Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 18 - Evidence for May 15, 2008


OTTAWA, Thursday, May 15, 2008

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-209, An Act to amend the Criminal Code (protection of children), met this day at 10:48 a.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.

[English]

The Chair: Honourable senators, welcome to the Standing Senate Committee on Legal and Constitutional Affairs. We are continuing our study of Bill S-209.

This is a private senator's bill brought forward by Senator Hervieux-Payette, who appeared before us yesterday.

This morning, we have Mr. Mark Lapowich from the Canadian Council of Criminal Defence Lawyers, CCCDL. Welcome.

Mark Lapowich, Canadian Council of Criminal Defence Lawyers: Thank you, Chair and members of the committee. The Canadian Council of Criminal Defence Lawyers is extremely grateful for this invitation.

First, I must apologize. It is one of my great regrets that I only speak French on a limited basis although I was born and raised in this country. Therefore, my comments will be in English.

Senator Stratton: If you come from Western Canada, you have the same problem.

Mr.Lapowich: It is one of my great embarrassments.

The Chair: You have the absolute right to speak either official language.

Mr.Lapowich: That is why this is a great country.

The Chair: The whole system is to serve people who speak only one of the official languages.

Mr.Lapowich: Thank you.

As many of you may know, the CCCDL is national council with representation throughout the country. We offer a national voice on behalf of defence counsel in regard to the administration of criminal justice as it relates to due process and the way in which it affects accused persons. In that regard, this morning I will attempt to assist you as best I can with respect to the narrow issue of the legal and practical effects of removing section43 of the Criminal Code.

I would like to begin by noting that the attempts by this committee, as well as other committees, to combat violence against children are laudable. However, we do not feel that Bill S-209 will assist in that regard. It may, in fact, impede the progress currently being made. I will set out our concerns briefly and then attempt to answer any specific questions you may have.

Our first and primary concern is that eliminating section43 to address the real problem of violence against children is simply unnecessary. Often we are up here, speaking on proposed legislative changes in relation to the Criminal Code. More often than not it is about adding sections to the Criminal Code — new offences, making mandatory minimum sentences, etcetera.

We are largely here to argue that you need not overcomplicate matters when it is already being addressed by other sections of the Criminal Code. In a similar fashion, we feel that repealing section43 is unnecessary because the types of things that were discussed — and I did have an opportunity to listen to the webcast of yesterday's meeting — the types of violence and abuse of children are adequately dealt with by the Criminal Code as it is currently structured.

This section as it has been interpreted by the courts, in no way acts as a shield to those who would abuse their children. The provisions of the Criminal Code currently catch the type of violence and aggression that appears to be driving the current debate. This type of violence is in no way condoned by the Canadian Council of Criminal Defence Lawyers. However, the fact is that there is a robust mechanism already in place for dealing with this type of conduct.

Our second concern is that by repealing section43 a valid defence is being removed. This defence is currently available to parents and teachers who are doing their best to raise and educate their children in stable family and school settings through guidance and the appropriate use of discipline. If section43 were repealed, make no mistake that the assault provisions of the Criminal Code would apply to parents or teachers who use any force against a child without the child's consent. I would also note that assault has been construed in a wide manner by our courts such that any non-consensual touching may constitute an intentional application of force and, thereby, an assault under the Criminal Code. We respectfully submit that by repealing section43, our broad assault laws would criminalize behaviour falling short of that which has been typically considered to be corporal punishment.

As I indicated, I had an opportunity to listen to yesterday's meeting. I noted that many of the questions addressed the availability of other common law defences in situations that everyone seemed to agree should not lead to criminal liability. However, it should be pointed out that the defence of necessity is based on involuntariness of one's actions and has been interpreted by the courts very narrowly.

The defence of de minimuis non curat lex is only available for trivial or technical violations of law. It is our respectful position that it does not offer the type of protection for valid uses of force, such as reasonable restraint, as does section43. Moreover the defence is equally, if not more, vague and difficult for the courts to apply than the reasonableness requirement that is currently built into section43.

Our third concern is that, by eliminating section43, we run the risk of flooding the courts with cases that are better dealt with outside of the criminal justice system. This is contrary to many of the efforts currently being made to enhance the process at the front end; for example, through the use of vigorous pre-screening of charges so that the system has the necessary resources to address serious cases that deserve to be litigated on their merits.

Our fourth concern is that, while the criminal law may serve an educative function, the need to inform and educate the public about these real and pressing concerns is better addressed in other fora. Moreover, section43, when read in relation to the other Criminal Code sections dealing with all forms of assault and the case law interpreting those sections, does convey our abhorrence for the use of force against anyone, including children, except in extremely limited circumstance.

Finally, while I agree with Mr. Bernstein, the Children's Advocate for the province of Saskatchewan, that Canada must be a world leader with respect to the protection of children, I would respectfully disagree with any notion that, by not repealing section43, we are somehow condoning violence against children and would become an embarrassment in the international community. The Canadian Council of Criminal Defence Lawyers has much admiration for our criminal justice system. It is our position that section43 is a uniquely Canadian approach to an extremely difficult issue. It is one that appropriately balances the various competing societal interests and fosters respect for the rule of law. It has been drafted to reflect the fact that, despite the good intentions and best efforts of legislators, they can never foresee all situations that may arise. Moreover, our country enjoys a very strong judiciary and the CCCDL feels that they will continue to apply the law appropriately in relation to these difficult issues.

On that last point, I would simply note that I have read and am prepared to answer questions in relation to the recent Supreme Court of Canada's decision with respect to the Canadian Foundation for Children. We feel that was appropriately decided by the majority. In that case lies a detailed analysis of the legal issues surrounding section43 of the Criminal Code— the history and the difficulties with it that had been acknowledged by the majority decision in that case by Chief Justice McLachlin. We feel it was a right decision. It strikes the appropriate balance, once section43 is interpreted by the case law that has followed. I understand as well I may be asked some questions about the recent case of R. v. Swan and I am prepared to answer.

I am now prepared to answer any specific questions that you my may have. I will try to assist as much as possible in that regard. I have tried to read as much of the material in the limited time that I have had. I have read the Supreme Court of Canada decision in its entirety and, while I am by no means an expert on the decision, I can try to help out. I have read the R. v. Swan decision as well as some of the cases that it refers to that followed up on the Supreme Court of Canada decision.

Senator Andreychuk: I will be mindful of my first round. Thank you, Mr.Lapowich, for coming here on such short notice.

You are saying that section43 should stay as is and, therefore, you would not support Bill S-209.

Mr.Lapowich: That is correct.

Senator Andreychuk: You are saying that in no way are you advocating corporal punishment or the use of violence. You are indicating that there are some corrective measures that should be afforded to teachers, caregivers and parents and that those have a societal value.

Mr.Lapowich: That is correct. Again, we do not condone violence against children. Some of the comments that I heard yesterday were related to the problems of violence against children, the fact that they are the most deserving of protection in our community and cannot fend for themselves. We agree with that proposition. We are saying that section43 should be left in the Criminal Code.

