Proceedings of the Standing Senate Committee on
Human Rights

Issue 20 - Evidence - June 18, 2007


OTTAWA, Monday, June 18, 2007

The Standing Senate Committee on Human Rights, to which was referred Bill S-207, to amend the Criminal Code (protection of children), met this day at 4:01 p.m. to give consideration to the bill.

Senator A. Raynell Andreychuk (Chairman) in the chair.

[English]

The Chairman: Honourable senators, we are continuing our examination of Bill S-207, to amend the Criminal Code (protection of children.) We have for the first session, David Quist, Executive Director of the Institute of Marriage and Family Canada. Mr. Quist has an opening statement and then has agreed to questions.

We are under time pressure because the bells will ring at 5:45 p.m., so we need to shorten both sessions. We will all be expeditious in our questions and answers.

Dave Quist, Executive Director, Institute of Marriage and Family Canada: Thank you, Madam Chairman and senators. On behalf the Institute of Marriage and Family Canada, thank you for the opportunity to present our considerations with regard to Bill S-207, to amend the Criminal Code.

The Institute of Marriage and Family Canada is a research think tank based in Ottawa. We are committed to bring together the latest research on social policy issues that face Canadian families and place it in the hands of decision makers such as yourselves. The clerk has copies of my presentation, as well as several supporting documents, which will be distributed upon translation.

As you know, the spanking of children in Canada and around the world has had its share of controversy in the last number of years. In 2004, this issue went all the way to the Supreme Court of Canada, which upheld that right. However, the issue continues to arise in the public square.

I think it is imperative to differentiate between child abuse and child discipline. According to Health Canada,

Child abuse occurs when a parent, guardian or caregiver mistreats or neglects a child, resulting in injury, or significant emotional or psychological harm, or serious risk of harm to the child. Child abuse entails a betrayal of a caregiver's position of trust and authority over a child. It can take many different forms.

Of interest is that while discipline is referred to in many different Government of Canada documents, I could not find a definition of ``child discipline'' on the website. Nor could I find a definition of ``spanking'' on either the Canadian Medical Association or the Canadian Paediatric Society websites.

According to the American Academy of Paediatrics in 1996, spanking is defined as: physically non-injurious; intended to modify behaviour; and administered with an opened hand to the extremities or the buttocks.

Please let me be clear; child abuse is abhorrent, wrong and not acceptable. However, definitions are important here; they are not mere semantics. The words and definitions that we use greatly affect how the data sources are compared. What is included or excluded from the various data sets in the analysis can greatly influence the outcome.

Sweden and New Zealand have been referred to as countries that have benefited from a no-spanking policy. However, the full data and latest research does not support that premise. Some data suggests that since 1979, when the Swedish spanking ban was put into place, youth-to-youth violence is actually on the rise.

Dr. Robert Larzelere has analyzed some of the data that has been presented to you previously on the effects of Sweden's ban on corporal punishment, and arrived at different conclusions than those of Dr. Joan Durrant. These details are included in the documents that have been filed with the clerk.

In a peer-reviewed paper released last year in the New Zealand Medical Journal, Dr. Jane Millichamp, a psychologist with the University of Otago, has determined that ``Punishing children by spanking does not make them more aggressive or anti-social as adults.'' Her study followed and interviewed 1,000 children over a 30-year period.

Dr. Larzelere and Dr. Brett Kuhn have published an analysis in the Clinical Child and Family Psychology Review that reviewed 26 relevant studies in this area from the past 50 years that resulted in much the same conclusion.

In a Canadian poll that was done in 2002 by Strategic Council, a most interesting result was determined. Remember, at 2002, this issue had come before the Ontario Court of Appeal and was on its way to the Supreme Court of Canada, so there had been a lot of discussion around this issue at that time.

In spite of all the discussion, 72 per cent of Canadians believed that spanking should remain a legal option for Canadian parents. This group included the 57 per cent of Canadian parents who said they never spank their children.

Senators, the vast majority of these people are the people that we deal with every day. They are law abiding, contributing to the community and society and they love their family.

There are so many issues that contribute negatively to our society — social influences, biological factors, poverty, substance abuse and so on. There is no empirical evidence that the removal of section 43 will deal with any of these negative influences.

I believe that we can all agree that every child is unique and different. Because of this uniqueness, every child needs to be disciplined in a way that is most effective to them. Typically, this will be on a graduated basis — most often, distraction techniques for infants, verbal clarification, time outs, loss of privileges, natural and logical consequences and spanking. I believe that it is important that we focus on the actual outcomes of the research and discipline.

In considering this issue, we must ask ourselves, does the state have a role in the raising of our children? I believe the state only has a role in limiting society's rights and freedoms if those rights and freedoms are deemed to be harmful to society and its members. There is no evidence that the state needs to interfere in this issue. Justice McCombs dealt with this in his ruling in 2000, which was upheld by the Supreme Court of Canada.

The question of ``would we spank grandma'' is moot to this debate. Canadian law already recognizes that we treat our youth differently. For many years, we have had what was called the Young Offenders Act; and more recently, this has been updated to the Youth Criminal Justice Act. We accommodate for the special circumstances that minors require as they learn, mature and fully become adult members of society.

In our opinion, section 43 follows a similar vein. Children need to learn morals and ethics, right from wrong, acceptable and unacceptable behaviour. Abuse is not acceptable; I am certain that we would all agree on this. Normative spanking is not abuse, and is one of the many teaching and disciplinary tools that many parents need at their disposal. Justice McCombs again wrote in his ruling that spanking is not child abuse. Just as every child is a unique individual, not every person will use this tool. Many parents will use it infrequently.

In a Supreme Court of Canada decision, Justice LaForest stated:

Although liberty is not a parental right tantamount to a right of property in children, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translated into a protected sphere of parental decision-making, which is rooted in the presumption that parents should make important decisions affecting their children because parents are more likely to appreciate the best interests of their children, and because the state is ill-equipped to make such decisions itself.

Family is the cornerstone of our society. As intrusions and unwarranted restrictions are placed on the family, society itself becomes a victim of these actions.

I would ask you what the intention of this bill is. If the rationale is to eliminate child abuse and other forms of extreme behaviour, social science does not show that eliminating section 43 will achieve this goal. If the intention is simply to eliminate the option of this form of normative discipline, then again, social science does not bear out that change.

If the goal is to better protect children from extreme and excessive behaviour and provide the best care possible for them, rather than looking at the elimination of section 43 of the Criminal Code, I would draw your attention to the other areas and offer these suggestions for your consideration.

Bring forward or endorse parental support legislation. This can be done in many different forms: Support the lowering of tax burdens on families through programs such as income splitting; Support parental programs on a national scale; Expand maternity and paternity programs for new and adoptive parents; Support child care programs that meet the needs of all parents, not a narrowly defined group; Support and bring forward programs that keep moms and, in particular, dads involved in their children's lives.

In keeping with the theme of Fathers' Day, let me pass on a few statistics. First, fathers' engagement in their children's activities is linked to higher academic performance. Second, among adolescent boys, those who receive more parenting from their fathers are less likely to exhibit antisocial and delinquent behaviours. Third, among adolescent girls, those who have a strong relationship with their fathers are less likely to experience depression. Fourth, close father-adolescent bonds protect against the negative influence of peer drug use. Five, adolescent girls who have a close relationship with their fathers are more likely to delay sexual activity. Six, adolescent girls whose fathers were present during childhood are less likely to become pregnant. Finally, adolescent males who report a close relationship with their fathers are more likely to anticipate having a stable marriage in their future.

If you are interested in the statistical data and program options behind any one of those or other family related matters, I would be pleased to discuss them with you further, either at committee or individually.

