You have 30 seconds.
Evidence of meeting #100 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was child.
A recording is available from Parliament.
Evidence of meeting #100 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was child.
A recording is available from Parliament.
Liberal
Marco Mendicino Liberal Eglinton—Lawrence, ON
—and torture visited upon first nations, Inuit and Métis children across the land. That's not what you're talking about. Is that correct?
Professor, University of Manitoba, As an Individual
No. Of course, any severe violence against a child is an assault.
If you're worried about two fingers tapping a hand, I'd like to ask you this: Has that child turned two or are they turning two tomorrow? If they're turning two tomorrow, that is already against the law. An 18-month-old or anybody below two years old cannot be hit in any way.
Professor, University of Manitoba, As an Individual
That is already against the law, as is hitting a child in frustration.
Liberal
The Chair Liberal Lena Metlege Diab
Thank you, Dr. Durrant.
I will now move to the Bloc and Monsieur Fortin.
It's your turn for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
I would like to thank all the witnesses for being here this morning. It's invaluable.
Unfortunately, I have not read the provision that Mr. Sikkema or Mr. Zekveld proposed adding to the Criminal Code, section 43.1. From what I understand, they're going to send it to us. I am interested and look forward to reading it.
I would like to hear what you have to say on this issue, Professor Durrant. I appreciated your testimony. What you said made sense. I wish I had an hour with you instead of five minutes. I would like to hear more from you about what we should do.
I am concerned about the fact that the use of force is often necessary to control children. Having raised children, and my wife being a teacher, I know how it goes. However, I understand that the current section 43 allows for the use of force to control or discipline a child, but in a reasonable manner. Now that we're about to remove it, I think we have to be very careful. I'm not saying it's not a good idea, but I'm hesitant. I think we have to be careful, because we're talking about criminalizing behaviour. We are talking about a mother or father who could eventually be sent to prison for something they did.
As a result, I feel I have to be careful, and I'd like to hear your opinion. Would it not be a good idea to amend section 43 by adding a provision that would clarify what is allowed and what is not, based on previous court decisions? That would ensure that teachers and parents could do their jobs as teachers and parents. Whether this new provision is numbered 43.1 or 43(b) matters little—to me, the numbering is a detail.
As far as I'm concerned, it's quite clear that hitting a child with a stick is not acceptable. It's not even debatable. You gave the example, going back to 1916 or 1816, of a teacher who ended up killing a child. That's obviously not acceptable. However, let's set aside the extreme cases; otherwise, it will never end. In your opinion, would it not be a better idea to clarify, in section 43, what can and cannot be done with respect to the use of force against children rather than to blindly eliminate section 43?
Professor, University of Manitoba, As an Individual
No, I do not. I think that's a terrible idea. The reason is this. This is the human rights committee. This is a committee that makes decisions on the basis of universal human rights. Children are the only people who are not protected from assault. They are the only ones with this exemption.
Think for a moment about the Criminal Code of the past. There was once an exemption in section 43 for masters of apprentices. They could hit their apprentices. They no longer can. There was section 44, which exempted captains of naval vessels for using force to correct and discipline. That was repealed in 2001. Captains of ships cannot use corporal punishment. In fact, that was an even broader defence. That was just force to keep things under control. They can't. The only people who can be hit under Canadian law are children—two-year-olds, who are defenceless. They are completely dependent on their parents. I think this idea that it's only about keeping the law or doing nothing is a real red herring.
What I spend my life doing now is helping parents learn how to manage their frustration, how to understand why children do what they do and how to guide those children in a way that promotes their brain development, promotes their emotional development and keeps them safe. Why would we put into Canada's law in 2024 all the ways you can hit a child? That would be an international embarrassment.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Excuse me, I don't mean to be rude, but I have about a minute or less of my speaking time left. I want to make sure I cover the various aspects of this.
My colleague Mr. Mendicino, whom I hold in high regard, spoke earlier about corporal punishment being an assault on children.
