- This third installment
now in the first year
of the Nathanson Center's
Emerging Trends in Criminal
Justice seminar series.
That's organized by
myself, Heidi Matthews,
and professors Paciocco
and Tanguay-Renaud.
And it's my great pleasure
to welcome as our speaker
for this third talk, Lisa
Kelly, who is an assistant
professor at the faculty of
law at Queens University,
where she teaches in the areas
of Criminal Law and Evidence.
Her research lies at the
intersection of criminal law
and family law with
the focus on historical
and contemporary legal regulation of sex,
reproduction, and family life.
Professor Kelly completed her doctorate
at Harvard Law School in 2015,
where she was a Trudeau scholar.
Before joining Queens, she
was also a postdoctoral fellow
at Columbia Law School
and the Center for Reproductive
Rights in New York City.
And Professor Kelly has
served as a law clerk
to Justice Marshall E. Rothstein
of the Supreme Court of Canada.
And has been a Fulbright scholar,
a Frank Knox Memorial Fellow,
and a Fellow of the Institute
for Global Law and Policy
at the Harvard Law School.
So, welcome Lisa and we
look forward to your talk.
- Wonderful.
So thank you, everyone, for coming.
And thanks especially to Lielle Gonsalves
who did a lot of groundwork to
make this workshop possible.
And also obviously, to
the Nathanson Center,
here at Osgood, including professors
Francois Tanguay-Renaud, Palma Paciocco
and professor Heidi
Matthews, for the invitation.
It's a real pleasure to
be with you all here.
And thanks so much for making
time on a Friday afternoon.
So the title of my talk today
is Policing Child Discipline.
And what I'm gonna talk
with you about today is,
the decades-long campaign that
children's rights advocates
have pursued in Canada
to repeal what you'll see
on this slide here of Section 43
of the Criminal Code of Canada.
And according to
children's rights advocates
that kind of, their dominant
position on this provision,
is that it's a holdover
from a more archaic time
when we used to think
of children more as akin
to chattel property who were
subject to the domination
of their parents, but
also, of their teachers,
and at one time, of their
masters when they served as
apprentices or certainly
obviously, as enslaved people.
And what this provision
essentially provides,
is a kind of carve-out.
Some have framed it as an
excuse, others as justification,
but in either case, a
kind of carve-out defense
to the regular law of common
assault that would apply
in cases when one uses physical force,
either hitting, which
is often referred to,
as sometimes controversially,
a spanking provision,
but either, hitting in the
form of corporal punishment,
but also to quite a degree,
also even restraint, would seem to be,
at least captured on
it's face, by assault.
And so, the focus of my
talk today when I discuss
the campaigns to seek repeal,
is gonna be specifically
on the way that advocates
have mobilized social science evidence
in their legal and political campaigns.
And in particular, some
of the ethical choices
that they have made in deciding what types
of social science evidence to draw upon.
What questions they have asked or obscured
in pursuing questions about the meaning
and the implication of
physical discipline.
And what are some of the implications
and the consequence of
these choices for us
as we think about law and
policy reform I this area.
So, just to get us a
little bit of a set-up
about where this defense comes from.
It dates back, actually
well pre-dates Blackstone,
but I'm gonna start
Blackstone at least as a,
oh, am I missing a page here,
no, I'm not.
So, I'm gonna start though with Blackstone
who was one of the main
figures who informed
James Fitzjames Stephen
whose model penal code,
our code was very much based upon.
And so, for Blackstone who is
writing in the 18th century,
he understood physical
discipline or corrective power,
to exist as part of the
parents, and in particular,
the father's authority over the child.
So, as some of you who
may, or may not have,
experienced Blackstone
commentaries at some point
in your lives, Blackstone
organized a lot of law
in terms of relations,
parent/child, husband/wife.
And within the parent/child relationship,
Blackstone set out, again in particular
that fathers had particular duties
and responsibilities to their children.
These include duties of
maintenance, of protection,
of education, and in exchange, or in part,
in allowing them to actually
execute those duties,
they had certain powers and authority.
So for instance, if their child
was serving as an apprentice,
the father had a right
to the child's earnings,
in part, because they had
the private responsibility
to maintain their child.
And likewise, Blackstone
wrote that the father,
"may lawfully correct
his child being underage
"in a reasonable manner,
for this is for the benefit
"of his education."
And this is significant because Blackstone
was very much channeling
18th century ideas
about the benefits of
physical chastisement
for the child, and for
his or her educational
and scholarly development.
There is this close
intersection between the parent
and the private tutor who likewise,
could be delegated this
authority from the parent.
But the key part, and I'll return to this
a little later toward the end of my talk,
is that even for Blackstone,
at a time when physical
discipline held different social meanings
than it may in some circles today,
he still figured the authority in terms of
the parent's child-rearing
duties and powers.
It wasn't really a property relation
or simply a story of
domination, or do what you will,
with your child, which is how
it's often narrated backward.
I think that's an anachronistic reading.
It was really about the
way in which parents
would fulfill their
child-rearing responsibilities.
So we inherit that law through Blackstone
who gives this to James Fitzjames Stephen,
when we codify in 1892, that
provision comes in here.
It originally also included
masters and apprentices.
That relation dropped out when
we revised our code in '55.
But otherwise, the provision
as you see it here,
really came through the
common law and we had it
when we codified, as I said, 1892.
So certainly by the 1980's,
I would say definitely,
you started to get more
advocacy by children's rights
groups in Canada, but also
in Europe and more globally,
arguing against maintaining
these exceptional defenses
within criminal codes
globally, and certainly,
within the common law world.
Advocates had pursued political advocacy,
certainly into the early '90s,
and they weren't gaining
the political traction
that they wanted, for repeal.
And so eventually, they
turned their energies,
at least for a while,
away from Parliament
and toward the courts.
And the incident that really sparked off
this move to the courts
that would culminate
in what many of you will be familiar with,
at least the first-year's will eventually
become familiar with it,
which will be our
Canadian foundation case.
But the incident that really
sparked off the litigation
was a pretty banal, mundane one.
And so, I'm gonna start us there.
So this was in 1995, a
Labor Day weekend trip.
And we can all see the
ways in which we have
these kind of nice, bourgeois
family images in our head
of the family road trip.
And the Peterson family
of Warrenville, Illinois
over the Labor Day weekend in 1995,
decided to sojourn up
to the Canadian side,
which is arguably, the nicer side,
but also is as bad,
'cause you know hotels.
So, it's a bit of a trade-off.
But they went to the Canadian side,
and this was their Labor Day weekend trip.
So, things were seemingly
going petty well,
but as any of us who have
experienced a family road trip,
things often don't continue to
go well for the entire trip.
And things went a little
south for the Peterson family
in the parking lot of the Olive Garden.
(laughter)
Which is where again,
a kind of great setting
for middle class family drama.
So, the incident that started it all off,
was one, again that will
be pretty utterly familiar
to many people.
Two siblings were misbehaving
in the backseat of the car.
They were refusing to listen.
The mom had gone into the Olive Garden.
It was her birthday.
The dad and the kids had
gone out to get the surprise
birthday cake from the car.
The dad puts the two kids
in the back of the car.
She is aged three.
The toddler is about
one and a half to two.
The older sister's
antagonizing the little guy.
The father says: You need stop, stop.
Stop hitting him.
The backdoor is open,
the car's not moving,
but the backdoor is open, she
pushes the one and a half,
or two year old, out the open door.
He tries to get back in.
She slams the door on his hand.
So naturally, there's a lot of shouting,
there's a lot of crying.
What he did next though, ended
up really dividing Canadians.
It ended up capturing a
lot of media attention
and it eventually became
the spark, as I say,
that moved the campaign around Section 43,
out of the political
domain, into the legal one.
The father decided that he would spank
the three year old daughter.
He tried to do that in
the backseat of the car.
She was squirming around a lot,
so he put her on the trunk of the car,
he pulled her pants down slightly,
and spanked her, I think
about five or six times.
That might have been
the end of the occasion.
She then proceeded to
go into the restaurant.
Told her mother that she
had been misbehaving,
but she was okay and the
birthday party proceeded.
Well, they thought they were gonna proceed
with the birthday party.
But another patron of Olive Garden,
drove into the parking lot.
She witnessed the spanking going on
and she exited her vehicle,
she told the father
in no uncertain terms,
that she disapproves
of physical discipline.
She noticed that he has Illinois plates.
And she tells him, in Canada,
what you have just done,
is a crime, and I'm gonna
be calling the police.
So, she calls the police.
They arrive, they arrest
the father for assault.
He spends the night in jail.
