Senator Miville-Dechêne: Yes.

Senator Miville-Dechêne: Yes.

Hon. Julie Miville-Dechêne: I rise to speak in support of the principle of Bill S-251, which was introduced by Senator Kutcher.

At first glance, this appears to be a very simple, very short bill that should be very easy to support, regarding the use of reasonable force to correct a child. Who among us here advocates any form of child abuse? No one, obviously.

How could anyone object to sending a clear, albeit symbolic, message about our commitment to ending all forms of mistreatment, abuse and trauma for Canadian children? Again, no one.

On the other hand, this topic affects most of us personally, whether as a former child or as a parent.

Like many of my generation, I myself experienced physical correction when I was young. I have a vivid memory of the first spanking I received from my mother, at the age of seven or eight, when we lived in France. Even worse were the punishments at school. At that time, corporal punishment was frequently used to discipline children in elementary schools in Paris. I remember classmates being spanked in front of everyone and others being seized by the ear and pulled around the classroom by the teacher. For students, it could not have been more humiliating.

When I returned to Quebec in the 1970s, times had changed, at least at school. I may be a wise and patient senator now, but I was a rebellious teenager. I still remember the stinging slap my mother gave me after I insulted her. Let’s just say that it did nothing to improve our relationship.

I want to add that, although I remember being disciplined like that, it did not cause me any lasting trauma. In fact, like many other children, I’m sure, I was more hurt when my family yelled at me and criticized me. A slap hurts in the moment, but the damage words can do can last a long time. However, I doubt the government will ever be able to legislate what a parent can and can’t say to their children.

Bill S-251 proposes to eliminate the exception set out in section 43 of the Criminal Code, which allows a parent, among others, to use “force by way of correction toward a . . . child . . . if the force does not exceed what is reasonable under the circumstances.”

Although I am in favour of the principle of the bill, I still want to point out three problems worth thinking about.

The first is a political issue that comes up in many of our debates: How far can the government go in regulating private behaviour? Of course, there is no question that the government can criminalize violence against children, as it does for violence against any person, particularly the most vulnerable.

When it comes to “force [that] does not exceed what is reasonable under the circumstances,” however, we are also getting into the area of education, discipline and discretion in the exercise of parental authority. It’s clear that the government can and must protect children from violence, but it also can and must respect parents’ judgment.

[English]

It’s also important to remember that the exception provided at section 43 is already quite narrow. Here are excerpts from a March 2021 letter from Justice Minister Lametti to Heidi Illingworth, the Federal Ombudsperson for Victims of Crime:

The issue of whether or not section 43 should be repealed raises differing and strongly held views across Canada. . . .

As you are likely aware, assault is broadly defined in Canadian criminal law to include any non consensual use of force against another person. This can also include non consensual touching that does not involve physical harm or marks. Section 43 of the Criminal Code is a limited defence to criminal liability for parents, persons standing in the place of parents, and teachers for the non-consensual application of reasonable force to a child. . . .

In 2004, the Supreme Court of Canada . . . held that section 43 is consistent with the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of the Child. It also set out guidelines that significantly narrowed the application of the defence to reasonable corrective force that is transitory and trifling in nature. Moreover, the SCC’s decision provided that teachers cannot use force for physical punishment under any circumstances . . . .

[Translation]

There are many different parenting styles and approaches. I don’t believe that this grand, complex human adventure can be reduced to an exact science with definitive and universal answers that can be applied to any situation. That’s why we have to be careful not to target parenting approaches that we may not like, but that don’t necessarily deserve to be criminalized.

In a similar vein, I would point out that differences exist not only between individuals and families, but sometimes also between cultures. The way children are raised, the role of authority and discipline, and parenting approaches are often shaped by our personal or cultural history. Cultures and family backgrounds also influence the perception and impact of physical correction on children.

Again, I want to reiterate that we should not be condoning child abuse, mistreatment or violence in any way, but neither should we disproportionately target Canadians from minority cultures by removing the narrow exemption set out in section 43 of the Criminal Code. Some parenting styles may not match our own personal preferences. This does not necessarily mean that they are criminal.

[English]

Finally, I note something of a paradox. Many of the people who support this bill argue that we should not fear a wave of new prosecution of parents if we remove the exemption at section 43. This is because, while removing the exemption would technically make any non-consensual touching of children by their parents a criminal offence, everyone realizes this is an absurd situation. For this reason, proponents of the bill argue that if we remove the exemption at section 43, a new set of common-law defences and exemptions would apply, including an exception for minimal offences, rules about necessity, implied consent and others.

