Senator Boyer: Thank you for the question. I don’t have anything to do with litigation. However, I can connect you with the people who do.

I know that there is a lot of litigation going on. The implications are that the women are being heard. The Saskatchewan case is waiting for certification at the moment, and I believe it’s coming shortly. Once that starts rolling, we will be seeing it in other provinces as well. That’s just one more tool. This bill is a tool, and the class actions are a tool. Together, I think there must be a huge, several-pronged approach to eradicating this. Those are only two tools. We need to have the medical associations on side. We need to have a huge national approach. Thank you for raising the issue of litigation because I think the litigation is important. However, I do not have anything to do with it.

(On motion of Senator Wells, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Kutcher, seconded by the Honourable Senator Boehm, for the second reading of Bill S-251, An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6).

Hon. Chantal Petitclerc: Before I begin, I want to tell you, Senator Boyer, how grateful I am not only for the work that you do, but also for this powerful and necessary speech. Meegwetch.

[Translation]

Honourable senators, I rise today to support Senator Kutcher’s bill, Bill S-251, which would repeal section 43 of the Criminal Code. Senators will recall that, in principle, this section allows every schoolteacher, parent or person standing in the place of a parent to exercise what is called “reasonable” force toward a child under his care.

In 2017, I spoke to a similar bill introduced by Senator Hervieux-Payette. My opinion hasn’t changed. I’m among those who believe that section 43 is outdated and that it no longer belongs in our criminal law. The implicit and ambiguous message that it sends is that force is still a useful and justifiable tool to compel a child to follow the rules.

[English]

The vulnerability of children implies our responsibility to protect them from any form of physical correction, regardless of its nature and intensity. Every Canadian, no matter their age, must feel and know that they are safe from their first day on earth to their last.

The question of whether section 43 should be retained or repealed is linked to how we truly choose to treat our children in Canadian society.

Our Criminal Code is a living document that helps us collectively distinguish between what is acceptable and what is not. It regulates many aspects of our lives together on the basis of our values and principles, which are, of course, constantly evolving.

The rule concerning the right of lawful correction was incorporated into the first version of our Criminal Code in 1892. As many have said before me in their speeches, it was a different time — a time when excessive force was acceptable in many aspects of society, including to educate children and discipline them.

[Translation]

Fortunately, a society is not static. It can learn, improve and transform through social experiment, research and the protection of rights. These changes and transformations are voluntary and have an impact on the rules of law, which are then amended to reflect the current reality. That is the exercise that Bill S-251 invites us to engage in.

In the recent debate on Bill C-5, which seeks to repeal certain minimum sentences, Senator Gold spoke of, and I quote:

 . . . Parliament’s exclusive jurisdiction to set policy and pass legislation — dealing with criminal law in general . . . .

The Supreme Court also recognized this prerogative of Parliament on several occasions.

[English]

As such, Parliament has chosen to amend our Criminal Code on several occasions on substantive issues. To name a few: in 1969, the decriminalization of medical abortions; in 1972, the abolition of whipping as a criminal sentence; in 1976, the abolition of the death penalty; and most recently, the legalization of cannabis and medical assistance in dying.

This exclusive competence of Parliament has been fully exercised on all of these issues in order to reflect our ever‑changing social reality.

[Translation]

The Senate understood very well what this exclusive jurisdiction meant. The Supreme Court had already ruled on the constitutionality of section 43 and limited its use in 2004 in its ruling in the Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) case. Four years after that important ruling, the Senate even passed at third reading Bill S-209, which further limited the scope and use of section 43. However, that bill died on the Order Paper in the other place when an election was called.

[English]

Let’s be clear: As we begin 2023, spanking is not banned in Canada. What the current state of law tells us is that it is prohibited to inflict punishment by means of an object or blow to the head of a child. Is this sufficient protection for our children? I don’t think so because as long as section 43 exists, moderate bare-handed spanking of a child between the ages of 2 and 12 will be tolerated — not prohibited — in Canada. This is written in black and white on the Justice Canada website under the title “Criminal Law and Managing Children’s Behaviour.” A question on this web page asks, “Is spanking illegal?” Let me quote the answer that is provided:

Spanking is a form of physical punishment that some parents use on children and, depending on the circumstances, could be illegal. Because of section 43, spanking is not necessarily a criminal offence if the Supreme Court of Canada’s guidelines are followed. However, in some circumstances, spanking could still be considered child abuse under provincial and territorial laws and could lead to action taken by child protection authorities.

