Justice Committee on April 11th, 2024

[Peter Julian, NDP, New Westminster—Burnaby, BC]

That was very eloquently put, Mr. Garrison. Thank you very much for that.

That leads to the confusion that Mr. Housefather was speaking to as well. We have a situation that is entirely confused. We have a Supreme Court that today, 20 years later, because of the evolution of the law, because of understanding the science about the impacts of physical force used against children, because of the international evolution of countries that have decided in the interests of children, youth and their families that they need to move forward in stopping the use of physical force and punishment against children, and because of the organizations in Canada, health care organizations like the Canadian Medical Association and so many others, which have all said with one voice that we need to repeal section 43....

Mr. Garrison's point is a very valid one. We had a split decision. Twenty years later, we know far more, and it's time to take the step to repeal section 43 and put into place call to action number 6 from the Truth and Reconciliation Commission. I hope this committee will continue to further that work.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much for that.

We will suspend for a minute because we have two witnesses in the back who are going to come to the front and have one witness to be tested virtually.

[The Chair, Liberal, Lena Metlege Diab]

We have with us Dr. Joan Durrant, a professor at the University of Manitoba, appearing on her own behalf.

On behalf of the Association for Reformed Political Action Canada, we have John Sikkema, director of law and policy, and Daniel Zekveld, policy analyst.

On Zoom, we have, representing Canadian Coalition for the Rights of Children, Dr. Kate Butler, past chair.

Welcome to all of you.

You will have five minutes to make your opening remarks, and then we will go to questions from the committee members.

We will start with you, Dr. Durrant, if you are ready. You have five minutes.

[Dr. Joan Durrant, Professor, University of Manitoba, As an Individual]

Hello, and thank you for the invitation to speak with you today about this very important bill.

I'll quickly introduce myself. I'm a developmental psychologist and a retired professor in the college of medicine at the University of Manitoba. I've spent my 34-year career studying the corporal punishment of children. I've lived in Sweden extensively specifically to study the first corporal punishment ban in the world, and I've also travelled to New Zealand several times to study their prohibition. I'm a co-author of the “Joint Statement on Physical Punishment of Children and Youth”, which has now been endorsed by almost 700 professional organizations in Canada. I'm also the executive director of a non-profit parent support organization.

The scientific literature is highly consistent: Corporal punishment places children's healthy development at risk. Well over 100 studies conducted across a wide range of countries and cultures have found that corporal punishment has solely negative impacts, including more behaviour problems, more mental health problems, more dating violence, more intimate partner violence, poorer relationships with parents, slower cognitive development and disrupted brain development.

Some people suggest that behaviour problems elicit more corporal punishment rather than the other way around, but methods have been used to address this question, including longitudinal studies, intervention studies and very sophisticated statistical analyses. No matter the design or analytical approach, physical punishment only makes behaviour problems worse, even when the punishment is mild.

A meta-analysis was carried out of 75 studies of only spanking, and those punishments reliably predicted the same negative outcomes. There's no evidence that spanking benefits children in any way. If we want to promote children's healthy development, which I'm sure all of us here do, the last thing we should be doing is hitting them. This really shouldn't surprise us. None of us benefit from being hit, so why should children be any different?

Once a parent starts hitting, they've raised the stakes. If the child won't comply or can't comply, the parent is very likely to hit harder. In a matter of seconds, a spanking can turn into a beating or a homicide. A large study in Quebec found that children who are slapped and spanked are seven times more likely to be kicked, beaten and choked. Three national studies in Canada—the CIS—showed that 75% of child abuse cases began as physical punishment. When we [Technical Difficulty—Editor] children, we're placing those children at risk of increasingly severe violence.

When children are hit, they often become angry and resentful. In studies where children have been asked what it feels like to be smacked, they talk about wanting revenge and taking their anger out on others. They also learn that they're unworthy of basic respect. In these studies, children say things like, “You feel very little and not at all important to the world.” I don't think these are the thoughts we want to implant in children's minds.

