Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, in accordance with subsection 39(1) of the Public Servants Disclosure Protection Act (S.C. 2005, c. 46), the Senate approve the appointment of Ms. Harriet Solloway as Public Sector Integrity Commissioner.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of June 7, 2023, moved:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, June 13, 2023, at 2 p.m.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise to speak to 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 want to begin my speech by recalling the words of Senator Kutcher when he spoke to this bill last October. He said, “I think every member of this chamber wishes that all violence against children would stop.”

I couldn’t agree more. But of course, wishing it and achieving it are two different things. In the specific case of parents, I can’t imagine any sane or responsible parent who would wish to inflict physical violence on their child. Legislation or no legislation, it almost goes against nature. My sense is that those who have done so, maybe in a fit of pique or exhaustion, did not do so at least without feeling some huge measure of remorse. And as for those who don’t, I don’t think the repeal of section 43 is going to stop them.

I understand the appeal of this legislation, honourable senators, but I think for the most part, when it comes to parents, few need a bill or a section of the Criminal Code to stop them from beating or even laying a hand on their child. We have come a long way from the very long-ago days when it was common to hear the phrase “spare the rod, spoil the child.”

All children in Canada are protected from all forms of violence through the Criminal Code, which contains general criminal offences to protect all persons from violence, and several offences that specifically protect children — for example, the failure to provide the necessaries of life, child abandonment and several child-specific sexual offences.

In addition to protections under the Criminal Code, every province and territory has laws to protect children from family violence and abuse. These laws allow the state to act where a child is in need of protection from physical, emotional and psychological harm or neglect. Many provinces and territories also have laws and policies that prohibit the use of physical punishment of children in foster homes, child care settings such as daycares, as well as in schools.

In B.C., section 38 of the Teachers Act states that a teacher is prohibited from engaging in:

(a) physical harm to a student;

(b) sexual abuse or sexual exploitation of a student;

(c) significant emotional harm to a student.

This bill, and section 43, which it seeks to repeal, goes beyond simply parents to include teachers or anyone else standing in the place of a parent. Specifically, section 43 of the Criminal Code 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 bill, as Senator Kutcher and others have noted, is the latest rendition in a succession of bills attempting to address the issue of corporal punishment. Senator Kutcher mentioned that former Senator Hervieux-Payette introduced the bill eight times before former Senator Sinclair took over the responsibility. I believe that Senator Kutcher mentioned other efforts going back to 1989.

I think the length of time that has elapsed between when the effort first began to the current bill we are dealing with today is a significant indication that this is not necessarily a straightforward issue. It is worth noting that as recently as 2004, the Supreme Court of Canada, in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), upheld section 43, saying the provision does not violate the Canadian Charter of Rights and Freedoms. As six of nine justices concluded, it does not, infringe a child’s rights to security of the person or their right to equality. Nor does it constitute cruel and unusual treatment or punishment.

In its conclusion, the court provided the following guidelines:

One, parents or caregivers can only use corrective force or physical punishment that is minor or “transitory and trifling” in nature. For example, spanking or slapping the child hard enough that it leaves a mark or a bruise would not be considered transitory and trifling and would not be reasonable.

Two, teachers cannot use force for physical punishment under any circumstances. Teachers may be permitted to use reasonable force toward a child in appropriate circumstances, such as to remove a child from a classroom.

Three, physical punishment cannot be used on children younger than 2 years old or older than 12 years old.

Four, physical punishment cannot be used on a child in anger or in retaliation for something a child did.

Five, objects, such as belts or rulers, must never be used on a child, and a child must never be hit or slapped on the face or head.

Six, any use of force on a child cannot be degrading, inhumane or result in harm or the prospect of harm.

Seven, physical punishment cannot be used on a child who is incapable of learning from the situation because of a disability or some other factor.

Eight, the seriousness of the child’s misbehaviour is not relevant to deciding whether the force used was reasonable. The force used must be minor, no matter what the child did.

The court ruled — the majority of the court, I should say — that the use of force must be sober and reasoned, address actual behaviour and be intended to restrain, control or express symbolic disapproval. It also must not be intended to harm or degrade the child.

I don’t think anything is served by couching this decision in inflammatory language, language such as, “While it is no longer legal to assault wives or employees — as the 1892 law allowed — it is still permissible in our Criminal Code to assault children.”

Let me be clear: Parents who go beyond the bounds outlined by the Supreme Court of Canada, those who abuse their children, deserve to be punished.

Raising children is a challenging endeavour filled with trial and error. Parents want what is best for their children. They want them to behave and be productive members of society, to understand the rules and nuances of getting along with others. Parenting is simply the act and attitude of unconditional love. Under those conditions, using corrective force that is minor in nature is a tool some parents will employ. I would suggest that all parents at one time or another consider spanking their children. Most don’t, but punishing those parents who do and sending them to jail for this will do irreparably more harm to the family.

As I mentioned earlier, section 43 also goes beyond parents to teachers as well, and the court ruled on that also. While it ruled out corporal punishment as permissible in schools, it said teachers may use force to remove children from classrooms or to secure compliance with instructions.

Honourable senators, the unfortunate fact of our society today is that you are more likely to see students assaulting teachers than the other way around. Don’t get me wrong; neither is something that you want to see or something that should be allowed in schools, but the problem of violence in schools today is a general one, and in many ways, in certain influential and vocal segments of our society, the response to it is the complete reverse of what you might expect.

Police, for instance — the usual ones you would call in response to a violent attack — are now considered to be the perpetrators of violence, sometimes by their mere presence. I’m thinking of an incident recently in an Ottawa school where a child, on Bring Your Parent to School Day, was not allowed to bring his father wearing a police uniform. Police, in general, are often not welcome in the schools nor by school boards.

Honourable senators, as I said, we are dealing with a very complex issue. It is reflective of that, that the court was split in 2004. Justice Ian Binnie argued in his dissenting opinion that the section 43 defence should not be available to teachers. Justice Louise Arbour, in her opinion, argued that section 43 was “unconstitutionally vague,” a violation of children’s security and “not in accordance with the . . . principle of fundamental justice.”

Justice Marie Deschamps argued that section 43 violates section 15 of the Charter because it:

 . . . encourages a view of children as less worthy of protection and respect for their bodily integrity based on outdated notions of their inferior personhood.

It was her view that a law that permits more than only very minor applications of force unjustifiably impairs the rights of children.

Honourable senators, while the majority ruled on the court, as it is intended in our democracy, it would be an oversight in our debates here not to recognize that there were very different and strongly argued opinions as well.

We have that here in the Senate, which we saw in the exchange between Senator Kutcher and Senator Plett. As you will have guessed from my earlier remarks, while I respect the views of Senator Kutcher and all those who have spoken to this bill since — mostly in favour — I have concerns about the bill for reasons I have articulated.

Nonetheless, I support this bill being referred to committee for further study and further debate.

Thank you.

(On motion of Senator Plett, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Martin, seconded by the Honourable Senator Marshall, for the second reading of Bill C-241, An Act to amend the Income Tax Act (deduction of travel expenses for tradespersons).