Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence for June 2, 2005
OTTAWA, Thursday, June 2, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-21, to amend the Criminal Code (protection of children), met this day at 10:52 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are continuing to deal with Bill S-21, to amend the Criminal Code, protection of children. We are pleased to welcome Mr. Peter Newell, the joint coordinator of the Global Initiative to End All Corporal Punishment of Children. Mr. Newell is from the United Kingdom and has just arrived in Canada. Welcome to Canada and welcome to our committee. We are pleased to have you with us. We will hear from you first and then proceed to questions.
Mr. Peter Newell, Joint Coordinator, Global Initiative to End All Corporal Punishment of Children: Honourable senators, I believe you already have my brief, so I would like to talk generally for just 10 minutes or so about the context. From my perspective, the Canadian government's resistance to full repeal of section 43 seems a strange anomaly in relation to its overall reputation for being at the absolute forefront of the promotion of human rights and children's human rights.
This issue of ending corporal punishment is an important and symbolic one for children. It is not so much an issue of child protection as one that goes to the root of how we regard children and their status in our societies. There is no more symbolic sign of the continuing denial of children as full holders of human rights as people than the way in which adults and governments are still clinging to the power to deliberately hit and humiliate children as a form of discipline or punishment. This is not a trivial issue, either. Now that children themselves are being asked about it in many countries, we are beginning to hear how hurtful, and not just physically hurtful, children find being hit by people whom they love and respect, their parents.
We had some research published in the U.K. on children aged five to seven, very young children, who are probably the major targets of corporal punishment, and the title of that report was ``It Hurts Us Inside.'' Many of the children were talking not about the physical hurt, but the real hurt they feel inside.
This is not a complicated issue. I feel that, too often, corporal punishment is thought of as some special kind of violence and removing it is considered as seeking some special protection for children, but really, in asking for the repeal of section 43 and similar defences in other countries, we are simply asking that children have the same protection against being assaulted that the rest of us take for granted.
The difficulty with the issue, and we must acknowledge it is still controversial in many countries, comes from the personal dimension. Most of us were hit as children. Most parents have hit their own growing children. Of course, we do not like to think badly of our parents or of our own parenting, and that makes it much more difficult to move on and see this issue as a basic one of equality and human rights.
The overwhelming social science evidence of the potential harm of corporal punishment — and I hope you will hear witnesses from the social sciences — adds to the human rights imperative for prohibiting it. Sometimes I fear that the debates about this research can distract from the fundamental issue, because really we cannot imagine now research studies or debates about the harm caused by slapping women or slapping elderly, confused relatives. It is unimaginable that we should debate at what age women or elderly people should be lawfully hit, on what parts of their body and with what implements. We have gone beyond that.
Some people would agree that children are different, and of course they are quite different, but none of their differences — their small size, their fragility and developmental state, their dependence on adults and the particular difficulties that they have in seeking protection for themselves — justify less protection from assault.
If the defence is removed and children are given equal protection from assault, there seem to be two major fears. The first is that it will lead to prosecution of millions of parents who currently use physical punishment. Removing the defence does accord to children equal rights in respect of their human dignity and physical integrity. That is the point of removing the defence. Any punitive assault on a child that would be treated as criminal if directed at an adult becomes a criminal offence. However, removing this defence, section 43, does not, of course, mean automatic prosecution or automatic formal interventions. Trivial assaults between adults do not get to court. There is prosecutorial discretion. There is the de minimis principle that the law does not concern itself with trivial things.
The dependent status of children does need to be taken into account when considering whether to prosecute their parents, because prosecuting parents is seldom in the best interests of children, unless it appears to be the only way to provide protection from significant harm. In my country and yours, there are clear tests before any prosecution goes ahead. There has to be sufficient evidence to make a conviction likely, and the prosecution has to be in the public interest. Plainly there is no public interest in prosecutions of parents for little smacks on their children.
The criminal law is not there simply to prosecute and punish people, and we do have to assert the educational value of the law. There is a sense in which prosecution is always a sign of the failure of the law and the child protection system to provide protection.
However, if we argue like that, then some opponents of equal protection say what is the point of having a law if it will not be enforced? If you remove section 43, the law will be just as enforceable as the law on assaults between adults, but police and prosecution systems are not completely out of control in this country or mine.
There can be clear guidance emphasizing the special status of children. Prosecutions and other formal interventions should only proceed when they are regarded as necessary to protect the child from significant harm and are in the best interests of the affected child or children. I do not know the details of how social services work in Canada, and I am sure you will hear from other witnesses on that, but I can tell you that in the U.K., where our law is not yet adequate, there is formal guidance that when a report is made of something that appears to be relatively trivial, if it goes to the police they immediately contact social services. Social services then make a decision as to whether there is any need to investigate further because there may be a risk of significant harm or whether they should simply note it. These things are not out of control and they are not likely to cause millions of parents to be prosecuted. That has not happened in quite a few countries where there is no defence.
When we are attempting to change attitudes and practice in the private sphere of the family, we do need the law to send a particularly clear message. In this case, the message is that hitting children is as unlawful and wrong as hitting anyone else. That is the only way to satisfy children's human rights, and it is also the only safe basis for child protection and the promotion of positive, non-violent forms of discipline.
At present, the Canadian government's laudable attempts to educate parents to move on from corporal punishment are hopelessly undermined by the confused message of section 43 and the Supreme Court judgment.
The other worry that opponents of reform raise is that if we take away this defence, parents will not be able to keep their children safe. All of us as parents know that we must use physical actions to keep children, especially small children, safe. We have to grab them, lift them and so on. That is quite distinct from using some degree of violence to cause pain or discomfort as a punishment. We know that distinction for ourselves. Why should it be difficult to understand it for children?