We know a lot about discipline that does promote healthy development. Collaborative problem solving and emotion coaching are just two examples. These approaches give children skills to solve problems and resolve conflict so that rather than hitting them, parents learn how to strengthen children's emotion regulation, problem solving and communication.

As has been mentioned, corporal punishment is now against the law in 65 countries, two nations—Scotland and Wales—and 16 territories. Sweden was the first. I have seen absurd claims that Swedish parents have lost control of their children and the youth assault rate has skyrocketed. In fact, serious family assaults against children have declined, youth have become less involved in crime, and by 2006, Sweden had the lowest rate of bullying out of 40 countries. Systematic research on Swedish parenting has found that parents are not permissive. They are less punitive, but they're no less likely to intervene.

As has been mentioned, law reform is not followed by an increase in prosecutions. In many countries, reports of assaults against children increased, but that's the point: to make violence against children more visible and less acceptable. However, even where reporting has increased, the prosecution rate has not, and—

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Dr. Durrant.

You will get a chance to—

[Dr. Joan Durrant]

Thank you very much.

[The Chair, Liberal, Lena Metlege Diab]

I should have mentioned at the beginning that, due to the fact that we have three witnesses and that many members will want their turn to question, I will do my best to keep track of time. I will raise a card at 30 seconds without saying anything, but I will have to interrupt people when the time is up. I'm simply trying to give everybody a fair chance at the committee.

I will now turn to the Association for Reformed Political Action Canada. You have five minutes.

[Daniel Zekveld, Policy Analyst, Association for Reformed Political Action Canada]

Good morning. Thank you for inviting us to speak to you today regarding Bill C-273.

ARPA Canada believes Parliament must not repeal section 43 of the Criminal Code. I want to address this topic of corporal discipline in three brief points.

The first point, which underlies the rest of the conversation on corporal discipline, is about parental authority. The family has both natural and pre-political authority. That's why the Canadian Bill of Rights refers to “the position of the family in a society of free men and free institutions”, and why the Universal Declaration of Human Rights calls the family “the natural and fundamental group unit of society”. Respecting parental authority and family integrity means not interfering in families, particularly through the criminal law, without clearly compelling reasons.

Professor Melissa Moschella uses the analogy of intervening by force in another sovereign nation. She explains that the international community must respect the authority of sovereign states, but also has an obligation to help their people when they need it. Coercive interference in any circumstance requires extremely strong justification, such as serious human rights abuses or threatening the peace of other sovereign states. Likewise, every political community consists of families with their own authority. Although parental authority may be imperfect at times, the state must not intervene coercively, except in cases of serious abuse and neglect where parents are clearly failing to fulfill their role.

As mentioned already, Chief Justice Beverley McLachlin, writing for the Supreme Court of Canada in 2004, said:

...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.

My second point is that there is no adequate evidence that parents who use careful, measured corporal discipline are failing in their role as parents in a way that would merit state intrusion or prosecution of parents, which would cause serious disruption and harm children. Studies on corporal discipline often confuse the cause-and-effect relationship between corporal discipline and children's outcomes. Some studies assume that corporal discipline causes aggressive behaviour based on a correlation. However, it could be that aggressive children were disciplined more because they were more aggressive, rather than the reverse. Many studies fail to distinguish between harsh physical punishment and the measured physical discipline permitted by Canadian law. Not all forms of physical discipline are the same or have the same effects.

Before criminalizing corporal discipline, lawmakers should at least have strong evidence to demonstrate that it is much less effective than other methods. However, some studies have shown that physical discipline within reasonable limits is as good as or better than many other disciplinary tactics. The outcomes for children who receive corporal discipline depend on the type of discipline and on whether the family has a consistent set of guidelines for when and how corporal discipline is used.

Finally, other jurisdictions reveal that banning corporal discipline causes problems. For example, one Swedish psychiatrist argues that banning corporal discipline may make parents less willing to discipline or correct their children in any way. Since Sweden banned spanking, its rate of assaults of minors has increased dramatically. Examples from Austria and Germany show that parents who thought mild forms of corporal discipline were legal were less likely to resort to severe punishment than those who thought it was illegal. When no corporal discipline is permitted, parents may be more lenient until they reach a breaking point. Prohibitions on corporal discipline may also increase verbal hostility by parents, or increase the number of parents who are unable to control their children's behaviour. As such, permitting corporal discipline within reasonable boundaries, as Canada does, may prevent negative consequences.

