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. Marty Klyne

Share this post:

Hon. Marty Klyne: Honourable senators, I rise to speak in support 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). This bill proposes to repeal the law that authorizes the use of corporal punishment on children as a means of correction in Canada.

Today I will add to our debate with the following: additional information on the Truth and Reconciliation Commission’s justification for this change, a few comments on policy details and thoughts on the Senate’s role in answering this Call to Action.

First, thank you to the sponsor, Senator Kutcher, for championing this legislation to answer Call to Action 6. Your knowledge and compassion as a leading psychiatrist are cause for optimism that we can finally succeed in repealing section 43. This change will advance reconciliation and benefit children across Canada.

Senator Kutcher laid out a comprehensive case for passing this evidence-based bill. This includes scientific research indicating that the practice of hitting children for discipline — such as spanking — increases the risk that children will become aggressive and develop mental health problems.

Senator Kutcher told us that, by passing this bill and promoting parenting supports, we can both protect children from this form of violence and help Canadian parents in learning and applying effective and much less damaging parenting practices.

We also heard that Bill S-251 will enable Canada to join 63 other countries that have enacted laws prohibiting physical punishment of children in all settings.

By passing this bill, Canada would live up to the international legal commitments under the UN Convention on the Rights of the Child, ratified by our country in 1991.

In her speech, Senator Moodie, as an esteemed pediatrician, bolstered the case for Bill S-251. Senator Moodie further explored expert evidence and international experiences relating to this subject. She noted that in countries that have banned corporal punishment on kids — such as Sweden, Germany and New Zealand — the bans have resulted in a significant drop in reports of the practice. In Germany and Finland, for instance, that reduction was nearly 50%.

Senator Moodie highlighted that these countries acknowledge the need for public education and adequate family supports as a complement to banning corporal punishment. This is a point requiring Parliament and the government’s attention that I hope we can attend to through a Senate committee study on this bill, perhaps toward recommendations accompanying the repeal of section 43.

Colleagues, Bill S-251 can be summarized in three words: Every child matters. This is a principle that Canadian society is learning and working to uphold.

In the media, we have collectively witnessed the truth of our country’s history at places like Kamloops, Cowessess First Nation, Cranbrook, Penelakut Island, Saddle Lake Cree Nation, Williams Lake First Nation and Keeseekoose First Nation. We keep in our hearts the thousands of children who never came home from residential schools and the survivors who were scarred for life.

We always keep them in our hearts.

Corporal punishment was a significant part of life at these institutions. Experiences of colonial forms of discipline traumatized Indigenous peoples in Canada, contributing to a legacy of multi-generational harms.

We know that section 43 of the Criminal Code connects to the values of the relatively early days of the residential school era. As Senator Kutcher told us:

Section 43 is an anachronism — an historical holdover from laws written in 1892 that permitted corporal punishment of employees, wives and children.

Senators, I would like to quote two passages from The Final Report of the Truth and Reconciliation Commission to help inform our debate from a historical perspective. From Volume 4, Missing Children and Unmarked Burials, a passage explains the culture shock to Indigenous peoples who were subjected to corporal punishment:

The churches and religious orders that operated Canada’s residential schools had strong and interrelated conceptions of order, discipline, obedience, and sin. They believed that human beings were fallen, sinful creatures who had to earn salvation through mastery of their nature by obedience to God. The approach to discipline used in schools was based in scripture: corporal punishment was a Biblically authorized way of not only keeping order, but also bringing children to the righteous path. In their use of corporal punishment, church leaders had the support of nineteenth-century educational bureaucrats such as Egerton Ryerson, who believed that opposition to corporal punishment was “contrary to Scripture.”

The report further states:

Corporal punishment did not historically have this same level of acceptability among Aboriginal people. The large number of recorded parental complaints, coupled with the ongoing difficulty in recruiting students, is evidence of occasions where discipline imposed by the schools exceeded what would have been acceptable in either Aboriginal or European communities.

Students were punished for not finishing their lessons, for bedwetting, talking out of turn, throwing rocks at the school fence, immorality, refusing to eat their meals, speaking their own languages, neglecting their chores, and theft (often of food).

From Volume 5, The Legacy, we learn how colonial punishments conflicted with traditional Inuit parenting:

Traditional Inuit parenting is based on kinship relationships and cultural and spiritual beliefs. Inuit believe that a newborn named after a deceased relative takes possession of that relative’s soul or spirit, and this is reflected in the parents’ relationship with the child. According to the national Inuit women’s association, Pauktuutit, it “would not be considered appropriate … to tell a child what to do, as this would be the equivalent of ordering an elder or another adult about, thus violating an important social rule in Inuit culture.”

