Justice Committee on April 15th, 2024

[Ryan Lutes]

Absolutely. Thanks for the question.

First off, I want to say that the NSTU opposes violence and corporal punishment against children, full stop. That is not what we're speaking to.

I also agree with Monsieur Levasseur that it's really important to repeal section 43. It's just important to get it right. I appreciate the colonial legacy that section 43 has brought to us. We have to do away with that. Section 43 should be repealed, but it should be done while at the same time protecting teachers in schools.

The unfortunate reality is that our schools are more violent than they were, and that's not a reality that I want. I have two kids, and that's not the reality I want for them. I also want their teachers to be able to protect them and keep them safe. I want them to be able to do that without doing a mental calculus of whether they think the criminal law is going to protect them or not.

I think we can do both. I think we can repeal section 43 and honour the Truth and Reconciliation Commission, while also amending the Criminal Code to enable teachers to keep their kids safe at school. That's what we want. At the end of the day, parliamentary procedure is not my expertise—I'm a math teacher. That's where we look to you, but if we can't get this right.... I think that's where we have to put our efforts. We have to put our efforts into doing both things at once, and I believe this committee and the esteemed folks around this table can do that. You can repeal section 43 while also ensuring that teachers and schools have the tools they need to keep our kids safe.

I would just implore the folks around this table to go back and do both of those things. To do one of them without taking into account the other would put our teachers and our schools at risk.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Mr. Lutes.

We will now move on to Mr. Maloney, for five minutes, please.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Chair.

I agree with what Mr. Moore just said. This panel has been very informative, as all the panels have been on this issue, frankly.

I think Mr. Moore used the term “a dose of reality” or “being realistic”. This is the part I'm struggling with. We can all give examples around this table of extreme cases where a change would not work or would work or where the status quo doesn't work. We need to parse that out and get to the core of the issue.

Mr. Lutes, the Nova Scotia Teachers Union falls under the jurisdiction of the Canadian Teachers' Federation, I'm assuming.

[Ryan Lutes]

Yes, we are a member of the Canadian Teachers' Federation.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Okay. Ms. Yetman said in her testimony earlier today—and I think you were here—that if section 43 is repealed, it would be their advice to teachers not to touch or lay a hand on any students. Do you agree with that approach if that's what happens?

[Ryan Lutes]

That is what our legal experts are saying. That's not a world I would want to live in, but that would have to be our advice for teachers moving forward.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Okay.

I want to pick up on something Mr. Moore just said. Let's assume this is a grade 7 class. You're the teacher, and Mr. Caputo and Mr. Moore start to beat me up. If section 43 is repealed, are you going to tell your teachers that they have to stand by and watch that happen and not inject themselves to try to break up the fight?

[Ryan Lutes]

I certainly hope not. What our legal—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

This is not about “hope”. This is a very realistic question, because the evidence is that they will tell their teachers not to touch their students. I'm giving you a real scenario. It happens in classrooms all the time—

[Ryan Lutes]

Absolutely.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

—so what would you do as a math teacher in a grade 7 class if those two guys started beating me up?

[Ryan Lutes]

Let's just be clear. What our legal experts are saying is that our advice would have to be not to lay your hands on kids, period. What I would do as a math—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

What authority are they relying on when they tell you that?

[Ryan Lutes]

Do you mind if I finish answering the question? I think that's really important.

What I would do as a teacher in that class would be to intervene. I would find someone to intervene, but I don't want our teachers to have to go through some nuanced legal analysis. I want them to be able to react reasonably in the moment to keep kids safe, and that's where legal experts have said that without section 43, we would be putting teachers at risk. I don't want to live in that world. I want to live in a world where the teachers can intervene reasonably to keep kids safe and know that they're protected.

Again, I really want to be clear, because our position is very nuanced. Section 43 should be repealed. At the exact same time, additional protection should be given so that teachers in schools have the tools in their tool box to keep kids safe. We shouldn't be doing one without the other. Section 43 should be repealed. At the same time—and it's really important that it happens at the same time—we must include the school safety amendment to ensure that teachers are not prosecuted for very reasonable interventions to keep kids safe.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

I don't disagree with you, Mr. Lutes. Unfortunately, I think perhaps the position might be overnuanced and overanalyzed legally, to be honest, because I don't think there's a scenario where a court is going to hold you responsible for breaking up a fight and protecting one student from two other students or one other student. I don't think the repeal of section 43 would create that exposure. I think you would still be allowed to do your job in the same way you are now. Section 43, as we've heard time and time again, was introduced at a time and place.... It is entirely different now. It's entirely different from what it was prior to the Supreme Court of Canada's decision.

I want to move over to you, Dr. Kelly. Let's assume that section 43 is repealed, and let's assume that a teacher is charged with an offence, as they could be now because I don't think students, teachers or parents know that section 43 exists until they hire a lawyer in a particular situation. Do you not think that the Supreme Court of Canada, as they laid out in their decision, would still provide guidance to courts in analyzing a particular set of facts when a teacher is put in a position where he has to defend himself against an assault charge?

[Dr. Lisa M. Kelly]

Yes, absolutely. If a teacher or anyone else is charged with an assault, and there is a need to apply or interpret section 43, a court does so in accordance with—

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

No, no. I'm saying that in the absence of section 43, that would still provide guidelines to judges who are reviewing the facts of a case against a teacher.

[Dr. Lisa M. Kelly]

Well, in the absence of section 43, you would be interpreting the contact as you would under general section 265 assault jurisprudence.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Are you saying that the Supreme Court case would have no bearing whatsoever? Is that your position?

[Dr. Lisa M. Kelly]

That's correct.

[The Chair, Liberal, Lena Metlege Diab]

We will now move to our last two questioners.

Monsieur Fortin, you have two and a half minutes.

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

Thank you, Madam Chair.

Ms. Kelly, I would like to take these two minutes to ask you some questions, if I may.

What I gather from all the testimony is that corporal punishment should be prohibited and no longer authorized by section 43, even though we all agree that, according to the Supreme Court decision, it is already prohibited.

Would amending section 43 to prohibit corporal punishment and the use of violence, excluding the use of reasonable force to ensure the safety of children and third parties, as well as the education of children, seem reasonable to you? This would mean prohibiting corporal punishment and violence, but allowing those in parental authority to use reasonable force to keep children safe and educated.

[Dr. Lisa M. Kelly]

One possibility would be for an amended section 43, or a new provision if section 43 were repealed, to actually codify, as one of the members said earlier, the limits and the narrowing that the Supreme Court undertook in 2004 as a rewritten provision, so that anyone who picked up the code would be aware of the limits as they exist right now.

Is that the question? That could absolutely be done as an amendment to section 43 or perhaps as a new defence.

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

I only have a few seconds left.

Yes, you understood the question, Ms. Kelly. I agree with you, but apart from the legal aspect as to whether this would be a reasonable codification or not, I want to hear your opinion on the substance of the matter.

In light of your expertise, would it be a good idea to allow the use of reasonable force for child safety and education purposes, while prohibiting corporal punishment?

[Dr. Lisa M. Kelly]

Yes. I think in some of the situations that have been raised, in an educational setting or otherwise, there may be instances where, for the protection of students, a teacher will want to intervene. It may be an intervention that wouldn't be fully captured or excused by the current law of self-defence.

I think there are some unique considerations with respect to young people that don't always apply to, for instance, adult-to-adult relationships.