Justice Committee on April 15th, 2024

[The Chair, Liberal, Lena Metlege Diab]

Good morning, everyone.

I call the meeting to order.

Welcome to meeting number 101 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order adopted by the House on February 14, 2024, the committee is meeting in public to begin its study of Bill C-273, an act to amend the Criminal Code with regard to Corinne’s quest and the protection of children.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom application. Members using Zoom already know this, so I will not go through the process of how you use Zoom.

All our witnesses are appearing in person for the first panel.

I thank all the witnesses for being here with us today and welcome them.

From the Canadian Teachers’ Federation, we have Ms. Heidi Yetman, president, and Ms. Tesa Fiddler, member of the Advisory Committee on Indigenous Education.

From the Quebec Provincial Association of Teachers, we have Mr. Sébastien Joly, executive director.

Each witness will have five minutes to give their presentation. We will then move on to questions.

We'll begin with the Canadian Teachers' Federation.

[Heidi Yetman, President, Canadian Teachers' Federation]

Thank you, Chair.

I'm pleased to be speaking today as a representative of the Canadian Teachers' Federation, an organization comprising teachers' unions in every province and territory. I am a teacher with over 20 years of experience in the classroom.

I would like to acknowledge that I work and play on the unceded territory of the Algonquin Anishinabe people.

As you know, I'm here to talk about Bill C-273, a bill that seeks to repeal section 43 of the Criminal Code. With this, I need to state first and foremost that the federation fully endorses all TRC calls to action, including call to action number six. We also fully condemn any form of corporal punishment.

That being said, the federation cannot support this legislation passing unamended. The risk of unintended consequences that could make classrooms more unsafe is too great. Teachers need to be able to physically intervene in certain classroom situations. This is the reality of dealing with complex classrooms with complex needs.

I'm sharing my time today with teacher colleague Tesa Fiddler. Tesa is a member of the federation's advisory committee on indigenous education, and she's also a member of Education International's indigenous reference group, so I'm really pleased to present Tesa.

[Tesa Fiddler, Member, Advisory Committee on Indigenous Education, Canadian Teachers' Federation]

Meegwetch, Heidi.

Tesa Fiddler, nindizhinikaaz. I am a first nations educator, registered to Kitchenuhmaykoosib Inninuwug in Treaty 9. I'm also connected through my father to the traditional territory of Onigaming First Nation in Treaty 3. My family and I have lived and worked in Thunder Bay, Ontario, for the last 26 years, and we raise our family there.

First, I would like to acknowledge that I'm grateful to the Anishinabe Algonquin people, whose land I'm visiting here, for being caretakers of this territory since time immemorial and for allowing us to do this work here.

As an indigenous educator with close to 30 years of experience—I couldn't believe it when I read that—and as someone who is deeply committed to supporting the act of reconciliation, I'm here to speak about the necessity of amending Bill C-273.

I want to assure the committee and other individuals who are committed to repealing section 43 that I also recognize the significance and the importance of making this important change to the Criminal Code.

I personally honour and respect the calls to action. As a second-generation survivor of residential schools—my mother attended Poplar Hill, and my father attended Cecilia Jeffrey—the calls to action have significance to me both personally and professionally. As a witness to violence myself, I would never condone any form of violence in homes, classrooms or other institutions. I have the utmost respect for the Honourable Murray Sinclair and the many individuals who courageously led the TRC and provided this country with a guide to improving relations between indigenous and non-indigenous peoples.

I am not here to disagree with the repeal of section 43. I am here to request that you consider the suggestions that teaching experts bring forward, suggestions that will continue to protect students and their educators.

Over my career, I've worked with students who have complex needs, and I've been a mentor to many teachers and educators who deal with complex classroom issues. We have students with autism and FASD, students with problems regulating temper, students with histories of violence and exposure to trauma. In an ideal world, there would be more support for students in difficult situations, and educators would get the support we need to deal with these complex student profiles and situations in the classroom. 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.