He gets bail, and the case proceeds
and it goes all the way to trial.
The family come back for the trial.
Eventually, at trial
the father is acquitted
of assault, and he is
acquitted using Section 43.
And the court holds that he had been using
corrective force and that it
was excused under Section 43.
The case attracted, as I
said, some media attention
through various means.
And a professor at the
University of Regina,
Ailsa Watkinson, she
penned an influential,
she was opposed to 43, she
penned an influential editorial
criticizing the acquittal in
the Saskatoon StarPhoenix,
and then she applied for
court challenges funding.
She received that funding.
Eventually she paired up with
the Canadian Foundation for
Children, Youth and the Law,
and they proceeded with the challenge.
Not directly on this case, obviously.
They proceeded instead,
without an actual named
child or a live case.
And it was the Canadian
Foundation that then pursued
the case all the way to the
Supreme Court of Canada.
So at the Supreme Court,
the Canadian Foundation
argued that Section 43 violates
children's rights to dignity,
their equality rights.
They said it manifests a
legal regime that once treated
children as akin to chattel
property and not deserving
human beings deserving of their rights.
So, children were these,
kind of, rag subjects
who had not yet been incorporated
into the human rights
regime as we know it.
But in addition to these rights claims
and these claims around dignity,
they also relied heavily on
social science evidence claims
about the effects of physical discipline
on children's behavior and development.
And in particular, they
relied quite heavily,
on developmental psychology
and sociology literature
that attempts to reveal the effects
of physical discipline om children.
And this evidence really provided
an important basis for them
to make the case that
children need protection
from physical discipline, and they need it
through the criminal law.
And in particular what you notice
with the developmental psychology
literature, is the idea
that there is some sort
of universalizable psyche
and there's a universalizable
idea of discipline
and that we can measure
both in a reliable fashion.
It's important to note,
just for anyone who looks more
carefully at social science,
they really can't get beyond correlation.
And that's in part, because
it would be unethical,
effectively, to run controlled studies
that would try to get at causation.
But that also raises a lot of questions
because the populations tending to use
more physical discipline,
may also be populations
that are under stress
already, in their home,
and that will then also be correlated
with behavior outcomes.
And so, there's a real problem
within the methodology.
And again, that wasn't necessarily
brought to light for the court.
But at the very least,
what the advocates were putting forward
was the claim that physical discipline
is associated, correlated
with poor behavior outcomes
with increased aggression,
sometimes with lower intelligence
and reduced attention among children.
They were relying on various different
professional organizations as well.
The American Academy of Pediatrics
which has recommended against spanking.
Also Professor Straus,
who has been a pioneering
American sociologist in the
area of family violence.
And in particular, he
has made the argument,
sometimes making him a bit
contentious with some feminists,
that corporal punishment
really helps explain
high levels of violence
in American society,
including spousal battering.
So rather than seeing
potentially, battering
as being a flowing necessity
for masculine domination,
he theorizes that corporal
punishment is at the root of it.
He once summed up his argument
pretty simply, which is:
"If you want your child to grow
up to be the kind of person
"who reasons, instead
of hits, I can't imagine
"why any parent would ever spank."
So he has a bit of
idealistic-type arguably,
vision both of what
happens when people strike
their children, but also,
the kind of forethought
and foresight that might go into parents.
He has also attracted, and again,
this didn't get any play in this advocacy
or before the court, but within
sociology itself in the US,
he's attracted a lot of
criticism for ignoring
or understating the role of class,
race and community dynamics
in thinking about physical
discipline, both among those who use it
and about how children may
perceive it differently.
And that's a really key point
that I'm gonna return to in a minute.
But those kinds of critiques didn't travel
with the reception of his evidence into,
and it's presenting in front of the law.
Which, I think, is a bigger
question that we have
when we employ social
science evidence in law,
what happens when the critical literature
around that method or approach
doesn't come before the court.
So, these were the kinds of arguments,
as you can see from Professor Straus,
he ultimately likewise couldn't
say that there was more
than a correlation, but he
wanted to go as far as saying,
and it's a bit nebulous,
but kind of quote:
"There's an accumulation
of non-definitive evidence
'which together leads me
to the conclusion that
"it's causally related
to harmful side effects."
That would obviously, on
a social science ground,
or science ground would be a
bit of a problematic statement,
because how would one determine causation
from non-definitive evidence?
I mean, causation requires a
bit of definitive evidence.
But that's an aside.
He was probably the strongest advocate,
for them to try to make a causal argument.
So this social science evidence,
which both the challengers
and the state, to some extent,
relied upon, but then
contested certain aspects
of the evidence, it also
proved really important,
I think, for the Supreme Court of Canada,
in trying to retain its
institutional legitimacy
as a court adjudicating this
very contested question,
and it was really, I think,
attempting to thread the needle
between upholding Section
43 amidst these outcries
by children's rights advocates
and yet, not striking it down
in the absence of any
real Canadian consensus
that all forms of physical
restraint or discipline,
are unreasonable and should be captured
under our assault provision.
And they were really, as I say,
these contests over child-rearing
really strike at the heart
of liberal democracy.
And Martha Minot has written about this
in the context of how we think
about women versus children.
And I think this really helps to explain
some of the deep challenges
that the court faced in this case.
And why you see them almost
bending over backwards
in these strange ways
to save this provision,
for instance, from vagueness,
in a way that doctrinally is
hard to explain on the terms.
So Martha Minot has written this
about these types of
contests, she's written:
"Honest consideration of
the centrality of choice
"should make it clear
that children, not women,
"lie at the heart of
questions of cultural clash
"and accommodation."
"Indeed children are the prime targets
"of socialization, and children,
even in liberal societies,
"are not viewed as yet capable of choice."
"Any genuine effort to enable choice,
"must focus on children."
"Yet, any such effort
then collides forcibly
"at the heart of culture,
"at the center of immigrant communities,
"at the core of third-world societies,
"even at the most fundamental
freedoms to reproduce
"and to raise children ensured by law
"to individuals in Western
democratic societies."
And I think these were the
fundamental core clashes
about how the court was attempting
to find this middle ground between
somehow respecting children as these new
rights-bearing citizens, and yet knowing
that we also allow parents,
and require of parents,
tremendous latitude in how they
actually raise their children.
So, what's important to note here,
just for purposes of where the law is now
and how we think about it,
one, is that for teachers,
the court didn't need
to look at social science evidence.
So, the court specifically
says in the case of teachers,
we've reached a point
of societal consensus.
This was kind of, chopping dead wood,
all provisional education
laws across the country
had a already updated to this.
Teachers had long faced
professional disciplinary sanction
if they were to try to use
corporal punishment in a public school.
So, by the time of 2004, as I say,
that's been socially resolved.
That's dead wood.
The court holds teachers
can't use corporal punishment.
They can only use restraint
in cases where they absolutely
need to for compliance
or where the child poses a
threat to themselves or others.
But no such societal consensus by 2004,
and I would argue even today,
had been reached in Canada around parents.
And that's where the court then relied
in that absence of social consensus,
in part, to kind of have
institutional legitimacy,
it helps them to be able to say,
well, how will we resolve this,
we'll look to the experts.
And so, when you get
these, kind of strange,
ways in which they solved 43,
which was to say, as you can read here,
corporal punishment will
no longer be considered
reasonable when it involves
children under two,
because they can't interpret correction.
Won't be reasonable for teenagers
because it will foster antisocial conduct.
We won't allow you to use instruments,
belts, chopsticks, rulers,
whatever you're using.
We won't allow you to
have blows to the head.
All of those ways in
which, they both carved up
bodily zones on the child,
carved up types of force,
whether it's the hand or the ruler,
and carved up the chronology of the child.
That was all read in
through points of expertise
that they said both the Crown
and the appellants shared.
And so, you end up with
this rendering of 43
that I think as Arbour
says in her dissent,
struck many as such a reach
in terms of what we would
have thought on doctrinal
terms was facially vague
and yet, when you can see
what they were up against
in real political terms,
this was the best way,
I think, they sought to
find this middle ground.
One of the things, and
now this is gonna lead
into the discussion
about how we might think
about some of these
questions a bit differently,
is that it's really fascinating
and absolutely striking
that throughout the parties arguments
and throughout the court's reasons,
children and parents are referred to
in totally universal terms.
So, they don't have races.
Other than these ages for
the teens or the under-twos,
they don't have races, the
caregivers don't have ages.
There's no discussion of class,
there's no discussion
of indigenous families.
Essentially, these are
deracinated parents and children,
they're universalizable.
And that is really in
total contra-distinction
to what we know about
those who are involved
in the child welfare system.