Like many here, I am very uncomfortable with so many nuances and grey areas. I agree with the experts who tell us that it is not enough to discourage the use of spanking. It must simply be banned. This bill gives us the opportunity.

[Translation]

In 1998, former justice minister Allan Rock responded as follows in a letter to the Canadian Foundation for Children, Youth and the Law, and I quote:

[English]

Section 43 in no way condones or authorizes the physical abuse of children. However, it does attempt to strike a balance by protecting children from abuse while still allowing parents to correct their children within contemporary limits that are acceptable to Canadian society.

I repeat: “within contemporary limits.”

[Translation]

With what we know today, in 2023, what are these contemporary limits that may have been considered acceptable, even in 1998, but are no longer acceptable now?

[English]

I want to believe that — a quarter of a century later — our contemporary limits have evolved, fuelled by evidence-based research and our commitment to the rights of children.

Moreover, honourable colleagues, if, like me, you have asked yourself how to interpret reasonable force, here is an answer provided by a professor of criminal law, Wayne Renke of the University of Alberta, who states, “As society evolves so does the interpretation of what is reasonable.”

[Translation]

In light of these observations, the main question Senator Kutcher’s bill asks is whether we, as parliamentarians of the 21st century, find it acceptable that a 19th-century provision of Canadian criminal law that allows a parent or teacher to raise a hand against a child between the ages of two and 12 has a place today, in 2023. That is the first substantive question this bill invites us to answer.

The second question is this: Does section 43 offer any real protection or provide a useful and necessary defence?

[English]

There are two possible scenarios: The first is when the responsible adult, in the urgency and need of the moment, has to use force for the child’s safety. In this scenario, it seems clear to me that the adult is protected by the law. I find it hard to imagine that a parent or an educator who restrains a reckless child — saving the child from an accident, but injuring the child in the process — will need a provision such as section 43 to protect himself or herself from lawsuits which are highly unlikely.

[Translation]

In another scenario, if the parent or teacher were to be deliberately abusive, section 43 would be of no use before a judge. That would be an instance of false protection.

If a person acts spontaneously to keep a child safe, that person doesn’t need protection from section 43.

If a person uses their strength and power against a child abusively, they can’t use section 43 as a defence.

Moreover, given that research and contemporary thought indicate that there’s no such thing as “reasonable” force when it comes to disciplining a child, of what use is section 43, other than to justify archaic behaviour and perhaps our own insecurities?

[English]

Why not remove it and leave it to the judge, where charges are laid, to determine the seriousness of the facts, and whether correction is inflicted or force is used within reasonable limits?

I hope that sending this bill to committee will be an opportunity to shed more light on how this means of defence has been used so far in court — under what conditions, how often and with what results. A study in committee would have the merit of updating our knowledge and legal interpretation of the concepts “right of correction,” “self-defence” and “use of force within reasonable limits.”

[Translation]

In closing, I would argue that there’s no good reason to keep this section, and conversely, that there are several good reasons to repeal it.

Repealing section 43 sends a message to all Canadians that it is possible to guide a child’s behaviour without using any form of physical discipline.

Thank goodness the days of children being second-class citizens meant to be controlled at all costs are long gone.

The more we move forward, the more we talk about personal growth, self-reliance, and developing the strengths of our youth.

Look at the results. Our young people are fantastic when they come to this chamber and to our offices. They’re full of questions, initiative and curiosity. Shouldn’t we be doing everything we can to make sure they thrive safely?

[English]

Repealing section 43 equates to listening to science. Evidence‑based science has evolved since 2004 when the Supreme Court made its ruling. There is now a better understanding of the psychological consequences of violence — in all its forms — on individuals. Modern expert opinion recognizes no educational value associated with corporal punishment — it is not only counterproductive but also, above all, harmful to emotional development. This has been, as you know, amply demonstrated by Senator Kutcher and others.

