House of Commons Hansard #227 of the 36th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was health.


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5 p.m.

Some hon. members


The House resumed consideration of Bill C-32, an act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, as reported (with amendment) from the committee; and of Group No. 1.

Canadian Environmental Protection Act, 1999Government Orders

5 p.m.


Peter Stoffer NDP Sackville—Eastern Shore, NS

Mr. Speaker, we just heard the government House leader shutting off debate on a very important pension bill. Before he leaves the House perhaps he will say that he will not cut off debate on the CEPA regulations in Bill C-32. I hope the government will pay attention and understand just exactly what in God's name we are talking about today.

My fear is that the government will cut off debate on this issue as well. It is probably one of the most important decisions facing us in the long term.

Bill C-32 was a piece of government legislation which obviously was not done very well. There were over 800 amendments to the bill. I do not know, but I am sure that has to be a record. It means that the environment department and the government do not care or are not concerned and are completely out to lunch on environmental matters.

I will exempt three members of the Liberal Party from my recent statement. They are the members for Davenport, Lac-Saint-Louis and York North. I happen to know these three members of the Liberal Party are deeply concerned about the environment. I know this because I have spoken to them and I have seen them.

The member for York North, through a lot of hard work and diligence on her part, just organized an eco-summit in the House of Commons. My comments to her are very sincere. We have heard prestigious people in Canada tell us their concerns regarding our environment, especially when it comes to air quality. I hope she can promise us that she will not allow the government to gut Bill C-32 as it is in its current state. If it is not in that state, I hope she votes against her government on this most important principle for the future of future generations and other species we share the country with.

A classic example of how business and friends of the government are putting pressure on the government in order to change the regulations is the aquaculture industry in Nova Scotia. It issues a paper called “Aquanotes”. I could not believe when I read it the other day. It said that Bill C-32 was coming down the pike. The environment committee was concerned about the chemicals, the additives and the pharmaceuticals going into fish products being produced in open net systems. Its comments were: “Watch out everybody, the battle has just begun”.

One would assume that a burgeoning industry like aquaculture would want a full environmental assessment and review of its day to day activities in order to protect and to advise the citizens of this country and of nations to which we export seafood that it is a healthy and very good product for them to consume. Why would the industry want to fight against any kind of environmental protection? It is in its best interest to work with environmental organizations and the provincial and federal environment departments to come up with the best solutions for the industry to convince and protect our citizens.

It is incredible that we as a nation have destroyed our inland fish stocks and on all three coasts. Now we are to grow fish in pens. We have absolutely no scientific or biological evidence on how to do it properly and the aquaculture industry fights tooth and nail on every environmental aspect. It is unbelievable that it would want to do that. One would think it would want to work with us in order to come up with long term solutions which will benefit it and our citizens.

I refer to a conversation I had when I participated in an environment committee hearing. Bloc, Conservative, Reform, Liberal and NDP members who participated in the marathon of lengthy Bill C-32 CEPA debates deserve the Order of Canada. On and on and on they went. They were very lengthy. There were some heated exchanges and there were some very long exchanges.

NDP put forward 100 amendments. That is our record. The member for Churchill River, a Metis aboriginal person, is so concerned about the environment that he always tells us in caucus that we have to use the seven generation principle. Whatever we do on this planet today, we must think about the seven generations down the road. What effect will it have on our great, great, great grandchildren? That is very worthy advice. We should all heed that very simple warning from our first nations people.

I asked a question in early April 1998 of the then deputy minister of the environment, Mr. Ian Glen. I asked him whether he had adequate human and financial resources to do his job properly. Mr. Glen replied “The fair answer, and I think it is becoming abundantly clear to people, is no”. He went to say that was one of the challenges they had within their organization. I bet if I asked that question today I would get an even more resounding no.

The government come in with Bill C-32. It was a mess when it came to committee. The committee in its wisdom put forth 800 amendments. As the member for Lac-Saint-Louis just said, it is not as strong as we would like but in its current form it is a pretty good compromise.

We have discussed the bill with many environmental groups including the Sierra Club, the World Wildlife Fund and others. They say it is not as strong as they would like but it is not bad. It is a good starting point for the future of our planet.

The government will not commit the human and financial resources to protect our country and our planet. That is unbelievable. What will we tell our children? I ask everybody here who has children, grandchildren or nieces or nephews, what they will tell them 20 years from now when they are possibly breathing with the help of an oxygen mask, when they are suffering from forms of cancer we never saw before, or when the rates of asthma have increased? What will they tell them? Will we tell them that we did not know, that we did not understand the problem?

Our lives are good right now but what about our children's lives? If we cannot think of our children, what are we doing here? This is not a piece of legislation to ignore. It is the most important piece of legislation we have in the House.

I made a statement the other day at the eco-summit because a few years ago when the current heritage minister was the environment minister she was quoted in the Globe and Mail as saying that she could not wait to get out of the lowly environment department and get a higher profile. That is what the Globe and Mail said a few years back.

Also the other day I asked some very prominent people why in federal and provincial legislatures the environment department is placed at the bottom of the list of cabinet ministers while the finance, industry, treasury board and trade ministers are at the top.

Without the environment these people would have nothing. It should be reversed. Everything around us and everything we do is contained within our environment. I make a passionate plea to all hon. members to turn their thinking around. Without fresh air, clean air, clean soil and water, without the biodiversity of the other species we share the planet with, we are nothing. We are just skin, bones and minerals. That is all we are. If we cannot think in those terms we are doomed in the long term.