And so, it's astonishing
that you would discuss
child welfare investigations in Canada,
and in particular, this is just a slide
from Child Incidents Study,
which are studies that come out each year
both federally and provincially
about incidents of child
welfare involvement.
As you can see by this study themselves,
people working in child welfare,
very much see police
investigations and child welfare
as potentially working at
least on parallel tracks.
So they see this in part, and
this was one of the arguments
about how do these two
systems work together,
it's striking then, that in a discussion
of police investigations,
that you would discuss that
without any attention to the populations
that we know are heavily surveilled
and heavily involved in child welfare.
And one of the things is
that in deflecting away
from these markers of difference,
I think both the parties in the court
really deflected away from
some of the distributive
questions about the political
economy of child-rearing
that have always been at the heart
of how the Canadian state
has regulated parenting,
certainly since the late 19th century
when the modern child welfare
regimes, as we know, arose.
And it's worth recalling in that respect
that child welfare regimes in particular
have always disparately
impacted poorer families
in a way that those families
have not experienced
necessarily as supportive,
but definitely as punitive.
And it's easier to see the class politics
in some of the earlier
instantiations of child welfare.
So John Joseph Kelso who founded
Canada's first Humane
Society, like in the US,
the first Humane Society
involved animals and children,
but eventually the two break away,
he lobbied in 1887 for the first general
child welfare law in
Canada, here in Ontario,
the Protection and Reformation
of Neglected Children Act.
And he wrote 1894:
"In this latter part of the 19th century
"more attention si being paid
to the causes and sources
"of crime than ever before."
"Every day it is becoming
more evident that in the past
"much effort has been wasted
in dealing with effects
"rather than causes."
"And the most advantaged
thinkers now acknowledge
"that to effectively
grapple with crime and vice
"thought and effort must be concentrated
"on the children and the poor."
And so, what progressive children savers
that gave birth to the
modern child welfare regime
as we know it and including
some of the now attempts
to bring the criminal law more in line
with child welfare, they
certainly identified
the children of the poor at the outset,
as potential future blights on society,
those most likely to become
criminals and vagabonds.
Obviously since then when we fast-forward
to Canadian foundation, to
contemporary discussions,
we certainly, we would
no longer talk explicitly
in such terms, but the operation
of child welfare regimes
in fact continue to cut
deeply across class lines
and obviously across, as
I'll show in a second,
across lines of indigenous
and non-indigenous children
as indigenous children,
certainly from the 60s onward,
became far more incorporated into a system
that at one time, had not
looked at them at all.
And that fact, that social
structure that informs
both who is policed, how,
what the effects are on them
from either child welfare,
or presumably if 43 is totally repealed,
even the 43 as it's been narrowed down,
those structural points
or those populations, appear nowhere,
on either side of the Crown arguments,
the Canadian Foundation,
none of the interveners
or the court itself.
And that, in itself, is astonishing
and shows that there's
a politics of neutrality
really at work in some of this advocacy
that I think we really
need to pay attention to.
Since Canadian Foundation
has been decided,
we obviously know also,
that the Truth and Reconciliation
Commission of Canada
has been attempting to
address in a structural way
the legacy of residential
schools in Canada.
The TRC has most recently
added its voice to calls
to repeal Section 43.
What's really significant
that I want you to notice
is that the TRC places its call for repeal
under its heading on education.
It actually doesn't see
it, and doesn't see,
in my view, some of the
obvious real problems
and potentially aggravating crises
that repeal of Section 43 could have
for the catastrophe
that many First Nation's
families and communities
are feeling right now
vis-à-vis child welfare.
And what's interesting, is
that the TRC, saw repeal of 43
as a way to respond to
the educational legacy
of residential schools, which as we know,
were replete with corporal punishment
and with egregious and extreme
levels of physical abuse.
But as the Canadian Foundation
case established already,
prior to this by the
Supreme Court of Canada,
that is no longer within
the ambit of Section 43.
Teachers can no longer use
corporal punishment in schools.
They would face criminal
charges like anyone else.
Instead, really the
central question for 43
and it's real work outside
of the narrow restraint
exception, the real work
now, is around parents.
And so, rather than
addressing school abuse,
it's really interesting to see how much
repeal 43 has become the
common sense position
among those who see themselves
as progressive on children's rights.
Such, that even the TRC seemed not to see,
or to catch, that repealing Section 43
risks further encroachment
of the punitive state
into the homes of indigenous families,
who as they note, as you
can see in their call
on child welfare number one,
and that extends at length,
are already hyper-surveilled
and face, as I said,
really catastrophically
high rates of child removal
from their homes, as compared
to non-indigenous Canadians.
And joining child welfare interventions
with potential criminal intervention,
rather than pushing on
a public support project
really, in my view, continues
rather than ameliorates
the practice of policing
indigenous parents
that was at the heart of
residential schooling.
The child was taken and removed
out of the parental home
into the school and yet,
I think the way in which
the repeal position has become so dominant
and so common sense, it
didn't even seem to give pause
to those who are enmeshed
in some of the crises of child welfare.
Today certainly the
political winds likewise,
because of the TRC's
recommendation, are in part,
behind the repeal campaign.
I'll get to, at the end of the talk,
exactly where we sit with
repeal at the moment.
There's a bill in front of the Senate,
but the liberals, as we
know, in part to give
the effect to the TRC's recommendations,
have suggested that
they would be supportive
of repeal at some point.
So what I want to move to
for the remainder of my time,
is to consider the ways in which,
as I said at my opening,
the ways in which each step
in a process of trying to
use social science evidence
to properly guide law and policy reform,
in fact involves really
important ethical choices.
And this isn't to say at
all, this isn't to question
that one should rely on and be mobilizing
social science evidence, but
it is to really force us,
I think, to ask more carefully,
and to admit more fulsomely as advocates,
the types of choices we're making
in terms of the questions we ask,
we the methodologies we rely upon,
and the type of legal options
that those methods then give rise to.
And it isn't clear to me at
all that advocates in this area
have necessarily been owning
up, or taking responsibility
for the lines of research they're
pursuing and not pursuing.
So this is just some quotes
from a legal scholar.
He's at Columbia now, Bernard Harcourt,
who works in an
astonishing array of areas,
but this is something that he wrote.
So he pursued this study as you can see,
Language of the Gun, in
which he actually pursued
his own qualitative study
going out to a youth detention
facility and interviewing
about 80 young offenders
who had had gun possession
convictions and talking to them
about how they understood
the meaning of guns.
And he said that when you actually conduct
that type of qualitative research,
as opposed to just maybe,
quantitative research
about levels of injury,
levels of shootings,
which might lend you toward
more a law and order approach.
He said, shifting your mode
of social science engagement
may lead both, to different questions,
and then, to potentially
different approaches.
And he found that young
people associated having guns
with all sorts of
different meanings for them
that sheds different light.
And as you can see from the slide,
He's just making clear that when we use
certain social science
methods and approaches,
we have some built-in assumptions
about both, how the way that
we conceive of the world
will shape men and women.
How we will shape the
society that we are choosing
to try to design for.
And that you're making
ethical choices at each point
that will have important
distributional consequences
when those lines of research are attempted
to be drawn into law reform.
And what I wanna suggest is,
that when, in the area of 43 advocacy,
when opponents have relied
on developmental psychology
and on sociology that has been unmoored
from any considerations of race, gender,
indigeneity or class, they're presenting,
as I said, these universal parents
and these universal children
in a way that kind of,
individualizes acts of physical
discipline that can then,
be rightfully punished
as criminal wrongdoing.
Instead, they're not
seeing acts of parenting
or physical discipline or restraint,
as social forms of reproduction
that are deeply informed
by one's economic standing,
by community norms and by
your daily living conditions.
And likewise, in terms of the child
who may be experiencing
this, there's also a built-in
assumption when you just
look to developmental
psychology that has no markers
of contextualizing the child,
that children are universal,
and that they necessarily
experience and process
physical discipline and
restraint as harmful,
and that potentially
criminally trying their parents
will be worth it in the end,
if you can reform these practices.
But in fact, if we chose
to ask other questions
like do children necessarily universally
interpret physical
discipline in the same ways,
which isn't a question that
advocates have been asking,
there's a lot of research
that suggests they don't.
So social science in the
United States has shown
that children may interpret and respond
to physical discipline differently,
according to dominant norms
about corporal punishment
in their quote, community.
And that can be defined
sometimes in regional,
class, religious or ethnic terms.
These studies also suggest
that someone like Straus,
who the Canadian Foundation
relied on heavily,
have failed to take into
account these markers
of class, gender, race
that may very much impact
how children process
this kind of discipline.