Ignorance of this aspect of Inuit culture caused many non-Aboriginal people, including residential school administrators and child welfare officials, to make culturally biased judgments. They often saw Inuit parents as extremely permissive and indifferent to discipline. At the residential schools, in contrast, teachers attempted to control a child’s behaviour through corporal punishment and other harsh disciplinary measures distasteful to Inuit parents.

Honourable senators, in recommending the repeal of section 43 in Call to Action 6, the TRC concluded, as noted by Senator Kutcher:

The Commission believes that corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes.

In answering Call to Action 6 by repealing section 43, we can denounce the historic imposition of foreign corporal punishments on Indigenous children by colonial authorities. Such a decision by Parliament would be an important act of reconciliation — following the Senate’s unanimous apology on September 29 of this year for Canada’s role in the residential school system, through a motion from Senator McCallum.

In addition, with Bill S-251, the federal legislature would act to protect all kids across Canada today from the fear, pain and embarrassment of corporal punishment. A key role of the Senate is to protect vulnerable persons in Canada, and the time to act is now.

I will add what I hope are a few common-sense comments about the legalities: In 2004, the Supreme Court of Canada found section 43 to be constitutional, and interpreted the section to restrict forms of corporal punishment allowable on children. The Supreme Court stated that section 43 allows “only minor corrective force of a transitory and trifling nature.” It can only be used on children between ages 2 and 12. Teachers can apply force to remove a child from a classroom. Lawful corporal punishment cannot involve blows or slaps to the head, or hitting a child with an object, and cannot be inflicted in anger, or on a child with a cognitive disability.

On debate, Senator Plett raised concerns that repealing section 43 could criminalize picking up a child who is throwing a tantrum, and putting them in the car or in a car seat. My reaction to these comments is optimism for common ground. I would not wish to criminalize the behaviour Senator Plett describes, which sounds to me like acceptable parenting. Rather, with repealing section 43, as I understand the issue, the goal is to eliminate the use of force for the purpose of correction. For example, this bill would ban spanking and similar actions aimed to influence behaviour through a negative imposition of force, involving fear, pain or embarrassment.

However, the purpose of Bill S-251 is not to criminalize the incidental use of force by parents or teachers in fulfilling their legitimate responsibilities, such as safely transporting children. To me, the examples raised on debate are in the latter category — rather than being a punitive or deterrent use of force on children.

In 2017, on debate of Bill S-206 — the last version of this legislation — the replacement sponsor, former Senator Sinclair, offered the following clarifications:

. . . we must not forget that minor touching is not criminalized anyway, on the principal of de minimis. If it is something so minor, it is unworthy of the criminal law’s attention and sanction.

The law also recognizes that some applications of force are socially and legally acceptable. In order to get someone’s attention, for example, sometimes you have to touch them on the shoulder or on an arm. Engaging in a boxing match or body checking in hockey are not assaults on the basis of consent. Accidental touching is not illegal, nor is the use of reasonable force to defend or protect yourself or another person or even your property.

Section 43 says that if you assault a child for the purpose of correcting a child’s behaviour, you have a special defence if you use reasonable force. Society is beginning to accept that no amount of force is reasonable.

Colleagues, it seems to me that practical concerns could be addressed through committee observations, or perhaps even through an amendment to convey greater certainty in the Criminal Code about what is — and is not — intended as allowable, while repealing section 43. However, the repeal is required to eliminate the negative impositions of force on children that we want to target, such as spanking which is currently lawful under section 43. A committee could undertake such a constructive effort to ensure the Senate is not proposing a law at odds with common sense, while at the same time effectively banning corporal punishment on children. I, therefore, urge the timely referral of Bill S-251 to committee, as the Senate did with Bill S-206 in 2018.

I turn now to the role of the Senate in answering this Call to Action. Legislatively, Call to Action 6 is perhaps the most straightforward call to answer. Along with the House of Commons, the Senate is one of two bodies with decision-making authority and responsibility on this matter. We are in the driver’s seat — and if we don’t act, no one can.

In recent years, the Senate has delivered results in answering the Truth and Reconciliation Commission’s Calls to Action: We have passed legislation to protect and renew Indigenous languages; to restore Indigenous jurisdiction over child and family services; to uphold the United Nations Declaration on the Rights of Indigenous Peoples; to establish the National Day for Truth and Reconciliation; and to realize a new Oath of Citizenship.

We have also received — from the other place — Bill C-29, a government bill to establish a national council for reconciliation, addressing Calls to Action 53 to 56, sponsored by Senator Audette. Many senators have expressed their personal determination to do more. I wish to do more. With Bill S-251, we have our chance. Let’s show Canada, and the world, that every child matters. Thank you. Hiy kitatamihin.

Some Hon. Senators: Hear, hear.

Share this post: