Justice Committee on April 15th, 2024

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

Thank you for anticipating my next question.

We have some other technical problems, I think, given that we're dealing with a private member's bill before us. I do not in any way doubt the challenges that teachers are facing in the classroom at this time. I am not at all one to diminish the concerns about the legal consequences of the repeal.

However, I would raise two things here. One is that education is primarily a provincial jurisdiction. Therefore, I'm not sure, outside the Criminal Code, if we can deal with some of the major problems. The second is, of course, that this bill deals with repeal. Private members' bills have a certain scope by the rules of the House, and trying to amend either other sections of the Criminal Code or other acts may be difficult. It may, in fact, be out of order.

I just wonder if you have any reaction to those concerns.

[Sébastien Joly]

When we consulted our legal counsel, certainly this technical issue of how you would bring about an amendment was raised. From our understanding, and maybe we're wrong, it would be possible for the committee to increase the scope of the bill. If not, is it possible to actually make an amendment to the Criminal Code at a different time?

Again, it would be ideal for us if it was attached to this bill, so there would be a guarantee of ensuring protections for education workers and teachers within the bill.

[Heidi Yetman]

Of course, I'm a teacher, and I'm not a legal—

[The Chair, Liberal, Lena Metlege Diab]

Time's up, but I would like to hear the answer to that.

[Heidi Yetman]

I'm not a legal connoisseur, and I don't know the procedures in legislation, but we are counting on all of you here in the room to help us with that, so we can make sure that students are safe in classes.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We will now go to our second round.

We have Marilyn Gladu, for five minutes.

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

Thank you, Chair.

Thank you to the witnesses for being here.

I come from a family of teachers. My mother was a teacher, and my daughter teaches now on Six Nations. I'm very happy to hear your comments today.

One of the discussions we've had in the testimony we have heard so far is that we have clarified that it's already illegal to abuse a child or do violence to a child. Certainly, the Supreme Court decision, as Mr. Joly mentioned, with their interpretation, added:

the use of force must be sober and reasoned, address actual behaviour and be intended to restrain, control or express symbolic disapproval. They also noted that the child must have the capacity to understand and benefit from the correction, which means that section 43 does not justify force against children under the age of two or those with certain disabilities.... According to the decision, reasonableness further implies that force may not be administered to teenagers, as this can induce aggressive or antisocial behaviour. Moreover, force may not involve objects, such as rulers or belts, and it may not be applied to the head.

I think we've heard from you today that there are not that many complaints being brought forward, because people understand the protections under section 43.

My question, then, is this: Do you think section 43, as written, does provide you needed protection today?

We'll start with Mr. Joly.

[Sébastien Joly]

Yes, it does—as written but also as realigned or modified with the Supreme Court decision from 2004. It is the opinion of our legal experts that if it's repealed completely, without any amendments—again, technically I don't know how to do this, but maybe you know—it would pose a risk. It would change the game when it comes to these kinds of allegations.

As I was saying, section 43 is always considered by the stakeholders involved, by the investigators and whatnot. It's always after the investigation has been completed and the conclusion of the investigation shows the use of reasonable force as per the definition.

Also, it was meant to provide protections or to ensure safety in the school environment. That's where the stakeholders can use their discretion. That's where the police will usually say to the prosecutor that they don't recommend proceeding with charges. The prosecutor will then move ahead and not proceed with charges. That's where it has an impact in 95% of the cases.

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

Thank you.

I'll ask you the same question, Ms. Yetman.

[Heidi Yetman]

Yes, right now it is protecting teachers.

There was a judgment on December 20, 2023, by the Ontario court in R. v. Bender. It was an elementary school teacher who was teaching grade 3. He was teaching a difficult class of students with special needs. Unfortunately, what happened was that he was charged in December 2020, and it took three years before the judgment came out. The conclusion was that his actions were justified under section 43.

So yes, it is doing the job, but as I said before, it was written in 1892. I think the problem with section 43 is “force by way of correction”. That's why our amendment is really precise about safety.

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

Further to that, I think Mr. Garrison is actually correct that we're not allowed to expand the scope of the private member's bill. With that in mind, then, to me, keeping section 43 as it is, knowing that the courts will interpret not just section 43 but also the Supreme Court's judgment upon that, will be important.

Is there anything else you would like to tell us in terms of expanding the scope of whom it covers? We've heard Mr. Housefather on including other people. I heard you clearly say parents and teachers, but you're not opposed.

Is that fair, Mr. Joly?

[Sébastien Joly]

Again, we represent teachers.

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

All right. I have the same comment from Ms. Yetman.

Thank you so much for your answers.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We will now move on to Ms. Dhillon for five minutes.

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

Thank you, Madam Chair.

To our witnesses, thank you for being here today and for the important work you're doing.

