talking about something that was written some thousands of years ago. The science of
sociology did not exist when the Old Testament was written.
However, there is a school of thought that you correct children because you love them. However, it does not work,
and there is no evidence whatsoever that it works. There are many studies that contradict this tradition.
Second, I remember receiving some documents from the Department of Justice contending that, if a child is put in a
car seat, that child no longer has the freedom to move and hence the parent might be charged with assault. The defence
would be one of necessity, if someone were ludicrous enough to bring a charge and a judge agreed to hear such a case.
However, when you protect a child — for example, a three-year-old child who is attracted to the water but may not
know how to swim — if you intervene to protect the child and if you exercise force by rushing at the child and perhaps
seizing him by the arm, you are not there are to punish that child but to prevent him from dying.
That is why I mentioned guidelines. Many provinces have guidelines, and many provinces are ready to go with that
approach. It is difficult when you have a double jurisdiction, federal and provincial. Legislation is federal, but it is
implemented by the provinces.
Nowadays, I can certify to you that I see no roadblocks from the provinces. I can assure you that Quebec, Ontario
and British Columbia are strongly in favour of repealing section 43.
Senator Munson: Do you believe this Parliament will pass the bill?
Senator Hervieux-Payette: Following the good work this committee has done, and after looking at what the experts
are saying in this country, the kind of evidence we need, it is hard to find someone who will now say that, for the good
of the child, we should continue to hit them. The evidence is overwhelmingly in favour of stopping physical violence to
children. Children today said to me — which is very touching — that their parents should talk to them when there is a
problem and that they will listen to their parents. Children have told me that if they have done something wrong, their
parents can punish them by telling them not to play with their video or not watching television. Children know there
are different ways of disciplining. You do not have to attack their integrity; you still must respect them as individuals.
Senator Fraser: Senator Hervieux-Payette, surely you know that some people — but not you, I would imagine — are
concerned about the unexpected fallout from this bill. I am talking about persons who oppose corporal punishment,
not about those who believe in the old saying ``spare the rod, spoil the child''. I am talking about people who generally
share your philosophy, but who nonetheless have some concerns and believe that this bill would prevent teachers in
particular from using reasonable force where circumstances warrant.
No doubt you are aware that New Zealand recently passed a law dealing with the same subject. However, it
contained specific examples or provided for exceptions.
For example, New Zealand law says that force is justified:
Every parent and person in place of a parent is justified in using force if the force is reasonable and for the
purpose of . . .
Then a number of points are given, some of which I find a little odd. Some of the key justifications for using
reasonable force are for the purpose of preventing or minimizing harm to the child or another person; for the purpose
of preventing the child from engaging in conduct that is a criminal offence; and for the purpose of performing normal
tasks incidental to good care and parenting.
What came to my mind immediately when I read that is how it is sometimes necessary to exert some degree of force
to restrain a child who is getting a vaccination, a very small child, for example. That would be a normal task related to
good care and parenting, in my mind.
Would it be a problem to incorporate examples of this nature into the text of your bill? The New Zealand law also
To avoid doubt, it is affirmed that police have discretion not to prosecute complaints where the force used is so
inconsequential that there is no public interest in prosecuting.
Again, I understand that all of this was not necessary, as you mentioned. Conversely, would it be helpful at all to
include examples to reassure the people who do have some concerns? Or it is a bad idea?
Senator Hervieux-Payette: I am not comfortable answering your question for the very simple reason that I have
already sought some advice on the subject. It would be a matter of legislating the defence of necessity and the de
minimis defence. Quebec's civil law experts are used to this type of thing, to clearly describing everything. Common law
experts prefer to refer to case law and maintain that all lawyers are familiar with the necessity and de minimis defences
and that it is not necessary to include this in the bill.
I will defer then to the experts who belong to the 260 organizations consulted. With the exception of Quebec, the
majority are opposed — you can check this for yourself — to legislating defences that are already provided for in the
Criminal Code and that are invoked in known ways.
I want to solve the problem of violence toward children, but I want to do so in the best possible way. The first line of
defence is, in my opinion, social services. Most attorneys general agree with that assessment. Ultimately, the provinces
have the final say on how to apply the provisions of the bill.
If a sound public education campaign is conducted and if the provinces bring in a system where social services act as
the first line of defence before matters are referred to the courts, then any remaining cases requiring parents to justify
their actions will be extreme cases, probably involving children between the ages of 2 and 12 years. In the case of a
battered child who has bruises and who is beaten regularly by his parents, it will be difficult to convince anyone that
this child will grow up to be a healthy, well-adjusted adult. Of course, there will be charges laid under the current
legislation, but only if parents refuse to get help to deal with their difficult children.
When children are hyperactive at home and at school, nutrition and a physical condition are often to blame.
Children who have some kind of problem will often be the ones who are hit the most often. As you can surely
appreciate, it is difficult for me to accept this level of violence. I am aware of the New Zealand law, and I also know
that it came about as a result of a compromise by parliamentarians who, like us, follow a British-inspired criminal
I think we can do better. Certainly my preference is to have this provision repealed, once an education program
approved by the attorneys general is in place.
The Chairman: Senator Hervieux-Payette, thank you for appearing before us and introducing Bill S-207. We are just
beginning our study here, and we will take into account not only the words that you have put on the record today but
also your previous comments in the previous committee. I will stop here, because we are running very late. I will ask if
our next presenters could come to the table.
Honourable senators, we have two other panels, so we will try to be as efficient as we can. We now have before us
the Canadian Teachers' Federation, represented today by Mr. John Staple, Deputy Secretary General, and Mr. Allan
O'Brien, Legal Counsel.
