Honourable senators, I rise today to speak to Bill S-251, An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6). As Senator Kutcher pointed out, this is the eighteenth time this bill, or one like it, has been brought forward. I share his hope that this is the last time we will see this bill, or a bill like it, in Parliament — albeit, as I will explain, probably for different reasons than Senator Kutcher.

Colleagues, as you know, this bill will amend the Criminal Code to remove section 43, which reads as follows:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

In 2004, the Supreme Court was asked to consider the constitutionality of this section. In their decision, they described the parameters of the case as follows:

The issue in this case is the constitutionality of Parliament’s decision to carve out a sphere within which children’s parents and teachers may use minor corrective force in some circumstances without facing criminal sanction. The assault provision of the Criminal Code . . . prohibits intentional, non-consensual application of force to another. Section 43 of the Criminal Code excludes from this crime reasonable physical correction of children by their parents and teachers.

Colleagues, this continues to be the question before us today: Should parents be treated as criminals for using force to correct their child if the force does not exceed what is reasonable under the circumstances?

I would note that the question is not, “Should parents be allowed to physically abuse their children?” Nor is it, “Should parents be permitted to physically assault their children?” Nobody is asking these questions. Nobody is asking for a statutory defence of child abuse, but you wouldn’t know it from listening to some of the speeches that we have heard in this chamber.

My good friend Senator Kutcher suggested that section 43 of the Criminal Code “. . . provides protection for those who use violence as a parenting tool . . . .” Senator Pate said section 43 “. . . permits a defence and justification for violence perpetrated against children . . . .” Senator Petitclerc compelled us to pass this bill because, in the words of Nelson Mandela, “We owe our children . . . a life free from violence and fear.” And Senator Moodie said that section 43 effectively allows “. . . children to experience forms of physical violence.”

Colleagues, the sharp rhetoric around this bill is disturbingly unfounded and misleading. Allow me to walk you through some of the facts.

In 2004, the Supreme Court laid down very stringent and specific parameters to the application of section 43. Having considered the testimony and evidence, the Chief Justice, on behalf of the majority of the justices, wrote the following:

. . . I conclude that the exemption from criminal sanction for corrective force that is “reasonable under the circumstances” does not offend the Charter. I say this, having carefully considered the contrary view of my colleague, Arbour J., that the defence of reasonable correction offered by s. 43 is so vague that it must be struck down as unconstitutional, leaving parents who apply corrective force to children to the mercy of the defences of necessity and “de minimis”.

Justice McLachlin continued:

I am satisfied that the substantial social consensus on what is reasonable correction, supported by comprehensive and consistent expert evidence on what is reasonable presented in this appeal, gives clear content to s. 43. I am also satisfied, with due respect to contrary views, that exempting parents and teachers from criminal sanction for reasonable correction does not violate children’s equality rights. In the end, I am satisfied that this section provides a workable, constitutional standard that protects both children and parents.

Colleagues, bear in mind that the attempt to remove section 43 from the Criminal Code was not just rejected once but three times. Three courts considered the matter, and three courts rejected it. First, it was rejected in 2000 by the trial judge, Justice McCombs. Then, two years later, it was rejected by the Court of Appeal for Ontario. Then, in 2004, it was rejected by the Supreme Court of Canada.

This bill has already been before Parliament 17 times, and it has never made it through the committee stage. The hubris of bringing it before Parliament for the eighteenth time after 3 rejections by the courts and 17 rejections by Parliament is a bit mind-boggling to me. Why are senators challenging what has already been settled in the highest court of the land?

There was no ambiguity in the court’s decision on section 43. In fact, the parameters it set out were very clear. I quote from the Library of Parliament’s study on this issue, dated February of this year:

The justices stated that the words “by way of correction” in section 43 mean that the use of force must be sober and reasoned, address actual behaviour and be intended to restrain, control or express symbolic disapproval. They also noted that the child must have the capacity to understand and benefit from the correction, which means that section 43 does not justify force against children under the age of two or those with certain disabilities.

