Senator Kutcher: If that’s the will of the Senate.

Senator Kutcher: Thank you for that question. It is an important issue.

My intention is to bring the issue of health disinformation to committee study. I don’t think it would be appropriate for me to tell the committee what the limits of the study should be, or in what direction the committee should choose to study it. Committees are the masters of their own fates, and it would behoove the committee to make those decisions.

We have an incredibly excellent group of people on that committee, as all Senate committees do, and we want to ensure that those committee members and the steering committee — under the able leadership of Senator Omidvar — would make decisions regarding what the parameters of the study would be.

I want to remind the chamber that Senate committees have engaged in studies that have lasted for years, and that have made major impacts on improving Canadian society. My purpose here is to start with health disinformation — and should the committee wish to take it further, that would be the purview of the committee.

Hon. Pierre J. Dalphond: Honourable senators, I rise to support Bill S-251, Senator Kutcher’s bill proposing to repeal section 43 of the Criminal Code. This provision authorizes schoolteachers and parents — and persons standing in the place of parents — to use reasonable force by way of correction.

The bill before us continues long and determined efforts to achieve this reform. Over the past 30 years, there have been 17 previous bills, in both houses, aimed at repealing or amending section 43, including one by our former colleague Senator Hervieux-Payette.

Why should this attempt succeed when so many have failed? I will suggest five reasons.

First, repealing section 43 is no longer just a question of children’s rights. As the bill before us recognizes, repealing section 43 is a necessary step in meeting Canada’s commitment to reconciliation, as recommended by Call to Action 6 of the Truth and Reconciliation Commission.

Second, in doing so, Canada will join an ever-increasing number of states. In 2004, the Supreme Court of Canada released its landmark decision on section 43 in Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada. At the time, 15 states prohibited all forms of corporal punishment of children. Today, that number exceeds 65, and an additional 27 states have:

. . . publicly committed to enacting legislation to explicitly prohibit all forms of corporal punishment of children, however light, in all settings including the home, without delay.

Third, repealing section 43 is a necessary step to place Canada in compliance with its international obligations. It is true, as the Supreme Court majority observed in 2004 in Canadian Foundation, that the United Nations Convention on the Rights of the Child does not “explicitly require state parties to ban all corporal punishment of children.”

However, it is also true that, two years later, the United Nations Committee on the Rights of the Child clarified that the convention requires states to remove all provisions that allow some degree of violence against children, whether in their homes, their families or in any other setting.

Indeed, the committee specifically referred to the example of provisions for “reasonable correction” as a type of provision that should be removed — which is precisely what section 43 of our Criminal Code does. As the committee explained, the convention, “like all human rights instruments, must be regarded as a living instrument, whose interpretation develops over time.”

Fourth, and perhaps most importantly, the evidence around the efficacy of corporal punishment — or, rather, inefficacy — is clear and compelling. The corporal punishment of children and youth “plays no useful role in their upbringing and poses only risks to their development,” as mentioned by previous speakers on this bill. Indeed, the wealth of research around the “adverse lifespan consequences for children and the societal harm associated with physical punishment” should give us pause.

This brings me to my fifth and final reason why this attempt to repeal section 43 must succeed. It is the fact that public acceptance of section 43 is heading in only one direction: downwards.

Since 2004, 673 organizations from coast to coast to coast have signed the Joint Statement on Physical Punishment of Children and Youth. This statement, developed by “a national coalition of organizations facilitated by the Children’s Hospital of Eastern Ontario,” recommends various actions, including “provision of the same protection of children from physical assault as is given to Canadian adults . . . .”

This means repealing section 43, which denies children — and only children — equal protection vis-à-vis the assault provisions of the criminal law.

At this juncture, it is perhaps helpful to spend a moment reflecting on the history of section 43 to understand that its sources are no longer relevant and by far obsolete.

