Bill C-329 (Historical)

An Act to amend the Criminal Code (protection of children)

Criminal Code

[Gerald Keddy, Progressive Conservative, South Shore, NS]

Mr. Speaker, this is an extremely serious debate we are entering into today on Bill C-329, an act to amend the criminal code involving the protection of children. The member for Vancouver East presented the bill with good intentions. However good intentions do not always gain their desired ends.

I was not able to listen to all of the speech by the member for Vancouver East but I did listen to the latter part of it. During her speech she suggested section 43 of the criminal code allowed corporal punishment to the extreme. She suggested it allowed people to hit and beat individuals. That is simply not the case. Section 43 clearly prohibits hitting and beating children. That is the point of the section.

I will take a moment to read section 43 of the criminal code as a few other speakers have done. It reads:

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.

The quote should read “their care” rather than “his care.”

I am not a lawyer nor do I pretend to be. However it could be argued that without section 43 of the criminal code we would be prevented from using reasonable force to prevent children from seriously hurting themselves by, for example, riding a bike off a cliff or running in front of a car.

Such circumstances may require force. This could seem unreasonable at the time but would be reasonable in that it may prevent children from injuring or even killing themselves. That is not what this debate is about nor do I think it was the intent of the hon. member for Vancouver East.

We have before us a subject which has been debated in other countries and other lands. Some nations have chosen to move away from corporal punishment for children and have made it against the law. Does that mean they are right and Canada is wrong? I question that. Does it mean we should follow in their footsteps? Not necessarily.

Does it mean we should engage in this debate? Perhaps it is time we had this debate. Perhaps it is time to look at the law as it is written. Perhaps it is time we dust it off, look at its bare bones, expose it to the sunlight and decide if we want to keep it on the books.

I think if we do that we will choose to keep the section on the books and allow parents the right to use force to discipline their children if it is deemed necessary. In no way, shape or form does section 43 condone physically beating or hitting a child. It should not be interpreted or used that way. It is not a defence for improper use of force. It is a defence for correcting a child, not for beating or abusing a child.

The very end of section 43 states “if the force does not exceed what is reasonable”. I suspect that would be up to a judge to interpret.

In today's society violence is not tolerated in the same way that it was a generation ago which is a good thing. Family violence is no longer tolerated at all. Society's values have changed. Because of the good, tireless work by family and children's services throughout the nation, along with the intervention of the courts, increased protection for children is now offered. That increased protection is offered because it was required.

There is no corporal punishment today in public schools. However, there remain instances where, after everything else has been tried, physical correction is necessary to stop dangerous behaviour, to protect other children, protect society in general, or protect the very child whose behaviour is endangering themselves.

Section 43 enables parents to do the best job possible of raising their children and gives them an option. It is not an option that most parents choose to take. It is not an option that is abused on a continual basis. The law very clearly prevents that abuse. Parents can be charged. They can be taken to court and their children can be taken away from them. It protects the rights of parents in accordance with their particular moral and religious beliefs. It reflects their personal knowledge of the unique characteristics of their own children, of how best to discipline their children, through knowledge gained from their parents and their own experiences during childhood.

It must be understood that this does not condone corporal punishment. This says that corporal punishment is one way of disciplining a child. Certainly for myself, my friends and my peers it is absolutely the method of last resort. I do not think we say that enough. People do not get up in the morning thinking of how they are going to punish their children. People react to circumstances. When circumstances require corporal punishment, I do not think the state can intervene if the force used is not excessive.

Under the current law, parents are allowed to use physical correction to discipline their children as long as it is not abusive and is reasonable under the circumstances. Before the implementation of section 43, there was no law placing limits on physical correction. This is an important point.

Section 43 does exactly that. It places limits on physical correction. Without question, those limits are needed. There were no government agencies at that time to protect children from abuse. Section 43 was implemented to protect children from abuse. It was well conceived. Even though it may be 100 years old, it continues to serve its purpose today.

There are critics of section 43. Some children's rights advocates want section 43 declared by the courts to be in violation of the Canadian Charter of Rights and Freedoms. I understand there is a case before the courts now and a decision will be brought down.