Allan O'Brien, Legal Counsel, The Canadian Teachers' Federation: By way of overview, we want to make it clear at
the outset that the Canadian Teachers' Federation opposes corporal punishment. However, the federation also
opposes Bill S-207 because, if passed, it will repeal section 43 of the Criminal Code. Section 43 is not only about
corporal punishment. In fact, it does not give teachers permission to engage in corporal punishment. Section 43 of the
Criminal Code gives protection to teachers when they use a reasonable amount of force for corrective purposes, such as
restraining a child or removing a child from a classroom.
We have submitted a 13-page brief. By way of introduction, I will be dealing with three topics. The first topic deals
with the current scope of section 43 of the Criminal Code, including the unequivocal prohibition of corporal
punishment by teachers. Second, I will explain why section 43 of the Criminal Code is necessary to prevent teachers
from being subject to criminal liability for creating and nurturing a healthy and safe learning environment. Third, I will
talk about why section 43, as it applies to teachers, is consistent with Canada's international obligations and
international human rights law.
The first topic is with respect to section 43, teachers and corporal punishment. In the 2004 decision of the Supreme
Court of Canada, Chief Justice McLachlin specifically addressed what would constitute reasonable force by a teacher.
Speaking on behalf of the majority of the court, she stated the following:
Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children
from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not
acceptable. Many school boards forbid the use of corporal punishment, and some provinces and territories have
legislatively prohibited its use by teachers. This consensus is consistent with Canada's international obligations,
given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a
teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances.
Substantial societal consensus, supported by expert evidence and Canada's treaty obligations, indicates that
corporal punishment by teachers is unreasonable.
We have heard the suggestion that the Canadian Teachers' Federation supports the use of corporal punishment by
teachers. That is false. That is contrary to the federation's approach since the early 1980s, annual meetings and all its
affiliate members. The Supreme Court of Canada has made it clear that section 43 does not provide a defence if it is
Chief Justice McLachlin continued:
Teachers may reasonably apply force to remove a child from a classroom or secure compliance with
instructions, but not merely as corporal punishment.
As a result of the decision of the Supreme Court of Canada, as far as teachers are concerned, the scope of section 43
can be distilled in the following propositions: First, it never permits teachers to use corporal punishment; second,
section 43 does not protect the force by teachers when the force is motivated by frustration, anger, loss of temper or an
abusive personality. Section 43 only protects teachers who use force reasonably under appropriate circumstances, such
as restraining a child to secure compliance with instructions or removing a non-compliant child from the classroom.
Now we move to section 43 and its application to teachers. Section 43 of the Criminal Code creates, at law, a
justification for conduct that would otherwise be criminal. The Criminal Code makes it an offence to apply force
intentionally to another person, regardless of whether that application of force results in bodily harm.
The brief deals somewhat extensively with a teacher in today's Canadian society in the classroom, and I will leave it
there for your reading.
At page 6, we set out typical examples of the use of restraining force and such. I want to emphasize that no one is
suggesting that these would not be assaults under the Criminal Code but for section 43. Removing a student, by taking
his arm, who refuses to leave the classroom or the school itself; removing a student from a school bus when causing a
serious disruption, refusing to take his seat or to leave the school bus; guiding or leading a student to the principal's
office; restraining, controlling or calming an emotional or angry student. These are considered assaults but for section
Some have argued, and you have heard it today when Senator Hervieux-Payette spoke, that there are assaults but
that, in a sense, a teacher should not be concerned about those criminal assaults because there are available defences or
approaches. You have heard about the defence of necessity. Another one would be prosecutorial discretion, where you
can count on the Crown or police not proceeding with the charge, or de minimis — the third one — where the law does
not concern itself with trifling matters.
Chief Justice McLachlin, speaking for the majority of the court, rejected all three of those positions or approaches.
Dealing with the defence of necessity at paragraph 44 — I will not take you to it, but it appears in the decision — she
specifically points out that the defence of necessity, while available, only applies in circumstances where corrective
force is not the issue.
Of course it is there if the child is running out in front of the school bus and you grab the child; and of course it is
there if the child is about to drown and you him or her them out of the water. That issue is not being faced in these
circumstances. It is there, but it is brought forward in circumstances where it will never apply to the issue of the
restraining force that teachers must deal with. She deals with prosecutorial discretion in paragraph 63. In dismissing it
as an approach, she said that our goal should be the rule of law, not the rule of individual discretion.
Dealing with the argument of de minimis, Chief Justice McLachlin points out that that concept is equally or more
vague and difficult in application than is the reasonableness defence offered by section 43. The court has not said that
the de minimis defence applies in criminal matters — it has not been clearly set out. As well, as the brief indicates, how
can jurisprudence dealing with family violence, such as spousal abuse or assault on a child, ever be de minimis? It is so
significant, how can one say that the de minimis defence will be available?
When the Supreme Court of Canada, in expressly dealing with the issue of necessity, prosecutorial discretion or de
minimis rejects those approaches as being appropriate in these circumstances, certainly a teacher has every right to be
concerned about criminalization for conduct that we would consider justified — conduct that would be criminal but
for section 43.
Section 43, as it applies to teachers, is consistent with international law and international commitments. Section 43
does not justify a teacher's use of corporal punishment. The United Nations Convention on the Rights of the Child
prohibits violence against children. It does not prohibit the use of force, as a restraint force and, therefore, section 43,
as it applies to teachers, is consistent with Canada's international obligations to prevent violence against children.
