Justice Committee on April 29th, 2024

[The Chair, Liberal, Lena Metlege Diab]

Mr. Clerk, please go ahead.

(Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

BQ-1 is defeated. I will now go to CPC-1 and ask the member if he wishes to move it.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I do wish to move it. I would like to speak to the amendment briefly.

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

I have a point of order, Madam Chair.

I'm going to make the same point on this amendment that I made on the last amendment: I believe it is out of order. The amendment repeats the language “if the force does not exceed what is reasonable under the circumstances”, which is the exact language from section 43. Once again, it goes against the purpose of the bill, which is to repeal that language.

I can't understand how an amendment that puts back what the bill intends to remove can be in order at this point.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

I rule that this is in order for the same reasons I ruled that way on the previous BQ-1.

I will ask Mr. Moore to please explain and speak about his amendment.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Section 43, as we heard from witnesses, provides a defence for certain actions that could otherwise be criminal. It pertains specifically to—this isn't interpretation, since it's in the plain reading of the legislation—schoolteachers and parents, by and large. Section 43 allows those individuals to use reasonable force while dealing with children. We've already, in the discussion we had today.... I think it bears repeating about this particular amendment, because our amendment was very specifically crafted around the Supreme Court of Canada decision. In fact, the CPC-1 amendment adopts the language of the Supreme Court.

As you know, Madam Chair, oftentimes legislation in the Criminal Code can be challenged. Provisions can be challenged through the courts, particularly under our charter, on the constitutionality of legislation. Is it cruel and unusual punishment, for example? Is it a reasonable search, for example?

This particular legislation, like most sections of the Criminal Code, has been challenged. We've seen, in times past, sections of the Criminal Code being struck down. We've seen sections of the Criminal Code upheld. The Supreme Court of Canada, in a majority decision 20 years ago, in 2004, considered this section of the Criminal Code in the Canadian Foundation for Children, Youth and the Law v. Canada decision. It's very instructive and important to understand what the state of the law is right now in Canada, because, when the Supreme Court strikes down or upholds legislation, it is binding on all other courts in this country when they consider someone charged under a particular section of the code. What the Supreme Court did is uphold section 43. Those saying section 43 is unconstitutional are wrong. The Supreme Court determines what is constitutional and unconstitutional. They found that section 43 is constitutional. They also defined what is protected under section 43.

I want to speak a bit about that, Madam Chair, in moving my amendment.

Number one, it applies only to a parent or a person standing in place of a parent. Only those individuals are justified in using force by way of correction towards a child. I think there's a fundamental misunderstanding among some of the witnesses. It may be a deliberate misunderstanding or not. In Canada, today, teachers cannot administer corporal punishment. This bill changes nothing in that regard. What that means is that a teacher cannot spank a child. A teacher cannot paddle a child. The Supreme Court decision found that a teacher cannot administer corporal punishment. Only a parent can administer corporal punishment. In fact, even that is quite narrowed by what the Supreme Court decision finds regarding section 43.

For example, for the purpose of this section, force is used for correction only if it addresses the specific behaviour of the child. Its purpose is to educate, correct or restrain a child. It is not of a punitive nature. It is used towards a child between the ages of two and 12. The child is capable of learning from the use of force. It's minor and transitory in nature.

Some of the examples that have been used to justify this private member's bill are clearly outside the scope of this law.

I'll go on, Madam Chair. Objects, including rulers and belts, are not used. The idea that a teacher can paddle a student with a wooden paddle.... No. They can't under this decision of the Supreme Court.

It is not applied to the child's head. The mover of this private member's bill used an example in his opening remarks. Don't take my word for it. Refer back to his opening remarks. He used the example of someone punching a child in the face. That behaviour is not protected by section 43.

The decision goes on; likewise, our amendment goes on, because our amendment codifies what the Supreme Court decision found.

Let's read what the law is in Canada, Madam Chair. We have a lot of people making stuff up on the fly.

A schoolteacher is justified in using force towards a child under their care only when the purpose is “to remove the child from a classroom or secure compliance with instructions” and “the force does not exceed what is reasonable under the circumstances”.

There's a lot of misinformation out there.

Why would teachers be concerned about that protection being removed? It is protection that applies only to them. It's because teachers have to use force sometimes to address behaviour in a classroom, such as two students kicking another student who is on the ground and beating them senseless. It happens all the time, Madam Chair. Teachers intervene, sometimes at their own risk, in those situations when they're dealing with high school students, to protect their students and to protect their classroom.

On this bill, we heard from various teachers' organizations that the safety of their classrooms in fact depends on this section of the code. Their ability to maintain a safe environment for students hangs on this. We also heard testimony that the advice that leadership in the teaching community would give to teachers, should this bill pass, is to not intervene.

In a scenario where one child is getting beaten by another child—perhaps an older or a bigger child—the advice they're going to give is to not intervene. Now, some of them will intervene and some of them will be charged. If it happened today and they were charged and went before a judge, the judge would say that under section 43, as interpreted by the Supreme Court in its 2004 decision, a schoolteacher is justified in using force towards a child that is reasonable in the circumstances.

However, should this bill pass, that teacher would no longer have that protection. That is why teachers took the time to leave what they were doing to appear before this committee and provide testimony. It was that important. That's not to mention the protection for parents against frivolous lawsuits that could be brought if a parent is now going to be the target of a charge because they are protecting their child.

