Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence for June 1, 2005
OTTAWA, Wednesday, June 1, 2005
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to study Bill S-21, to amend the Criminal Code (protection of children).
Senator Lise Bacon (Chairman) in the chair.
[Translation]
The Chairman: Today, we are studying Bill S-21, to amend the Criminal code (protection of children). Our first witness is our colleague Senator Céline Hervieux-Payette, who is sponsoring the bill. We will begin the discussion following your presentation. We will have around one hour for the entire matter, because we will have other witnesses after that. Welcome to our committee.
Honorable Céline Hervieux-Payette: Madam Chairman, it is an honor for me and I thank my colleagues for being here. I was going to say that it might be a female Senate committee for now, but I think that is actually a sign of our interest in children that brings us here together today.
This is my second time appearing before a parliamentary committee. The first time was over 20 years ago, when I was a parliamentary secretary, in relation to the Young Offenders Act, which was the reform of the Juvenile Delinquency Act. I had piloted that bill from start to drafting.
It was perhaps on the strength of that previous experience that I decided to table a bill to amend Section 43 of the Criminal Code. I would like to point out that this is the eighth time that such a bill has been tabled. Seven other courageous parliamentarians have attempted, before me, to amend this section of the Criminal Code.
I must say that I am doing this in all modesty, because if we did not go all the way the last seven times, what would make me think that this time, we can convince our colleagues and all parliamentarians on both sides to adopt this legislation?
I think that the current context of Canadian society and the government agenda, which has really focused on the protection of children, has a lot to do with it. I have colleagues who have spent a good part of their lives dealing with this, like Senator Landon Pearson, who does such a good job of representing us on international bodies dealing with children's issues.
It is certainly my background relating to childhood that brings me before you. I hope that each and everyone of us, with our backgrounds, experiences and the contribution of experts, will manage to do away with this defense, which currently, according to the experts, causes great harm to children.
I would just like to remind you that this section of the code dates back to 1892. So we will not be amending this provision at the speed of lightning; back then, prisoners were still being wiped.
Since then, corporal punishment for prisoners has been banned. The only corporal punishment that still exists today is spanking children. There is no other provision and no other law in Canada that allows this kind of interference with a child's physical integrity.
When this provision was enacted, the population of Canada was perhaps 4 million strong; there were probably a lot of people living in rural areas and the development of human sciences was in its early stages, being psychology, psychiatry, sociology or pediatric.
In fact, all of the human sciences have evolved in the past century, and this leads me to believe that today, we would be making a wise decision considering that this legislation is over 100 years old and that the sciences on human behavior, particularly when it comes to children, have greatly evolved.
I recall — it may not be the same in all provinces — in our teaching institutions, corporal punishment was widespread, and I do not need to go back to 1892. Corporal punishment existed in the schools, residential schools, colleges and orphanages, to such an extent that there were some quite notorious cases of violence against children. That is certainly not one of the crowning glories of our system.
I am here primarily in my capacity as a senator with our specific mandate, not as an expert in the field — although I have consulted extensively and tried to do my homework, because I have been working on this for a year — but as a representative of a minority group that has no public voice. The Committee on Banking, Trade and Commerce hears from bank representatives who do their lobbying and make representations without any problem, they have no trouble being heard. So far, I have to say that no group of children has come to make representations. As a senator, it is our duty to represent the voice of these children. If your committee wishes to hear them as witnesses, I would have no hesitation.
I am going to give you copies of a recent Statistic Canada study, of which the latest summary is dated February 2005 — I will comment on it along the way — as well as a document that is very well done, the Joint Statement on Physical Punishment of Children and Youth. It is a group of over 150 Canadian associations that endorses this document, and a survey done in 2003 by the Toronto Public Health which is equally relevant.
I already mentioned my role as parliamentary secretary in the preparation of the Youth Protection Act. Madam Chairman is perhaps more familiar with that, because we used to work together in Quebec City. It was an innovation in Canada. We were creating legislation that created a whole environment to protect children and institutions charged with using that legislation, which, I believe, was very beneficial to children in Quebec.
Some ten years later, on the strength of my experience and knowledge in the area of youth protection, I was asked to take part in the preparation of the Young Offenders Act. I was able to take part in its drafting and in its defense in the House as parliamentary secretary and at committee. At the time, together with senator Joyal, we enacted legislation that was innovative, that changed the fundamental concepts of a punitive enactment into a rehabilitative enactment that respected the rights of children and overall legislation that dated back to 1908. We are talking about legislation that was overhauled in the early 1980.
The drafting of the bill was relatively easy because it recommends that Section 43 be repealed; and its only other provision would be its coming into force one year later in order to facilitate the implementation of the act, and to undertake a vast education program.
Corrective measures to deal with children with problem behavior are extremely costly and difficult and require a lot of staff, and often, the results are not very good. Bill S-21 amends Section 43 of the Criminal Code and refers to prevention, that is, before the problems occur. You will see from the research that there are serious problems related to the corporal punishment of children, and if we do not react, things will get worse. We are recognizing a form of violence in society.
Statistics Canada has produced a study conducted over a number of years with a scientific sample of 2,000 children across Canada with all of the required skills and expertise. It would be useful for the committee to invite those people to appear before the committee, because they could give you a lot more information.
If we do a quick overview, the study showed that children, age two to three, living in an environment of corporal punishment displayed aggressive behavior 39 per cent higher than children living in an environment where the correction was not physical and where attempts were made at convincing the child to behave differently.
However, these same children were monitored for a further six years, and in 2000, when they were no longer two or three years old, but eight or nine, 83 per cent displayed more aggressive behaviour. This difference is very significant. The methodology is explained in the study. Parents were provided with support during this study and were encouraged to change their behaviour towards their children; when parental behaviour changed, the level of aggressiveness displayed by their children was significantly reduced.
It is important to note that the economic status of the family bears no influence on the level of aggressiveness displayed by children who have been subjected to corporal punishment.
I would like to draw your attention to the sociological context in Quebec. I am sure that we all recall the reduction in the number of lives lost when the legislation was amended to make wearing a car seat belt mandatory. The change was dramatic. People were not always overly enthusiastic about the changes, but are today reaping the benefit.
Sweden has shown itself to be an avant-garde country in many areas, particularly with regard to social issues. In 1979, Sweden passed legislation which quite simply prohibited corporal punishment. The ramifications of this legislation, as recorded in 1995, can be summarized as follows: juvenile delinquence declined by 21 per cent between 1979 and 1995; the rate of suicide declined; the number of children placed in foster homes was reduced by 26 per cent; the use of drugs and alcohol by young people dropped; and the number of domestic violence lawsuits also declined. In other words, a change in attitude as to how we treat children, by no longer hitting them or subjecting them to other forms of corporal punishment, has been shown to have an extremely positive impact on children's development. In the Swedish case, the attitude change can be linked to an intensive awareness raising program, which involved organizing a media campaign and displaying posters all over the place.