If these are real worries, the law could reassure by confirming in statute the rights of parents to protect their children physically, just as in the U.K., where we have completely abolished school punishment, the law protects teachers' rights to use reasonable restraint. In legal terms, it is not necessary to have this reassurance.
These are diversionary arguments. They are a last-ditch adult attempt to preserve the lower status of children, just as the majority Supreme Court decision was a last-ditch defence of the indefensible, ever nearer to equal protection but not quite getting there.
My submission does detail the human rights consensus that requires this reform. There is consistent jurisprudence of the Committee on the Rights of the Child, including its strong comments and recommendations to Canada. It has made similar recommendations to more than 130 states on all continents, and has also reflected them in its first general comment and in the conclusions of general discussion days. As I note in my submission, that has also been taken up by other UN human rights treaty bodies.
In Europe we are making particularly fast progress. That is because of the strong human rights mechanisms we have in Strasbourg in the Council of Europe human rights court and the European Committee of Social Rights, which oversees the European Social Charter's social and economic rights. That committee has determined, like the Committee on the Rights of the Child, that compliance with the European Social Charter requires complete prohibition of all corporal punishment and all other humiliating punishment of children.
We really are making fast progress. Quite soon there will be 20 countries with no defences and, in some cases, explicit prohibition of corporal punishment. More than 50 million children now live in countries where they are accorded equal protection from assault and the sky has not fallen in those countries.
It is important to point out that people often think that the reforms in Europe started with Sweden's explicit prohibition of all corporal punishment in its parenthood code in 1979, but in fact the legal reforms in Sweden started almost half a century ago, in 1957, when a defence quite similar to section 43 was removed from the Swedish Criminal Code. That defence excused parents who caused minor injuries in the course of punishing their children. Other European countries similarly removed defences and went on at a later stage to insert an explicit prohibition in their family codes.
There is increasing visibility of corporal punishment globally. As it becomes visible, it is seen as unacceptable, and thus there is accelerating progress towards law reform on all continents.
I have been attending the nine regional consultations that have been held in connection with the current UN Secretary General's study on violence against children. In consultations in the Caribbean, South Asia and, yesterday, in Buenos Aires for Latin America, clear recommendations have been adopted by governmental and non- governmental participants for prohibition of all corporal punishment, including in the family.
Surely Canada should be in the vanguard of this movement to assert children's fundamental rights to respect for their human dignity, their physical integrity, and to equal protection under the law. I very much hope that this committee will support the bill that is before it.
The Chairman: In 2004, the Joint Committee on Human Rights of the U.K. Parliament said:
In the light of this, we do not consider that there is any room for discretion as to the means of implementing Article 19 CRC as interpreted by the Committee on the Rights of the Child: it requires the reasonable chastisement defence to be abolished all together.
Referring to page 11 of your submission, at number 51, I understand that the U.K. Parliament adopted the 2004 Children's Act. This act leaves the reasonable punishment defence available in relation to charges of common assault. This is a partial removal of the defence. It appears to me that the U.K. parliamentary committee's first choice was the total prohibition of the defence in order to provide a greater degree of legal certainty. I would like to hear your comments on the partial removal provided by the U.K. 2004 Children's Act.
Mr. Newell: It was a great disappointment to us, as it was to the Joint Committee on Human Rights. In parentheses, that we had an election coming up shortly afterwards had something to do with the fact that the government was not prepared to support full reform at that point and did not allow a free vote on the issue.
The issue with partial reforms is that in this area we want the law to send a clear signal. When our Parliament passed this partial reform, the way the media portrayed it was ``carry on smacking,'' that the basic message of this law is that parents can still hit their children, although they must not hit them too hard and they must be careful not to cause visible injury, which could encourage parents to hit their children on the head, as that will not cause such injury. All these things confuse parents. It does not send the clear message that it is necessary as a basis for child protection and for promoting positive forms of discipline. It undermines all those messages. People who are working with families, with children, want a clear message.
Of course, they do not want millions of parents prosecuted. That is not the first purpose of law. The first purpose of law is to set a clear standard. We have that standard for all other citizens; why not for children?
Senator Ringuette: Thank you for appearing before us and sharing your vast global experience on this issue. I understand how dedicated you are to the cause.
In Canada several years ago, parents were routinely prosecuted for beating their children but were exonerated upon appeal to the Supreme Court of Canada because they were able to prove that such actions were within their religious beliefs, as freedom of religion and non-discrimination on the basis of religion are protected by our Canadian Charter of Rights. Have you ever experienced this kind of dilemma in other countries? How should we deal with that situation?
Mr. Newell: We all have freedom of religious belief, and indeed that is very important. However, when it comes to practising our religion, we must be careful that what we do does not breach the fundamental rights of other people.
When this issue has been looked at by human rights courts in Europe and in South Africa, there has been a clear judgment that one can respect beliefs, but when beliefs are used to attempt to justify a basic intrusion into someone else's human dignity and physical integrity, they cannot be accepted.
In the U.K., we had a group of Christian schools whose teachers and parents have been challenging the prohibition of corporal punishment in private schools. When they went to the European Court, it was dismissed as not admissible. They went right up to the House of Lords in the U.K. The House of Lords rejected this and said that the first principle here is a perfectly reasonable step taken by governments to protect children, and that while one can accept belief, one cannot accept practices that intrude into others' basic rights.
A similar group of Christian schools in South Africa appealed to the South African Constitutional Court to challenge the ban on corporal punishment in schools. Again, the constitutional court threw out the application and said that the ban on corporal punishment was a perfectly legitimate step for child protection.
Going back further, when Sweden instituted its explicit ban on corporal punishment, it was appealed to the European Court by a group of parents from a religious sect arguing that this ban on home corporal punishment breached their right to religious freedom and family privacy. Again, the European Court declared that inadmissible; in other words, rejected it. They said the Swedish reform was a perfectly reasonable one that was doing no more than extending to children the protection against violence that other citizens have.