The implications of this effort are that the state is directly interfering with good and loving parents who believe there are circumstances where the most responsible means of discipline is judicious physical correction. This would make those individuals criminals under the law. I do not think that is what the Parliament of Canada is about. I do not think that is what we want to do.

Should we engage in this debate? Absolutely. I have no difficulty in doing that. We should expose section 43 to the full light of day and at the same time recognize its positive aspects and look at some of the negative aspects of section 43. Is it time to update the law? Perhaps it is.

As the bill is written, the PC/DR Coalition certainly is eager to engage in the debate. We respect what the member is trying to do, but we do not agree with the premise and will not support the bill.

[Larry Spencer, Canadian Alliance, Regina—Lumsden—Lake Centre, SK]

Mr. Speaker, it is with a great deal of conviction that I rise in the House today to speak to Bill C-329, a bill to repeal section 43 of the criminal code which 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.

Martin's Annual Criminal Code 2001 states:

The persons who may rely upon this section are schoolteachers, parents or those standing in the place of a parent...This section authorizes the use of force only where it is by way of correction, that is, for the benefit of the education of the child.

We live in a time when people of all ages, walks of life and viewpoints are following the philosophy of looking out for number one. That means they are concerned only with what is best, easiest or most beneficial for them. It is not easy to train, teach and discipline a child in the right way but it is the responsibility of parents and teachers to do that very thing.

Martin's Annual Criminal Code 2001 says the use of force is authorized when it is for correction to benefit the education of the child. In this day and age we confuse ourselves by always trying to be politically correct. Today it is politically correct to trumpet the rights of everyone from children to burrowing owls.

Rights are fine and good as long as we maintain a proper perspective. I am for human rights, children's rights and parental rights. I believe parents have the right to the best means at their disposal to train their children the way they feel they should.

Neither the Canadian Alliance nor I condone the abuse or neglect of children in any form. However we believe parents are the ones primarily responsible for the training and disciplining of their children. Children are not wards of the state. They are the gifts of God to a set of parents to whom He has given the right and responsibility of parenthood.

It is not for the government to interfere with the exercise of parental rights or responsibilities. Guidelines may be given. That has been done in section 43 of the criminal code. To remove that section would be to revoke the God given right parents have to carry out the proper training and disciplining they desire.

Protection is already provided in section 43 to ensure against physical abuse of the child. It also protects the parent or teacher who needs to take physical measures to properly contribute to the education or training of the child.

Many people today are neglecting and abusing their children by failing to correct, discipline, teach and train them properly. Some are afraid to take up the challenge for fear of damaging the poor child's self-esteem. Many are afraid of being accused of abuse and seeing their child whisked away by some bleeding heart social worker.

Some people are perhaps afraid because of recent Canadian incidents or other people's opinions but are totally frustrated by the difficulty of their own children. They are unable to cope and so they yell, nag and verbally abuse their children. This to me is a greater and more damaging way to abuse the child. It is much harder on the child's self-esteem than properly administered and well timed corporal correction.

Children cannot be left to themselves. They are not capable of making the proper decisions on their own. They must be taught and directed to understand and know the right choices. They must be taught honesty, work, kindness, respect and responsibility.

What child has real self-esteem if he has never experienced the loving correction of a parent? What child has real self-esteem if he finds he can no longer read well enough to keep up with the rest of his class because his teachers were afraid to take disciplinary action?

Our children have the right to be given proper attention, teaching, training, correction and, yes, even discipline. Discipline is more than talking, yelling or complaining. Many parents mistakenly assume child discipline is simply instructing children by telling them what to do. Instruction is only part of the process. Instruction is only what we say.

What we do plays a part. That is influence. It shows whether parents are honest and respectful of themselves. It shows who they really are. Through it the image of who and what they are is revealed. One's influence and image may contradict what one says.

A child is likely to follow the image and influence rather than the instruction of the parent. To learn to follow is the greater part of one's education. To learn to follow the right things requires the right discipline.