As an aside, I would like to tell you about a conference I attended some time ago in Costa Rica. There was a huge billboard poster which carried the following message for parents: ``You must not strike your children. Corporal punishment is prohibited.'' This is something which I saw in a small country which, by the way, does not have the social infrastructure which Canada enjoys, but which has, nevertheless, understood that protecting children starts at home. In addition to this, the Costa Ricans provided parenting classes. These preparatory parenting courses are not long and are available even to those who attend university, as there is room for improvement amongst all socioeconomic groups in society.
On that note, I would like to commend an initiative undertaken by the Department of Justice and Health Canada which published a small booklet entitled Assistance Parents, which contains information about a toll-free number which provides parents across Canada with an anonymous, bilingual and free 24-hour service. This service provides assistance on all problems related to child rearing. If a parent is experiencing problems with an uncontrollable child, he or she can speak on the telephone to somebody who can provide reassurance and means of handling the crisis situation. It is support services for parents such as these which will help us to change the situation.
The title of the Swedish act is a little longer than mine and very much reflects the philosophy of the legislation: children have the right to protection, safety and education. Children must be respected as human beings; their individuality must be respected; and they must not be subjected to corporal punishment or humiliating treatment. The Swedish case provides us with a concrete example, it is not as if we are inventing something new, and when we look at the results which have been achieved, it is clear that they are not insignificant.
It has been argued that all legal systems are not identical. Criminal law is not practised in the same fashion in common law and non-common law countries. In some countries, these issues are dealt with by more social leaning laws; but I will come back to the legal issues surrounding the implementation of this legislation.
Regarding this, I have some more interesting news. On April 22, the Committee of Ministers of the Parliamentary Assembly of the Council of Europe adopted a new directive during its 924th meeting, it was directive 1666. The United Nations' Convention on the Rights of the Child was ratified by all member states, and they should set up national action plans to ensure it is fully enforced. Ministers in Europe are aware of the fact that this not only involves adopting a bill, but that it also requires companion measures.
The Committee of Ministers of the Council of Europe mentioned that article 17 of the European Social Charter, according to the European Committee of Social Rights, requires that all forms of violence against children be forbidden by law. Thus, all the ministers of the Council of Europe recommend that each country should amend its legislation. More than 12 countries have already enforced this prohibition.
The European Committee for Social Cohesion considers that the child is a human being in every respect, and that its individual rights are guaranteed by an abundance of international and national legislation. The legislation includes the obligation to protect children against abuse, including corporal punishment. The intent is clear. The ministers studied this specific matter. The committee supports the idea of equal legal protection for children.
During my research, I also discovered that the Civil Code had been amended in Quebec and that parents and children have been made equal before the law, which means that they cannot be treated in different ways. In the Criminal Code, parents and children do not have the same rights. In the Civil Code, there is a specific notion.
After mentioning what is happening in Europe as a whole — and in particular in the country that has had the longest experience — I do not propose developing an international model. I think that in America, we can develop a Canadian model.
Canadian public opinion has evolved in this respect. A study was carried out by Decima that gives us an idea of how each province would deal with section 43. All provinces agree that section 43 should be removed. In this case, experts will come to speak to you about these points, and if it is demonstrated that physical punishment does not yield the desired results, that it is inefficient and even harmful, 60 to 70 per cent of Canadians would say that section 43 must be rescinded. All the studies made by specialists in the field demonstrate this.
The corporal punishment of prisoners was abolished in 1979, and new measures were adopted in the Criminal Code for reducing family violence, and especially spousal abuse. I was here when the Criminal Code was amended to prevent the victim of violence — often the woman in the household — from withdrawing her complaint. In many cases, a few days afterward, the victim would be assaulted again, and made to withdraw her complaint. The Criminal Code now provides that when a complaint is lodged — and it does not necessarily have to be lodged by the victim — the entire legal process changes.
As for pedophilia, the list of offences committed against children over the Internet was recently changed. Many changes were made to protect children, but these are marginal thingsthat do not affect the child's bodily integrity. By removing article 43, we would bring back a climate of respect and trust among all the members of a family. I would argue that if the family is the basic element of society, then it is to the advantage of the entire population to forbid hitting children. This contributes to Canada's great mission to promote peace in the world. When this attitude is instilled at a very early age at home, it also affects the general attitude toward the rest of the planet.
One group that opposes the amendment to the Criminal Code is that of the fundamentalist Christians. Their experts base their opposition on the right to use corporal punishment. I have not read the Bible recently nor have I read the Book of Proverbs, but allow me to quote from chapter 23.
He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes (13:24).
In other words, if you hit your child it is because you love him. I have not seen very many studies from behavioural experts recently that corroborate this line from the Bible, which is more than 2,000 years old.
The second argument that those opposed to the amendment use centres around state intrusion in the home. At one time, in cases of domestic violence, the police did not want to intervene on the grounds that it was a family problem. So the Attorney General had to act. The police were provided with special training on intervening in cases of domestic violence. Action was therefore taken and there was intervention.
Opponents seem to use ideological grounds for which, 2,000 years later, there is no supporting evidence.
In terms of the department's position, allow me to refer to their own documents. I have done some research and I would like to share it with you. In summary, and for those of you who do not recall the contents of the document that was sent to you, the department's main arguments are the following. The government does not tolerate use of unreasonable force for the purposes of child correction. However, neither does it approve criminal sanctions for Canadian parents who use reasonable correction for their children while taking into account their needs and their interests.
Section 43 of the Criminal Code has been cited as a means of defence against accusations of assault. In the case of one's own children, that conduct would not constitute an offence. However, the same conduct used on a neighbour's child, for example, would be an offence and would have consequences. Section 43 will not apply when it is the neighbour's child. However, it is important to make that distinction.
The department goes as far as saying that the minister's position is that when one gives a spanking to an uncooperative child, when one is putting that child in a car seat or sending the child to his room, one could be found guilty of assault. I think that we have to trust the judgement of the police and of the judges in those cases.
On the one hand, the legislation clearly states that young children have to be safely strapped into a car seat when a vehicle is moving. Parents are obliged to ensure that. On the other hand, telling a child to calm down by gently sending him to his room or sitting him on a chair is not against the law. Rulings handed down under section 43, that exonerated parents who had struck their children several times, show that no judge went as far as the consequences mentioned earlier. In fact, I will quote some of Judge Dufour's statements about this a little later.
On the other hand, the department says that corporal punishment that causes children to suffer, or that would reasonably lead one to believe that those children will suffer, is not protected by section 43. I have some difficulty with that interpretation, because children's psychological suffering is not being recognized. There is no recognition of the fact that a child can be terrified and can suffer internally from being humiliated, struck, even lightly, but repeatedly, and by being told ``My child, I am beating you but I love you.'' I have some difficulty in understanding that reasoning. How can a child understand physical violence to be a proof of love on the part of his parents?