Senator Cools: Madam Chairman, I have a minor point of clarification. Senator Ringuette spoke about a case. Perhaps she could give us the name of the case.
Senator Ringuette: No, I do not know the name of the case.
Senator Cools: Do you not know the name?
Senator Ringuette: It was very public.
The Chairman: We can try to find that out.
Senator Ringuette: It was a highly publicized case, from the Ottawa area. I do not know if it was on the Ontario or Quebec side, but it was in the Ottawa area.
Senator Cools: Do you know around what time? Was it 20 years ago?
Senator Ringuette: I would say three years ago.
The Chairman: Could you try to find more about it and let us know at the next meeting?
Senator Ringuette: I will do that.
Senator Milne: Welcome to Canada, Mr. Newell. I notice that PACE, the Parliamentary Assembly of the Council of Europe, about a year ago adopted a quite detailed recommendation. The only suasive mechanism that PACE has is setting an example and hoping that its member countries live up to it.
Do you think that will be enough? You say that 14 member states have prohibited corporal punishment, and also the Supreme Courts in Italy, Portugal and Israel have declared it illegal in those countries. Are Italy, Portugal and Israel moving to put this into law?
Mr. Newell: Israel did put it into law in the same year as the Supreme Court decision. It removed the reasonable punishment defence.
What is causing the accelerating progress in Europe now is the overall context of the Convention on the Rights of the Child and the committee's consistent recommendations to states. Also, the European Committee of Social Rights, which monitors compliance with the Social Charter that covers economic and social rights, including child protection, produced a general observation in 2001 that compliance with the charter requires prohibition of all corporal punishment. They have been following that up because there is a reporting process under the charters. As I list somewhere in my submission, the European committee has told a range of countries that they are not in compliance. The European committee's conclusions that countries are not in compliance have gone to Poland, France, Hungary, Malta, Romania, Slovak Republic, Slovenia, Spain and Turkey. Of those, Romania and Hungary have already changed their law, and the Slovak Republic and Slovenia have both committed to doing so.
The process of the UN Secretary-General's study on violence is another useful context, because questionnaires were sent to every government asking detailed questions about their law, including on corporal punishment. So far, three countries have said in their responses that they understand their law is not in compliance with international standards and they intend to bring it into compliance.
Senator Milne: Mr. Newell, we have a group of young law students here from the University of Michigan. Perhaps you would like to comment on the state of the law in the United States, for our benefit and theirs.
Mr. Newell: In terms of school corporal punishment, I understand that it is prohibited in public schools in 28 states and the District of Columbia, but in only two of those states is it prohibited in private schools. The situation in other forms of care varies from state to state. My understanding is that there is nowhere any prohibition of corporal punishment within the family, and indeed some states have moved to pass laws that suggest that parents can cause quite significant injuries to their children in the course of discipline. Things are not good.
Senator Milne: Well, if they can carry guns around at home and in schools and have to carry them so that they can be seen, let us hope that they do not shoot their children.
Senator Cools: That is a nasty statement. That is a very nasty statement, Madam Chairman. To make a statement which assumes that ordinary, average parents wish to shoot their children is really quite objectionable.
Senator Milne: Thank you very much, Senator Cools. I do not need to be reprimanded by you.
Senator Cools: I was speaking to the chairman. The committee has lost the habit of addressing the chairman, but I have raised the issue with the chairman and I will repeat it.
The Chairman: You can disagree with Senator Milne.
Senator Cools: I disagree with her all the time.
The Chairman: We can accept that.
Senator Cools: That is not new. That is obviously a source of great amusement. The fact remains, however, that the statement that was just made was a slur on ordinary people, and that is what I was taken with. We must distinguish at all times deviant behaviour. For the most part, parents who are excessively mean to their children are deviant. The majority of human beings fall into the middle of the bell curve. Most parents are not excessively mean or nasty to their children. I think we should respect that. This bill should not be going ahead on the premise that ordinary parents are nasty to their children. I have a lot of problems with this view that the whole world is out there to be remade in the image of the enlightened.
The Chairman: You will have your turn.
Senator Cools: I will not even bother to deal with that foolishness or rubbish. I just thought it was objectionable to the public.
Senator Gustafson: I was interested in your presentation. Certainly the welfare of children needs to be protected in every possible way; there is no question about that.
My question relates to incidents that just happened in Saskatchewan on the long weekend involving young people ages 14 to 16 at two parks. In one case, they threw an RCMP member into the lake. They are out of control. The Government of Saskatchewan and the parks staff are asking how they will discipline these young people. They are destroying property. There is a long list of incidents. Two of the RCMP officers were hit and so on, and they could not handle the situation. How we deal with this problem became the subject of discussion on the open-line programs in Saskatchewan.
My question is how do we deal with the problem of discipline for older youth? Is there any history of what happens if children do not have some discipline? I am not talking about beating a child unreasonably. There is a mounting problem with the discipline of our older youth. Have you done any studies on that or its implications?
Mr. Newell: I have not done studies, but I have certainly read studies, read around the issue and been involved in many debates. We all want well-disciplined children and young people.This is not only a theoretical issue for me. I have three sons, now 19, 17 and 15. Discipline is a preoccupation for all of us.
Hitting and humiliating people, in my view, has nothing to do with discipline. Hitting people is a lesson in bad behaviour. It is precisely the lesson we do not want our children and young people to pick up. We do not want them to think that using violence is a legitimate way out of conflicts. We want them to come to understand what good, acceptable behaviour is and to see the advantages of it for themselves and for other people.
