Hon. Rosemary Moodie: There is a phrase you used that I don’t understand. What is “the right time”? Can you define that for me? What do you think is the right time?

Hon. Rosemary Moodie: Honourable senators, one of the central roles of our Senate is being a voice for the voiceless and representing the groups who lack meaningful representation in our political discourse. Bill S-251 fits well within this mission on three fronts. It simultaneously addresses, first, a long-standing concern within Canadian communities; second, a Call to Action from the Truth and Reconciliation Commission’s final report; and third, it’s an important step towards fulfilling all international human rights commitments.

I’ll start by saying I strongly favour this bill and urge us to ensure it receives due consideration in committee, where the voices of Canadians — especially Canadian children — can be heard.

Colleagues, it is well past time to repeal section 43 of the Criminal Code. I want to commend our colleague Senator Kutcher for putting this bill forward because, colleagues, this bill has come before us in many iterations in the past decade. But the truth is that, as we all know, perseverance and persistence are always necessary for real change to happen. For this crucial issue, it is time for us to bring it back for renewed consideration in today’s context, recognizing again Canadians’ concerns, the need to definitively respond to the Truth and Reconciliation Commission and to fulfill our international commitments.

A few years ago, we hosted a virtual celebration for the Honourable Landon Pearson’s ninetieth birthday and during that discussion she said something I knew and you know, but she communicated it in a fresh and simple way when she said, “Parents don’t have rights. They have responsibilities. Parents don’t have rights. Children have rights. Parents have responsibilities.”

I’m strongly in support of helping parents care for their family well. In that regard, we must be sensitive to the role government should play, but interventions from public institutions are sometimes needed to protect children’s rights, and then they should be welcomed.

That’s why we have wealth transfers, for example, like the Canada Child Benefit; and important programs like the special benefits within Employment Insurance, because these play a role for public institutions in helping families thrive.

Parents are supposed to be the primary caretakers of their children, and have the responsibility to raise them so they go on to live healthy, meaningful and productive lives. In an ideal world, this would be what we observe in every family. But, as you and I know, sometimes reality does not play out like this. There are times when public institutions do need to step in. We often think of those moments as times when parents are unable or unwilling to live up to that responsibility. I would argue that we also need to look at them as times when children’s rights and their well-being need to be assured and upheld.

What are those rights? According to the United Nations Convention on the Rights of the Child, or UNCRC, children have wide-ranging rights — just like adults — from freedom to use their language and freedom of religious thought, to protection from violence and abuse. Senator Kutcher quoted section 1 of Article 19 in his speech as sponsor, and I’ll read it again to remind you:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Colleagues, Canada has an obligation to respect the UNCRC and to fully implement it. This is one of the many ways that we have failed to do so.

Section 43 effectively does the opposite by allowing children to experience forms of physical violence. We can no longer stand idly by. This bill is not about grabbing a child to help keep them out of harm’s way. Nor is it about lovingly restraining a child to put them in their car seat or to give them their bath. It is about removing corporal punishment as a legally accepted form of parental discipline when there is no evidence at all to prove its effectiveness.

I want to turn to comments from two experts: Dr. Daniella Bendo, Assistant Professor at King’s College University; and Cheyanne Ratnam, CEO of the Ontario Children’s Advancement Coalition, an organization that focuses on children in foster care. Dr. Bendo argues:

Section 43 of Canada’s Criminal Code justifies the use of corrective force against children in Canada and states that corrective force is warranted if the force does not exceed what is considered “reasonable” under the circumstances. This colonial law is a violation of children’s protection rights and has been in the Criminal Code since 1892 although 63 countries globally have prohibited physical punishment in all contexts.

There exists a significant amount of academic research that demonstrates the negative effects of corporal punishment on children — including the harmful effects on young people’s behaviour, well-being and mental health, cognitive development, and relationships.

She goes on to say:

In fact, there is no research that shows there are positive effects or benefits of corporal punishment on children’s health or well-being; nor has there ever been research that highlights long-term benefits of physical punishment on children. Bill S-251 is central to Canadian children’s legal protection from harm and violence and signifies Canada’s human rights obligations to children.