We feel that there are situations in which the current common law defences would not be available to people who use appropriate levels of force. I know many of these words are loaded when you talk about "assault'' or "violence.'' However, we consider appropriate levels of force to be uses of force that show some measure of force in either a corrective fashion or as reasonable restraint. We can get into some of the hypothetical situations that have been raised and some of the differences.

As I see it, there are several categories where this defence may be applicable. First, let me discuss corporal punishment. I have used that word, as I understand it, to mean punitive action taken against someone without any corrective measurement. That clearly has been deemed inappropriate. Corrective action is the minor use of force in a disciplinary setting, or it is used for the safety of a child — which I think is the least controversial of the issues. Not letting a child run out in the street or placing a child in a car seat for safety when he or she does not want to be are examples of this.

However, there is a large grey area between those two in which immediate safety concerns or emergency situations may not exist. The R. v. Swan case is a perfect example of that. I do not necessarily feel that the defences would be available in common law, certainly not de minimis. I do not think necessity would apply in that case. It was a decision on appeal; a lower court judge alone convicted him on the basis of a certain analysis on a Supreme Court of Canada decision under section43.

If you read the decision in R. v. Swan, you can see that the trial judge appeared to be concerned and had sympathy for this individual but felt constrained by the Supreme Court of Canada's decision. While finding the individual guilty of assault, he granted him a conditional discharge rather than saddling him with a conviction and the stigma of being convicted.

On appeal, you will see the judge clearly struggled with this issue. The judge then determined that this is one of those cases that falls into the grey area where, perhaps, necessity would not be available and nor would de minimis. The actions were clearly done not for the purpose of punishing the child and were not out of anger, but as a corrective measure; "corrective'' in the broadest sense. That is, trying to protect her; a parent struggling to do the right thing; to protect his daughter from a dangerous situation.

Part of the problem about leaving it to the common law defences is that there may not have been an imminent danger at that particular time of something drastic happening. However, both of the judges agreed that it was a bad situation for the daughter to return to. The facts in that case, which I can take you to if you wish, are particularly helpful in terms of the level of force that was used — which was quite minor — versus the harm that was trying to be prevented, which seems to be quite serious in that case.

There were allegations of abusive conduct from this boyfriend and allegations of drug use. There seems to have been a fulsome evidentiary foundation for that. It was not just the father saying that the boyfriend was abusive. In that case, they even had a previous court order restraining the boyfriend and the mother from having contact with the daughter because, on a couple of occasions, she had run away from home and went with this boyfriend and the mother. They were part of hiding her from the parents and the authorities.

R. v. Swan is one of those cases where section43 and the appropriate analysis of that section allows for that reasonable restraint defence that may not be available if we remove that section from the Criminal Code.

Senator Andreychuk: If we remove it from the code, we end up with this necessity and de minimis that does not appear, then, to be available in that type of case that you pointed out in R. v. Swan and, perhaps, others in today's society.

If we remove section43 and proceed to this whole situation of non-consensual touching, how does one in law receive consent from a child? I understand the case law for adults; I think we have good decisions about the implied consent in an adult situation. Every age group would be different, and every capacity would be different. We reflected on that if we were to remove the defence as it is now.

Mr.Lapowich: Therein lies the difficulty when we are dealing with the issue of non-consent when we are speaking about children. Some of the comments in the case law and some of the concerns that have been expressed, which I believe are extremely valid, about the fact that children should not be treated in our society as somehow second-class citizens, mini-adults or mini-humans with less rights than we.

However, there are differences in the ways that children and adults process information. Their judgment is not the same. That is the balance inherent in this, and that is the reason that having this debate is important. In Canada, we try to strike that appropriate balance.

In adults it is much easier, and the case law is clear on the difference between consensual and non-consensual. One always has the defence open to them in law of mistaken belief in consent. If we are talking about a sexual assault or any type of physical contact — which can amount to touching a knee, hugging or anything along those lines — that is very well-defined and easy for judges to apply.

It becomes much more difficult to do that when trying to apply it to children. We must then look at all of those specific factors — the child's age and development — within a specific context. Section43 is very important because it sets out a legal framework to decide on a subjective and an objective basis — when a judge looks at this defence when it is raised — whether or not the force used was reasonable, taking into consideration all of those issues.

It is difficult. I have two young children, a three-month-old and a three-year-old. My three-year-old just started school this week. I received a phone call this morning from my wife to inform me that she had to take my daughter kicking and screaming to school. That was non-consensual. My daughter's concept of consent at this point is such that — she is a pretty smart three-year-old — it was against her will; she did not want to go. This had to do with separation anxiety and all the rest of it. Nothing bad is happening to her at school. However, my wife did put her in the car, strapped her in the car seat and took her to school. Thankfully, before the meeting started, I received another phone call to say that she is happily at school. For the first time this week, she put up her hand and responded in front of the class.

My point returns to this issue of it becoming extremely difficult. These are extremely difficult issues that judges struggle with when they are determining what is reasonable in the circumstance. Section43 as currently drafted allows for that in view of how it has been interpreted recently by the Supreme Court of Canada and the cases that follow.

However, I do take your point. It is extremely difficult to get into a defence of complied consent when we are dealing with children.

Senator Baker: You have a very smart daughter.

Your thesis is this as follows: If section43 were removed, then section266 and section265 would apply. Is that correct?

Mr.Lapowich: Absolutely, that is correct.

Senator Baker: I can recall many years ago when we amended section265 of the Criminal Code — and that was decades ago — the concern was that common assault under paragraph265(1)(b) that has nothing to do with touching but concerns the alleged victim believing that the person who may be about to commit an assault, by gesture or by act, has the ability to do it. In other words, a person need not be touched, as such. The offence would be made out if the alleged offender made a gesture or an action and the alleged victim believed on reasonable grounds that the person had the ability to do it.

If you are saying this would apply in the cases we are talking about, then that would be quite a change. That would be extraordinary.

Mr.Lapowich: I agree. I think it is problematic given that the assault provisions that we have in Canada have been construed by the courts — not only legislatively as including threats and threatening gestures but non-consensual touching as well — in the broadest manner possible.

That is a reflection back to a typically Canadian thing; namely, this idea that, for a long time, we have had this concern with human dignity, and that extends beyond non-consensual touching to threatening gestures and actions. We have specific Criminal Code sections to deal with threats. When a threat is uttered, again, it returns to the subjective belief of the alleged victim — the complainant in the matter — as to whether they thought it was a real threat and then feared for their safety.

As I see it, there is no debate that, if you remove section43, parents and teachers are then subject to the same sections — section265 and section266, and the others in the Criminal Code— as anyone else is in our country. The concern in trying to address some of the issues the minority decisions pointed out in the Supreme Court of Canada decision in 2004 — the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) decision — is whether or not it matters; whether we remove it and say that the assault provisions apply to parents and teachers equally as it applies to adults governing their relationships with other adults and children that do not belong to them.