In closing, I am pleased that you are willing to analyze, discuss and debate the key social policies of the day. Social issues have long-term consequences on our families and, by extension, on our society. The Institute of Marriage and Family Canada cannot support Bill S-207. We can support the need to find ways to assist and build strong family within a Canadian society.

I thank you and look forward to your questions and further discussion.

The Chairman: You are obviously aware of the Supreme Court of Canada decision that indicated that no corporal punishment can be exercised with respect to children under two years of age.

Mr. Quist: Yes.

The Chairman: They also said there was no corrective value, given the cognitive limitations of children under two years of age. That was the reasoning of the Supreme Court of Canada.

They went further and indicated that corporal punishment of the teenagers is harmful because it can induce aggressive or antisocial behaviour.

Presently in the Canadian law, section 45 has been narrowed simply because corporal punishment cannot be used in any form for children under two or into their teenage years, which I take to be 13 and over. It is age two to 12 we are talking about.

The court went further, saying that within that narrow band it was still acceptable. ``Acceptable'' would be my term, not theirs, because they did not specify. What they did say is that you could not use it under the age of two and over 12, and then went on to say ``corporal punishment,'' which leads me to believe only between ages two and 12. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. They made that finding.

Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

They also went on to indicate that contemporary social consensus — which is an interesting phrase in itself — 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, and goes on to point out that many school boards have put restraints on teachers.

You have made the distinction between child discipline and child abuse where the court talked about corporal punishment, then about its acceptability in a narrowed way to a narrow group, and then about the need for some restraints, which is a different issue.

Why did you pick, in your analysis, child discipline versus child abuse, as opposed to corporal punishment versus restraint, education or something else?

Mr. Quist: Thank you for the clarification. ``Child discipline'' could be used in place of ``corporal punishment.'' I see those terms as being interchangeable in the context of what we are debating now. Child abuse clearly is not acceptable. Clearly, the Supreme Court and the lower courts have determined as much. Morally and ethically we would all fully agree with that.

I also agree with the court's analysis of children under two. That is not the best way to teach infants and preschoolers under two years of age. They are still learning and rationalizing. For those who are parents or have been, even grandparents in the room, we know that spanking a one-year-old is not the most appropriate way to change behaviour. In many cases, it is a distraction. If they are fixated on something such as wanting to pull something off a low shelf, often pulling them over to another area of the room where there are toys they can play with that will not be dangerous to them is all they need. They are learning in that process. I have no problem in understanding and accepting the age ranges that the court has made.

Similarly, I took the court's ruling to be teenagers 13 and over as well. Certainly, at 13 years and up, they are progressively becoming adults. When my children were 13, they probably thought they were adults, and we probably did when we were 13 as well. Spanking is not the most appropriate way to deal with that age group.

The age range of two to 12 years, and probably even the lower part of that range, is the time and the age I would support using this form of child discipline in some circumstances but not in every circumstance.

The Chairman: To follow up on that, if you accept the judgment as it is, which I do as well, I think the court's findings are clear, on what basis do you think children between two and twelve respond to any kind of discipline that is corporal punishment?

Mr. Quist: As I mentioned, any form of discipline should be progressive. It should not be the first instance when a child has done something wrong. There will be cases where children do not know why they have done something ``wrong.'' The process needs to be a learning one. If children know they have done something wrong and are wilfully disobeying, corporal punishment is one tool that some families wish to have at their disposal. Not every family will use corporal punishment as a form of discipline. Not every situation calls for corporal punishment. It is probably not the best means to use it in every situation.

If a child refuses to eat their dinner, going hungry until the next day by letting them go to bed without dinner is one way of dealing with that. In a situation where they have wilfully broken a vase, a window or something like that, teach them to be accountable by having them replace the item if they have a part-time job. It has a strong effect on the child if they must save $10 or $20 to deal with that. Those approaches are probably far better forms of discipline.

Senator Munson: Welcome to the committee. Who is the Institute of Marriage and Family Canada? It says you conduct and compile research, et cetera. Do you have a budget, who are you and how many Canadian families do you represent?

Mr. Quist: The Institute of Marriage and Family Canada had its grand opening a year and a half ago. We are relatively new on the Ottawa scene or the social policy scene in Canada. We are the policy research arm of Focus on the Family Canada, which has been in Canada for a number of years. We are a charitable organization. Focus on the Family has long had a small policy division within its Langley or Vancouver-based office and determined that they would like to expand that research. We opened the office here in Ottawa a year and a half ago.

Senator Munson: Do you think you represent hundreds of thousands of families?

Mr. Quist: We have not conducted an extensive survey. We know that Focus on the Family has thousands of supporters, constituents and people who have emailed, called, written letters of support and so on. We are building that base of support ourselves now. It is fair to say we represent hundreds of thousands of families.

Senator Munson: Are you paid for the work you do?

Mr. Quist: Yes, all our money comes from Canadian donors. We have not applied for, nor accepted, any government grants at any level of government.

Senator Munson: In your estimation, what is reasonable force?

Mr. Quist: As for a definition, unfortunately I could not find a Canadian source so I went with the definition from American Academy of Pediatrics. No permanent marks should be left, and no bruising. As was mentioned in the previous question, hitting faces is not acceptable. In most cases, the force will be either a slap on the hand or on the buttocks, which has been most appropriate, from the research I have read.

Senator Munson: You are hitting someone. You are hurting someone. You are touching a child.

Mr. Quist: You are touching a child, yes.

Senator Munson: Are 100 countries wrong by prohibiting corporal punishment? More than 100 countries have prohibited corporal punishment in schools and in penal systems. Sixteen European countries have explicitly banned in law all corporal punishment of children. Is your group saying this ban is wrong, that you must have the right to tap a child to make sure that child understands and respects what we believe in as adult supervision?

Mr. Quist: No, that is not true at all.

Senator Munson: It sounds like it.

Mr. Quist: The important thing to remember is that it is one option that 72 per cent of Canadian families have asked to keep in their disciplinary tool box, if you will. It is not the only tool they will use for discipline. I have mentioned a number already in my presentation. Social science is always open to discussion. It also brings many emotions into it. That is fine as long as we recognize that, but to this date the social science that I have seen does not show that the benefits of removing it will solve all the problems it claims to solve so far.

Senator Munson: What do you think will happen if Parliament repeals section 43? Do you think there will be mayhem and kids will beat up kids? I am having a difficult time trying to dissect your analysis. I do not want to lose my temper and be angry, but I do not understand. Some of us grew up in the 1950s and saw corporal punishment. We have seen, for example, in my home province of New Brunswick, a school teacher take a strap to a child. A kid on the wrong side of town receives a tougher strap. We have seen that sort of thing.

This is 2007. A long time has passed. It troubles me that we are having this debate over the fact that we still think it necessary to hit, touch, use reasonable force on a child to say, ``Now you understand,'' when we have so many other tools, from my perspective. I will throw my bias on the table. It is simple. There are other ways to do this.

Mr. Quist: There are a number of ways of doing this.

Senator Munson: Why are you forcibly arguing for the words ``reasonable force''? There is no such thing to me as reasonable force. You either hit a child or do not hit a child, no matter how hard you hit.

Mr. Quist: The courts will disagree. If you read the complete ruling, you will see that the Supreme Court of Canada did define it. They differentiate between abusive behaviour and the amount of force that is used. The New Zealand study I mentioned, and that will come to you after it is translated, clearly shows that of the almost 1,000 children, now adults, that were followed for the past 30 years, the researchers found nothing negative. There are a variety of ways to discipline children on a variety of issues. As I have already said, spanking is not always the most appropriate way to discipline. It is one form that may be necessary in some cases, according to many parents; in fact, 72 per cent of Canadian parents in the last survey I saw.

