Mr. Speaker, this motion calls on the federal government to, first and foremost, defend the constitutionality of section 43 in the courts. I want to indicate at the outset that the federal government is doing exactly that. We are defending the constitutionality of section 43 in the courts. This matter is in fact still before the courts and, accordingly, it would be inappropriate for me to provide further comment on this specific case.
There has been a general misunderstanding of the purpose and the ambit of section 43. Section 43 provides that a parent, teacher or a person standing in the place of a parent may use force to correct a child, provided that the force used is reasonable in all circumstances. This is what sections 43 says.
Section 43 does not, however, condone or authorize the physical abuse of children. Equally important, it does not shield parents, teachers or caregivers from interference by the state or guarantee their freedom to discipline or correct children in any manner they see fit.
How does section 43 operate? A person who has been charged with the assault of a child under his or her care can raise section 43 as a defence. In other words, section 43 provides a defence to a criminal charge of assault for a limited category of persons in a limited set of circumstances.
Section 43 is a limited defence to a criminal charge because it is only available to an accused who is a parent, teacher or person acting in the place of a parent, and only with respect to a child or pupil under the person's care. It is a limited defence because the force in question must have been administered for the purpose of correction. Force exerted in a fit of rage or in a deliberate attempt to hurt a child will not be justified under section 43.
Finally, it is a limited defence because the force used must have been reasonable in all of the circumstances.
Canadian courts are very accustomed to applying a standard of reasonableness. Courts that are asked to consider a section 43 defence generally assess the reasonableness of the force by considering a number of factors. For example, they consider the nature and severity of the force in question, including any injuries suffered by the child, the child's behaviour or action calling for correction, the age of the child and the history of disciplinary action by the parent, vis-à-vis that child. Further, when determining whether the force used was reasonable, the standard that the courts apply is that of the Canadian community and not the standard or practice of the individual family or school.
To return to the specific issue raised by the motion, the federal government is defending the constitutionality of section 43 on the basis that it reflects a constitutional balance of the interests of children, parents and of Canadian society. However, section 43, interpreted and applied in conformity with the charter, does not condone or authorize child abuse.
It is also important to note that the protection of children from child abuse is not only a priority for the federal government in terms of criminal law reform. Provincial and territorial child protection legislation authorizes state intervention to protect children in need of protection, including to protect children from child abuse. As a result, even if the charges are not laid under the criminal code, child protection authorities can and do intervene under provincial or territorial legislation where parental discipline is inappropriate or excessive.
The motion also calls on the federal government to invoke section 33 of the charter or the notwithstanding clause in the event that section 43 of the criminal code is struck down. In my view, it is inappropriate to consider the invocation of the notwithstanding clause of the charter at this point in time. Invoking section 33 is a serious step that we must not take easily or casually.
If section 43 is ultimately struck down as unconstitutional, I would caution us to allow for a considered review of all of the options open to us to deal with both the criminal law system and the child protection laws before ever contemplating using section 33 of the Canadian Charter of Rights and Freedoms. Invoking section 33 of the charter is a serious matter which should only be considered in exceptional cases and only after all other legal avenues have been exhausted. This is the only responsible choice open to us as members of parliament.