The member for Lac-Saint-Louis talked about big industries saying that all the plants would shut down. What a load of bunk. It is an absolute load of crap. I am sorry to say that but the member is absolutely right. It is just a threat that we should ignore. We have to understand that we must make environmental protection as strong as we possibly can.

In my remaining time I wish to thank the following people for their efforts. First I thank Mr. Don Maclean for trying to prevent an expressway through the largest urban park in North America, the Red Hill Creek. He tried to stop that expressway so that people could go from one place to another faster. It would have destroyed the air quality of the Hamilton area and we do not need it.

I also thank Mr. Paul Muldoon, Ms. Elizabeth May of the Sierra Club and Mr. Mark Butler of the Ecology Action Centre. There are many others I could mention. These men and women are dedicated to preserving our environment, to working with federal and provincial governments of all political stripes in order that we can live in harmony with our planet and we can share our resources for seven generations down the road.

If we do not, as many other people have mentioned before me, we will be doomed. That will be the end of it because without a proper environment we can kiss our ass goodbye.

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5:10 p.m.


Paddy Torsney Liberal Burlington, ON

Mr. Speaker, I rise on a point of order. A lot of people have a lot of things to say about the bill and one of the things I would hope is that people would be accurate. The member opposite has just referenced quotes from the Globe and Mail

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5:10 p.m.

The Acting Speaker (Mr. McClelland)

That is debate. That is certainly not a point of order.

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5:10 p.m.


Karen Kraft Sloan Liberal York North, ON

Mr. Speaker, I have worked on this legislation since 1994 and it has been a long five years. I can attest to that.

We have before the House not just a set of amendments but a fundamental decision on the direction in which we will take the country with regard to environmental and health protection.

In this place we are the elected representatives of a free and a democratic nation. This is a privilege and a responsibility which we must take very seriously.

We have a huge responsibility to honour, respect and protect those things that Canadians cherish the most. The preservation of the natural environment and the protection of human health are two such things that Canadians feel very deeply about.

A dear friend of mine has said that the issue of the environment will be the defining issue of the 21st century. I say to my hon. colleagues in this place that over the course of this debate and the ensuing vote on the amendments to Bill C-32, the Canadian Environmental Protection Act, what we say and how we vote will define us.

I want to address one of the issues that an hon. member has already raised and that is the amendment to make changes to section 77(3), which deals with the removal of inherent toxicity. The government response in 1996 agreed with the standing committee that virtual elimination can be proposed for substances that are inherently toxic. Bill C-74 in 1996 also agreed with that. When the current bill, Bill C-32, came before the committee it also agreed with this point.

I made a lot of arguments on the issue of including inherent toxicity within the CEPA toxic definition. I was told that that was unacceptable and it could be handled in other ways, for example, in section 77(3). Therefore, I am very concerned that inherent toxicity has been taken out of this section. In the words that have already been uttered in this place by someone who has worked as a consultant and an environmental lawyer on this very legislation, this proposed amendment is very significant and would gut the bill of the significant direction taken in this clause toward inherent toxicity.

Two other issues that I would like to address deal with Motions Nos. 1 and 2, the phase-out of generation and use, and the motions dealing with virtual elimination.

The original definition of virtual elimination, as worded in Bill C-32, was seen to be too convoluted, conflicting and confusing to be effectively implemented. Under the advice of the Deputy Minister of Environment Canada, the government moved to amend the wording of virtual elimination in Bill C-32. This change adopts word for word the definition used in the 1995 toxic substance management policy, a policy adopted by the government in a multi-stakeholder process.

I would like to underscore for the House that it has been acceptable to industry for the past four years, yet in recent weeks and months industry lobbyists have mounted an assault on this provision.

The new amendment to Bill C-32 , if accepted, would diverge from the toxic substance management policy. Virtual elimination, as defined in the bill, will not shut down plants as asserted by industry. If this policy has been in effect for the past four years, why is investment not flooding out of this country? It is not.

I would also like to remind colleagues that while we are making decisions on a national piece of legislation, the effect of our decisions on virtual elimination will affect an international process that we are currently undergoing around the issue of persistent organic pollutants.

The title of this bill is the Canadian Environmental Protection Act, an act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development. This is not a sustainable development bill as asserted by the Reform Party. Get it straight, guys. This is a bill about the protection of the environment and human health. It only contributes to sustainable development. It is not a sustainable development bill.

The motion that deletes “generation and use” from the preamble will make it difficult to prevent pollution. By focusing only on the reduction of the release of pollution, it will make it difficult to work toward preventing pollution. Disasters such as Bhopal and other minor but more frequent incidents such as accidental discharges and spills result from the misguided notion of relying on containment only.

Various international toxic initiatives which have been taken, for example, by the UN, the OECD and the North American Commission for Environmental Co-operation, recognize that this is folly. They are moving toward use reduction and not just focusing on release.

Pollution prevention is a stated policy of the government. The bill, as it is before the House, with the inclusion of the reduction of generation and use, would better ensure pollution prevention. Its approaches, as I have mentioned, are closer to what is happening in the U.S. and Europe. If we allow this amendment to go through simply focusing on release will not be good enough.

I would ask hon. colleagues to consider how they want to define themselves and what it is that they want to stand for. If we want a bill that actually works toward the protection of the health of Canadians and the environment of Canadians we have to defeat the amendments that weaken this bill.

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5:20 p.m.

The Acting Speaker (Mr. McClelland)

The Parliamentary Secretary to the Minister of the Environment, earlier on a point of order, sent me a note requesting that if the member for Sackville—Musquodoboit Valley—Eastern Shore has a citation with regard to a quote of the present Minister of Canadian Heritage, perhaps he would make that available to the House.