Martin's Criminal Code 2001 states that section 43 of the criminal code:

--authorizes the use of force only where it is by way of correction, that is, for the benefit of the child.

To learn to follow a course of life that results in the positive aspects of personhood requires numerous course corrections as does an airliner's trip across the Atlantic Ocean.

Discipline is for the benefit of the child. It assists the child in making the course corrections known by the parent or teacher to be necessary. Discipline and correction are for the benefit of one's education.

The Concise Oxford Dictionary , ninth edition, defines discipline as “mental, moral or physical training” or “adversity used to bring about such training”. It defines disciple which is of course the root word of discipline as “a follower or pupil of a leader or teacher”.

We were all made or created to learn mental, moral and physical lessons from physical consequences to our bodies. In Regina we learn to put on a coat in winter so our skin does not freeze when we step out the door. We learn not to eat little green apples or we will get a bellyache. We learn not to jump from the top of the apple tree lest we hurt ourselves. In other words, physical correction and discipline is a natural form of education and learning.

Diana Baumrind, a research psychologist at the University of California in Berkley, calls into question the current claim that any physical punishment is harmful to a child. She said in a recent study on the effects of corporal punishment:

We found no evidence for unique detrimental effects of normative physical punishment...I am not an advocate of spanking, but a blanket injunction against its use is not warranted by the evidence. It is reliance on physical punishment, not whether or not it is used at all, that is associated with harm to the child.

Baumrind said that in the absence of compelling evidence of harm parental autonomy and family privacy should be protected.

As has already been mentioned, Ontario Superior Court Justice McCombs held up the constitutionality of corporal punishment in his recent ruling and said it was within the sphere of respectability and exceptionality.

Why would we want to undo something as important and reasonable as that? I could never support such a limitation on the freedom of parents and the right of children to receive proper and lawful discipline from their parents and teachers.

There are many ways to discipline. Every child is different. Corporal correction is not the first line of discipline. Of my four children three required almost no corporal discipline. However one of my children's needs was entirely different. I needed the option of section 43. I strongly oppose the repeal of section 43 of the criminal code. I find the idea oppressive and offensive.

[Lynn Myers, Liberal, Parliamentary Secretary to the Solicitor General of Canada]

Mr. Speaker, I am pleased to rise today to discuss and talk about Bill C-329, which proposes that section 43 of the criminal code be repealed.

I want to say that as a government we agree with what the member just said a minute ago, that is, we on this side of the House, like she articulated, consider our children to be paramount in terms of their protection, safety and security. That has certainly been the agenda of our government because, after all, they are our most precious resource, not only in our family units but for the nation as a whole.

As hon. members know, section 43 is currently the subject of a charter challenge. On July 5, 2000, the Ontario Superior Court of Justice dismissed an application brought by the Canadian Foundation for Children, Youth and the Law seeking a declaration that section 43 is unconstitutional. In its July 2000 decision the court upheld section 43 and held that this provision reflects a reasonable balance of the interests of children, parents, teachers and Canadian society in accordance with the charter. This judgment was appealed to the Ontario Court of Appeal. The appeal was heard from September 10 to 12, 2001, and judgment was reserved.

Although it would be inappropriate for me to speak in any detail about a case that is currently before the court in Ontario, I would like, however, to discuss a few important points. I think they have merit.

I would like to begin by confirming the government's commitment, as I said at the outset, to promoting and protecting the rights and interests of our children, but as the Ontario Superior Court of Justice held in its July 2000 judgment, children's rights and interests, including the issue of section 43, must be viewed in the larger context, which includes the responsibility and role of parents and the best interests of children.

If we look, for example, to the United Nations convention on the rights of the child, to which Canada, as you know, Mr. Speaker, is a party, we see that the convention provides that children's best interests shall be primarily considered in actions concerning children. It also recognizes, however, the responsibilities, rights and duties of parents to provide appropriate direction and guidance in the exercise of these rights by the child. The convention acknowledges the family as a fundamental group of society responsible for the growth and well-being of children.

