CANADA’S RESPONSE TO THE UN QUESTIONNAIRE ON
VIOLENCE
AGAINST CHILDREN
International human rights instruments
Canada ratified the Convention
on the Rights of the Child in December 1991 and the Optional Protocol to the
Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict in July 2000; in November 2001, it signed the Optional Protocol
to the Convention on the Rights
of the Child on the Sale of Children, Child Prostitution and Child Pornography.
Canada is also a party to the Convention against Transnational Organized Crime
and its supplemental protocol to prevent, suppress and punish trafficking in
persons, especially women and
children, and to the ILO Convention (no 182)
concerning Worst Forms of Child Labour.
Information on relevant
domestic developments, including cases decided by the courts, is included in
Canada’s reports under the Convention on the Rights of the Child, available on the Department of Canadian Heritage’s Web site at: http://www.pch.gc.ca/progs/pdphrp/
docs/crc_e.cfm
Section 12 of the Canadian Charter of Rights and Freedoms, which forms part of the Constitution, protects everyone against
cruel and unusual punishment or treatment. The right to security of the person
under section 7 of the Charter also provides protection against torture and
other inhumane treatment in certain contexts. Canada is a federal state in
which legislative jurisdiction is divided between the national Parliament and
the provincial and territorial legislatures. Violence against children, and
others, is addressed mainly through provisions of the Criminal Code of Canada, which is a federal statute that sets out the
substantive elements of criminal offences. The Criminal Code also sets out the penalties that may be imposed on adults
convicted of criminal offences. The Youth Criminal Justice Act relies
on the substantive elements of the offence as set out in the Criminal Code, but provides a separate system for dealing with offenders aged
between 12- 18, including sentencing. Federal police services have developed a
variety of law enforcement tools and strategies to address the problem of
exploitation of children. Provincial and territorial governments also play a
role in addressing forms of violence against children with each enacting its
own set of child protection legislation focused on the principle
of the best interests of the child.
While general criminal offences are applicable to violent acts
against children, there are also a number of child-specific offences in the Criminal Code. For example, it is an offence for a parent, foster parent, guardian
or head of family to fail to provide the necessaries of life to a child under
the age of 16 (s.215). This offence is currently punishable by a maximum of two
years imprisonment. It is also an offence to abandon or expose a child under
the age of ten to a situation so that the child’s life is endangered or its
health is, or is likely to be, permanently injured (s.218). This offence is
also punishable by a maximum of two years imprisonment.
The Criminal Code contains extensive child-specific sexual offences. These offences
include:
• sexual interference – direct or
indirect touching for sexual purposes (s.151: 10 year
maximum);
• invitation to sexual touching
of a person under 14 years of age (s.152: 10 year maximum);
• sexual exploitation of persons
between 14 and 18 years by persons in a position of trust or
authority (s.153: five year maximum);
• incest (s.155: 14 year
maximum);
• bestiality in presence of a
child (s.160(3): 10 year maximum);
• offences related to child
pornography (s.163.1: maximum 5 years for possessing and
accessing; maximum 10 years for making, distributing,
transmitting, making available,
etc.);
• parent of guardian procuring
sexual activity (s.170: 2-5 years maximum depending on the
age of the child);
• householder permitting sexual
activity (s.171: 2-5 years maximum depending on the age
of the child);
• corrupting children (s.172: 2
year maximum);
• luring a child over the
Internet to commit a sexual offence (s.172.1: maximum penalties
are the same as for the substantive sexual offence in question);
• exposure of genitals for a
sexual purpose to a person under 14 years of age (s.173(2) of
the Criminal Code) and;
• offences related to child
prostitution (ss. 212(2), (2.1) & (4): between
5-14 years
maximum with a mandatory minimum penalty of 5 years for aggravated
procuring).
