Evidence of meeting #103 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was monday.
A recording is available from Parliament.
Counsel, Criminal Law Policy Section, Department of Justice
As far as I know, no.
Bloc
Senior Counsel, Criminal Law Policy Section, Department of Justice
We'd have to take a look and see if there are any such examples in the specific case of indigenous residential schools. We might find some if we look.
Having said that, I would encourage you as well to look at the examples that Judge Arbour cited in dissent in the Canadian Foundation for Children, Youth and the Law case. She explained how section 43 had previously been applied in situations where we would now consider that excessive force had been used and where section 43 could not apply. Since that judgment was rendered, such acts, in situations as extreme as those we've heard, have clearly constituted excessive force, and section 43 has not applied. Those cases now result in assault charges and guilty verdicts.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
As I understand it, Bill C-273 would repeal section 43 for fear that it might permit violence that has never previously been allowed. In fact, the Supreme Court has previously held that section 43 did not permit violence such as that committed in these dramatic cases from the dark history of Canada. I'm talking here about violence committed in schools against both indigenous and other persons, although call to action number 6, in particular, concerns indigenous persons.
The purpose of Bill C‑273 is to repeal section 43, but, and I apologize for speaking bluntly, it would be pointless for us to do so because, at any event, what we fear may occur isn't even possible, from what I can understand. What's more, that would then leave persons who exercise parental authority in a situation where, based on your testimony, they would have to offset the absence of section 43 by using common law defences or other sections of the Criminal Code. Once interpreted, those sections could offset the absence resulting from the repealing of section 43. That's roughly the case, isn't it?
Counsel, Criminal Law Policy Section, Department of Justice
You're actually referring to a very broad range of acts. Here we're focusing on the most serious situations and the most obvious cases of violence and excessive frustration.
However, we also see that section 43 is still applied to acts that, as the Supreme Court has correctly held, are insignificant or transitory. Consequently, at this other end of the spectrum, section 43 is still applied in order to acquit persons—teachers, professors or other persons standing in the place of a parent—in cases where their acts weren't motivated by anger and they acted as they did in order to discipline the child, didn't use objects, didn't aim for the child's head and so on.
In fact, what's apparent from the case law is a fair application of section 43 to acts objectively less serious than those committed in the examples you mentioned.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I understand that both of you are employed by the Department of Justice and that you can't offer me any political opinions. However, how much can you tell me about the benefit of repealing section 43? Do you think it's a problem? I can understand that it may have been a problem in 1920 or 1930, but is that still the case today, in 2024?
Counsel, Criminal Law Policy Section, Department of Justice
I will obviously be offering no legal advice this morning. However, I can tell you about what we're hearing in the various tribunals.
First of all, there's the Truth and Reconciliation Commission of Canada, which we're discussing today. It's one of the tribunals.
The UN Committee on the Rights of the Child has also issued numerous recommendations on the subject over the years. That committee requested that Canada repeal section 43 of the Criminal Code in 1995, 2003, 2012 and, more recently, 2022, I believe.
In addition, many papers and considerable research in the social and medical fields indicate that corporal punishment has a harmful effect on children's cognitive and emotional development.
So there are collateral factors that also support the repealing of section 43.
I don't know whether my colleague would like to add anything.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I also want to hear what Mr. Villetorte has to say on this, but, before that, I want to be sure we understand each other.
You referred to the United Nations and other states, and you mentioned corporal punishment. The checks I've done reveal the same thing. What we're aiming to abolish is corporal punishment, the act of striking a child because he or she hasn't been good. As for the reasonable use of force to control a child, however, nowhere do I see that prohibited, except here, perhaps, and that's why we're now having this discussion on section 43. That being said, we all agree that corporal punishment is an obsolete practice. It may have been okay a century ago, but no longer. If we confuse the two notions, that is to say corporal punishment and the reasonable use of force, we may find it hard to separate the wheat from the chaff. So we have to draw that distinction.
In addition to corporal punishment, does the United Nations prohibit or recommend prohibition of the use of force to control a child? I don't think that's the case, but I'm going to listen to what you have to say.
Counsel, Criminal Law Policy Section, Department of Justice
The United Nations is also considering section 43. Despite the way the Supreme Court construed it in 2004, as we know, and even though the UN has spoken on the subject, the fact remains that this section refers to corporal punishment. There is of course the somewhat separate aspect that you're referring to: the use of force for other reasons. However, when force is used to punish a child for bad behaviour and that force causes pain or discomfort, we are now on the corporal punishment spectrum.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
The United Nations is basically telling us we have to eliminate corporal punishment, isn't it?
