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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- Nov/27/23 12:56:40 p.m.
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Mr. Speaker, a quick question for me is this: Does this include all unions not having anti-scab legislation? If it does not, why not?
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