44th Parl. 1st Sess.
November 27, 2023 11:00AM
Mr. Speaker, I am pleased to join second reading debate on Bill C-273, an act to amend the Criminal Code with respect to Corinne’s Quest and the protection of children, which was introduced by the member for New Westminster—Burnaby on May 19, 2022.
Bill C-273 proposes to repeal section 43 of the Criminal Code, which provides a defence to parents, caregivers and teachers who apply reasonable force to children in their care. For parents and those exercising parental responsibilities, section 43 applies to the use of corporal punishment. This means that parents can use mild physical force, such as spanking or light hitting, to discipline a child in their care. Section 43 also allows parents to use physical control to restrain or remove a child in appropriate circumstances. The defence is more limited for teachers, who may never impose corporal punishment. Section 43 protects only the teacher who uses reasonable physical control to restrain or remove a child in appropriate circumstances.
Bill C-273 engages highly sensitive issues such as parental authority, children's rights, the appropriate role of government and the line between appropriate parental discipline and child abuse. We know that Canadians hold a wide range of views about what constitutes an acceptable level of physical discipline when parenting or teaching a child. These divergent views have prompted debates about what behaviours are harmful enough that they should be prohibited, while keeping in mind that how one chooses to parent their child is a deeply personal matter. I welcome the opportunity the bill before us has provided to consider these important questions.
The government supports Bill C-273 and its important objective of protecting children from violence and abuse. However, we have heard some concerns from parents, especially from over-policed demographics, and teachers that they may be criminalized for reasonable actions such as minor uses of physical control that do not cause harm.
Section 43 has been part of the Criminal Code, and largely unchanged, since 1892. Its origins flow from the parental duty to protect and educate children. The defence typically applies in relation to assault charges, because assault is broadly defined in the Criminal Code as the non-consensual application of force. This definition captures non-consensual touching or even threats against another person, regardless of their age or whether or not physical harm or injury occurs. Section 43 represents Parliament's attempt to avoid criminalizing certain conduct by teachers, parents and caregivers, but its application today is not intended to protect against abusive and harmful conduct.
The Supreme Court of Canada, in its 2004 decision Canadian Foundation for Children, Youth and the Law v. Canada, found that section 43 is consistent with sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms, and clarified that the defence applies only to parents who impose minor corporal punishment “of a transitory and trifling nature”. The court also set certain parameters on the defence. For example, the defence applies only where the child is aged two to 12 and is capable of learning from the situation. No object may be used when applying force. The child's head must not be slapped. There can be no physical harm or reasonable prospect of harm and the adult must not be acting out of frustration or anger. The court limited the defence even further for teachers, who may use reasonable physical control only to maintain order or enforce school rules, such as removing a child from a classroom or securing compliance with instructions. The court emphasized that corporal punishment by teachers is never permitted. Since the Supreme Court of Canada decision almost 20 years ago, evolving research and information on the harms associated with the physical discipline of children has resulted in increased calls for the repeal or reform of section 43.
The government is committed to implementing all of the calls to action stemming from the 2015 final report of the Truth and Reconciliation Commission of Canada. Repealing section 43 would be one more step in accomplishing that commitment, as repealing it would be in alignment with call to action No. 6. This call to action was supported by documented evidence of widespread corporal punishment and abuse of children by staff in the residential school system, with the commission noting in its final report that “[t]he failure to develop, implement, and monitor effective discipline sent an unspoken message that there were no real limits on what could be done to Aboriginal children within the walls of a residential school.”
Those who favour the full repeal of section 43, including many civil society organizations and the United Nations' Committee on the Rights of the Child, argue that the current criminal law does not provide children with the same protection as adults. Furthermore, a growing body of medical and social science research indicates that corporal punishment has a detrimental effect on children. Corporal punishment places children at risk of physical injury, physical abuse, impaired mental health, a poor parent-child relationship, increased childhood aggression and anti-social behaviour, and increased violence and criminal behaviour as adults, thus perpetuating cycles of violence. Over 650 organizations in Canada endorsed the position that the physical punishment of children and youth has no positive effects, and they called for the same protection from assault for children as that given to adults.
