Criminal Code
Bill to Amend—Second Reading—Debate Continued
April 6, 2017
The Honorable Senator Kim Pate:
Honourable senators, I'm pleased to rise today to speak to Bill S-206, an act to repeal section 43 of the Criminal Code of Canada.
In discussing why I believe section 43 must be repealed, I begin, for two reasons, with the Supreme Court of Canada's 2004 decision regarding this provision, Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General).
First, this decision illustrates the complex nature of this provision and insofar as section 43 is concerned, what we see does not necessarily reflect reality.
Section 43 is often understood as a defence against charges of assault for well-meaning parents or teachers, but there is massive confusion in the law surrounding section 43, including the elaborate Supreme Court criteria that attempt to narrow and interpret its application.
In his speech on this bill, Senator Sinclair provided an overview of the law surrounding section 43, in which he concluded that if the provision did ever happen to work as a defence for a parent, "it would be by sheer luck, given the vague and confusing state of the law of assaulting children."
I will not add to this apt assessment, except to say that it is confirmed by my own experiences. Not once throughout decades of work with marginalized and criminalized women have I seen section 43 used successfully to keep a vulnerable woman out of prison and to keep her child from going parentless.
Section 43 is also sometimes viewed as an affirmation that parents must decide on their own whether or not physical punishment is in the best interests of their children. But, despite finding section 43 to be constitutional, the Supreme Court also reiterated that physical punishment is not of any benefit to children.
In fact, not one single expert witness in the case suggested that there was any benefit to physical punishment. 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.
Research by the Children's Hospital of Eastern Ontario, CHEO for short, makes clear that the myth that physical punishment is for a child's own good has been thoroughly debunked. Further, the CHEO clearly identifies:
While many parents believe that physical punishment will keep their children out of trouble, delinquency and anti- social behaviour have actually been found to increase over the long term in children who are physically punished.
Physical punishment is "a risk factor for physical injury of a child and erosion of parent-child relationships."
Children who are routinely hit are also more likely to experience poorer psychological adjustment and increased levels of aggression throughout life.
Finally, as the CHEO points out, allowing the assault of children "perpetuates the use of violence by the next generation." It is with these consequences for the next generation in mind that I turn to the second reason that I refer to the Supreme Court's 2004 decision. This reason is a more personal one.
When the decision was released, my now adult children were children 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 physical punishment to 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 them to risk 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 negatively impact them and future generations.
CHEO's joint statement on the physical punishment of children and youth is based on research that consistently associates physical punishment during childhood with higher adult aggression, criminal and anti-social behaviour, and abuse of one's own children and/or spouse.
These effects do not occur only in cases of serious abuse. They also occur when a child is punished with a spanking, which is often considered a minor assault.
There can perhaps be no more clear or stark evidence of the imperative of ensuring that children are protected from assault than the mountains of evidence and testimony of the negative impact of corporal and other assaultive punishments and "corrections" on children documented in the painstaking and too often excruciatingly painful, albeit necessary, detailed descriptions shared in the report of the Truth and Reconciliation Commission.
The TRC's call for the repeal of section 43 emphasizes the role that physical punishment and the belief that it should be inflicted on children with impunity played 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 not just negative but sometimes devastating consequences for their families and communities.
In the time since the 2004 Supreme Court decision, my children have now become adults. Their generation has grown up without any advances being made in the criminal law and with cycles of violence surrounding physical punishment of children continuing unbroken.
We owe it to all children, past, present and future, to remedy the gap in our law that still condones the assault of children. It is time to heed the calls from the Truth and Reconciliation Commission, from the UN Committee on the Rights of the Child, from the Children's Hospital, and the nearly 600 organizations that have endorsed its joint statement. It is long past time, my friends and colleagues, to repeal section 43 and finally provide children with full legal protection from assault. Thank you, merci, meegwetch.