Criminal Code
Bill to Amend—Second Reading—Debate Continued

Leave having been given to revert to Senate Public Bills:

On the Order:

Resuming debate on the motion of the Honourable Senator Hervieux-Payette, P.C., seconded by the Honourable Senator Losier-Cool, for the second reading of Bill S-21, to amend the Criminal Code (protection of children).—(Honourable Senator Cools)

Hon. John G. Bryden: Honourable senators, I apologize for my absence. I had stepped out, and the orders moved forward rather quickly. Thank you for permitting me to speak.

Honourable senators, I rise in support of the Honourable Senator Hervieux-Payette's proposed amendments to the Criminal Code that would abolish section 43 of that code. Section 43 states:

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.

This is the so-called "spanking" defence, which was upheld a year ago by the Supreme Court of Canada in a 6-3 decision.

Honourable senators, the Supreme Court was asked to decide whether section 43 infringed children's rights, contrary to the Charter of Rights and Freedoms. The majority of the court held that it does not. Chief Justice McLachlin noted that:

Section 43 permits conduct toward children that would be criminal in the case of adult victims.

However, she found that Parliament's choice in not criminalizing this conduct toward children did not offend against the Charter.

Honourable senators, the fact that something is not in violation of the Charter does not mean that it is good public policy. I believe it is time that we repeal this section and, as a nation, that we begin to put a stop to corporal punishment.

This is a highly emotional issue for many. Questions of family discipline — how one should raise one's children — are extraordinarily personal. The state, quite properly, treads very carefully when entering the realm of the family. At the same time, we have a particular duty to protect those most vulnerable in our society.

As Chief Justice McLachlin observed:

Children are a highly vulnerable group... Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm.

That comes from the case: Canadian Foundation for Children, Youth and Law v. Attorney General in the Right of Canada [2004] 1 S.C.R., 76, pages 56 to 58. That is the last citation I will give you, as most of the quotes come from there.

Chief Justice McLachlin went on to say:

Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process. Section 43 is Parliament's attempt to accommodate both these needs.

Honourable senators, I agree absolutely with the Chief Justice's summary of children's needs. However, I am convinced that, as a society, we can better accommodate these needs than by condoning violence toward our children.

Corporal punishment has a long history. Senator Hervieux-Payette discussed its roots in Roman law, but we need not go back that far. Section 43 became law in 1892. It grew out of the English common law that permitted corporal punishment of wives, employees, apprentices, passengers on ships, prisoners and children. Honourable senators, let us not forget that those punishments were once considered appropriate. They were considered appropriate, measured responses to the need to discipline, and thereby educate wives, employees, apprentices and children.

Let me read to you from an article in the British Observer of Sunday, May 4, 2003:

Britain's class system was often used to legitimise corporal punishment. In 1795, a London court heard the Lord Chief Justice explain that a master not only had a duty to cane his servants, but also to ensure the beatings were severe.

Boys of all backgrounds were liable to "bare-bottom discipline", as soon as they joined the navy before the practice was abolished in 1967. They were forced to pull down their trousers before being flogged with the cat-o'-nine-tails, a whip, usually made of cow or horse hide, with nine knotted lines for inflicting increased pain.

The law changed with respect to wives, employees, apprentices, passengers on ships and prisoners. The one remaining anachronism relates to the appropriate education and discipline of children.

Honourable senators, the argument made for corporal punishment of children is that it is a corrective force. As Chief Justice McLachlin explained it:

First, the person applying the force must have intended it to be for educative or corrective purposes. Accordingly, s.43 cannot exculpate bursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child.

Honourable senators, where else in Canadian society do we actively condone the use of violence as an educative tool, especially against one who is weaker and more vulnerable? In general, we have come to understand that the impact of violence is much more profound than was previously believed.

As I mentioned, force used to be an accepted alternative to correct behaviour of a wife. Now we understand the terrible impact of spousal assault; on the spouse and also on the children who witness it.

Chief Justice McLachlin herself acknowledged that there are limits to the corrective scope of force against children. Listen to this; I will read further. She drew the limits at children between the ages of two and 10 years. She said:

Corporal punishment of children under two years is harmful to them, and has no corrective value, given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or anti-social behaviour.

Honourable senators, I am a father of three and a grandfather of eight. It does not make sense to me that hitting a child of 12 would be good for them and an educative tool in proper behaviour, and yet when that same child becomes 13, the same action is known to induce aggressive or anti-social behaviour. I served as Deputy Minister of Justice in New Brunswick. In that capacity, I dealt with criminal law matters on a far too regular basis. In my experience, violence begets anger, resentment, humiliation and, indeed, violence.