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5:20 p.m.


Bernard Bigras Bloc Rosemont, QC

Mr. Speaker, it is with great pleasure that I rise today to speak to Bill C-32.

I would like to begin by congratulating my colleague, the member for Jonquière, on the excellent work she has done in recent weeks on this issue. As the former environment critic, I passed on to her all the material I had.

Having frequently discussed the bill with her, I think the member for Jonquière has done a good job of incorporating the concept of sustainable development favoured by the United Nations commission on the environment and development.

This fundamental concept, developed and put forward by Norway's Prime Minister Brundtland, clearly states that any economic development must now take environmental concerns into consideration. It is important that this be noted.

Whenever it has taken a position on environmental issues, the Bloc Quebecois has always borne in mind this fundamental concept that economic development must respect the environment. The member for Jonquière covered it well during her statements in committee.

Today, I am proud to take part in this debate. Basically, Bill C-32 introduces provisions to implement pollution prevention, new procedures for the investigation and assessment of substances, and new requirements with respect to substances that the Minister of the Environment and the Minister of Health have determined to be toxic.

The list of such substances is extensive and a few examples are in order. Investigators will be given new powers and there will be new regulatory measures to deal with offences.

A few months ago, some sensational statements were made. A number of senior officials of the Department of the Environment wondered very openly—and this was mentioned by the member who spoke before me—whether their department could still monitor offending businesses, so draconian had the cuts been.

Having sat on the standing committee on the environment with some of my colleagues from across the floor, I remember the eloquent representations that were to be reflected in the report tabled by the committee. This is a report that was rather staunchly defended by committee members a few months ago.

The report pointed out the lack of resources available to investigators. Today, it is said, we want to improve the Canadian Environmental Protection Act, commonly known as CEPA. However, it is regrettable that the Minister of Finance is not here today, as we undertake the debate to renew that act. It should be pointed out that investigators are not given the means to do their job properly. This is deplorable, if we basically want to ensure better environmental protection.

The question we must answer on this side of the House as representatives of Quebec is what powers will the renewed CEPA delegate to Quebec and the other provinces in Canada.

Although in theory Bill C-32 recognizes that responsibility for the environment is shared between the federal government and the provinces, in practice it delegates no powers to them. And this runs counter to real environmental harmonization between the various levels of government. Bill C-32 unfortunately aims at strengthening the federal government's preponderance in the field of environmental protection.

This centralization runs counter to the clearly expressed wish of the Quebec National Assembly to participate fully in the environmental assessment of any project on its territory. The bill is also in flagrant contradiction with the spirit of the harmonization process launched between the federal government and the provinces. This is why the Government of Quebec has pulled out of negotiations, and is looking further into this promising process.

The bill thus opens the door to duplication of federal and provincial powers. The federal government is justifying its interference in Quebec's areas of jurisdiction by invoking the recent supreme court decision with respect to Hydro-Québec. This case has always been contested by Quebec. All the courts that ruled on it, including Quebec's highest court, the Court of Appeal, declared the federal government's order invalid. Only the supreme court, with its unitary vision of Canada, overturned the Quebec court rulings.

Bill C-32 also contains a number of new features. For instance, the government wants to replace the existing federal-provincial CEPA committee with a new national advisory committee. This committee would consist of one representative each from Environment Canada and Health Canada, one representative from each province and territory, and up to six aboriginal representatives. This committee will advise the two federal ministers on the drafting of regulations, the management of toxic substances, and other matters of mutual interest.

We cannot understand why the bill clashes with the harmonization the government claims to have as a priority.

Let us not forget that Quebec refused to sign the Canadian Council of Ministers of the Environment agreement on January 29, 1998. When the Canadian Council of Ministers of the Environment met at that time, Quebec Environment Minister Paul Bégin refused to subscribe to that agreement, as long as the conditions called for by Quebec are not met by the federal government.

These conditions include recognizing that Quebec has primary jurisdiction in certain areas, under the Constitution.

The federal government has made a firm commitment to amend the federal legislation. This means Bill C-32, the purpose of which is to amend the Canadian Environmental Protection Act.

In addition, Quebec and the federal government have signed a bilateral agreement with respect to environmental assessments. As well, the minister—

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5:30 p.m.

The Deputy Speaker

I am sorry to interrupt the hon. member but time has run out. When debate resumes he will have two minutes left in which to complete his remarks.

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5:30 p.m.

Progressive Conservative

John Herron Progressive Conservative Fundy Royal, NB

Mr. Speaker, I rise on a point of order.

I am quite concerned. Just a few moments ago we were advised that there will be a briefing tomorrow at 11 a.m. in Room 215, Wellington Building concerning Bill C-32. I was under the impression that anything the government might want to say or not say with respect to this legislation would actually be said in the House of Commons.

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5:30 p.m.

The Deputy Speaker

I am afraid that does not sound like a point of order to me. I have to say to the hon. member that briefings around here are commonplace. I am sorry, I do not think there is a point of order there.

I am proposing that we proceed now to the consideration of Private Members' Business as listed on today's order paper.

Criminal CodePrivate Members' Business

May 12th, 1999 / 5:30 p.m.


Maurice Vellacott Reform Wanuskewin, SK


That, in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts and should invoke the notwithstanding clause of the Charter of Rights and Freedoms if necessary.

Mr. Speaker, it is a real pleasure to speak to Motion No. 528, a motion that would protect parents and their children from state intrusion.