Senator Munson: You mentioned New Zealand, which has passed a new law recently.

Mr. Quist: That is right.

Senator Munson: There are some exemptions. I wanted an idea of your thinking. Maybe I will come back with more questions.

Senator Carstairs: You indicated in response to a question from Senator Munson that you are the research arm for Focus on the Family Canada. Focus on the Family Canada distributes a number of books written by James Dobson, who is the founder and international president of Focus on the Family. I would like to hear your reaction to some quotations from his writings.

Children have a raw desire for power and control. They begin power games in earnest between 12 and 15 months. From about age 15 months, they begin to engage in wilful defiance. The toddler, in his own innocent way, is vicious, selfish, demanding, cunning and destructive.

Dr. Dobson has also said:

Corporal punishment is not a last resort. No other form of discipline is as effective as spanking. Mild spankings can begin around 15 months. Pain is a marvellous purifier.

Spanking should be administered by a neutral object, a small switch, paddle or belt, rarely with the hand, which is the object of love, and if a child cries for more than five minutes after corporal punishment, he should be given more of the same punishment.

What is your reaction to those kinds of statements?

Mr. Quist: Dr. Dobson is a noted child psychologist from UCLA. He has written many books over the years. I am not sure how many books — tens and tens of books on a variety of different issues around family and marriage. Yes, he has written a great deal on child discipline as well.

I believe he has also written along with that that the issue of whether something other than a hand should be used is not as important to him personally. That is a matter of distinguishment. In the case of Canada, Canada's Supreme Court has said that anything other than an open hand is not acceptable, so we would have to abide by the court's ruling in this case.

Senator Carstairs: I find it interesting that you use the Supreme Court judgment, because I take a different view of the judgment. The case that was brought to the Supreme Court of Canada was a case with respect to whether section 43 violated the Charter. The court ruled that it did not violate the Charter. That is for the simple reason, frankly, that children are not protected under the Canadian Charter of Rights and Freedoms. I do not think the courts had much choice but to rule that way. They then, from my view, swallowed themselves whole to try to figure out how to get around section 43, so they put that parameter and this parameter on it, because it is not up to the court to make law; it is up to parliamentarians to make law.

Everything that I have read, and I have been reading on the issue for probably 40 years, indicates to me that with every child who is abused, the intention to abuse did not start, in most part, as an abuse. It started as an act of discipline, and it escalated and escalated and escalated until it turned into abuse. I would like your comments on that.

Mr. Quist: There are several rights and conventions that Canada is signatory to, both nationally and internationally. The UN Convention on the Rights of the Child is one that is often used in this case as well. It also says in the preamble of the convention that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that members of the family can fully assume their responsibilities within the community.

Other declarations of human rights indicate that no one shall be subject to arbitrary interference in their privacy, family home or correspondence.

This is one of those emotional issues, whether it is in the best interests of the family, the child, the parents or the state to discuss those particular issues. In social science, for every poll saying one thing, there is another poll saying something else on any particular issue.

As I mentioned earlier in my presentation, one difficulty is what is and what is not included in definitions. That has become subjective on the part of different researchers comparing one poll or set of data results to another, whether they have included abusive behaviour and child spanking discipline behaviour or not. We need to be sure we compare apples to apples when looking at those different data sets.

Senator Carstairs: You have made the distinction between child abuse and child discipline. I would make the distinction between child physical discipline and other forms of discipline. Children, like adults, need discipline, but I do not think adults or children need to be hit. I would like to know how you think that it is acceptable that in section 43, which used to cover the mentally defective, prisoners, young midshipmen and apprentices, we are prepared to protect all those groups, but we are not prepared to protect children.

Mr. Quist: Could you define ``hit'' for me?

Senator Carstairs: I think ``hit'' is any action where one person strikes another person.

Mr. Quist: Strikes with what?

Senator Carstairs: With anything.

Mr. Quist: To do harm?

Senator Carstairs: For any reason whatsoever.

Mr. Quist: That is one of the distinctions I see with the Supreme Court decision of allowing parents to physically discipline their children. When discipline crosses the line into abuse, that is not acceptable. Pure and simple, abuse of children is not acceptable in any way, shape or form.

Senator Carstairs: To conclude, I define ``abuse'' as hitting a child.

Senator Hubley: We are dealing with an emotional subject. I tend to agree with my colleagues, but I am wondering: From the point we are at today and the point we hope to reach tomorrow, how do we equip people with the proper tools to discipline children? Is an educational component required?

I would also like you to comment on children who suffer from conditions such as attention deficit disorder, ADD. These children are difficult to bring up. It is a challenge to parents, but it is something that, as a society, we need to address properly.

When we talk about discipline, we must be careful of the vulnerable children in our society. I come back to the educational component. How do you see spreading the acceptable ways for disciplining children?

Mr. Quist: There are a variety of ways. It is probably not the direct purview of the Government of Canada, but the Government of Canada should support parenting programs all across the country, whether they are funded programs directed through the provinces or the municipalities. There are a variety of ways to accomplish that, and I will give you one example.

Focus on the Family had a guest speaker, Dr. Tim Kimmel, travel across Canada in the last six months. He spoke publicly in 13 different cities to over 10,000 people at those events, the smallest event having around 500 participants, and the largest a little over a thousand. The reaction on that exact topic was how can we, as families, be strong? How do we raise our children and our teenagers, whether we are new parents or parents of many years, with many children? Dr. Kimmel had a number of ideas and options for us.

It is important that we offer support to parents, through maternal or paternal breaks, so that mothers, fathers, or both can be at home with their children, especially in the early years. Many other countries, especially in Europe, have offered that support as a way of starting out family life so that parents are able to be with their children and raise their children in the loving atmosphere that parents typically want to have.

I agree that the vulnerable children, the ADD and attention deficit hyperactivity disorder, ADHD, and the variety of other special needs children, need special handling. We need to give mothers and fathers the respite care they need in those situations that are trying.

I have been blessed in my family. Many people use the word ``normal,'' but I am not sure how we can define ``normal.'' My children have not needed to deal with those issues, and therefore my wife and I have not needed to deal with them. However, I know of others who have dealt with those issues, and they need all the care and attention they can get in those situations. Respite care is one way of addressing that.

Senator Hubley: These days, it is more than a mother and a father who raises a child. We need to start with the rights of the child and we need to be forceful in what we see as the rights of a child, because it is not only the moms and dads, but it is communities, Sunday school teachers, the corner store and the people those children meet through their lives that we need to be cognizant of.

Mr. Quist: The people children come into contact with most on a day-to-day basis are usually mom or dad, sometimes an adoptive or foster parent and sometimes a grandparent. That circle begins to move outwards. We need to start somewhere. Supporting parents, giving them the tools to raise their children, and lightening their time and financial stressors, will go a long way to assist them.

Senator Dallaire: We are animals of social change. I come from a family where physical abuse was the norm, and from a school system where physical abuse was the norm. If I wrote with my left hand, the brothers smashed me with a ruler because God did not want me to write with my left hand; he wanted me to write with my right hand.

We have moved on from that, and we are moving the yardsticks of social change. Ultimately, we are establishing norms of respect for all human beings.

Would you not think that by eliminating the option — in extremis, as you are going towards — of the use of force, that you would not be forcing the people who deal with children to shift their options beyond or above that lowest common denominator? That is to say that the whole of society would look for options other than physical ones. Do you not think that is possible? Alternatively, do you believe that, in the nature of the child and the extreme of emotion and so on, that you fundamentally would have to revert, in any evolutionary time frame, to the use of physical force?