For her part, Ms. Ratman stated:

Bill S-251 is imperative to protecting children from harm, and the system has the responsibility to develop adequate supports and resources to support the health and well-being of families. [Section 43 of the Criminal Code] is outdated and is counterintuitive. [It is] as a country to support a law that is rooted in whiteness, and which perpetuates the breakdown of families, entire communities, and facilitates the breakdown of culture and identity in instances of forced family breakdowns — such as the child welfare system and legal system. What families need is adequate, equitable, accessible and culturally appropriate supports and resources, including mental health supports, rooted in healing and growth for all members unique to their divergent needs. . .

The sum of the comments of both these accomplished women is that it is no longer morally tenable for Canada to sanction child violence and simultaneously take moral leadership on the world stage or seek reconciliation here at home — in fact, it never was. There is a defect in Canadian law, and it must be fixed.

It must be fixed, because there is no evidence to support corporal punishment as an effective way of shaping better behaviours in children, as noted by our colleague Senator Kutcher when he spoke about an article in The Lancet published in 2021 — an article that spoke about the analysis of 69 longitudinal studies and concluding something that we all know: spanking is harmful.

Yet, fixing this issue is only the beginning of the large work we need to do to support healthy families in this country. Corporal punishment, as sanctioned by the Criminal Code, is symptomatic of a larger issue.

In considering this issue, my first assumption is that most parents love their children and would do anything to care for and love them well. The ability for parents to do so is eroded by many daily challenges like the high cost of housing and groceries, low-paying jobs, pressures on their mental health brought on by generational trauma, and a whole host of other challenges you and I are very familiar with.

Many parents resort to corporal punishment because they don’t have the time, energy, capacity and understanding to sit and speak with their children, to gently teach them or use other methods of positive discipline. There simply isn’t time, and corporal punishment can be perceived as the way to stop unwanted behaviour now — in a time-efficient manner. I don’t think it’s because parents are bad people who hate their children. I think that often they just don’t have the time and understanding.

My second assumption is that children don’t need to be hit to learn. Anyone who has spent any amount of time observing a child would be surprised and amazed at their many abilities. They’re observant, curious and bright. They can learn and be taught. Our goal should be to enable parents, families and communities to work toward the moral and intellectual development of children from a very young age. Talking to them, teaching them, patiently reminding and encouraging them is the way parents can and should work toward children adopting appropriate behaviours. Using positive strategies to parent also shows these kids that words, when used patiently and deliberately, have the power to change hearts and minds in a more powerful and permanent way than physical intervention ever could, setting those children on the path to healthy adulthood.

I know many of us, even here in this chamber, have dealt with corporal punishment when we were kids. For some, it was something much worse than the occasional — but certainly still abusive — slap, pinch or twisted arm. If we’re honest, it’s not something we look back on fondly. It’s something we got through and endured and, for some, may be accepted as part of what made us the successful, powerful people that we are. But there was a silent effect: something that impacted us subconsciously, and something we could never put our finger on but we know is still there. A silent impact that, for many, remains a source of pain for their entire lives. It may well be that we are where we are despite that treatment, not because of it.

We must have never been spanked out of anger, and it may well have always satisfied that “reasonable” criteria laid out by the Supreme Court, but that did not make it okay, colleagues.

I don’t say this to make light of the situation many have gone through. I say this to cause us to reflect on whether or not corporal punishment is ever beneficial and to remind us that the effects on children are real and long-lasting. This is a deeply personal issue for many, and one that has rightly left deep scars, unresolved anger and open wounds.

Repealing section 43 alone will not be sufficient. Colleagues, meaningful steps to improve the well-being of families and children will be needed if we are to see the welfare of children improve, and if the rights of children are to be respected.

I will mention a few words on the experiences of other jurisdictions on the global stage. We know that many countries, including Sweden, Germany and New Zealand, have banned corporal punishment, and we can learn from their lived experiences. In these jurisdictions, the bans imposed worked. Those countries all report a significant drop in reports of corporal punishment. In Germany and Finland, that reduction was by nearly 50%. Also, these countries acknowledge the need for public education and for adequate family supports. They acknowledge the need to help parents and families figure out other ways to teach and discipline their kids.

