The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of former Irish senator and children’s rights advocate Jillian van Turnhout and Mr. Ron Ensom, a child protection consultant. They are the guests of the Honourable Senator Kutcher.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Donald Neil Plett (Leader of the Opposition): If Senator Kutcher would take a question, I have one.

Senator Kutcher: And I promise to answer it.

Hon. Stan Kutcher moved 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).

He said: Honourable senators, I rise today in this chamber, situated on unceded Algonquin Anishinaabeg territory, as a representative of the Province of Nova Scotia within the lands of Mi’kma’ki to speak to 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).

I begin by stating that this act addressing the TRC’s Call to Action number 6 is only a small but very necessary step on the path of reconciliation — or, as our colleague Senator Christmas has more eloquently put it, reconciliACTION.

I also do not view this repeal as a cure-all for ending all violence against children. I strongly wish that such a cure-all were possible. That said, repealing section 43, which currently provides protection for persons who use corporal punishment as a parenting tool, will be one step on this important journey here at home. I think every member of this chamber wishes that all violence against children would stop. We can do a small part in achieving that goal by supporting the rapid passage of Bill S-251 through this chamber.

Senators, physical punishment is defined as “the application of force to induce pain or discomfort for the purpose of correcting or modifying behaviour.” And, as you will hear from me today, physical punishment is neither necessary nor helpful in guiding and disciplining young people.

Indeed, the overwhelming scientific evidence supports the TRC’s Call to Action number 6, so let us move forward to make that recommendation a reality.

Journalist Carl DeGurse recently penned a piece for the Winnipeg Free Press on the issues around what some have called “corrective violence” or “corrective punishment” and parenting. He reminds us how difficult parenting is — and I can speak from personal experience that he is absolutely correct — and that those who spank or otherwise hit their children are not evil or acting out of cruelty. They may have learned this parenting technique through their own experiences or seen it practised within their communities.

What I will lay out today is that there are much better ways to provide guidance and discipline to children, ways that promote good physical and mental health without putting children at risk for poor outcomes. These corrections can be firm and comprehensive. But these techniques do not depend on violence or other types of physical punishment. We also now know that spanking and other types of violence against children often result in the opposite of what a parent is trying to achieve. And we now know that such use of so-called “corrective violence” or “corrective punishment” actually causes harm.

Through repeal of this section of the Criminal Code — which provides protection for those who use violence as a parenting tool — and through the pan-Canadian promotion of evidence-based parenting supports, we can both protect children from violence and assist all Canadian parents in learning and applying effective and much less damaging child-rearing practices.

I also believe that the repeal of section 43 is a necessary step in our continued evolution toward the type of society we strive to be — one that provides safe and secure environments for the next generations to grow and to thrive. It is a society that is working on acknowledging and righting historical wrongs, a society that puts the welfare of its children as a top priority, a society that stands up for those who are not yet able to stand on their own and a society that has evolved its parenting practices from corporal punishment to guidance and positive discipline.

Achieving passage of this bill is to uphold the commitments our country has made to abide by the United Nations Convention on the Rights of the Child — which Canada ratified in 1991 — and to address all 94 of the Truth and Reconciliation Commission’s Calls to Action. It also responds to the numerous reports calling for this repeal over the past several decades, including the Standing Senate Committee on Human Rights’ 2007 report, which called for this repeal by 2009. Honourable colleagues, we are 13 years past that date.

As a reminder, section 43 of the Criminal Code of 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.

This clause was the subject of a Charter challenge in 2004. At that time, the Supreme Court ruling — which was a split decision, six to three, and which was accompanied by much public confusion about the meaning behind “not exceed what is reasonable under the circumstances” — included a set of guidelines to be followed with regard to hitting children. These guidelines noted that teachers may reasonably apply force to remove a child from a classroom; imposed an age range of 2 to 12 years in which hitting a child was allowed; and disallowed hitting a child with a cognitive disability, hitting with an implement, hitting a child on his or her head and hitting while angry.

Of interest, the court did not make any unique mention of human services providers — such as youth care workers, child care workers, corrections officers, police officers, child psychiatrists and psychologists, and many others — who must deal, day in and day out, with young people who demonstrate some of the most challenging, disruptive behaviours. These providers do not seem to be able to access the protections offered by section 43.

As one legal expert told me in discussing this ruling, “Happy second birthday. Now we can hit you.” Another commentator said:

It’s okay to hit a child, as long as the violence is premeditated and nothing larger than a fist is used.

Also, section 43 provides little — if any — additional protection that can be provided by alternatives already existing under the law, such as those used in defence when charged with assault.

Section 43 is an anachronism — an historical holdover from laws written in 1892 that permitted corporal punishment of employees, wives and children. Today, we’ve moved well beyond that. Employers are not legally protected from assaulting their employees. Husbands are not legally protected from assaulting their wives. However, it is still permissible, in our Criminal Code, to assault children.