These are the realities that all educators, including indigenous educators, are facing. We have very complex community situations right now. We are in crisis with the well-being of our children. As a parent of a child with complex special needs, I recognize the challenges that our communities and our families are facing. It really is a disadvantage to children and to educators to repeal this section and not be making the amendments that are needed to protect children.

Meegwetch.

[The Chair, Liberal, Lena Metlege Diab]

Thank you for your opening remarks.

I now give the floor to Mr. Joly, executive director of the Quebec Provincial Association of Teachers.

[Sébastien Joly, Executive Director, Quebec Provincial Association of Teachers]

Thank you, Madam Chair.

My name is Sébastien Joly, and I am the executive director for the Quebec Provincial Association of Teachers, or QPAT.

QPAT represents the 8,000 teachers working within the network of Quebec’s anglophone public schools. QPAT is also a member of the Canadian Teachers’ Federation, or CTF, and negotiates as a group with the Fédération des syndicats de l’enseignement du Québec.

Members of the committee, I want to thank you for giving me the opportunity to present Quebec’s point of view, as well as the reality of the teachers we represent, as part of the study of Bill C-273, which proposes to repeal section 43 of the Canadian Criminal Code.

From the outset, I would say that repealing this section is cause for great concern for both QPAT and for the Canadian Teachers’ Federation. Knowing that this bill flows from the 94 recommendations and calls to action put forth by the Commission on Truth and Reconciliation of Canada, it is imperative to say the intent of QPAT’s position does not minimize in any way the years of abuse indigenous people in Canada experienced in residential schools. Nor does it call into question the highly symbolic value of repealing section 43 of the Canadian Criminal Code, which symbolizes the past reality of practising corporal punishment, both institutionally and domestically. On the contrary, QPAT fully supports the spirit of the measures recommended by the Commission. In fact, QPAT participated actively in the curriculum review process in line with calls to action 62 and 63, under the title of “Education for Reconciliation.” This resulted in the revision of the history and civic education programs in Quebec.

Furthermore, like the CTF, QPAT has opposed the practice of any form of corporal punishment for several decades.

While we are fully aware of the intent behind the introduction of this bill, it is essential to ensure that its adoption does not result in unintended and unfortunate consequences for the teachers we represent.

In this sense, we are convinced, following the advice of our legal experts, that 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 as well as other categories of school staff, given the context and conditions in which they practise their profession on a daily basis.

Indeed, the increasingly heavy and complex composition of the classrooms in the context of a glaring lack of professional and specialized support resources, as well as the constant progression of violence in our schools, whether in or out of class, means that teachers are confronted on a regular basis with issues that could require the use of reasonable force towards a student with the sole objective of fulfilling their responsibility to ensure a safe school environment for the students. The legal vacuum thus created would necessarily expose them to an increased risk of criminal charges, prosecution or even convictions for interventions carried out in the course of their duties. These interventions would automatically be considered assault under subsection 265(1) of the Criminal Code of Canada.

As executive director of QPAT, I am directly responsible for following up on all cases related to criminal allegations filed against teachers who are members of our local unions throughout Quebec, working closely with the law firm Battista Turcot Israel from Montreal, which represents our members in such cases.

As such, I can confirm that the existence of section 43, the scope of which was significantly redefined by the 2004 Supreme Court decision, can no longer be used as a defence for teachers charged with assault within the meaning of the law. Nevertheless, I can confirm that it is the very existence of section 43 that allows the various stakeholders involved—police investigators, prosecutors and judges—to exercise a certain level of discretion in such cases, particularly when it is clear, following an investigation, that an educator used reasonable force for the purpose of ensuring a safe school environment for their students. As a result, many cases do not proceed to trial. According to our legal experts, the complete repeal of section 43 would result in the disappearance of this level of discretion and an increase in the number of charges, prosecutions and convictions, with all the impact that this implies for the individuals concerned and their families.

Finally, we are also concerned that this increased risk for teachers could cause additional unfortunate and unintended consequences, including making our schools less safe but also discouraging potential future teachers from choosing this beautiful profession and making a career out of it, thereby further exacerbating the teacher recruitment and retention crisis facing our public school systems in Quebec and across the country.