[Translation]

Repealing section 43, as Senator Moodie reminded us, would allow us to meet our international obligations by giving Canadian children the status conferred on them by treaties and conventions that we have ratified.

[English]

And, finally, repealing section 43 will respond to Call to Action No. 6 from the Truth and Reconciliation Commission. The Government of Canada is committed to endorsing all of the recommendations from the Truth and Reconciliation Commission — one of which is the call for the repeal of section 43. This bill presents us with an opportunity to do our part — an opportunity that must not be missed.

[Translation]

I sincerely hope that this bill will be quickly sent back to committee. I said the following in 2017 and I will say it again:

Honourable colleagues, we are not going to be flooded with hundreds of emails about this bill. It is no wonder, given that the main people it affects are not even old enough to write yet . . .

 — let alone vote.

That is how vulnerable they are, which is why we have a responsibility to protect them.

The interest of adults must never trump the protection of children.

[English]

I leave you, dear colleagues, with these powerful words from Nelson Mandela: “We owe our children, the most vulnerable citizens in our society, a life free from violence and fear.”

Meegwetch. Thank you.

(On motion of Senator Martin, debate adjourned.)

Hon. Senators: Hear, hear!

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. It’s very nice to be back in the saddle.

As we know from reading the report this morning, colleagues, the CBC has no plans to move to full streaming any time in the near future. It’s simply beginning to speculate as to what the future will bring and it’s trying to anticipate the changes that are under way given the proliferation and ubiquitousness of digital technology. Right now, there are lots of Canadians and communities who rely upon traditional broadcasting and radio, and they can continue to rely on the CBC and others in that regard.

This is a conversation about the future of broadcasting and the CBC that the government expects to have in the years to come. But for the time being, the government will continue to ensure that the CBC/Radio-Canada maintains its reputation as a world-class national broadcaster and that it continues to serve Canadians.

Hon. Lucie Moncion, Chair of the Standing Committee on Internal Economy, Budgets and Administration, presented the following report:

Tuesday, February 7, 2023

The Standing Committee on Internal Economy, Budgets and Administration has the honour to present its

SEVENTH REPORT

Your committee, which is authorized by the Rules of the Senate to consider financial and administrative matters, pursuant to the Senate Administration Rules, to prepare estimates of the sum that will be required from Parliament for the services of the Senate, has approved the Senate Main Estimates for the fiscal year 2023-24 and recommends their adoption.

A summary of these Estimates is appended to this report. Your committee notes that the proposed total is $126,694,386.

Respectfully submitted,

LUCIE MONCION

Chair

(For text of budget, see today’s Journals of the Senate, p. 1225.)

Hon. Jane Cordy: Senator Gold, recent data released by Statistics Canada shows some positive progress when it comes to higher education levels for Black Canadians, and this is good news. Statistics also show that the percentage of Black Canadians who achieved a bachelor’s degree or higher from a university is on par with the national average, and this is also good news. However, when it comes to employment, the statistics show that 16% of Black Canadians are overqualified for their job, so, Senator Gold, they’re underemployed. Black Canadians are still facing real barriers within the labour market.

Senator Gold, in the Government of Canada’s capacity as the largest single employer in Canada, with close to 320,000 public service employees across the country, what steps have been taken to remove these systemic barriers to equal access and equal opportunities within the public service for Black Canadians?

Hon. Marc Gold (Government Representative in the Senate): I thank the honourable senator for his question. It is my understanding that the Government of Canada has been in regular contact with its U.S. counterparts for some time to discuss all issues related to the Safe Third Country Agreement. Based on the information I have, the discussions have been positive but have not concluded. The discussions are ongoing.

Hon. Jean-Guy Dagenais: My question is for the Leader of the Government in the Senate. I want to come back to the problem of Roxham Road, which is still very accessible, allowing for illegal border crossings into Canada and allowing unscrupulous smugglers to make money by extorting poor people. Despite the lofty promises your government has been making over and over again for over a year, stating that it is negotiating a new agreement with the Americans, we can only say that nothing has changed. Despite millions in questionable spending to obtain immigration advice from the McKinsey firm, nothing has changed.