In one of the first longitudinal studies
to examine correlates of
young adolescent's attitudes
about physical discipline,
American researchers
found in 2003 that
African-American and lower income
youths were more approving of
parental corporal punishment
than their European-American
and higher income peers.
And so, in other words, there seems to be,
at the very least, a body
of critical and contextual
research that one would wanna consider,
that suggests that child discipline
does not have a fixed meaning
that can be universally
inscribed on a neutral psyche.
But those again, these figures,
these more complex accounts,
these more dexterous accounts,
have really just not figured
in the expert theories
of harm that opponents of 43
have put forward in Canada.
Another thing that we
might wanna ask about
if we were to actually
take up a court suggestion
and kind of, ask different
questions and methods,
would be to say, what about the ways
in which child maltreatment writ large,
if we were to start treating all forms
of physical discipline,
presumably as within this,
how is this surveillance
and the incident rate
unevenly distributed
across Canadian society
and what types of policy implications,
if any, should that have?
So researchers have shown, and
I'll show on your next slide,
that parents with fewer resources,
so either they lack employment,
they have lower income,
lower educational attainment,
have a greater likelihood
in contemporary society, of
using corporal punishment.
Parental stress is highly associated
with a risk of violence,
particularly when parents approve
of corporal punishment.
And this is why, as I referred to earlier,
around the correlations
some researchers say then
that what you're seeing
when you see a correlation
between corporal punishment
and poorer developmental incomes,
is that family stress may be driving both
and may be the causal explanator,
rather than or the other.
But one of the factors we might wanna ask,
which again, there is
no discussion of gender
or the gendered impacts of 43 repeal is,
what are we to make of the
fact that, as you can see,
86% of cases of substantiated
child maltreatment
in Canada, involve a mother,
as the biological mother
as the primary caregiver.
So many feminists said
43 is akin to the excuses
we used to make for spousal abuse
and that it's a way that
it continues to excuse
male violence in the home
against women and children,
but what in fact, if
it ends up that in fact
single-mother homes that
are under acute levels
of economic stress are
going to be the ones,
like they are in maltreatment,
most heavily policed
and lacking in the
supports that they need.
What about the ways in
which families make income
who are likewise, most found
to have substantiated cases
of maltreatment, you
can see just about 51%
have full-time income,
but notice the rate 33,
a full 33% are relying for
their primary source of income
on social assistance,
another 10 are on part-time,
or arguably precarious labor.
These are families
arguably in economic need.
Binging in further criminal prosecution
is not necessarily going
to, and as you're gonna see
in a second, I think it's gonna aggravate
the economic plight of these families
and of the children that we are all
probably on the same page at,
in terms of wanting to actually reach.
And finally, these are some
really staggering numbers.
For any of you who follow
indigenous families in Canada,
you will know that they regularly,
Cindy Blackstock obviously,
and others, the TRC
have been very outspoken about
what they see as a crisis.
These are the rates of children
who are in foster care.
So these are children who
are removed from the home
through a child welfare intervention.
I don't have a slide on this,
but indigenous children,
in response to child welfare visits
also face far higher
instances of earlier removal
from the home than
non-indigenous children.
And so, you can see the rates,
the disparities are pretty staggering.
And this is why this is
increasingly for many indigenous,
along with the over-incarceration
of indigenous people,
is probably one of their top
two crises priority areas.
Adding an RCMP officer coming on reserve,
or getting involved in this,
to me, again I think it
just shows how powerful
the get-rid-of-43 move has become,
that it has become a bit
unmoored from what I think,
would be the contextual
reality for families.
The other thing that I,
and then I'm gonna close.
Am I okay, though for time?
Just a couple more minutes.
What will be the consequences?
Already we have, so I've
done a study of all the 43,
all the cases post-Canadian Foundation.
These are just the reported
cases though, obviously.
So we're looking at a
tiny sample size compared
to any that might involve
pleas or dropped charges,
but what will be the
potential effects already
of a more narrowed 43, but certainly,
if 43 were dropped altogether?
And advocates of repeal,
in conceptualizing the criminal law,
have really tended, and you
see this in their factotums,
have tended to emphasize the expressive
or communicative function of criminal law,
that repeal will signal to
parents that physical discipline
is no longer acceptable in Canada,
and they'll amend their
child-rearing practices accordingly.
And so that's a faithful
aspiration to have in the law,
but there's little, and
then they kind of suggest,
and good police and
prosecutors will weed-out
cases that we would just
see as totally unreasonable.
I have actually found though,
at least a few people
who have proceeded to trial on time-outs.
People said: Oh, there's absolutely no way
you would ever go to trail in a time-out.
Well, I can tell you how you can end up
in trial in a time-out.
And what you see is,
the majority of post-Canadian Foundation's
Section 43 cases, the
parents are separated,
or in the context of
undergoing a separation,
and you can also obviously understand,
in a case of a high-conflict situation,
you get one parent pushing
for the other parent
to potentially be charged,
including for placing
rough, using rough handling
of a child into a time-out.
It proceeded to trial.
There was an acquittal
under 43, but arguably,
if that proceeded post-43,
that would count as a conviction arguably.
Particularly, when you have the
other parent pushing for it.
So there's little
acknowledgement in any case,
I think, or at least, a reckoning with
how the systems of
policing and prosecution
also enact the family law.
Criminal law, obviously
does not simply send
messages from the books.
It is also exercised and
enacted in real life,
and it is enacted in disparate ways,
particularly in the family context.
Those families who are most at risk
because they're already
subject to surveillance,
or maybe subject to more surveillance
because they have more interactions
with the public system,
they may have more precarious housing,
they're in public view more.
So they are the most at risk
of attracting criminal law
scrutiny, they're also the
least able to bear it's costs.
Including the collateral
costs that will flow
even if you don't get convicted.
So immigrant working-class
poor, single parent,
and especially, indigenous families,
if they have to take out time,
this is the CBA report on
collateral consequences
that came out last summer,
so these are all kinds of consequences
that flow from convictions,
but also flow sometimes,
from any interactions with police.
They have to take time
out for court dates,
maybe plea negotiations,
maybe meeting with
child welfare officials,
that can obviously,
compromise their employment,
it can also compromise their
adequate care for children.
Even if they're not
convicted of an offense,
as I said, a variety of
non-conviction records
can be still established.
There's no single statutory definition
of a criminal record check in Canada.
And so, police practices
on that also differ
in terms of the level of
non-conviction information
that are disclosed.
And often, you're going
to be consenting to that
through an employment check,
and so because you give consent,
the bundle of information
that is going to be released,
can differ according to
different police forces.
Some will be releasing acquittals,
withdrawn charges, even
suspect information
can sometimes be released.
And like I say, if that is
gonna affect your employment,
you may be waiving your privacy rights
for that to be released.
So the last thing I
wanna just close with is,
if we were to think of child-rearing
in more political economy terms,
how would our approach
here potentially differ
pretty radically from the
one that is being put forward
as a welfare pursuit.
I think we would have to, as I say,
if we looked more at how
discipline is unevenly distributed
and if we looked how the criminal law
may have different consequences
for different families,
including which families it will reach,
we may end up having very different law
and policy options.
So on the left, is a more,
and I just wanna loop-back
to Blackstone here to finish,
on the left is very much
more the Blackstonian image
that children's rights people ironically,
are very much continuing.
Which is that child-rearing is primarily
a private responsibility.
The state steps in to
police bad child-rearing
at it's extremes through child welfare,
perhaps through an expanded
criminal law approach.
But in exchange for that, we'll
give you a lot of latitude
in terms of the choices
that you wanna make
around child-rearing, so long as you keep
within those levels of kinda producing
a socially acceptable, functioning person
who can eventually
enter into the political
and economic world that we live in.
If, however, we were to conceive
of child-rearing as a more public good,
as something that is an essential part
of social reproduction of every society,
then we might think about how
we would be trying to
support child-rearing
and support the labor that goes into that.
So we know ways that clearly,
we know from evidence, very
clear ways that you can reduce
child maltreatment and stress at home.
Early home-supportive interventions,
particularly for younger parents
who may not have the skills or support,
can prove very effective.
The Canadian Human Rights Tribunal,
has now ordered our federal
government, three times,
that it is in violation
of inequitable funding
of child welfare services for
children living on reserve.
We have yet to rectify that.
Most recently, the
Committee on the Elimination
of Racial Discrimination
made comment on Canada's
failure to equalize funding.
You know, it's very easy
to change Section 43
on the books, and just
erase it and roll out
a little more policing, it would arguably
have a much better effect
if indigenous families
were supported in the
same way other Canadians.