The motion says that in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts. If the government does that, then all is fine and well and we may carry the day with that. It should also be prepared to invoke the notwithstanding clause of the charter of rights and freedoms if necessary. We believe that vigorous defence of section 43 of the Criminal Code in the courts would not even require that.

Under 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. The relevant statute is section 43 of the Criminal Code which reads as follows:

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.

Prior to the enactment of this section of the code there was no legislation placing limits on the use of physical correction, nor were there any government agencies to protect children from abuse.

It was precisely to protect children from abuse that section 43 of the Criminal Code was passed into law. Now thanks to section 43, parents cannot physically abuse their children in the name of discipline. As long as the police and the courts do their jobs, child abusers will be prosecuted under the law. In my view they ought to be, to the very full extent of the law and right up to the supreme court if necessary.

It is very ironic therefore that some people who want to remove section 43 from the Criminal Code argue that it only protects parents' rights when in fact parliament's original intent in framing section 43 was to protect children. These so-called child advocates have totally missed the point. They have missed the wise intention of parliament in giving us this part of the Criminal Code.

For that reason section 43 strikes that necessary balance between the rights of parents and the rights of children. On the one hand, parents must have the freedom to fulfil their responsibility to their children and to society to raise their children to be moral and decent people who respect others. On the other hand, children have the right to be free from physical abuse and bodily harm.

Section 43 strikes that appropriate balance. It is a good law that was well conceived, which has served its purpose well and continues to serve us well today. That is why I find it very disconcerting that some children's rights advocates want to see section 43 declared by the courts to be in violation of the charter of rights and freedoms.

This past fall a group which was thrown together very quickly called Justice for Children and Youth submitted an application to the Ontario court, general division asking the court to declare section 43 to be in violation of the charter and therefore unconstitutional. This case will be heard sometime in the coming months. If this group succeeds in having section 43 struck down, the results would be absurd and totally unacceptable in our country.

First of all many good and loving parents would be made into criminals overnight and could be charged under the Criminal Code. That would be a disgrace to our judicial system. The public gets frustrated enough when they hear about bizarre court rulings as we have had in Saskatchewan or B.C. or elsewhere, rulings that pose a threat to their freedoms and the well-being of their families.

If section 43 of the Criminal Code were to be struck down, the massive intrusion of the state into the private sphere that would result boggles the mind. Trudeau said that the state has no business being in the bedrooms of the nation, but anyone who removes section 43 will be moving the state right into the nation's family rooms. That would be tragic. The state makes a lousy parent and the state should not presume to tell parents how best to shape the moral character of their children as long as abuse is not involved.

That is why I have introduced this motion calling on the government to defend section 43 of the Criminal Code in the courts and to invoke the notwithstanding clause of the charter of rights and freedoms if necessary. We believe that would only be a last resort. If it does this vigorous defence of section 43 in the courts we will prevail.

The aim of this motion is to enable caring non-abusive parents to do the best job possible of raising their children to be responsible well-adjusted individuals and members of society.

Section 43 actually protects the rights of parents to raise their children in accordance with their moral and religious beliefs about effective child rearing. It protects the rights of parents to raise their children in accordance with their personal knowledge of the unique characteristics of their children. It also protects the rights of parents to raise their children in accordance with their understanding of how best to discipline children and to gain from their parents, to gain from other training and to gain from their own experiences during childhood.

The motion before us today accomplishes this goal in two ways. First, it requires that the government defend section 43 of the Criminal Code in the courts, to defend it vigorously and to use the best law resources in that defence. Second, in the event that one or more court rulings strikes down section 43, then the motion would commit the government to invoke the notwithstanding clause of the charter of rights and freedoms. Notwithstanding a court's decision to strike down the law, section 43 would then remain the law of the land.

After the Shaw decision in British Columbia on the right to have child pornography, I think that parliamentarians more than ever understand and realize that parliament has an obligation to protect Canadians from nonsensical judicial rulings.

While parenting has always been a challenge, raising children to be responsible and law-abiding members of society is more of a challenge today than ever before. The surge in violence during past decades testifies to this. The recent shootings in high schools in the U.S. and Canada have horrified all of us. Now is not the time to handcuff parents in their role as moral guides.

For all of these reasons, I have brought forward this initiative. I will read it into the record again:

That, in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts and should invoke the notwithstanding clause of the Charter of Rights and Freedoms if necessary.

I seek the unanimous consent of the House to have the motion before us deemed adopted and passed at this time.

Criminal CodePrivate Members' Business

5:35 p.m.

The Deputy Speaker

Is there unanimous consent that the motion be deemed adopted and passed at this time?

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5:35 p.m.

Some hon. members


Criminal CodePrivate Members' Business

5:35 p.m.

An hon. member


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5:35 p.m.


Maurice Vellacott Reform Wanuskewin, SK

Mr. Speaker, I would like to take the rest of my time to address some of the arguments that are used by—

Criminal CodePrivate Members' Business

5:35 p.m.

The Deputy Speaker

It is normal to move a motion at the end of the member's speech, but since it was a request for consent I will allow him to continue.

Criminal CodePrivate Members' Business

5:40 p.m.


Maurice Vellacott Reform Wanuskewin, SK

I would like to take the rest of my time to address some of the arguments that are used by those who oppose any form of physical correction. We might hear some of those arguments today from different members.

For example, how will this group, Justice for Children and Youth, argue in court against section 43? Maybe some of the very statements we will find in a somewhat empty way coming from the other side of the House today.

First, Justice for Children and Youth will argue that section 43 violates the charter of rights and freedoms because it discriminates on the basis of age. It will point out that because adults are protected by the law from assault, children should be protected from physical discipline.