In conclusion, this committee should support retaining section 43 of the Criminal Code. Doing so would align with the Supreme Court of Canada in respecting the responsibility of parents and the different ways parents may choose to raise their children. That said, if the committee believes further clarity is needed in section 43, the Criminal Code could be amended to include the Supreme Court's clarification about what constitutes reasonable force. These limits strike an appropriate balance that allows parents to raise their children as they see fit while also ensuring children are protected.

Thank you again for the opportunity to appear today. We're looking forward to any questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I will now go to Dr. Butler by video conference. You have five minutes.

[Dr. Kate Butler, Past Chair, Canadian Coalition for the Rights of Children]

Thank you so much, Madam Chair, for having me today to speak about Bill C-273. I'm so sorry not to be there in person. Instead, I'm calling from Toronto, which is on the traditional lands of the Mississaugas of the Credit—

[The Chair, Liberal, Lena Metlege Diab]

Please hold on a moment. It's very hard to hear you on this side.

Okay. Please continue.

[Dr. Kate Butler]

In these opening remarks, I’m going to speak about why Bill C-273 is an important step toward Canada meeting its international human rights obligations.

This colonial law allowing corporal punishment dates from 1892 and is a clear violation of children's protection rights, yet it remains in the Criminal Code. Canada has fallen behind the other 65 countries globally that have met their Convention on the Rights of the Child's obligations by prohibiting physical punishment in all contexts.

I speak to you today in my role as past chair of the Canadian Coalition for the Rights of Children and as a recognized children's rights expert with a Ph.D. in sociology. I've authored numerous articles and reports on children's rights in Canada and globally, with a specialization in protection rights.

The CCRC is a national umbrella group of organizations and individuals across Canada who promote the rights of children and the full implementation of the Convention on the Rights of the Child. We have led the civil society role in each of the four UN reviews of Canada under the Convention on the Rights of the Child, including leading the youth engagement part of the most recent UN review. We engaged hundreds of young people on behalf of the federal government. These young people, who are not here today, told us that violence in the home is an incredibly important issue to them. I wanted to bring along their voice with me today.

Members of the CCRC include such organizations as UNICEF Canada, which currently co-chairs the coalition, along with academics from all disciplines, indigenous groups, health groups and faith organizations.

As you've heard, corporal punishment refers to any form of punishment that is intended to cause physical pain to a person. It's the most common form of violence against children.

[The Chair, Liberal, Lena Metlege Diab]

Dr. Butler, I'm sorry to interrupt you, but I have a request from the interpreters. Could you slow down a bit?

[Dr. Kate Butler]

Sure.

Children are rights holders under the convention and also under Canadian law. We don't allow for any other group in Canada to legally face violence in the home, but we do for children. This is a gross violation of children's rights. I'm here to remind all of you that you represent constituents who are under the age of 18 as much as you do the adults, even if they can't vote. Supporting this bill is one step in the broader context of protecting children in Canada from violence.

Almost two years ago, Canada was reviewed by the United Nations Committee on the Rights of the Child. In their concluding observations, the committee recommended that Canada repeal section 43 of the Criminal Code and “explicitly prohibit all forms of violence against all age groups of children within the family, in schools and in other institutions”. They also suggested that we “promote positive, non-violent” child-rearing and conduct awareness campaigns. Canada was called out for not fulfilling its international obligations to protect children.

The UN committee is not the only one saying that Canada has failed to meet our obligations. In 2015, as Mr. Julian and Mr. Garrison noted earlier, the Truth and Reconciliation Commission of Canada released its summary report and calls to action. Call to action number 6 states, “We call upon the Government of Canada to repeal Section 43”. This makes visible a complex and multi-dimensional problem of child violence and well-being.

Canada is a pathfinder country in the global partnership to end violence against children campaign, housed at the World Health Organization. The current Liberal government signed on to be a pathfinder country in 2018, yet we still have not done the right thing to protect children in this country by moving to prohibit corporal punishment.

