Justice Committee on May 2nd, 2024

[Matthias Villetorte, Senior Counsel, Criminal Law Policy Section, Department of Justice]

With your permission, I'd like to add something. The purpose of the report is essentially to examine the use of corporal punishment in the residential schools, but also more broadly. Section 43 actually normalizes the use of violence in the form of corporal punishment, which has an impact. That's what's being condemned here. Call to action number 6 focuses on that, at least as I understand it.

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

I'd like you to tell me the exact period we're concerned with. We're talking about physical and sexual violence; I understand that. However, you referred to incidents that occurred in the past and were quite widespread. So I imagine we're talking about incidents that occurred at any time from 1867, when Canada was founded, to the present, in 2024, or rather until the report was released.

In what year was the report released?

[Isabelle Desharnais]

It was 2015.

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

So as I understand it, we're talking about physical and sexual abuse suffered by indigenous children at the schools from 1867 to 2015. Is that correct?

[Isabelle Desharnais]

Yes. We're talking about the abuse that was inflicted on indigenous children by teachers and guardians at the residential schools.

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

Does the Truth and Reconciliation Commission's report concern anything else?

[Isabelle Desharnais]

Call to action number 6 may be understood as a call for the government to repeal section 43 of the Criminal Code because it permits corporal punishment, as my colleague said, and such punishment is still permitted in schools and elsewhere as a result of the Supreme Court judgment in Canadian Foundation for Children, Youth and the Law.

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

You may not be able to answer my next question, and I'll understand if you can't. I don't know how closely you followed the proceedings and reports, but was there any indication that physical and sexual violence was committed against children in those schools across Canada, in a broad and widespread manner, or are we talking specifically and solely about physical and sexual violence committed against indigenous children at the residential schools?

I don't mean to downplay the situation; I obviously consider it serious and unacceptable. I just want to be sure I understand what we're talking about.

[Isabelle Desharnais]

The report of the Truth and Reconciliation Commission solely concerns indigenous children at the residential schools. The issue wasn't explored more broadly.

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

All right, thank you.

Now I'm going to ask another question.

Both you and I have listened to the debate that we've had on this matter in the past two days. Our Liberal Party colleague told us that the minister will be working hard to table a bill to correct the deficiencies of Bill C-273 by restoring some power to persons who exercise parental authority so they can make reasonable use of force in the control and upbringing of children. I imagine there are various ways to do that.

As you can see, the idea of repealing section 43 is a concern for the moment. Parents and teachers fear they may be put in the somewhat awkward position of not really knowing what will happen to them. I would like to try to clarify that with you if I may.

First of all, when we refer to a person who exercises parental authority, we're talking about a teacher or a parent. If a teacher or parent intervenes in a fight between two children, and, obviously, uses force to separate them, could that person be subject to criminal charges?

[Matthias Villetorte]

Since the offence of assault is quite broadly defined, that situation could definitely result in criminal assault charges. Of course, that would depend on the facts of the matter. It would have to be determined what had actually happened and whether the individual had simply tried to separate two quarrelling children. The decision to bring such charges would theoretically be left to the crown attorney. Authorities could also proceed differently in other cases, through disciplinary measures, for example. However, a teacher in that situation could definitely face criminal charges.

Now to answer your question, I can't tell you whether a teacher in that situation would necessarily be convicted if section 43 were repealed. As I told you, that would depend on different facts, and they vary from case to case. So I won't venture an opinion on that point.

However, as I said in my testimony before the committee on Monday, common law defences could also be used. De minimis and the defence of necessity are two defences that were mentioned in the Supreme Court judgment in Canadian Foundation for Children, Youth and the Law. There's also the defence of implied consent. Since these defences are available, I can't tell you with any certainty whether the teacher would be convicted in all cases in circumstances such as those you mentioned.

Section 43 would of course apply, but, as Judge Arbour held in the Supreme Court's judgment in Canadian Foundation for Children, Youth and the Law, the common law defences I just mentioned could be developed.

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

Let's suppose that a teacher wants to expel an unruly child from the classroom, that the child refuses to leave and that the teacher takes the child by the arm and physically removes him or her from the classroom. If section 43 were repealed, could that teacher be charged criminally?

[Matthias Villetorte]

My answer will be virtually the same, Mr. Fortin: It will depend on the facts. I won't repeat myself, but the situation will be almost the same.

You mentioned persons who exercise parental authority. That's a term that currently isn't used in section 43. I'm a civil lawyer myself, from the Barreau du Québec, so I can tell you that it's a term specific to Quebec. There are also other descriptions. However, I understand what you're saying. You're referring to situations in which certain aspects of parental authority fall to the teacher, in monitoring and protecting children, for example. Absent the defence provided for in section 45, certain common law defences could be developed and applied in certain cases, depending on the facts.