Mr. Quist: Social change occurs slowly. On July 1 of last year, Canada implemented a 1 per cent decrease in GST. If I bought a washing machine the next day, I immediately saved $30 or $40, whatever it happens to be. When we make social policy changes, we may not see that change for generations. It may be many years before we fully see the outcomes.

As many countries have moved along that line, we can learn from what has happened there. In the case of Sweden, the numbers do not tell the whole story that some people have depicted right now. In fact, when looking at the numbers from 1979 to present there seems to be an increase in youth-to-youth violence. We need to understand why that is. Is it related to banning spanking back in 1979? Is it a part of that or is there something else involved? In deference to Senator Munson, I do not know the answer to that and I do not think any of us do. Therefore I caution not to move too fast in any direction until we better understand that particular problem.

Senator Dallaire: Do you not think it is the responsibility of government to be proactive and anticipatory in moving change in a society rather than being regressive, conservative and holding back the society from achieving a higher plain of human respect and human interaction?

Mr. Quist: I think the government has a responsibility on several fronts and one of them is to reflect society's values. The last poll I have seen shows that 72 per cent of Canadians still wish to have spanking as on option for families even though fewer than that number use spanking as a disciplinary tool within their family, but they do not want that right taken away at this particular time.

Senator Dallaire: I will end by saying that 87 per cent of the Canadian people did not want to see women in combat and yet they are now out there fighting, dying and conducting themselves with the full responsibility of being a citizen. Society is adjusting to that decision by government. Therefore, I contend that it is a responsibility for us to move the yardsticks responsibly and not wait for society to shift necessarily.

Mr. Quist: I am trying to bring information to you for your debate. I do not vote; you do. This is another part of the debate that you need to be aware of as you debate this issue fully.

Senator Dawson: Do you really believe that you received 1 per cent from the sales tax reduction the day after? If you believe in that I guess you believe in Santa Claus, but the reality is, as you mentioned before — and I do not want to be too partisan — there was a 1 per cent tax reduction and I received it today. First, that is not how real economics work and that is not how real politics or governments work.

I was a school board trustee in the early 1970s in the Catholic school board in Quebec. I became chairman of the school board. The chairman before me had been named jointly by the church and the Quebec government under former Premier Maurice Duplessis, so I can imagine the tap on the hands that my colleague Senator Dallaire received because I received them too. I used to be someone who wrote badly with my left hand and now I write worse with my right hand because the Quebec Catholic school board gave permission to hit me on the hand as much as they wanted, and it progressed. I agree, progress takes time, not 24 hours, trust me. We do not have reductions the day after.

One aspect in this debate is that it helps this progress because people realize that all forms of violence are bad and, no matter how we permit them to do it and hope they will be moderate about it, if permission is given, they might not know where to stop. That is our responsibility in having this debate.

Do you really believe that if we leave it, people will use constraint even though we have seen the abuse? In their defence, they have said, ``I am allowed to do it. There is a section that permits me to do it.'' If we take away the section, I hope people will hesitate to use violence in any form.

Mr. Quist: We come back to definitions again, do we not? Perhaps my 1 per cent was not the best example. The intent there was that most economic policy takes place much faster than social change takes place. Both take time. Social policy tends to take much longer to see the results, positive or negative.

In regard to what the Supreme Court has said in my understanding, and I am not a lawyer, I am going by what other people in the court have said, it appears to me that the restriction on violence has already been put in place. The act of child discipline in the normative word has been put into the definition of section 43, which defines what is acceptable and what is not acceptable.

The Chairman: Mr. Quist, we have run out of time. I want to thank you for coming and, as you rightly put on the record, we should hear from all points of view in Canada. I appreciate your reasoned contribution to our debate on what would be in the best interests of children, parents and Canadians.

Our next panel is from the Department of Justice and, as you know, we are dealing with a private member's bill so the department is here to answer any questions and to give their point of view. It is not, as I understand, part of the government: It is an analysis from the Department of Justice of either the present situation or their legal interpretations.

We have Elissa Lieff, Senior General Counsel, Family, Children and Youth Section; and Gillian Blackell, Senior Counsel, Children's Law and Family Violence, Policy Unit.

I understand there is a short opening statement and then we will go to questions.

[Translation]

Gillian Blackell, Senior Counsel, Department of Justice Canada: Thank you for asking me to appear as a witness on the matter of the legal implications of Bill S-207. I hope to be able to help committee members in their consideration of the bill, which repeals a defence under the Criminal Code.

I would like to take this opportunity to congratulate the committee on the publication of the report Children: The Silenced Citizens. I understand that in drafting the report, you heard from a number of witnesses who brought various points of view to this important matter.

[English]

Many dedicated individuals and organization have made presentations before this committee, both in regard to the committee's report and in regard to Bill S-207 and its predecessor, Bill S-21. I will provide a technical legal assessment of section 43 of the Criminal Code for the purposes of your review of Bill S-207. This assessment may challenge a few assertions made by some of the previous witnesses. In so doing, the purpose is not in any manner to reflect a critique of the witnesses' motives or ultimate objectives; rather it is to ensure that the committee has the understanding of the Department of Justice as to the potential legal implications of Bill S-207.

[Translation]

My colleague, Carole Morency, already spoke to you on June 16, 2005, on Bill S-21, which was introduced during the last Parliament.

During her presentation, she referred to a number of Justice Canada initiatives. In closing my presentation, I would like to update you on the developments in these initiatives.

[English]

While I risk repeating information that you may already have heard, with permission, I propose to speak to you briefly about the offence of assault in Canadian criminal law, the purpose and scope of section 43, the seminal Supreme Court of Canada decision on this section, the protections afforded by provincial and territorial child welfare legislation, and the potential implications of repealing section 43.

To begin with, to assess the purpose and scope of section 43, it is important to examine first the nature and scope of assault in Canadian law. An assault is defined in the Criminal Code as the intentional application of force to another person, directly or indirectly, without the consent of that person. An act may be considered an assault even if there is no physical contact between the victim and the accused. Throwing an object at another person could constitute an assault if it is done without their consent. This can apply to all objects that would not reasonably be considered harmful when thrown, such as a pillow or a stuffed animal. Moreover, pouring a glass of water on someone without their consent can be considered an assault.

Attempting to apply force, whether or not contact is made, can also constitute an assault under the definitions set out in section 265 of the Criminal Code. In addition, threatening by means of an act or gesture to apply force to another person, thereby causing that person to believe they will be harmed, can constitute an assault as well.

Assault is broadly defined and, as a result, it falls into different ranges of categories, from relatively minor to the more serious. It is divided into three categories: simple assault, which was formerly known as common assault, which can include unwanted touching such as a tap on the shoulder; assault with a weapon and assault causing bodily harm, which is distinguished from minor assault primarily on the basis of the presence of injuries; and aggravated assault, which can include wounding and maiming.

With regards to the elements of assault, as with all criminal offences, the basic elements are the act or omission that is prohibited, which is known as the actus reus, and the fault element, known as the mens rea. I have already described briefly the range of acts that can be considered an assault. In regard to the mens rea, an accused must have the intent to apply force. As a result, an assault cannot be said to have occurred where the touching was accidental; bumping into someone, for instance, or a reflexive action to being startled.

Another element of assault is the lack of consent of the complainant. Consent must be free and informed. There are circumstances where it is possible to obtain consent to an assault such as consensual fights or consent to a certain degree of physical contact in team sports.