I have certainly seen research that looks at the background of the young people who are incarcerated for violent or other crimes. Invariably, one finds not that they have suffered too little physical discipline but that they have suffered a great deal of violent, direct physical abuse or humiliation of other kinds. The other factor often is the loss of parents. Those are some of the factors. One cannot make direct causal connections. It is all very complex but there is certainly no evidence to suggest that physical discipline in any way leads children to be less violent or less aggressive or less delinquent. All the evidence tends to go in the other direction.
Senator Gustafson: Do you find that there is more violence today among young people than there was, say, 20 years ago?
Mr. Newell: That is a very hard question. Almost every generation has said that there is more violence amongst young people than in the previous generation. In my own country, the figures for violent crime by young people are actually down quite significantly. That is true of some European countries, but not all. It is difficult because reporting systems and collection of statistics have changed hugely. There is no easy answer. However, there is absolutely no clear connection between reduced physical discipline and more violence.
Senator Ringuette: On the issue of statistics and physical discipline of children, would you have any statistics in regard to children who have been physically disciplined and who, when they become parents, tend to use the same model they grew up with, and therefore there is a perpetuation from generation to generation of this disciplinary model?
Mr. Newell: I do not see myself as being a social sciences witness. You have some of the world experts in Canada, including Professor Joan Durrant, whom I would hope you might call as a witness, as she has studied these issues in great detail.
There has been a meta-analysis of something in the order of 88 studies on the effects of corporal punishment by an American by the name of Elizabeth Gershoff. Again, the overwhelming weight of the evidence is that corporal punishment has the potential to cause an entire range of effects that we do not want in our growing children. I refer to increased delinquency, increased violent actions, increased mental health problems, and so on. I have chosen my words carefully because you cannot make direct causal connections to the effects I have outlined. I do not see that as my particular area of expertise.
Senator Pearson: Mr. Newell, I hope you had a good journey from Argentina. It is remarkable that you could travel overnight from Argentina to talk to us.
My question is a fairly technical one. I do not need to be persuaded about what has been happening. I will call on your experience as someone who has seen so many parts of the world.
While there are only 25 states that claim to be federal, they actually comprise 40 per cent of the world's population. In Canada, federalism is an important issue. We are talking here about the Criminal Code. The administration of justice is a provincial jurisdiction. Most issues revolving around child protection fall under provincial not federal law.
Do you have any observations on how other federal states that you know about have worked on this issue? It is the issue we will be looking at tomorrow in Toronto. How do you work to diminish the amount of violence against children in a federal state?
Mr. Newell: Plainly, if one is looking at it from a human rights perspective, then it is Canada as the state that has accepted its obligations and has the responsibility to ensure that they are respected throughout its jurisdiction. From that perspective, removing section 43 from the Criminal Code is, in my view, the logical response to the human rights standards.
In terms of how that is then interpreted in detail by child protection systems, as I said in my presentation, it is clearly important that providing children with this equal protection works in their interests. Therefore, there would be careful guidance given to child protection workers, the police, the prosecutors, and so on, to ensure that the law, the Criminal Code, and other laws backing it in terms of child protection, are interpreted in ways that are in the best interests of children. That should be the first principle in implementing this law.
Austria is a federal state. In both Austria and Germany, there was a defence that was removed some time ago.
Senator Pearson: Do you know about Australia?
Mr. Newell: Australia has not moved yet.
In Austria, they removed the defence sometime in the 1970s. Then, in 1989, they instituted an explicit prohibition whose purpose was to demonstrate that the law applies equally.
Senator Pearson: What about India?
Mr. Newell: India has not done so as yet. At the regional consultation for South Asia, the Indian government committed itself, federally, to prohibit all school corporal punishment.
Senator Pearson: Knowing India, that is a step.
Mr. Newell: That would be a federal act that would have to be implemented at the state level.
Senator Pearson: One of the comments made yesterday by the proponent of the bill was that in Quebec, for example, there is a good protocol to address the issues that are brought to the attention of the authorities concerning assaults on children. It manages quite skilfully to eliminate the minor issues and so on. Do you think that is a good idea?
This bill would simply remove a Criminal Code defence. However, we have the problem of ensuring that no one is improperly criminalized for what they are doing.
Mr. Newell: Clearly, at the moment, everyone working in child protection has to know what to do if they are phoned up and told that some parent is hitting or beating a child in a supermarket car park, for example. They already have to have some protocol or policy on that. In general, it is basically a supportive one, ensuring the child is not at risk of significant harm, and finding out what sort of support that family may need to ensure that the child does not become at risk of significant harm.
I do not think we are starting from scratch here. What we are doing at the moment is inhibiting those working in child protection and those working with parents and families by not having a clear message that this is unlawful and wrong. In my opinion, that inhibits their ability to act positively for families.
Senator Cools: Welcome to Canada, Mr. Newell.
Most people I know share the view that children are our most precious creatures and they need to be protected. I do not think there is any disagreement on that.
There is, however, considerable disagreement on the phenomenon of the blanket repeal of section 43. I, for one, believe that there is a vast area of the in-between. The business of dealing with children must always be accompanied by the attitude of the parent. In other words, a parent who slaps a child in rage, or in aggression, is in a different situation from a parent who slaps a child as a corrective technique.
The children know, Mr. Newell, when the parent is being bad. I say these things to you as a person who has had extensive experience working in the field. I say all of this to inform you of where I stand on the issue. I am a great defender of children. In fact, I was one of the pioneers in this country in the field of domestic violence. I know a fair amount about family conflict.
I would like to get your opinion on a couple of questions. My first concern is with the Constitution. However, I will come to that in a secondary way.
For 100 years, leading jurists in Canada have tried to find ways to bring the well-being of children into the federal domain. There are only two places in federal statutes where the well-being of children is dealt with. One of those statues is the Divorce Act and the other is the Juvenile Delinquents Act. Sir Wilfrid Laurier tried to find a way to bring the welfare of children into the federal domain.