According to the department repealing Section 43 will have an effect on provincial governments. On that point, I contacted officials in the relevant Quebec Department to see how they dealt with a complaint of child assault. I was told there is a variety of steps. Police forces signed an agreement with the Department of Justice under which police officers in this case would not go before the courts to lodge a complaint in the usual way. The file is transferred to a department, to the office of the Attorney General, responsible for dealing with these matters. They analyze all of the circumstances and may even meet with the people involved and subsequently proceed to an investigation. Once the investigation by the Attorney General or his substitute is carried out, the police has the authority to file a complaint. Police officers will therefore not automatically file a complaint, as would be the case for other offences or assaults, where the system is triggered.
If the incident occurs in an institution for youth at risk, the process is even more rigorous, because in that case the child is a ward of the State. Not only will there be a meeting with the police, but Children's Aid, the Crown and a multidisciplinary committee will assess and decide whether charges should be laid and measures taken. In this case a person associated with one parent will be designated as guardian and will have to intervene.
In my opinion, this measure could be applied in all provinces. I do not see why the various attorneys general would not create a specific service to look at complaints of this nature and ensure there are not such abuses.
The minister wrote me last week and I will share with you the thrust of his letter. The department's official position is that the legislation reflects a fair balance between the interest of children, parents and those of society. I do not share that view. I do not believe it is in the interest of children to continue to be beaten, not in a reasonable manner, nor for their education. In 2005, I do not believe this is a way to remedy a difficult situation with children.
However, the minister maintains in his letter that the Supreme Court also found section 43 consistent with Canada's obligations under the United Nations Convention on the Rights of the Child. The United Nations do not agree with the department's position. The United Nations, on two occasions, denounced Canada as a country which ratified the Convention on the Rights of the Child but does not apply it and has not amended his legislation to prohibit corporal punishment.
The minister says that the government does not support spanking children, but nor does it approve of criminal sanctions against parents who correct their children in a reasonable manner, while taken their needs and interests into consideration.
In my opinion, we cannot both be in favour and against a proposal. No one in the field of social science and humanities is saying that corporal punishment is beneficial to a child. If you hear experts tell you so, I would like to hear it, because the vast majority of experts in the field say that this type of correction is not in the interest of the child.
As senator Cools stated, there is another argument to the effect that millions of Canadians could be subjected to criminal lawsuits. I will address this argument by referring to the law.
In a Supreme Court ruling, judge Arbour analyzed the word ``reasonable/. She stated that it is not a precise test which makes its interpretation random, subjective and discriminatory.
How does one reasonably strike a child? Who can be the judge of that? Normally, when there is legislation, especially in the Criminal Code, it must be precise, clear, and understood in the same way by all. I challenge anyone to come up with one single definition of the word ``reasonable'' among people of different ages, from different regions and religious backgrounds.
Judge Arbour claims that general means of defence are sufficient to preclude any frivolous complaints, especially given the fact that we can implement a system which would stop these complaints from going ahead.
She says that there is the de minimis defence, in other words the courts do not deal with trivial matters. Think of a case of a parent who loses patience with his child and, after having asked the child 20 times to do the same thing, the parent gets angry and strikes his child on the arm, the courts will not intervene. That is because generally, spanking a child means striking him on the buttocks.
The second defence is that of necessity. When a child is out of control, that he may injure himself or others, parents have a duty to intervene. That is part of parents' general defence.
We should remember — I have colleagues who are lawyers — that in criminal law the burden of proof remains very high. Intent must be proven beyond a reasonable doubt, et cetera. So, the burden of proof is such that the Attorney General will only go ahead if there are chances of success. There are enough cases before the courts; we are not going to bring millions of frivolous cases before the courts which would automatically be thrown out.
Madam Justice Deschamps refers to the right to equality. Earlier on, I mentioned that the Civil and Criminal codes are not on the same footing. In the Criminal Code, children are not treated on an equal footing.
However, she refers to the right to dignity. I think this is one of the major points referred to by almost all professionals working with children, and which we should bear in mind, I am referring to the humiliation of a child. When a child is hit and spanked, and he is told that it is for his own good, the end result is a lowered self-esteem. This leads to aggression, and confusion as to the message. The child, in the end, is difficult to control because, obviously, if it is done repetitively, it is because it does not work.
Generally, people do not complain for one spanking that took place over the course of their life. Normally, it is because something is done repetitively and if so, it is because it did not have the educational effect that corporal punishment is supposed to have.
In a majority ruling of the Supreme Court, section 43 was found to be valid. I am not challenging what the Supreme Court said, but I am simply stating that changes to legislation are within the purview of government and both chambers. When Parliament is dissatisfied with a Supreme Court ruling, it is up to us to act because it is part of our mandate as legislators.
I believe that in essence this bill aims to remind you of the fact that section 265 regarding assaults enacts as follows:
A person commits an assault when:
(a) without the consent of another person, he applies force intentionally to that person, directly or indirectly; ...
In general, children do not really consent to being hit. However, if you look at the punishment, it is either a criminal offence liable to imprisonment for a term of not more than five years, or a summary conviction offence.
We should remember however that parents who do use force with their children, and end up before the courts may, as was the case recently in British Columbia, end up with a very educational sentence.
Actually, in the case of a child who was physically corrected by his father, the father was told to write an article in the community newspaper — an ethnic community — to explain why children should not be struck. He was also asked to hold a dozen conferences in his community. He benefited from a suspended sentence, in other words he would not be incarcerated unless he breached the conditions set out by the judge. He probably got quite an education on these questions because the first time he had struck his child 100 times with a whip and the second time 300 times, because his son had skipped class.
It is possible to have educational sanctions which lead to behavioural change. In Sweden, the entirely country benefited from this.
This is why I urge you to simply pass this bill, to study it in depth, but also to do it from the heart because it is the future of our country which is at stake.
The Chairman: Thank your senator. I have a comment and a question. I would like to compare two schools of thought. They are always two seemingly irreconcilable schools of thought.
On the one hand there are the advocates of zero tolerance when it comes to corporal punishment. These people will simply like to see section 43 of the Criminal Code repealed. They also identify with the United Nations Convention on the Rights of the Child.
On the other hand, we have those who endorse a more traditional form of child education, whereby it may sometimes be necessary to resort to physical punishment to correct unacceptable behaviour. These people may also identify with international agreements signed in 1966 and 1976 which recognize parental responsibility and the importance of the family unit in terms of child education.
This second group has often prevailed, if we refer to the majority decision rendered by the Supreme Court in January 2004. There are analysts, as you know, who warned us of possible criminalization of family relationships. We mentioned it as well.
How would you respond to those who believe parents play a dominant role in child education and believe corporal punishment to be appropriate?
Senator Hervieux-Payette: I would like them to show me scientific proof. I believe it is important to look into all studies which have been carried out on the negative effects of corporal punishment. I have seen no conclusive studies demonstrating beneficial effects of corporal punishment.