This bill has support from international human rights experts. I believe you've all read the letters. In the interests of time, I think I'll keep moving.

Violence against children is not a partisan issue. This is one that all your parties can and should support. Canada prides itself on being a leader in human rights, and this is a human rights issue. Our Prime Minister has told the world that Canada is back on the human rights scene. I ask all of you to consider how this bill would allow us to comply with international human rights laws and the Truth and Reconciliation Commission's calls to action, and would make us a leader in human rights again.

The Committee on the Rights of the Child has consistently called on Canada to prohibit all corporal punishment of children. Therefore, we ask you and your colleagues in the House of Commons to take the necessary steps to repeal section 43.

I look forward to your questions. I hope my sound quality worked out okay in the end.

Thank you so much.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We'll now begin with our first round of questioning of six minutes each. Again, I will try to be tactful with the 30 seconds, but I will need to stop you when the time is up.

We will start with Mr. Van Popta from the Conservative Party.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Madam Chair.

Thank you to the witnesses for being here.

We're talking about a private member's bill, Bill C-273, that would ban corporal punishment by repealing section 43. We heard in earlier testimony today that section 43 is a codification of the common law of defence for parents and teachers who would discipline their children.

Mr. Zekveld, in your testimony, you quoted from paragraph 62 of the Supreme Court of Canada decision of 2004, which actually upheld the constitutionality of section 43. I'm just going to reread one sentence from there and ask you to comment on it. This is what the chief justice said: “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’”.

To use the example from the lively exchange between my colleague Mr. Caputo and the sponsor of the bill, Mr. Julian, a gentle slap on the wrist would be criminalized given the broad wording of section 265 of the Criminal Code. Can you comment on that? Are we casting the net too widely by eliminating the section 43 defence altogether?

[Daniel Zekveld]

Certainly, it would cast the net too widely to repeal section 43 altogether. The Supreme Court has defined what kind of discipline would be allowable under section 43. It allows parents to use some corrective force to a child, but force that is not abusive. It's not done in anger but done for the benefit of the child, ultimately.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'm reading from a report that you submitted I believe to the Standing Senate Committee on Legal and Constitutional Affairs, which was studying this topic or maybe one of the predecessor bills that would ban section 43. In recommendation 3, you said that perhaps we could add a section 43.1, which would essentially codify the limitations the Supreme Court of Canada stated around section 43.

As you heard in earlier testimony today, after that Supreme Court of Canada decision, Parliament never got around to changing anything to section 43, so perhaps you could comment on the expansion that you propose by adding a section 43.1 for clarification.

[John Sikkema, Director, Law and Policy, Association for Reformed Political Action Canada]

I think this ties into a point that Mr. Caputo was making about part of the disagreement at the Supreme Court, which I think was largely about who should be clarifying the law, not necessarily that corporal discipline should not be permitted at all. I'll run through that really quickly.

We have six of nine judges agreeing that this is constitutional. Justice Binnie agrees in the result that it is constitutional for parents, so now we're at seven out of nine. Justice Arbour said there wasn't much to go on and that on its face, it's too vague and would permit the severe discipline of children and severe use of force. She said it should be Parliament that clarifies that. It was her position that we shouldn't be going through this and noting all the things it does not allow because that should be for Parliament. She said to send it to Parliament and let them fix it.

There was much more about the relationship between courts and Parliament behind Justice Arbour's dissent, and it was likewise with Justice Deschamps. As Mr. Garrison rightly pointed out, Justice Deschamps said that the Supreme Court was asked to rule on the constitutionality of this provision, not to reinterpret or basically amend the provision to make it constitutional. However, that's what the court did, and we can discuss whether that should have been Parliament. I think it's helpful, in certain ways, to have that embedded in the statute for clarity, but that's really what the Supreme Court did, and Justice Deschamps recognized that.

For two of the nine judges, I think what was behind much of their dissent was not that there should not be any form of corporal discipline at all permitted. It was about whose job it is to remedy provisions that on their face are not precise enough.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I'm going to ask you if you could submit your proposed section 43.1 to this committee for us to consider.

