Justice Committee on April 11th, 2024

[Peter Julian, NDP, New Westminster—Burnaby, BC]

No.

[Anthony Housefather, Liberal, Mount Royal, QC]

It also says that you can't use it against teens. Is that written anywhere in section 43?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

No.

[Anthony Housefather, Liberal, Mount Royal, QC]

It seems to me that the judges in that decision actually rewrote section 43. Parliament didn't intervene. I think people who would be against the repeal of section 43 would say that it should be up to Parliament and not judges to write the law. It seems that the law has been rewritten by judges in a number of ways—I won't get into all of the aspects of the majority judgment—without Parliament having had a say.

Would you agree with that?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I would. The Supreme Court's split decision has, I think it's fair to say, caused confusion that continues to exist today. That is why the TRC has made a very clear and unambiguous call to action—number 6—to repeal section 43.

Confusion has come out of that split decision, which Mr. Caputo so eloquently spoke to and demonstrated just a few moments ago.

[Anthony Housefather, Liberal, Mount Royal, QC]

I agree. I thought he very eloquently also demonstrated the two-finger thing.

Would you know, Mr. Julian, based on the Supreme Court judgment from 2004 and the drafting of section 43, whether that could have a legitimate defence under section 43?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

That is a very good question, Mr. Housefather. That is indeed why I said you were asking me to cast judgment on something that has been very confusing. It's confusing to child protection workers and police officers. It's even confusing to the general public.

[Anthony Housefather, Liberal, Mount Royal, QC]

In 1989, I believe, we adopted the UN Convention on the Rights of the Child. As I understand it, that says there should not be defences related to corporal punishment. Is that correct?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Yes, but it was in 1991. You're absolutely right to point to that and to the evolution of what has happened subsequently. The evolution internationally of virtually every democratic state that values human rights has been to eliminate provisions of their criminal codes that allow the use of physical force and punishment against children.

[Anthony Housefather, Liberal, Mount Royal, QC]

That's even in commonwealth countries, like New Zealand, for example, where it's been parallel. They did it in 2007. Scotland and Wales more recently did that.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

You are absolutely right and you are well briefed.

We can look at European countries and countries around the world, including Japan, South Korea, South Africa and France. The list goes on and on. There are 65 countries and 18 regions. “Regions” means places like Scotland and Wales. These countries have a similar background of common law, defence of human rights and concern about child development. Almost all of those countries have moved in that direction since the Supreme Court split decision that has caused so much confusion, which the Conservatives have so clearly demonstrated at this committee hearing.

It is time to move forward on repealing section 43 for the issues around truth and reconciliation and child development, and to heed the call of 700 important organizations across the country that have all said with one voice that it's time to repeal section 43.

[Anthony Housefather, Liberal, Mount Royal, QC]

Do I have any time left, Madam Chair?

[The Chair, Liberal, Lena Metlege Diab]

You have 50 seconds.

[Anthony Housefather, Liberal, Mount Royal, QC]

I believe Justice Arbour in her minority decision stated that the section was too vague, that it should be unconstitutional because of vagueness. After reading that and reading the majority judgment, I would tend to agree that this section does not give us clarity on what can and cannot be done.

Mr. Julian, would you be averse if, for example, those who believe there needs to be some clarity to replace this section—but not with a defence like section 43—provided some kind of amendment to the bill?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I believe it is very important, for a whole range of reasons, to repeal section 43.

I note that the Canadian Teachers' Federation has said that it would like to see some changes to section 265 of the Criminal Code of Canada. I think that is something the government could look at.

The importance of repealing section 43 goes beyond the fact that it's an aspect of the Criminal Code that dates from 1892. There are other ways of addressing that issue in other sections of the Criminal Code.

As I mentioned, though, in countries that have stopped the physical punishment of children and the use of physical force against children, there has not been any increase in prosecution or cases against parents or teachers. That simply has not happened.

There are other ways of looking at this in terms of the Criminal Code. Section 265 should be looked at.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Julian.

Mr. Fortin, you have two and a half minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

Mr. Julian, earlier, in the first round of questions, I talked to you about the use of force to control a child. I thought I understood that we agreed on that.

Now, as far as the correction is concerned, I admit that I'm a bit troubled. You're right, I think, in some respects. On others, I'm not sure. I'd like to hear a clear answer to what Mr. Caputo said. He gave the example of a parent who would use two fingers to give a slap on the wrist to a child, telling the child not to touch that, or not to do that. However, I'm not sure I understood your position in a situation like that.

It makes me wonder, do we treat all use of force in the same way? I'm thinking, for example, of a teacher or a parent who would give the whip. When I was a little boy, school principals would rap a child on the wrist with a ruler, which would no longer be acceptable today for all kinds of reasons. Whether or not it's provided for in the Criminal Code, I think there would be a kind of revolt against it.

I'd like—

[The Chair, Liberal, Lena Metlege Diab]

Mr. Fortin, one moment, please.

We have a problem with ParlVu, so we'll suspend for a few minutes.

[The Chair, Liberal, Lena Metlege Diab]

We are resuming the meeting.

Mr. Fortin, you can start again. You have the floor for two and a half minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

Mr. Julian, I'm going to go back to what I was saying before the interruption. The use of force to control a child was raised in the previous round of questions. I would now like to discuss correction.

I was interested in Mr. Caputo's question about whether hitting a child on the hand with two fingers, whatever the reason, should be treated the same way as a case where a teacher or parent hits a child with a stick or slaps the child on the butt, hand or back. Shouldn't we show a bit of discernment as to what the actual circumstances are?

You'll tell me that section 34 refers to reasonable force, but it's important to understand that we are talking about criminalizing a behaviour. If a mother ended up in prison one day because she slapped her little girl on the wrist, I wouldn't be very happy that I was someone who voted in favour of this amendment.

I'm still making up my mind on this, Mr. Julian. I really want to look at degree and escalating force with you.

Should all use of force to discipline a child be treated the same way?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

No, Mr. Fortin. You're absolutely right. There is a difference between what you described and hitting a child systematically.

However, the reality, as you'll hear and as you've seen in the statements that have been sent to the committee, is that there can be a progression.

In other words, it may be okay to use some physical force against children, but it can escalate if there's a provision in the Criminal Code that allows it.

The reason why so many groups, such as community health centres and early childhood centres, some from Quebec, are asking this committee to continue its work and repeal section 43 is that the section is not clear. It is confusing and can lead to more serious situations.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

If it's not clear, shouldn't it be clarified rather than simply eliminated?

[The Chair, Liberal, Lena Metlege Diab]

Your time is up.

For the last two and a half minutes, we'll go to Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

In questioning, we've heard a lot about the Supreme Court decision, and there seems to be an attempt to say somehow that the three dissenting judges didn't agree. What they agreed on was that section 43 was unconstitutional. I'll review their different ways of getting there.

Justice Binnie said we needed to be clear, when talking about section 43, that its purpose is to protect parents and teachers, not children. As drafted, there is nothing in this section about protecting children. Justice Arbour said that it clearly violates the right to security of the person of children. Most interestingly, Justice Deschamps said the court can't read the section down to create a constitutionally valid provision. She's saying that what the majority tried to do is recognize that it offends the Constitution, so they tried to narrow it to make it constitutional.

I think it's important to remember that all three of those judges clearly found that section 43 violates the rights of children and has nothing to do with protecting children; it has to do with protecting parents and teachers.

I wonder if you have some comment on that.