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Criminal Code

Second Reading--Debate Continued

February 9, 2023

Honourable senators, I’m pleased to rise today to speak to Bill S-251 — and I thank Senator Kutcher for introducing it — An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6).

In addition to being Call to Action No. 6 from the Truth and Reconciliation Commission, or TRC, efforts to repeal section 43 have been a multi-decade campaign.

Section 43 of the Criminal Code permits a defence and justification for violence perpetrated against children by teachers and parents in the name of “correction.”

When this provision was created 130 years ago, in 1892, the use of physical punishment was authorized by men to discipline their property: animals, employees, wives, prisoners and children. The effects of physical violence as disciplinary punishment have been proven to be so deeply harmful that the practice has since been rendered both draconian and barbaric.

The long-term effects of physical punishment are well documented, and the negative impacts were well articulated by Senator Kutcher.

When one looks to the research on the effects of physical punishment, the message from the research is very clear: The risks and harms associated with physical punishment are rife and sometimes irreparable.

A major 2002 meta-analysis of 88 research studies found associations between lawful physical punishment by parents and 10 negative outcomes. Another major meta-analysis in 2016, which reviewed 75 research studies published over 50 years, involving a total of over 160,000 children, confirmed the findings of the earlier meta-analysis and found evidence of associations with five more negative outcomes.

Of these outcomes, one is that physical punishment is associated with increased aggression in children. The research demonstrates that children who have experienced physical punishment are more likely to be aggressive toward their peers, approve use of violence in peer relationships, experience violence from their peers, use violent methods to resolve conflict and be aggressive toward their parents. One of the reasons for this is that by being subjected to physical punishment, children learn — from their parents — that violence is an appropriate method of getting what you want. Presumably, we do not wish to perpetuate such lessons.

The many negative effects of assaulting children are now undeniable. Indeed, even in the 2004 Supreme Court of Canada case, the Canadian Foundation for Children, Youth and the Law v. Canada, not one single expert witness in the case suggested that there was any benefit to physical punishment. The Supreme Court also reiterated in this case that physical punishment is not of any benefit to children.

Then why keep this provision, you might ask? Why didn’t the Supreme Court of Canada rule it unconstitutional? It must be that there exists cases in which it is in the best interests of the child.

The Supreme Court’s conclusion was not that physical punishment could be in the best interests of the child; rather, the court clearly held that the best interests of the child, which would be served by preventing physical punishment, may be subordinated to other concerns in appropriate contexts. That is the context where they set confusing and seemingly arbitrary criteria in which it may still apply.

In attempting to provide protection for teachers and guardians who apply physical force to children in minor cases, the court allowed this defence to continue.

To illustrate this point, I told this story in the previous iteration of this bill, when it was advocated by our dear former colleague, the Honourable Murray Sinclair. At the time, I discussed the reaction of my eldest child to that court case in 2004 — my now‑adult children were of the age targeted by the decision. My wonderfully astute son, Michael, was 13 years old, and my equally wonderful daughter, Madison, was 5. My son had watched the case with interest, and had his own older brotherly interpretation of its outcome, particularly the rule restricting the availability of the defence to those inflicting physical punishment on children between the ages of 2 and 12. What was Michael’s concluding pronouncement? “Nobody can hit me,” he announced, “but we can all hit Madison.”

What my son zeroed in on then, and what we must also now recognize, is an absurd and atrocious reality at the core of section 43. No child should have to wait until they are a teenager for the right to have legal protection — from harm — that we now enjoy as adults; nor do we want to risk children learning that they deserve to be assaulted, and that, worse still, it is for their own good. By the time they are older, children — who are routinely assaulted as an intended means of correcting their behaviour — may suffer in ways that significantly and permanently negatively impact them and future generations. Why are we even leaving a remote possibility that this defence can be used, or perpetuating the myth that this is okay in any case?

The TRC’s call for the repeal of section 43 emphasizes the role that physical punishment played — and the belief that it should be inflicted on children, with impunity — in the abuses perpetuated in residential schools.

The trauma experienced during childhood by survivors of Canada’s residential school system has been ongoing and intergenerational — continuing to have negative and, sometimes, devastating consequences for their families and communities.

This is the eighteenth iteration of this bill, and we still have a gap in our law that allows children to be assaulted. With each iteration of this bill, the evidence in favour of its passage mounts.

We owe it to all children — past, present and future — to remedy the continued condonation of the assault of children. It is time to enact the Calls to Action from the TRC and the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls, as well as the UN Committee on the Rights of the Child. It is long past time to repeal section 43. It is also time to provide the supports with and for children. Alas, this is not the focus of this bill, but it certainly underscores the need for far more work to remedy many inadequacies in the nature of our lack of support for children and youth in this country. Meegwetch. Thank you.

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