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House Hansard - 338

44th Parl. 1st Sess.
September 18, 2024 02:00PM
Context: House Hansard - 338 - Sep/18/24
Mr. Tako Van Popta (Langley—Aldergrove, CPC)
Madam Speaker, assault is against the law in Canada, and assault gets a very broad definition in the Criminal Code, section 265: “A person commits an assault when without the consent of another person, he [or she] applies force intentionally to that other person, directly or indirectly.” Note that the definition does not talk about how forceful the force must be, but only that it is intentional and without the other party's consent. For example, a slap on the wrist could be an assault if it was intentionally applied without the other person's consent. Today we are talking about teachers and parents and the children who are under their care. The adult in the room could be charged with an assault for a slap on the wrist applied to a misbehaving child under their care if it were not for the section 43 defence, which reads, “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child...who is under his care, if the force does not exceed what is reasonable under the circumstances.” Therefore teachers and parents have a defence if the force was reasonable and intended for correction. Note that it does not defend punishment, and it certainly does not allow corporal punishment like some of the other speakers have been suggesting; that is just not the case. The private member's bill before us today would repeal section 43 and eliminate the defence altogether. As I said, it is based on the mistaken belief that corporal punishment is legal in Canada on account of the section 43 defence. It is not. The proponent, in his testimony before the standing committee and today again, noted that his bill is at least in part in response to the Truth and Reconciliation Commission report's call to action 6. That is absolutely true. He quoted again today the hon. Murray Sinclair, who gave testimony earlier in the Senate, and he cited examples of residential school teachers punching children in the face and causing serious injury. That is the battle the member for New Westminster—Burnaby is fighting today, and he thinks that repealing section 43 would solve that problem and win that battle. He is wrong. There was a Supreme Court of Canada decision 20 years ago called Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). The case started its journey through the court system at the Ontario trial court and made its way, ultimately, to the Supreme Court of Canada. It was brought by a group of organizations that had the best interest of children in mind. The petitioners argued that section 43 infringes on the constitutionally protected rights of children to life, liberty and security, section 7 of the charter; the right to be free from cruel and unusual punishment, section 12 of the charter; and the right to equal protection and benefit of the law in section 15. The trial judge found that section 43 does not infringe any of these constitutional rights. The Court of Appeal for Ontario agreed. It went to the Supreme Court of Canada, where Chief Justice McLachlin wrote for the majority. I will read from that decision, which goes to the very heart of the issue. She said of the section 43 defence that: It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. Without s. 43, Canada’s broad assault law would criminalize force falling far short of what we think of as corporal punishment. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families—a burden that in large part would be borne by children. Therefore the appeal was dismissed, but the court did not just leave it there. It took the time to give guidance to teachers, parents and law enforcement agencies as to what section 43 means. It made it clear that section 43 protects only reasonable force applied for corrective purposes, and then went on to state in some detail what “reasonable” was in the circumstances in Canada today. Based on our reading of the Supreme Court of Canada decision, the Conservative members of the justice committee put forward an amendment to the private member's bill, which basically codifies the decision. As an aside, this is probably something that should have been done 20 years ago by whoever the government was at that time. I think it was a Liberal government, but the subsequent Conservative government could have picked it up. The current government certainly could have picked that up to codify the Supreme Court of Canada decision. That would have gone a long way in clarifying the law. Unfortunately, that did not happen. At committee, we heard from many experts. I just want to underline that the experts I am going to quote are critical of this private member's bill, but they were all in support of the spirit and intent of call to action 6 under the truth and reconciliation report. The experts said that repealing section 43 is too risky for teachers and students. There are four witnesses I want to quote and highlight. Dr. Lisa Kelly, a law professor, explained that section 43 is far narrower today than it was when it was first drafted in 1892, as well as in terms of how it was applied historically during the residential school days. She cited the Supreme Court of Canada's decision that I just highlighted; in her words, it “read in a series of limitations as to what would constitute reasonable correction.” At the April 15 meeting, Ms. Heidi Yetman of the Canadian Teachers' Federation stated, “the federation cannot support this legislation...unamended. The risk of unintended consequences that could make classrooms more unsafe is too great.” Ms. Tesa Fiddler, an indigenous educator who is also with the Canadian Teachers' Federation, said, “In an ideal world, there would be more support for students in difficult situations, and educators would get the support we need.... The sad reality is that it is not there, so passing Bill C-273 without an amendment will make an already challenging job more challenging.” I would just say again that the Conservative members of the committee tried to put in those amendments; they were turned down by the other members of the committee. Mr. Sébastien Joly of the Quebec Provincial Association of Teachers said, “the removal of the elements of protection included in section 43, in the absence of an amendment to the Criminal Code to guarantee protections for school staff, would constitute a serious risk for teachers”. I would just summarize the testimony by saying that we had some very credible witnesses at the committee who said that repealing section 43 is risky business if there is not something else to fill in the gaps. I am going to suggest that the Liberal members on our committee actually agreed with that. At the April 29 meeting, after having the opportunity to reflect on the compelling evidence from very credible expert witnesses, the members told us that they had a discussion with the Minister of Justice and Attorney General of Canada, who is apparently assuring us that there will be new legislation coming to fill in that gap. The Liberals realize that the evidence we received from these teachers and professionals needs to be taken seriously. They realize that there is a risk, that there is going to be a gap that needs to be filled; therefore, they are promising that there will be legislation coming sometime in the future. I believe what they are saying is that we should just vote for the bill now and repeal section 43, recognizing that there is going to be a serious gap that many people will be deeply concerned about. They are going to fix it in the future. The Conservative members of the committee are saying to fix it right now. The draft legislation is before us. We are deep into it. We understand what the issues are. Let us fix it right now. The Conservative members of the committee put forward a proposal to do exactly that. I do not think we should wait; we need to do it now. In the absence of that apparent legislation, which is going to be presented to us sometime, we need to vote against the private member's bill. That is what I will be doing.
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