The government's position in supporting section 43 reflects this balanced view of children's interests. Section 43 balances all societal interests concerning the raising of children in a healthy and safe social environment, that is, in the family, while respecting their constitutional rights.

What exactly does section 43 say? I believe that there is a general misunderstanding of the purpose and ambit of section 43. Section 43 does not condone or authorize physical abuse of children. Equally important, it does not shield parents or teachers from interference by the state or guarantee freedom of parents to discipline children in any manner they see fit.

Section 43 acts as a limited defence, for example, to the charge of assault. In this regard several key points must be emphasized. First, the section applies only to a narrowly defined group of persons, namely a parent, teacher or person acting in the place of a parent and only in respect of a pupil or child under that person's care. Second, the force must be used for the purpose of correction. A person who uses force in a fit of rage or in order to hurt a child cannot claim a section 43 defence. Third and finally, the force used must be reasonable in the circumstances. The standard or test of reasonableness is one that is well understood and often applied within the Canadian criminal justice system.

When asked to consider applying section 43 in any given case, a court typically looks at the nature of the child's behaviour or action calling for correction, the age of the child and the severity of the punishment, including any injuries suffered by the child in that circumstance. When determining whether the force used was reasonable, the standard the courts apply is the community standard of reasonableness found in Canada and not in the practices of the individual family, or the school, for that matter.

The government is defending section 43 based on its belief that this section can be interpreted and applied in a constitutional manner which balances the interests of children, parents and Canadian society. Loving, well intentioned Canadian parents who engage in normative disciplinary conduct that is undertaken in a reasonable way and takes into account the needs and best interests of children should not be criminally charged for such conduct. Absent section 43, this would be precisely the result.

The government recognizes, however, that parents should be provided with the tools necessary to help them raise their children. To this end I would note that the federal government, primarily through Health Canada, supports parental education materials, for example, that specifically advise against the use of physical punishment and support the use of alternative methods of child discipline.

We are very concerned, as are all Canadians, about instances of child abuse in our society. It is simply unacceptable. We are also concerned about how best to protect vulnerable children in Canadian society, but in Canada protecting children from abuse is done through a number of measures of which criminal law is but one important measure.

Another such measure is provincial and territorial child protection legislation, which do not permit any form of child abuse. As a result, even if charges are not laid under the criminal code, child protection authorities can still intervene under provincial or territorial legislation where parental discipline is inappropriate or excessive. That is as it should be.

The government appreciates the objective of the bill as it is presented, namely the protection of our children, again, a very valuable resource, but we disagree that the bill would achieve this objective. It should come as no surprise to anyone that section 43 raises a divergence of opinion among Canadians. It does so because it touches upon something very near and dear to our hearts, most particularly our children and how best to parent them. In our view, however, the government's balanced approach to this important issue is by far the better approach.

When we weigh that all out I think we can see that the Government of Canada in taking this view is indeed taking into account the best interests of not only our children but their parents as well, and in so doing, by extension the broader Canadian society.

[Libby Davies, NDP, Vancouver East, BC]

moved that Bill C-329, an act to amend the Criminal Code (protection of children), be read the second time and referred to a committee.

Mr. Speaker, I am very pleased to rise in the House today to speak to the second reading for my bill, Bill C-329.

The bill seeks to repeal section 43 of the criminal code. This section of the criminal code that is not very well known to many Canadians, but it allows the use of force as a means of correcting or disciplining a child. I believe very strongly that this section flies in the face and is contrary to everything else about which we speak. We have policies which we promote in terms of upholding the rights and the well-being of children.

This morning I was very pleased to be joined at a press conference by a number of organizations that came to support the bill. There has been a very significant campaign across the country, and even a legal challenge, to repeal this section. This morning I was very pleased to be joined by Corinne Robertshaw of the repeal 43 committee, Mathew Geigen-Miller of the National Youth in Care Network, Michèle Matte of the Canadian Institute of Child Health and Victoria Norgaard of the Child Welfare League of Canada.

