Justice Committee on April 15th, 2024

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

The last two and a half minutes go to Mr. Garrison, please.

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

Thank you very much, Madam Chair.

In the spirit of getting the yes and making sure there's no misunderstanding, I've listened carefully to what you have to say. I believe that both of your organizations are saying that in fact you do support the repeal of the existing provision, but that you need additional protections for teachers if that's going to happen. Is that correct?

[Heidi Yetman]

Absolutely.

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

Then that presents us with a challenge as a committee. I appreciate that you've made suggestions for those changes that need to be added, but I remain concerned, because as Ms. Gladu pointed out, we can't actually expand the scope in a committee. Only the House can do that, and it's very rare that it happens.

However, there are some ways in which we could get to the amendment. The government can, at any time, introduce legislation. If this private member's bill is moving forward, then the government could introduce companion legislation to make the changes you're talking about, or another member could introduce an additional private member's bill, although that process is of course longer.

Ms. Yetman, I don't believe the Canadian Teachers' Federation has had a chance to talk specifically about what kinds of changes you're looking for in other sections of the Criminal Code. I know you've sent us material on this.

[Heidi Yetman]

Our legal counsel has drafted an amendment that would be under section 265, proposed subsection 265(5). However, as I said before, I'm a teacher, not a legislator. I don't know where we go from here.

Yesterday, I was preparing for today and I noticed that New Zealand made an amendment in 2007 to their Crimes Act, which might be something this committee could look at. It had very similar language to Canada's language. It had wording similar to “force by way of correction”, which was changed to something different. It was a repeal and an amendment at the same time. The amendment was about the safety of children. That might be something to look at. That was done in 2007.

Our amendment is in our brief. It talks about “protecting the safety of the child” and “preventing the child from causing bodily or emotional harm to themselves or to other persons.” There is nothing here about corrective force. It's about protecting the child and making sure they're safe.

Hopefully everybody in the committee has received the document. If not, we'll make sure that you do receive that document.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We're going to confirm that the documents were received and that we have the translation of them. They don't get sent out until and unless they're in both official languages.

With that, I just want to remind you that if you want to respond to anything you've heard today, or if you've been asked any questions that you were unable to respond to due to time constraints, we would be happy to receive anything in writing. Unfortunately, we decided our due date is tomorrow at noon. We are going to meet again on Thursday morning to see what the committee comes up with on this legislation.

I thank you again for appearing.

I thank the witnesses for joining us this morning.

I wish you a pleasant week.

We have some witnesses who are appearing in person, and I believe we have one by video conference. We will do the testing to make sure that everything works.

[The Chair, Liberal, Lena Metlege Diab]

Welcome back to the second hour.

We have three witnesses for the second panel.

As individuals, we have Dr. Lisa M. Kelly, associate professor in the faculty of law at Queen's University, and Mr. Marc Levasseur. Representing the Nova Scotia Teachers Union, we have Ryan Lutes, president. He comes from my constituency, Halifax West.

Welcome to all of you.

You have five minutes each to present your opening remarks.

I will signal when you have 30 seconds left. Because there are three witnesses today, I will probably interrupt when the time is up, to allow the members of the committee to have sufficient time to ask questions. If there are any questions that get posed to you that you don't have sufficient time to respond to and you would like to send us a written message, please do so through the clerk's office.

We will begin now with five minutes to Dr. Lisa Kelly, please.

[Dr. Lisa M. Kelly, Associate Professor, Faculty of Law, Queen's University, As an Individual]

Good afternoon.

Thank you for the opportunity to speak with you today.

My research and teaching at Queen's University's faculty of law focus on how the legal system affects young people—as victims and as persons charged with criminal offences—as well as their families and their teachers.

At the outset, I wish to state clearly, as previous witnesses have stated, that I share the goals of the sponsors of this bill: that is, to end the practice of the physical punishment of children and to promote their best care at home and in school.

That said, the question before Parliament is a specific one about the role of the law, and in particular the criminal law, in this area.

I wish to focus on three points in my opening comments: first, the TRC recommendation; second, the potential legal effects of repeal for families and children; and third, the demographics of parents and guardians most likely to be affected by repeal.

As everyone is aware, the TRC, in its sixth call to action, recommended repeal of section 43, and it did so to break with the legal and state systems that facilitated genocidal abuse against indigenous children in residential schools. In weighing repeal today, it's important to recall that section 43 is far narrower than it was historically. As you're aware, the Supreme Court of Canada read in significant limitations in 2004.