I recognize the importance of these factors and would strongly recommend that our government here in Canada consider this and commits to making those investments when this bill becomes law.

Finally, the bans did not result in parents getting locked up for spanking their kids. In most countries, the response to corporal punishment was mostly referrals to social services that allowed families to get the right kinds of supports they needed. We will need to do much of the same here in Canada.

Colleagues, I end by saying it is our responsibility to repeal section 43. I’ll close by saying that I support this bill again wholeheartedly and look forward to further discussion on this bill in committee, with your help. Thank you, meegwetch.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Ravalia, seconded by the Honourable Senator Duncan, for the second reading of Bill S-253, An Act respecting a national framework for fetal alcohol spectrum disorder.

Senator Moodie: I would, yes.

[Translation]

Senator Moodie: Certainly, Senator Boisvenu, that would be the case. But in really heavily evidence-driven conversation like I just presented, I would spend a lot of my time, more than half of my speech, referring to sources. I can provide that to you and the clerks if that is useful, but I don’t think it was valuable to our time here to be referring back to bibliographies.

(On motion of Senator Martin, debate adjourned.)

Hon. Rosemary Moodie: Honourable senators, I rise today to speak to Bill S-213, An Act to amend the Criminal Code (independence of the judiciary), a bill that amends the Criminal Code to give judges more discretion not to impose minimum sentences when they consider it just and reasonable.

I would like to begin by thanking my honourable colleague Senator Mobina Jaffer for reintroducing this bill in our new parliamentary session. This bill has been a long-term project of the office of the Honourable Kim Pate since the Forty-second Parliament, and I know Senator Jaffer is the perfect champion to continue this initiative. We owe a debt of gratitude to both of these experienced and dedicated leaders who continue to push for a more just, equitable and inclusive Canada.

Bill S-213 is an essential step forward for our justice system because it addresses the need to restore judicial discretion to our legal system after years of regressive reform. I support the bill because it addresses the human and social costs of imposing mandatory minimum sentences.

Colleagues, as I have said before, we have available to us the results of decades of research, and the evidence is clear: Mandatory minimum sentences do not deter crime, do not reduce recidivism rates, and do not make our communities safer.

Honourable senators, let us discuss and consider this evidence. We can recall that the Supreme Court of Canada, as well as numerous judicial bodies, commissions, parliamentary committees and organizations, have all concluded that mandatory minimum sentences do not deter crime.

We must consider that Canadians are broadly supportive of judicial independence in sentencing. The Department of Justice found in 2018 that Canadians are not supportive of mandatory minimums and prefer a more individualized approach to sentencing. Seventy-seven per cent of Canadians believe, in principle, that applying the same minimum sentence to all offenders convicted of the same crime is not fair or appropriate, and only 16% of Canadians believe that mandatory minimums lead to fair sentencing. Moreover, 90% of Canadians believe that judges should have the flexibility to impose a sentence less than mandatory minimum penalties where reasonable and appropriate, and that they make the best decisions based on the individual elements of a case. Simply put, the plurality of Canadians think that flexibility in sentencing would better address the root causes of crime and make our communities safer by deterring future crime.

Honourable senators, Bill S-213 addresses a significant concern in our judicial system because it brings back into our focus the person, their circumstances and their perspective. In our current system, judges cannot develop a fair sentence based on the individual’s specific circumstances and must impose minimum penalties. However, this system is blind to the implications of the constraint because it is blind to the human, social and financial costs of imposing mandatory minimum sentences.

So, colleagues, what are these costs?

First, we must consider the well-documented systemic racism that is pervasive within our institutions and how Bill S-213 would help address some of the institutional racial inequities in our justice system.

We know that Black and Indigenous offenders are overrepresented in admissions to federal custody. According to data provided by Justice Canada, in 2017, 2.9% of the total Canadian population identified as Black, 4.3% as Indigenous, and 16.2% as other visible minorities. Over a 10-year study period between the fiscal years 2007 and 2017, Indigenous offenders comprised 23% of the federal offender population at admission, while Blacks and other visible minorities comprised about 9% each.