The justices further clarified that the words “reasonable under the circumstances” in section 43 mean that the force must be transitory and trifling and must not harm or degrade the child. They stated that the idea is to look at the need for correction in the circumstances rather than the gravity of the child’s misbehaviour. According to the decision, reasonableness further implies that force may not be administered to teenagers, as this can induce aggressive or antisocial behaviour. Moreover, force may not involve objects, such as rulers or belts, and it may not be applied to the head.

These parameters were not dreamt up by the Supreme Court. They were lifted from the decision of the trial judge, Justice McCombs, when he said that “Corporal punishment which causes injury is child abuse,” and “Corporal punishment should never involve a slap or blow to the head.” He went on the say that:

Corporal punishment using objects such as belts, rulers, etc., is potentially harmful both physically and emotionally and should not be tolerated.

Justice McCombs also stated that “Hitting a child under two is wrong and harmful.”

Justice McCombs also noted that all of the experts agreed that spanking should be defined as:

. . . “the administrating of one or two mild to moderate ‘smacks’ with an open hand, on the buttocks or extremities which does not cause physical harm.)

Colleagues, nowhere in section 43 will you find even a hair’s breadth of room for assaulting or abusing a child. To suggest otherwise is inflammatory and misleading. The Supreme Court clearly stated that “Section 43 does not extend to an application of force that results in harm or the prospect of harm. . . .”

Child abuse of any kind is among the most abhorrent behaviour imaginable, and it is also already criminal. Those who perpetrate violence against children should feel the full force of the law, and in Canada, colleagues, they do.

Rather than protecting children, Bill S-251 will carry profound negative consequences for both children and their families if it is passed and section 43 is removed.

Former Chief Justice McLachlin warned of this in commenting on the Supreme Court’s 2004 decision. She said that the decision to not criminalize corporal punishment was:

. . . not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

This concern was shared by the Ontario Court of Appeal, who noted that:

The mutual bond of love and support between parents and their children is a crucial one and deserves great respect. Unnecessary disruptions of this bond by the state have the potential to cause significant trauma to both the parent and the child. Parents must be accorded a relatively large measure of freedom from state interference to raise their children as they see fit.

Furthermore, colleagues, we need to bear in mind that while we are discussing section 43 in the context of spanking, the impact of removing this section is much, much broader.

Consider the following quote:

The offence of assault is defined in section 265 of the Code as “the intentional application of force to another person, directly or indirectly, without the consent of that person”.

This broad definition, standing alone, would make criminal any mild or moderate forms of physical discipline, including spanking as defined in this case. Without section 43, other forms of restraint would be criminal, such as putting an unwilling child to bed, removing a reluctant child from the dinner table, removing a child from a classroom who refused to go, or placing an unwilling child in a car seat.

The fact that such commonly accepted forms of parental discipline would become criminalized without section 43 is a very significant consideration.

Colleagues, this is not some exaggerated scenario raised as a scare tactic by opponents of this bill. This is not some conspiracy theory floated by flat earthers. These are the words of the original trial judge, Justice McCombs, in his judgment on this issue.

Former chief justice Beverley McLachlin echoed these concerns in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) 2004, stating:

The reality is that without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute “time-out”. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

While others mock this concern and dismiss it out of hand, the concern is real. Passing Bill S-251 will not protect children; it will put them and their families at risk.

Colleagues, if my count is correct, nine senators have spoken to this bill before me. While I respect the right of all senators to hold their own views, there were a couple of points raised in debate that I would like to address.

The first was the insinuation by one senator that the Bible sanctions violence against children. This is not accurate. Nowhere in the Bible will you find a defence for child abuse — none.

Biblical references to corporal punishments are not, and have never been, an admonition for or an acceptance of child abuse. In fact, as historians and sociologists studying the early church have pointed out, one of the reasons that Christianity grew exponentially during its first 300 years was due to the exceptional way that Christians treated women and children in contrast to all of the cultures around them.