The safeguards for these types of grey areas of conduct that we are discussing are not sufficiently addressed by the common law defences that would be left. Those defences are set out, codified by section8 of the Criminal Code to say that these are the common law defences, historically, and that they are available to people.

Our concern is that there will be, perhaps, ones that we can think of today that will not be caught and ones that may be unanticipated that could be caught. The concern will be with leaving it to the discretion of the police, the Crown or whoever it is at the front end as to whether to lay charges or whether that is something more appropriately dealt with by other means, for example the Children's Aid Society.

As criminal defence counsel, our concern is dealing with the Criminal Code, the Criminal Code sections and respect for the rule of law. Rather than the rule of discretion, or relying on the discretion of those that may have cases go into the system, we think it is an appropriate section to have in order to respect the rule of law. It adequately sets out what the ground rules are for people.

Senator Baker: The first questioner that you had is a former judge and the next questioner is a former professor of law. I imagine he is thinking about the extensions beyond just common assault. For example, assault with a weapon, to wit, a piece of chalk or a pencil — do they still use chalk?

Senator Andreychuk: You have shown your age, again.

Mr.Lapowich: To wit, a laser pointer?

Senator Baker: That is exactly it.

In other words, if the same standards that we have today were supplanted into the classroom, it could lead to some extraordinary results. We see many cases of assault with a weapon; for example, police officers who allege assault with a weapon when someone approaches them in an automobile and they must back the police vehicle out of the way. The person is then charged with assault with a weapon, to wit, an automobile. If you supplant that into the classroom, it could lead to some extraordinary results.

Is there any other way around this? You say that it is not in dispute that if you remove section43, then paragraph265(1)(b) of the Criminal Code will apply. You are sure of that; you have said that.

Mr.Lapowich: I cannot see how it would not. The only way it does not operate is by operation currently of section43, subject to those defences that one always has in law that are available to adults charged with assault, assault by threatening gesture or assault by a weapon, to wit, whatever it may be — a paper clip. It can be anything. A "weapon'' is defined as anything that is used for that purpose.

When many people think of the common parlance and what a weapon would be, they think of things we normally associate with weapons: a firearm, a knife or a baseball bat, the latter of which could be used quite legally in one aspect and quite illegally in another.

Yes, our case law is such that it can be anything used in that way. A pencil is a writing instrument in one situation. However, if I lunge at someone to stab at them with it, it is a weapon.

Senator Baker: I would question what you said a moment ago: Possibly other avenues would be followed in the case of a student. I am sure that what you meant was that, in extraordinary cases, that would be the case. However, if the elements of the offence are made out, it would be the duty of the police, upon complaint, to lay the charge.

Mr.Lapowich: The police, as I understand from my experience, always have the discretion of whether to lay a charge at the front end. The police are the same as all of us: There are good ones and less-than-professional ones. However, by and large, I hold a great degree of respect for our police force. Daily, they do a difficult job in very difficult circumstance in this country.

Last evening, I received an emergency phone call from a client of mine. There was an allegation that he was breaching his conditions. I spoke to the officer who actually warned my client rather than arrested him. He had the ability to arrest him because it was a violation of a Criminal Code offence. However, that officer used his discretion in what I thought was a very commendable way. He felt that a warning was sufficient and that this was, maybe, a mental health issue — and better dealt with by lawyers and mental health workers — as opposed to creating more work for an already overburdened justice system.

I do not necessarily profess to be an expert in terms of when police feel they are able to exercise that discretion and when they have no choice and must lay a charge. However, any serious allegation of assault by a teacher against a pupil would necessitate a charge to be laid. I think a police officer would have a tough time justifying the use of discretion not to lay a charge in that circumstance.

Senator Oliver: Not much is left following Senator Baker's probing questions.

When you made your opening statement, you used the expression "appropriate use of discipline.'' In the Supreme Court of Canada decision, section43 can only be used by parents, although teachers can use physical discipline to remove a child from the classroom or to secure compliance. What type of physical discipline do you envisage when you use those words?

You had four concerns with this bill. Your second concern was the removal of a valid defence.

What type of physical discipline do you envisage teachers being able to use in removing that child?

Mr.Lapowich: Are you talking specifically about teachers as opposed to parents?

Senator Oliver: Yes.

Mr.Lapowich: The case law is helpful, as in the Supreme Court of Canada decision, in relation to those situations where a disruption is removed from the class, whether it is discipline for discipline's sake, or where there is a correctional aspect to it.

It is a right of all students to have a stable environment in which to learn. If there is an individual student who is beyond control and causing a disruption in the class, then the physical removal of that person may be an appropriate use of discipline in a school context.

Senator Oliver: Why is that not caught by the assault section that you just discussed with Senator Baker? If there is a touching in the removal of the child, why is that not caught by assault, and when is it an appropriate use of discipline?

Mr.Lapowich: My point is that if you remove section43, that would then be an assault. It is an unwanted touching. A student who is close to being an adult, a 15-year-old, has a much greater understanding of what he or she consents to. If the student does not want to be removed and wants to be disruptive in the class and you use force to remove that student from the class, then you would be caught presumably by the assault provisions. By removing section43, you remove the available defence that is there now for that type of corrective action.

Senator Oliver: Let us say that this bill does not pass. What course of action do you see a teacher being able to take in using appropriate discipline to break up those students?

Mr.Lapowich: Again, the example of removing a child from a classroom who is being disruptive; also perhaps in a situation where one has to break up a schoolyard fight, where the difficult defence of self-defence or defence of others may not be made out, but where one feels it is in the students' best interests to break up bullying, fighting or even sometimes consensual horseplay between students. They may be wrestling and grappling with each other, not as a fight, but playing together — consensual wrestling or whatever — and a student may think it is not in their best interest to try to break that up. Those are the types of actions that I think would be caught by the assault provisions, and the gap would not be filled by other defences that are currently caught by section43.

I am sure there are others situations that I have not thought of, which is one of my reasons for leaving in section43; situations will come up that we have not thought of that may appropriately fall within that grey area.

Senator Stratton: What would happen, with the removal of the section43, if a student is disruptive, is physically removed from the classroom and then files a complaint? Would the teacher be charged?

Mr.Lapowich: That possibility exists. It depends on the individual student and how he or she decides to deal with it. It may come about because the student complains at home to his or her parents. The parents think the child has been manhandled at school and make a complaint to the school. In another situation, a student could complain directly; when taken to the principal's office, that child complains that he or she was dragged down there against his or her will. You have no control over that. Whether or not the police are then called to lay a charge will depend on the circumstances — who it is that feels aggrieved and how badly they feel aggrieved.

Senator Stratton: With section43, you feel there is a degree of protection for the teachers and the school.

Mr.Lapowich: Yes.

Senator Stratton: Without section43, if that student, just to be a troublemaker, files a complaint, does that mean the police have to do something?

Mr.Lapowich: That is always a possibility, and that is one of the dangers. It is inherent in criminal law always. We deal with people who we feel that they have been wrongfully charged with offences, because people often have ulterior motives for wanting charges laid.