One of the potential impacts of repeal today is that it will contribute to a harsh culture of state intervention, including child removal, to which indigenous families and children are disproportionately subjected. In fact, I would argue that expanding criminal liability for parents may undercut recent initiatives to promote indigenous sovereignty over child protection, including the 2019 act, An Act respecting First Nations, Inuit and Métis children, youth and families.

This brings me to my second point, the potential legal effects of repeal. Canada defines assault in section 265 of the code very broadly to include any non-consensual physical contact beyond a de minimis level. How will the situation of repeal change this legal baseline?

Let me give you a brief example. Let's suppose a mother is placing a five-year-old in a car seat and the child keeps kicking at the parent and insisting they want to ride without a car seat. After struggling with the child and receiving several kicks to the chest and the chin, the mother strikes the child twice across the shins and instructs the child not to resist being placed in a car seat now or in the future. What are the potential consequences for the parent and the child if this incident comes to the attention of police, and how might that attention even happen?

The parent could be in a high-conflict divorce or acrimonious family situation, where the other parent will be interested in pursuing this as a criminal matter, or let's imagine this is a racialized family, a family recently arrived in Canada, or a first nations family that, for unrelated reasons, is subject to monitoring by child welfare. In a visit from a child welfare worker, the child will be interviewed separately from the mother—this is standard practice—and asked if the parent ever hits the child. The child might then explain that the mother hit their legs a few days ago getting them into the car.

It's very possible with repeal that at such a point there would be some involvement by police if child welfare workers and others in authority are aware that Parliament has repealed section 43 and such an incident constitutes a criminal assault.

This brings me to my third and final point, who is most likely to be subject to punitive intervention? This intervention may take a range of forms. It may mean at least some contact with police, perhaps a warning but perhaps a charge; perhaps a diversion by the Crown but perhaps also an assault charge that proceeds and to which the parent may ultimately plead guilty. That's statistically by far the most likely outcome when a charge does proceed. The parent may ultimately be given a conditional discharge that allows them to avoid a criminal record if they abide by certain conditions, but they may also be given a conditional sentence to be served in the community for which they will have a criminal record.

I'll wrap up now.

[The Chair, Liberal, Lena Metlege Diab]

You'll have a chance to respond, and you'll probably get many questions.

Thank you very much.

Mr. Levasseur, you have the floor for five minutes.

[Marc Levasseur, As an Individual]

Thank you.

My name is Marc Levasseur. I am Canadian by birth, descended from Western and Indigenous ancestors from the Algonquin and Mi’kmaq nations. As an adult, I was traditionally adopted by an elder of the Atikamekw nation, and I have been living in relation to the Wemotaci community since then.

Among my accomplishments, I hold a master’s degree in theological studies with a concentration in Indigenous studies, and I am in the process of completing a bachelor’s degree in social work. I also worked as a correctional officer with the Correctional Service of Canada, as well as a spiritual and social worker within Indigenous communities.

Since 2017, I’ve been on disability due to the trauma I experienced during my childhood.

Section 43 has existed for 132 years in the Criminal Code with the purpose of protecting Western Christian ideological excesses that, for centuries, asserted that a child is born tainted by sin and must undergo punishment to atone for their faults.

While Western Christianity considers it morally justified to strike children, such a concept did not exist among First Nations. In Atikamekw, a young child is referred to as “awashish,” which means “the little being of light,” in reference to their purity. This is why, for Indigenous children who experienced educational violence in residential schools, the shock was so brutal.

From its inception to today, this section embodies the colonial legacy of educational violence in Canada. My biological parents told me about the educational violence they endured at school from teachers, and my adoptive mother was forced to attend Indigenous residential schools, where she was subjected to the regime of corporal punishment that prevailed in those institutions.

This section has a lot of blood on its hands and is an anachronism completely at odds with current culture and educational philosophies promoted in Canada. The legacy of this section dates back to a time when it was legal, enshrined in the Criminal Code, for men to have the right to use force to reasonably beat their wives, and when it was common to penalize adults with various forms of corporal punishment in prisons, including the use of a wooden paddle and the strap.