The problem with that argument is that a swat on the bottom that gets a toddler's attention but which does not bruise or do physical harm is hardly analogous to an assault by one adult against another. In the case of adults, the intent is to do harm and the victim often winds up in the hospital. In the case of discipline by loving parents, the intention is simply to offer a negative consequence or, we might say, feedback for persistent misbehaviour and the child is in no way physically harmed by the discipline.

Second, when it gets to court this advocacy group is going to argue that physical discipline instead of changing a child's behaviour for the better causes aggressive tendencies in children. The assumption is that the child will imitate mom and dad. If mom and dad use physical discipline, the child who receives that discipline will start hitting others. When this argument gets made, we are going to see the absurd in the court system.

Academics who do research in the field of pediatrics are currently engaged in a debate over the effects of physical discipline on children. Does it improve compliance among children or does it increase aggressiveness? That is the question being asked by academic people. The debate can be highly technical. It is clear there is no scholarly consensus that has emerged in all the issues. In fact, many scholars agree that there is a woeful lack of research being done in this area, prompting some of them to call for greater attention and research.

The point is that this debate in academic halls is still very much in its infancy. Yet in the near future that debate is going to shift from the academic journals into the courts. A judge with no study and no academic background in this area is going to be hearing conflicting interpretations of research results and will have to make a decision. This shows just how absurd the situation with our courts has become under the charter.

Any interest group citing supposed research studies can walk into a courtroom and try to convince a judge that research shows that this or that is the case and that the charter is being violated. It is really an abuse of the court system, something the court system was never intended for, with judges being asked to settle academic research questions. That is the role of parliament. That is the role of this place. That is the role of committees in calling expert witnesses before committees when there is time for that kind of thing. Judges are not to make laws; they are simply to rule on the laws that are in place.

What does the research say about the effects of physical discipline on children? Does physical correction have positive outcomes or negative outcomes? Has it led to improved behaviour in children or has the misbehaviour continued accompanied by new aggressive tendencies? In one sense the researchers have come to contradictory conclusions, as I have indicated. Some studies have found negative outcomes, others positive.

I would like to describe why the conclusions have varied so much by referring to the work of Dr. Robert Larzelere, of the University of Nebraska medical school. He published in the Journal of Pediatrics , one of the most important resources on this very topic. He undertook a literature review of studies published in scholarly journals in the last 30 years. He studied 35 relevant articles.

Something rather important for us to note is that many of those studies, in fact the sum total of 24 of them, did not leave abusive dysfunctional family situations out of the research. In fact it came down to only being 11 of the studies that excluded abusive family situations. Of these 11 that left abusive family situations out of the research altogether, six of those studies showed beneficial outcomes, four of them showed neutral outcomes and only one showed negatived outcomes.

That suggests that when used properly by parents who truly love their children, physical correction has positive results and no negative results. Based on these studies, Dr. Larzelere was able to be specific about the kind of physical punishment that brings beneficial results. On average he found that in a loving, responsible, functional home situation there were beneficial results when corporal correction was used less than weekly.

There were beneficial results when corporal correction was used at non-abusive levels of severity. There were beneficial results when it was used by parents who were not physically violent against family members, for example a father beating a wife or vice versa.

There were beneficial results when it was used without a potentially damaging instrument. With corporal correction there were beneficial results when used from ages two to six. There were beneficial results when it was used privately, not in public. There were beneficial results when it was used with reasoning and explanation.

There were beneficial results when it was used with a moderate level of child distress. As well, there were beneficial results when corporal correction was used primarily as a back up for other methods of discipline. This back up threat made reasoning and time out more effective, so the need for physical punishment decreased over time.

Beneficial results occurred when corporal correction was used by loving parents who were positively involved with their child and had child oriented motivations. It was not about the parent. It was about the rearing and the constructive raising of that child.

Corporal correction did not increase the child's fear of parental discipline. It was beneficial when parents co-operated with each other in discipline responsibilities and did not use verbal putdowns. Corporal correction is also beneficial when parents change their main discipline method to grounding when their children got older.

Based on those 11 studies that excluded abusive family situations, physical correction was seen to have positive results in six of the studies, neutral results in four, and negative results in one.

I would contend in view of this information that many of the studies had some flawed methodology weaknesses. Of the 35 studies, in fact 24 did. Of the other 11 studies it was found that on the basis of positive, responsible parenting in other ways there was positive benefit.

In my summary at the end of the hour I will refer to some follow-up research done by Marjorie Gunnoe, some very extensive confirmation of these findings. Again I ask for unanimous consent for this motion to be deemed adopted in the House today.

Criminal CodePrivate Members' Business

5:45 p.m.

The Deputy Speaker

Is there unanimous consent that the motion be deemed adopted?

Criminal CodePrivate Members' Business

5:45 p.m.

Some hon. members


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5:45 p.m.

Some hon. members


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5:45 p.m.


Ted McWhinney Liberal Vancouver Quadra, BC

Mr. Speaker, the government has no difficulty with a great deal of the hon. member for Wanuskewin's address. We do have difficulty with the introduction and the tail of his motion of a subsidiary proposal of constitutional change. That is something I will address a little later.

In relation to section 43 of the Criminal Code, it is very clear that Canadian criminal law does not condone or authorize the abuse of children. Section 43 in its context is merely a limited defence to a charge of assault. There are several key points which we should emphasize. It only applies to a parent, teacher or person acting in the place of a parent and only in respect to a pupil or child under that person's care. The person is only permitted to use this defence if force was 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 section 43 as a defence. Finally, on the issue of proportionality, the force used must be reasonable in the circumstances.