Perhaps it is a situation in which a student, who is well aware of his or her rights and the laws, wants to take advantage to be disruptive and may create a situation in which that student is touched. That student then uses that as a basis to cause trouble for the teacher or the school.

Senator Stratton: It would be better to keep section43, correct? That was my question.

The Chair: That is what I figured. That is called queue jumping.

Senator Merchant: I will ask one question. If I take a little longer getting into it, please bear with me.

Eighteen European countries have explicitly banned all corporal punishment of children in law and repealed any reasonable chastisement defence. I will read the names of the countries: Sweden, Finland, Norway, Austria, Cyprus, Denmark, Croatia, Bulgaria, Latvia, Germany, Iceland, Romania, Ukraine, Hungary, Greece, Holland, Portugal and Spain. Outside the European continent, there is Israel, New Zealand, Uruguay, Venezuela and Chile.

Sometimes we can learn something from the actions of other countries. I hope that we might have an opportunity to hear from someone in one of these countries to see why they felt it was necessary to enact this legislation and how it has worked — how they have educated parents, etcetera.

If you had an opportunity to think about this and ask questions about it, what would you advise us to look for?

Mr.Lapowich: I do not pretend to be an expert in comparative law or international law. In the time I had, I was not able to get any constructive information with respect to the criminal justice systems in those countries that you have mentioned.

I cannot find the reference now. I do believe it was in one of the minority decisions in the Supreme Court of Canada decision — it may be Justice Binnie's decision, but I am having difficulty locating it. In the case, they make reference to the fact that there are other countries that have abolished all forms.

There is specific notation in the case — I believe it is to Sweden— in which they must have had some evidence about what the assault laws were like in Sweden. My understanding, from the comment that was made, is that perhaps their assault laws were much more circumscribed than ours.

Following up on the earlier comments and concerns about our very wide assault laws, perhaps where countries have said that they have abolished it in all forms in relation to corporal punishment, it may be that their domestic law would not catch these situations that we are discussing. I would take great care in using those types of statistics, and would strongly urge further consultation to find out the experiences of other countries with a view to ensure that we compare apples to apples and not apples to oranges.

Senator Di Nino: When I was doing my limited research on this— because I only got this yesterday and was not able to be here yesterday because of a commitment to another committee — it struck me that I have heard very little of the impact that this will have on society if it is removed.

I have been involved with scouting for many years. When we changed certain laws dealing with sexual assault, I think it was, we had a huge drop in the number of volunteers in the scouting movement. That has continued generally across the country.

Volunteers had a concern when we changed some of these laws, which put them, in effect, at risk of being charged — you do not need to be convicted, but a charge of this nature is very serious. I have been involved directly or indirectly in all of these areas — camp counsellor, church groups, scouts and guides, children's daycare centres. Obviously, what we are talking about here are parents and teachers, but this would also capture those other individuals that are dealing with children. Is that correct?

Mr.Lapowich: Here are a couple of points in relation to this. I will keep it within the narrow confines of section43 and its purpose. It is only for parents, teachers and those who have been determined in law to be, in effect, the exact same as a parent: a step-parent or a primary caregiver.

There was some disagreement in the Supreme Court of Canada in its decision. In fact, one of the dissenters — who dissented in part — would actually leave section43 in in relation to parents but would take it out in relation to teachers. That is on the basis that there is some qualitative difference between the two.

Having said that, section43 is not designed to catch the type of "chill'' that you talk about when rules are changed with respect to people volunteering and being in a position of trust vis-à-vis children, or anyone else for that matter. Therefore, it is a valid concern and consideration. I do not know that it has any application to whether section43 should be repealed.

However, given my criminal law background and defending accused people, the point is well-taken. We deal with that on a regular basis. The damage to our clients can be done by the simple charge itself, especially if it is publicized. People always remember the front-page article about being charged with sexual assault. No one remembers an acquittal two years down the road after a trial.

Senator Di Nino: That is a stigma that one carries for the rest of one's life.

Mr.Lapowich: The point is well-taken, but, again, I do not know that it has applicability to the discussion of repealing section43.

Senator Di Nino: This reasonable correction or defence in section43 does not apply to these other individuals; or does it?

Mr.Lapowich: No, it is limited to parents, teachers and those who are in effect parents.

Senator Milne: Mr.Lapowich, you said that children should not be regarded as second-class citizens or as mini- adults. However, how do you compute that with the fact that the Council of Europe has set up the Convention on the Rights of the Child to which Canada has agreed and has a deadline to enact. As Senator Merchant pointed out, 18 countries in Europe have banned this type of action. That includes Great Britain, where they also have a common law from which our common law derives.

I believe that the de minimis defence of common law would apply here as well as it does there. Why does it work there and not here?

Mr.Lapowich: I will answer your question in a couple of ways without being evasive. First, I do not pretend to know exactly what the law is in Great Britain in relation to their assault laws. We share historical roots in the common law, and they may have the same defences in common law as we do. I do not know how their specific domestic law has been interpreted by their courts and whether there are legislative differences. That is something I would have to look into and may be more appropriate for someone else.

Having said that, and in relation to taking our obligations seriously under international treaties and conventions signed on to, I would point out that the Supreme Court of Canada dealt with that in the 2004 decision, the majority decision by Chief Justice McLachlin. They specifically referred to all of those treaties and conventions.

While I understand there is a deadline of April 2009 for us to enact legislation that protects children and sets it all out, Chief Justice McLachlin found that our current legislation addresses that. Also, this is not something that we are missing the boat on or will be late on. We will not be behind the 18 countries in that regard. You have to be careful to compare the systems in totality to know what they do in relation to assault.

Chief Justice McLachlin clearly set out and referred to the conventions and language required. Not only did she find that, perhaps, we were — and that was not what she was deciding — holding up our end of the bargain, so to speak, in relation to international treaties but also that those treaties that we are part of and signed on to are part of the analysis of section43 by a judge determining what is a reasonable use of force.

Those things that are explicitly set out and banned by international treaty then provide a judge additional guidance in determining what is appropriate force.

Senator Milne: I wonder then, why New Zealand has signed on to this and has banned this type of punishment of children, when their system also derives from the British common law.

Mr.Lapowich: I am not familiar with the New Zealand system. I would be careful, however, and as lawyers, we try to be precise with language. I want to be clear today: I am not advocating punishment and abuse for the sake of punishment. One of the important distinguishing features — and Canada has recognized this — is that part of this deals with the motive behind the use of force.

The Supreme Court of Canada and Chief Justice McLachlin were very clear in setting out the guidelines. Punishment for punishment's sake, out of anger, with no corrective value, not out of love or trying to foster the appropriate development, discipline, respect for self and others and all those things we want our children to do — and we must have a measure of discipline to do that — is not permissible. We have to be careful not to allow this to be used as shield. The person who comes home after a bad day and uses their child spilling milk as an excuse to whack their child is not caught by section43 and should not be, in my respectful submission.