I will take this opportunity to respond briefly to a comment a witness made last week that a child's consent may be implied when force is used for the purpose of safeguarding the safety of the child. When a parent gently shakes a child to wake them up in the morning, the parent has no reason to believe that the child is not consenting to the touch and, at that point, consent could be implied. However, once that child pushes the parent's hands away and says, ``Leave me alone,'' any further touching would be an assault.

Finally, with regards to the degree of force necessary to constitute an assault, the case law indicates that an assault can occur if a touch is non-consensual even if the accused exerts no degree of strength or power when touching the complainant. It is important to keep this in mind because simple assault does not require any actual harm.

I will now return to section 43 of the Criminal Code. This section is intended to provide protection from criminal liability for a limited category of persons, those responsible for maintaining, protecting and educating children. It is based on the premise that parents are responsible for raising their children and, in doing so, are expected to provide their children with guidance, supervision and education. They are ultimately responsible for teaching their children self-control and the ability to differentiate right from wrong.

This principle appears as well in regards to civil liability. A parent may be liable vicariously under torte law for the actions of a minor child under their care, should that child damage someone's property, for example. Such liability may arise if the parent fails to exercise reasonable supervision and control over their child who has intentionally caused damages to a third party.

Parents regularly apply non-consensual force in raising their children, be it guiding a reluctant child to bed by the hand or putting a child's winter boots on when the child prefers to wear sandals in the snow — personal experience. Section 43 therefore shelters parents from criminal liability for the use of reasonable force for restraint, control or to express disapproval of a specific behaviour.

Section 43, as a defence, is applicable only when the following elements have been met. First, it applies only to parents, persons acting in their stead and teachers. Second, it applies only to acts undertaken for the specific purpose of correction, discipline or guidance. Third, the child or pupil being corrected must be under the care of the parent or teacher. Finally, the force must be reasonable under the circumstances. This last criterion is critical, and clear guidelines on its meaning were provided by the Supreme Court of Canada. In short, a parent is responsible for teaching their child self-discipline.

There are differing views, as you are well aware, on whether light physical discipline or spanking is an appropriate or effective means of teaching children self-discipline. That is not the question that I wish to address today. Dozens of volumes of expert evidence on this issue were provided by the Ontario Superior Court of Justice in the case of the Canadian Foundation for Children, Youth and the Law v. the Attorney General of Canada. As Justice McCombs noted, the consensus among the experts is that not every instance of physical discipline by a parent should be criminalized. Many believe that the desirable objective of changing societal attitudes regarding child discipline would be best achieved through educational incentives rather than the use of criminal sanctions to prosecute non-abusive physical punishment. The experts agreed that extending the reach of the criminal law in this way would have a negative impact upon families and hinder parental and teacher efforts to nurture children.

The Supreme Court of Canada confirmed this analysis when it upheld the constitutionality of section 43 on the basis that it reflects a reasonable balance of the Charter, interests of children, parents and Canadian society. Contrary to some contentions, the Supreme Court of Canada provided a definition of what is reasonable under the circumstances for the purposes of section 43. They clearly indicated the test is objective, and that section 43 is to apply only to minor corrective force of a transitory or trifling nature. The question must be considered in the context and light of all circumstances of the case, but the court stated that the gravity of the precipitating offence is not relevant.

The Supreme Court of Canada also, as you are well aware, held that teachers cannot use the defence except to protect the use of reasonable force in restraining or removing a child from the classroom. I note at this point that by indicating that teachers could only benefit from the protection of section 43 when they use reasonable force for the purposes of restraining a child or maintaining order in the classroom and not when they use force as a form of chastisement, it could be said that the majority of the Supreme Court of Canada identified two spheres of protection afforded by section 43 to parents in particular, one for restraint and control to ensure compliance with daily functions and another for expressing disapproval of the actual behaviour of a child.

Moreover, the Supreme Court of Canada provided useful and balanced guidelines that define the limited sphere of protection offered by section 43 for parents. In my respectful opinion, these guidelines provide much greater direction than the common law defences that some witnesses allege are available to fill a gap following a potential repeal of section 43. I will speak to these defences in a minute.

Suffice to say in regards to the guidelines that the honourable chair raised with the previous witness, corrective force beyond those limits set out by the Supreme Court is considered not reasonable and not protected by section 43. Furthermore, any corrective conduct that places a child in need of protection will be subject to state intervention.

My fourth topic is provincial and territorial child protection because, in addition to the protection of the criminal law, all provinces and territories have child welfare legislation that provides for state intervention to protect children from abuse or neglect.

One argument raised to justify the repeal of section 43 relates to the distinction between the scope of criminal sanctions to protect children from assault and the civil remedies available through child protection statutes.

It is alleged that by not criminalizing the use of minor corrective force of a transitory trifling nature, the Criminal Code is inconsistent with child protection statutes and sends the wrong message to parents.

Apart from the fact that child protection falls within provincial jurisdiction and the criminal law falls within federal jurisdiction, a number of distinctions between these two spheres are worth highlighting. First, the scope of protection, as forwarded under child protection legislation, differs from the activities that are sanctioned under the Criminal Code. For instance, child welfare authorities can intervene in cases involving risk of physical harm or in cases involving emotional harm and neglect. For the most part, criminal offences against the person are limited to acts or omissions that cause actual physical harm or threats thereof.

Second, the purpose of child protection legislation is focused on the best interests of the child, as the primary consideration, while the purpose of the criminal law is to protect the public at large.

Third, the consequences of violating child protection legislation differ from the consequences of a breach of the criminal law. Child protection legislation provides for a wide range of remedies specifically aimed at protecting the child, such as a child in need of protection orders, referrals, counselling and parent education services to provide for positive parenting guidance.

The criminal law, on the other hand, is the expression of society's disapproval involving punitive sanctions, including possible imprisonment and accompanied by negative social stigma. A criminal record can have devastating impacts on an individual. The criminal law is the bluntest and harshest tool at our disposal.

The standard of proof applicable for child protection legislation is the civil standard, a balance of probabilities, while the applicable standard in the criminal context is beyond a reasonable doubt. As a result, the state has a lower threshold to intervene in matters of child protection, where there is more than a 50-per-cent chance that the child is in need of protection, than it does to intervene through the Criminal Code.

I emphasize these differences to point out that it is not necessary, or perhaps advisable, that we seek to have the same standards applied in the realm of criminal law as those applied in child protection. A child protection official may intervene at a lower threshold for acts or omissions that do not necessarily constitute criminal offences.

I also raise the issue of child protection legislation because in reviewing the testimony of the Honourable Senator Hervieux-Payette, I am left with the impression the ultimate goal of Bill S-207 is not to increase parents' criminal liability, but rather to enhance parenting education and child protection interventions. These goals are laudable indeed. However, parental education is primarily the jurisdiction of the provinces and territories, and child protection legislation is entirely within provincial-territorial powers under the Constitution.

Amending the Criminal Code for public education purposes is not without risks. Removing statutory defence involves removal of rights in a criminal context. This should not be taken lightly. Potential adverse impacts on Canadians must be assessed fully, particularly since the sanctions and negative social stigma associated with criminal prosecution represent a significant burden on the accused.

This brings me to the fifth topic: the potential impact of repeal of section 43. No one can predict the exact impact of repeal of statutory defence under section 43. We do not know, for instance, how many parents or teachers may be charged with assault in the absence of this section, nor do we know how many would be found guilty for behaviour that would be excluded currently by virtue of this section.

We do know, however, that if section 43 were simply repealed, any non-consensual force that a parent or teacher uses on a child or pupil could be an assault, given the broad definition under the Criminal Code. There would no longer be a statutory defence to criminal charges where the force that is used is a minor, corrective force of a transitory or trifling nature. Parents who physically put a reluctant child in a car seat or remove a child to their bedroom for time out are applying non-consensual force and could be convicted of simple assault.