A court asked to consider applying section 43 in any given case would look at the nature of the child's behaviour or action calling for correction, as well as the age of the child, the severity of the punishment, including any injuries suffered by the child.

When determining whether the force used is reasonable the standard is the community standard of reasonableness. There is a warning that if one goes beyond these limits one may find oneself before a criminal court, and in appropriate cases criminal prosecution will be pursued.

It is on the more general issue that we felt we should add some comments to what the hon. member for Wanuskewin said. Lawmaking in Canada follows Jeremy Benthan's euphemism that law is not made by judge alone; it is made by judge and company. There is a continuum in the law making process. Judges, university law schools, law reviews and the legal profession have put in their criticisms. To a very considerable extent our courts have developed a highly nuanced relationship with the rest of the legal company. Courts very rarely say tout court, that is out, that is illegal. They offer suggestions for changes and modifications and the sensible response of a ministry of justice is to consider these, to take them into account and to come back afresh.

This is ordinary legislation. It is not constitutional law. It can be changed, as can any court decision on it, by subsequent legislation if parliament thinks so fit. This is in fact a fairly normal operation with criminal law today.

The legal company involved in monitoring the Criminal Code is very large and very well informed. It has contributed significantly to the progressive evolution of our criminal law.

On the notwithstanding clause I should express the reservations which I advanced in an earlier debate concerning the B.C. decision, the intermediate court decision in the child pornography case.

First, there seems to be a certain misunderstanding of the history and the nature of the notwithstanding clause. Perhaps this is understandable if we consider that the premiers who insisted on putting it into the charter of rights may again be said not to have been fully aware of the constitutional implications of what they were dealing with. There were not very many constitutional scholars among them.

As it stands, the notwithstanding clause is a prior issue. It is addressed to a government introducing new legislation. One can put it in there if one wishes, but Mr. Trudeau said that it would be a tragedy if any federal parliament decided to use the notwithstanding clause in that way.

As the House knows, the only significant use of it has been in a fit of haste, the reaction of the premier of Quebec toward what he felt was the way the gang of eight premiers behaved in relation to the adoption of Constitution Act, 1982, and the charter of rights. We would regard it as a regrettable step backward if the federal government were to use the notwithstanding clause. There are other ways.

This is not the United States Supreme Court where there is an unbridgable gap or barrier between the courts and Congress, and where one has to get a constitutional amendment, essentially, to overturn a judicial decision. Hon. members will be aware that when the United States court outlawed income taxation on constitutional grounds it took a constitutional amendment to override that.

Our situation is different and, in relation to the criminal law, if parliament should think that the court has misconstrued the careful balance, the pragmatic balance that it has made in relation to section 43, it is open to parliament to make amendment. It is open for the legal community as a whole to offer the amendments.

In that context we would reaffirm that the notwithstanding clause is, and I think this was the view of Mr. Trudeau, a constitutional aberration. I would reaffirm that it is wrong to use it, as has been suggested with very little care or thought, as a method of appeal from a judgment of an intermediate court as was proposed in relation to the British Columbia judgment. The appeal process must go its way.

This legislature, this parliament, which is a vestigial court in its own right by the way, is bound by doctrines of comity and mutual respect to co-ordinate institutions of government. It would be quite inappropriate for this court to attempt to meddle with a decision that is being appealed. It would be discourteous. It would be, in a very large sense, unconstitutional.

I would suggest to the hon. member, who is very thoughtful and informed in this area, that we should concentrate on the substance of the bill. We believe section 43 will withstand challenge. The government is committed to defending it in the courts. If there are judicial decisions cutting down its scope, we will study them with care and the proper respect due to the co-ordinate authority and we will bring our suggestions to the House.

I thank the hon. member again for his intervention. On the substance of his remarks on criminal law, the government finds it co-ordinates very much with what we have been suggesting in relation to this bill. On the larger question I would hope that on reflection he would agree. We understand the sentiments he is expressing, but the notwithstanding clause is not the way.

Criminal CodePrivate Members' Business

5:55 p.m.

Progressive Conservative

Peter MacKay Progressive Conservative Pictou—Antigonish—Guysborough, NS

Mr. Speaker, I am honoured to speak to Motion No. 528. I am always honoured to follow the lead of the hon. member for Vancouver Quadra who I think has added, in his very articulate and vastly insightful way, to the debate today.

I am pleased to have an opportunity to address the motion which defends section 43 of the Criminal Code and invokes the notwithstanding clause of the Canadian Charter of Rights and Freedoms when necessary. I suppose that when necessary clause defines the issue to some degree.

Is there a need? Is there a pressing concern that would require this to happen? That in and of itself is something that could be debated for some time. I am not questioning the merits of what the hon. member has done by bringing the issue forward. It is my feeling and the feeling of my party that this debate is useful to clarify and perhaps reinforce section 43, in particular for the sake of many parents and teachers who deal with the challenges of raising and educating today's youth.

Parliament has in its wisdom enacted such a section of the Criminal Code. I would go further and say that it has been consistently upheld by our courts at the provincial supreme court and Supreme Court of Canada levels. Consistently case law suggests that it has been upheld.

There are instances of which hon. members have been made aware or perhaps personally encountered where the degree of force has been brought into question as to how much or how far a parent or person acting in the stead of a parent can go in correcting a misbehaving child or youth.

Again I do not mean to trivialize the issue in any way by saying that this is not a wildfire epidemic which is sweeping the country. I am not aware at least of any issue of spanking taking place throughout the country that has resulted in a major court challenge or in repeated community disruption.