However, the complete repeal of section 43 raises concerns in some sectors. For instance, some religious organizations, legal experts and organizations representing teachers, such as the Canadian Teachers' Federation, have opposed the complete repeal of section 43, as it may leave teachers and parents vulnerable to charges for minor or trifling physical contact with children, such as preventing a fight between siblings or removing a student from a classroom for their own safety or that of other students. Without a defence for parents, teachers and caregivers who apply reasonable physical force to children in their care, the assault provisions may apply. This is because the assault provisions cover a very wide range of behaviour, which includes minor applications of force that do not result in physical injury. This could capture, for example, a parent restraining a child to put them in a car seat. As I alluded to earlier, it may also have an unintended negative impact on populations that are over-policed and that are overrepresented in the criminal justice and child welfare systems, including the indigenous and Black communities, as well as members of other racialized groups.
International responses to the question of corporal punishment reflect the divergent positions on this issue and the need to achieve a balanced approach. A growing number of countries, including Sweden, New Zealand, Scotland and Germany, have repealed legislative provisions that are similar to section 43, in order to prohibit corporal punishment. By contrast, some jurisdictions, such as Australia, for example, continue to provide protection to parents who use minor corrective force against their children.
It may be worth considering whether the defence could be tailored to address these various concerns by excluding from the scope corporal punishment, while allowing it for parents, caregivers and teachers who use minor physical force that is both transitory and trifling. In other words, forms of corporal punishment such as hitting and spanking would be excluded in all cases. Such an approach would also recognize the shifts in research and evidence regarding the harms that physical punishment poses for children, while trying to ensure that parents, caregivers and teachers can use minor, non-harmful physical force without being exposed to criminal liability. Changes in this area of the law would also impact provinces and territories, given their jurisdiction over the administration of justice, education and the provision of child welfare services. For this reason, it would be important to provide some time before reforms come into force, in order to allow the various parties to prepare for their effective implementation.
We all recognize the important role that education plays in encouraging safe and appropriate parenting practices. The current government has always and will always continue to support parenting education programs that promote the non-physical discipline of children and alternative disciplinary choices, and it regularly releases public education material targeted toward parents. Any reforms relating to section 43 would need to be accompanied by an educational campaign informing parents and teachers of the changes to the law and teaching alternatives to physical punishment. The Government of Canada is unwavering in its commitment to ensuring the protection and physical safety of children across the country. Bill C-273 would provide a valuable opportunity to develop a modern approach to the discipline of children, one which would ensure that children are protected from harm, while supporting reasonable choices by parents, teachers and caregivers.
I look forward to studying the bill at committee.
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Uqaqtittiji, I am proud to support Bill C-273. I thank my NDP colleague, the member for New Westminster—Burnaby, for introducing this bill in honour of Corinne's Quest. Bill C-273 will do great things if it is allowed to pass. It will protect children. It will end allowing adults to physically punish children. It will implement call to action number six from the Truth and Reconciliation Commission.
In my statement, I remind Canada that since 1892, the Criminal Code still allows for the physical punishment of children. I outline why the Truth and Reconciliation Commission would have introduced call to action number six. I remind Canadians about international law and conclude with Corinne's Quest to ensure her story remains alive as long as the physical punishment of children is legally allowed.
Spanking or hitting children as a form of punishment should never have been legally allowed in the first place. Section 43 of the Criminal Code allows it, and that is why, through Bill C-273, this section of the Criminal Code must be repealed. The current law in Canada states:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
Instead of protecting children, this section creates arguments for adults to make justifications for physically punishing children. Canada's history of making justifications for hitting children is deeply rooted. For indigenous peoples, it remains a part of federal genocidal policies.