Abuse in Canada has been and is rejected and illegal. I counted four scenarios that Mr. Julian used in his opening remarks. They're all illegal.

We are all against assaulting children—all of us. We're all against someone being punched in the face. We're all against someone being hit with an object. The problem is that this stuff is all illegal.

This bill goes beyond that.

That is why it is imperative, if we're going to pass Bill C-273, that it pass with a Conservative amendment that maintains the protection of the constitutionally upheld section of the code. Without that protection, teachers and parents are going to be at risk, and that puts children at risk as well. Madam Chair, that is why I'm moving CPC-1.

I know that BQ-1 was rejected. I understand why Mr. Fortin moved it, and I think I get what he was getting at. The reason I did not support Mr. Fortin's amendment is that I think CPC-1 more fulsomely follows the logic of the finding in the Supreme Court decision.

I want to mention, Madam Chair, the gravity of the decisions that we're making here today. There have been 20 private members' bills or Senate bills over the years on this issue, but this Parliament—and past Parliaments, in their wisdom—have not repealed section 43 in its entirety. The reason they didn't do that is the consequences and the follow-up.

To reinforce this point, now we hear that Minister Virani recognizes that there is going to be fallout and there are going to be consequences. He is talking about legislation that would no doubt amend some other part of the code so that he is able to go to these groups—maybe to parents, maybe to teachers—and say, we listened to you, and here we're going to do something else somewhere else in the code. It would certainly not be in the appropriate section. This is the appropriate section.

Madam Chair, I think I'll leave it at that for now on our amendment. I ask all members to consider it.

If you're wondering what it means to pass this amendment, it means that we respect the decision that was made by the Supreme Court of Canada, which really narrowed the possible interpretation of section 43. They took a view; they narrowed it in, and they further defined what protections were afforded to teachers and parents by section 43. I think that was very constructive for all of us, and case law has followed that Supreme Court decision.

Now it is time for Parliament, and if we're going to amend this section we need to ensure that those protections that the Supreme Court put in are maintained.

I so move CPC-1.

[The Chair, Liberal, Lena Metlege Diab]

I have Madam Gladu.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Chair.

Certainly, I don't think I could do a better job of talking about the amendment than my colleague, Mr. Moore, has done, but I would add a few things.

I like this amendment, because I think it codifies what the Supreme Court decision was. I think we saw in the past, before 2004, abuses in the residential school system, etc. However, since this clarification and narrowing, I think we've struck the right balance, and we're not seeing a plethora of cases.

In fact, I think the Teachers' Federation also pointed out that having section 43 in place with that interpretation from the Supreme Court actually is a disincentive for people to bring frivolous lawsuits. That's important, because right now there's a lack of judges and we have sexual assault cases being kicked out because they've taken too long. We certainly don't want to see the number of charges and cases that would come forward if these protections were not in place.

The other thing I really like about the Supreme Court's clarification is that it includes psychological harms that are not acceptable. It also makes sure that the types of incidents we're talking about are minor and transitory as opposed to being chronic. I think those are also great parameters.

I think this is needed. I think that we cannot wait on a bill that might be right—that might come, that might get passed—and remove these protections before that is happening. I support CPC-1.

[The Chair, Liberal, Lena Metlege Diab]

I indicated at the beginning that we would stop and go in camera. I am in the hands of the committee. Tell me what you want to do.

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

Madam Chair, I had asked to speak.

I don't know if you have a speaker list. Is my name on that list?

[The Chair, Liberal, Lena Metlege Diab]

Yes.

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

Okay.

I'd like us to keep going.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Van Popta, do you want to be on the list? I asked the question. I'm looking for guidance.

Go ahead, please, Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

I just want to raise the concern, Madam Chair, that we can continue, but if we continue, we will not have the opportunity to go over the witness list for the anti-Semitism study. If we don't do that today and we do it on Thursday, I don't believe there will be time to invite witnesses to be here next Monday. I just want to understand that, when we do get to studying the witness list, we're not going to make the study start the next day, when there's no time for witnesses to be invited properly and to have that discussion, and we give time for the clerk to invite the witnesses, get them their headphones and do this properly.

I would have thought, if we did this today and we resumed the bill on Thursday, we would then have the opportunity to invite the witnesses properly over the next few days and start on Monday. I point out only that, if we get to that on Thursday, we can't expect to start on Monday.

Thank you, Madam Chair.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Moore, is this on the same point? I have many speakers.

If that's a different one, please go ahead.

[Rob Moore, Conservative, Fundy Royal, NB]

On your point, you indicated that we would start committee business at 12:30 p.m. It's 12:30 p.m. now.

In no way, shape or form should anything that's happening on Bill C-273 impact what we're doing on our study on anti-Semitism.

I think we should go to committee business now and that we should pick this up at some time in the future. For now, we have an agenda for today, and I think we should stick with it and go on with our consideration of committee business.

[The Chair, Liberal, Lena Metlege Diab]

I believe it appears to be in order. I don't hear anyone objecting to that, so I'm going to ask for five minutes. We need five minutes, I'm told, in order to change settings, and it will be in camera.

I would ask those who are not allowed to stay to please leave, but I think that's what the clerk will be doing.

Thank you very much.

[Proceedings continue in camera]