That is our opening overview submission.
The Chairman: Thank you for providing the brief. We will take some time to read it and absorb the full context of
your remarks on section 43.
John Staple, Deputy Secretary General, The Canadian Teachers' Federation: If I may add briefly, Madam Chairman,
thank you for the opportunity to present before the committee. This is an extremely important issue and one that our
members are quite concerned about across the country. The Canadian Teachers' Federation represents teacher
organizations in every provincial and territorial jurisdiction in Canada and through those organizations represents
some 220,000 to 225,000 teachers. We find ourselves in a difficult position with this issue and always have done so. We
are responding legitimately to the needs of our members — teachers across the country who engage in millions of
personal interactions on a daily basis with children and students in the K-12 public school system.
Teachers function in classroom environments that are characterized by increasing challenges and a growing diversity
of students in a number of different ways. In many cases, they face inadequate resources, growing societal expectations
and demands to take on the roles of many people at many different times, sometimes.
If teachers have the responsibility that society places on them in that context, then they are extremely concerned
about the lack of protection under the law in the exercise of those responsibilities that the removal of section 43 would
result in. It is from that expression, that difficulty, and the concern and conflict that they feel with respect to the
existence or non-existence of section 43 and their ability to perform to the level expected of them and to accommodate
the responsibilities that society in general expects of them in their daily work — it is from that perspective that we
approach this issue.
The Chairman: Thank you, Mr. Staple, for clarifying that. Corporal punishment is not the issue but rather the other
aspects in the category of reasonable restraint that are of concern to you in today's society.
Mr. Staple: Exactly.
Senator Carstairs: Forty-four years ago this week, I graduated with a Masters of Arts in teaching and began my
teaching career. This is the very first time that I have been ashamed to be a teacher — the very first time. I have talked
to many of your teachers across this country and you do not represent 220,000 teachers when you put forward this
position. The ones have I talked to are in favour of the repeal of section 43 of the Criminal Code.
I am looking at your examples, on page 6 of your submission, on separating a bully from the classmates that he is
taunting. The way to do it is to step between the bully and the student that he is taunting. You do not have to grab the
bully and you do not have to push the bully. There is no assault involved in such action so there needs to be no
protection for the teacher.
In terms of directing a student to cease misbehaving, I did that during my 22 years in the classroom, probably every
single day. However, I did not do it by touching the child and I did not do it by pushing the child. I do not understand
where you are coming from on the entire issue.
Section 43 is inconsistent with international conventions. We have been told time and again by the UN committee
studying the rights of the child that Canada is in violation because it has on its books section 43 of the Criminal Code.
As far as the current scope of section 43 stands, a teacher who, in my view, assaults a child for whatever reason
deserves to have the full force of the law against him or her for assault.
If you are talking about touching a child, asking that child to come with you and taking that child by the hand with
no example of force whatsoever, who in God's name do you think will charge that teacher?
Mr. Staple: I will try to answer the question. First, I take offence at the suggestion that we are not representing our
teachers and teachers' very solid organizations across this country. On the policy books of every single one of those
organizations is the position that we are putting forward today on section 43. I do not sit here feeling uncomfortable at
all that we are not representing the views of teachers in Canada on this issue because we are representing them.
Who would charge a teacher who places his or her hand on a child's shoulder to direct that child to the office? Ask
the thousands who do just that every school year. It happens. I have been working with teachers' organizations for 25
years. I have seen the evidence of teachers being charged for very, very small contact with students. I agree with you
that a teacher who assaults a child should be convicted under law; I agree fully with that. However, if I as a teacher
must keep order in a school setting, and if the most innocent of contact between the teacher and a student is regarded
under the law as an assault, then I am afraid it will be extremely difficult for me to perform the duties that I have
undertaken to perform.
You can easily adopt a zero-tolerance policy with respect to contact with children. Our advice to teachers and our
teachers' organization's advice to teachers is to undertake that as much as possible. In the context of the myriad
interactions that take place in Canada between teachers and students, and between teachers and parents for that
matter, it is difficult not to conceive of situations where individuals would be charged for fairly innocent behaviour.
The cases are prevalent, and they are evident.
Senator Carstairs: You make it sound as though thousands of teachers are charged every year for assaults, and that
is simply not the case.
I am particularly offended by page 5 of your brief where you talk about children with special needs. It is as though
you combine special needs and the representation of those children in classrooms with the need for teachers to use
some kind of force. I thought teachers stood for, as much as possible, the integration of all children within the public
school system. That is what I stand for.
Is this a new direction, that these children are not only ``special needs children'' but are ``special children'' somehow
or other requiring more forceful intervention by teachers?
Mr. Staple: Many of the students that teachers are facing in classrooms now were not in regular stream classrooms
40 years ago. Our classrooms are more and more diverse places of learning, and the resources that are required for the
education of the kinds of students that we have in classrooms are becoming more and more complex.
There are students who can exist in an integrated setting only with appropriate student assistants or additional
personnel to provide physical restraint in the event that the child's condition causes himself, herself or other students in
the classroom bodily harm.
I am sorry to have to say that, but that is a reality of today's classroom. We are not suggesting in this brief that
section 43 exists in order to help us with those circumstances, and I am not suggesting that a student of special needs is
any different from an ordinary student in the classroom on whose shoulder a teacher lays his or her hand. There is no
difference. We are only saying that the classroom is an extremely complex place and that we must provide the resources
and personnel necessary to provide a safe and healthy learning environment for all children.
No, we are not singling anyone out. We are providing examples of the complexity of today's classroom.