Christians believe that every person — regardless of race, sex, ethnicity or ideology — is made in the image of God. Furthermore, in God’s eyes, every person carries immeasurable value — born and unborn — so much so that God was willing to pay the price for their redemption with the life of his own son. Because of this, Christians in the early church treated everyone with respect, including women and children.

Senator Dalphond pointed out that ancient Roman laws gave the father the power of life and death over his children. This is true. Abortion was commonplace. Unwanted newborn children were often left exposed to the elements to die, especially newborn girls. But the early church resoundingly rejected these attitudes and values. They treated women and children with dignity, providing a safe haven in tumultuous times.

This is true of Christianity even today, and to suggest otherwise is to misrepresent the facts. Any biblical reference to the corporal punishment of children is not an endorsement of violence or abuse. Such a thing was never contemplated by the writers of scripture and never promoted by the followers of Christ. On the contrary, Christians carry a deep sense of responsibility to protect the vulnerable and speak up for those without a voice. This is why many are unapologetic about speaking out against abortion and assisted suicide.

I recognize that some senators may struggle with this viewpoint, but the position is rooted in the firm belief that every human life has immeasurable value. I, on the other hand, struggle to understand why we are so anxious to amend the Criminal Code in order to criminalize parents who give their child one or two gentle smacks on their backside, but won’t consider amending the Criminal Code to specify that knowingly assaulting a pregnant woman or causing physical or emotional harm to a pregnant woman should be considered aggravating circumstances for sentencing purposes.

The second thing I would like to respond to is the repeated assertion that the research indicates all corporal punishment is harmful. This is questionable at best and varies according to which research you choose to look at. I would say that the closer you look, the more the so-called evidence begins to break down.

For example, in one academic review, researchers examined 26 studies on this topic from the previous 50 years and found that, “Whether physical punishment compared favorably or unfavorably with other tactics depended on the type of physical punishment.” In essence, the review found that if physical punishment reflected the parameters set out by the Supreme Court, it was found to be as good or better than other forms of discipline.

A 2019 academic survey of the existing research on this issue confirmed these earlier findings. Furthermore, it noted two substantial problems with the studies that concluded all corporal punishment was harmful.

First of all, it found that those studies often did not distinguish between the outcomes of overly severe discipline and non‑abusive physical discipline. Instead, they grouped them together, which provides us with no useful comparison between the impact of corporal punishment which exceeds the current parameters of Canadian law and corporal punishment which is administered within the guidelines set by the Supreme Court.

Second, the studies which concluded that all corporal punishment was always harmful, “. . . failed to solve the chicken‑and-the-egg problem as to whether severe misbehavior causes physical discipline or vice versa.”

One of the strongest arguments against corporal punishment is that spanking is associated with later behavioural problems, such as aggression. However, studies have shown that this correlation exists with every type of corrective discipline. As one study noted:

Since all types of corrective discipline are associated with subsequent aggression, it cannot be uniquely attributed to spanking, except in the case of overly severe and predominant use of physical punishment.

Colleagues, much of the so-called evidence against spanking is based on simple correlations, ignores studies of conditional spanking and fails to compare the outcomes of spanking with outcomes of alternative disciplinary responses that parents could use instead. It does not support removing section 43 from the Criminal Code.

But what about the question of the Call to Action 6 as recommended by the Truth and Reconciliation Commission? Let me state categorically that the abuse suffered by First Nations children at residential schools was horrific. It should never have happened, and my remarks do not in any way diminish the horror of the traumatic experiences that the children and their families faced and in many cases are still facing.

Last Sunday, colleagues, marked 15 years since the Canadian government under Prime Minister Stephen Harper offered an apology to residential school survivors and acknowledged the profound wrongs and unimaginable trauma experienced by Indigenous children who were torn from their homes. The legacy of residential schools remains an ugly and horrific blight in the history of our country, devastating entire families and communities.

