Good afternoon.
Thank you for the opportunity to speak with you today.
My research and teaching at Queen's University's faculty of law focus on how the legal system affects young people—as victims and as persons charged with criminal offences—as well as their families and their teachers.
At the outset, I wish to state clearly, as previous witnesses have stated, that I share the goals of the sponsors of this bill: that is, to end the practice of the physical punishment of children and to promote their best care at home and in school.
That said, the question before Parliament is a specific one about the role of the law, and in particular the criminal law, in this area.
I wish to focus on three points in my opening comments: first, the TRC recommendation; second, the potential legal effects of repeal for families and children; and third, the demographics of parents and guardians most likely to be affected by repeal.
As everyone is aware, the TRC, in its sixth call to action, recommended repeal of section 43, and it did so to break with the legal and state systems that facilitated genocidal abuse against indigenous children in residential schools. In weighing repeal today, it's important to recall that section 43 is far narrower than it was historically. As you're aware, the Supreme Court of Canada read in significant limitations in 2004.
One of the potential impacts of repeal today is that it will contribute to a harsh culture of state intervention, including child removal, to which indigenous families and children are disproportionately subjected. In fact, I would argue that expanding criminal liability for parents may undercut recent initiatives to promote indigenous sovereignty over child protection, including the 2019 act, An Act respecting First Nations, Inuit and Métis children, youth and families.
This brings me to my second point, the potential legal effects of repeal. Canada defines assault in section 265 of the code very broadly to include any non-consensual physical contact beyond a de minimis level. How will the situation of repeal change this legal baseline?
Let me give you a brief example. Let's suppose a mother is placing a five-year-old in a car seat and the child keeps kicking at the parent and insisting they want to ride without a car seat. After struggling with the child and receiving several kicks to the chest and the chin, the mother strikes the child twice across the shins and instructs the child not to resist being placed in a car seat now or in the future. What are the potential consequences for the parent and the child if this incident comes to the attention of police, and how might that attention even happen?
The parent could be in a high-conflict divorce or acrimonious family situation, where the other parent will be interested in pursuing this as a criminal matter, or let's imagine this is a racialized family, a family recently arrived in Canada, or a first nations family that, for unrelated reasons, is subject to monitoring by child welfare. In a visit from a child welfare worker, the child will be interviewed separately from the mother—this is standard practice—and asked if the parent ever hits the child. The child might then explain that the mother hit their legs a few days ago getting them into the car.
It's very possible with repeal that at such a point there would be some involvement by police if child welfare workers and others in authority are aware that Parliament has repealed section 43 and such an incident constitutes a criminal assault.
This brings me to my third and final point, who is most likely to be subject to punitive intervention? This intervention may take a range of forms. It may mean at least some contact with police, perhaps a warning but perhaps a charge; perhaps a diversion by the Crown but perhaps also an assault charge that proceeds and to which the parent may ultimately plead guilty. That's statistically by far the most likely outcome when a charge does proceed. The parent may ultimately be given a conditional discharge that allows them to avoid a criminal record if they abide by certain conditions, but they may also be given a conditional sentence to be served in the community for which they will have a criminal record.
I'll wrap up now.