These abuses towards adults disappeared from practices and laws in the 1960s and 1970s, but they are still allowed for children. Our society has chosen not to give children the same level of protection as adults. It is time to correct this, because even today, despite the provisions of the 2004 Supreme Court ruling, thousands of children here in Canada are growing up in environments that promote educational violence with complete impunity, because the content and spirit of section 43 align with it.

For my part, since birth, I have faced an environment of systemic educational violence within evangelical Baptist communities. While some Christian groups put an end to the excesses of educational violence, evangelical Baptists, like others, continue today to defend these practices and are among those advocating to maintain and strengthen section 43.

In our families and within the church, we were taught that being hit on the buttocks with a wooden paddle or strap was normal and for our own good. For them, it is a divine mandate, and they believe that one who loves their child must punish them. As a society, we should consider hitting a child’s buttocks as an assault of a psychological, physical and sexual nature. Yet, this act is considered educational and still protected under section 43.

I endured these systemic abuses from my parents and church school staff. For various and trivial reasons, such as turning around in class, at the ages of four, five and six, I received paddle strikes in the church basement. There were about 90 students in this church school.

Receiving violence from people from whom I should have received love, security and kindness led to a breakdown in emotional bonds, attachment difficulties, a toxic view of myself, anger and violence I had to fight and still fight today. As a young adult, I struggled with substance abuse and homicidal ideation. I lived with symptoms of complex post-traumatic stress so intense that I required psychiatric care.

I have been in therapy for 10 years now and take medication every day.

I often dream about what my life could have been had I not gone to a school where violence was used and how I could have contributed to our society, instead of costing society money, given the treatment required for my condition.

[The Chair, Liberal, Lena Metlege Diab]

Mr. Levasseur, I'm sorry, but I have to interrupt you. You will be able to tell us more when you answer questions from committee members.

Thank you very much.

Our third witness is Mr. Lutes, president of the Nova Scotia Teachers Union.

You have five minutes, please.

[Ryan Lutes, President, Nova Scotia Teachers Union]

Thank you, Chair, for the opportunity to speak today.

My name is Ryan Lutes. I'm the president of the Nova Scotia Teachers Union. We represent approximately 10,000 teachers and educational specialists in Nova Scotia's public school system.

I'd like to acknowledge that I live and work on the unceded territory of the Mi'kmaq people.

Teachers are absolutely committed to reconciliation, and we support 100% the Government of Canada's commitment to enact all TRC calls to action. The NSTU is committed to this support, while also being committed to keeping our schools and classrooms safe places.

As such, the NSTU opposes Bill C-273 if it is passed without other amendments to the Criminal Code. This is simply because a repeal without amendment will lead to more unsafe classrooms. Student violence against other students, against themselves and against educators is on the rise. Now more than ever, we need laws in place to help teachers ensure that schools are safe for everyone. It is important that the views of teachers are reflected in your deliberations and decisions. Repealing section 43 is extremely important, but we have to get it right. Teachers on the ground in the classrooms of our country have not been afforded meaningful consultation, and teachers do not support the bill passing unamended.

As the NSTU president, I'm first and foremost a teacher. I'm a high school math teacher, and I can tell you that no teacher wants to physically intervene. As I think Mr. Caputo said, no one gets up in the morning wanting to break students apart, but unfortunately that need is increasing. I personally have been in situations where I've had to physically intervene to restrain students, and without me being able to do that, there may have been a violent assault in the halls of my school.

Unfortunately, this is not a unique situation. Numerous situations arise in the school context that require a teacher to respond. These responses might include a teacher placing their hands on a student's shoulder to guide them away from an altercation or restraining or redirecting a student to protect student safety. Under section 265 of the Criminal Code, these everyday actions could be subject to prosecution. The repeal of section 43 would put a chill on teachers trying to do their jobs. It may cause them to stop from ever intervening in difficult situations, and this will compromise the safety of our schools. The unfortunately reality is that 92% of Nova Scotia's teachers have witnessed violence in their schools and classrooms, and 55% have either been the victim of violence or been threatened with violence.

A school safety amendment would ensure the specific protection of teachers and educational staff within the Criminal Code in situations where reasonable physical intervention is necessary to protect the safety and well-being of our students, teachers and education workers across our country.