Likewise, the levels of social assistance.
If almost 35% of your
child maltreatment families
are on social assistance,
the lower the level,
the more family stress there'll be.
Obviously, universal
daycare has been something
that's been on many of our
radar's for a long time,
yet to be realized.
And maybe, I think, the
counterbalance for that
would be maybe that there would be then,
as Palma and I were saying earlier,
to quote the great Milton
Friedman, there's no free lunch.
And maybe if you were getting
more positive support,
if the state was ponying
up for more in the area,
maybe it's possible
that parents would have
less latitude on something else,
that's something we could think about.
But I think that could be, you know,
parents with more resources might actually
see certain functions
scaled back in the same way
maybe, we do in universal healthcare.
So, I'm gonna leave it there.
I've gone on a long time.
But I hope it's been interesting
and I look forward to
discussing and hearing from you.
Thank you so much.
(applause)
- [Moderator] Thanks so
much, Professor Kelly.
We're gonna open it up for questions.
I think it's gonna be
helpful for the purposes
of the recording if we could more or less,
speak in the direction
of these microphones.
And so, I'll be in charge of the queue.
Do we have anybody who wants to jump in?
Sure, go ahead.
No, I'll take you and then White,
but you were the first one I saw.
- [Questioner] My one
question is with respect to
the Harvard Members Bill
that's currently, sort of stuck
- Right.
- [Questioner] In getting the second read.
- Good that you brought that up, yeah.
- [Questioner] And I was
wondering if you could sort of
expand to sort of where that's at
for the discussion regards that.
I found it particularly
interesting when you were talking
about the TRC recommendation.
- Yep.
- [Questioner] And if
you look at the Hansard,
the the debates right now,
it's the reasoning behind
repeal right now, is one
of two things which is:
how are parents supposed to understand
this network judgment, one,
and two, the TRC recommends
it, ergo it should be repealed.
And that seems to be the push right now,
at least in the political
realm at the Senate.
So I was wondering if you
could talk a little bit about
where that's at.
- Perfect, thanks for raising that.
So currently there is
a private member's bill
that has passed second
reading and it's been there
since July and has not moved since.
It was introduced by Senator
Céline Hervieux-Payette
and is now being forwarded
by Senator Sinclair.
And you're absolutely right,
so that's where it is right now.
There hasn't been, I'm kind
of checking in periodically,
to see when and if that moves.
The essence of the bill, for
those who aren't familiar,
and there have been
bills like this before,
The essence of the bill is
that it would fully repeal
Section 43 and it would
have a year in term
for the government to roll
out further public education
campaigns to tell parents
that within a year
any physical discipline
will constitute a crime.
So that's kind of the essence of it.
And I agree, so I'll just say two things.
I mean, first on the the TRC account,
I think that's absolutely right.
It's the issue of corporal punishment now,
what's happened is that the
issue of corporal punishment
as a social problem and in particular,
the extreme physical abuse
that children suffered
in residential schools,
has now become for many
this, kind of, automatic link.
That's a problem,
and the solution is repeal.
And it's become this reflex position now,
and I'm very surprised
that became such a reflex
that nobody's saying this,
'cause the more that I say this,
I think that it's so obvious
and that I'm obviously, right
(laughter)
because I have a robust self-esteem,
but, no seriously, I'm
surprised, but it just shows
I think to me, the power
that this campaign has had.
It's a very, I think simply,
It's well-argued and it's
very straightforward.
I mean, one of the things,
just to say briefly
about residential schools,
is that 43 certainly
never had anything to do
with the rates of violence
in residential schools.
Residential schools were
rising at the very same time
that non-indigenous public schools
were starting to increasingly clamp down
on corporal punishment.
They were starting to introduce
corporal punishment notebooks,
and then ministrative
tack to where you had to
leave the classroom, go to the principal.
There were all these ways
through the late 19th,
certainly well into the 20th century,
when they're administratively
starting to close down on it.
By the 60s, the Toronto
School Board, leads the way,
but you're getting then school
boards across the country
and then, education acts
that are restricting it.
Residential schools, on the other hand,
were being given, at the exact same time,
essentially an
administrative carte blanche.
They were being given
sub-standard teachers,
with little or no oversight.
The first statement,
administrative statement
on corporal punishment that I have found
for residential schools, comes in 1953.
The first ever, written
statement that I can find,
and that, according even
to the TRC suggests,
and I didn't find anything earlier,
that sets out any type of policy.
SO it was purposely a hands-off policy
because it was purposely
meant to wreak havoc,
and disrupt and break their lives.
There were certainly never any trials
going to go on for these teachers.
There were trials going on
for regular public school teachers
if parents got exercised
enough and had the resources.
That simply was going on.
It was a completely different
conceptual administrative regime
because it was based on a
logic of separating the child
from their family and then subjecting them
to completely substandard
schooling and everything else.
So, even the way in which 43 ever,
or didn't have a presence
then, doesn't match up.
And certainly, the current
state of the law today,
I think, will only cut
against the interests,
in my view potentially,
of indigenous families.
The only last thing I'll add on that point
is that some people have said to me,
but with so many indigenous
children in institutional care,
in foster homes et cetera,
would you not want 43 eliminated so that
foster parents who use corporal punishment
against children in their
care, could be tried.
But, the thing is, that
the foster child/parent
relationship, is already
very statutorily regulated, in theory.
Of course, in practice
there are immense failures,
which is why the system is
problematic to begin with.
But in theory, I mean,
across the provinces already,
they say that foster parents
are not supposed to use
physical discipline on
children and if they do,
they can automatically remove the child.
So, there are just ways
that there is a mismatch,
but it's become, I think, more of a mantra
to deal with what obviously had been,
and continues to be, a real problem,
which is physical
maltreatment of children.
But, I think the solution doesn't mix.
And on the point about
mixed messaging for parents,
I think there is some mixed messaging.
I think the criminal code,
like lots of provisions,
should be rewritten.
And what they could do
is, rewrite the provision
to comport with the wording
from a Canadian Foundation,
even if I find, some
of the things they did
in Canadian Foundation, problematic.
That it is what it is.
That's our law now, and you
could revise the provision
to provide that clarity.
And that would be also a pretty easy fix.
- [Janet] Thanks very much.
There's lots here to think about,
and I have a whole bunch of thoughts.
- Great.
- [Janet] They're running
around in my head,
so I'll see if I can make
them, kind of, cohere.
- Thank you.
- [Janet] I guess, one of the things
I was interested in, is
perhaps you could say
a little bit more in relationship
between child welfare and policing.
And I guess because, at
least as I understand
some of the child welfare research,
and we often use the term "maltreatment",
which means many, many things.
But the vast majority of
kids who come into care,
in particular indigenous
children and African-Canadian
children, and other racialized children,
they're being brought into care
not because of the exercise
of physical assault
or force, or sexual abuse
against the children,
but rather it's due (unintelligible),
and often that has to do with poverty
and the inability to
provide adequate shelter
and food et cetera.
And sometimes there's
other what are called,
caregiver risk factors,
that might be things
that are already heavily
surveilled by police,
including exposure to
domestic violence or drug use.
Because so much of it
is connected to poverty,
and I think, there's some
research that suggests
that if you control for
a variety of factors,
you can see that race
isn't the predominant
reason for coming into care, it's poverty.
So then, I'm just wondering a little bit,
about the argumentation plays out around
the interplay between child welfare
and the criminal justice system,
in light of those kinds of reasons
that kids come into care.
And I guess, connected to that,
also your point is, I think,
a really important one,
about the ways children
and parenting experiences
are all universalized.
What happens if we push further?
Different cultural practices
around child-rearing,
'cause clearly that's been
something that's been raised
by indigenous communities for
a very, very long time, right?
And it's not so much, the
exercise of discipline,
but what many white social scientists,
the absence of discipline which
is bringing kids into care.
So you know, what happens if we push that
a little bit further?
And then the lat thing
that, I guess I'm kinda
perplexed about, is your final slide.
I agree, the approach on the right
is a lot more satisfactory approach.
And the criminal justice
system wreaks havoc
for all kinds of reasons.
As you pointed out, in
some ways the retention
of Section 43, is a way
to keep, oddly enough,
the criminal justice system at bay.
But I'm thinking, how would we react
if someone proposed adding a
provision to the criminal code
around domestic violence for example,
which again, to try to
keep the criminal justice
system at bay, to use a reasonable force.
So when the (unintelligible) approaches,
it's fine, and that keeps the
criminal justice system out
the vast majority of the time.