Section 43 currently doesn't apply to nurses, child care workers or other professionals who deal with children regularly and who may need to use force to ensure a child's safety. These individuals are not disproportionately sued for using force. We're talking about reasonable versus unreasonable force. Why do you expect that teachers and parents will be unfairly treated if these professionals are not?

Thank you.

[Heidi Yetman]

First of all, I think it's really important to note that since the pandemic, violence in the classroom has gone up. The Elementary Teachers' Federation did a members survey in 2023, a year ago, and 80% of their members said that the number of violent incidents had increased. Teachers will experience upward of 50 instances of harassment or violence over the course of one year.

I also want to mention this. It may be a little bit outside or widening this a bit, but 80% of teachers are women. I think that's important as well, because it means that women are working in very unsafe environments. As Tesa mentioned, we don't have the resources. There's systemic underfunding of education in the provinces. We need more training. We need more resources. Since that doesn't exist, if section 43 disappears, we're going to see, as we've said before, more problems of violence, because teachers will be reminded not to put their hands on children. We'll do more of these evacuations. I'm sure you've heard of these. It's where a child is having dysregulation and we have to evacuate the entire class.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

As my colleague Mr. Garrison has pointed out, this part really falls under provincial jurisdiction. We're talking here about protecting children from unreasonable force.

I'm very concerned as well about day cares. Children of two, three and four years of age cannot express themselves, and they are subjected to abuse like a pinch on the upper arm, a tug to the hair and things like that. It comes in the news, and there are sometimes horrific stories. How do we protect those children who are not able to express themselves? Can you please elaborate on that?

How come there should be an exception in the Criminal Code for the use of force to correct children's behaviour when we don't have such an exemption for any other class of people?

[Sébastien Joly]

Again, the exemption or the amendment we're asking for is for the sole purpose of ensuring a safe environment in the school setting. It's not to allow teachers to use force to correct students.

By the way, if there's a situation where, unjustifiably and not to ensure safety, a teacher, an education worker or an educator in a day care centre uses force to correct a student, it's unlikely that section 43 would protect them currently, with the 2004 realignment by the Supreme Court decision.

Essentially, what we're demanding with the amendment is really to ensure that those protections for the safety of students be maintained or be placed somewhere else in the Criminal Code, because, in the absence of this, all the legal experts' opinion is that we should advise our members not to get involved physically under any circumstances because of the risk of possible allegations and charges.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

As our witness Ms. Yetman has pointed out, most teachers are female. My mother was a teacher, and her four sisters were teachers, so I come from a family of educators.

Can you quickly tell us what tools could be available to protect these female teachers, other than having to change this legislation, which is really to protect children?

Thank you so much.

[Heidi Yetman]

This is going to sound crazy, but we need resources. It's not that crazy, actually. It has been years and years that our school systems have been underfunded.

[The Chair, Liberal, Lena Metlege Diab]

I'm going to have to interrupt now to allow the two remaining members to ask questions.

Mr. Fortin, you have the floor for two and a half minutes.

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

Thank you, Madam Chair.

We know that repealing section 43 could lead to an increase in possible charges against teachers. That is what you told us. However, at our committee, we also studied many Criminal Code provisions regarding certain groups within our society who are overrepresented in the legal system or the child welfare system. I’m wondering what effect repealing section 43 might have on those groups. Let’s consider, for example, indigenous parents or parents from racialized groups, be they from the Black community or other communities.

Mr. Joly, in your opinion, would abolishing section 43 have an effect on these groups? If so, what would it be?

[Sébastien Joly]

I would be hard put to answer that question. However, protections included in section 43 also cover parents. I don’t have statistics for specific communities, but it is possible that—

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

Since I only have two minutes, if you don’t know, allow me to give the floor to Ms. Yetman or Ms. Fiddler.

[Tesa Fiddler]

It's the impact it would have on under-represented groups. I can speak as an Anishinabe person about what I've witnessed and what I've experienced as well. Due to the history and trauma that we've experienced, there's been a lot of family and community breakdown. Systems that have traditionally been in place no longer exist. There's a lot of intergenerational parenting that is happening. For example, my mother is raising her nine-year-old great-granddaughter, because my nieces are struggling with their own mental health and addiction issues.

When there is that intergenerational parenting happening and biological parents might be absent, there is right there the optics of what is considered healthy parenting or healthy family systems. When you think about child welfare and what is an imminent risk, those have been created by western systems. Even though we are doing our best to maintain and preserve family, it isn't happening. But we're doing the best we can.

Indigenous people are only 4% of the population in Canada. However, indigenous people make up 30% to 50% of our jails. It's incredibly disproportionate. We could say the same for Black people as well. It's a very disproportionate ratio. It would definitely have negative consequences.