The wording in the section defines the issue, and that is reasonableness and community standard. These words are encompassed in the Criminal Code. They define how far a parent or a person in a parent's place can go in disciplining a child in response to a misbehaviour or perhaps an action taken by a child. I do not feel that section 43 is in any jeopardy at this time.

The hon. member also brought forward certain studies and psychological and methodological evidence which is also helpful in the debate to define just how far a parent can go and the reaction or the response of that child to physical correction.

As well it helps to define the fact that this is not a situation where we are talking about child abuse. I do not believe the line is that grey at the present time. There are instances where quite clearly the corrective methods undertaken are disproportionate and very injurious to a child.

The hon. member referenced the fact that there were instances that one can envision when harsh words and a berating attitude or a barrage of language can be perhaps even more painful and have more deleterious and lasting effects on a child than, for lack of a better word, a simple physical corrective measure where a child is stopped physically, for example, from picking on a younger sibling or partaking in what is deemed to be a dangerous activity; a teacher takes a child firmly by the arm and marches him or her down to the principal's office; or one simply removes something from the child's possession if it poses a danger to himself or herself or another child.

These types of physical corrective measures are envisioned by section 43 of the Criminal Code and certainly the type of measures to which my hon. colleague refers in his remarks. All of that to say that I do not see the line as being that blurred when one applies the reasonableness and the community standard test in place currently in the Criminal Code.

When physical injury results, when marks are left on a child because of the overreaction of a parent or a person in authority, that would cross the line. When that occurs and matters, through the natural course, wind up before the courts, and there is an opportunity for a judge to review the evidence and the circumstances, this section is put to the test.

It is understandable that there is concern about this. However, I would suggest once more that this is not a matter which is in need, at least at this point, of taking what I would suggest in the context of the greater debate would be a disproportionate response, that being the use of the notwithstanding clause.

By invoking the notwithstanding clause, as was referred to by the hon. member opposite from Vancouver Quadra, the pith and the substance of doing that would be tantamount to a parent overreacting and responding in a very disproportionate way and using a far too extreme form of response or violence to what a child has done.

I do not mean to diminish what the hon. member is trying to accomplish, but even the reference of the notwithstanding clause in relation to this section, I suggest with all respect, diminishes the importance of what this section is really intended to do in the context of our Constitution and in the context of the application of it to our criminal law.

We have seen cases that have come forward quite recently, such as the case of the Queen and Sharpe and the Queen and Feeney, in which there is perhaps a need for discussion in the context of what those cases dealt with. When it comes to the protection of children from exploitation through pornography, when it comes to the rules and the laws of search and seizure that empower police officers in pursuit of criminals that have engaged in very violent activity, those are recent examples for which one might envision the invoking of the notwithstanding clause.

For those not intimately familiar with this, what it would do is essentially strike down a judge's decision and delay or put into abeyance the significance of the ruling for a period of five years.

In the greater context, I reiterate with all respect that using this type of constitutional power in the context of this section would be extremely ill-founded and ill-timed.

Turning back to the substantive debate, what is being discussed is the use of corrective proportionate response in the disciplining of a child. It is fair to say that in these very trying and troubling times, for youth who are in need of an early start and proper direction in their lives, there are occasions. Mr. Speaker, you may have been subjected to a spanking at some point in your life, as well as other members present. I am sure that it made an impression, but not the type of impression that would leave a mark on one's physical person. We are talking about the type of impression that leaves a person with the feeling that perhaps they have done something wrong and that they should not engage in that type of activity.

When we talk about this type of physical corrective measure we have to be very prudent in encouraging people to do it on the one hand, but at the same time we do not want to exaggerate the impact this would have on a child.

When we talk about this section of the Criminal Code, we want to be careful not to dismiss the issue of child abuse because that is something that is not sanctioned by section 43 of the Criminal Code. It is there to ensure that children are protected, but that parents and those acting in the place of a parent are permitted in certain very specific instances and factual circumstances to exercise discretion and the implicit responsibility that they have to physically correct a child, and often to do so for the protection of that child.

I am very supportive of the efforts the hon. member has made in bringing this matter to the floor of the House of Commons. I am very pleased to take part in the debate, but I would again suggest that this is not a Criminal Code section that is in jeopardy currently. It is not a Criminal Code section that is in danger at this time of being struck down by any current litigation of which I am aware. The issue itself bears discussion and it will continue to be respected by our judiciary and by those in the country who hope to and who will uphold the laws of the land.

Criminal CodePrivate Members' Business

6:05 p.m.


Gordon Earle NDP Halifax West, NS

Mr. Speaker, I am pleased to have the opportunity to rise to speak to Motion No. 528, which reads as follows:

That, in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts and should invoke the notwithstanding clause of the Charter of Rights and Freedoms if necessary.

What exactly does Section 43 of the Criminal Code state? It deals with the correction of a child by force. It states:

Every schoolteacher, parent or person standing in 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.

Therein lies the rub, “what is reasonable under the circumstances”. We know that what may appear reasonable to one person may certainly be unreasonable to others.

We oppose this motion. We feel that, if anything, section 43 should be repealed, whereas this motion talks about maintaining section 43. We feel that it should be repealed because it is a 19th century law that was first codified in 1892 which legally sanctions physical violence against children. It should be repealed, not preserved.

Section 43 has been used as a successful criminal defence by parents who have hit their children with straps, belts, sticks and extension cords, causing bruises, welts and abrasions. People have used this defence in court to justify that behaviour toward children.

Children are the only class of Canadian citizens who can legally be assaulted for their correction. We do not hit adults to correct them. We gave up years ago using the whip to correct adults, but for some reason we feel that we can assault children to correct them.

