Mr. Speaker, I am honoured to speak to Motion No. 528. I am always honoured to follow the lead of the hon. member for Vancouver Quadra who I think has added, in his very articulate and vastly insightful way, to the debate today.
I am pleased to have an opportunity to address the motion which defends section 43 of the Criminal Code and invokes the notwithstanding clause of the Canadian Charter of Rights and Freedoms when necessary. I suppose that when necessary clause defines the issue to some degree.
Is there a need? Is there a pressing concern that would require this to happen? That in and of itself is something that could be debated for some time. I am not questioning the merits of what the hon. member has done by bringing the issue forward. It is my feeling and the feeling of my party that this debate is useful to clarify and perhaps reinforce section 43, in particular for the sake of many parents and teachers who deal with the challenges of raising and educating today's youth.
Parliament has in its wisdom enacted such a section of the Criminal Code. I would go further and say that it has been consistently upheld by our courts at the provincial supreme court and Supreme Court of Canada levels. Consistently case law suggests that it has been upheld.
There are instances of which hon. members have been made aware or perhaps personally encountered where the degree of force has been brought into question as to how much or how far a parent or person acting in the stead of a parent can go in correcting a misbehaving child or youth.
Again I do not mean to trivialize the issue in any way by saying that this is not a wildfire epidemic which is sweeping the country. I am not aware at least of any issue of spanking taking place throughout the country that has resulted in a major court challenge or in repeated community disruption.
The wording in the section defines the issue, and that is reasonableness and community standard. These words are encompassed in the Criminal Code. They define how far a parent or a person in a parent's place can go in disciplining a child in response to a misbehaviour or perhaps an action taken by a child. I do not feel that section 43 is in any jeopardy at this time.
The hon. member also brought forward certain studies and psychological and methodological evidence which is also helpful in the debate to define just how far a parent can go and the reaction or the response of that child to physical correction.
As well it helps to define the fact that this is not a situation where we are talking about child abuse. I do not believe the line is that grey at the present time. There are instances where quite clearly the corrective methods undertaken are disproportionate and very injurious to a child.
The hon. member referenced the fact that there were instances that one can envision when harsh words and a berating attitude or a barrage of language can be perhaps even more painful and have more deleterious and lasting effects on a child than, for lack of a better word, a simple physical corrective measure where a child is stopped physically, for example, from picking on a younger sibling or partaking in what is deemed to be a dangerous activity; a teacher takes a child firmly by the arm and marches him or her down to the principal's office; or one simply removes something from the child's possession if it poses a danger to himself or herself or another child.
These types of physical corrective measures are envisioned by section 43 of the Criminal Code and certainly the type of measures to which my hon. colleague refers in his remarks. All of that to say that I do not see the line as being that blurred when one applies the reasonableness and the community standard test in place currently in the Criminal Code.
When physical injury results, when marks are left on a child because of the overreaction of a parent or a person in authority, that would cross the line. When that occurs and matters, through the natural course, wind up before the courts, and there is an opportunity for a judge to review the evidence and the circumstances, this section is put to the test.
It is understandable that there is concern about this. However, I would suggest once more that this is not a matter which is in need, at least at this point, of taking what I would suggest in the context of the greater debate would be a disproportionate response, that being the use of the notwithstanding clause.
By invoking the notwithstanding clause, as was referred to by the hon. member opposite from Vancouver Quadra, the pith and the substance of doing that would be tantamount to a parent overreacting and responding in a very disproportionate way and using a far too extreme form of response or violence to what a child has done.
I do not mean to diminish what the hon. member is trying to accomplish, but even the reference of the notwithstanding clause in relation to this section, I suggest with all respect, diminishes the importance of what this section is really intended to do in the context of our Constitution and in the context of the application of it to our criminal law.
We have seen cases that have come forward quite recently, such as the case of the Queen and Sharpe and the Queen and Feeney, in which there is perhaps a need for discussion in the context of what those cases dealt with. When it comes to the protection of children from exploitation through pornography, when it comes to the rules and the laws of search and seizure that empower police officers in pursuit of criminals that have engaged in very violent activity, those are recent examples for which one might envision the invoking of the notwithstanding clause.
For those not intimately familiar with this, what it would do is essentially strike down a judge's decision and delay or put into abeyance the significance of the ruling for a period of five years.
In the greater context, I reiterate with all respect that using this type of constitutional power in the context of this section would be extremely ill-founded and ill-timed.
Turning back to the substantive debate, what is being discussed is the use of corrective proportionate response in the disciplining of a child. It is fair to say that in these very trying and troubling times, for youth who are in need of an early start and proper direction in their lives, there are occasions. Mr. Speaker, you may have been subjected to a spanking at some point in your life, as well as other members present. I am sure that it made an impression, but not the type of impression that would leave a mark on one's physical person. We are talking about the type of impression that leaves a person with the feeling that perhaps they have done something wrong and that they should not engage in that type of activity.
When we talk about this type of physical corrective measure we have to be very prudent in encouraging people to do it on the one hand, but at the same time we do not want to exaggerate the impact this would have on a child.
When we talk about this section of the Criminal Code, we want to be careful not to dismiss the issue of child abuse because that is something that is not sanctioned by section 43 of the Criminal Code. It is there to ensure that children are protected, but that parents and those acting in the place of a parent are permitted in certain very specific instances and factual circumstances to exercise discretion and the implicit responsibility that they have to physically correct a child, and often to do so for the protection of that child.
I am very supportive of the efforts the hon. member has made in bringing this matter to the floor of the House of Commons. I am very pleased to take part in the debate, but I would again suggest that this is not a Criminal Code section that is in jeopardy currently. It is not a Criminal Code section that is in danger at this time of being struck down by any current litigation of which I am aware. The issue itself bears discussion and it will continue to be respected by our judiciary and by those in the country who hope to and who will uphold the laws of the land.