Senator Munson: Do you think the use of the strap, which was commonplace, in the 1950s and 1960s was reasonable
Mr. Staple: No, I do not. I do not consider it reasonable force in any era. That is a punishment. Our first statement
in this brief is that we do not agree with corporal punishment. We never have. It is simply not an issue that is a part of
our consideration of section 43.
Senator Munson: You spoke about new challenges. Can you give me some examples of what happens in a high
school in Toronto, Montreal or Vancouver? Are you talking about physical fights breaking out between teacher and
student? You seem to be talking about restraining as opposed to someone taking on a teacher.
Mr. Staple: The issue of taking on a teacher is different. Taking on a student, whether in high school or any other
setting, is a different kind of event. If a student decided to take on a teacher in a school setting, I guess it would be the
call of the teacher at that time. How do you plan for that kind of event? You deal with it. Your first concern is to
protect the student and others, and you have to try to protect yourself.
I have seen evidence of situations where teachers who were trying to protect themselves from student attack by
taking whatever restraining action was required were charged with assault and the matter was dealt with in the courts.
Those are extreme situations. We hope they are in the minority in the schools across the country. However, there are
enough incidents of physical assault by students upon students and by students upon teachers that fall into that
category that it is of concern. Those are the extreme cases and are not the ones that we are concerned with for the most
Mr. O'Brien: Senator Munson, in such circumstances, there are other defences in the Criminal Code, whether it be
self-defence or defence of a third person. The law does recognize an intervention for self-protection.
Senator Munson: You say you represent 220,000 teachers.
Mr. Staple: Through their organizations, yes.
Senator Munson: You have meetings every year and you have had votes on the issue of section 43; correct?
Mr. Staple: Yes.
Senator Munson: What percentage of teachers wants this law to be retained?
Mr. Staple: I cannot give you a breakdown of votes and discussions within our teacher organizations across the
country. They have been debating the merits of having section 43 as opposed to not having section 43. Their
contemplations have focused on their circumstances as teachers and what section 43 means under certain
circumstances. The debate has gone beyond that to, if not section 43, what? No one has come up with an answer to the
``what'' at this stage in order to assuage the concerns.
Senator Munson: At meetings of the Canadian Teachers' Federation proposals are put on the floor; correct?
Mr. Staple: Yes.
Senator Munson: What percentage of teachers vote in favour or against on this issue?
Mr. Staple: There is no dissension on this issue.
Senator Munson: No dissension?
Mr. Staple: Not at the general meetings of the Canadian Teachers' Federation.
The Chairman: I have been both a prosecutor and a defender of teachers who were charged under this section. I
know what the Supreme Court has said, but it is very difficult for someone outside the classroom to know what
happened at the moment of restraint as to whether it was reasonable or unreasonable, which is what we are talking
about. You are saying that you are against corporal punishment. If I understood your brief correctly, you believe that,
if there are elements of section 43 that allow corporal punishment, it should be abolished.
Therefore, it is a question of how a teacher can maintain the security of all students when there are 30 or 40 children
in a classroom. How can a teacher intervene? Sometimes it can be done with a word and sometimes with some sort of a
minor intervention, but sometimes you really have to restrain children.
Is it your objective to be able to ensure the safety of all students, aside from how section 43 has been ruled upon by
Mr. O'Brien: That is a fair comment. The Supreme Court of Canada dealt with what section 43 does as far as
teachers are concerned. It justifies non-corporal-punishment conduct by a teacher and justifies it as being non-criminal
conduct. It is not criminalized, where otherwise, but for section 43, it would be.
When the Canadian Teachers' Federation looks at the Bill S-207, and Mr. Staple referred to it as well, part of the
problem is that it is a repeal. When it is repealed, we are left with criminal conduct. It is an assault to restrain.
The Chairman: Maybe I am out of date, but in my old law school days, the ``least touching in anger'' was an assault.
Now, if the ``least touching'' for other purposes would not be an assault, how does that get you out of your definition?
Mr. O'Brien: I do not think the ``in anger'' is there any more.
The Chairman: Case law has taken us to any touching. Is that what you are saying?
Mr. O'Brien: It is any intentional application of force without the other person's consent, whether it is happy, anger
and so forth.
The Chairman: Any time you place physically any force at all, however minor, it could be construed as an assault. Is
that your position?
Mr. O'Brien: It is our position.
The Chairman: I want to be clear.
Mr. O'Brien: If I were to remove young John Staple from the classroom because his removal was the only way the
class could continue, and I took him by the arm and said, ``Now have you to talk to the vice-principal,'' there no doubt
that that is an assault. If he said, ``No, I am not leaving the classroom,'' do you call the police? Calling the vice-
principal or principal down to do the same thing does not change the issue. The principal or vice-principal will still
have to take young John Staple out of the classroom by the arm. That is still an assault.
Do you then call the police because someone is trespassing? It becomes an unworkable situation.
The Chairman: One area that troubled me was zero tolerance in schools. The rebuttal of some school boards to zero
tolerance — that is, if you break rules A, B or C you simply cannot come back. I have never agreed with zero tolerance.
The rebuttal was that if it is that clear, zero tolerance in the schools with young children that you are supposed to be
teaching — correcting behaviour — by simply the minute they defy a rule to take them out of it, you are not really
maturing and developing them.
Are you suggesting that section 43, by its repeal, would not only leave the teacher vulnerable but would also lead to
teachers not intervening or calling the police? Is that what you are implying?
Mr. O'Brien: If section 43 is repealed, as the bill before us is, and if there is not a workable replacement that deals
with it, yes, it is fair to say you would find teachers would be taking a complete I'm-not-getting-involved-in-this
attitude and someone else can deal with it.