This is not widely known. The Juvenile Delinquents Act was a mechanism as well.
Child welfare legislation began in Canada somewhere around 1893. The Juvenile Delinquents Act reached out to bring these children into a federal domain and into the juvenile courts in particular, because it made delinquency a condition. In other words, a child was not charged with truancy or theft. It is an interesting phenomenon. Delinquency was a condition that existed, rather than an offence. Those efforts were batted around over the years. I do not think the full intent was ever realized.
The second place that the welfare of children is mentioned is in the Divorce Act. Mr. MacGuigan in 1984, when he made his proposals for ``reforms to the Divorce Act,'' put into his bill the entitlement of children to financial support from both parents in accordance with their means.
In 1986, a later Minister of Justice attempted to repeal those provisions, without seeming to understand that they were very precious provisions because they spoke to the entitlement of children. You can look carefully through federal legislation and not find any. I am giving this to you by way of example of the difficulties that abound.
Beginning around 1893, little by little, every province created a child protection act, a child welfare act; they all had different names. All those statutes across the country have provisions that any assault on or abuse of children is to be reported. I believe the only profession that is exempt is lawyers. That is another matter.
I am trying to get at the difficulty involved if a federal Parliament just repealed section 43 without having the power or the capability to implement an equivalent, an accompanying set of social programs to assist people.
Mr. Newell, I have made it my business to study many cases and to read many judgments. The potential for mischievous and vexatious prosecutions is enormous. This country has had a plethora of wrongful convictions in the last years, and a plethora of false accusations, particularly in the field of family violence. This concerns me.
What concerns me is that ordinary parents who may slap a child as a manner of correction, and not even in excessive rage, will suddenly find themselves subject to the risk of prosecution. It is an act of arrogance on our part to believe we can make laws and then say to people, ``Follow them, because we are so enlightened that we will teach you how to be good, kind and gentle people.'' I have a huge problem with that.
Corporal punishment used to have a very special meaning. Now it is taken to mean any time one slaps a child. It used to have a legal meaning, like the old language of cat-o'-nine-tails and so on.
Could you share with us your views on the other academic studies that show in children under the age of seven, for example, non-abusive spanking — and the emphatic word is ``non-abusive'' — produces no harmful affects? We have to differentiate between aggression and non-abusive spanking.
Some of the scholars in this field are emphatic that the discipline of children must be administered in the absence of anger and rage. I do not want to shock you, Mr. Newell, but I work in the Senate, which is supposedly a very enlightened place, and I have been hit by senators. I have stood around here and watched senators hit children. If this is such an enlightened place, let us think of the greater world.
Yes, I have seen senators here in the Senate hit children.
The Chairman: We will let Mr. Newell respond.
Senator Cools: The senator asked me if that is what I said. That is what I said. I have been hit by senators. That is a different issue.
The Chairman: Let us deal with this bill.
Senator Cools: What I am trying to say is that these matters are hugely complex. I am saying to Mr. Newell that there are a vast number of studies that show that non-abusive spanking — and spanking is a strange word — is not harmful.
Perhaps you could also comment on another phenomenon, which is that when one looks at other studies measuring the use of physical punishment, sometimes other variables cause the results but are not measured. For example, in the United States of America, data shows that the single most reliable indicator of children's performance is family structure.
An Hon. Senator: Oh, oh!
Senator Cools: They are just being obnoxious. She is always obnoxious. She does this all the time.
The Chairman: You have the floor.
Senator Cools: I have the floor. She does not understand that.
The Chairman: There are others who want the floor, too.
Senator Cools: Fine, but we want a thorough examination of this.
The Chairman: We are not rubber-stamping it.
Senator Cools: In any event, there are marvellous data from the people who study this that the single most reliable indicator in children's well-being is family structure. Apparently, this overtakes race, poverty and an entire set of other variables in predicting children's well-being. I understand that these matters are complex. Have you looked at any of those studies in the two categories?
Mr. Newell: As I said, I do not consider myself a social sciences expert, but of course I have looked at the studies. There are two particular psychologists who are quite isolated in the field who maintain in a series of papers that very carefully defined use of corporal punishment on children of certain ages does not have harmful effects. To me, that is not relevant to the basic argument.
The purpose of removing section 43 has to do with trying to reflect changes in the way that societies, including Canadian society, regard children and to get away from thinking that children's status makes it legitimate to assault them in a way that we no longer think legitimate to assault any other members of society.
Perhaps the most accurate parallel to use is elderly, confused people, because in some ways they are dependent in a way that children are, but no one would dream of looking for research to see whether the odd slap of your confused grandmother was useful in getting compliance. The arguments have gone beyond that in a way that is valuable for our societies. We want it for children because we want the same respect for their bodies and their integrity.
To answer your question, the overwhelming force of the social science research is that any degree of significant physical punishment does have the potential to cause an entire series of effects that we do not want. As I said, there are isolated psychologists who claim that minor forms of corporal punishment not given in anger to children of certain ages on certain parts of their body and not too hard will gain compliance. It is obvious that if you are a large person and you go to slap a small person, they are quite likely to do what you tell them to do. That does not mean they are not also getting lessons from that behaviour that are not the kind of lessons we want children to learn.
The other point you made was a worry about simply changing the law and whether the system would be ready to cope with it. Canada probably has a more developed child protection system than the U.K., which believes it has a reasonably developed one. The problem in both those systems is that when you do detailed interview studies with children and parents you find that there is still a very high level of physical punishment. It is much higher in the U.K., and I can recite the figures. I have seen them for Canada, but I cannot quote them.