Moving on, I'm reading from briefing notes prepared by the Library of Parliament. I'm very confident in our analysts. They're talking about the disagreement among conflicting research on whether or not corporal punishment is helpful or hurtful, and they state, “The two main criticisms are that research on the negative effects of corporal punishment does not adequately distinguish between physical punishment and physical abuse”.

I'm wondering if you could comment on that briefly.

[Daniel Zekveld]

First of all, I'll note that we have submitted a written submission to this committee and that has the recommendation.

To comment on the question briefly, I would point to a couple of the studies that we reference in our written submission, which you should be receiving shortly. I would point to footnote 3, which has a couple of studies that explain some of the methodology used in research and how those issues get conflated. There's also a study reference there by advocates who support—

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mr. Zekveld. You may get a chance later. I appreciate your pointing out that you have already submitted or are submitting something in writing.

I should say for any of our witnesses that if there's anything you want to add, please submit it in writing.

I will now move to Mr. Mendicino for the Liberal Party of Canada.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you, Madam Chair.

Thank you to Mr. Julian for bringing forward this private member's bill. I appreciated his remarks at the outset.

I also want to thank the witnesses for their interventions and my colleagues across the table for their questions thus far.

I would submit to the witnesses that there is broad agreement among all parliamentarians and Canadians that children are among the most vulnerable populations in our country and must be protected. I would hope there's a very strong consensus that we must do our utmost to eliminate any violence towards them, whether it's physical, psychological, mental or otherwise. I take at face value that that's the objective of this bill.

Through the questions we've heard thus far, I think that as a result of the Supreme Court of Canada's decision back in 2004 on section 43 of the Criminal Code, which codifies a statutory defence when someone is charged with assaulting a child, there have been further interpretations on the extent to which that defence might apply to someone. What I'd like to do in my remaining minutes is really focus on the lively debate about whether or not any physical force is appropriate or justified to protect the child and others they may harm for a variety of reasons, including themselves.

As I interpret the Supreme Court of Canada's decision, we are really talking about children between the ages of two and 12 where the force is “reasonable under the circumstances”—to use the language of the Supreme Court—and, furthermore, where the reasonable exercise of that force is trifling and transitory.

Dr. Durrant, in your opinion, is there any circumstance in which...? Setting aside the use of the term “punishment”—because I think that imports many of the concerns that you and other experts have in this field—is there any physical force that can be exerted on a child between the ages of two and 12 that is trifling and transitory for the purposes of protecting them or others around them?

[Dr. Joan Durrant]

Yes. Absolutely. Children need protection. That's what this is all about. What we don't want is to have them hit, slapped, kicked and punched, which is what happens in real life.

Our legal system operates on the principle of discretion. Police have discretion. Prosecutors have discretion. Parents and teachers have the defence of necessity.

I'd like you all to think for one minute about the life of a group home worker, the life of a youth care worker, the life of a nurse in a personal care home and the lives of people who work in child care. None of them fall under section 43. They cannot claim that defence, yet they, every day and all day, are using force.

They dress people. They move people. They lift people. They carry people. They feed people. They impose force upon people for their care and protection. That is completely legal, and there are many defences.

They aren't dragged into court. How often do you hear about child care workers being dragged into court because they put a snowsuit on a child or they pulled a child away from something dangerous? That is care and protection. That is not what section 43 is about.

Section 43 comes from an 1860 decision in a case where a schoolmaster killed a student. He beat the child with a stick for two hours. The only reason that came to court was the child died. That would otherwise have been fine. He set the limit at killing the child, and we're fortunately moving that yardstick.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

Thank you for that clarification.

Would you agree that a full repeal would create further ambiguity for parents and teachers since it would remove what is now not only a codified defence, but a codified defence as upheld constitutionally by the Supreme Court of Canada in a way that I think you very compellingly explained does not apply to workers?

What you have described is the polar opposite of what I believe to be the genesis of the Truth and Reconciliation Commission's call to action for a full repeal, which was, of course, an evil and sadistic punishment—