moved:
That, in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts and should invoke the notwithstanding clause of the Charter of Rights and Freedoms if necessary.
Mr. Speaker, it is a real pleasure to speak to Motion No. 528, a motion that would protect parents and their children from state intrusion.
The motion says that in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts. If the government does that, then all is fine and well and we may carry the day with that. It should also be prepared to invoke the notwithstanding clause of the charter of rights and freedoms if necessary. We believe that vigorous defence of section 43 of the Criminal Code in the courts would not even require that.
Under current law parents are allowed to use physical correction to discipline their children, as long as it is not abusive and is reasonable under the circumstances. The relevant statute is section 43 of the Criminal Code which reads as follows:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
Prior to the enactment of this section of the code there was no legislation placing limits on the use of physical correction, nor were there any government agencies to protect children from abuse.
It was precisely to protect children from abuse that section 43 of the Criminal Code was passed into law. Now thanks to section 43, parents cannot physically abuse their children in the name of discipline. As long as the police and the courts do their jobs, child abusers will be prosecuted under the law. In my view they ought to be, to the very full extent of the law and right up to the supreme court if necessary.
It is very ironic therefore that some people who want to remove section 43 from the Criminal Code argue that it only protects parents' rights when in fact parliament's original intent in framing section 43 was to protect children. These so-called child advocates have totally missed the point. They have missed the wise intention of parliament in giving us this part of the Criminal Code.
For that reason section 43 strikes that necessary balance between the rights of parents and the rights of children. On the one hand, parents must have the freedom to fulfil their responsibility to their children and to society to raise their children to be moral and decent people who respect others. On the other hand, children have the right to be free from physical abuse and bodily harm.
Section 43 strikes that appropriate balance. It is a good law that was well conceived, which has served its purpose well and continues to serve us well today. That is why I find it very disconcerting that some children's rights advocates want to see section 43 declared by the courts to be in violation of the charter of rights and freedoms.
This past fall a group which was thrown together very quickly called Justice for Children and Youth submitted an application to the Ontario court, general division asking the court to declare section 43 to be in violation of the charter and therefore unconstitutional. This case will be heard sometime in the coming months. If this group succeeds in having section 43 struck down, the results would be absurd and totally unacceptable in our country.
First of all many good and loving parents would be made into criminals overnight and could be charged under the Criminal Code. That would be a disgrace to our judicial system. The public gets frustrated enough when they hear about bizarre court rulings as we have had in Saskatchewan or B.C. or elsewhere, rulings that pose a threat to their freedoms and the well-being of their families.
If section 43 of the Criminal Code were to be struck down, the massive intrusion of the state into the private sphere that would result boggles the mind. Trudeau said that the state has no business being in the bedrooms of the nation, but anyone who removes section 43 will be moving the state right into the nation's family rooms. That would be tragic. The state makes a lousy parent and the state should not presume to tell parents how best to shape the moral character of their children as long as abuse is not involved.
That is why I have introduced this motion calling on the government to defend section 43 of the Criminal Code in the courts and to invoke the notwithstanding clause of the charter of rights and freedoms if necessary. We believe that would only be a last resort. If it does this vigorous defence of section 43 in the courts we will prevail.
The aim of this motion is to enable caring non-abusive parents to do the best job possible of raising their children to be responsible well-adjusted individuals and members of society.
Section 43 actually protects the rights of parents to raise their children in accordance with their moral and religious beliefs about effective child rearing. It protects the rights of parents to raise their children in accordance with their personal knowledge of the unique characteristics of their children. It also protects the rights of parents to raise their children in accordance with their understanding of how best to discipline children and to gain from their parents, to gain from other training and to gain from their own experiences during childhood.
The motion before us today accomplishes this goal in two ways. First, it requires that the government defend section 43 of the Criminal Code in the courts, to defend it vigorously and to use the best law resources in that defence. Second, in the event that one or more court rulings strikes down section 43, then the motion would commit the government to invoke the notwithstanding clause of the charter of rights and freedoms. Notwithstanding a court's decision to strike down the law, section 43 would then remain the law of the land.
After the Shaw decision in British Columbia on the right to have child pornography, I think that parliamentarians more than ever understand and realize that parliament has an obligation to protect Canadians from nonsensical judicial rulings.
While parenting has always been a challenge, raising children to be responsible and law-abiding members of society is more of a challenge today than ever before. The surge in violence during past decades testifies to this. The recent shootings in high schools in the U.S. and Canada have horrified all of us. Now is not the time to handcuff parents in their role as moral guides.
For all of these reasons, I have brought forward this initiative. I will read it into the record again:
That, in the opinion of this House, the government should defend section 43 of the Criminal Code in the courts and should invoke the notwithstanding clause of the Charter of Rights and Freedoms if necessary.
I seek the unanimous consent of the House to have the motion before us deemed adopted and passed at this time.