Many other people have not only supported the bill but have really taken up the issue of raising public consciousness about why the section needs to be repealed. In fact one of the people I especially want to mention is a very active parenting advocate, Kathy Lynn from Vancouver, who has a program on positive parenting . She has been a real leading light and strong advocate about the choices we have as parents and what we need to do to promote the health and well-being of children.

I am very pleased to join with these organizations to move along and to urge the government to consider the issue seriously and the impact that section 43 has had.

I believe that it is contrary to basic human rights. I believe it is contrary to the rights of children that Canada is a signatory to through international convention.

It is worth noting that this section of the criminal code is actually very old. It has been in our criminal code since 1892. It is based on English common law that did allow corporal punishment of wives, servants, apprentices and children.

I think everyone in the House and every Canadian would agree, that absolutely it is unacceptable that people would beat their wife or their spouse, their servant or their apprentice. Those aspects of our criminal code have long since gone. They have been done away with. However in 2001, the section that pertains to the use of force for correcting or disciplining a child still remains.

It is really an anomaly. It is an archaic part of the criminal code that sanctions violence rather than penalizing the use of violence. Not only does it violate the Canadian Charter of Rights and Freedoms, it also violates the UN convention on the rights of the child in denying children the fundamental freedom of protection from acts of violence.

One reason the section must be removed is that it is not just sitting there silently in the criminal code and somehow has no visible impact on what takes place in our society. The reality is section 43 has been used successfully as a defence in our court system by parents who have hit children with straps, belts, sticks and extension cords, causing bruises, welts and abrasions.

To put this in context, research completed through the Canadian incidents study that showed that in 1998 there were 44,000 investigations of child physical abuse in Canada. Sixty-eight per cent of physical abuse investigations were deemed to be inappropriate physical punishment. That is an absolutely serious issue.

When we see that the section creates an environment of sanctioning violence rather than prohibiting it, then hopefully we will begin to see why the section must be removed.

When I first came across the section and understood what was going on, one of my concerns was that it really put the government in a very conflicting position.

On the one hand, the government has defended the maintenance of this section in the criminal code. On the other hand, there have been numerous studies, some of them funded by the federal government, that show that corporal punishment is not effective in raising children.

In 1995 a review funded by federal departments of health and justice found that corporal punishment was associated with increased levels of aggression, that it was a predicator of delinquency and violence and crime in later life and that it was a risk factor for child abuse.

It seems one hand of government, in terms of studying the cause and effect of allowing physical violence against children, understands that the impacts and the consequences for children are severe both individually and for the interest of society as a whole. However the other hand of the government has not been prepared to move on the issue.

Fifteen federal government sponsored reports over the past 20 years have recommended the repeal or reconsideration of section 43, yet the government has refused to act on those recommendations. I find that astonishing,

On the other side of the question, the major argument is that somehow the state does not have a right to intervene in how parents raise or discipline their children. Making decisions about discipline, how we teach our children a right from a wrong and how we help them develop self control, is certainly one of our greatest challenges as parents and as a society.

The intent in the bill before us today is not to deny parents the right to discipline their children. That is absolutely not the intent. The purpose and the point of the bill is to say that this particular section does not belong in the criminal code. There have been arguments to suggest that, if the section is repealed, somehow there will be a flood of criminal investigations and prosecutions and parents will be charged. Again, as Corinne Robertshaw said this morning, this is something of a red herring. It is a smokescreen. Police and prosecutors have discretion in laying and prosecuting charges. It is very rare for minor breaches to be prosecuted.

The other argument I have heard against repealing section 43 is that sometimes educators or other persons, who are in positions of authority or substituting parents, say they then will not have the ability to defend themselves or that they will not be able to use reasonable force to defend themselves. Clearly sections 34 to 41 of the criminal code allow the use of reasonable force for self-defence, defence of others, defence of property and prevention of trespass. If there are concerns that the repeal of this section will somehow mean that teachers cannot properly defend themselves or use reasonable force, there are other aspects of the criminal code that would allow that to happen.