In the U.K., detailed interview studies with parents found that three quarters of a large sample of mothers had already smacked their baby before the age of one, that 25 per cent of the children in the sample had been hit with an implement, and a third had been punished severely, which was defined as ``causing or having the potential to cause injury.'' Not looking at convictions or prosecutions or even reporting rates, when you look at these interview studies, you find a much higher and disturbing rate.
Most people are loving parents and do not hurt their children, but a significant minority do, and the way to make progress on that significant minority, in my view, is to send a clear message; not the confused message that, yes, you can hit a child, but not too hard, not before the age of 2, not on the head, not with an implement, but rather the clear message that you cannot and it is illegal. Then everyone working with families is freed to transmit that message. At the moment, their hands are tied in a significant way. I do know that the children's aid societies and the child protection community generally in Canada is in favour of this reform and has made its views known.
Senator Cools: You are bringing to us your very notable concern for the well-being of children. I laud that and I share it. However, I am still having difficulty. You say that these scholars are isolated. I was reading one of them a few days ago who was talking about 38 studies. That is not isolation.
Dr. Diana Baumrind, at the University of California, asserts that social scientists have over-stepped the evidence in claiming that spanking causes lasting harm to the child. She says the scientific case against the use of normative physical punishment is a leaky dike, not a solid edifice.
We are just reviewing the literature, chairman, and I hope we will call some of these witnesses and review the research and studies. As soon as it comes to the business of children, we have to be careful that we are not overtaken by our own humanity. Because one wants to see a greater humanity, one believes that one can legislate it.
Mr. Newell, I have seen a lot of serious child abuse. As you said, that is a minority. I hate to tell you, but despite the existence of all laws against assault and against murder, there is still that child abuse, and there is no law that will stop that. The evidence is that neonaticides and infanticides around the United States of America are on the increase. In South Africa they certainly are, even though there are ``laws'' against it. I share your humanity and I share your concern. I just do not believe that every parent who may slap a child is an abusive parent or one who should be exposed to the weight of criminal prosecution.
Chairman, there is a plethora of work on this matter. I am also hoping that we will have witnesses who can look at the constitutional implications, which are profound. I am also hoping we will have witnesses who can give us a legal overview of the position of the Attorney General of Canada in respect of the old doctrine of parens patriae.
The Chairman: We are going to our list of notable people.
Senator Cools: Mr. Newell, thank you for being here. You are helping us clarify and identify the normality and the depth of this subject matter. Since the big study, ``Child at Risk,'' the Senate has not done a monumental study of these subjects. I am also hoping that as we proceed in this study, that we can go back to the conclusions of the ``Child at Risk'' study and review that evidence. Even child abuse differs by gender. It is an enormous issue, and a frank study of it is important.
Senator Mitchell: Mr. Newell, thank you for appearing.
I do not know if you are aware of the history of the Canadian effort to endorse the UN convention, but I come from a province that took a long time to do that. I think it was probably the last province to do so. Many people in that province were, to say the least, troubled by it and certainly embarrassed about it. I am very compelled by your presentation and your work, and I am supportive of this bill.
It may be impossible to come up with a specific answer to this. I expect that most parents who resort to physical discipline do so out of exasperation, not knowing what else to do. In your work, have you come across models in other countries or school systems where an effort has been made to assist parents in learning how to parent and how to discipline in more acceptable ways?
Mr. Newell: Yes, certainly, and of course your own government has been doing a lot through Health Canada. I have seen very good materials that have been circulated that quite explicitly tell parents that hitting children is a bad idea and has nothing to do with discipline. Programs exist here, and they exist in many countries.
The country that has probably most comprehensively linked awareness-raising and public education to law reform is Sweden, which has done so over a long period. Certainly the rates of approval of even the most minor forms of physical punishment are now down to 6 per cent of the younger population in Sweden. Sweden has found that it needs to continue sustaining the educational effort because of the migration around Europe. It is not something you can do over a short period and then stop. That process has more than begun in Canada. There is no shortage of materials available and they do have an impact. As I said before, those materials are undermined when the law is saying something quite different and confusing to parents.
Senator Joyal: I was struck by your biographical note that you were called as an expert witness for the appellants in the Canadian Foundation for Children, Youth and the Law in the Canadian Charter challenge on corporal punishment. You were also the adviser to the young English boy who made a successful application to the European Court of Human Rights in a decision against the U.K. government in 1998. I wish to address those two specific aspects of your professional activities.
You are certainly familiar with the decision of the Supreme Court of Canada because you referred to it in your presentation. As you acted as an expert, I am sure that you read the decision, that you have probably studied the decision, too. I would like to focus on that decision, if you will allow me. In particular, in paragraph 31 — and I will read it — the Canadian court said:
Statutes should be construed to comply with Canada's international obligations...
The Supreme Court recognized clearly that the statutes of Canada, that is, the Criminal Code, should be construed to comply with Canada's international obligations. They recognized that section 43 of the Criminal Code that is the object of discussion here should comply with our obligation as a country.
In 32, the following paragraph, the court says:
Canada is a party to the United Nations Convention on the Rights of the Child.
They fully recognize the applicability of the convention. Then they quote Articles 5, 19(1) and 37 of the convention.
They give a clear reading of the convention and, moreover, they quote Article 7 of the International Covenant on Civil and Political Rights. Having cited those two international conventions, they conclude, and I conclude, with section 33:
Neither the Convention on the Rights of the Child nor the International Covenant on Civil and Political Rights explicitly require state parties to ban all corporal punishment of children.
That is their conclusion.
After quoting reports of the Human Rights Committee of the United Nations from 1995, 1999 and 2000, they conclude:
The Committee has not expressed a similar opinion regarding parental use of mild corporal punishment.
The Supreme Court of Canada is of the opinion that Canada does not have an international obligation to explicitly ban all corporal punishment of children. They go on to refer to the case in which you were assisting the young English boy at the European Convention on Human Rights. That is the following paragraph. You were quite in the eye of the court, if I could say so, at paragraph 34. They concluded, in the decision of the European Court of September 23, 1999:
These factors properly focus on the prospective effect of the corrective force upon the child, as required by s. 43.