And I, of course (unintelligible) (laughs)
even though I think the
criminal justice system
does a terrible job in
responding to domestic violence.
So, I guess that kind
of leads into trouble
with where I would want to
go with having Section 43,
I can see all these (unintelligible)
of criminal justice system
and effects of that.
It kind of helps, but in an odd way,
I feel very uncomfortable.
- Yeah, absolutely.
Thanks so much for these.
I'm gonna take the
questions in reverse order.
So, on the criminal code
and domestic violence.
So, I also share some of your concerns,
as do many other feminists,
and in particular,
feminists of color in the US and Canada,
have been very vocal about
what some of the unintended
consequences of no-drop policies have been
in the domestic violence context.
What happens when women
simply want instances of force
to be stopped, but do not necessarily,
want their partner to be brought through
the full criminal justice system,
and they then, in many
cases, lose control,
have no control over the process
once they've engaged it.
So I share that a lot
of concerns about that.
So that would be just as a first point.
And so then the question
becomes would I, potentially,
want 43, would this potentially
say should we go back,
I too, would be profoundly
uneasy with a provision
that said you can use reasonable force
to correct your spouse.
And one of the reasons, although the two
are not mutually exclusive, to
suggest because I don't want
that, therefore I think
there are lots of things
that we can try, and we are doing more of,
around trying to revisit
what it would mean
for women's voices to
be taken more seriously
in the process of a
domestic violence call,
charge, prosecution.
I think we're revisiting
the idea that simply,
well maybe they're too victimized
that they can't even choose,
so I think those are separate.
Why do I think that 43
though, isn't the same?
I think because the parent/child
and the spousal relationship,
I do not think are analogous.
And children's rights advocates
in the Canadian Foundation case,
in their campaigning, have
very much argued that they are.
And some feminists across this
country have agreed very much
that this is akin to the same way
that we used to privatize
and allow wife battering,
that this is just a holdover of that.
I see the spousal and the
parent/child relationship
both legally, socially and
materially, very differently.
There are ways in which,
now if the alternative were
that we're gonna take a
truly child liberationist
approach, we're gonna have a revolution,
and we're not going to require children
to legally go to school, to
legally be present at places,
they're going to be
consenting to, and choosing,
and making all the same kinds
of choices as wives now do,
or women, or anyone else
in a domestic partnership,
that would be different.
But nobody's putting that on the table.
So, even the children's
right advocates agree
that you can maybe,
put a child in a time-out, or put them
in a
seeing-the-world-as-other-people-see-it,
out.
You know, there's new
phrases that Palma told me.
- [Participant] Sit-and-watch.
- Sit-and-watch, sorry.
Sit-and-watch, nobody
really would reasonably say,
and why, why do we say
you can put the child
in sit-and-watch?
Because there is still
a social expectation
that the parent will, as you said,
around this question what if
they don't discipline enough,
they can also get policed
for not disciplining enough,
and there is an expectation
that you will socialize
your children in at lest a
way to be socially functional,
and if you don't, you
can face consequences.
You could dace intervention.
You can sometimes face liability
for things your children do.
And we wouldn't say, it's
okay to correct your spouse
and put him or her in a time-out,
or to remove privileges.
If you get in a fight with your spouse,
what would we say if you
came to work the next day
and said, well, I don't have my cellphone
because I raised my voice
last night and my spouse
took away my cellphone for a week.
People would be raising real questions
that you're in an emotionally
abusive relationship.
But parenting advocates suggest
that instead of using physical discipline,
on of the techniques that you
use, is to remove privileges.
And you do that because
you own that property,
you gave them that cellphone.
So I think it's a little
bit actually like,
I think the analogy, when
you press it a bit more,
just doesn't match with
what we expect legally
and socially of parents, and
how we construct childhood.
Is that helpful?
- [Janet] Yeah, not that's very helpful.
But it still doesn't give me
a reason to keep Section 43.
- Right, no it doesn't.
- [Janet] It's why
there's those differences
between relationships, (unintelligible).
- Right, okay, got you.
But at least it says
why I do not seem them
necessarily as the same, right?
And then the final reason,
and this will introduce why I
still think it's permissible
to keep the criminal law out,
including around the things like poverty.
Because I think, given that
we put these responsibilities
on parents, like for instance,
you can be criminally
responsible if you don't provide
the necessities of life to your child,
you will face all kinds
of criminal surveillance
if you don't provide, in a
way that impoverished families
do when they face neglect proceedings,
I think parents both, and
those vulnerable parents
both bear all those responsibilities
and then, if in the course
of their child rearing,
for which we don't even have
a full social consensus,
they are surveilled and
used, even which now only
is permitted, very
trivial amounts of force,
they then have the
criminal state potentially
intervening in a way that
will then deprive them
of their income if they have income,
subject them to maybe
more precarious housing,
lesser ability to get welfare,
and that will all impinge on
their ongoing responsibilities
in law, to their child.
You don't even have that level
of responsibility to your spouse.
It may be really socially bad for you
if you're relying on your spouse,
but there's a whole
legal machinery of ways
that we impose these costs
on them that I think,
the criminal law directly undermines
their ability to do that.
And we're talking about now
pretty limited levels of force.
- [Questioner] Yeah
so, a couple of things.
I should say first, that
I'm very sympathetic
to your argument.
I've always had an intuition
that just repealing
Section 43 doesn't seem right to me,
but this gives me a lot
more reasons to think
that my intuition might
have some grounding.
But one concern that I have, as you know,
Justice Arbor, in her dissenting judgment,
one of the main criticisms
she leveled against section 43
before the spanking case,
was that there were all
these atrocious examples
in the case law of really abusive behavior
being recognized as
reasonable uses of force,
and I am not as familiar as you are
with the post-Section 43 cases,
but I remember noting
a case a few years ago
of a man who used "forceful spanking"
against his small child, and left a big,
black hand-print bruise on her bottom,
and that was found to be reasonable force.
So, I worry about the
kind of, the structure
of apparent vagueness even
after what the Supreme Court
has done with it and whether
it is providing a shelter
for some behavior that really is abusive.
While at the same time,
recognizing the validity
of what you have to say.
So that was my first observation.
And my second observation,
totally unrelated,
is just that I guess
what's always struck me
as problematic about just
repealing section 43,
is that, and I'm not a person
who has some of those markers
of marginalization that
you've been talking about,
that are associated with people
who are likely to be surveilled,
but I do have a child
who has sever autism.
And in my personal experience,
raising a child with special needs
is a highly physical thing.
I'm just physically involved
with him all the time.
So just, even as a kind
of presumptive thing,
to say that when I'm
physically controlling him,
that that's somehow
abusive, unless it fits,
it just doesn't seem like the right way
to slice that apple, if
you know what I mean.
So, I dunno, that's my sense,
is that, maybe it's just
another specific context
where parenting is more complicated
than just, the child has
the autonomy to say no.
It's a lot more active
and interactive than that.
Those are my thoughts.
- Yeah excellent, thanks.
So, first on the question
about how is Section 43
interpreted before Canadian Foundation?
What does it look like now?
I absolutely agree with
you and particularly
as you move back earlier and earlier,
as I've tried to look
at, not in the same depth
as post-Canadian Foundation,
in terms of looking at all of it,
but certainly the main case
law in the 20th century on 43.
You find, as you would say,
cases that we would find very egregious,
that were excused under 43.
And various of the interveners
really put all those cases
in front of the court
and that was a big issue that they faced.
And a lot of it, you know
sometimes it's through
anecdotal reasoning of judges,
well I had this happen to me,
I was paddled, I was hit with a belt,
and I've turned out okay,
therefore we're not gonna find
that this is categorically unreasonable,
and they were really all over the place.
So my, and I've read your headnote
of the one, of the case you're referencing
with the rough spanking,
my sense is certainly
that that case would be
on the margins of what I have seen survive
and reach a Section 43 acquittal
post Canadian Foundation.
So judges have really been,
and these are again, just
the ones I'm seeing at trial,
so presumably there's some
that's getting plead out earlier
where they just know they're
not going to convince,
but judges, for the most
part, have been very rigorous
in applying the categories and the checks
that the court laid out.
I've seen convictions, you know,
somebody has a 13 year
old, and they're concerned
because she's doing drugs again and again,
with the boyfriend.
They go, they kind of, roughly grab her,
bring her home and they
say, either you're gonna get
a grounding, or we're gonna
spank you, something like this.
She chooses the spanking
rather than the grounding,
'cause she wants to go out
with the boyfriend again,
they do it, the court says,
wait a second, she's a
teenager, Canadian Foundation
made clear, no corrective
force for teenagers
and children cannot consent,
they don't get to choose
to opt out of the law.