As I said earlier, the section has been the subject of legal challenge. This past September a case went before the Ontario court of appeal. Basically, the case was to have this aspect of the criminal code declared unconstitutional on the grounds that it was a legalized form of child abuse and therefore a violation of children's equality under the charter of rights and freedoms.

Although the decision was not positive in terms of repealing section 43, the justice who came down with the decision found evidence that spanking and corporal punishment was bad and that it was not a good thing to do. In fact he urged parliament to consider amending or changing section 43 to provide parents, police and teachers with specific criteria of what sort of force was reasonable. Clearly the courts, in considering this issue, have said it really belongs back within parliament and within government policy to sort this out.

The origin of the legal case is very interesting. Ailsa Watkinson, a social work professor at the University of Regina, began the court challenge in 1997 after a man who administered a spanking to his child in an Ontario parking lot was acquitted under section 43. That is really the clear evidence of how this section has been used in a way that undermines the health and well-being of children.

In the minutes remaining I want to look at the international situation, because it is not just within Canada that we are dealing with this issue. There is a debate going on. There is information available to show that corporal punishment both in the home and at school is banned in nine European countries, including Austria, Croatia, Norway, Italy, Latvia, Denmark, Finland, Cyprus and Sweden. Further, the countries of Italy, Germany, Bulgaria, Belgium and the Republic of Ireland are in the process of bringing forward legislation against the physical or corporal punishment of children. Clearly there are a number of national jurisdictions considering this issue and recognizing that they need to be proactive and positive in terms of upholding the rights of children.

As a result of being at the press conference today and having worked on this issue for a number of years now, I really believe that this is an issue on which the federal government must show some leadership. There have been a lot of studies done. There has been a lot of public debate. There have been legal challenges. I firmly believe that if the government is of the opinion that the international covenants on the rights of the child that have been signed by the government are to mean anything, then we must come to terms with the contradiction that exists in terms of section 43 and these other international conventions and all the studies that have been done.

I believe that in the interests of upholding protection for children and the well-being of children we should actually have a more fulsome debate on this matter. It should go to committee, and today I certainly welcome hearing from other members of the House their opinions about this important issue.

In closing, while I recognize that there are concerns from people about whether or not this is an interference in parenting rights, I believe there is an interest in society as a whole in making sure that we support families, that we support the health and well-being of children.

It is just hard to believe that this section in the criminal code is left over from 1892 when it was legally sanctioned that a man could beat his wife or servant or apprentice. It is left over from that period. We now have to come to terms with the contradictions that exist and we have to say that section 43 has no place in the criminal code.

What we should focus on is providing support, information and help to parents who are facing challenges. We should tell parents that there are many alternative forms of corrective discipline, which do not have to involve physical harm and physical force, and there are many programs and supports. In fact, it is very important to get the information out there. Parents do not have to rely on beating their child or hitting their child to change behaviour in the long run or to somehow improve what that child is doing. Most parents who engage in that kind of discipline often regret it. They often wish they had not done it. We have to reinforce that. We have to work positively with parents. That is a very important message that must come from the federal government.

I ask the government to consider the bill and to consider that it needs to have further debate and discussion. I ask the government to back up its own studies, to come through with the recommendations from its own studies and to make it clear that we should be removing section 43 of the criminal code.

[Libby Davies, NDP, Vancouver East, BC]

moved for leave to introduce Bill C-329, an act to amend the Criminal Code (protection of children).

Mr. Speaker, I am very happy to rise in the House today to reintroduce the bill in this session of parliament.

This is something that I care about very much. It is a bill that seeks to repeal section 43 of the Criminal Code of Canada. This section of the criminal code allows for the use of force as a means of correcting or disciplining a child.

Children are the only group in society that adults are allowed to use force against, as outlined in the current section 43 of the criminal code.

My bill would seek to uphold the rights of the child as outlined in international law and many other policies and programs of the government. It would also seek to enforce that there are adequate means of correction that need not involve physical harm or force against children.

I am very happy to introduce the bill in the House today.

(Motions deemed adopted, bill read the first time and printed)