Colleagues, as many of us know, this is not the first time a bill addressing this issue has been tabled in this chamber. The last time we saw a similar bill was in 2017. At that time, the bill passed second reading and was waiting for committee study when Parliament was prorogued. You will remember that the last senator to champion the repeal of section 43 was the Honourable Murray Sinclair, who had been chair of the Truth and Reconciliation Commission. He had taken on this bill from the former Senator Hervieux-Payette, who had introduced this bill eight times. I am privileged to be able to continue this work.

In further context, various versions of Bill S-251 have been introduced in the House and in the Senate since 1989. Actually, this will be the eighteenth time this bill has been brought forward. I am hopeful that we can finally see it through. Auspiciously, the number 18 is considered to be lucky in the Jewish tradition. It is synonymous with the word chai, meaning “life.” I feel that that this is a fitting omen. In this chamber, we can promote a better chai for our children by repealing section 43 this time — the eighteenth attempt.

As many of you know, thoughtful speeches on the repeal of section 43 have been delivered in this chamber, but it has been five years now since our last debates. Canadian society has changed substantially since 2017. I would ask you to consider how much more we, as a society, now know about the legacy of residential schools. How much more do we, as a society, now know about the negative impact that hitting has on children’s development and their subsequent health, including their mental health? How much more do we, as a society, now know that parenting techniques that include corporal punishment are no longer popularly supported, even by some organizations that had condoned or even promoted such approaches in previous decades?

Simply put, in a modern and equitable Canada, there should be no special legal protection for people who hit children. There already exist legal remedies against assault. Why should those legal remedies not also apply to children? Why should children have less protection from violence than any other group of Canadians?

Many Canadians are asking these questions and have taken up the cause of repealing section 43. Civil society groups, such as UNICEF Canada, Corinne’s Quest, Canadian Council of Child and Youth Advocates, as well as over 650 organizations and prominent Canadians have currently endorsed the Joint Statement on Physical Punishment of Children and Youth and have been imploring the federal government to repeal section 43.

Recently, nine national child service organizations, including the First Nations Child and Family Caring Society of Canada and the Child Welfare League of Canada, put forward a comprehensive rationale for this repeal. It can be found on the Children’s Hospital of Eastern Ontario, or CHEO, website. This rationale lays out the issues surrounding children’s rights and protection against assault, as well as the evidence for long-lasting personal and societal harms of violence against children, changing Canadians’ attitudes toward hitting children, international developments and legal contexts.

I will touch on these issues that have taken place since our last debates five years ago. First, I will talk about children’s right not to be hit or — put into more poignant language — children’s right not to be assaulted. Let us remember what the definition of “assault” is in Canada, as noted in section 265.1 of the Criminal Code, an assault occurs when a person directly or indirectly applies force intentionally to another person without their consent.

When we say “physical punishment” or “corrective discipline,” we might be using a sanitized code phrase for “assault.” Internationally, Canada is falling behind on protecting the rights of children and falling behind on their commitments to reducing violence against children.

In 1979, Sweden led the way in outlawing “corrective violence” against children in any setting. Since then, 62 other countries have enacted laws prohibiting physical punishment of children in all settings. Eleven of those countries have moved to do so since this chamber last debated a bill to repeal section 43. This includes Nepal, France, South Africa, Japan, the Republic of Korea and Colombia.

We were privileged to host Senator Jillian van Turnhout from the Republic of Ireland in the chamber today. She played an important role in having Ireland become one of the countries to prohibit physical punishment of children. That occurred in 2015.

We should be embarrassed by how our country is not keeping up its international commitments to end violence against children. Canada has signed and ratified the UN Convention on the Rights of the Child, or CRC. Section 1 of Article 19 states:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Since ratifying the CRC in 1991, Canada’s progress has been frequently reviewed by the UN Committee on the Rights of the Child, most recently this year for the combined fifth and sixth report. Each review has noted failings in Canada’s action on children’s rights, and reports have repeatedly called for the repeal of section 43.

Further, in 2015, Canada committed to supporting the UN 2030 Agenda for Sustainable Development. In that document, target 16.2 calls for an end to all forms of violence against children. In 2018, Canada signed on as a pathfinding country under the Global Partnership and Fund to End Violence Against Children. Canada is signing on to international agreements to prevent violence against children and saying the right things, but where is the action? The purpose of the pathfinding countries is to be leaders in the prevention of violence against children. How can Canada be among this group if we still permit our children to be hit?

We must question what it will take for us to repeal section 43, which the Truth and Reconciliation Commission, or TRC, report describes as “. . . a relic of a discredited past and has no place in Canadian schools or homes.” Call to Action 6 simply states, “We call upon the Government of Canada to repeal Section 43 of the Criminal Code of Canada.”