They interpreted the decision of the European Court in support of section 43.
Since you know well the legal background of these cases, could you tell us about other decisions of courts in other countries? There are 16, as you know. We are aware of them. Could you discuss the decisions of those countries that have not totally banned corporal punishment, such as France, Spain, Portugal, Italy, Greece, Belgium, the Netherlands and Switzerland? Have some of those countries come to a similar conclusion as the Canadian Supreme Court, that those treaties do not require state parties to institute a ban? On the other hand, could you indicate court decisions that might have concluded to the contrary, so that we could have a proper legal picture of where international law stands in terms of those decisions?
If you are of the opinion that the Supreme Court erred in their interpretation of those two international instruments, could you give me some examples of where other courts have interpreted those conventions differently?
Mr. Newell: The Italian Supreme Court in 1996, the Portuguese Supreme Court in 1994, and Israel in 2000 all referred to the Convention on the Rights of the Child in particular in coming to their decisions. The Committee on the Rights of the Child is the only body given a kind of formal authority to interpret the convention. It has consistently said for more than a decade, since 1993, that the convention does require prohibition of all corporal punishment, including in the family. The more it says that, the more compelling the discussion becomes.
As I said in my brief, the drafting process of the convention does not mention corporal punishment either way. They do not say that Article 19 was not intended to prohibit all corporal punishment and they do not say it was intended to. It is a clear principle of human rights law that these instruments are living instruments, that their interpretation inevitably develops over time as society's attitudes and other things change. It is certainly a legitimate interpretation by the committee that has not altered in over 10 years and is expressed absolutely systematically now.
In terms of the European Court of Human Rights judgment, again, as I say in my brief, I would accept that the court has not as yet condemned all corporal punishment because the European Court looks at the particular circumstances of the case before it.
Senator Joyal: That is it.
Mr. Newell: The case at hand was a severe caning, causing injuries.
Nevertheless, the court did refer to Articles 19 and 37 of the Convention on the Rights of the Child. The court has since stated to European states that the detailed standards to which they should be complying are the standards of the Convention on the Rights of the Child. The European convention is, of course, a very old convention and quite limited in terms of what it covers.
Senator Joyal: I think you put it fairly. We are in a domain of evolving rights. I totally accept that concept. We have it entrenched in our own Charter of Rights. As you know, section 15 is a clear reference in that context.
Lord Sankey, a famous British Lord, dealt with women's rights and the theory of living in the 1930s. In other words, a constitutional document is not fixed in time. It evolves with the morals and the attitudes of society.
Senator Gustafson: Or lack of.
Senator Joyal: It was restated recently in another famous case.
I am trying to identify clearly on what grounds the majority of the Supreme Court, at least six justices, came to a decision. The seventh justice, Mr. Justice Binnie, was a dissenting voice, but it was not on exactly the same ground. Two justices of the Supreme Court, Madam Justices Arbour and Deschamps, were clearly against section 43, especially Madam Justice Deschamps.
I am trying to get a different reading on international law or domestic law that would bring us to a point where we could say that interpretation of human rights today should lead us to a total ban on corporal punishment.
You have said clearly that it was excessive force in the U.K. case to which you were a party. I think we all agree with that. Excessive force should be banned. Caning children is something that should be prohibited and repressed, and we should fight against any excessive corporal punishment.
In fact, when you made your presentation with respect to the law of the U.K., did they take a decision of the European court and restrict what is admissible to essentially what should be the interpretation of section 43 in Canada, according to the reading that the Supreme Court has made of the decision of 2004? This is a recent decision, less than a year old.
Are we not at par with you, indirectly? I do not think the two decisions came at the same time, but have the U.K. and the Supreme Court come to a point whereby we both allow it, but in a limited and restricted context?
Mr. Newell: That is certainly the case.
Scotland has a slightly different formulation. They introduced the concept of justifiable assault of children into their law and then defined some actions as unjustifiable: Hitting with implements, hitting around the head and shaking.
I think I have made absolutely clear that the problem with all of these is that they send a very confusing message to parents. In terms of the interpretation of the convention by the Committee on the Rights of the Child, the interpretation of the International Covenant On Economic, Social and Cultural Rights by its monitoring committee, and the interpretation of the human rights committee of the other covenant, none of those partial reforms satisfy children's basic equal rights to respect for their human dignity and physical integrity.
The Joint Committee on Human Rights in the U.K. Parliament is clearly in some ways a similar kind of committee to your own. It looked in great detail at this issue when the bill was going through our Parliament. As I quote in several places, it found that the partial reform was not adequate, that the Committee on the Rights of the Child had expressed very clear views that could no longer be ignored.
I do not quote these parts, but it went on to also say that the Committee on the Economic, Social and Cultural Rights and the European Committee of Social Rights have produced equally clear interpretations of their instruments that cannot be ignored and which require complete removal of the defence.
Senator Joyal: Could you read to us, for the sake of the record, the exact formulation of the British law in relation to what is authorized in terms of use of force on children?
Mr. Newell: It would probably be safer for me to send it to you. It is section 58 of the Children Act 2004.
It removes the defence when parents or other caregivers are charged with grievous bodily harm, wounding or ill treatment. It leaves the defence intact in relation to charges of common assault.
Senator Joyal: In the Child Protection Act?
Mr. Newell: It is the Children Act 2004.
Senator Joyal: There is no corresponding provision to section 43 in the British Criminal Code?
Mr. Newell: There has never been a defence in our Criminal Code. There was a defence in the Children and Young Persons Act 1933, which was the law that made cruelty an offence.