There may be historical, ideological or religious reasons, indeed, but to say there is a scientific basis in the field of humanities and that researchers have proven that corporal punishment is beneficial to children, that is something I have never seen.
I did some research and also had the help of the Library of Parliament Research office which carried out two studies. I did not do everything on my own, because I needed a team and I do not have a department to support me. I like to take this opportunity to thank these people.
These two studies are available to my colleagues. I had them done with the intention of tabling this bill and before I tabled it. I did not write the bill and then do the studies. I had the research done and then I tabled the bill. All of this to say that it was not strictly ideological on my part. I believe it is scientific proof that human beings, when they are subjected to corporal punishment, suffer from harm and in the case of some children, irreparable harm. You will certainly be hearing from witnesses who will tell you about absolutely tragic situations.
As citizens, we must all strive to do our best. According to information that is often repeated in certain studies, children between the ages of three and six are the most likely to be subjected to physical punishment.
I do not think it is necessary to strike a child between the ages of three and six in order to make that child understand that he must not touch something, must not do something or must behave at the table. There are other ways of doing this. We now have more advanced education and behaviour modification methods. That is why I say that the education system is extremely important.
The Chairman: If I understand correctly, the interests of the child come before the role of the parents?
Senator Hervieux-Payette: Our future depends on our children. If the parents are protected, to the detriment of their children, over time, the situation will not be corrected, nor will society be improved in any way. Our firearms legislation was amended in order to reduce violence. Whatever society does to put an end to violence is something that affects every individual. Therefore, within the family, even though it is sacrosanct, respecting the children's dignity is just as important as respecting that of their parents.
[English]
Senator Pearson: I wish to thank you for doing the homework and for bringing Bill S-21 to us.
I have been involved with this subject since 1979. I was the vice chair of the international commission for the InternationalYear of the Child and we recommended the abolition of section 43. I support what you have said. I am one of the signatories to this joint statement on physical punishment, which also calls for the protection of children.
When we look at the interests of the child, it is not a problem for me that the child should not be struck. The challenge for me is dealing with some of our immigrant populations who arrive with different attitudes to corporal punishment.
Generally speaking, the good news is that in the generation since I had my children, most of the educated people I know do not use corporal punishment. However, we have entire sets of populations that are affected one way or the other and it is important that we ensure that the best interest of the child is well served by how we go about this. Taking a child away from a family that has been accused of punishing that child may, in the long run, do more harm than leaving the child with the parent and at the same time educating the parent.
I like what you were saying about what happens in Quebec and the various protocols that have been put in place. That was very useful testimony.
Do you think there is some way to strengthen that recommendation? Since you are a lawyer, have you looked at the other articles around section 43? Is there something that might be changed in some of the other articles that would give some comfort and would ensure that there is not inappropriate intrusion into some of these families?
Senator Hervieux-Payette: The question of education is really the priority. There is a large budget for daycare and to support families with children. We are not talking about the same order of magnitude of money; it will not happen and fall from heaven. People are not stupid. It is not a matter of having a university degree. Good common sense is not a quality found only in either the rich or the poor. Everyone with good common sense will understand a child can be harmed even by light spanking. Some psychiatrists say that is especially true when the father is hitting the daughters. Some people who are 50 years are old have never recovered from that.
Spanking heavily is an infraction. The concept of ``reasonable'' cannot be defined. I cannot tell you the definition of ``reasonable'' for the purposes of the Criminal Code. You have questioned the Minister of Justice and various counsel from his department have tried to define that. I have talked to lawyers and they say it is impossible.
Rather than using a definition of ``reasonable,'' I would prefer to err on the safe side, which is to say do not correct physically, punish physically, a child for education purposes; do not repeatedly spank a child. We are not talking about one-time events.
In Quebec, the last recourse is to take the child out of the house. That is only when the life and future of the child is in danger. They will provide services to the family. That is what they did in Sweden; they educated the parents. They offered parents courses and support. They saw much lower rates of delinquency, dropouts and alcoholism in the new generation. The benefits were much greater than the status quo.
The defence of de minimis and necessity are there. They have been used. They have some interpretation. Some people might argue — and I am not an expert in criminal law — these arewell-known concepts in law. You do not need to be a specialist in law to know that you have to prevent children from hitting each other severely and you have to intervene and use reasonable force in those circumstances. If your son is 11 years old and you are a young mother of five feet two inches, you may have a problem intervening. It is a matter of judgment, but physical correction is something that cannot have any kind of approval.
Senator Hubley: At what age does a child become an adult?
Senator Hervieux-Payette: The Supreme Court has said that the age group that you can continue to spank is between two and 12. One day before you are two and one day after you are 12 you cannot be spanked. No one in society can be touched but that group. These are the most vulnerable people in our society. It is strange that we would maintain the concept that we have had for many millennia. We are slow to move; 1892 is not last week.
Senator Hubley: It is also interesting that we have been able to move forward medically on conditions like PTSD. People who have been exposed to violence do suffer trauma. Although there is perhaps no physical manifestation of that, it has a great effect on them for many years afterwards. It seems to me that when we are dealing with children, we would have to assume that the same thing will apply to some extent and that there will be long-term problems from being the recipient of spankings or whatever. I also think that it presents a traumatic experience for the siblings or other children who have to view this or deal with it. It may, in the future, affect how they will treat other people. We are probably seeing bullying in schools now that is directly associated with some forms of corporal punishment that children have received elsewhere. Is that what you have found when looking at the younger age groups?
Senator Hervieux-Payette: The question of bullying is also of interest to me because I was the president of a school board for five years. We had 15,000 students. You have to look at the social conditions and you need some social workers. In such a large school board, we had specialists, and we also had psychologists helping us to deal with that. From what I gather, although I am not in that field any longer, it has increased, not decreased.
We have fewer children in our families. The average in Canada now is very low. You would assume that we would have more time and better time with the children and certainly less stress. If you raise five kids, your level of stress is greater than if you have one or two. It seems that we are living with problems. Let us deal with the parents and ensure that they know how to deal with these questions, whether it is the tantrum or whether it is that children are repeatedly doing things that parents do not want them to do. If they do it repeatedly, I would reiterate that it is because they have not understood, even if they were spanked.
There are now people who specialize in the science of changing the behaviour of children and all human beings. It was studied. We know what works and what does not work. We can give support. When you talk about the long-term problem, psychiatrists are the ones who can testify on that. I hope the committee will hear from these specialists. They see that this has existed through the lifetime of individuals. We see that with alcoholism and with many other behavioural problems of individuals. It comes from the previous generation. If you were spanked, you spank, and it goes on.
Madam Chairman, I spoke to some colleagues in the house. They said, ``Well, I have spanked, and I do not know if I can support the bill.'' I said, ``If you change your mind and if you decide to do it differently today, you are not condemning yourself. You are simply saying the science and evidence have now evolved.'' I am talking about people who are 50 years old.