As we know, these words have a very violent connotation. I think an act as extreme as assaulting a child is unacceptable as it is. However, section 43 mentions the use of force. I would like us to examine the distinctions we need to make. If I correctly understand your testimony, there are none to make. You say that the only people who can be hit are children.
That is obviously not what we want, but the idea of the use of force seems to me much broader than the act of hitting. The use of force could include all kinds of behaviours.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
That's why I liked the idea of distinguishing between those behaviours.
In your opinion, there is no distinguishing. Any use of force toward a child should be prohibited. Is that correct?
Professor, University of Manitoba, As an Individual
No, it's not. It's corrective force, section 43—force by way of correction, which means punishment.
Every other law like it around the world has been worded with things like “chastisement” or “punishment”. They've used those words. For some reason, when they codified Canada's Criminal Code, they used the word “correction”. It's about punishment. That law is about punishment, and the Supreme Court tried to create a new law, but they can't do that. We have many other defences—
Liberal
The Chair Liberal Lena Metlege Diab
We'll now move, for the final six minutes in the first round, to the New Democratic Party and Mr. Garrison.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I want to start by saying how fortunate I think we are to have Dr. Durrant and Dr. Butler here, who have extensive experience in both in research and advocacy on the topic that's before us today. I want to start with a question for both of you that's really begun to perplex me this morning as we have these questions.
This committee recently dealt with coercive controlling behaviour in intimate partner relationships. We are seeking to amend the Criminal Code to prohibit forms of violence additional to physical violence. We've dealt with questions of elder abuse and have sought to make sure that elders in care are not subject to violence.
My question is for both of you, and I'll start with Dr. Butler.
I don't understand why somehow we're having a debate today about how much violence against children is acceptable when we don't have that debate about anybody else in our society. Maybe I'm asking you an impossible question, but it's a frustrating question for me this morning.
Past Chair, Canadian Coalition for the Rights of Children
It's a frustrating one for me too. I believe when we tell children that corporal punishment is still legal in Canada, we're saying that their humanity is valued less than that of adults, that our convenience trumps their rights, that they have to bend their self-expression to the will of adults.
Canada ranks very low among its peer countries in awareness of children's rights, so corporal punishment is both a symptom and a cause in that regard.
I'll pause there, because I know Dr. Durrant has something to add to this. Yes, I agree with you. We are not sending the right message to Canadian children that we value their rights.
Professor, University of Manitoba, As an Individual
We absolutely need to recognize children as human beings.
I think comments about parental authority.... Parents don't lose their authority when they stop hitting children. They actually gain more authority. They gain more respect. We've learned from many studies that when children are punished in this way, they are afraid. They become dishonest and start to distance themselves from their parents. They don't go to their parents when they have problems because they're afraid of them. We need to help parents reduce the fear and strengthen the relationship. In other countries, there has been so much effort put into supporting parents. We need to do that in Canada.
We value families. Families are the centre. Families are precious. I am a parent and I am a member of a family. Families are the source of population health. The ultimate predictor of health is trust and attachment between parent and child. When we start hitting them, we start to erode and destroy that. We need to focus on building attachment, building strong families and building strong parent-child relationships. That's what I do every day of my life.
When parents ask me, “What do I do instead?”, I realize how poor a job we have done if we can't come up with a better solution than hitting. Corporal punishment is the training ground for coercive control. I think we all need to give some thought to the resentment, hostility and anger building up in children that can't be expressed but very well could be when they're caring for us. I think a lot of elder abuse is rooted in the experiences children had when they were young. That comes back to haunt us. We know clearly that children who are physically punished are more likely to bully, engage in dating violence and engage in intimate partner violence.
I will never forget a woman who told me, “When I was a child, my father would hit me and tell me he does it because he loves me. My entire life, I have only been involved with violent men. I've been held captive. I've been choked and strangled because they tell me they love me. I learned very young, when it was embedded in my brain, that violence equals love. That set me on a pathway and has been my entire life.”