Honourable senators, let us dig deeper into the statistics. Over the 10-year period that Justice Canada considered, the department found that Black and other visible minority offenders were more likely to be admitted to federal custody for an offence punishable by a mandatory minimum penalty. Almost 39% of Black offenders were admitted with a conviction for an offence punishable by a mandatory minimum penalty. For other visible minorities, the rate was about 48%. Not only are visible minorities overrepresented in federal custody, but they are also more likely to be there under a mandatory minimum penalty.

In a statement by the Parliamentary Black Caucus in 2020, BIPOC parliamentarians and civil society came together to speak to this well-documented over-policing and over-incarceration of Black and Indigenous Canadians. Through careful consultation and research, this caucus called for reforms to the justice systems that perpetuate anti-Black racism and systemic bias, specifically through measures like eliminating mandatory minimum sentencing measures.

Beyond the impact on sentencing, mandatory minimum penalties hurt Canadian families, and specifically our children and youth.

A new report published by Campaign 2000 confirmed that one in five children, or 17.7%, lived in poverty in 2019. They note that at this pace, it would take 54 years, or more, to end child poverty. This rate is even higher among racialized and immigrant communities. Even more alarming is that we do not yet have the data to understand the impact of the pandemic, and we continue to observe the widening gaps that have characterized systemic inequities during COVID.

This high poverty rate is of concern, as research demonstrates that poverty has a lifelong impact on educational and occupational opportunities, as well as on the chances for meaningful engagement in society. Moreover, the inequities that arise from poverty can propel vulnerable youth into increased involvement in the criminal justice system as they transition into adulthood. While research is ongoing on how this correlation may contribute to incarceration statistics down the line, it is clear that continuing to rely on mandatory minimum sentencing will continually fail to consider the context and individual circumstances that have led to these offences and perhaps higher rates of future crime.

In fact, in another study conducted by the Department of Justice in 2018, young people noted themselves that two of the essential factors judges should be considering in fair and equitable sentencing are personal circumstances and the history of the accused person. Those who believed in providing flexibility for judges to offer sentencing less than the stated mandatory minimum penalty thought that there are too many personal and contextual circumstances that mandatory minimums do not take into account and could further criminalize vulnerable people. They argued that the criminal justice system should be searching for ways to heal people. This, senators, shows us that the younger generation is searching for a more just, fair and equitable justice system that is responsive to the circumstances of both youth and adults.

Honourable senators, the effects of mandatory minimum sentencing are undeniable and tell a narrative of a system failing to provide justice to Canadians. Our research shows a story of a justice system where racial and ethnic minorities, children and youth are disproportionately represented and affected.

It paints a disturbing picture of systemic inequities that may contribute to increased chances of future crime. It showcases a justice system relying on outdated practices that do not make us safer, do not deter crime and do not decrease recidivism. While criminal reform is a longer and more complex process, we can move it one step forward by passing Bill S-213 and giving our judiciary the ability to exercise discretion in mandatory sentencing to address some of the system’s challenges.

Judicial discretion would allow for the consideration of the impact of incarceration on dependent children and other sectors of our society. Judicial discretion would also give room for the review of reduced or delayed sentencing, where appropriate, and in situations where significant harm could result, such as for dependent children. For this reason, today I stand in support of Bill S-213, which allows our judiciary to move away from mandatory minimum sentencing, where appropriate.

To conclude, I would like to again thank Senator Pate for your leadership and tireless work in starting this journey of reform, and to Senator Jaffer for sponsoring this bill and marching us onward. I would also encourage you, senators, to give serious consideration to the disproportionate impact of mandatory minimum sentences on children and youth in your communities as you consider how to vote on Bill S-213.

Thank you.

Senator Moodie: Senator Boisvenu, I’m referring to past studies — and I’m not going to be specific because I don’t have it in front of me but I can get back to you — that have been done polling Canadians on this matter and that have gathered this information. I can find out that information and send it to you. It’s not here on my sheet of paper.

[Translation]