On December 14, the Minister of Public Safety, Marco Mendicino, said that an agreement had been reached with the Americans. Two weeks ago, the Minister of Immigration, Sean Fraser, said the opposite. Somebody is going to have to tell us the truth. I have some questions. Who’s telling the truth and who’s lying? Where do we stand?

Senator Housakos: Government leader, your answer does not correlate with the facts. Over the last decade, we’ve seen the CBC reducing regional service to an enormous degree, simultaneously spending millions of dollars toward the digital platforms, and that is a fact. The only thing we can’t really determine is how much of taxpayers’ money they are actually spending to convert to digital.

Let’s try another question. Senator Gold, the minister responsible for your government’s online censorship bill, Bill C-11, has written a letter to the chair of the CRTC, whom the minister himself had just appointed, expressing concerns that his bill could be used to infringe on freedom of expression. Shocking. The bill is still before Parliament, so I’m not so sure why the minister would write a letter instead of just writing something in the actual bill to protect against the very thing we have been raising concerns about all along, which is the trampling of the freedom of expression.

Senator Gold, are the members of your government, the Trudeau government, unaware that they are in government and that it’s not being done to them, but it’s being done to Canadians by them? Why is the minister sending a letter to his appointee?

Senator Dagenais: This morning, the Parliamentary Budget Officer appeared before the Standing Senate Committee on National Finance, of which I’m a member, and told us that he was unable to calculate how much your government is spending on welcoming immigrants because Immigration, Refugees and Citizenship Canada has classified that information as secret. The fact that the government is hiding the amount of this spending from Canadians only raises questions in my mind as to whether there’s something underhanded or improper happening here. To my knowledge, no state secrets are at stake. I’d like to know how your government justifies keeping this spending a secret.

Hon. Donald Neil Plett (Leader of the Opposition): Leader, let’s continue in the same vein of the question that Senator Dagenais raised about Roxham Road.

The Trudeau government has done nothing — absolutely nothing — to fix the Safe Third Country Agreement with the United States and has presided over massive backlogs at the immigration department for people waiting patiently to come to Canada legally.

Last weekend, leader, the New York Post reported that U.S. National Guard soldiers have been distributing free bus tickets at the Port Authority Bus Terminal in Manhattan to asylum seekers in order to take them to our border so they can illegally enter Canada at Roxham Road in your province and that of Senator Dagenais.

When did the Trudeau government learn that American authorities are giving free bus tickets to people seeking to cross into Canada at Roxham Road? If you don’t have the answer, please get it for us. Has your government raised that practice with the Biden Administration, and if not, why not?

Senator Plett: In December, leader, the RCMP intercepted 4,689 people at Roxham Road. This is more than the total number of people who entered Canada at Roxham Road in all of 2021 combined. The situation is getting worse, yet the Trudeau government told Canadians last month not to expect a resolution to this when the Prime Minister meets with President Biden in March.

If you’re not going to fix the agreement with the Americans anytime soon, what exactly is the Trudeau government’s answer to Roxham Road, leader? Is it for the immigration department to keep giving taxpayer money to Liberal-friendly consultants at McKinsey?

Senator Gold: I guess Bill C-11 is the gift that keeps on giving, doesn’t it, Senator Housakos?

Look, the question of how any legislation affects our fundamental rights and freedoms is a serious one, so I will answer seriously. I’m not aware of the letter, so I can’t comment on that, but it’s sufficient to say and it’s the responsible thing for any government to ensure that those who are charged with enforcing the law — once this law does come into force — understand their obligations to respect our fundamental freedoms as guaranteed by the Charter of Rights and Freedoms. In that regard, there is no need to do anything further in the law.

The government’s position has always been that the law is not a censorship bill, despite how many times you keep repeating it, senator. Moreover, anything that we pass in Parliament is subject to the terms of the Canadian Charter of Rights and Freedoms. There has been no “notwithstanding” clause invoked in Bill C-11 or in any other bill this government has introduced.