Schools and religious orders, as a policy, were either spanking or hitting the pupils. It was part of the culture at the time, but we have evolved. Today, it is the law that in Quebec you cannot touch a student. Where we were 50 years ago and where we are today are very different.
Senator Hubley: Are hospitals still required to report any unusual injuries of children? Is that a policy?
Senator Hervieux-Payette: That is in place. Doctors have no choice but to report an incident. I spoke to people who are working with cases, especially nurses, of the shaken baby. This is a recent phenomenon. Until it was in the public eye, how many children were killed because of that? It is only today that it is in the public domain, people are talking about it and we have denounced that situation. That is how society corrects some of its past, negative behaviour.
As legislators, that is what we have to do. When we are ready to move ahead with a new approach, it is because we are mature enough to do it.
Senator Milne: I have to say I am probably one of these people who have evolved over the years. I am confessing. I spanked all three of my children once or twice, and I still remember it with shame because I was not spanked as a child.
I entirely agree with your bill. It is time that we stopped this sort of thing. However, what does concern me is the Criminal Code definition of ``assault'' as the intentional application of force without the consent of another person. I can well remember also picking up a screaming child who was getting into danger and carrying that child kicking and screaming into the house. I can see now, if this passes, a policeman walking by at the time and charging me. We seem to need something in between. I am not sure how to ensure that when parents or teachers are intervening for the safety of the child, that they will not be charged. Just removing section 43 does not give me that feeling of security.
Senator Hervieux-Payette: You are talking about what I referred to previously as the defence of necessity. You have a duty. It is the same for a teacher in the school yard. When two kids are fighting and hurting themselves, the adult has a duty there. There is an obligation to intervene.
We have to trust our legal system. We have one of the most enviable legal systems in the world. As was discussed with Senator Pearson, it is important to remember that we will have these guidelines for police and Attorneys General on how to deal with a complaint so that it will not go through like any other infraction but will have special treatment.
It is happening in Quebec and it is working. I did not read that in a book. I spoke to the people. I had an exchange with them, and I said, ``How do you deal with these matters?'' You need a system. The role at our level begins with an education campaign. It would serve the interests of the entire country to educate people on these matters and to say why we would not do it, that spanking is no longer acceptable, is not producing a good result and it is over. We will not allow it any more.
The signal we have now from the judgment of the Supreme Court, unfortunately, is like giving a licence to parents to continue to spank their children, even though we say we are not in favour of it. We say for educational purposes, in a reasonable manner, you can still hit children.
I will be unsatisfied until I have the evidence on the other side that spanking has produced a great result, including better education and people who have better behaviour and who are happier. I have not seen that. I have seen long- term damage to the individuals because they suffer from that when they are so young, mostly before six, before going to school. That is why I say we cannot allow this to continue. Most countries in Europe and most ministers agree. We are in the same club, I hope.
Senator Milne: I hope I am also. In Ontario, it is now the case that you cannot strike a child in school. Teachers are not allowed to strike a child. When I was on the Peel Board of Education, it was one of the rules that we brought in back in 1960.
I understand that this system is working very well in Quebec. Do any other provinces in Canada prohibit striking a child?
Senator Hervieux-Payette: No.
Senator Milne: Is Quebec the only one?
Senator Hervieux-Payette: Quebec does not say that. Since the word ``reasonable'' is not easy to define, when there is a complaint, it must be determined what is reasonable or unreasonable. You assess and make a judgment call at the beginning, before you start the process with the courts. There is now a process with guidelines.
Senator Milne: I understand that. Does that exist in any other province?
Senator Hervieux-Payette: I do not know. I am saying if it is feasible in Quebec, I do not see why these guidelines could not be used elsewhere. The children's aid society exists in every province. I have read about Yukon. You could pose that question to the Minister of Justice.
Senator Cools: Thank you for your work. You have obviously put a lot of work into this and that is commendable. In addition, you are causing the committee to wrap its mind around an important issue.
I would also like to begin by offering a little correction. I did not quite say what you said I said. I did not say that millions of people would be prosecuted. I said that we would expose millions of people to a risk of prosecution. The statements are quite different.
Senator Hervieux-Payette: I read it in French.
Senator Cools: Unfortunately, I did not check the French translation.
Many of these studies that you have cited can also be brought forward to point to other variables that produce positive results. For example, I worked in this business pretty closely. When I was in social services, if section 43 had been repealed then, I would have been in a position of having to cause 95 per cent of the client body that I was serving, single mothers particularly, to be prosecuted. I do not think that is useful, productive or enlightened.
Everyone could wholeheartedly agree that beating children is undesirable. I do not believe that a parent who slaps a child on the hand as a correction should face prosecution or the possibility of a prosecution.
I belong to that group of senators who laud the desired goal of ridding the world and the country of undesirable and violent behaviour. I would much prefer to see us proceed to this end by more educative mechanisms than punitive ones. I say that as a person who has worked quite extensively in the field of families and in the field of family violence.
I notice that you did not bring forward any of those statistics, the number of children who are — I will not say violated — physically hurt by single mothers. It is an extremely high number. It is a wide and huge debate and it is just beginning.
Perhaps I could put my first question. Over time, too, perhaps we could move on to many of the other issues that the senator raised in respect of the domestic violence programs. Many of those programs are failing miserably and taken over. There is a significant amount of controversy. We will get there in time.
Let us begin with section 43. Could Senator Hervieux-Payette tell us if she has information — if she does not have the information, I understand — on every year, or perhaps for the past year, how many prosecutions have occurred undersection 43 of the Criminal Code or how prevalent is the use of section 43 as a prosecutory tool?
Perhaps I can allow her to respond one at a time and I will proceed from there. In other words, how rampant is the use of this section? How often is it invoked? How often is information laid under this section?
Senator Hervieux-Payette: I do not know the exact answer. The Statistics Canada study is probably the most comprehensive. It has several hundred pages. I have given you a very small number of single mothers beating their children more than others.
What I took from the Statistics Canada study is that single mothers are normally not very wealthy, but they are not using violence against their children more than those who are wealthier or where there are two parents.
At the same time, I agree with you that education is an essential component of this measure. However, section 43 is a defence. You have to understand that if you look at the jurisprudence, the big concern to me is that people do not file complaints.
Prior to the recent judgment of the Supreme Court, you could almost do anything to children under 18 and you were getting away with quasi murder. Children were beaten, bleeding and having all sorts of injuries and the parents were acquitted. How would more charges be laid?
We have probably had more intervention in regard to shaken babies. Again, that is because the issue was raised; it is not because there are more babies being shaken. It is because now we say that is not acceptable and we know that children are being killed and severely treated.
I wish to underline the fact that slapping a child on the hand once is not referable to section 43. If you refer to the different elements that the Supreme Court has put in place, one slap is not enough. These acts must be repeated and must be done for education purposes and in a very cruel manner.
The example that comes from my childhood is, ``Wait until your father comes home; you will pay for it.''