The Chairman: I very much respect the work of teachers, and the difficult situations they often encounter, having
been a family court judge where I had to deal very often with teachers and the work they did with many of the same
students that I had to. I appreciate your coming here and sharing your point of view on the repeal of section 43.
We will now move to our next panel. I am pleased to welcome Ms. Kathy Vandergrift, chair of the Canadian
Coalition for the Rights of Children, and Ms. Cheryl Milne, staff counsel of Justice for Children and Youth. Neither
witness is new to this committee. They have been very supportive of our work and instructive in it, representing many
young people and NGOs in our community that have taken the time not only to think of the needs and rights of
children but also about how to apply the United Nations Convention on the Rights of the Child.
We welcome you back to this table. As you know, we are here with respect to Bill S-207. We are mindful of your
previous testimony. I believe Ms. Milne has some opening remarks.
Cheryl Milne, Staff Counsel, Justice for Children and Youth: Thank you very much. I am here as the counsel who
argued the case before the Supreme Court of Canada on behalf of that organization, and also as a member of a
network of professionals and individuals representing organizations from across the country who work to end the
physical punishment of children in Canada.
Echoing Senator Hervieux-Payette's words, I want to commend this committee for its report on the human rights of
children in Canada.
I want to talk about the impact of the Supreme Court decision in my analysis of the cases that have followed and
about public attitudes and knowledge of the case. I want to talk about the concept of restraint and how that fits in our
law, and I will then address some comments made by the previous presenters around the role of teachers and hope to
be helpful to the committee in that regard.
First, I wish to say that, in my review of the reported case law that followed the Supreme Court decision, there still
are inconsistencies in the interpretation of section 43. The Supreme Court set out to limit the impact of section 43 on
children, but we still are faced with the subjective interpretation at the police and judge levels. One of the first cases that
came out was a teenaged girl who was slapped in the face, both things that would have been inconsistent with what the
Supreme Court set out as being reasonable; there was an acquittal in that case and no appeal.
That was always the problem that we saw prior to our arguing the case. Even when at the lower level you would see
a bad decision, there was no appeal to maintain consistency in the interpretation and, therefore, the protection of
The other problem in terms of public perception is that the Criminal Code reads the same way it did before, so that
the knowledge of the public, the lawyers and child welfare professionals as to what that means is key to whether the
Supreme Court's decision will have an impact on the safety of children.
My organization has done interviews with child welfare agencies and police from across the country. Toronto Public
Health has done a survey of Canadians with respect to their understanding of the case, and we are seeing little
knowledge and education about what it means, and we are seeing little knowledge on the part of police officers, Crown
Attorneys and those who are charged with interpreting in order to protect children. There has not been the kind of
public education we need, even about the bare minimum that we have in terms of interpretation.
Even the parents who have reported to use corporal punishment have also, in the survey done by Toronto Public
Health, reported that they do not what the limits are. Hence, we have a situation in which there continues to be danger
to children, a risk to children that they will be abused, because those who were aware of the case would answer that
they know that they still have the right to use corporal punishment but they just do not know what the limits are.
With respect to the concept of restraint, it has always been my legal opinion and submission that section 43 really
does not deal with that particular issue. There is an Ontario Court of Appeal case that has said that there is a common
law implied consent for parents who use touch for nurturing, because section 43 is about correction, not about the
other type of touching that goes on by teachers and parents that would otherwise be an assault.
I noted to Ms. Vandergrift as I was listening to the previous presentation that we all just witnessed an assault, an
assault without any defence, when Mr. O'Brien grabbed the arm of Mr. Staple in making his presentation, yet I do not
believe Mr. O'Brien felt there was any risk that he would be charged, even though technically, based on his submission,
there was an assault without a defence.
It demonstrates that we as adults have lived with that section with no limits, understanding that de minimis applies
to our daily dealings with each other because our courts and police could not function unless it did.
Blackstone, which is what the original origins of the definition of parental rights were with respect to correction,
specifically says it is a right of correction and restraint. The correction is what was defined into section 43, and restraint
is still there as a common law defence. Many people entrusted with caring for our children do not fit neatly within
section 43 at all. Mr. O'Brien gave examples around educational assistants. They are not teachers; they are educational
assistants. Their name is not in that section, yet they are the ones performing restraints on children who are out of
control, out of necessity, because they have been properly trained, and also fortunately properly trained on how to
avoid them and how to de-escalate situations so you do not need to restrain children, and that is what we want to see
more of. There are professionals in health care, in child welfare, the non-teacher educators that I mentioned, who use
restraint on a daily basis in their nurturing and caring of children, to protect them, to prevent harm and to gently guide
them when they may be out of control. It is something that is generally there and available, and people do not live in
fear of prosecution.
The other thing I want to mention about the Supreme Court of Canada decision is that the majority said that they
were setting a standard of what was reasonable, but that could change depending on international law and social
science evidence. It would be my submission that we have changed. When that case was started, we had a certain body
of social science evidence that we filed at the lower court level. It moved its way through the system. That was what we
were stuck with. Things have changed and evolved, and you see that in the joint statement now that has been signed by
many organizations. We also now see movement on the international front. Ms. Vandergrift will speak more
specifically to those issues.