This Call to Action is placed in the education section of the report, which demonstrates the significant, long-lasting impacts on Indigenous people that occurred in educational institutions. The shameful legacy of residential schools has had substantive negative impacts on Indigenous communities and families for decades.

Many parliamentarians from all sides have stood in this place and in the other place condemning what happened in residential schools and apologized. Many have pledged their support to seeing all 94 Calls to Action moved forward.

Prime Minister Harper rose in the House of Commons on June 11, 2008, to deliver an apology on behalf of Canada for its role in the establishment of residential schools. He remarked on how new legal remedies would be applied to address the impact of these schools and how such remedies would form part of a “new relationship” between Indigenous peoples and other Canadians.

Upon receiving the final report of the Truth and Reconciliation Commission in 2015, Prime Minister Trudeau’s statement referenced the previous government apology and included these words:

 . . . we will, in partnership with Indigenous communities, the provinces, territories, and other vital partners, fully implement the Calls to Action of the Truth and Reconciliation Commission . . .

Other federal leaders such as Tom Mulcair, Elizabeth May, Yves-François Blanchet and Jagmeet Singh have addressed the importance of the Calls to Action and the necessity of their implementation. Former leader of the Conservative Party Erin O’Toole called for a plan to tackle all Calls to Action, and said:

We’re going to make progress on the TRC calls to action because they’re very important and they should be beyond politics.

Some have called for action beyond apology. As former member of Parliament Romeo Saganash said, “An apology, once made, is only as good as the actions that come after it.”

Let’s take these words to heart, honourable senators. We can act to repeal section 43.

This inglorious legacy itself merits this chamber moving forward to the repeal. Responding to this TRC Call to Action is, to my mind, enough reason for parliamentarians to move this bill expeditiously. There is, however, additional considerations for the rationale of appeal, and these considerations strongly support the TRC call.

Senators, there is substantial evidence demonstrating the enduring negative impact of physical punishment of children. Hundreds of research studies from many different countries conducted across decades have consistently demonstrated that physical punishment places children’s physical and mental health at risk, and that it worsens behaviour over time. Furthermore, and very importantly, there is simply no substantial body of research evidence that demonstrates that corporal punishment of any kind is actually helpful for children or that it has a positive effect on child health and mental health outcomes.

This evidence informs shifts in thinking and practice about physical punishment, similar to social shifts in seatbelt use and the impact of exposure to second-hand smoke based upon evidence of harm. These realizations hit a tipping point, and we acted. I believe we are now at another tipping point for physical punishment of children, and we have the power to act.

Indeed, a recent study has shown the negative impact of corporal punishment on child brain development. Children who are hit become more highly reactive to perceived threat, which is part of why physical punishment is consistently linked to increased child aggression. Being hit translates into hitting others.

Good evidence compiled since 2015 now clearly demonstrates that what was once called “mild corrective force” also has substantial negative impacts on children. In 2016, researchers Gershoff and Grogan-Kaylor conducted a comprehensive meta-analysis of 75 scientific studies related to non-injurious spanking that was intended to correct a child’s misbehaviour. This was the kind of punishment that is consistent with the guidelines of the 2004 Supreme Court ruling. Such force does not leave a mark, is not applied to the head or to the area around the head and is not applied with an instrument. This is the type of assault that is colloquially called spanking. Gershoff and Grogan-Kaylor showed that, across the board, spanking children is associated with more aggression, more mental health problems, greater negative relationships with parents and lower cognitive ability. In their concluding statement, they said:

. . . there is no evidence that spanking does any good for children and all evidence points to the risk of it doing harm.

More recently, in 2021, an analysis of 69 prospective longitudinal studies of child spanking and its impact on subsequent behaviour was published in the leading medical journal The Lancet. Some have argued, in support of spanking, that there is a chicken-and-egg problem — we don’t know if spanking causes bad child behaviour or if bad child behaviour elicits spanking from parents. That is an important issue. The 2021 study was conducted to address this question head-on. They analyzed studies that followed children over time to see if spanking predicted changes in their behaviour, taking into account — importantly — their initial levels of problematic behaviour. These researchers found that spanking consistently predicts worsening child behaviour problems over time and that this relationship is robust across different child and parent characteristics. They conclude that spanking is harmful to children’s development and well-being.

Some have argued that the evidence against spanking is not strong enough because it can’t definitely show that spanking is the cause of all these negative outcomes. It is true that experimental evidence — the bedrock of science — is difficult to obtain with regard to spanking because our ethics committees do not allow experiments in which children are randomly assigned to be hit.