Senator Milne: This hurts me more than it hurts you.
Senator Hervieux-Payette: The incident took place at 10:00 o'clock in the morning, but the sanction would arrive out of nowhere at 5:00 o'clock at night when father came back. That is what the article is all about, repeatedly being beaten and doing it in a very cool manner with the intention of educating. It is narrow.
Senator Cools: I understand the application. I was just wondering if you had any data on the number of cases and the number of prosecutions. You have just identified my problem. If this is repealed, then you will have that flood of prosecutions, as Senator Milne described.
Senator Hervieux-Payette: You can put the guidelines in place. We have guidelines in Quebec. It works well. It is not very complicated. There are people with knowledge who do a proper assessment of the situation. The rationale behind it is to protect the child. You will not act contrarily to the interest of the child by removing him from the family and sending the parents to jail. That is not the purpose of this. The purpose is to ensure that we never now give parents permission to hit their children for education purposes.
Senator Cools: I understand that, except the Criminal Code is not a tool of education. The Criminal Code is a tool of prosecution. We now use the title ``Criminal Code.'' It was adopted in 1892. Prior to that, it used to be the ``Penal Code.'' The Criminal Code is inherently punitive and coercive. You are not talking about a bill of rights for children or anything like that. You are talking about a Criminal Code and about the conditions under which criminal prosecutions can begin. To my mind, the repeal of section 43 will immediately invite a flood of prosecutions. It has to, because the nature of human beings is to abuse power.
Senator Hervieux-Payette: I am sorry, but that has not happened in places where they repealed it. There is no evidence that there was a flood. As I say, there are mechanisms in our society. We have Attorneys General who are applying the law with a good legal mind.
In the cases of drinking and alcohol, the sanctions in the Criminal Code have had a good educational effect. I can tell you that now that people are suffering the consequences of the code, we have reduced tremendously the number of accidents related to alcohol. The punishment had an educational effect.
In this case, the education of the child does not benefit from the spanking. That has never been proven, and that is why I say it does not work. Quite to the contrary, it is to the detriment of children. We have to look after the interests of the small people. They have no voice here.
Senator Cools: We all want to see children do well and prosper. I do not know anybody who believes children should not be well treated and well cared for. You do not have to work hard to convince anyone of that.
Senator Milne referred to herself as evolved. Now that we are all evolved, we have to remember that most of humanity is not yet evolved. Whether we like it or not, many of them have children. Some of them are perhaps more impatient, more coarse or more rough. We are talking about all those millions of people out there, what they call the great unwashed, whom we do not see and, quite frankly, most of us do not know very well. That is my concern.
You talk about some of these programs as though they are great successes. In my view, they are not. I can tell you that the zero tolerance policy on domestic violence produced a flood of false accusations and wrongful convictions. We have to balance it, because we are looking at other people. I do not think it is right for us to take a position that we are enlightened people and therefore all the people out there should be enlightened just like us, so we will use the Criminal Code to ensure that. That is my concern. I do not have that approach to the passing of statutes. I say this as a person who has worked extensively in these fields.
The case that Senator Milne has described is accurate. Even if it is a person with a child trying to prevent something bad from happening, we will now be in a situation where those individuals will be facing prosecution. I have no doubt about that. I have studied many of these instances of false accusations. They are there, and the potential is there. We cannot blind ourselves by saying that we have good Attorneys General, because many of these issues have not been researched.
For example, talking about the best interests of children, I did a lot of work on the phenomenon of false accusations of abuse in child custody issues. It was an epidemic. There was a plethora of them at a particular point. No Attorney General had wrapped their mind around that.
I do not think you can find this information so easily by making these assumptions. We have to understand that we are talking about people's lives, the millions of people that we do not know. You want to remove this because you do not want to see any child hurt, and that is laudable, but when you leave a vacuum in its place, something else will fill it. I would like you, if you could, to consider the possibility of us finding an in-between answer, where people will not be as exposed. I do not have that confidence that you have in the ``justice system'' as a result of the work I do. I see a lot of injustice.
Senator Hervieux-Payette: You have a right to your opinion. It is well known that we do not share the same view of the justice system. When I look at our system, I praise it. In general, I am very proud of the justice system in Canada. There might be some specific cases, but I do not see millions. We are dealing with a population of between 5 and 7 million children in our country. You are talking about the millions of parents.
I am saying that with a program of education and with the proper information and the time frame to repeal section 43 within a year, we have enough time to inform people about what is right and what is wrong, what they can do and what they cannot do. People are intelligent enough to understand that. That is why I see the benefits of it being implemented. There are some measures that have to be put forward.
I know that the ministry is not a great supporter. The parents are voting, and the children are not. As far as I am concerned, it is my duty to defend the rights of those who have no voice in the system.
Senator Cools: One thing about this debate that is always a little disturbing is that it always comes down to this person is for children and those ones are not. I do not think, with all due respect, senator, that you care any more about children than I do. The issue is not who cares about children and who does not. The issue is how does one arrive at the best treatment of children? I submit to you that this does not help the condition of children at all. Your proposal will not reduce serious maltreatment, which is the proper word for child abuse. It will not touch those people at all.
Senator Hervieux-Payette: The evidence, I submit, comes from the countries that have done it before us, and the statistics show a great reduction, even in the number of placements of children taken out of the family. That means that early intervention and the education have served the whole society, not just the children but also the parents and the community.
As far as I am concerned, I do not take the side of the children. I come here and I say they do not have a voice in the system. They are not part of the electorate. They will not be a big weight in the next election. It is part of our mandate to speak on behalf of our future citizens. If we are to respect them and respect the integrity of their person, as far as I am concerned, it is not by continuing to offer a defence that has never produced good results in terms of having children more educated because the parents have a right to say, ``I was spanking them for good educational purposes.'' It has never been proven to be a system that produces good results, quite the contrary. All the evidence is to the opposite and that the children are suffering. With this system of article 43, we are allowing children to suffer permanent damage.
I do not know about the rest of Canada, but if you look at the statistics, the suicide rate is high in Quebec. As you probably know from working in that sector, suicidal people feel they do not have a purpose in life. Well, when the person who is supposed to love and care for you is hitting you repeatedly, your self-esteem is not very high. That is my rationale, as a lawyer, a mother and a grandmother.
Senator Cools: We all agree that you do not have to be repeating the instance of excessive maltreatment. We agree on that.
What I am trying to get you to wrap your mind around is the legal impact that the repeal of section 43 will have on the rest of parents who are not excessively maltreating their children. I have helped to apprehend children to save their lives. I know a lot about that and how difficult it is. Minutes after you have apprehended them, the children are back in the same circumstance that you have worked so hard to get them out of.
What I am asking you to wrap your mind around is not the ideals that you think we should hold in respect of raising children, but the actual legal impact and consequence it will have for the majority of people who do not hurt their children and who are not into excessive maltreatment or abuse. Infanticide is one group and child abuse is another group.