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In her excellent speech of December 7, 2004, Senator Hervieux-Payette cited an October 25, 2004 report by Statistics Canada that found that children aged two to three years who were living in punitive environments in 1994 scored 39 per cent higher on a scale of aggressive behaviour, such as bullying, than those who lived in less punitive environments. The same children were examined again six years later, in 2000. Now eight and nine years old, these same children who lived in punitive homes scored 89 per cent higher on the aggressive behaviour scale than those in less punitive homes.

Statistics Canada very recently, indeed on February 21, 2005 — some of you may have seen some of it in the press — published a further follow-up to this study. Looking at the same children two years later, the study also found:

Children showed higher levels of aggressive behaviour when their parents were more punitive. They also showed higher levels of anxiety and lower levels of pro-social behaviour, the latter defined as actions that benefit another person with no reward for one oneself. The link between punitive parenting practices and child behaviour was found when children were aged 2 to 5 in 1994/95 and eight years later in 2002/03, when they were aged 10 to 13.

That is the National Longitudinal Survey of Children and Youth.

To clarify, "punitive parenting" was measured by asking participants how often they used physical punishment, or yelled at the child and, on the other hand, how often they calmly discussed the problem or described more acceptable behaviour to the child. Children aged 10 to 13 were asked how often their parents yelled at them, hit them or threatened to do so.

I recognize there is fear that parents will wrongly find themselves accused of criminal acts. I would quote from the dissenting decision of Madam Justice Louise Arbour, who said that section 43 violates the constitutional rights of children to safety and security and must be struck down. She said:

Absent action by Parliament, other existing common law defences, such as the defence of necessity and the "de minimis" defence, will suffice to ensure that parents and teachers are not branded as criminals for their trivial use of force to restrain children when appropriate.

Honourable senators, today we know there are many alternatives to the use of force as a corrective tool for children's behaviour. In April 2003, a coalition of national organizations led by the Children's Hospital of Eastern Ontario, and including the Child Welfare League of Canada, Family Service Canada, Canadian Child Care Federation, Canadian Institute of Child Health, Canadian Public Health Association and Canadian Association for Young Children issued a Joint Statement on Physical Punishment of Children and Youth. They said:

The research evidence now available permits us to move beyond the debate about whether physical punishment is harmful to children and youth or is even effective as discipline.

Few parents believe that physical punishment is effective, most believe it is unnecessary and harmful, and a majority think the most common outcome is parental guilt or regret.

There is strong evidence that physical punishment places children at risk for physical injury, poorer mental health, impaired relationships with parents, weaker internalization of moral values, antisocial behaviour, poorer adult adjustment, and tolerance of violence in adulthood.

There is no clear evidence of any benefit from the use of physical punishment on children.

Parents are more likely to use physical punishment if they approve of it, experienced it themselves as children, feel anger in response to their child's behaviour, are subject to depression, or are burdened by particular forms of stress.

Their conclusion was:

On the basis of the clear and compelling evidence — that the physical punishment of children and youth plays no useful role in their upbringing and poses only risks to their development — parents should be strongly encouraged to develop alternative and positive approaches to discipline.

The 50-page paper does not simply condemn the use of hitting or spanking as a corrective tool; it also sets out positive alternatives that may be used by parents and teachers.

Honourable senators, I must tell you that while this is an issue that I have felt strongly about for some years, I was moved to enter the debate on Senator Hervieux-Payette's bill when reading the March 2005 issue of Harper's Magazine, page 28. There, in a side-bar, appeared the following, under the headline [Correction] "The Other Cheek." Before I read the rest, I should indicate that it came —

From an advertisement for The Rod that appeared in the magazine Home School Digest. In December the Consumer Product Safety Commission rejected a bid to ban the sale of The Rod, having found "no basis for determining that the product constitutes a substantial product hazard."

This is the advertisement:

Why a rod for training?

The means prescribed by God: "Withhold not correction from a child: for if thou beatest him with a rod, he shall not die. Thou shalt beat him with the rod, and shalt deliver his soul from hell. (Proverbs, 23:13-14)

Belts are for holding up pants.
Spoons are for cooking and eating.
Paddleball paddles are for games. Hands are for loving.
Rods are for chastening.

INSTRUCTIONS:

Try the rod out on yourself ahead of time to determine how much force you should use to get the result you require.

Chasten on a clothed buttock with the appropriate number of swats. Three or four swats is suggested.

Console the child afterwards and affirm your love for him. This will give you an opportunity to "check his heart" and show the child that chastening is a form of love.

FEATURES:

The Hon. the Speaker: Senator Bryden, I am sorry to interrupt, but I must advise that your time has expired.

Senator Bryden: I am asking for leave.