However, numerous researchers have used quasi-experimental statistical methods to get as close as possible to an experiment. Separate studies using these methods with data collected from Colombia, Japan and the U.S. have universally found that, after they are statistically matched on family and individual demographic characteristics, children who are spanked have worse behaviour and worse performance on cognitive tests than children who are not spanked. These studies provide strong evidence that spanking does lead to worse outcomes for children.

Another argument that I have come across is that hugging children after spanking helps reduce any potential harm. Research has indeed indicated, over and over again, that showing children love and warmth is good for their development. However, such love and warmth are not enough to counteract the harms of spanking. Research has shown that spanking predicts increases in child aggression over time, regardless of how warm parents are to their children.

Colleagues, there is no solid research evidence that mild physical punishment is effective in improving behaviour or is in any way consistently beneficial to children. There are, however, numerous studies showing that hitting children increases the risk that they will become aggressive and develop mental health problems. In short, spanking makes the parents’ job harder, not easier.

Also in my research, I came across some arguments that it is biblically directed to hit children as a form of correction. In my assessment, as the son of a Presbyterian minister and a long-time churchgoer, this is not the case. Is there any place in the Bible where the words of Jesus Christ encourage parents to hit their children? No. Indeed, quite the opposite. Jesus Christ recognized the responsibility of kind and considerate parenting, and that did not include hitting children.

The King James Bible version of Luke 11:11 says:

If a son shall ask bread of any of you that is a father, will he give him a stone? or if he ask a fish, will he for a fish give him a serpent?

Or in Mark 10:15:

Truly I tell you, anyone who does not receive the kingdom of God like a little child will never enter it.

Or Matthew 19:14:

But Jesus said, “Let the little children come to Me, and do not hinder them! For the kingdom of heaven belongs to such as these.”

Does that sound like spanking to you?

Are there passages in the Bible that have been interpreted as encouragement to hit children? Yes, there are, mostly in the Old Testament, particularly in the Book of Proverbs.

Before I address that, let me be clear: The Book of Proverbs is not a child-rearing manual.

Proverbs 13:24 states:

He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes.

That is the basis for the saying that many people think is written in the Bible, “Spare the rod and spoil the child.” Well, that statement actually does not appear in the Bible. It was created by one Samuel Butler, a 17th-century poet. It appears in a poem called Hudibras, where a love affair is likened to a child, and spanking is mockingly commended as a way to make love grow stronger. The verse reads:

What med’cine else can cure the fits

Of lovers when they lose their wits?

Love is a boy by poets stil’d;

Then spare the rod and spoil the child.

But if we unpack even that verse in Proverbs, does it really mean that parent misuse a rod to beat a child? Not at all. On the contrary, the use of the rod in the Bible is not as an instrument of corporal punishment. The shepherd uses the rod to guide, to protect and to count the sheep.

Recall the image of the rod in Psalm 23:4:

Yea, though I walk through the valley of the shadow of death . . . thou art with me; thy rod and thy staff they comfort me.

“To spare the rod” doesn’t mean to beat the child. On the contrary, it is the responsibility of the parent to guide, discipline and protect. The rod is an instrument of guidance, discipline and protection, not a tool to hit with. “Chastise” does not mean to hit. It means to correct or chasten.

Numerous Biblical commentators and Christian parenting organizations support this perspective. Some don’t. The rod is a metaphor for guidance and discipline. It is not a directive to hit a child. Children can be disciplined without spanking.

As Thomas Haller, a Christian parenting and relationship expert notes, they can be treated with “grace, integrity, and love.”

Part of the process of ending child-rearing approaches that encourage parents to hit their children should be the work of legislators, such as ourselves. We can end the special protection given by section 43 to people who hit children.

We — and this is so important — can support the dissemination of best available evidence-based interventions that help parents and other adults use different, non-violent and effective forms of discipline and guidance. We have that knowledge now, much more knowledge than we had five years ago. We can right this wrong now.

Senators, it is time to act on Call to Action number 6. We’re coming up close to 10 years since the final TRC report was presented. Providing safe and secure environments in which children can grow and flourish is what we all want to have. These environments must include the home as well as all other places. We have many tools in our child guidance tool box that we can use to improve the lives and outcomes of all the children in this great country of ours. Repealing section 43 is an essential and much-needed tool for this tool box.

I ask all of you today to work together to quickly move this piece of legislation through our chamber to detailed study at committee, to help us live up to the commitments that we, as a nation, have made to protect the rights of our children and to advance the process of reconciliation that we are all committed to.

It is important to see this bill through so that we can say, once again, the Senate of Canada has acted to help the children of our country grow up safely and flourish.

I end today with the words of Marvin Bernstein, the child and youth advocate for Prince Edward Island:

. . . we must all take a stand to say emphatically that physically striking children is wrong under any circumstance. It is a matter of ensuring protection for the fragile bodies and tender hearts of our most vulnerable citizens.

Meegwetch. Wela’lioq. Thank you.