The majority of people who may slap a child with no malice intended are the people for whom I am not prepared to give any group of prosecutors in anybody's office an opportunity to engage in a criminal prosecution. That is my concern. I hope I am being clear on that. I have done a lot of work in this field.
You talk about early interventions. I have worked with many families and parents on interventions and have turned many lives around. If this were repealed, those people would be facing prosecutions rather than the types of interventions with which I was able to assist. That is the question I am asking you to wrap your mind around, namely, the consequences for many people if this section is repealed.
[Translation]
Senator Joyal: Let us go back to the strictly legal aspects. The Supreme Court, in its January 2004 ruling in Canadian Foundation for Children, Youth and the Law, did not feel that section 43, according to its interpretation, contravened the Canadian Charter of Rights and Freedoms, nor was it a breach of Canada's other international obligations. I did not read the text of the proceedings. I do not know if the Canadian Foundation for Children, Youth and the Law cited the international Convention on the Rights of the Child, which Canada has ratified, and for which it is accountable to the corresponding United Nations agencies. I do not know if the convention had also been argued before the Supreme Court. I would assume that it was, since the Canadian Foundation for Children, Youth and the Law is certainly aware of the international convention, and therefore, Canada's obligations.
First, the Supreme Court did not rule that section 43 contravened the Charter. Had a majority of the judges decided otherwise, the government would probably have introduced a Criminal Code amendment in the same year or month, in which case we would simply now plead the fundamental rights of children.
We do not have this fundamental argument to explain the withdrawal or removal of section 43. The court, according to the interpretation given to the decision which represents a majority opinion of at least six judges — and I will come back to the dissenting judges — the court nevertheless defined the term ``reasonable'' under the circumstances. You said in your presentation that ``reasonable'' is rather vague and we have no way of knowing exactly what it means, in practical terms. If I understand correctly, the court meant that the force used must be minor, of a transitory and trifling nature, with a limited effect. It must not be degrading or harmful to the child nor must it be based on the seriousness of the behaviour itself, and that force must not be used against adolescents, et cetera. The court set out explicit guidelines for the term ``reasonable,'' to a greater extent than what can be found in many other statutes. I am simply comparing this to the antiterrorism legislation that we are reviewing in another committee, where the word ``reasonable'' appears in a number of circumstances. It is a concept which, as they say in English, is ``pervasive,'' which can be found in numerous Canadian statutory provisions. If I were to look for the word ``reasonable'' in all of Canada's laws, I would end up with three stacks of statutes that contain the term. We cannot say that we do not know what the word ``reasonable'' means. Under these circumstances, the court has set an extensive number of guidelines for ``reasonable.''
It clearly states ``reasonable under the circumstances'' and defines the basic components. If the aim is expressed in legal terms, then should we not try to amend section 43 to limit the use of force in the narrow context within which it was recognized by the court?
I note that even judge Binnie, one of the dissident judges, acknowledged that section 43 is acceptable under section 1 of the Charter, anything which applies to a free and democratic society. As he himself said, ``reasonable in a free and democratic society.''
[English]
We have this word even in the first section of the Canadian Charter.
[Translation]
I wonder if, in fact, one of the ways to tackle the legal issue would be to define the parameters in section 43 that would express the limits that the Supreme Court itself defined less then a year ago.
Senator Hervieux-Payette: If I admitted that this concept could be used as a means to defend parents who want to teach their children and if that were indeed the consequence, in other words, a teaching tool for parents, then I could agree to a more specific definition.
However, there is no expert in the field who will agree that corporal punishment can be used as a teaching tool.
All, or at least a majority of the experts will tell you that the effects are only negative. It is not up to the Supreme Court justices to invalidate any act that has a general application. I have also read the decision. But when I gave you the earlier example of Justice Arbour who presides over an international tribunal, Justice Arbour has an amazing wealth of experience, and she says that the concept of ``reasonable'' — and you have just said so yourself — is a catch- all term that is used throughout all of our legislation.
I would first have to buy into the idea that one of the tools used in education is corporal punishment. There are no specialists who will tell you that it can be applied successfully in education.
The Statistics Canada study demonstrates that there are negative effects whenever a child is struck or whenever corporal punishment is used. Children become more aggressive. But the behaviour of the children will change if there is a change in their parents' behaviour.
This is a measure which, as soon as it is implemented, if this is done throughout the entire country, will change the way in which individuals relate to one another and can also affect the models from one generation to the next. In other words, there will no longer be this domino affect which means that, if you were hit as a child, you will continue to hit, and that behaviour will be perpetuated.
For society as a whole, there would be less aggressiveness and also improvement in mental health. I need not remind you that this committee examined the mental health issue. It is dramatic. It concerns me greatly. A large part of mental health is affected by behaviour and the way in which children are treated.
If we are consistent with the work of the committee that examines mental health and all of the measures that are required, then I think that we should treat children correctly, as it is recommended by the specialists, and put an end to corporal punishment. Whether it is reasonable or not; I am simply saying that this measure is not something that we can consider, and it cannot be used to defend parents.
Senator Joyal: You are saying then, that even if, from a legal standpoint, there were guidelines to determine quite specifically under which circumstances the use of force might be possible and could apply, the use of force to correct a child, to change his behaviour or to help him to understand the meaning of authority, is absolutely prohibited?
Senator Hervieux-Payette: Corporal punishment goes far back in history and has religious connotations, et cetera. Today, scientific evidence has shown that corporal punishment is in no way beneficial to the child and, much to the contrary, can produce negative results in most children.
If 83 per cent of the children, who have been exposed to six years of physical discipline and corporal punishment, are more violent and aggressive, and I am quoting a scientific survey undertaken by Statistics Canada under ideal conditions with a sample of 2000 in February 2005 —
Senator Joyal: Should we not distinguish between a child who is subjected to the continual, repeated and prolonged use of force, for a period of, as you said, six years, and the child, who, at some point in time, is spanked by his father or his mother?
I have a hard time with absolutes — and I am no specialist when it comes to raising children, much to the contrary in fact. It is not an area where, unfortunately, I have developed any professional knowledge whatsoever, and I am not saying that my conclusions are more valid than anyone else's.
However, I have a hard time understanding that when a young child does not listen to his parents and is spanked, that child will not understand who is the boss and how he is supposed to behave.
That is not the same as a child who is beaten day in and day out, week in and week out, for six years. I can understand that in such a situation, a person who is constantly assaulted would become aggressive.
I was given a whack when I was young, I had my knuckles wrapped with a ruler and I was given the ``strap.'' That did not make me a nasty, violent person. I am fond of all of my teachers, particularly those who knew when to correct me. My parents were not brutes. My brothers and sisters and I were all raised in the same way, and we are all law- abiding citizens. I do not think it is the same thing.
I agree with you; there are violent parents who have emotional problems. There are also children with emotional problems who must take Ritalin. And when I see how much Ritalin is used in elementary schools, I wonder if it might not be better to give them a little slap from time to time. That might do more good than stuffing them with pills, as is the case today in some places.