As you know, as part of the reconciliation process that followed, the Truth and Reconciliation Commission issued 94 Calls to Action. The sixth Call to Action called on the government, “. . . to repeal Section 43 of the Criminal Code of Canada.” However, I would note, colleagues, that the Truth and Reconciliation Commission was not given a mandate to reach into every home in the country and dictate what is appropriate or inappropriate when it comes to non-harmful, loving discipline. In fact, for a people who suffered immeasurably because of government overreach, I would be surprised if residential school survivors endorsed a Call to Action which advocates for government overreach in the lives of other families.

The terms of reference provided to the commission were to address the harmful legacy of residential schools, not to compel sweeping revisions of Canadian law with respect to legitimate parental discretion in disciplining their children. Furthermore, colleagues, I would draw your attention to the fact that Call to Action 6 appears under the heading of “Education.” The context of this Call to Action is not to impose a philosophy of discipline upon every parent in the country, but to ensure that section 43 is not used as a shield that allows teachers to strike a child in their care.

This is in keeping with what the Supreme Court decided in 2004. In their decision, the court agreed that:

. . . corporal punishment . . . is not reasonable in the school context, teachers may use force to remove children from classrooms or to secure compliance with instructions.

I would argue that an appropriate application to Call to Action 6 would be to amend section 43 to remove the words “schoolteacher” and “pupil.” This would advance the process of reconciliation by responding to the need to address the abuses in residential schools without being overly broad in its application.

Colleagues, we live in troubled times. Many families feel like their traditional, deeply held beliefs and values are under attack. You do not have to look any further than the parent demonstrations in our very own backyard here in Ottawa this past weekend, and again this afternoon, to see evidence of this. Or you can look to the battle that the New Brunswick premier is now having with the Prime Minister, as Premier Higgs tries to defend rights while Justin Trudeau dismisses them as far right.

Colleagues, let me quote an article in today’s National Post:

Parental rights are now a “far right” political issue, according to Justin Trudeau.

It may be that the prime minister didn’t mean to disparage millions of parents by lumping them in with other far-right radicals like white supremacists and fascists, but that he did so speaks to his tendency to shoot from the lip.

It is unfortunate that, once again, Trudeau, who has often denounced partisanship while urging conciliation, uses inflammatory rhetoric which will alienate a large portion of Canadians.

Trudeau’s divisive language comes in the wake of the government of New Brunswick Premier Blaine Higgs making controversial changes to gender rules in the province’s schools.

The purview of the provinces. Colleagues, it is one thing to ask parents to adapt to an evolving culture by being tolerant of beliefs they do not share and showing respect to those who hold different values. But when the state begins to impose these values on those who do not hold them, it tears at the fabric of society.

The Supreme Court of Canada has been quite clear that when it comes to religion and belief, the state is to be neutral. Yet today, many Canadians are struggling to see this neutrality. They feel like their governments are becoming increasingly elitist and are progressively encroaching on jurisdiction that has traditionally belonged to the family.

As I said in my speech on this bill’s predecessor, Bill S-206, I do not often agree with former prime minister Pierre Elliott Trudeau, ever. However, I do agree with his comment that “. . . there’s no place for the state in the bedrooms of the nation. . . .” I also believe that there is no place for the state in the homes of loving parents raising their children in a responsible and caring manner. Thank you, colleagues.

Will Senator Plett take a question?

Yes.

Senator Plett, thank you for agreeing to answer my question.

You quoted the majority decision rendered by the Supreme Court in 2004.

However, don’t you think it’s also important to recognize that there were dissenting opinions on that ruling? Justice Deschamps said the following with regard to section 43, and I quote:

 . . . s. 43 perpetuates the notion of children as property rather than human beings and sends the message that their bodily integrity and physical security is to be sacrificed to the will of their parents, however misguided. Far from corresponding to the actual needs and circumstances of children, s. 43 compounds the pre-existing disadvantage of children as a vulnerable and often-powerless group whose access to legal redress is already restricted.

My question is this. That ruling was handed down in 2004. Do you agree that mentalities change, that Supreme Court rulings are not the definitive authorities and that we can look at them differently in 2023, nearly 20 years after the ruling you referred to was handed down?