People have argued that this does not have any adverse effect upon children. We agree that it is obvious children have to be taught and socialized, but the legal right to hit them as a method of training is wrong because it is contrary to basic human rights. It promotes violence as a legitimate response to conflict and it leads to physical and emotional harm to thousands of children each year.

They can talk about all the studies they want. People can pick the studies they want to support their point of view. I am going to give a very real example of how such physical activity, allegedly to correct a child and probably done by the people involved thinking it was reasonable under the circumstances, affected one individual in Canada, and I am sure he is only one among many.

A constituent wrote to me. I checked with him before coming here tonight to ask if I could talk a bit about his case. He said “By all means. Use my name if necessary”, but I will not use his name. This young fellow was adopted in 1956 and lived in a small village in Nova Scotia. He talks about his early childhood when he had a very severe bed wetting problem. What was his parents' response to this bed wetting problem? They would spank him to try to cure him of it. That was their strategy. Instead of curing it, it got worse.

At the age of five he began school. He talks about the principal as being a huge, six-foot, four-inch tall monster, with a stern face and a very cold personality. He tells us that this person would discipline him. He had only been in school a couple of weeks when he received his first strapping. He said: “Boy did it hurt. It made my father's spanking feel like child's play. I stood there with my hand out and I was given 15 straps on each hand. I was bawling my eyes out and screaming at the top of my lungs. The louder I screamed, the harder this person strapped”.

Finally it got so bad he said “I pissed my pants. After the strapping I was sent back to class in my wet pants until it was time to go home”. When he got home his mother said “Well, you must have done something to deserve it”. He was then given a spanking for wetting his pants. This was all sanctioned under the code. He was spanked. The mother was enraged and said “He is not only bed wetting now but he is also wetting his pants”.

This continued until the end of grade one. Then he moved into grade two. In grade two his principal was a bulky man, about 230 pounds and five feet eight inches tall and made his previous principal look like a boy scout by comparison. The same thing happened. He was strapped almost daily. He said “I was strapped approximately 60 to 70 times in that year and my spirit was definitely broken”. To make matters worse, the bullies in his class would chase him home and beat him up.

He said “At eight years old I was a tortured, scared little boy, very quickly filling with hatred and anxiety and wishing I was dead”. He talks further about how this kind of abuse continued in the school system, condoned by the law the Reform Party would like to maintain and buttress up.

He said “Life had become unbearable and I remember praying to God on many occasions to let me die and end this insanity. It had come to the point where every day after school I would run out of school as soon as the bell rang and head straight for the woods behind the school and work my way through the woods in order not to be seen by people and to be beat up by these bullies. Every morning as the class sang O Canada I would be strapped for running home through the woods rather than walking home in an orderly fashion”.

It is a matter of interpretation when people talk about what is reasonable and unreasonable. I am sure the school authorities of the day would argue that they were using reasonable means to train these children and to bring them up in a proper way so that they would behave properly. We see this activity as far from reasonable, but people want to maintain this kind of activity.

Over the period of four years he was strapped 300 to 400 times. When he turned 13 years old, in order to gain acceptance from his fellow classmates, he turned to alcohol and smoking pot. It became an addiction. This was the effect of this kind of discipline and activity in his life. I am sure there are many people out there who find themselves in similar circumstances and who over the years have experienced what has been correction by force.

There are contemporary parenting courses and publications on child rearing and discipline that give effective and practical advice on non-violent alternatives to spanking and hitting. Sure it takes a little bit more work.

My hon. friend from the Conservative Party said that it was necessary sometimes to have to discipline a child in this way. We have to find other ways to discipline our children so we are not hitting them. When we hit a child it in turn teaches them to hit others and we see it accelerating.

Look at some of the activities taking place today in the school system and some of the actions of children right across the country where they have no respect for other people. Part of it is probably because they have not been respected as a person. We do not respect a person when we are so much larger than they are and we grab them when they have no defence and physically shake or spank them.

The bottom line is we must always ask ourselves how would we like to be treated? Would we appreciate someone grabbing us and spanking us? Perhaps some people would. In all honesty no one wants to be overpowered by someone bigger than themselves. They do not want to feel helpless and defenceless while they are physically struck. This is what we are talking about.

We have to look at other means of disciplining our children. Give them guidance, give them love, give them direction. Set an example that they would want to follow rather than show them that it is okay for someone bigger than they are to hit them in order to correct them. We must ask ourselves are we treating people in the way we want to be treated?

The Reform Party pays great lip service to family values and the importance of children, but it does not appear to care about protecting children from the physical and emotional pain of violent abuse which is currently safeguarded by section 43. In advocating the preservation of this section that justifies and rationalizes corporal punishment, the Reform Party is ignoring the fact that current conditions are intolerable.

There were 4,229 substantiated cases of physical abuse investigated in Ontario alone in 1993. Attempts to discipline by corporal punishment were suspected in 85% of the substantiated cases. People oftentimes start out lightly disciplining but as the child gets a little more stubborn, all of a sudden the parent gets a little more forceful and what started out perhaps as a gentle spanking ends up being much worse.

I urge all members of the House to look realistically at this. They should not try to justify it because of what may have happened to them in the past, and say “Well, I was spanked and I am okay”. They should look realistically at what it is doing to children and be honest with themselves and decide to oppose the motion and all forms of physical violence to children.

Criminal CodePrivate Members' Business

6:15 p.m.

The Deputy Speaker

If the hon. member for Wanuskewin speaks now he will close the debate.