In that act, in the section that made cruelty an offence, there was a subsection that said, roughly speaking, nothing in this section shall be taken to prevent parents exercising punishment over their children. It was basically a statutory confirmation of an English common law defence.
Senator Joyal: In other words, the Children Act, or child protection act, if I could title it that way, and maybe I am not legally accurate, was adopted in 2004, which is very recent.
Mr. Newell: That is correct.
Senator Joyal: Our decision of the Supreme Court was in2004 as well. In other words, the interpretation of what is admissible in both countries is within the same evolving context.
The way that the Supreme Court has interpretedsection 43, does it, in your opinion, accept physical force on children to the same extent that the Children Act in Britain has accepted it?
Mr. Newell: My understanding is that it rules out punishment of children under 2 and over 12, for instance. That is a kind of explicit prohibition.
In other terms, it is complex. I doubt whether many parents in Canada understand it at all, but they probably do understand that Canada has decided not to ban the hitting of children. To me, that is the problem. It has left things confused.
Senator Joyal: How about in Britain after the Children Act of 2004? What do you think the interpretation is?
Mr. Newell: The interpretation has literally been to carry on smacking. I have stack of press cuttings. The endlessly repeated headline was to carry on smacking. To me, that is the problem.
In terms of the human rights pressures that the U.K. is now under, as I said earlier, the particular pressure is coming from the European Committee of Social Rights. They have just examined a report by the U.K.
Given what it said to other countries, it will undoubtedly tell the U.K. that what they have done in the 2004 act is inadequate. That will be another strong statement of non-compliance with human rights.
I should also say that when there is a judgment of the European Court, it goes to the Committee of Ministers of the Council of Europe to supervise how the country executes the judgment. The committee of ministers is still not satisfied with the execution of the judgment in the case of A v UK. They have not passed a resolution saying that the U.K. has satisfactorily executed that judgment. There is still a question mark. I think that comes from the fact that the judgment in A v UK requires states to provide adequate protection, including effective deterrents. The question raised is whether you are effectively deterring parents when your law is as confused as it still is.
Senator Hervieux-Payette: Welcome, Mr. Newell. Thank you for joining us and sharing your wonderful experience and knowledge of children around the world. I feel that children are certainly privileged to have you as their defender. Yesterday I was saying that children are some of the few people who really do not have voice in Parliament, and they need people like you to speak on their behalf.
I have two short questions. The bill I sponsored repealing section 43 would be implemented after one year of a major education campaign and modification to the administration of the justice system. This is the interim period whereby we would ensure that all parents have got the message that it is no longer appropriate to spank. Would you recommend going further and having an explicit prohibition of corporal punishment in the Criminal Code, thereby creating a special section? I contemplated that. I decided not to do that, thinking that we are changing a law that dates back to 1892, and it might be more practical to change the mentality first and take one step at a time. However, I think it is important that we know what you would prefer, or what, in your experience, is going on elsewhere. Should we have created a more specific offence in relation to children?
I do not know if you have analyzed the jurisprudence on those who were charged and found guilty. Can we see a pattern in the way that parents discipline their children, starting with mild spanking and ending up with being charged for assault because the level of violence has increased? Can a pattern be seen through a study of jurisprudence that they do spank mildly when the children are young, but over the years they continue their spanking, it gets harder and harder, and eventually they end up before the court? I do not have the statistics, but you might have them in your organization.
Mr. Newell: On your first question, I think repeal ofsection 43 would send a very clear signal to Canada that children do have equal protection under the law on assault. If courts persisted in suggesting there was still some defence for reasonable punishment, then you might have to consider an explicit prohibition, because that has been the pattern in other countries. However, I think you are right to go with this at the moment and promote it as providing children not with special protection but simply removing a defence to give them the same protection. A year for implementation is a perfectly reasonable step. As I say, I think Canada has already gone much further than many countries in promoting education, and the materials are there. They just need to be built into all of the contacts that the state has with future parents and current parents. It does not have to be a separate process.
In terms of whether things escalate from minor assaults to major assaults, there certainly is evidence from a number of studies that that does happen, and it is fairly obvious why. If you find that little smacks are not working, and you are in a furious temper and frustrated, you are likely to go on to harder ones and pick up an implement and so on. That is not true of all parents, and it is not inevitable, but it does happen in many cases. Your own incidence study of child abuse and neglect, which is one of the most thorough that has been done anywhere, found that the vast majority of physical abuse cases were cases of physical punishment. It is hard to see what else physical abuse is other than almost always in the context of punishment or control. Shaken baby syndrome may be about desperation, but it is also about a form of punishment. To try to draw the line and say on the one hand you have physical discipline and on the other you have physical abuse is absurd. There is no place you can draw that line safely. The only place to draw it is where we draw it with women and elderly people and all of us.
Senator Hervieux-Payette: I have a minor question to the chair. My colleague mentioned a plethora of wrongful convictions in relation to family problems. If there are some studies and we could have access to them, it would be helpful.
The Chairman: Thank you, Mr. Newell. We have benefited from your experience and expertise. Thank you for taking the time to come and answer questions.
Mr. Newell: If there is anything technical I can help with at any point, please contact me.
Senator Milne: Before we adjourn, Madam Chairman, and Senator Cools, you might want to stay too, I believe an extremely serious accusation was made here in front of witnesses and on the public record against senators. I am very concerned that we should not all be included in this slur against senators, and I think perhaps we should discuss this. We may want to move in camera.
The Chairman: It is 12:30. Could we deal with this next week?
Senator Milne: We can certainly take it up next week, but I am very concerned that this has now been said publicly and we are all included in it.
Senator Cools: I would propose that if we are to have a hearing, we should do that publicly as well. We should not go in camera.
The Chairman: I will take note of that and it will be dealt with next week.
The committee adjourned.