I agree that we can look at it every 20 years if we want. As I said at the outset, we’ve looked at it 17 times before this. It was not just the Supreme Court, it was Parliament that 17 times overturned this in a democratic fashion.

I’m not supposed to ask you the question, but this is a response: Do you believe in the democratic process that turned this down 17 times? The Supreme Court, three courts — not just one, but three courts — turned this down. Was there a dissenting view? Absolutely. There is always dissension. I welcome that here today, and I welcome hearing you speak on this bill if you think that it is a good bill. I happen to think that, as a loving parent and grandparent, I would like to give my children the right to raise their children in the way that they see fit. I have never seen more loving people. I could learn lessons from my children in the way they are raising their children, but I’m not going to interfere, and I certainly think that the Senate should not interfere.

Would Senator Plett agree to answer a supplementary question?

Yes.

Do we agree, you and I, that this question deserves to be studied by the Senate as legislator, since the Supreme Court itself noted that it couldn’t rule on the change to section 43, which is ultimately in the hands of parliamentarians?

I think that if you had been listening to my speech, Senator Dupuis, you would find out that, no, I’m not in agreement with that. We’ve dealt with this 17 times before, and each time it was rejected. I do believe in a democracy. If it is again rejected and next year somebody brings it forward — I’m only here for two more years, I only have two more kicks at this — I will oppose it the next two times, as I did the last time.

Do I agree that we have the right? No, I wish that we would kill this bill now. I’m not going to oppose it going to committee; it has been decided. I spoke today as the critic, Senator Dupuis. That in itself should tell you that I do agree with legislation being studied at committee. It will go to committee tonight.

Certainly.

Point of order, Your Honour. This is not a question related to anything that I said here today. I would appreciate that, if Senator Simons has a question related to the speech, she asks it and does not go on a rant. If she wants to debate this bill later on, she can do that.

Again, this is on debate, Your Honour, not a question. I would like to not engage with Senator Simons any further, and so I will not answer her question.

You had not finished your question.

Senator Plett, would you take a question from me?

Yes.

Thank you very much. It is a short question, and something that troubled me for many years and I want to share it with you.

How is it that we, as lawmakers, can justify that physical assault from any one of us as an adult against another adult is illegal, but a similar level of assault by a parent against a child is legal in Canada and would continue to be so if we don’t follow through on this bill?

I’m not sure, Senator McPhedran, whether you heard any of my speech or not. In my speech, I said that a slap on the bum with the hand so it leaves no mark is not assault. So, no, you and I agree. We should not assault children. Absolutely. I don’t think spanking a child with two slaps on the bum — it cannot leave a mark or it’s assault — I do not believe that it is assault.

As a point of clarification, Senator Plett, how do we regulate this when you give a specific example about an acceptable limit of physical contact or physical punishment that happens in the privacy of a home or other location where the recipient of those two slaps, for example, has no power, no voice and no way of getting beyond that private situation?

First of all, again, Senator McPhedran, I did not set the parameters; the courts did. I didn’t make the law that you can give two slaps; the courts did. You should ask the courts, which is possibly where this is going again. I simply spoke.

Let me give you an example, Senator McPhedran. You say children have no say; I’m going to use an example. My son may disown me for the rest of his life for giving this example, but let me tell you about the first spanking I wanted to give my son. He was maybe four years old, and my wife and I had a disagreement on whether I should do this. He had done something that I thought deserved a spanking. I called him into the bedroom and I had him stand in front of me. There was no anger. I asked him whether he knew what he had done was wrong. Yes, he did. And I said, “You know, son, I’m going to have to give you a spanking for what you did.” He never argued with me. I discussed it with him. He then said, “Okay, dad, but before you do, could I tell you something?” I said, “Certainly you could.” And I was sitting; he was standing. He climbed onto my lap and he put his arms around my neck, and he said, “I just want to tell you, dad, that I love you.” He did not get a spanking that day. So don’t tell me children can’t negotiate their way out of it. They can.