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

So you could take some other defence and substitute it for the one currently available under section 43. Is that a correct understanding, Mr. Villetorte?

[Matthias Villetorte]

I'll answer that, and then my colleague may want to clarify a few points. I can see she wants to speak.

I would say you're essentially right in that section 43 provides a defence in a situation where a parent or teacher, in certain circumstances, makes a reasonable use of force against a child under his or her responsibility. Consequently, in certain circumstances, there could indeed be some similarities with common law defences.

[Isabelle Desharnais]

I'd just like to add that what we're seeing in judgments involving the application of section 43 across the country are alternative grounds. In other words, section 43 will be used as a main defence. If that doesn't work, a party may then consider that the de minimis defence may apply in the circumstances. There's also the lawful defence, under section 34, which may apply in a case in which an individual is protecting a child involved in an altercation with another child.

What we're seeing is really a kind of escalator defence, in which section 43 is, in a way, the first step, the main defence. If section 43 can't be argued, there are other means such as provincial statutes and school services regulations. So defences can be viewed as constituting a kind of escalator, as it were.

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

If I correctly understand what you two are saying, section 43 covers all those situations, and one would try to compensate for the absence of section 43 by relying on other rules in effect in the Criminal Code or common law. The principle of section 43 would thus be upheld, since the protection it's designed to grant in certain situations would still be provided by other sections. Is that what you're telling us?

[Matthias Villetorte]

Yes, one could rely on other sections or common law defences. However, we can't answer your question in an absolute manner given the existence of section 43.

In a way, this is the point that Judge Arbour made in Canadian Foundation for Children, Youth and the Law. Other defences might apply, but, since section 43 exists, it's hard to know how far it would actually be read down. As my colleague explained, this is an escalator defence: If section 43 doesn't work, you look for other defences. However, since there's been little development in the case law, it's hard to know to what extent other defences might apply. It's relatively clear in the case of the de minimis principle, for which there's a test. The same is true of the necessity principle. In addition, as I said, the implied consent defence, which is used in common law, could apply in certain cases, but that would require further case law developments.

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

I have a lot more situations I could submit to you, but I don't want to extend the debate needlessly. I imagine your answer would be the same in the case of a teacher getting an unruly student to sit down in his seat.

Ultimately, every physical act by a person exercising parental authority, whether it be a teacher, parent or guardian, will be subject to the same principles as those we're now discussing. Is that correct?

[Isabelle Desharnais]

Yes, that's it.

In addition to that, there are the contradictory versions and factors that will be submitted to the court. For example, one witness may say he or she barely grazed the student's shoulder in removing the student from the classroom, whereas other witnesses will say that the student was callously escorted from the room in a fit of anger. Other means, in addition to the possible defences, may be employed to apply the act more fairly or to interpret the use of force against a child more correctly.

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

In other words, Ms. Desharnais, a teacher or parent who would angrily try to stop a fight between children or to remove a child from a room using greater force than necessary wouldn't be protected by section 43. Is that a correct understanding?

[Isabelle Desharnais]

Yes, that's it. That's what the Supreme Court said in Canadian Foundation for Children, Youth and the Law: Outbursts of anger and frustration and excessive force are among the things that are excluded from the application of section 43.

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

I just described the example of a teacher who had acted with violence against one of two quarrelling students in order to separate them or to remove one from the room. Are there any case law examples where a court has recognized that section 43 afforded protection in situations where similar excessive acts, driven by violence or anger, had been observed?

[Isabelle Desharnais]

No, there are no similar cases where the defence provided under section 43 was selected and applied.

However, there have been situations in which the defence claimed that the force used wasn't that excessive. I can even use the example that you cited and that occurred in the Ontario Court of Justice in December 2023. It was a case of contradictory testimony. Some witnesses claimed that the child had been aggressively grasped by the wrists, that they had seen a wave of frustration cross the accused's face and that he seemed to be angry. Other witnesses, including the accused, claimed he had acted appropriately and properly.

I may not have seen all the judgments, particularly since many of them aren't written down. However, in all of the ones I've seen, anger and frustration levels never exceeded the limit prescribed by section 43.

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

First you told me that Bill C-273 was based on the report of the Truth and Reconciliation Commission. That report, and particularly call to action number 6, concerned situations at indigenous residential schools. You explained that to me, and I understand it. The concern is that section 43 will normalize—and I'm using the expression you employed—cases of violence against indigenous children.

No one doubts this has happened; that's not my point. However, I'd like to know if there are any case law examples of courts that, relying on what's permitted under section 43, found that it was proper and acceptable for a teacher or a person exercising some sort of authority at a school attended by indigenous children to act in a physically or sexually violent manner toward them. Are there any examples where those kinds of acts were held to be acceptable as a result of the existence of section 43?