With respect to the earlier question by Senator Nancy Ruth about the substantive difference, I want to answer that
in a way that puts it clearly by giving examples from other countries. Sweden is the classic example, but 18 countries
have instituted bans of some sort. Denmark did about it about 10 years ago. These are numbers from UNICEF
Denmark. I do not have a precise source, but I can get it to the committee if it would be helpful. When they instituted
the ban, 45 per cent of parents still advocated or used corporal punishment and felt it was the right thing to do. Ten
years later, that number is now only 15 per cent. In 10 years, there was a substantive, important change in attitudes.
Most of the countries that have taken this approach, Sweden being the leader, did not wait until the public agreed or
the parents agreed further down the line. They did it upfront, and they did the education campaign simultaneously so
that the law was consistent with the education.
We have this problem with the law lagging behind. We are starting to see changes in attitudes even in Canada, but
we are lagging behind. We will always have, in my submission, an intransigent group that will fight for their right to
spank or their right to hit children. Primarily, we need to change the law to make the message clear. It is important that
the education campaign is not just aimed at parents. What Sweden did so effectively was to also educate children in the
schools as to what their rights were. That is a major part of them also internalizing that message so we have a second
generation in Sweden that have never experienced corporal punishment. The children of that generation did not
perpetrate it on their children of this first generation. There can be significant substantive change in changing the law.
It is not simply symbolic.
On the issue about the thousands of teachers being charged every year, I have not seen the evidence of those kinds of
numbers, and I will give you just a little anecdote to show how I think that might be slightly an exaggeration. When we
initially did our case at the first level of court, at the Ontario Superior Court, we commissioned a study of police
occurrence reports to look at what police did at the very first level when they were trying to interpret section 43. We
looked at police occurrence reports in three centres: the Scarborough division of the Toronto Police, Winnipeg and
Timmins. Unfortunately, there were not enough incidents involving teachers for it to be statistically significant, so we
could not even analyze the teacher data. That was looking at occurrences within a year. That is anecdotal, but I am
saying that gives you a little bit of a sense of frequency. I am not saying it never happens, because it certainly does, and
teachers do get charged, but I am not sure that it is in quite the numbers that was said.
I have made most of my points, and I am mindful of the time.
Kathy Vandergrift, Chair, Canadian Coalition for the Rights of Children: Thank you for consideration of this bill and
for inviting us to present our evidence before you. The coalition is asking the committee to consider very carefully our
international human rights obligations and to consider the most recent global study on violence against children. It was
an extensive study, done in all countries, including many young people. Take into account what it had to say as you
look at this bill.
The Chairman: For the record, you are referring to the United Nations Study on Violence by Paulo Sergio Pinheiro.
Ms. Vandergrift: Yes. In Canada, 300 children also participated in the study, and so I thought it might be interesting
for the committee to hear what some of the young people had to say. I have picked just a few quotes, first about the
fact that this is an important issue. The second most frequently described incidence of family violence they brought up
was physical punishment. They discuss being spanked, smacked or beaten. They said, ``Really bad violence happens in
homes. Some people beat their kids, push them, slap them, kick them and everything.'' Then they expressed their belief,
``Parents shouldn't be allowed to hit their children.''
The second quote relates to the importance of clarity about this. Often kids do not know what the boundaries are
either, so they do not know when they should be asking for help. This is a quote from a young person, ``I don't think
kids even know when they are being abused. They probably think that hitting happens in every family and it is okay
that their parents hit them, so why would they look for help if they don't know it's a problem.'' It highlights the
importance of consistency.
The World Report on Violence against Children, after extensive research and discussion with youth around the
world, cite their strongest message as this one: No violence against children is justifiable. Children should never receive
less protection than adults. That is our current situation in Canada.
Relating this bill to that report, it is clear that the concept of reasonable force is too vague, uncertain and subjective.
To be consistent with the directions of this study, it seems to me the committee is called to support repeal.
The second key message is the importance of prevention. As Ms. Milne said, prevention is about education but also
about the law. Right now we see education being undermined by the vagueness in our law.
We have seen in Canada significant examples where the two have gone together, changing the law and education.
Violence against women is one example that comes to the fore, as do smoking and driving while drinking. I am old
enough to remember when there was a debate about seatbelt legislation, which is now accepted. Changing the law and
educating society goes together.
I would add the statistics from Sweden in terms of understanding the benefit of that. Sweden changed its law in 1979
and, in 1980, 51 per cent of parents reported they had used corporal punishment. In 2000, 20 years later, only 8 per cent
reported the same. It can be effective to change the law and educate at the same time.
Ms. Milne has spoken to the question of restraint. I would add on behalf of the coalition that that should be dealt
with elsewhere in the Criminal Code so the message is clear. We heard from young people about the importance of
having clarity in our messages.
I have a short comment on the Convention on the Rights of the Child, and then I too want to leave time for
discussion. We are not consistent with international obligations. The Committee on the Rights of the Child has twice
specifically asked Canada to repeal section 43. Canada will be going before the committee again in 2009, at the same
time as the target date for the recommendations in this global study. It is important that Canada send a clear statement
Canada supported the resolution relating to this study. We have a letter from Minister MacKay saying that the
Canadian government welcomes its recommendations. Again, I would hope that we can send a clear message between
now and 2009, when Canada appears once again before the Committee on the Rights of the Child.
The time is past when Canada can say that we respect the rights of children as some kind of ideal, but it does not
mean very much in our country. It is time to end the situation where we have less protection for children than we do for
women. The passage of this bill is an important signal, and so I hope this committee will support it.