When we talk about punishment for punishment's sake, we have to look at whether the motive — a factor with which the cases and judges have struggled — is to correct something for the valid purpose of safety, security and the proper environment for a child and not for punishment's sake in which case that is permissible. It is permissible not only under our law but would conform to international standards, as well.

Senator Milne: I did not want to use a personal anecdote for this. However, I recall driving along a multi-lane highway when my young, two-year-old son beside me — before the days of seat belts — opened the car door. I grabbed him and managed to pull the car off the highway. I marched around the car, yanked him out of the car and spanked him there on the side of the highway. Would I have been charged?

Senator Andreychuk: You should have been. Spanking is corporal punishment.

Senator Milne: I am on record, and it is something I deeply regret. However, I tell you, he never did it again.

Mr.Lapowich: Can I give you my business card? If you get a phone call tonight, my first piece of advice is that you have the right to remain silent. Do not speak to the police. Give me a call, and let me handle it.

Senator Mercer: After that defence, you have given up.

The Chair: The UN Committee on the Rights of the Child has repeatedly said that Canada should repeal section43. Their business is to examine the implications of laws such as this. It usually amounts to a pretty good case in its defence when it is under attack. I believe the second report from that committee came after the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) case decision — I am not sure, but I think it did.

Is it not incumbent upon us as a country to abide by the international undertakings that we have made and to accept what amounts to the instruction from bodies that we have said that we will support and abide by?

Mr.Lapowich: We do. I certainly believe it is incumbent upon us. That is the point of entering into treaties and conventions. Iam not familiar with the specific recommendation and the timing of the report. I would have to either look into that further or defer answering that question. I do not mean to dodge it.

To return back to my previous point: Section43, as drafted, has caused concern, and has been obviously the history of much debate, as interpreted by our courts. It is my belief that it would conform to international norms in relation to the protection of children.

In the situation at the side of the road, in the story you just related to us, where you spank your child once in your lifetime and you regret it, you are otherwise a good parent. Some force needs to be asserted when you have an unruly child, even if that child is in the time-out chair. I may decide that I do not want to strike my child because I think that is the right thing and that violence is wrong, inside and outside the house. I do not want to strike, slap or punch my child. However, tools are still necessary for corrective purposes. Even if a child leaves a time-out chair, one has to restrain them, which involves a minimal use of force.

The law as set out by the Supreme Court of Canada would, in my respectful submission, satisfy the obligations not only domestically in the debate that we are having here but also on an international level. I cannot imagine that some of these countries have gone as far as to say that in those situations any force of any degree, in any situation, at any time is inappropriate.

Senator Milne: If the Supreme Court ruling by Chief Justice McLachlin covers all these situations, then there is no impediment whatsoever for Canada to sign on to the UN Convention on the Rights of the Child right now.

Mr.Lapowich: I am not sure about that. I am not an international law expert.

In reviewing the domestic case law, the Supreme Court of Canada and seeing how Chief Justice McLachlin has used the international treaties, I cannot imagine that we would be in violation of those treaties. It strikes me that it was dealt with by the majority decision.

Senator Baker: Senator Andreychuk has spent considerable time over the last three years examining how to put the UN Convention on the Rights of the Child into domestic law in Canada. She has had extreme difficulty with it. I was with the committee when we went to Europe. We discovered that only one country in the world has it incorporated into domestic law. It is Norway.

Senator Andreychuk: Yes. Sweden has not.

Senator Baker: I wish to make that point. We have the expert in the committee here in the person of Justice Andreychuk, who has done a marvellous job of trying to figure out how to put into Canadian domestic law the UN Convention on the Rights of the Child.

I am sorry, but I do not think the committee has found a way to do it.

The Chair: I also served on the committee at that time, and it did recommend repealing section43 with a grace period for very intensive educational and other programs to prepare the way.

My next question concerns testimony from a witness on a preceding version of this bill, an identical bill, but this committee was empowered to take on board evidence given to committees that had previously studied this bill. This witness was Cheryl Milne, staff counsel to Justice for Children and Youth. She was addressing the argument that there will not be adequate defences, that there will only be necessity and de minimis available as defences if section43 is repealed. She said that there were other defences available. She said that the defences currently set out in the Criminal Code enable people to use force in the following situations: to prevent the commission of offences in section27; for self-defence in section34; preventing assaults against others in section37; and in the defence of property in section38.

Do you agree that those defences would be available?

Mr.Lapowich: No, not in some of the situations that we are discussing here. The Supreme Court of Canada did not deal with that in the 2004 decision. They referred to the often-cited ones and those that would have the most applicability, those of necessity and de minimis. Depending on whose viewpoint you use, it may be that those defences may be available. In our respectful submission, however, they would not be available in many situations. That is the danger that you run into when you change the Criminal Code. If you repeal section43, you run that risk.

Self-defence, defence of others and defence of property would not have applicability to many of the situations that we are discussing here.

Senator Joyal: My question is along the lines of the recommendation of the Standing Senate Committee on Human Rights that was released in April 2007. The committee recommended a repeal of section43 by April 2009, hence they were providing some time. However, the question of the chair alluded to the most important element, which is the recommendation on page71 of the report, which states the following:

Calling on the Department of Justice to undertake an analysis of whether existing common law defences — such as necessity and the de minimis defence — should be made expressly available to persons charged with assault against a child.

The way I interpret this recommendation is that they imply that the common law defence should be made expressly available. We would have to amend section266 of the Criminal Code to provide for that defence in the case of the restraint of a child. The committee's recommendation recognized an existing problem, if we remove section43, that has not been solved. That is the way I read it, though I may be totally wrong.

Mr.Lapowich: I would tend to agree with you on that.

Senator Joyal: Essentially, the bill says "repeal,'' period. If we repeal section43, then I have a concern about falling back on section266. It would have to be interpreted in order to address cases such as the R. v. Swan case. I do not know if you are familiar with the case.

Mr.Lapowich: I am senator, yes.

Senator Joyal: It seems that there is a void if we repeal section43. How do we fill that void in a way that we serve part of the objective that the sponsor of the bill is seeking in repealing section43 while, on the other hand, not creating other problems that we have not contemplated and for which we have not offered some element of solution within the bill?

Mr.Lapowich: I agree completely. In my opening statement and throughout my responses, I have indicated that the removal of section43 does leave a void. The sections dealing with assault are very broad and would catch that broad range of conduct. The R. v. Swan case is a perfect example.

There are perhaps other ones that we can think of. We could sit around for a long time together and not be able to contemplate all those situations. Therein lies the problem with repealing section43 and then trying to replace it with something that works better.