So, you're reading in a conviction.
I have not seen, I would say
the case that you had noted,
I can't recall it right now,
is definitely on the outer
boundaries of what I've seen.
I think there has been a clear shift.
You do not see any of this
using electric cables,
and getting out of 43, nothing.
That's all out, obviously for objects.
You see courts saying,
you struck in the face,
that's categorically read off.
You are seeing much more
close-to-the-line cases
that go either way.
So that would be my answer on the first.
I think there has been a profound shift.
And I think it was one of
the problems with 43 before
and however you think about
the Supreme Court decision,
I think it nipped a lot, it
closed down a lot of that.
And I bet a lot of that,
some of that is getting
plead out earlier, would be my intuition,
some of the more extreme stuff.
On the physical involvement, I mean,
I think this, again comes
back to my point earlier
to Janet's question, which is:
How much is child-rearing
actually different?
How is the physicality of
child-rearing work different?
If we don't live in a truly
child liberationist society,
and if your child can't
function because of,
anyway in a liberationist Utopia
because they have care needs,
including physical care needs.
I think in some respects we
have to take that seriously.
No advocate is gonna sit and say,
well, if you have special needs
or more high-needs child
for any sort of reason,
that if you're having to handle them more,
restrain them more, that
you're going to get policed.
But, at lest on it's very face,
some of the levels of
restraint that people use
with their child all the time,
certainly, as I say,
technically you couldn't
use with your spouse.
And I do think that there
needs to be sometimes
a more fulsome discussion about that
in a way that doesn't
simply make people feel,
well, if I admit to any of that,
I'll appear to be someone who, you know,
that we're all in an extreme between that
and using electrical cables.
And I think there's a materiality.
I remember once being
in a childhood studies
conference and this line
always stuck in my head,
where someone said: you
know , childhood studies
and the humanities is
really focusing on social
constructions of childhood.
How childhood has undergone
such a transformation
in the last century when
children used to work.
And they said, but you know,
so lot's of it is socially constructed,
but children still lose their teeth.
And I remember I just kind
of went, huh, yeah they do.
I mean, there are material
things about child development,
about the body, that are
real, and thar are material
and that are physical and I
think that's at least worth,
and important to keep in
mind, and not to simply
abstract to the level of a human rights
dignity bearing subject
who has no corporeal form,
and for whom, you know, you almost have
on this legal plane above it.
I take that point and really share it.
- [Questioner] I'm not
sure if this is a question
or a provocation, or just
a plea for help here.
'Cause I'm having this intuition
that I haven't fully worked through.
So I have no punchline yet,
but it strikes me that
part of the conversation
we've been having in this Q and A period,
has been the differences
between the child/parent
relationship and other kinds
of familial relationships.
Some potentially different
types or categories
of domestic violence
that we might think of
in terms of those relationships.
And one thing that struck
me as you were presenting,
I find myself agreeing with the arguments
and I find them very compelling,
but it struck me that
it's interesting to me
that I have a different intuition
that I can't quite explain.
When you speak about the fact
that people from different
cultural, ethnic,
religious, class backgrounds
may have a different conceptualization
of what appropriate child-rearing is.
That children from those backgrounds
may experience physical discipline
or corrective force differently.
I'm thinking about this,
and I have more ambivalence
towards how that claim might
cash out or should cash out.
But I feel I have a quite strong intuition
that when people have
tried to make what we might
call boldly classify as
cultural relativistic arguments
about other types of domestic violence.
Right?
Where people sort of claim,
in our culture there's not a requirement
for consent for sex in a marriage.
Or you know, attempts in the criminal code
shift on provocation, to use sort of,
culturally-driven provocation defenses.
Things like that.
Those get shut down quite quickly,
and my sense is like, rightly so.
That part of the role of criminal courts
is to just say, well
there's certain practices
that might be mainstream
in particular cultures,
but which are unacceptable.
And perhaps that's the problem
with that intuition that I have,
but I do have that towards something like
marital rape, for example,
or wife beating, right?
And so I guess I'm wondering
if you have a sense
of how you would explain,
I'm assuming that you
share that intuition,
which perhaps you don't,
but if you do share that intuition,
there's something
categorically different there.
It seems to me like the difference there
cannot simply be explained by the sort of
ontological difference between a child
and other people in the family.
It's something else, about
how we view, kind of,
cultural context and
the relevance thereof,
and that's as far as I can get mentally
in the sort of time that I've
been thinking about this.
But I'm just wondering if you
have any reactions to that.
- Yeah, it's a great question.
I don't have, and it's
also one that I share,
and so, I don't have an
answer that would say,
I take this point about
children potentially
interpreting physical
discipline differently
and therefore, this is
my law reform proposal.
You know what I mean?
I don't have a straight line
there, nor would I suggest it.
It's a question though,
I think is worth asking
of social science or otherwise
that hasn't yet been.
I think the one thing I would say though,
and I think this comes back
to that quote that I read
from Martha Minot, which is that,
I think you're absolutely right.
That in a lot of these
discussions about culture clashes,
about, quote cultural defenses,
about political clashes.
You know, we can think
of tight now the debates
that are going on in Quebec.
We tend often, though not exclusively,
to talk about them in
terms of women's bodies,
women's sexuality, women's coverings,
women's lack of covering.
I really share what Martha
Minot, this also something
that Janet Halley has
written a little bit about,
which is to say, I share their intuition,
and I don't think they offer an answer,
but I really share their sense
that the questions and the contests around
consensus around child-rearing are both
more vexed and more intractable
than the arguments are around
women, and women's bodies
and women's autonomy.
And I think a starting
point to try to think
why that is, and I think,
again, this goes to the point
in Martha's quote which is that even in,
I mean, she says at the
end of her quote, she says:
"The centrality of choice
should make it clear..."
Particularly this
language of choice, right?
Which is one of these liberal, you know,
women should be able to choose
what they wear, don't wear.
Women should obviously be able to consent
whether they're gonna
have sex, not have sex,
within a marriage.
She says: "Any genuine
effort to enable choice,
"must focus on children, but
even the most fundamental
"freedoms, which is to
reproduce and raise children,
"are insured by law to
individuals in Western
"democratic societies."
I think we afford within
Western democratic societies,
and I know I'm kind of coming
back to this difference
between the two, but I
think we afford through law
and social practice, a
huge latitude of choice
as to how one wants to raise a child.
This is how linguistic
traditions continue.
This is how capitalism continues.
But people reproduce
in micro and macro ways
through relations that are
not liberal for the child.
The child, I think, is a
constant, and to my mind,
completely, to this point in time,
an unresolved dilemma for liberalism.
And I think that's at the heart of why
we think we have vexed
debates about the marital rape
and the head coverings,
but you can somehow,
kinda get your head around
those, if you can say,
well, but in a Western democratic society,
at least on it's face,
we think that all adults,
including adult women, have a
liberal purchase on autonomy.
But none of us actually live
at all that way about children.
- [Questioner] That makes sense to me.
(speaks off mic)
- But I don't have a buy-out for it.
- [Questioner] They're
teaching my son to say,
please don't touch my
body, in response to like,
a friend pushes him or hits him.
So, he sometimes uses this at home
and it's like, sometimes yes,
but sometimes we need to
change that diaper, right?
And so, there's sort of
like this categorization
of when his assertion of
bodily autonomy is legitimate,
and I asy, okay, he doesn't
want to be hugged right now.
I've tried to teach him
that that's appropriate,
and when it's like, we need to go,
we're putting your coat on.
And so, I can see on a
very, sort of, basic level
how that works, but I
haven't worked through
the more (laughing) interesting
implications of that.
- Yeah, and when he has to go school,
and he's gonna say, I don't
wanna go to school today,
and then you're gonna
start putting his coat on
and physically saying, and by
law, he has to be in school.
He can't just kind of,
laissez faire choose it
(laughter)
that today is not the day.
I mean, maybe he can
one day, but he can't,
over a long period of time.
There's so much of his
life that is structured
through the family, and
then through society.
And I think the child's just a total,
this really paradoxical
dilemma for liberalism.
I think it was easier in a
legal order like Blackstone,
when you had categories of people,
who you did not make any
claim on liberal equality
as between subjects.
You had different types of
people who were in different
type of relations to one another
and each had different
types of legal functions
and legal duties and responsibilities.
That's easier to get your mind around.
But once you change over to the plane
of a liberal democratic order where
you all supposedly have equality
and equal draws on the law and
equal autonomy and choices,
the child is like, really
in quicksand immediately.
And we are, in terms of
how we think about it.
- [Questioner] This was
an amazing presentation.
