Mr. Speaker, the government has no difficulty with a great deal of the hon. member for Wanuskewin's address. We do have difficulty with the introduction and the tail of his motion of a subsidiary proposal of constitutional change. That is something I will address a little later.
In relation to section 43 of the Criminal Code, it is very clear that Canadian criminal law does not condone or authorize the abuse of children. Section 43 in its context is merely a limited defence to a charge of assault. There are several key points which we should emphasize. It only applies to a parent, teacher or person acting in the place of a parent and only in respect to a pupil or child under that person's care. The person is only permitted to use this defence if force was used for the purpose of correction. A person who uses force in a fit of rage or in order to hurt a child cannot claim section 43 as a defence. Finally, on the issue of proportionality, the force used must be reasonable in the circumstances.
A court asked to consider applying section 43 in any given case would look at the nature of the child's behaviour or action calling for correction, as well as the age of the child, the severity of the punishment, including any injuries suffered by the child.
When determining whether the force used is reasonable the standard is the community standard of reasonableness. There is a warning that if one goes beyond these limits one may find oneself before a criminal court, and in appropriate cases criminal prosecution will be pursued.
It is on the more general issue that we felt we should add some comments to what the hon. member for Wanuskewin said. Lawmaking in Canada follows Jeremy Benthan's euphemism that law is not made by judge alone; it is made by judge and company. There is a continuum in the law making process. Judges, university law schools, law reviews and the legal profession have put in their criticisms. To a very considerable extent our courts have developed a highly nuanced relationship with the rest of the legal company. Courts very rarely say tout court, that is out, that is illegal. They offer suggestions for changes and modifications and the sensible response of a ministry of justice is to consider these, to take them into account and to come back afresh.
This is ordinary legislation. It is not constitutional law. It can be changed, as can any court decision on it, by subsequent legislation if parliament thinks so fit. This is in fact a fairly normal operation with criminal law today.
The legal company involved in monitoring the Criminal Code is very large and very well informed. It has contributed significantly to the progressive evolution of our criminal law.
On the notwithstanding clause I should express the reservations which I advanced in an earlier debate concerning the B.C. decision, the intermediate court decision in the child pornography case.
First, there seems to be a certain misunderstanding of the history and the nature of the notwithstanding clause. Perhaps this is understandable if we consider that the premiers who insisted on putting it into the charter of rights may again be said not to have been fully aware of the constitutional implications of what they were dealing with. There were not very many constitutional scholars among them.
As it stands, the notwithstanding clause is a prior issue. It is addressed to a government introducing new legislation. One can put it in there if one wishes, but Mr. Trudeau said that it would be a tragedy if any federal parliament decided to use the notwithstanding clause in that way.
As the House knows, the only significant use of it has been in a fit of haste, the reaction of the premier of Quebec toward what he felt was the way the gang of eight premiers behaved in relation to the adoption of Constitution Act, 1982, and the charter of rights. We would regard it as a regrettable step backward if the federal government were to use the notwithstanding clause. There are other ways.
This is not the United States Supreme Court where there is an unbridgable gap or barrier between the courts and Congress, and where one has to get a constitutional amendment, essentially, to overturn a judicial decision. Hon. members will be aware that when the United States court outlawed income taxation on constitutional grounds it took a constitutional amendment to override that.
Our situation is different and, in relation to the criminal law, if parliament should think that the court has misconstrued the careful balance, the pragmatic balance that it has made in relation to section 43, it is open to parliament to make amendment. It is open for the legal community as a whole to offer the amendments.
In that context we would reaffirm that the notwithstanding clause is, and I think this was the view of Mr. Trudeau, a constitutional aberration. I would reaffirm that it is wrong to use it, as has been suggested with very little care or thought, as a method of appeal from a judgment of an intermediate court as was proposed in relation to the British Columbia judgment. The appeal process must go its way.
This legislature, this parliament, which is a vestigial court in its own right by the way, is bound by doctrines of comity and mutual respect to co-ordinate institutions of government. It would be quite inappropriate for this court to attempt to meddle with a decision that is being appealed. It would be discourteous. It would be, in a very large sense, unconstitutional.
I would suggest to the hon. member, who is very thoughtful and informed in this area, that we should concentrate on the substance of the bill. We believe section 43 will withstand challenge. The government is committed to defending it in the courts. If there are judicial decisions cutting down its scope, we will study them with care and the proper respect due to the co-ordinate authority and we will bring our suggestions to the House.
I thank the hon. member again for his intervention. On the substance of his remarks on criminal law, the government finds it co-ordinates very much with what we have been suggesting in relation to this bill. On the larger question I would hope that on reflection he would agree. We understand the sentiments he is expressing, but the notwithstanding clause is not the way.