Senator Plett, will you take a question?

Yes.

Thank you. In the Northwest Territories, where 100% of our children in care are Indigenous, and in Canada, where we have overrepresentation of Indigenous children, my question to you is: Has there been any thought given to the risk that the passage of this bill would give additional grounds for the removal of Indigenous children from their homes and communities as well as potential grounds for criminalization of Indigenous parents?

Thank you very much for that question, and I think that you make a wonderful point. But I’m the critic of this bill so I have not given that any consideration. You would have to ask Senator Kutcher at an opportunity or maybe at committee. But I think that you make a very legitimate point in what you said, Senator Anderson, and that should be considered.

I wish to pose a question to Senator Plett.

Senator Plett, I wonder if you have heard of a very famous Canadian comedian called Russell Peters, one of the most well‑known Canadian comedians. He is now in Los Angeles. He has a wonderful take on violence against children in Canadian families versus immigrant families. His tagline is, “Someone’s going to get hurt real bad.” He says it in his own way. I encourage you to listen to it. It will have you in splits. He makes the point that his immigrant friends feel very envious of his non-immigrant friends because immigrant parents appear to beat up their kids more violently or more regularly than, let’s say, others.

Comedy aside, I wonder if your research has indicated any such evidence to this point.

Thank you for the question, Senator Omidvar and, no, I have not done research on that. I would assume that the majority of the immigrants that I certainly have had connections and relations with who have come over to our country have very many of the same family values that I have, and maybe that is because those are the ones that I socialize with. But the majority of them would have many of the same values as me. I don’t think that there could be any clear distinction made that one ethnicity is — I don’t want to use the word “violent” — more aggressive than others. I may be wrong.

I don’t know that. That’s why I asked the question.

What role do provincial laws play in this?

Well, clearly provincial laws are very specific when it comes to certain issues, such as I raised where the Prime Minister is now delving into fighting with a provincial premier on something that is involved with the schools. Other than that, Senator Omidvar, I’m not sure. This is dealing with the Criminal Code, so that is what I have been focusing on. Again, I apologize. That is something that we, again, should probably raise at committee to see what roles the provinces play in that.

Would Senator Plett agree to answer a question?

Yes.

Senator Plett, we will agree that laws are made to protect the weakest individuals from those who might go too far.

The example you gave about your son demonstrates your thoughtful consideration because you explained to him why you wanted to give him a spanking. However, not every father is like you, and your son — who seems quite brilliant — put his arms around your neck knowing that would influence the outcome.

Don’t you believe, when we look at the population in general, that the bill we are studying wouldn’t protect children because action would only be taken if the punishment leaves a mark? There are times when a spanking leaves no mark, for example, when a child is wearing a diaper.

Don’t you think that this bill will end up protecting those who are not as level-headed as you are and don’t have a child as smart as yours?

There may be situations where the father loses his temper and things get out of hand to the point where the child suffers the consequences.

Let me, first of all, start by saying my son tried it a second time and it didn’t work the second time around.

Senator Forest, you are using comparisons like I did at the start of my speech. We’re comparing apples to oranges. I do not agree that a parent should be hitting their children out of anger. I am sorry if somewhere in my speech — I get accused of a lot of things, but it is not very often not being clear when I speak. I think that I was fairly clear in that a slap on the bum, in love — not out of anger — is what I’m talking about.

Let’s compare that to whether that hurts a child, not whether somebody beats their child, senators, as I stated in my speech and said this is an assault on children. I don’t believe in that.

Our party, the Conservative Party, is the toughest party in Parliament on crime. I believe every child molester, every abuser of children should be locked up. But I’m not a child molester, Senator Forest, if I, in love, give my son two slaps on the bum. That is not child molestation. That’s loving discipline.

I have a follow-up question. How do we distinguish between a slap out of love and a spanking? How do we define that?

Again, as I said to Senator McPhedran, the courts have decided that. They have come out with it. You and I do not need to decide that. The courts have decided it for us.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)