[Translation]

Hon. Pierre-Hugues Boisvenu: Welcome to the Senate, Senator Gold. Since Bill C-5 came into force, two violent sex offenders, a drug trafficker possessing a prohibited and loaded firearm, and a stepmother who beat and starved her 11-year-old stepson received a sentence to be served at home rather than in prison. Senator Gold, I’d like to remind you of what you said in this place when we debated Bill C-5.

We absolutely agree that serious criminal behaviour should be met with serious sanctions. Under Bill C-5, the offences listed in this amendment will continue to result in a prison sentence almost all of the time.

Do you believe that sexually assaulting someone, beating and starving a child and drug trafficking with prohibited firearms constitute serious criminal behaviour?

Senator Boisvenu: It would appear that the Supreme Court doesn’t trust its judges. As recently as the last few years, the Supreme Court has asked judges to treat sexual assault cases more harshly. This means that the sentences weren’t severe enough in the past.

Minister Lametti told us publicly in committee that Bill C-5 “. . . does not affect mandatory minimum sentences for sexual assault.” Two violent sex offenders received house arrest; in that case, the Crown attorney stated the following: “. . . Justin Trudeau and [Minister of Justice] David Lametti probably have some explaining to do to victims . . .”. Once again, victims’ trust in the justice system is shattered. I remind you that the four cases cited are in Quebec.

Senator Gold, will your government explain itself to victims of crime sooner rather than later?

Hon. Marc Gold (Government Representative in the Senate): The actions you described are deplorable, but as I’ve said several times during the debates on the bill you mentioned, we must have confidence in the judges to assess the circumstances on a case-by-case basis and determine the appropriate sentence. The Government of Canada has confidence in its judges and in its judicial system.

Hon. Ratna Omidvar: Welcome back, Senator Gold. It’s good to see you looking fit and healthy.

I want to shift our attention to global affairs and, in particular, the feminist revolution in Iran. “For women, for life, for freedom” has become the rallying slogan, not just for the people of Iran but, in fact, around the world — so much so that the song won a Grammy a few days ago for Best Song for Social Change.

We know the social change and slogans must be accompanied by political action. Canada — I’m very pleased to say this — has already imposed sanctions on 127 Iranian individuals and 189 entities. My question to you is whether and when the government will move to the next logical step, which is to seize the assets of some of these individuals and repurpose them back to support the people of Iran in different ways. Thank you.

Senator Gold: There is a lot in that question. I’ll try to parse it out.

Canada’s relationship with the United States is a long-standing and important one, and issues between the two countries often take some time to work through — our interests do not always converge — but the relationship between this government and the administration of the United States is a strong one.

When the Prime Minister says not to necessarily expect a resolution, the Prime Minister is being transparent, honest and open with Canadians because, as those of us who have been in business and in politics understand, negotiation is not a one-way street but a two-way street. In that regard, the government continues to work with the United States.

The other point that I think is important to make, colleagues, is that the demonization of these illegal immigrants is somewhat unfortunate and misleading. If someone arrives in Canada through whatever means and claims refugee status, we have an international legal obligation to treat them and afford them due process, both under Canadian law and international law. The large expenditures that both the Province of Quebec and the Canadian government have made in order to make sure that those who arrive seeking refuge are treated humanely and properly are appropriate expenditures under the circumstances. That is not at all to belittle the burden on the Province of Quebec and the burden on our system with this large number of folks arriving.

The Government of Canada is working with the United States and it’s working with the Province of Quebec, and it will continue to work to find a proper solution to this problem.

Hon. Marc Gold (Government Representative in the Senate): Well, I’m not aware of what the government has or has not referred to law enforcement. That is something that would not be appropriate in this chamber.

The government has put in place mechanisms to identify fraud in CERB. The government was open on day one, when the pandemic hit and this measure was introduced, that there would be a trade-off between making sure that benefits were available quickly, efficiently and effectively to the great majority of Canadians needing them and the recognition that there were going to be aspects of the program that would need to be corrected going forward.

The government is now in the process of doing just that, but again, those who fraudulently or wrongly claimed CERB should be ashamed of themselves and should suffer the appropriate consequences under the circumstances. The government remains committed and proud of the contribution it made to keeping Canadians afloat, keeping our economy afloat and helping Canada weather the worldwide crisis that we have lived through.