If Bill S-207 were to pass, it could hamper well-intentioned, responsible parents in their important task of raising children in a caring, responsible way. It could also place additional burdens on police to lay charges in a wider range of circumstances, particularly in the absence of the guidance provided by the Supreme Court of Canada.

Criminal law and provincial and territorial child protection laws already protect children from abuse, and repealing section 43 may simply expose parents to criminal liability.

When examining section 43 of the Criminal Code, the question is not whether, as individuals, we believe that light physical discipline is effective; the question is whether we should use the full force of the criminal law, our most powerful tool, against parents trying to raise children to be responsible members of society.

It is often argued that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and de minimis. The application of both these common law defences as an alternative to section 43 was specifically rejected by the majority of the Supreme Court of Canada in the Canadian Foundation decision.

The Supreme Court of Canada, in the Perka and Latimer decisions, also recognized that defence of necessity is available in circumstances of imminent risk where an action was taken to avoid a direct and immediate risk and the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law, for example, where a child is in danger of placing a hand on a hot stove or running into a busy street.

The defence of necessity would therefore not likely be available to a parent who places a screaming child in a car seat when the parent is too pressed for time to wait until the child consents to sit in the seat.

With respect to the de minimis defence, it protects the individual from conviction where the circumstances surrounding the charge are so trifling that the law should take no notice of it. The defence of de minimis simply does not exist with any degree of stability at common law in the criminal context. Whereas accepted by the court, it appears that it is restricted to extremely trivial, minor matters and would not cover much of the content that section 43 is designed to protect.

Reliance on the de minimis defence could confuse further the law surrounding child discipline since the elements of the defence, when they are accepted, are still uncertain in Canadian criminal law.

In June 2005, my colleague, Carole Morency, indicated that we were monitoring reported case law. To date, we have identified 34 cases reported since the Supreme Court of Canada ruling in January 2004. There was a finding of not guilty on all charges in 10 of the 34 cases. Five of these cases involved parents, another four involved teachers, and the last one involved a person standing in the place of a parent. While section 43 was invoked in all these 34 cases, issues of credibility and evidence also played a role in several of the findings of not guilty.

I will provide the chair with a full list of these 34 cases.

My colleague also raised the issue of public legal education and the Department of Justice has funded, or provided in kind, support to a number of public legal education products over the years. You may already be familiar with some of them. I will bring some to your attention.

What's Wrong with Spanking? is a pamphlet developed by Department of Justice and Health Canada. It offers useful tips on effective non-physical discipline for children and contains information on behavioural issues and early childhood development. This pamphlet was distributed initially to all facilitators and coordinators of the Nobody's Perfect program, and then available upon request through the National Clearinghouse on Family Violence. It was also distributed across the country through Health Canada's regional consultants and to 102 Ontario Early Year Centres.

The initial notification of the existence of the pamphlet was sent to CHEO and to the Child Welfare League of Canada.

At this point, primary distribution is through the National Clearinghouse on Family Violence, and that clearinghouse has also promoted it through a number of other mechanisms, through conferences and through their electronic emailing.

More than 50 per cent of the clients of the clearinghouse are health and social service providers who, in turn, often distribute material that they obtain through the clearinghouse free of charge, to their clients. It is safe to assume that many of the resources are being provided to new parents through the channels of the service providers at the provincial level.

Justice Canada also launched a website to inform children and youth about family violence. The site is interactive and is designed for children aged 10 to 12 and another parallel site for children aged 13 to 15. We develop postcards for promotional purposes for distribution, and I will provide these to the committee as well.

I mentioned earlier Nobody's Perfect, a parenting, education and support program designed for children from birth to age 5 to meet the needs of parents who are young, single, socially or geographically isolated, with low income or limited formal education.

Justice Canada funded the ``Feelings'' booklet, which serves as a guide to parents to enable them to find alternative ways to respond to their children's emotional responses to various situations in their daily lives. I will leave that with the clerk of the committee as well. I have English and French copies.

Through the Child-centred Family Justice Fund, Justice Canada funds a number of parenting programs in the provinces and territories. One recent program was through the Public Legal Education and Information Service of New Brunswick. They introduced a program for young parents. The document contains some information on discipline as well as information for young parents. They used it in workshops across the province as well.

Also by the New Brunswick Public Legal Education and Information Service is a pamphlet on spanking and discipline for children. This pamphlet summarizes its challenge in relatively plain language of the Supreme Court of Canada decision on section 43. It is available on the Family Violence Initiative website of Justice Canada, where you can find a link.

A number of other resources are available through the National Clearinghouse on Family violence. I have brought copies of these as well as a publications catalogue for the chair of the committee. I will not go through the full list, in consideration of time today.

In conclusion, we realize that the issue of correction of children can be divisive. However, there is room in a democratic society for a range of views and approaches to child rearing, as long as children are protected from abuse and neglect. The current legal framework provides such protection for children and, at the same time, does not overly hamper parents in their important task of raising children. Thank you for providing us with this opportunity to speak with you today on this important issue. We would be pleased to respond to any questions.

The Chairman: I have one question and then I reserve the right to come back on legal points. I am pleased that Senator Jaffer is here to help me with the legal aspects.

In a report, we said that we believe corporal punishment violates the UN Convention on the Rights of the Child. That is our assumption and conclusion, which led to a recommendation to repeal section 43. We broadly asked the Department of Justice to look into this entire issue of defence. Having heard more witness testimony, I ask you: If section 43 were kept but the words ``by way of correction'' were removed and replaced by, ``by way of reasonable restraint,'' would we accomplish taking out the ability, despite the Supreme Court decision, of any further corporal punishment while retaining the notion that parents and caregivers need the ability to use reasonable restraint with no more force than is reasonably necessary? It would become a clear defence for the restraint but would abolish corporal punishment. Do you have any other interpretation of the word ``correction?'' Have you looked at that or am I blind- siding you?

Ms. Blackell: It is worth looking into.

Unfortunately, as the honourable senator is probably aware, I provide legal advice to the Minister of Justice and am not in a position to provide legal advice on that proposal.

The Chairman: I understand. Are you relying fully on the term ``correction'' in section 43, as the Supreme Court has stated it in The Canadian Foundation for Children, Youth and Law v. the Attorney General in Right of Canada.

Ms. Blackell: I am not sure I understand the question.

The Chairman: There has been some indication that ``correction'' is more than corporal punishment. Am I correct? Or are ``corporal punishment'' and ``correction'' equal in section 43, in your assessment?

Ms. Blackell: The Supreme Court identified a specific application of section 43 for teachers. In so doing, they said that teachers could rely section 43 only for restraint and maintaining order in the classroom but not for the purposes of corporal punishment.

The Chairman: That is my point. Does section 43 deal only with corporal punishment or is it a broader section than corporal punishment, including such concepts as restraint?

Elissa Lieff, Senior General Counsel, Department of Justice: I am not sure if we are in a position to provide an interpretation, senator. We can take your point. We are in the position whereby we are led by what the Supreme Court of Canada has said in terms of where the guidelines lie, and what is and is not appropriate in terms of interpretation of the section. Understanding your question, I can say that it is something to consider but I do not know if we can give you a point blank answer to it.

Senator Munson: I must be living in another time zone given that you are here to defend section 43 and yet you put all these publications out to show us why spanking does not work. The line from the Public Health Agency of Canada states that we should never spank because it simply does not work for the child or for the parent. It continues to describe in an education program what we should do about this.

I do not get it. You sit here and defend what you have to defend because you are departmental officials and the Supreme Court made its decision. However, the Government of Canada puts out this information that tells people not to do that because it does not work.

