Second reading of Bill S-251, An Act to repeal section 43 of the Criminal Code (Truth and Reconciliation Commission of Canada’s call to action number 6)

By: The Hon. Pierre Dalphond

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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.

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