Of course, every child needs to be corrected at some point. But between a spanking and being tied to a chair for two hours, I am not sure which is the least harmful. That is where we have to draw the line.
I support any legislation that will serve to reprimand violent parents and laws that will restrict the repeated use of force against children. I entirely agree with that and it makes perfect sense to me.
But to not be able to tell a child that, if he does not sit down, he will get a slap. Man is a reasonable animal, but he has to learn what is reasonable. Learning what is reasonable is learning that there are certain types of behaviour that apply in certain circumstances but not in others. We are not born with that knowledge, and it is up to our parents to help us understand it.
I am trying to be as open-minded as possible about your bill, but I am also trying to see the practical reality that we have experienced and that others are experiencing. With respect to section 43, I may agree that the wording is perhaps too elastic and too broad, it may cover too many possibilities and should perhaps be tightened up in certain circumstances. I am completely open to that.
The Supreme Court clearly said that it is a matter of policy and not law. The legal aspect has been taken care of. The Supreme Court decided; correcting a child with reasonable force, in limited circumstances, by controlling the impact, et cetera. It is legal within the context of our fundamental rights here in Canada.
We are discussing a matter relating to child education policies. We have to determine how the use of force, in quotation marks, should apply to education in a specific context.
This is what I am trying to understand in what you have said, and thank goodness you have enough experience in this field to help us understand. I am sure that I am not the only one to react this way. If the Supreme Court reacted in such a reasonable manner under the circumstances, I imagine that there must be some way to tackle this issue, if only for the time being.
As you say, it can perhaps relate to culture, social behaviour or history. Certain things were done in the past that are no longer done today. There are no miracle cures. If you remove the use of force, it can give rise to other problems. For any number of reasons, there is less respect for authority in the schools today. Students are insolent when addressing their teachers. We must find other types of punishment. To my mind, punishment goes hand in hand with raising children. We have to find what type of punishment can apply in education. It must not be vengeful, brutal, or lacking in respect for the moral and physical integrity of the individual. We have to determine the context in which this applies under clause 43.
Senator Hervieux-Payette: Most people of our generation probably feel the same way you do. In our day, I do not think our parents or grandparents were well versed in modern psychology. They did what they thought was right, and acted according to what they knew. The same goes for the teachers and the nuns and priests who were responsible for physical discipline.
In the little brochure prepared by specialists in the Justice department, it says that spanking is not an effective form of discipline, even if some people might think that it is. It can give rise to anger, resentment and undermine the confidence that children have in their parents. Spanking teaches that it is okay to hit others. That is essentially the major problem. Once you strike a child, it is difficult to then say that he is not allowed to hit his little brother, his little sister or the neighbour children because the parents, the people who should lead by example, resort to violence.
I am not appearing today as a child-behaviour specialist. However, having worked on this project, I am perhaps more familiar with the subject. When I was a school board chair, I worked on a number of programs and measures intended to avoid placing children in circumstances that would jeopardize their mental or physical health. These are children between the ages of three and six who want to get their hands on everything. Hitting them will not teach them how they are supposed to behave, since there is no evidence that this method produces positive results. There are better ways of going about it.
For 10, 20 or 30 per cent of the population, which means several hundred thousand children, this approach leads tolife-long trauma. We will not deal with cases that were of no consequence, because they mainly represent older generations. However, specialists are aware of mentally-ill persons who need treatment. As I am not specialized in this field, I do not know these cases in detail. All I know is that children learn more easily when there is a positive approach. Rewards, congratulations and signs of encouragement yield positive results with children.
My experience, I only know my three daughters and six grandchildren. We should be careful when dealing with impatient behaviour in a state of panic. When you have three children within four years, there is bedlam in the home. Just one impatient move is not likely to bring you to court. The legislation provides motives for spanking. It is meant to correct and educate the child. It is done repeatedly and without impulsiveness. Impulsively slapping a child while there is a bedlam will not get you suit.
I thrust our courts more than does Senator Cools who believes that everyone will complain and that we will all be going to court. Nothing of this kind ever happened in the ten countries that enforce such a provision.
Currently, Canada looks bad because it is not enforcing a convention that it has ratified. The United Nations had to notify us twice because we are not keeping our commitment.
You say that we should look at ways of reducing the consequences, but I say that we do not have to look at this.A criminal act always requires criminal intent. An impulsive move, committed once and under exceptional circumstances, is another matter. Now, parents seem to be using this method in a repeated, systematic way, to educate the child, they hit him when he does something wrong. This procedure does not yield the expected results and many children, some 83 per cent of them, are only made more aggressive. These children will grow up with this aggressiveness with all that it entails in the way of depression, suicide, delinquency and dropping out of school.
I respectfully submit you the results of the studies that I have gathered. I am not specialized in this field, but I think that this is sufficient proof to show that this section no longer has any role to play. If we were living back in 1892, perhaps our legislation and our knowledge of human behaviour would justify this kind of attitude. But this is 2005 and we have more advanced scientific knowledge. Children should be given the opportunities that they deserve.
I quoted a decision by the British Columbia Court where the justice said to the parent who had struck a child to go write an article against hitting children and to hold brief community lectures proclaiming that this is not the Canadian way of doing things. This happened in a small ethnic community and the parent had to report regularly to the authorities for a follow-up. This is what he got for his most reprehensible behaviour after striking a child more than 300 times. This is further evidence that if we set up a training program, the courts will go along with the measures and procedures to be followed when there is an offence, and thus, they will not be overwhelmed with complaints.
[English]
Senator Milne: I wish to put on the record of this committee that 17 of the states of the Council of Europe have prohibited all corporal punishment, as has Israel. Italy and Portugal have seen court decisions declaring all corporal punishment by parents to be unlawful. In the U.K., they have gone part way.
The Chairman: Senator Hervieux-Payette, I wish to inform you that the representative from the Department of Justice, Ms. Morency, will be returning to address some of these issues. I am sorry that there were not more people here to listen to you. We will ask you to come back. We will make adjustments on our list of witnesses to hear from you further next week. Thank you for agreeing to come back.
[Translation]
Senator Joyal: Before adjourning, I would like to make a request. Ms. Morency is in this room. Could she verify if at the time the Supreme Court rendered its decision in the case Canadian Foundation for Children, Youth and the Law, the International Convention on the Protection of the Rights of the Child had been alleged by the plaintiff, and how the Supreme Court interpreted Canada's obligation vis-à-vis the convention? As we discussed this aspect of the decision, which was especially raised by Senator Pearson and Senator Hervieux-Payette, it would be important for us to know how the Supreme Court interpreted Canada's obligations toward the international convention. As the Honourable Senator Milne suggested, other states seem to have followed it. Under what circumstances did the Supreme Court decide that Canada was not obliged to follow it, or to rescind section 43?
The committee adjourned.