Section 43’s immediate antecedents lie in the Parliament of Canada’s original codification of the Criminal Code in 1892, slightly after Confederation. At the time, section 55 was the codification of the common law rule that recognized the concept of “reasonable correction” as being part of the English common law. However, “reasonable correction” is far from a Canadian invention. As I said, it was a common law principle.

This principle was established in a case rendered in 1860 called R. v. Hopley. That decision dealt with the manslaughter charge against a teacher who, in the course of administering corporal punishment, beat a teenage pupil to death.

Although the teacher was convicted, the Hopley case endorsed the permissibility of inflicting “. . . moderate and reasonable corporal punishment . . .” for the purposes of “. . . correcting what is evil in the child . . . .”

It is interesting to note that Hopley’s reasoning rests on Roman principles, including the principle of patria potestas, whereunder fathers held the power of life and death over their children.

William Blackstone’s Commentaries on the Laws of England stated:

The ancient Roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away . . . .

The power of a parent by our English laws is much more moderate; but still sufficient to keep the child in order and obedience. He may lawfully correct his child being under age, in a reasonable manner; for this is for the benefit of his education . . . . He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction . . . .

Of course, the range of conduct defensible under section 43 since the 2004 judgment of the Supreme Court is much more curtailed than what was once allowed in the name of “reasonable correction.” However, the source of that principle goes back to the Roman Empire and 2,000 years ago when we could say that a man was the owner of his house, of his wife, of his children and had ultimate power to correct because education was done through correction. Fortunately, school teachers are no longer of that class of people, as my fearless leader knows.

However, as we consider section 43’s future, it is important, I believe, not to lose sight of the past. The raison d’être of section 43 is, and has always been, about one thing and one thing only: allowing the corporal punishment of children to correct them.

I would like to conclude by addressing the apprehension around the consequences that might flow from section 43’s repeal — namely, as Justice Arbour framed it in 2004 — and she was dissenting — the concern that:

Striking down s. 43 will not expose parents and persons standing in the place of parents to the blunt instrument of the criminal law for every minor instance of technical assault. . . .

Of course, she was making fun of the threat.

To borrow one example from debate, I think we can all agree, colleagues, that no parent should face criminal sanctions for forcing a reluctant child into a car seat. However, I would also hope we can all agree that no parent should enjoy permission to give their child a whack after getting them into the car seat.

Likewise, I think we can all agree that no teacher should face criminal sanctions for intervening to stop a fight or requiring a disruptive student to leave the classroom.

That happened to me in the past. I was asked to go into the corridor a few times. I am much better now.

However, I would also hope we can all agree that no teacher should enjoy permission to whip out the ruler — or worse — as was commonplace not so long ago.

I do remember the nuns using the ruler in the classroom. They asked you to come forward, to put your hand out and then they slapped it.

Interacting with children, whether as parents or teachers, engages a range of physical contact that falls far short of the conduct that comes to mind when we think of corporal punishment. That is undeniable. The question then becomes whether the criminal law and criminal process, as currently structured, could be used to charge these people who are just preventing something from happening.

A precise answer to this question is perhaps best left to the committee in its study. However, I would like to point out that the words of the Supreme Court, as well as the experience of other countries that have done away with provisions similar to section 43, have not shown that kind of odd consequence.

In 2004, when the Supreme Court majority upheld section 43’s constitutionality, three of the nine justices disagreed. Justice Arbour, in particular, took great effort to address the question of how parents and teachers would be protected despite the removal of section 43 considering the state of the law in Canada.

She concluded that “The common law defences of necessity and de minimis adequately protect parents and teachers from excusable and/or trivial conduct. . . .”

We would also be remiss to ignore the important — and effective — role of prosecutorial discretion in weeding out trivial and insignificant cases.

Likewise, section 34 of the Criminal Code contemplates the defence of oneself or others: You intervene to protect yourself or to protect somebody. That is a defence. In the case of a teacher who intervenes between fighting students, for instance, it is difficult to imagine what protection, if any, section 43 adds to the protection already available under section 34 of the Criminal Code.