Senator Munson: What do you tell the Canadian Teachers' Federation? In their written presentation, they say:
``Therefore, without the protection of section 43 of the Criminal Code, a teacher would be committing a criminal
offence by separating a bully from classmates, dealing with young children, directing a student to cease misbehaving
and return to a school lineup, removing a student who refused to leave the classroom or the school itself, restraining a
cognitively impaired student who has attempted to lash out in the classroom and then guiding that student to a quiet
room in order to calm him down. These are about 11 examples of situations where a teacher may reasonably be
expected to use force.''
They make their argument. What do you say to the Canadian Teachers' Federation?
Ms. Milne: Simply, I think they are wrong, or misguided. Clearly, many items in that list fit within other defences,
for example, the separating of bullies. You are in charge of defending and protecting children under your care. There is
a defence in the Criminal Code for that. You may be preventing a crime. There is a defence in the Criminal Code for
that. You are preventing harm, and the defence of necessity would apply to that. For very minor applications of force,
the guiding of a student to sit in his or her seat, for example, is the de minimis kind of defence that I would say is
If this committee were to feel there was still room around the issue of restraint, despite the fact that there have been
years of examples in which restraint has been used by non-teachers without criminal prosecution — and I would say
because necessity applies in most of those cases — then, as Ms. Vandergrift has said, that should be dealt with
elsewhere. If you start amending section 43 as opposed to repealing it, you still have the mixed message that it is okay
to hit children and that they are a second-class group of citizens.
There are sections, for example, in the Criminal Code that deal with law enforcement or peace officers using a
reasonable amount of force to fulfill their duties, and there may be ways to look at teachers in that way. For the
nurturing kinds of touching, parents use it all the time and there is a clear, consistent, common law approach to that.
Our society could not function without it.
To some extent, the arguments are what we would call interim arguments, which is that they create this spectre of
police coming in and charging teachers left, right and centre, and I frankly do not agree that that will happen.
Ms. Vandergrift: My suggestion would be that they consult with teachers in the countries that have done this. We see
no evidence of a rash of teachers being charged with assaults in Sweden and Germany; there are 18 countries all
In Sweden, in 2000, a specific study was undertaken to determine the impacts of the legislation. There is no evidence
that there was a significant increase in charges laid against teachers or parents. Perhaps there are other components in
their laws; I am not sure. Let us look, then, at the experience of teachers in other countries, how they have managed,
and perhaps we have something to learn from that.
Senator Munson: In our recommendations in Children: The Silenced Citizens, we talked about an education
campaign. I know you have endorsed that campaign. This expression drives me crazy — federal-provincial
The Chairman: And it will continue.
Senator Munson: We will change things.
The Chairman: Change the Constitution?
Senator Munson: What kind of national campaign, realistically, can be put together by groups like yourselves,
senators, educators and others where there is a national focus on this? Where are the will and the money to do that?
Ms. Milne: The will has to be with the federal government, as does the money. You start primarily from a human
rights perspective, and that is something that applies across Canada. We do not have different human rights for
children depending on where they live. Canada signed the United Nations Convention on the Rights of the Child, and
Canada federally has a responsibility to ensure that it is complied with.
The first step is removing section 43, which would send a clear national message, followed by the types of public
health campaigns the federal government has done across Canada on many other issues. That is what we need to see.
The Department of Justice argued at the Supreme Court of Canada that the route they were taking instead of
repealing was education. Frankly, I have not seen it; I have not seen the television ads or the posters. There have been
select pieces of education that have targeted at-risk groups, but we need a national campaign that is available to all and
not dribs and drabs of support for various groups. We need to see a clear national message.
Ms. Vandergrift: I would cite campaigns against smoking and drunk driving. We have done those kinds of things in
this country. There was a will to do the campaign, and we could do it for this as well.
Senator Nancy Ruth: Can you tell us more about the follow-up study in Sweden? What were the positive and
negative impacts of removing this kind of a law in that country? I am looking in part for the negative impacts: Was
there more acting out, more public violence or nuisance from teens, lower grades, increased delinquency, or were there
Ms. Vandergrift: I do not have the full study with me. The points I noted were in relation to the concerns that have
been raised to us about this. First, will it be the case that parents will be dragged in front of the court for minor
assaults? That was not shown to be the case in Sweden.
As I mentioned, there is the awareness and parents changing their parenting patterns, which is reported statistically
as a reduced cause of corporal punishment over that time frame. Those were the main points I looked for.
Ms. Milne: We have in Canada our own expert on Sweden, and that is Dr. Joan Durant from the University of
Manitoba. She has done comparisons between Canada and Sweden and has looked at longitudinal studies in Sweden
about the impact of the ban. There were assertions that somehow greater delinquency was occurring in Sweden. She
was able to essentially debunk those kinds of comments by looking in-depth at the Swedish experience, as well as
public, parental and children's attitudes.
It is important to note that Sweden has virtually a zero child homicide rate in terms of homicide by caregivers, which
we could learn a lot from. That is one of the most consistent ways of looking at child abuse rates across countries
because statistics are kept differently. Dr. Durant would be able to speak to that and has written extensively on it.
The Chairman: I should like to correct one misconception that, Ms. Milne, perhaps you did not mean, that teachers
are not involved in restraint. That is not true in many of the classrooms I am aware of. Maybe that holds true in the
more urban setting, but there are many classrooms spread over many of our rural areas where the teachers all practise
restraint of children, unfortunately. It may be on the to-do list.
In the classroom reality, sometimes they have volunteers assisting teachers. Some volunteers are paid. I do not think
we can make a blanket statement that teachers no longer have control of the classroom.