We have to come to terms with this and realize what we're actually talking about. We're talking about using violence to coerce children. We're not talking about protection. We're not talking about putting them in car seats. We're not talking about pulling them out of traffic. We do that every day. We do that all the time. If we're worried about that, we should think.
The Supreme Court said on section 43 that there's no punishment of children under two. Those are the children most likely to be hit, actually. We all know why. They are very active and don't have much language. Have we seen a rush into the courts by parents of children under two? Have we seen a rush of apprehensions of children under two? The Supreme Court also said that hitting a child in anger or frustration is now against the law. How many parents are hitting children when they are not frustrated? Have we seen a rush of frustrated parents being pulled into the courts? No.
These are all red herrings. We're talking about a principle. The Standing Committee on Justice and Human Rights needs to understand that we are denying children the basic, most fundamental right to protection. Canada is a laggard. When I work internationally, which I do a lot—
Professor, University of Manitoba, As an Individual
—people are shocked.
Liberal
The Chair Liberal Lena Metlege Diab
I'm going to interrupt to start our second round. We will keep time, because we only have limited time left.
We will go to Ms. Gladu for five minutes.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
Thank you, Chair, and thank you to all the witnesses for being with us today.
First I want to say that we've heard a lot today about people being choked or strangled, or children being assaulted or killed, and I want it to be clear on the record that these things are already illegal in Canada today. Regardless of what happens with section 43, those things are already illegal.
What we're talking about with section 43 is what kind of protection ought to be offered to parents and teachers in the reasonable raising of children. Look at the Supreme Court decision that upheld section 43 in 2004 and listen to what it had to say. I'm going to read from a study:
...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.
It goes on:
According to the [SCC] 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.
We know that when courts make decisions, they always talk about precedent cases, and they don't just talk about the law; they talk about the interpretation that people gave in those precedent cases. I believe the Supreme Court's interpretation, which was accepted in the majority...and honestly, from the views we've heard of the dissenters, even the dissenters would like what I just read to you.
My question is for ARPA. Do you think the private member's bill is necessary, considering that the Supreme Court has already upheld this?
Director, Law and Policy, Association for Reformed Political Action Canada
No. Obviously the private member's bill would fundamentally change the law. I know there's been some discussion of what other common law defences would then come into effect. The Library of Parliament's paper on this gives a helpful summary of that. It's just that there's a lot of vagueness around the de minimis defence, which has not really been applied in this context. The defence of necessity would clearly protect you when you pull a child out of the way of traffic, but would not defend you if you make a child go to a chair or stay in a chair for a time out. That's the line that Justice McLachlin used.
As for the de minimis defence, Justice Arbour in her dissent noted that this defence would need appropriate expansion to cover some of the things we wouldn't want to capture. Even in the dissenting opinion, there's a recognition that something in the law would need to change, whether through Parliament amending the law or through new judicial interpretations of that defence.
Just removing this provision and doing nothing else I think does cause problems that the Supreme Court had a view to avoiding.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
What kind of negative consequences do you expect if this section is repealed?
Director, Law and Policy, Association for Reformed Political Action Canada
The Supreme Court noted in its judgment the importance of balancing the need of children to have safety, psychological integrity and well-being with their need for family integrity and family cohesion. It said that parents would not be subject to reports, investigation and prosecution—although possibly rarely—as that disrupts the family and is in that way damaging to children.
Conservative
Marilyn Gladu Conservative Sarnia—Lambton, ON
Having had children myself, I would say that if you have a three-year-old and want to get them out the door in the morning and put their shoes on, you may find you have a struggle and they don't want to put their shoes on. You can ask them multiple times, but they don't, and you end up having to forcibly get them on your lap and put their shoes on. This is the kind of forcible restraining that I think people are worried about when they see the repealing of this section.
My daughter is a teacher at a school where, as we've heard, there is increasing violence. Students attacked her with a knife when she was pregnant. Being able to restrain the child and taking the child to the principal's office are protections for other children as well as the teachers.
It would be concerning to me to see this repealed altogether. What would be your opinion about that?
That's for John again.