I do not want to repeat myself too often, but CCCDL, by saying that we should not repeal section43, in no way condones violence against children. Mr. Trudell was here recently on the suicide bombing bill and took the position that, in certain circumstances, the criminal justice system, the Criminal Code and our domestic criminal law, serves an educative function. In this particular situation, removing a legislative defence that is currently available in situations that we feel it should be available is not appropriate. Some of the other work of the committee that has been alluded to, and that I am not privy to, indicated that important things can be done in terms of other legislation that will satisfy international conventions that may apply to us in terms of ensuring that children are protected. However, it is our position that we do not think repealing section43 is the way to do it. Trying to come up with new wording or now changing section266 or adding an entirely new section is an unnecessary step. Leaving section43 in there as it is currently interpreted by our Supreme Court of Canada, and as it has been upheld to be constitutional in the situations in which it is available, is a perfectly good way to deal with the problem. I say that we are not in violation of international conventions in this regard, although I am not an expert in that area.

Senator Joyal: Thank you for that answer.

Your recommendation calls on the Department of Justice Canada to undertake an analysis of whether existing common law defences should be made expressly available because there is a doubt that they are available, as I read this. I was not there. Senator Andreychuk and Senator Fraser were part of that discussion. It seems to me that the committee, when they drafted that recommendation, realized that there were situations where those defences should be made available to address some situation that existed. Before voting on the bill, we should hear the conclusion of that analysis about whether or not the defence is available and in which circumstance it is available. We would then know how to address the point raised in terms of the existing defence, according to the jurisprudence that stands at the time we are talking.

Mr.Lapowich: As I discussed earlier — and you were not here for this part — one of my positions, so that you are clear on where we are coming from, is that there would be gaps. This does presume gaps in the common law defences to which they referred, namely, necessity and de minimis.

Having said that, I would not want to say that, in the past day or so, since being invited to come here, I have done an exhaustive review. This is dealt with by the Supreme Court of Canada decision, and Chief Justice McLachlin discusses the sense that there would be a gap that is not filled by those common law defences and that they are not adequate to address many of the concerns that have been raised and some of the conduct that would be permissible by the use of section43.

Senator Joyal: Thank you for those points. That helps us understand the implications of removing one section of the code and what you do in another section of the code when you do that. You are a professional in that.

Mr.Lapowich: Many unintended consequences will certainly flow. Our position on criminal law is always, "If it ain't broke, don't fix it.'' You have to be careful of what you do when you start to play with the Criminal Code sections because there is interplay there.

Senator Andreychuk: The Human Rights Committee was just that, the Human Rights Committee. It was very conscious of the fact that we had a Standing Senate Committee on Legal and Constitutional Affairs and that we were not sitting in the Human Rights Committee with any expertise or particular attention to the law per se. We were concerned about the human rights law. During the course of our study, the corporal punishment issue was raised. We found some unanimity as a committee that we were not in favour of corporal punishment. The discussion was around corporal punishment. During the course of that study, corporal punishment and section43 became one and the same, and addressing section43 was addressing corporal punishment. That is how it was done in the international forum.

However, at a later stage, it was pointed out by several witnesses in reflection that section43, while predominantly understood to be about corporal punishment, had some other aspects in it, that is, the defences that are not just acknowledging that you can use corporal punishment. If you take out "corporal punishment'' there was a residual there.

There was also some discussion about the defences. We were not spending time on that because our study had gone on for some time — and neither were the experts. The natural place to look for it was the Department of Justice. The Legal Committee had not done any studies and was over laden with legislation, or we might have suggested that the Legal Committee look at it. Hence, the repeal of section43 is in the context of all of the text that talks about corporal punishment, but it then says, "Wait, there is a problem with defences for parents and for the benefit of the child.''

Interestingly, in our documents, we should have the New Zealand experience. As we were studying the bill last time in the human rights area, New Zealand was abolishing corporal punishment. Within its parliamentary precincts, they, as we, were adamant to get rid of corporal punishment to comply with international law, but also because they wanted to do so. However, parliamentarians started to see the problem and started to include exceptions to the law. They put defences by what a committee could put in. There is now a discussion of whether that is the appropriate way to do it. If I can think of an example such as the R. v. Swan case, that will be an exception. If you can think of one, that will be an exception. We should circulate that there is a qualifier in the New Zealand law, as we have heard there is in Sweden's, and I would suggest it exists in all those other 18 countries. I do not think we have done the search.

Senator Baker was correct. The comparative analysis that we wanted to do was how other countries implemented the convention into the law. We had been told that Sweden was the example. We went to Sweden and found out they had not implemented it into law, but, to our surprise, Norway had — an initiation, by the way, of parliamentarians.

The Chair: Did you have a question?

Senator Andreychuk: Yes, I did. As a lawyer, you are approached on cases when there are charges. Is that how you have come at this, namely, when you have a case, what are the defences, or have you looked at it in a broader way?

Mr.Lapowich: In terms of my testimony today?

Senator Andreychuk: Yes.

Mr.Lapowich: Both apply; I am trying to help out but not just wearing the hat of a criminal defence lawyer, so certainly all defences available to our clients is what we want. However, that is why I reiterated that we are certainly not standing for violence against children. It is with that broader lens.

Having said that, in terms of dealing with these cases, that is the way one would approach it. We would look at several factors when someone was charged with this type of offence. One of the first things would be to sit down with the client and discuss the details and find out whether or not there was a defence there. This takes away one of the tools in your arsenal, certainly, but my comments are not just for strategic reasons as defence counsel. We think there are good policy, legal and practical reasons, and the gap that we talked about filled by section43 should remain.

Senator Baker: I have a very short question, as well as an addition to the points made by Senator Andreychuk. Norway did it by incorporating recognition of the convention in their charter, which is comparable to our Canadian Charter of Rights and Freedoms. They added a sentence that said that the provisions of the United Nations Convention on the Rights of the Child shall be respected in Norwegian law. They did not do it the way we did it with respect to the stealing of children between boundaries, where we incorporated it into our provincial law as it deals with children.

The problem with the applicability of the existing law in section265 and section266 is not only the touching but also the mental element of the recipient of the alleged offence — that is, that the child in this case would reasonably believe that the person had the power by gesture to enact an assault — is that it would present all manner of problems when we have teachers who are in an authoritative position to enact such punishment. It would lead to considerable difficulty in defending someone who is so charged if it is the mental element of the alleged victim that is an essential element of paragraph265(1)(b) of the Criminal Code, which it is.

Mr.Lapowich: I would agree. It is problematic. Those sections are broad, and they have been interpreted that way.

The Chair: For those senators who are interested, I now have, again, the text of the New Zealand provision. Is anyone interested in it? The Crimes (Substituted Section59) Amendment Act 2007, subsection59(2) says, "Nothing in subsection(1) or in any rule of common law justifies the use of force for the purpose of correction.'' Subsection59(1) says:

Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

(a) preventing or minimizing harm to the child or another person; or

(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or

(c) preventing the child from engaging or continuing to engage in offensive behaviour; or

(d) performing the normal daily tasks that are incidental to good care and parenting.

I have always found paragraph(c) to be odd. There is also a catchall phrase reaffirming that the police have the discretion not to prosecute in minor cases. That is for your information only.

Senator Milne: I have been reading the Supreme Court decision.

The Chair: The Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) case?