You also said that the Criminal Code is there to protect the public, not the child. Why does the public need to be protected? Why do parents need the protection of section 43? It is protection from what? There are common law defences against frivolous or minimal offences. I find it sad that we are having this debate.

Ms. Lieff: If I can remember all your comments in order, senator, first, we are here to provide what we see as the legal interpretation; it is not our role to defend or to not defend in these particular circumstances. We are here to provide the committee with an interpretation of section 43 as we see it in light of the Supreme Court of Canada decision.

That was your first point. In terms of the publications produced by the various departments, including Justice Canada, we share the view that public education is important and this is the direction we should take in the best of circumstances. It is something that we support. We are involved in some of this work with our colleagues in other departments and across the country in the ways that we link to other government departments. As you understand, we are the Department of Justice so we try, through our networks, to see that some of this information can be disseminated or shared. We do not have direct links with those who provide social services or deal with education. I would say that the overall view is that education is the best way to go.

Our concern, and perhaps this is where we differ from some of the witnesses who have appeared before the committee, is that I am not sure that we interpret some of these defences in the same way. When we talk about criminal law being for the public good, more than anything else, we are saying that criminal law is a blunt tool.

Our view of the defences and how they apply may differ from some of the witnesses that have appeared before you. I understand there are differing views with respect to section 43 as well. It is better to have a provision in the Criminal Code we can turn to with respect to how to deal with these situations than to assume — as many witnesses may have — that others responsible for addressing these situations, serving different roles in the legal system, may have no other way of dealing with this issue but to turn to the common assault provisions. That would be a blunt tool to use in some of these circumstances. With section 43, they might be able to deal with the situation in a different way.

Senator Carstairs: You indicated that the Criminal Code is a blunt tool. One wonders why that kind of bluntness is needed to protect parents from criminal charges.

Let me give you an example. You indicated that shaking a child to wake them could result in an assault charge, yet nurses frequently restrain a child to give them injections. I know of no case in Canada where a nurse has ever been charged as a result of that restraint. Child and family service workers restrain difficult children daily to protect them. If the force has been abusive, such as in the case I know of where they pushed a child onto the floor and used excessive force, charges were brought. No charges are brought in situations where force has been reasonable to restrain the child.

What makes the Department of Justice believe there will be thousands of cases now lodged against parents for use of force in the case — as you used as an example — of putting a child who does not want to be put into a car seat into that car seat?

Ms. Blackell: With all due respect, we do not anticipate thousands of cases. I hope that would not be the case. We do not know what the result would be. That is the best statement to make. A statutory defence is available and is currently applicable to certain limited circumstances of the reasonable application of force. Were we to remove it, we may see situations where that defence would have shielded some parents and teachers from criminal sanctions who would otherwise be sanctioned as a result. That is the extent of what we are saying at this time.

Senator Carstairs: Do you think it is reasonable that police forces in this country charge parents for offences of the kind that you gave as examples: insisting a little girl put on her boots instead of her sandals to go out in the snow?

Ms. Blackell: It is a case-by-case situation. If the police were faced with a situation where they had witnesses reporting an assault, a child being touched without their consent, which they made perfectly clear, and that were the law and there were no specific defences, some police may feel they are required to bring charges. Then we go into a whole area of discretion. That is also a risky area.

We have specific guidelines of the Supreme Court. An outright repeal of section 43 would also be a repeal of those guidelines.

[Translation]

The lawmaker does not speak for the sake of speaking. When a significant amendment is made, such as removing the right to a statutory defence, that is a sign that something has changed and that, in fact, certain rights may have been removed from the accused.

[English]

Senator Lovelace Nicholas: I have not heard anything mentioned about verbal abuse. Do you consider verbal abuse to be assault? It causes a different kind of bruising.

Ms. Blackell: This is one reason I raised the comparison between the criminal law and child protection. There is much more room under the child protection, given the concept of emotional harm, to address the harms done by verbal abuse. Some forms of verbal abuse are criminalized, but they require, for the most part, a threat to cause harm; uttering threats or in the context of criminally harassing someone.

For the most part, the bar is high to criminalize an action. The action must be something that is of a high threshold. There are Charter considerations in terms of freedom of expression when we start moving into criminalizing things that someone may say. As we know, it has been an issue in terms of hate propaganda.

There is a high threshold in terms of the implications of what is being said before we could call that a crime.

Senator Lovelace Nicholas: What if someone told a native child, ``You are no good, you are just a savage''? That will bruise this child for the rest of their life.

Ms. Blackell: Yes, that would be offensive and hurtful, absolutely. If it were in the context of a family, it could be in the continuum of violence and abuse; a form of abuse, absolutely. Is that grounds to criminalize an individual? That is a societal question; those choices we make as a society.

Senator Dallaire: I was at a conference with a well-known journalist, David Frum, discussing human rights. His strong argument was that there should not be child rights because that means children can sue parents.

On the other side, we have the Criminal Code. If a person is charged with an offence — some of these things you have described — and then found not guilty, is there anything that remains on their file? If they have been to court and were found not guilty, is there something that remains on their criminal file?

Ms. Lieff: I do not think it remains indeterminately on their file if they have been charged. Perhaps it does. Senator Jaffer knows better than I.

Senator Dallaire: It is there unless they ask for a pardon, although they should not need to if they are found not guilty. It is possible if we repeal this section that people may be charged unnecessarily and, even though found not guilty, might not be able to board a plane anymore because they have committed a criminal offence. That is the other extreme, is it not? Is that not a possible risk?

Ms. Blackell: We keep data on charges but I doubt, from the data collection perspective, that we have identified them with the person.

Senator Dallaire: I would not have a criminal file?

Ms. Blackell: A criminal record may have an impact on air travel.

Senator Dallaire: That is what I am talking about.

Ms. Lieff: To have a criminal record, they would need to be found guilty.

Senator Dallaire: What about if they are found not guilty?

Ms. Lieff: We keep records of convictions in Canada. As I said, I could be wrong about the number of charges laid.

I think there is also a possibility of acknowledging that there was an action. Depending on the jurisdiction they are in, it could well be on the record that is kept. If it is a family that has had ongoing issues, that file would be kept by child protection agencies.

Senator Dallaire: That does not give me a warm, fuzzy feeling. If we repeal this section and charges are abused, innocent people could be held accountable and the rest of their life might be affected by that. That is the risk of repealing the section.

From the other angle, do you not believe that with this statutory defence clause abuse could happen more; that is, adults can use it as a basis for pushing the limit of physical abuse on children? If we did not have that clause, there would be potential to hold people back from abuse. Any possible gesture — some as ridiculous as some of the examples you have used — could be interpreted as abusive. When I wake up my son, for example, we roughhouse — I will come back to that in a moment.

Do you not believe that keeping that statutory defence clause in the act provides the opportunity for children to be abused by parents who push the limit? I am being Machiavellian here.

Ms. Lieff: Yes, I understand that. We do not have any research that can respond to that in one way or another. If I responded to that, I would respond more in my personal capacity and I am not a social science expert. We do not have statistics to deal with this issue. Personally, I do not think a lot of people peruse what is in the Criminal Code. If there is education out there, that education tries to teach them how to deal with discipline in other ways. Frankly, as the mother of two now-grown children, I recall when my children were growing up. We have all been exposed to children one way or another. In the school system, they were well educated about what is and is not appropriate. When I once took her by the hand up the stairs, I remember my daughter telling me that she would call the Children's Aid Society. She did not learn that from me.

Senator Dallaire: That possibility exists, but I would contend abuse is just as possible. It comes back, then, to self defence, and to the protection of those who are vulnerable.