Ms. Milne: That was not the message I was trying to convey. I was making a suggestion based on an example that
Mr. O'Brien provided about educational assistants coming into the classroom and helping with the more complex
Certainly teachers are performing restraint and using physical intervention with students. I was suggesting that we
also have a group of people who work in the school setting who are not teachers. They are trained people who work
with children, but they are not named in section 43. They are not in the position of the parent. They are teaching
assistants, and they are performing restraints without the protection of section 43.
I used my example as an illustration to suggest that you do not need section 43 to practise those kinds of restraints.
The Chairman: I will indicate my own bias. Section 43 has been in the Criminal Code for a long time. There was a
different time of parenting, different acceptance, rightly or wrongly, of what you could or could not do to a child. The
defences have come a long way as far as common law, sometimes entrenched in the Criminal Code. It has all evolved.
We know that corporal punishment is not gaining ground; in fact, it is losing ground in every sector to the extent
that I do not know where the percentages will be. In any event, our report talked about corporal punishment. On the
other hand, I do not think repealing section 43 will create a rush into the courts in order to charge teachers with
assault. My concern is different. We have vulnerable families in Canada, many of them under the scrutiny of the social
services system. Their children are more likely to be apprehended generationally again and again. It is easier to find
some reason to intervene when it is black and white. You cannot strike your child because we have just repealed section
43. That is the other half of the problem.
My concern was with the education of professionals and parents, and we are in a different point of view. I am a bit
enamoured with Ms. Vandergrift's point of view. We were being persuaded about defences being necessary.
Perhaps we need a new day of saying no more corporal punishment, but reasonable restraint in today's modern
society, within these contexts, for these people, is what we should be addressing ourselves to. Did I understand you
correctly, Ms. Vandergrift?
Ms. Vandergrift: I simply said that, if restraint is necessary, let us deal with it entirely separately.
However, the answer to the concern about parents is in the education. I noted the senator highlighted guidelines that
provincial attorneys general can put in place for social workers going into a home. Those guidelines, at least with
respect to the example she cited in Quebec, did not say you move in and take the child. The guidelines outline what one
Earlier, the committee called for education, so that we do in fact train people to deal with it as a social service, with
support to the family first, and not moving it into the court system. That is the way other countries have done it. I
think we can do the same in Canada.
Ms. Milne: To provide you another source of information, the Canadian incident study consists of the analysis of
substantiated child abuse investigations that have involved corporal punishment. There is a paper by Dr. Joan Durant
and a number of people. There are different standards by which people — professionals or child welfare authorities —
would intervene in a family than simply the bare minimum of an assault, slap or spank. Those families more likely to
be charged already fall under the scrutiny of child welfare authorities, so it will not be a huge rush to scoop children.
That was one of the fears.
The analysis of the data coming out of the Canadian incident study is very helpful in creating a context in which we
will not have the big trucks coming around and bringing kids into care. It was either that or the big buses that come
around and scoop parents into jail. None of those things will happen.
However, we have good data. My illustration is trivializing, but we have good data to be able to say confidently that
this will not happen. Child welfare authorities try to work with parents before they get to the stage of having to
apprehend children. Each piece of child welfare legislation across the country focuses on trying to work with families
first and foremost.
The Chairman: I am mindful of the fact that I do not quite understand what is happening in classrooms today. We
all tend to go back to our own experiences. I am so pleased you mentioned the seatbelt law — it dates you and me, Ms.
Vandergrift; it puts us way back.
There is a very different classroom today. People tell me, ``You do not understand children today. You do not know
what pressures they are under and you do not know some of the environments they are under.'' Therefore, what is
restraint and what is necessary today? Do you agree that the classroom is very different than from 30 or 40 years ago?
Do you agree that women are different in those classrooms?
I can still horrifically remember young girls being charged. We had no facilities to put them in because girls did not
do that. Now we have facilities. We are in a whole different world. What do we need in the classroom to ensure there is
Ms. Vandergrift: You are highlighting the importance of what we need to do with prevention. We start that
prevention by sending a clear message that no violence against children is justifiable. Certainly, the global study talks
about the importance of redoubling efforts to prevent violence at all levels, including schools.
In Canada, some good work is being done to deal with prevention of bullying. They say that the best tool for
prevention is building respectful relationships. That is what we mean when we talk about building respect for the rights
of children and respect for teachers. That is not to minimize the situation but rather that is the answer. We need to do
that and it begins by sending one clear message nationally.
I was referring to the seatbelt legislation with respect to the fact that, at times, you just have to take the lead by
changing the law, even if there is a bit of resistance, because resistance dissipates quickly.
The Chairman: Not in Saskatchewan.
Ms. Vandergrift: I do not hear people making those same arguments. The parents of children are quarrelling over
the regulations for child seats that are highly sophisticated.
The leadership role is called for in this case, and if you take that leadership, people will rally.
Senator Nancy Ruth: My question has been answered, thank you.
The Chairman: I thank the witnesses for putting their open perspectives on the issues, including the international
perspective. The global study indicated overwhelmingly across this world that violence occurs in homes more than was
anticipated at the outset of the study. The entire issue of looking at children is not simply about child soldiers and other
issues because it comes elementally back into the family. The issue of violence should be prevented there before we talk
Ms. Vandergrift: As one who has focused a great deal of attention on protecting the rights of children threatened by
armed conflict, I, too, became aware that you cannot deal with that problem unless you deal with violence in the home,
in the streets and in the communities. Therefore, we welcome this study.
It is also relevant to note that in a worldwide survey by UNICEF, 75 per cent of children thought that there were
alternatives to hitting in the home that would be more beneficial.
We are moving in that direction internationally, and we would like to see Canada take a leadership role.