Senator Milne: Yes, the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) case of 2004. Onpage5, the second paragraph, it states:

Since s. 43 is unconstitutionally vague, it cannot pass the "prescribed by law'' requirement in s. 1 of the Charter or the minimal impairment stage of the Oakes test and accordingly cannot be saved under that section. Striking down the provision is the most appropriate remedy, as Parliament is best equipped to reconsider this vague and controversial provision. Striking down s. 43 will not expose parents and persons standing in the place of parents to the blunt instrument of the criminal law for every minor instance of technical assault. The common law defences of necessity and de minimis adequately protect parents and teachers from excusable and/or trivial conduct.

The Chair: That is Justice Arbour's dissenting opinion?

Senator Milne: Yes.

Senator Baker: No, that is a summary of the dissenting opinion, which is not the dissenting opinion.

The Chair: Thank you for the correction. The key point I was trying to make was that it was from a dissenting opinion.

Senator Baker: It was from someone's dissenting opinion.

Mr.Lapowich: That is a good point that Senator Baker raises. We must be careful about using head notes or summaries of cases. In the R. v. Swan case, one of the difficulties may be that the judge on appeal indicated that the judge may have looked at the summary as opposed to the full text and the hundreds of paragraphs. Again, someone's interpretation of boiling hundreds of paragraphs down to a couple of chunks may be problematic.

Senator Merchant: It was mentioned yesterday that this bill has come before maybe even this committee in a previous incarnation and was passed by the committee. I gather that was before the Supreme Court decision?

The Chair: No, this committee studied the bill, but I believe that Parliament was either dissolved or prorogued before it reached the clause-by-clause stage. The Human Rights Committee adopted the bill without amendment about a year ago.

Senator Merchant: If it was a year ago, that was after the Supreme Court decision.

The Chair: Yes, that is correct. It was on division. It was after this committee's earlier study of the bill. I stand to be corrected on this, but I believe that there had been a certain amendment brought to the bill to meet some of the problems raised in this committee. That involved the delay built in before it took effect to allow precisely for the type of study and public education that all agreed, including the Human Rights Committee, would be necessary. This bill has a one-year delay period built into it. That was put in to satisfy some of the concerns raised in this committee. It was already in the bill when it came to the Human Rights Committee.

Senator Merchant: Thank you for that clarification.

Senator Joyal: I wish to come back, Mr.Lapowich, to the recommendation that I read. The recommendation is asking the Department of Justice to undertake an analysis of whether or not existing common law defences, such as necessity and de minimis, should be expressly available. If the committee says "such as'' it means that there would be others.

The Chair: Including those embedded in section43.

Senator Joyal: What are the other defences that should be included?

Mr.Lapowich: There was a discussion earlier and Madam Chair put this to a previous witness who testified to say that perhaps other defences such as self-defence should be included — those are not necessarily common law defences; some of them are actually prescribed in the Criminal Code. This refers back to how to practically deal with the issue and whether you need to do what the recommendation suggests, or whether the current situation addresses it better by section43 and the case law that interprets it.

Listening to what New Zealand has done, that recommendation would suggest repealing whatever defences may be available in current legislation and domestic law and then trying to set out, in a codified way, the guidelines to deal with when the defence should be available for any use of force. What was read in relation to the New Zealand law may become quite problematic in that when you redraft, you are trying to include all of those things that you can think of now and, hopefully, those that can be caught down the road, and you may miss something.

One of the justices in the Supreme Court of Canada decision — and Senator Milne mentioned that part from the head note — Justice Arbour, found that it was impermissibly vague. From our perspective, part of why section43 of the Criminal Code works is that it is not impermissibly vague. It is drafted such that it will take into consideration that, over time, society norms will change. That which becomes acceptable changes.

A multitude of circumstances go into each and every one of these cases, including the child's age and development level, and it would be an effort in futility try to draft something to cover all of those. However, if they leave them somewhat vague — not impermissibly vague — then our courts will be tasked with interpreting what they are and what is reasonable in a given circumstance.

Part of the discussion at the Supreme Court of Canada was around the difficulty of interpreting reasonableness. Chief Justice McLachlin, in her decision, talks about that being a concept that we are familiar with in criminal law, and it is used all the time. We struggle with the vagueness of it, but it is interpreted on a daily basis. With respect to the decisions of the police to lay charges in the first place, police need to have reasonable and probable grounds to lay a charge. Case law has developed to give them guidance in that regard.

Senator Joyal: Thank you for your answer. It touches some of the points I want to make.

If we are to provide defences such as necessity and de minimis, the defences we are contemplating should be covering what Chief Justice McLachlin said in her decision in the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) case at page41, paragraph59:

But s. 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances.

In fact, the defences we provide should cover that, to restate those points. That is where we would prevent the assault section from being used without the proper capacity to in fact reintroduce in those defences exactly what the limit of section43 is.

Mr.Lapowich: My response would be that you do not need to do that. You do not need to legislate. Again, there is the law of unintended consequences. That is exactly how our Supreme Court of Canada has circumscribed the use of section43.

Senator Joyal: If we abolish section43 of the Criminal Code, as this bill proposes, we should provide that in section266 those elements that circumscribe section43 would be available under section266 to prevent section266 being used contrary to the purpose. It is convoluted, but I think you understand my point.

Mr.Lapowich: That gets back to my point that we ought not repeal section43, and that Bill S-209 should not pass.

Senator Joyal: That is your point, but I am trying to wrestle with the recommendations of the human rights report. We come back to the zero point on this.

Senator Andreychuk: The Human Rights Committee was not at the Legal and Constitutional Affairs Committee. They were responding to what they were told, that there were common law defences and other adequate Criminal Code sections. However, they signaled a warning that repealing has that potential problem, and they said that they would do a study to find out what it is. We may have put it in the wrong place, and perhaps the Standing Senate Committee on Legal and Constitutional Affairs should have done the study. We did not do it; the signal is there, and it is an issue, however badly framed the paragraph may be.

Senator Joyal: I will rephrase the question in a different manner then.

Do the two defences of necessity and de minimis cover all those points mentioned in section43?

Mr.Lapowich: No, they do not.

Senator Joyal: That is a very important answer because we have a challenge to find a way out of this.

Mr.Lapowich: Just to be specific about that, Chief Justice McLachlin deals with that in the decision as well. For your reference, that would be paragraph44 in her decision. There were dissenting opinions. In writing for the majority, Chief Justice McLachlin was able to see the decision of Justice Arbour to address some of those concerns as to what their disagreement centered on.

The bottom of the paragraph indicates:

Finally, Arbour J. argues that parents who face criminal charges as a result of corrective force will be able to rely on the defences of necessity and "de minimus.'' The defence of necessity, I agree, is available, but only in situations where corrective force is not an issue, like saving a child from imminent danger. As for the defence of de minimus, it is equally or more vague and difficult in application than the reasonableness defence offered by s. 43.

That has been dealt with by her, and she explicitly says that they do not think it is covered. That is the majority decision.

Senator Joyal: That helps in understanding the point with which we have to wrestle. The Human Rights Committee has identified a real issue. Senator Andreychuk feels very proud that even though the committee did not want to investigate this, it identified the problem clearly.

