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 I’m among those who believe that section 43 is outdated and that it no longer belongs in our criminal law.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The question of whether section 43 should be retained or repealed is linked to how we truly choose to treat our children in Canadian society.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.)