Counsel, Criminal Law Policy Section, Department of Justice
Yes, that's correct.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
In that connection, the amendment that the Bloc Québécois moved and that was negatived would have met the UN's demands. And those demands are based on good old common sense, if you'll allow me to use an expression that's quite popular these days. We want to prohibit corporal punishment because that's obviously right, but the reasonable use of force isn't the same thing.
Mr. Villetorte, would you like to answer that question as well?
Senior Counsel, Criminal Law Policy Section, Department of Justice
No, I agree with my colleague and have nothing to add.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
All right.
My next question is for both of you.
We're in a situation where the bill will probably be adopted, for numerical reasons. The Liberal and NDP members of this committee decided to join forces in support of Bill C-273 and told us that the Minister of Justice would be introducing something to reassure us.
What do you think we can expect? How can the minister bring back the dead, or salvage something from the wreckage? Where in the Criminal Code could we insert a provision to put the pieces back together—that's perhaps the appropriate expression—by re‑establishing the fact that it's legitimate for persons who exercise parental authority to make reasonable use of force to control children in the context of their upbringing? Could we do that? Do you have an idea how?
Senior Counsel, Criminal Law Policy Section, Department of Justice
Mr. Fortin, I can't speak to that subject. As for what the limits of the changes that should be considered might be, how they could be made and when that would be done, those are questions that I think should be put to the minister.
Generally speaking, however, section 43 is situated in the part of the Criminal Code where certain defences are enumerated. If that defence doesn't appear in section 43, I suppose we can try applying the sections dealing with assault. However, I don't want to say anything more than that.
Rhéal Fortin Bloc Rivière-du-Nord, QC
I imagine it's pointless to ask you whether you're optimistic.
Senior Counsel, Criminal Law Policy Section, Department of Justice
We can't answer that question.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
All right.
I have no further questions, Madam Chair.
Thank you.
Liberal
Conservative
Rob Moore Conservative Fundy Royal, NB
Just quickly, Madam Chair, those were very interesting questions from Mr. Fortin.
I wouldn't want people to be left with any illusion about this. On the common-law defences sometimes referred to by some witnesses, it's almost like, “Don't worry; if we take out section 43, there are other common-law defences and other defences in the Criminal Code.” An even bigger worry is statements like, “Don't worry, we're going to bring in some new amendments to the Criminal Code at some future point.”
Those common-law defences and other possible defences that are in the code were there in 2004 when the Supreme Court ruled that removing section 43 “risks ruining lives and breaking up families—a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.”
Therefore, any suggestion that there are other defences in the code that, should we recklessly remove section 43, would somehow pick up the slack is refuted by the Supreme Court itself, which highlighted in the majority decision the very high risk to families and teachers of removing section 43.
I just wanted to point that out because, to my knowledge, there have been no new defences added to the code that would somehow apply and that didn't exist prior to that Supreme Court decision.
Liberal
The Chair Liberal Lena Metlege Diab
I believe that exhausts the list of members who wish to speak on this. Is that correct?
Shall CPC-1 carry?
(Amendment negatived: nays 6; yeas 5 [See Minutes of Proceedings])
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair. I don't know when it would be possible to do so, but I have a question for my colleagues here present. May I ask it now?
Liberal
The Chair Liberal Lena Metlege Diab
I believe so. Well, that depends on your question, but I'll let you speak.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Considering the answers I've just received from the witnesses, I'd like to hear from the Minister of Justice on the subject. We're preparing to make what I think will be a difficult a decision. We're told that the minister is working on something that should reassure us. I hope he is, and I want nothing more than to be reassured. I want to vote, as does everyone who's in favour of this, but I don't feel I can do so right now.
Could we ask the Minister of Justice to come and meet with the committee for 30 to 45 minutes at our next meeting, before we vote on Bill C-273?
At this stage, the minister's intentions are a decisive factor in our vote on Bill C‑273. The bill concerns one part of the problem, whereas we're told that what the minister is preparing to do concerns the essence of what section 43 protects and what we wish to protect. The committee might vote unanimously if the minister came and explained to us what he's working on.
I don't know if that's possible, but that's my proposal. I propose that we suspend the vote until our next meeting and that the minister come and meet with us for half an hour at the start of the meeting to explain to us what he's working on and to attempt, if possible, to reconcile us all.