It will be my pleasure to answer any questions you might have and develop more of the elements presented in the brief submitted by QPAT.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thanks to all of you.

We will now start our first round of questions.

We'll start our first round with Mr. Frank Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you very much.

I want to thank all the witnesses for being here. It's a pleasure and an honour to be with you, in part because I have a child who is neurodiverse, my sisters are both teachers, and I practised and taught criminal law for a number of years. It feels like the intersection of those three things coming together. I thank you for the discussion and for your presence here.

It goes without saying that everybody here, including the panel, denounces any form of abuse. The question is this: How should the law properly respond to what is necessary—I suppose I could be using your words—for a “safe school environment”? That's where I take your positions.

In your opening statements, you got into the broad strokes. I'm not sure if, on behalf of both organizations, you could point specifically to the frailties of the removal of section 43. What would those be, please, from your experience?

[Heidi Yetman]

As I said in my opening statement, I've taught for over 20 years—23 years. I remember my first job. I was in a présecondaire, which is a grade 7 class. I was brand new—you know, when you're a new teacher, you do your best—and a fight broke out in my class. Luckily, they were smaller than I. They were in grade 7. They were 12 years old. It was quite the fight, because there was blood drawn. I pulled those two children apart, and one I took with me to the principal's office. According to the Criminal Code, that could be assault. Of course, I did my duty because I wanted to protect the kids who were in the fight and to protect the children who were in the class. I could have been charged with assault for doing what I did. I didn't know. I was new. I hadn't even heard of section 43.

Our fear is that, by not amending section 43, we put teachers at risk of being charged with assault. In our brief, there are about 50 examples of incidents where section 43 was called upon and those cases didn't go to court. Some did. There was one recently, in 2023, Bender versus Ontario, that went to court and the teacher was dismissed. This is what we fear.

Another thing we fear is.... Personally, as a union leader, I would be telling teachers, “Be very careful. Do not put your hands on children. There is nothing to protect you in the criminal law.”

[Sébastien Joly]

Essentially, we in Quebec have the same concerns regarding the repeal of section 43. With our experience in Quebec, and the experience of the Quebec Provincial Association of Teachers regarding allegations of a criminal nature that were filed over the years against teachers, it has been confirmed by the legal counsel we work with on all those cases that section 43.... We've been asked how many cases or court decisions have mentioned section 43 as a defence for a teacher or education worker. There aren't many, and there's a reason for that: The majority of cases do not go to trial.

I was a witness in one case where we went to trial. We were before the judge representing our member. I think it was a junior prosecutor, who probably was not really aware of the existence of section 43, and the judge, from the get-go, basically right away took a decision at the bench, not documented, and he actually reminded the prosecutor of the existence of section 43.

It's very important to understand that in probably 90% to 95% of the cases where there are allegations, section 43 is considered by the different stakeholders before they go to trial. Obviously, from experience, there are allegations on a regular basis towards teachers for various reasons, including assault or alleged assault, and it takes a big toll on these teachers and their families. Even for an investigation to be completed, oftentimes we're looking at a year to a year and a half before the investigation is completed, and that's even before the prosecutor looks at the case, so the teachers are suspended for a good amount of time.

Certainly, we have exactly the same concerns that we will multiply the number of allegations and accusations, and there may be more cases going to trial in the absence of section 43.

[The Chair, Liberal, Lena Metlege Diab]

You have 30 seconds.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Chair.

I appreciate your time. I know we probably don't have time to go through a lot more here, but to me, a teacher.... I'm thinking about my own child too and the needs that arise in order to protect them and protect others in those situations. I mean, the situation mentioned by Ms. Yetman there, to separate people, to me, is an unfortunate part of the job. I don't think any teacher wakes up in the morning saying, “I want to do this”, but I take your point. Assault is non-consensual touch. No one is saying, “Please touch me there”, so I take your point.

[The Chair, Liberal, Lena Metlege Diab]

Thank you.