In the international context, a recent experience in New Zealand, where they got rid of a similar provision, has shown that teachers have not been sued by the Crown for having separated children that were fighting. In fact, in 2007, New Zealand went further. It amended the Crimes Act to explicitly prohibit all corporal punishment of children, including in their home. That was targeted to parents.

Similarly, in 2000, the Supreme Court of Israel did away with the defence of reasonable correction, which, until then, found expression in the country’s common law source. They said that, as for “. . . insignificant cases that do not justify enforcement within the framework of the criminal law,” the court raised the mechanisms of prosecutorial discretion, and the principles of de minimis and necessity.

In conclusion, I think our Legal and Constitutional Affairs Committee could look carefully at the bill and dispel the concerns raised by some teachers’ associations, try to put everything in context and remind the public that section 43 can go away and a disaster will not occur afterwards.

Colleagues, I think it’s time to send Canadians the message that the power to impose physical correction is not the right way to educate children. That’s not the way we educate our children nowadays. Maybe the Romans thought that was the way to go, but I think we should depart from these old sources. Thank you very much. Meegwetch.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Yussuff, seconded by the Honourable Senator Loffreda, for the second reading of Bill C-224, An Act to establish a national framework for the prevention and treatment of cancers linked to firefighting.

Hon. Stan Kutcher: Honourable senators, today I rise to speak to Motion No. 113 for a Standing Senate Committee on Social Affairs, Science and Technology, or SOCI, study on health misinformation, its impacts on Canadians and potential remedies.

In April of this year, the Food and Drug Administration’s Commissioner of Food and Drugs, Robert Califf, reported that the recent rapid drop in life expectancy in the United States of America was in great part due to increased health misinformation.

The Council of Canadian Academies’ January 2023 Fault Lines report determined that, between March and November of 2021 alone, at least 2,800 Canadian lives lost to COVID-19 could have been spared, over 10,000 hospitalizations could have been prevented and $300 million in hospital costs may have been saved if not for disinformation impacting health behaviours of Canadians. Vaccine disinformation alone is in large part responsible for these negative findings.

In a study published in the journal The Lancet on June 23, 2022, Dr. Oliver Watson and colleagues used excess death analysis to determine that vaccinations prevented 19.8 million deaths globally during the first year of COVID-19 vaccination.

In December of 2022, the C.D. Howe Institute report Damage Averted: Estimating the Effects of Covid-19 Vaccines on Hospitalizations, Mortality and Costs in Canada noted that between January 2021 and May 2022, vaccines were highly effective at reducing COVID-19 cases, hospitalizations and deaths: 21% fewer cases, 37% fewer hospitalizations and 34,900 fewer deaths. Its economic modelling reported an estimated net cost/benefit of between $0.4 billion and $2.1 billion in cost savings alone, and when the statistical value of life analysis was applied, these savings added an additional $27.6 billion.

Yet, this vaccine disinformation continues to expand, reaching countless Canadians through social media and “alternative news” channels that promote and distribute many different kinds of disinformation; belief in health disinformation is also linked to beliefs in various types of conspiracy theories. Put together, these forces contribute to what scholars such as Kathleen Higgins and Ralph Keyes have called a “post-truth era,” with its attendant social polarizations.

Recently, this chamber initiated legislation calling for improved national action on addressing the needs of people and families living with autism, a very important step forward, indeed. Autism has been a health disinformation battleground for some time now, ranging from the completely false and fully discredited assertions that routine vaccinations cause autism, to the endorsement and, I might add, highly profitable sales of so‑called alternative treatments that have no scientifically valid evidence of positive effect but that in some cases could cause great harm — so-called treatments such as craniosacral manipulation, iron chelation therapy, and daily use — by drinking, bathing or enemas — of chlorine dioxide, which is also known as Miracle Mineral Solution or Master Mineral Solution or, more commonly, bleach.