So are we really just removing one explicit, codified and narrowly interpreted exemption and replacing it with numerous vague and uncodified exemptions that would achieve the same purpose? In some ways, it could be argued that we are asked to make the Criminal Code less pragmatic and less realistic and that, as a result, courts will have to develop new workarounds. In other words, the change we are contemplating may be more symbolic than substantive.

All that being said, I recognize there is a global movement to remove these limited exemptions, even if it means developing new ones to replace them.

As of 2022, 65 countries have banned corporal punishment. Even in France, Article 371-1 of the Civil Code was amended in 2019.

[Translation]

That article states: “Parental authority is expressed without physical or psychological violence.”

[English]

If the French can make this commitment, perhaps we can as well.

Society evolves, and it’s normal that we adapt our legislation to reflect that change. Sometimes we update our laws to reflect the way we already live, and sometimes they reflect our aspirations. Just because things have always been one way doesn’t mean that we must continue forever.

I believe our laws play a role in setting the tone, and we must trust the institutions to behave reasonably in the circumstances. Thank you.

[Translation]

Senator Miville-Dechêne: That question sums up the very essence of the issue. Laws can do some of the work, and they can be a signal or a symbol. But society changes at its own pace. As you said yourself, sometimes it’s a generational issue, sometimes it’s a cultural issue, but certainly, every family has a different perspective on corporal punishment. How can we address that?

Obviously, this can also be taught in school. I know that in Quebec, new courses are being developed on these civic issues. There is no magic solution. You are asking me an extremely difficult question. The fact remains that children talk amongst themselves, and there can be all kinds of influences that make them realize that a situation isn’t normal. They might talk about it to friends or to a psychologist, and the parents themselves can evolve. It’s not 1960 anymore, like when I lived in France. Things have changed a great deal.

The point I was trying to make is that I agree with the principle of the bill, but it obviously won’t solve all the social issues surrounding it.

(On motion of Senator Martin, debate adjourned.)

[English]

Senator Miville-Dechêne: What I understand from the history of this type of bill, because this is not the first time that this section of the Criminal Code has been called into question, is that the education sector’s reaction has always been that, sometimes, it is necessary to go to those lengths.

I understand that the Supreme Court has said that educators have very little room to manœuvre when intervening. However, in that situation, just as for parents, what concerns me is the issue of restraining a child so they don’t hurt themselves. It is very difficult to have absolute and general legislation to govern human beings.

You’ve all seen your children have a temper tantrum or meltdown, and sometimes we don’t know how to deal with it. However, in my opinion, we should not confuse calming down a child, even clumsily, and using unreasonable force.

That is a good question. In reading up on this issue, I realized that it’s not as simple as it seems. Yes, we have a provision that talks about reasonable force. In 2023, it is symbolically very difficult to use words like that because people always think the worst. But if we eliminate that clause, what does that mean? Are we going to have to build up jurisprudence to determine what’s acceptable and what’s not? There will always be situations that will be a bit of a grey area.

[English]

Hon. Julie Miville-Dechêne: Senator Batters, I want to start by commending you for sponsoring this bill. I have been concerned about this for a long time, and I think it is completely unacceptable for the term “child pornography” to be used in the Criminal Code. As you know, I work on these issues. Pornography is referred to as “adult entertainment,” and it is absolutely unacceptable for this term to be used to refer to sexual exploitation.

That being said, the term likely dates back to another time when no distinction was made and people were probably less bothered by its use. However, it is high time that term was changed, so I thank you for that.

I have a translation question for you that you may not be able to answer now. I have always used the French terms “exploitation sexuelle des enfants” and “matériel d’abus et d’exploitation des enfants,” but the French translation of the bill uses the term “pédosexuel” instead. It is not incorrect.

I just find it strange that the English version uses the term “child sexual abuse and exploitation material,” while the French uses a term that comes from the word “pedophile.” The term is not incorrect, but it is much less commonly used when talking about these issues. In general, we refer to child sexual exploitation, which is broader in scope.

You probably can’t answer my question right now, but perhaps the committee could check and see whether that is really the best term. If we really want to convey the gravity of this issue to ordinary Canadians, then shouldn’t the word “child” be used in the French version as well?

[English]

Senator Batters: Thank you very much, Senator Miville-Dechêne, and thank you so much for all of the work that you’ve done on this very important topic. That’s an excellent question. I don’t have the French version of it with me, but that’s something that I’m sure we will study in great detail at committee — we want, of course, to have the best possible translation and words being used because, as I said, words matter, in French or in English.