Hon. Senators: Agreed. Senator Bryden: Features of the rod:

Flexible Nylon Rod

More effective results
Less likely to break
More precise control during application

Cushioned Vinyl Grip

Non-slip during training
Durable for years of use

BENEFITS FOR THE CHILDREN:

Promotes a loving atmosphere in the home
Removes guilt and foolishness from their hearts
Develops self-control
Helps children to receive wisdom<

BENEFITS FOR THE PARENTS:

Lightweight yet durable
Balanced and easy to use
Ideal for car or home
Allows for better parent/child relationship
Results in a more peaceful home
An excellent gift idea

Does that make you sick, or what?

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Honourable senators, I applaud Senator Hervieux-Payette's initiative in seeking to repeal section 43. There are better ways to discipline our children. There are better lessons to teach them than to learn to respond with force.

Hon. Senators: Hear, hear!

Hon. Terry Stratton (Deputy Leader of the Opposition): I would like to adjourn the debate in the name of Senator Cools, who has informed us that she shall speak on Thursday.

The Hon. the Speaker: Before I put the motion, did you want to ask a question, Senator Trenholme Counsell?

Hon. Marilyn Trenholme Counsell: Yes, I did. May I?

Senator Bryden: Oh, yes, certainly.

Senator Trenholme Counsell: Honourable senators, as Senator Bryden read that last horrifying advertisement, a chill went through all of our bones, our blood and especially our hearts, but I have been struggling with my own response to the bill.

I think I know where I stand, but when I heard him read that advertisement, I wondered if the use of such a rod, if reported and acted upon, would conform to section 43? I do not think that the spirit of the law, as it exists now, would allow the use of that rod. The honourable senator is an esteemed lawyer, and we should have that point clarified by someone with his knowledge of the law, and of section 43.

It seems to me that the use of that instrument of discipline would contravene the law, and would make any person using that instrument, be it a parent or a teacher, vulnerable to criminal charges.

Senator Bryden: I should make it clear that that advertisement came out of a U.S. publication, Harper's Magazine, and that it was lifted from the home schooling magazine. I do not know the answer to the honourable senator's question, if we had a case under section 43. Is a wooden spoon better than the rod? Is it better to hit with your hand? There was a time — the senator accuses me of being a lawyer, so I will accuse her of being a medical doctor — when I have heard grandparents suggest to parents, "Do not hit him. Just shake him a little bit." You all know what happens to a child's brain when you shake him or her a little bit? We have now found that huge amounts of damage, and even death, occur from that.

I think it would be a technical fight; it will depend on the interpretation by the courts on whether this is a corrective action, and whether only reasonable force was used. I do not think there is any way that even someone as thoughtful as Chief Justice McLachlin can decide that if you are not quite at your age two birthday, then it is not okay to be hit, but if you are two-and-a-half, then it is. This is a fundamental anachronism that is stuck in the Criminal Code.

It is interesting that when the document came out, where all of the children's hospitals, and so on, that did the study that I quoted from, recommending that no force be used — they were not talking about a specific section of the code — they received more interventions on that particular study opposing the position that we stop using force, much of those interventions based on something like the proverb that I read.

I do not know any other way to deal with this matter, other than to repeal the section. I do not quarrel at all with the Chief Justice and with the majority of the court's decision that this does not violate the Canadian Charter of Rights and Freedoms if it is precisely applied. However, if there ever was an invitation to Parliament to say "Pick up your responsibility here, folks, and it is your decision, your call; you want people to have the option, the opportunity to use force in dealing with young children, then let this continue." There is no question that the Parliament of Canada has the right and the ability to deal with this matter, has absolutely the right to repeal this section of the Criminal Code, and would not be questioned at all by the courts.

I was trying to think of the quote about the sort of person who hits a child. After getting somebody to do a search, the person I was thinking of was George Bernard Shaw, and this was his quote:

If you strike a child, take care that you strike it in anger, even at the risk of maiming it for life. A blow in cold blood neither can nor should be forgiven.

What he is really saying there is that if you strike a child when you are angry, you are a brute. If you strike them when you are not, are you a sadist?

I do not want to go on much longer — in fact, I will stop now. This question has been approached from various angles by various people. We are in the 21st century, for goodness sake; let us prevent the legalized violation of the personal security of people who are among the most vulnerable in our society.

Read Senator Hervieux-Payette's Bill S-21

Hon. Senators: Hear, hear!

On motion of Senator Stratton, for Senator Cools, debate adjourned.

The Senate adjourned until Wednesday, March 9, 2005, at 1:30 p.m.

SEE RELATED: Senator's bill would outlaw spanking children; Irreparable damage done, says Hervieux-Payette, a grandmother of six