We now move to Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Madam Chair.

Thank you so much, Ms. Yetman and Monsieur Joly. Both of your organizations are very important to me. My mom and both of my aunts were school administrators, so I've heard directly several times about the consequences of this bill and what they think about it.

Mr. Joly, you made a very good point, which a lot of people have raised, about there being so few times when this needs to be used as a defence. What you're actually saying is that it rarely needs to be used as a defence, because prosecutors know that it's there and therefore they are not charging people with allegations related to assault in the classroom. Would that be correct?

[Sébastien Joly]

That's exactly what I was saying. Again, I've been handling these cases since 2016, but the firm we're working with has been working with the association for more than 20 years. Certainly, there was a big change after the 2004 Supreme Court decision that really limited or realigned the scope of section 43. Most cases don't go to trial and charges are not deposited, because of the existence of section 43 as realigned by the 2004 Supreme Court decision.

Again, in an ideal world, it would be possible for teachers not to intervene physically, ever. For students, we would have enough support staff and resources to deal with all situations. However, as I wrote in my brief, the statistics are very clear about violence in classrooms and the number of possible situations teachers may be faced with on a daily basis, particularly those who are teaching in specialized settings—we're talking daily.

Obviously, it would be a big loss if there was no amendment to provide protections for our teachers and educational workers.

[Anthony Housefather, Liberal, Mount Royal, QC]

I appreciate that.

I have one more question for you, Mr. Joly, before I go to Ms. Yetman.

One of the claims that have been made is that there are other professionals who deal with children, like nurse's aides and child care workers, who are not covered by this defence, and yet, somehow, there are not an extraordinary number of charges laid against them.

Could you explain why you believe there needs to be a specific category of protection for teachers?

[Sébastien Joly]

If you read my brief, you will see that I'm talking about educational workers, which also includes school staff. Obviously, we represent teachers and people who work in the education system. We do not represent nurses.

The number of cases compared to the number of workers in the school system is not that great. However, as far as we're concerned, every single case counts, and we have enough per year, just for the 8,000 teachers we represent, where section 43 and the elements of protection included in it are considered to avoid charges being laid against teachers for applying reasonable force in a context where they're trying to ensure a safe school environment for their students.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

Ms. Yetman, we had a chance to talk about this. I liked the example you gave of your grade 7 class when you first started teaching.

As I understand it, your organization is not opposed to the repeal of section 43; you simply want it to be replaced by a modified defence that would be more in line with contemporary values. Is that correct?

[Heidi Yetman]

Well, I think section 43 was written in 1892, so we do need to update that. Of course, the 2004 Supreme Court decision was very helpful in adding guidelines. We believe in truth and reconciliation. We actually think it's a shame that only 13 of those 94 calls to action have happened so far.

I think it needs to be revised. It is too vague and it is unclear, and that's why we're suggesting an amendment. It would be called something like a safe school amendment that really focuses on safety.

[Anthony Housefather, Liberal, Mount Royal, QC]

I agree 100%. I've seen the amendment, and I support the variation of this amendment. Would you object if other professionals, like child care workers and nurse's aides, for example, who also deal with children in a similar way, were incorporated into the same wording you proposed?

[Heidi Yetman]

Now, speaking personally, I don't see a problem with that. Of course, I represent teachers and education workers, and I wouldn't want to speak on their behalf.

I think we need to protect people who are working with children and are doing things to keep them safe. That's what it's all about. It's about keeping children safe.

[Anthony Housefather, Liberal, Mount Royal, QC]

It's about making sure that there is not a teacher or another educator who won't act in a situation where they need to pull children apart, like you did.

Thank you so much.

Madam Chair, I see your hand is up.

[The Chair, Liberal, Lena Metlege Diab]

No. You have 20 seconds left.

[Anthony Housefather, Liberal, Mount Royal, QC]

I just want to thank the witnesses for being here. I highly respect the organizations.

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

I now give the floor to Mr. Fortin.

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

Thank you, Madam Chair.

I will take advantage of Mr. Housefather’s 20 seconds.