The widespread concern about health misinformation is summed up in the preamble to the Council of Canadian Academies report:

Misinformation can cause significant harm to individuals, communities, and societies. Because it’s designed to appeal to our emotions and exploit our cognitive shortcuts, everyone is susceptible to it. We are particularly vulnerable to misinformation in times of crisis when the consequences are most acute. Science and health misinformation damages our community well-being through otherwise preventable illnesses, deaths, and economic losses, and our social well-being through polarization and the erosion of public trust. These harms often fall most heavily on the most vulnerable.

A 2020 U.S. Surgeon General report titled Confronting Health Misinformation similarly noted this negative impact and called for immediate and effective action to deal with health misinformation:

Health misinformation is a serious threat to public health. It can cause confusion, sow mistrust, harm people’s health, and undermine public health efforts. Limiting the spread of health misinformation is a moral and civic imperative that will require a whole-of-society effort.

Sadly, there is little that we in Canada can point to in the way of federal-government-supported, coordinated and effective action to address health misinformation. There are some interventions under way, such as the ScienceUpFirst initiative, that — in the interest of full disclosure — I, along with Professor Timothy Caulfield, catalyzed during the first pandemic year. There are several other government-funded activities under way, through the federal Digital Citizen Initiative, the Encouraging vaccine confidence in Canada fund, the Vaccine Community Innovation Challenge and a few others.

There is a government website that provides information on disinformation and how to spot it. In an unscientific straw poll of senators and staff that I recently conducted, only 2 of 48 people even knew it existed, and only one had actually bothered to look — not very effective.

The Government of Canada also commissioned a number of reports on this topic, such as Misinformation in Canada: Research and Policy Options, from Evidence for Democracy; Science Disinformation in a Time of Pandemic, from the Public Policy Forum; and Vulnerable Connections and Fault Lines from the Council of Canadian Academies.

Yet, only the minority of Canadians are up to date in their vaccinations, and health disinformation continues to proliferate. Just two weeks ago, UNICEF Canada reported that the proportion of Canadians who believe childhood immunizations are important has decreased by 8% since the onset of the pandemic. Should this trend continue, we can expect the return of a myriad of deadly infectious diseases, including measles, polio and even smallpox. As well, health disinformation is increasingly being used to sell unregulated and possibly harmful so-called cures or treatments for COVID-19 or other diseases to people online.

The reports that I identified earlier included a number of recommendations for citizens, governments and social media platforms that they felt are necessary to effectively combat disinformation. These included dealing with social media companies in their role as enablers or purveyors of disinformation and the development and delivery of effective public education campaigns to counter the health and social harms of disinformation, all things that could be looked at further in committee study.

Colleagues, action is needed, and our work in the Senate through a SOCI study can be an important part of countering the negative impacts of the many-headed hydra of health disinformation.

As we are aware, health disinformation has always been with us, but, in recent years, it has become a substantial and growing concern with well-established negative impacts on the health of individuals and populations. It has also negatively impacted our trust in public health and in health providers, as well as our economic and civic well-being. It has integrated itself into a social framework that rejects expertise, confuses science with information and encourages verbal — and even physical — attacks on scientists and health providers alike.

Indeed, the World Health Organization, or WHO, has called this growing pernicious threat an “infodemic” that has spread deeply into every part of the globe, and for which our societies have yet to find a fulsome, effective and durable response.

The Senate of Canada is known for the solid studies that its committees conduct. I am hopeful that the Social Affairs Committee will be able to delve into the complex and challenging aspects of health disinformation as it affects Canadians, as well as identify some effective remedies that could be applied.

Today, I would like to suggest some directions that the committee could consider in its work. I will start by addressing what is meant by the terms “disinformation” and “misinformation.”

Generally, disinformation refers to false or inaccurate information that has been deliberately created to deceive. It is created by unique actors, both organizations and individuals, and spread for various purposes. These actors can be outside or inside of Canada; they can include foreign governments whose use of disinformation is designed to create internal division and civil strife in our country, as well as organizations or individuals whose purpose is mercenary or ideological, or both.