The Criminal Code also includes measures to improve the treatment of sexual assault
complainants under 18 by allowing them to
testify outside of court or behind screens and allowing the use of their
videotaped testimony in certain cases (subsection 486(2.1) and section 715.1 of
the Criminal Code). Moreover, the Criminal Code contains
provisions authorizing courts to order specific prohibitions for convicted sex
offenders, as well as protective orders and other administrative processes in
sexual assault cases involving children. Examples include ordering convicted
sex offenders to stay away from parks and schools and prohibit them from
working in positions of trust with children. A judge can also prohibit accused
sex offenders from personally cross-examining child victims. Section
718.2(a)(ii) of the Criminal Code provides that where an offender has abused his or her child or the
child of his or her spouse or common-law partner, this would have to be
considered by the court as an aggravating factor and could result in a harsher
sentence.
Offences pertaining to violence
set out in the Criminal Code apply to all forms of violence, including violence against
children, that occur on Canadian soil, regardless of whether they occur within
the home, school, military school, medical institution, correctional facility,
detention centre, workplace or sporting facility. In some cases, as regards to
child sex tourism for instance, criminal liability extends beyond Canadian
territory where the accused is a Canadian citizen or permanent resident.
Criminal offences cover the
vast majority of acts of violence against children with the exception of some
forms of psychological abuse or neglect that do not meet the threshold for
criminal offences under provisions such as criminal negligence, criminal
harassment, threats
or intimidation; however, in such cases provincial and territorial
child protection laws would likely provide protection remedies.
In Canadian criminal law,
assault is defined as any non-consensual application of force. Such a
definition would capture a broad range of conduct occurring within the normal
course of parenting activities, such as placing an unwilling child in a car
seat, or in his or her room for a “time-out.” Therefore, the criminal law
includes a narrow exception, in the form of a defence,
for parents and teachers in limited circumstances; section 43 of the Criminal Code provides that a parent, teacher or person acting in the place of a
parent is justified in using force to correct a child that is under his or her
care provided that the force used is reasonable in all of the circumstances.
This narrow defence was recently considered by the
Supreme Court of Canada and upheld as constitutional under Canada’s Charter of Rights and Freedoms in the courts (Canadian Foundation for Children, Youth and the Law v. The
Attorney General of Canada (2004)).
The Supreme Court of Canada clarified that the defence
is only available in situations where “minor corrective force of a transitory
and trifling nature” is used; it does not apply to excuse, for example,
corrective force that: is used on children under 2 years or over 12 years of
age; involves the use of objects or implements; or, is applied to a child’s
head.
The Criminal Code and the Youth Criminal
Justice Act could be applicable to certain
cases of bullying, hazing or sexual harassment depending on the nature of the
acts and the ages of the offender and victim. For example, bullying involving
threats of harm to the child, forcible confinement, criminal harassment,
physical or sexual assaults (including any unwanted sexual touching) would
constitute a criminal offence.
Provincial and territorial laws also address this issue. For
example, Manitoba recently amended The Public Schools Act to
require all schools to establish a code of conduct for pupils and staff, and to
review the plan at least annually. The code of conduct must include
an indication that, amongst
other things, bullying or abusing physically, sexually or psychologically any
person is unacceptable. It must also set out in detail, to the extent possible,
the disciplinary consequences of violating the code of conduct. In addition,
the prohibition against harassment in section 19 of The Human Rights Code (Manitoba) prohibits a course of abusive and unwelcome conduct or
comment not just of a sexual nature, but with respect to any of the other
enumerated group characteristics such as religion, ethnicity, sexual
orientation, physical or mental disability, etc.
In response to a tragic
shooting in the province of Alberta in 1999, the Premier of Alberta established
the Task Force on Children at Risk to look at issues facing children at risk. A
series of recommendations was developed that have influenced policy and program
development. Province-wide
consultations were held culminating in the Roundtable on Family Violence and
Bullying held May 7, 2004. As a result of the Roundtable, a provincial co-ordinator for family violence and bullying issues was
recruited and a framework to guide
strategic actions has been
completed. In June 2003, the Safe Schools Task Force completed a report on
bullying, harassment and
violence in British Columbia
schools. The report "Facing Our Fears – Accepting Responsibility” (June
2003) contained a number of recommendations for improving school safety. Three
recommendations in the report called for action on the part of the Ministry of
Education and have led to the
development of British Columbia's
Safe Schools Strategy - Safe, Caring and Orderly Schools (http://www.bced.gov.bc.ca/sco/). In addition, the British Columbia Human Rights Code provides recourse to individuals who experience sexual harassment.