I have a lot of questions and
I'm just gonna ask a couple.
So, it sounds like the
Canadian Foundation decision
sets this standard, was it titling and
what was that other word?
Kind of passing the trifling
nature or something.
The mandatory and trifling nature...
So, that seems like pretty,
like there's a lot of discretion in there
and I'm wondering how far that standard is
from what you know about or what you think
the standard is on the ground,
of people who decide to enforce
and prosecutors who decide
whether or not to prosecute.
'Cause it seems to me, to repeal 43,
the discretion is just gonna
be taken away from the courts,
and it's just gonna go straight,
it's all gonna fall on
the mode of enforcement,
mode of prosecution and we
know that not every instance
is gonna get brought to
the court's attention.
Not every instance is
gonna get prosecuted.
So, I wonder if it's helpful for you,
in like, in honing your
argument against repeal,
to map our who would be
differentially impacted,
and if you have data.
You always have the data
from the court decisions,
you know them well.
What is in and what is out.
How can you go about
determining what is in
and what is out and then obviously,
who is going to be
differentially impacted.
So I just thought that was one
question I'd like answer on.
- Perfect.
- [Questioner] And then,
the second question was,
if you could have written
the Canadian Foundation,
or if you could rewrite
Section 43 in a way
that takes into account the
argument that we shouldn't be
universalizing the child,
universalizing parenting,
what kind of language could we include
in such a standard that
takes more into account
those contextual factors.
Because I think that's a real challenge
and I think that would
be really interesting
to think through.
Cause I think that's a
really powerful critique
that you make about the advocacy
about social science evidence.
And you've shown us (speaks off mic)
and kind of weasel, they
say it's not definitive,
but we're gonna treat that as causal.
And so, how could law, and the various
statutory or (unintelligible)
actually translate
what I think is a very valid etymological
concern that we have about the nature
of social science evidence.
So, that's the second question.
And a third question is just maybe related
to that second question
about legal education,
or how we could train advocates.
So if you're not the
judge or the legislature,
but are you the advocate,
how would you have advocated
differently, knowing the granularity
and the complicated context of
the social science evidence?
And how do you think
advocates or legal scholars
who have the ability
to really think through
that complicated nature,
how would we help guide
legislatures and courts how are kind of,
charged with the responsibility
of drawing these more red lines?
Anyways, you don't have to
answer any of those on the spot,
but those are just three questions.
- No, this is great.
I'll just say a couple
of short things on each,
'cause they're big questions, but great.
The first is on the
police prosecution point.
So, I think that's absolutely
right that often when,
you know, you see sometimes
in the criminal scholarship,
this theory of hydraulic effects
within he criminal system.
Almost if you think of
them as different systems
that if you shift discretion away,
we saw this in sentencing reform,
saying US, if you shift
toward or wherever,
you pull the discretion
away from the judge.
Let's say on sentencing,
does it simply go somewhere
else in the system?
And then maybe you ger
prosecutors who then hold
immense power to charge-stack
and that they end up being able to use
differential sentencing moves.
You know, discretion you don't
eliminate it, you move it.
And I share that, I find
that view very compelling
and I think that is what would happen.
And it's a nice point.
I don't actually make that
in the paper right now.
So actually, that's a really nice point
that I should make a little bit more of.
And I do think it would
shift earlier in the process.
I haven't done any empirical
research right now on this.
There has been one, at
least one set of empirics,
and I should follow up to see
if they've done more on this,
I think it's a criminologist at UFT,
but I can't recall their name right now.
And they did a study of
policing of physical discipline
cases post Canadian Foundation.
What was really interesting is that they,
and this is probably
unsurprising once one says it
and thinks about it a little bit,
they found pretty very
significant regional disparities
of charges flowing from
what they think were
pretty commensurate cases
of hitting children.
So they compared, I
believe it was Saskatoon,
but it could be Winnipeg.
It was either, it was coming out of
Saskatchewan or Manitoba,
let's say Winnipeg for argument's sake.
And then, I think, somewhere
like Hamilton and Toronto.
And they found the highest
charge rates for hitting in Toronto.
Median being somewhere like Hamilton,
and you lowest, being in the prairies.
And then one could theorize
about how there might be
different regional
understanding and consensus
or lack around consensus
amongst police forces
about whether physical
discipline should translate
and actually end up
translating into a charge.
So I think that's also
an issue of concern,
where your geography,
your place in a particular
urban setting, as well may
have an effect on that.
You know, for the most
part, advocates have said,
look, we should rely on
good faith discretion,
they made that point
in Canadian Foundation,
of police and prosecutors.
I think to be a kind of
skeptic, or a realist,
it depends what type of a person you are.
How much you wanna put faith in discretion
of the police or their forces, right?
And if you're an African-Canadian family
living in parts of Toronto, I don't know
that I'd ne banking my
money onto police faith,
as I would maybe, myself
at Wholefoods, or whatever.
But there is a regional disparity,
which I think is interesting.
I think it would be a
great area for more work.
The second point, just quickly.
What would I have done Canadian
Foundation or the code?
I mean, I don't have a code suggestion,
other than clarifying, at the very least,
for the language of Canadian Foundation.
I think that's helpful,
but people should know
the state of the law.
The TRC maybe should be
aware that it doesn't
apply to teachers.
That could be spelled out very clearly
and that could be helpful for everybody.
But I do think, and I
think there's a reason
that the court didn't
signal these differences,
race, class, otherwise,
because I think it's.
I think the language,
the progressive language
of saving children, of
protecting children,
I think is very seductive,
I think it's very morally powerful,
and I think it's ideologically powerful.
And I think if you had to admit that
a lot of that is inflected
by issues of class
and poverty, that would be
a difficult institutional
reality with which any
of these big players
are gonna want to address.
You know, they certainly said,
look it would be a problem
if the police are in your homes too much,
but they didn't' delve into that
and as an institutional power in Canada,
is it that surprising?
Probably not.
But I would have, had I been there,
wanted to see more of that.
Because I think it would have made,
it would have put everyone on notice
that at the very least,
we shouldn't be discussing
this absent those markers,
given that they structure it so clearly.
Right, I think it's a
little in bad faith frankly,
to discuss it without those markers.
And on the last point
about legal education,
I think it's a great one.
I mean, in my criminal law teaching,
I talk a lot when I introduce, you know,
Mammal, Levine, Bedford, all of those
that we are definitely in a moment where,
you know, historically
in the criminal law,
when you had the Hart-Devlin debate,
that you kind of had
moralists who argued about
the criminal law serving
certain moral functions.
Maybe you had the Harm
Principle people arguing
about the limits.
I certainly, and this is
something Harcourt and others have
written about, I think we're
certainly in a moment where
you're in a bit of a harm free-for-all
on any of these high-stakes
contentious issues.
Whether it's assisted dying, prostitution,
indecency, you have
people making arguments
both ways, about harm.
You have feminists within themselves
who are making cross-cutting
harm arguments.
You know, if the common man used to be
the voice of morality, at
the time of like, Devlin.
The man on the Clapham bus, or whatever,
you kind of take a test, how
much can our society withstand,
if it's more than that, criminalize it.
Today, if we're in this
harm free-for-alls,
our person is the expert.
We see harms revealed
and explicated through
expertise and I think
that's a profound shift
away from ideas of judges
kind of taking a community
standards touch on things
like physical discipline,
which is how they resolved the schooling.
When they can't do that, or
aren't doing that anymore,
they go to the expert.
The expert tells us what's
harmful and how it's harmful.
And then we make legal
arguments about what reform
we should draw from that.
I try to really emphasize
that for my students
and I think then, that gives them a sense
of what's at stake with
drawing different experts who.
You know, in Bedford, it was
a big problem for the Crown
that many of their
experts had been involved
in prostitution abolition
advocacy and research.
And that really undermined some of...
You know, there are lots
of these things then
that you have to look at really carefully.
But it is the way that we solve
high-stakes constitutional
and criminal constitutional,
or just constitutional
in general, litigation today.
And students have to be
really aware of that.
And it's not a neutral exercise.
I think progressives like to
say, we turned to evidence,
now we've gotten away from
ideological moralizing.
But I think everybody should be honest
that we're all doing different things
and asking different questions
and making political choices
when we look at expertise
and translate it into law.
So, that's kind of one
of the things I try to do
a bit in my criminal teaching.
- [Moderator] Anybody else wanna get in
before we end?
So that was absolutely great.
(laughs)
Thank you so much on behalf of Osgood
and the Nathanson center for coming today.
And if you'd all join me in
thanking Professor Kelly?
(applause)
- Thanks for coming.