Some examples of this include the attempts of the Russian state to sow civil discord in Canada by spreading anti-vaccination messaging through various sources, as well as the self‑proclaimed health experts who spread anti-vaccination information as a vehicle for selling their so-called health products — Mercola Market is a good example of this.

Misinformation also refers to false information, but it is often applied to identify the process by which disinformation is spread — which is frequently by individuals or groups who do not take the time to critically evaluate what they are spreading, or who do so because of emotional investment in the message that they are spreading.

For the sake of brevity, I will use the word “disinformation” to include both the deliberate and inadvertent spread of false or inaccurate information intended to deceive. The outcome is similar.

Sadly, colleagues, health disinformation is also a yellow brick road into conspiracy theories and anti-civil society institutions. Robust research demonstrates that once an individual has gone down the rabbit hole of health disinformation, they are much more likely to become involved in one or more conspiracy theories. Once a person becomes involved in one conspiracy theory, they are more likely to embrace many.

Some classic health misinformation-driven health conspiracy theories pertaining to vaccines are the following: COVID-19 vaccines are a bioweapon for population elimination; COVID-19 vaccines contain microchips to be used by Bill Gates, the World Economic Forum, or WEF, and the WHO for population control; the vaccine alters a person’s DNA; the vaccine is the cause of COVID-19 variants; and vaccines cause large numbers of sudden deaths.

All of those are conspiracy theories that grow out of, use and amplify health disinformation.

The concern is that these health disinformation conspiracy theories are becoming increasingly linked to other conspiracy theories, such as the Great Reset — and that the WEF and the WHO are taking over the governance of sovereign states.

Often, these conspiracy theories spread through algorithms within social media channels and through alternative news sources, such as BitChute, Rumble, Infowars, the Gateway Pundit, the Last Line of Defense, Natural News and The Unhived Mind newsletter, just to mention a few.

Once an individual — who is caught up in health disinformation — links to those sources, other types of conspiracy theories on numerous other topics can become part of their belief system.

In Canada, EKOS Politics has created a disinformation index made up, in large part, of belief in health disinformation.

Canadians who score high on the index, meaning that they believe health disinformation — which is about 15% of Canadians — are much more likely to distrust and not follow public health advice, much more likely to dismiss the importance of Indigenous concerns and much more likely to dismiss the importance of climate change.

Furthermore, data from EKOS polling shows that Canadians who score high on this disinformation index tend to support Russia in its war against Ukraine.

This fits with the alarms sounded by many, including Marcus Kolga, of the Macdonald-Laurier Institute, who has clearly demonstrated the role of Russia in spreading health disinformation in Canada. Other scholars have noted that China has also been actively engaged in spreading health disinformation.

One other issue that has received scant media attention is the impact of belief in health disinformation and conspiracy theories on families. As some of us know from personal experience, adherence to health disinformation and conspiracy theories can pull otherwise cohesive families apart. If that can be the impact of health disinformation on families, just think of what it can do to communities or civil society.

Indeed, some scholars have already noted the relationship between health disinformation and social and civic polarization.

Colleagues, there are numerous remedies that have been proposed to help counter health disinformation, and a thorough Social Affairs Committee study should critically assess these remedies, as well as provide direction on how those that are effective can be best applied. Those remedies might require numerous concurrent interventions and will need to be well supported, established outside of government and sustainable — because we are in this for the long haul.

Colleagues, the Senate is known for its good committee work in helping Canadians journey through complex issues and difficult topics. Health disinformation and its negative impacts, as well as the potential effective remedies and how to apply them, are some of the wicked, complex issues facing Canadian society. Indeed, health disinformation might be one of the most important issues that not only Canadians, but also global citizens, have ever faced.

I look forward to further debate on this motion and to its rapid passage so that the Social Affairs Committee can get to work on this challenging opportunity.

Thank you. Wela’lioq.

The Hon. the Speaker pro tempore: I’m sorry, colleagues, but there is no more time for debate, unless Senator Kutcher wants to seek leave for five additional minutes.