The Canadian Teachers' Federation draft language, which the NSTU supports, seeks to amend section 265 of the Criminal Code. The amendments would honour the Truth and Reconciliation Commission's calls to action while also ensuring that teachers can promote safety in our classrooms and schools and protect the safety of students, which I would remind the committee is the scope of this. The scope of this bill is about protecting students, and that's what teachers seek to have amended through this. Again, this is near and dear to our hearts, to protect students. That's what we all want.

It's important to recognize that pursuant to Nova Scotia's Education Act, and likely other acts in other provinces, teachers have the legal duty to protect students and to maintain safe classrooms. In order to do that, we must have protections in the Criminal Code that allow us to use reasonable force only when necessary to ensure that our classrooms are safe. Without a school safety amendment, the NSTU anticipates that there would be an increase in the number of assault charges filed and prosecuted. The NSTU would have to advise Nova Scotia teachers, as a precaution, not to physically intervene in the situations noted above. This would result in more injuries and more severe injuries to students, and it would result in schools being less safe.

One thing that I think has come out here is that teachers need to be able to act reasonably without doing a risk-reward analysis of section 265. We're not lawyers. As a teacher, I need to be able to grab a student who's running out into the street. I need to be able to pull on someone's hand if they're running towards an altercation, and I need to be doing that without weighing the risk of common-law defences or doing some legal analysis in my head. I need to be able to act reasonably in situations, just as a reasonable, loving parent or teacher would, and that's what we're really asking for today.

Thank you for having me here. I look forward to responding to your questions.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

We will now move to our first round of questioning. We will start with six minutes each.

We will begin with Mr. Tako Van Popta.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Madam Chair.

Thank you to all of our witnesses, Mr. Lutes, Mr. Levasseur and Dr. Kelly, for being with us here today and helping us through this very important draft legislation.

Dr. Kelly, I'll start with you. We're talking about possibly repealing section 43 of the Criminal Code, which is the codification of the common-law defence available for teachers and parents to charges of assault against children.

The Supreme Court of Canada weighed in on this issue 20 years ago. The chief justice at that time said this about section 43, which they defended as being constitutional:

The reality is that without Section 43, Canada's broad assault law would criminalize force falling far short of what we think is corporal punishment, like placing an unwilling child in a chair for a five-minute timeout.

Dr. Kelly, we heard from earlier witnesses, including the sponsor of this bill, about horrific stories of children being hit in the face, being hit with sticks, physical abuse. I would like you to comment. Does section 43 protect that kind of behaviour?

[Dr. Lisa M. Kelly]

No, it does not. As you've alluded to, in 2004, the Supreme Court of Canada read in a series of limitations as to what would constitute reasonable correction. When it upheld section 43, it made clear in that decision that, in the case of teachers, corporal punishment of any kind is not included in section 43, only forms of restraint in cases, for instance, of protecting themselves or other students. In the case of parents, the use of instruments, blows or strikes to the head, physical discipline of children under two or teenagers were all read out of the ambit of section 43.

The only slight caveat is that, with respect to, for instance, grabbing a child if they are about to run out onto the street, it's not my view that it would be criminalized if section 43 was repealed. There would still be necessity defences in the case of an immediate action to protect a child, but the example that I gave of a strike, for instance, to the leg of a child resisting in a car seat would be within the ambit of section 265 and would not be captured. However, the more horrendous examples that you gave have indeed been read out.

I have reviewed the case law since the Canadian Foundation case was decided, and we simply do not see courts today upholding the kinds of egregious abuse that they did prior to 2004.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you for that.

If section 43 were to be repealed—in other words, if this private member's bill does pass through Parliament—in your opinion, would the common-law defence kick in again? What would be the message to the public of repealing section 43?

[Dr. Lisa M. Kelly]

The defences that would continue to exist, and they continue to exist right now alongside section 43, are those that exist generally for any types of physical contact with anyone, not specific to children. That would include self-defence, a force that's used in defence of one's self or a third party in a case of imminent danger, and the defence of necessity that I referred to, when you take action in an urgent moment, for instance to prevent someone from running onto the street. Those would remain. However, outside of that, non-consensual touching beyond a de minimis level, beyond a minimal threshold, would be considered assault.