You are right about section 265, common assault. Your interpretations are absolutely preposterous in that there are no limits on what you say could be defined as ``assault.'' If the courts try people on some of the simplistic examples you used, then proposed section 265 is the error, along with not having section 43 to protect us against section 265. Is that not the case?

Ms. Blackell: The purpose here was to demonstrate the breadth of our assault provisions. They are large and wide. Between two adults, if one individual says, ``Stop touching me,'' it is clear that a continued touch is then an assault even if there is no force applied; that is clarified in the case law.

It is more complicated with children because we are dealing with them daily. There are a lot of grey areas. That is where it is difficult because, in reality, people's lives are full of a lot of grey areas and the law has to decide at some point. Section 43 provides a bit of shelter from the black-and-white scenario with regards to assault. The child may not be the one saying, ``Oh, I am being assaulted,'' but a bystander may say, ``That child is being assaulted,'' because they are screaming and their parent is picking them up. If they pick up an adult who is screaming, that is an assault.

Senator Dallaire: Again, if we repeal the section — and there is enough jurisprudence and, yes, some people might be burnt by this — that jurisprudence will give us the limits on the cases where we have children as opposed to adults. Would that not suffice to meet the requirement?

Ms. Lieff: Clearly, we have certain views with respect to section 43. The difficulty in respect of developing jurisprudence is right now, if we look at the decision we have, we have guidelines that have been provided by the Supreme Court of Canada that have application across Canada. Whether you support it or not, we have a national standard in terms of the interpretation of the Criminal Code. It would take some time, in the context of the broader assault laws as well, to come up with some kind of interpretation that was known in terms of how this change would be addressed, unless work was done that specifically related to the development of national guidelines, protocols or something.

Senator Dallaire: We could do that. It might take 10 or 15 years, but we can still do it.

Ms. Lieff: It would involve a lot of different departments and agencies at both the federal and province levels. I am sure you know that.

Senator Dallaire: That would be marvellous; working together to solve a problem.

Senator Jaffer: I want a clarification on what you said. You said there were 34 cases. If I understood you correctly, you said 10 were not convictions?

Ms. Blackell: Yes, 10 were not guilty on all counts.

Senator Jaffer: That means that 24 out of the 34 were found guilty?

Ms. Blackell: There was variance in terms of guilty verdicts, but there were guilty verdicts in the others.

Senator Jaffer: How many were parents, do you know?

Ms. Blackell: Out of all the cases?

Senator Jaffer: Out of the 24: You can provide that later.

The Chairman: I think you gave us the statistics on the 10 cases but not the 24.

Senator Jaffer: You can provide that to the chair later.

Ms. Blackell: Yes, we can that that for you.

Senator Jaffer: You gave an example of leading a child by the hand as an example of light physical discipline that is protected by section 43. I do not think that is the context we are looking at in the sense that it would be helpful if you could give us an example under section 43 where section 43 was used to protect a parent from liability from something not as simple as taking a child by the hand, because the extreme is taking a child by the hand and corporal punishment. It would be helpful if you could give us another example where it protects a parent.

Ms. Blackell: Let me look for one here. There is an example here of a 2005 case, R v. D. (S.) That is from Quebec. It is a case involving a teacher. It was a physical education teacher. One of the students stated that he had forgotten his running shoes. The accused took his arm with both hands and pushed him into the door. The other student said the teacher grabbed him by the shoulders.

There were two pushing or grabbing motions. There were differing stories, so there are questions of credibility. The accused was found not guilty on both counts.

Senator Jaffer: I realize I am putting you on the spot. I do not mean to do that, but could you please provide the chair with an example involving a parent? I am speaking for myself. I think with a teacher and an outsider, people know the limits. It is with a parent that we need examples. I am not saying that parents do not know limits, but my colleague said restraining a child. If you could give us examples under section 43 of the difference between restraining and corporal punishment, that would be useful.

Ms. Blackell: We can provide that information to the chair.

Senator Jaffer: Also provide cases involving parents; not the hand holding but something in the middle.

Ms. Blackell: To clarify, these cases are also reported cases so it is not a complete picture across the country. They are the cases that are reported to us.

The Chairman: Having sat on the Standing Senate Committee on Legal and Constitutional Affairs, one problem is that we still have a problem obtaining statistics out of courts on reported and unreported cases. At a provincial level, where we work throughout all the towns wherever there is a court, those cases have not been documented yet.

It was that way 30 years ago. They are into statistics, but not the kind that are meaningful for us to know what the cases are. Section 265 might come out of there, but we do not know whether it was a case of a parent, a child, a teacher or an assault in a bar. That is a problem.

I think we raised it in the legal committee a while back. I take it we are still having problems gathering information on every case that goes through every court.

Ms. Lieff: In the Department of Justice, we have no capacity to do that kind of work. It is through the Canadian Centre for Justice Statistics that this work is done, and we cannot mandate them to do certain kinds of work.

Decisions are made in certain areas. As you said when you talked earlier about charges, they may say that X number of assault charges have been laid in the past year, but it will give you the number. Maybe it will give you which provinces; maybe it will be broken down into male and female, but it would be difficult for them as well to gather cases in this manner. They tend to stick with the broader categories, and that kind of information is not available to us either. That is why we do a review, or try to keep up to date with what is happening with the case law.

The Chairman: You brought up social welfare. One concern I have had over the years is that often caseworkers are stretched. It is a difficult situation; they are under the gun to prove what they have done if they try to protect a child. Often they use the Criminal Code because it is simpler to prove something against a parent than it is to try to work in areas of child welfare laws — emotional and physical, proper care and all these terms that we have used over the decades. Sometimes, if the cases have an element of an assault, it is easier to use that element.

I have found that the most vulnerable families sometimes find themselves in front of the criminal court — and in front of any court — because they are more exposed in the welfare system to everything. Have you factored any of those issues into your work? I take it you do not have the studies on that either.

Ms. Blackell: I am not sure how we would get at that information in terms of how many families come to the attention of the criminal justice system that would be better dealt with perhaps through the child protection system. That really is, to a certain degree, a question of judgment.

For the most part, a system that provides for a response based on the interests of the child, and that response to that individual family, would appear to be more suited to most of these cases. A child does not live in a vacuum; they live in a family and, for the most part, want to continue to be with that family.

When addressing the best interest of the child, we should try to take that interest in the broader context and look at the interest of that child in having a loving and supportive family; and if they lack in that way, then giving them the tools to become more so. That is not usually the sort of approach the criminal justice system takes. It is a different stream and so the services —

The Chairman: When we looked into the area of child abuse, but sexual abuse, there was a lot of education. We also know that one of the unintended consequences is that cases of allegations ended up in the courts because perhaps of a zealousness to prosecute or the wish to believe.

I think of the horrific case in Saskatchewan, which now has been proven not to have substance, involving day care workers. There is the interplay between the two systems. We try to support a child, but there is sometimes an unintended consequence.

You say you have some anecdotal evidence but there is no system keeping track of how many of those 34 cases might have been subject to a welfare case.

Ms. Blackell: There is data in the Canadian incident study of reported abuse and neglect in 2003, which I will leave with you in both languages. That study looks at the cases reported; at the same time, they take a look at the crossover, so we have some idea.

However, making that judgment call on an individual case, that it was the appropriate call, would be second guessing the decisions that were made by the relevant authorities.

The Chairman: The relevant authority has just made a decision. The bells are ringing so we must adjourn now. I thank you for coming and providing us with the technical advice.

Senators, we are scheduled to sit tomorrow to do the clause-by-clause consideration.

The committee adjourned.