For more than 150 years, Inuit, first nations and Métis were taken from their parents, families, homes and familiar environments and sent to attend schools run by churches. According to the National Centre for Truth and Reconciliation, the first church-run Indian residential school was opened in 1831. By the 1880s, the federal government was funding church-run residential schools. The aim, as we all know, was to “take the Indian out of the child”. Indigenous children were beaten, sexually abused and forced to be ashamed of who they were. They were beaten if they spoke even a word of any of their first nations, Métis or Inuit languages.
Survivors of residential schools only recently, in the last few years, have started openly sharing their experiences. We must honour their stories. I still remember vividly experiences shared with me from former students like Monica lttusardjuat, Ernie Bernhardt, Marie-Lucie Uviluq and Marius Tungilik, just to name a few. Horrid traumas were inflicted on them. Their stories guide me to this day.
I remind members that these stories were only allowed to be shared because of the great work of the Aboriginal Healing Foundation, which was so cruelly cut by the Conservative Party. This is at a time when so much healing is still much needed to this day.
In 2020, the University of Manitoba Press said that records showed everything from speaking one's aboriginal language to bed-wetting to running away provoked whippings, strappings, beatings and other forms of abuse and humiliation. This pattern continues in the foster care system. According to Indigenous Services Canada, 53.8% of children in foster care are indigenous, despite the fact that they make up only 7.7% of the Canadian population.
In November 2018, the University of Toronto said that, in many of these situations, children are taken from their home communities and raised elsewhere without regard for their language and culture. It also said that reports of maltreatment, neglect and abuse in the foster care system are rampant and that indigenous children are more than 3.4 times more likely to have a substantiated case of maltreatment in comparison to non-indigenous children. Also, the sixties scoop has been well know by indigenous peoples for generations. This phenomenon is only now becoming understood by mainstream Canada and reported by academics.
Canada's reconciliation with indigenous peoples still requires dedicated, well-invested and true commitment. Indigenous peoples have yet to experience active reconciliation. Banning the physical punishment of children would be a positive step. Justification for harming children can end. It can be the 44th Parliament that achieves this.
According to Indigenous Watchdog, a federally registered non-profit organization dedicated to monitoring and reporting on reconciliation, the government has only completed 13 of the 92 Truth and Reconciliation Commission's calls to action. It is obvious that reconciliation is not a commitment of this and past governments. Passing Bill C-273 would be a step in the right direction. It would be a small but important signal toward reconciliation.
In 1989, the United Nations adopted the Convention on the Rights of the Child, and Canada signed on shortly thereafter. The convention states, among other things:
States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
The Library of Parliament published “The ‘Spanking’ Law: Section 43 of the Criminal Code”, under its “HillStudies”, in June 2016. I note:
By maintaining Section 43 on the books, Canada is clearly in violation of a treaty it signed, and Canada has been repeatedly reminded of this fact by the UN. This, and other reasons provides Canada with ample reasons to repeal s. 43.
Canada must do its part. Sweden was the first country to ban it, in 1979, France banned it in 2018 and Scotland in 2019. Even China proposed legislation in 2021.
The main driver behind Bill C-273 has been an organization called Corinne's Quest. Corinne's Quest was founded in 1991 by retired lawyer Corinne Robertshaw, who was concerned with reports of child injuries and deaths caused by parents and caregivers. She fought for decades to repeal section 43 and finally end the physical punishment of children. While Corinne sadly passed away in 2013, her legacy lives on as Corinne's Quest. It has grown into a national collective of lawyers, pediatricians, social workers and teachers. Corinne's inspiring work and that of so many others can be completed with the passage of Bill C-273.
For these reasons, I urge all parliamentarians to support this bill. It is unacceptable that the Criminal Code still justifies the physical punishment of children. I remind Canadians of our responsibility to have reconciliation with indigenous peoples and to complete the TRC's calls to action. We must respect international law, especially with Canada's adoption of the United Nations Convention on the Rights of the Child. We must finish Corinne's work to protect children. More than anything, we must protect the indigenous children who are still in the foster care system.
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