I think proponents of repeal hope that the message will be that all forms of physical discipline are wrong and unlawful, but I think we also have to be attuned to the message that will be sent to police, child welfare workers and prosecutors, which will be that—like my example of striking the child's leg in the car seat—all of those forms of contact are assault, and for particular families, especially those most marginalized, I would expect to see further cases of that kind that actually go through the system.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

I have one quick question. We had witnesses at our last meeting who pointed out that Parliament never responded to the 2004 decision of the Supreme Court of Canada, and that perhaps it is time to expand or further define the section 43 defence by codifying what the Supreme Court said. For example, it clarified that force must be sober and reasoned, and must not be applied to a child under two or over 13. Those are among the items that were listed in the Supreme Court of Canada decision.

What would you say about that? Would it be a good idea to have, for example, a section 43.1 that explains that?

[The Chair, Liberal, Lena Metlege Diab]

We're going to have to wait for that response in order to let other members have their turn. I'm sorry about that.

Madame Brière, please go ahead for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Thank you to all of our witnesses.

Mr. Levasseur, would you like to take a moment to finish your opening presentation?

[Marc Levasseur]

Actually, I was finished.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Okay.

Why is it so important for you to take a stand today?

[Marc Levasseur]

There are three things I would like to say.

First of all, I was subjected to violence. Despite all the efforts I have made in my life, I am still scarred on the inside and this has had profound consequences. I have been diagnosed with mental health issues and my life is limited. I take medication every day just to control the debilitating levels of adrenalin and cortisol in my body. However, I don't think I'm a person who lacks intelligence or abilities. I could have been a good citizen and contributed to society. Instead, I have been incapacitated since 2017 and I do not know to what extent I will be able to recover.

To illustrate what section 43 means, I have brought an exact replica of the paddle that was used to beat us at the church-run school. That was proven in court. This paddle is the symbol of what section 43 meant from 1892 to 2004. I understand that the Supreme Court issued a clarification on this section in 2004, but that is indeed what section 43 was designed for. This wooden paddle is the exact symbol of what this section represents. I know that limits were set in 2004 by the Supreme Court, but that does not change the fact that groups of Christians, such as evangelical Baptists, among whom I was raised, used this object until 2004. Now they recommend using your hand. They promote this practice, they provide training and, for religious and ideological reasons, they still tell parents that if they love their children, they should be hitting them.

Personally, I find it absurd that an adult man has the right to spank his three, four, five or six‑year‑old daughter nicely and reasonably, regardless of age. If an adult did this to someone else without their consent, it would be deemed sexual assault, but a man can reasonably strike his 11‑year‑old daughter's buttocks. This is an aberration.

As long as section 43 is in force, these religious groups will be able to continue this practice based on the same ideological grounds, as they have been doing since colonization. They can still use the church pulpit to tell parents that they have to punish their children and hit them, using all kinds of biblical verses as a justification.

That legacy has also had an impact on first nations, as you know. It's not part of first nations culture. The word “awashish”, which means “little being of light”, stands in stark contrast to the Augustine doctrine of western Christianity, which says that the child is born in sinfulness and that it is morally justified for a parent to strike his or her child. That's not the case in aboriginal culture.

I've heard people ask whether repealing section 43 could lead to possible convictions for parents, to which I would say that at some point, the cycle has to be broken. The cycle of educational violence in Canada has been enshrined in law for 132 years. At some point, we have to break that cycle. We're at a stage in society where fewer and fewer parents are doing this. It's becoming less and less customary and less and less accepted. The colonial legacy of this section of the act must end.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

You heard the various comments made by the other witnesses. You may also have heard those of the witnesses who preceded you in the first hour of the meeting. What is your reaction?

In particular, Ms. Kelly told us that repealing section 43 of the Criminal Code could have unwanted effects. For example, when a couple divorces, one of the two spouses could claim that the other used corporal punishment.

[Marc Levasseur]

First of all, I would say that it is a chicken-and-egg situation, where we try to determine which of the two comes first. If the right to use corporal punishment were removed, over time, children would be raised in environments that are less and less violent and would be less likely to engage in such behaviours as adults.

Furthermore, I deplore the lack of consideration for the entire social intervention and child welfare community. I'm pursuing a degree in social work. I recently spoke with one of my professors who worked as an evaluator for more than a decade for social services in Quebec. He said that, at present, more than 80% of parents from whom children are taken are not subject to any criminal charges. And yet these are children whose development has been proven to be compromised because of the corporal punishment they suffer, which leaves scars that will stay with them for the rest of their lives. Currently, these parents are getting off scot-free.