Senator Andreychuk: In fairness to the committee, we were analyzing the convention and very concerned about corporal punishment.

The Chair: We are now covering ground that has been covered several times this morning.

Senator Andreychuk: We are wrestling with it.

The Chair: I want to step back and look at section43 as it stands from the point of view of its opponents, perhaps. It has always seemed to me, but I would like your comments, that the problematic words in section43 are "by way of correction'' — using force by way of correction; not by way of restraint. Everyone agrees, I think, that in the real world forcible restraint is sometimes necessary, and often the younger the child the more necessary — not always, but often. Correction means punishment.

Senator Baker: Does it?

Mr.Lapowich: Let me try to address that. You raised this in yesterday's meeting, and I have had a chance to think about it.

Because this is such a complex issue, Parliament struggled with what would be the appropriate language to put in that section; they settled on "correction.'' We talk about correcting behaviour, meaning correction as in guidance as opposed to punishment. It refers back to what I think is clear from the case law: force of any type, violence of any type that is done punitively, without positive ramifications. Again, this takes us back to motive, which is corrective guiding of the child during his or her development to teach appropriate behaviour so that the person can function as a healthy adult and have good relationships. "Corrective'' is the word they have settled on, for better or for worse. The guidance we now have from the case law is clear that it is not just about punishment. That is why I went back earlier and my comments were along those lines. The previous committee talked about abolishing corporal punishment, and you hear again about international conventions and what other countries have done.

I am not an international expert, but it would strike me that parenting in Norway, Sweden and wherever else in the world is the same as parenting here, and that in each of those jurisdictions something similar to this would exist, whether in common law or codified, to deal with these situations. It appears on a certain level that most of us in this room agree — and it is often hard for us to do on these issues — that there are these areas that should not be covered by the criminal law, or should not intrude into either family life or the education system.

The Chair: That is why the New Zealand example is so interesting. While they did struggle, as Senator Andreychuk has aptly noted, with how to phrase the necessary exceptions, they also said flatly that you cannot use it for correction.

Mr.Lapowich: That is right. Again, it gets into how to interpret "correction.'' The Senate has to decide, and other committees may decide, on broader policy considerations and such. For example, what is the most appropriate forum to send the message? A couple of greater policy issues are happening now, and, again, these are all laudable. It is incumbent on us and our country to send the educational message to communities and provide resources for parents about these matters so that they understand; not to mention all the studies referred to yesterday about how violence in the home leads to violence down the road. Certainly, as criminal defence counsel, other than wanting to have perpetual business, we do not want to see 16- to 19-year-old people come to us because they are now involved in the criminal justice system as a result of what happened to them as children in their homes.

However, having said that, it is our respectful submission that this is not the appropriate tool for you to use to meet the international conventions, to show the world that we take this seriously and to educate the public about the real and pressing concerns about child abuse and violence against children. By doing so, you have unintended consequences. You are dealing with a specific, domestic statute that deals with a specific defence that the Supreme Court of Canada upheld as constitutional. It deals with issues that New Zealand, or whoever else, might struggle with in terms of trying to capture it in appropriate language. We would take the position that if that is how it is being interpreted, despite the fact that it was interpreted problematically in the past, which was acknowledged by the majority decision — and there are examples of cases that people might think were outrageous where the defence was successful — then that has been circumscribed and curtailed by the Supreme Court of Canada decision. On the narrow issue of whether you should repeal section43, it gets back to our basic premise on that.

Senator Joyal: If we would rephrase the term "by way of correction'' to imply the "elements of restraint,'' do you think that could work?

Mr.Lapowich: Again, you run into the same difficulty you have, perhaps, with "correction'' in what that captures. With respect to "restraint,'' the second you start to use new language and words that we think capture what we are hoping to capture in that grey area, you run the risk of missing sets of behaviour that would not be caught by "restraint.''

I am thinking off the top of my head because you have thrown a word at me, but I do not think "restraint'' would catch it all. Certainly, if there was to be a change of language, far more consultation would need to happen, in my respectful submission. That is what the committees do, and we appreciate the opportunity to be heard. However, you would want far more consultation with individuals about the effect of the precise language that you might use and whether it would capture all of those areas. We would urge extreme caution in that regard, and we go back to the first premise that we do not think it is necessary, given how the case law has interpreted section43.

Senator Joyal: I agree with you. As far as the word "correction'' is concerned, each one of us has a personal experience about correction. We have all been kids and teenagers, and we all know what "correction'' implies. We were educated during a time where "correction'' meant something.

The word "correction'' contains an element of punishment. While the word "restraint'' puts less emphasis on the punishment content of the concept of correction, I agree we cannot do that without evaluating it. I am trying to understand whether the objective pursued by the sponsor of the bill could be met through an amendment to section43, instead to remove from section43 what seems to be an umbrella for the use of unrestrained force — and the word "violence,'' of course, comes to mind at that point.

Mr.Lapowich: The problem is whether the word "restraint'' covers it all. With respect to discipline, and appropriate discipline, when we talk about removing a child from a classroom or certain actions parents take when disciplining, to say that there is no element of punishment would be wrong because there is an element. I think that is why they chose the word "correction.'' "Correction'' has an element of punishment to it but not for punishment's sake.

There is a difference between corporal punishment and being cruel, and all of the studies that have been referred to dispel the myth that fearing your parent is a way to foster respect. If you start to tinker with the language and change it from "correction'' to "restraint,'' then you may miss something. To go back a half century, we do not think people should be struck with belts and rulers and all of rest of those issues that existed back then. However, even in this day and age, there are still situations where parents need to discipline their children where some degree of force or punishment to correct the behaviour of the child is necessary. It is about not just punishment for punishment's sake but correcting behaviour, and the benefit of correcting the behaviour outweighs the minimal force and the problem you cause.

That is why "reasonableness'' catches it, and why it is a legal concept. Judges will struggle with it, but we have great faith that our judges in this country will be able to struggle with that issue. In the R. v. Swan case, was the amount of force used reasonable? Did it go beyond restraint, and was there an element of punishment? The girl in that case probably felt punished. She was at a party, she did not want to come home and she did not want to be thrown in the car, so there is the element of punishment there. However, the court recognized that the motive behind the actions was not punishment for punishment's sake. It was corrective in that they were trying to correct behaviour they felt was harmful to their daughter.

It boils down to a fine point. The current language, while any language will be problematic — and this, historically, has been problematic as interpreted by the Supreme Court of Canada and will be for the courts that will follow — is better than the alternative, which is to try to capture language that may turn out to have its own problems down the road.

This debate is important, and the committee's work is extremely important. We are grateful to be invited to weigh in on the issue. The debate itself is helpful, but when looking at the legal effect, and just the practical effect of removing it, it is not the proper way to get the message across.

The Chair: We thank you very much. It has been an extremely interesting session, and we have a lot to consider.

Mr.Lapowich: I very much appreciate that. Thank you.

The committee adjourned.