Mr. Speaker, this is a very interesting and timely debate that has been brought forward by the hon. member for Wanuskewin. Private member's motion No. 341 talks about defending the constitutionality of section 43 of our criminal code and, if necessary, taking the legislative action to reinstate section 43, including invoking the notwithstanding clause of our Canadian Charter of Rights and Freedoms.
I am very supportive of the upholding and the reinforcement, if necessary, of section 43 of our criminal code. I think the member opposite and previous speakers have spoken quite eloquently and have set out before the House the necessity and the background with respect to why we have section 43 in the criminal code. It is there essentially to set very much a standard for the reasonable force that can be used to take corrective measures or to take action when necessary to discipline a child in a situation, whether it be at home or at school.
That section of the criminal code has been in place for a number of years. It has been tested in the courts. It has been examined extensively by courts and by litigators across the country.
I want to thank the hon. member for Wanuskewin for bringing this motion forward.
Unfortunately, I have some difficulty with respect to invoking the notwithstanding clause with respect to this type of criminal code section. That is not to diminish the importance of what the hon. member is seeking to accomplish. I think it is a productive opportunity here in the House to examine the situation, to flesh out this issue further and to look at the issue of discipline, in particular with respect to parents, teachers and community workers, those who are in regular contact with children. It is a very trying time.
It goes without saying that adults are very much in a situation at times where they are forced to make the judgment call to decide whether to take the appropriate physical action, which they must measure, and somehow try to apply a standard of restraint when it comes to physical coercion or restraint of a child. It becomes a very dicey and grey issue. This type of debate is helpful in that regard.
Parents are in a unique position because they know their children best and they know when they have to take that type of extraordinary measure in terms of controlling a child in certain instances. Children, obviously, at times need discipline and parents need the power to invoke this type of reasonable corrective action. Parents know best. They know the unique characteristics of their children and they know the most effective way, for the most part, to raise their child, including discipline in that process.
There is obviously a need to protect the bodily integrity of everyone, and our criminal code does so. It goes without saying that children are more informed about their rights than they have ever been at any time in our history. That is a good thing. The education system teaches children and teaches our citizens generally more about the law than in previous generations. It is very important that Canadians know and understand their legal rights and the obligations which flow from those rights.
Section 43 would help to defend the right of a parent or an adult to intervene in certain circumstances and apply measured, reasonable, restrained physical force. Thus, the issue becomes, is there a necessity to protect that right? Yes, there is. That is what is at the very root of this motion. It is a genuine, sincere attempt to protect and uphold a section of the criminal code that has a very important and productive background and necessity in this country.
That is not to say that there should ever be any indication that this section should be misused or that this section should be construed in some way as to condone or encourage any sort of excessive physical force.
There have been some high profile cases before the courts. The one that comes to mind is a recent case in which an American citizen, in this country, was seen to be using what was perceived, in a parking lot area, to be excessive force in disciplining his daughter. That case resulted in the police intervening and has become somewhat of a cause célèbre in this country.
The courts have been quite measured in examining these situations. They have, in their discretion, looked at the factual circumstances of each and every case. Again, as referred to by the hon. member for Scarborough Southwest, it is very much an individualized situation. In every case before a court of law there is an ample opportunity to flesh out the circumstances, the factual evidence. The crown prosecutor, in conjunction with the police, is to present evidence that would support a charge of assault or a like charge that involved the use of force. Section 43 is very much there as a filter and a sword to protect the person who has been accused of exercising this type of physical intervention.
It is understandable that there is some trepidation. We have all received calls both in our constituency offices and here in Ottawa from concerned citizens every time there is a case before the courts. Every time this situation arises there is a concern that parents and adults, likewise, feel that they will not be permitted to use reasonable force.
The only trepidation I have in the wording of this particular motion is with the reference to the notwithstanding clause.
I have had discussions with the mover of this motion, who gives assurance, and I think it is implicit when we read it carefully, that it is very much not a pre-emptive strike, but it is there in its wording to suggest that if things proceed in the fashion that the hon. member anticipates, there may be the need for the government to intervene.
For that reason I find it difficult to justify the way in which it is presented. That is to say, at this time there is not an epidemic of abuse, where individuals are relying on this section to justify abuse. We are not faced with a situation where there is a great deal of misunderstanding as to what type of force is appropriate.
Obviously, when physical injury results or when force is used in a very inappropriate way, sometimes it is not just the physical abuse that needs to be examined. We obviously know of occasions where a child can be berated, verbally abused, intimidated and scared, and that type of abuse also has to be examined when looking at like situations.
There is an important quote by Morris Manning that I want to put on the record. In his legal commentary, he said:
If our freedom of conscience or religion can be taken away by a law which operates notwithstanding the Charter, if our right to life or liberty can be taken not in accordance with the principles of fundamental justice, what freedom do we have.
He is obviously suggesting that we must tread very lightly when using the notwithstanding clause. Much akin to the idea behind this motion and behind section 43 of the criminal code, we must be very measured and careful before invoking such an extreme measure. It was referred to as the nuclear bomb of our legal system.
To use the notwithstanding clause essentially annihilates precedent. It annihilates the use of the courts to do their job and to exercise discretion and judgment over our laws. It suspends discussion on a legal principle and on a law. We have to be extremely cautious before going down that road. I know the hon. member who moved this motion is aware of that.
This is a very subjective and objective debate when it comes to the appropriateness of physical intervention. I suspect all members in the House feel very strongly about upholding the importance and integrity of section 43 of the criminal code.
For those reasons, I feel it is appropriate that we exhaust all avenues currently within our system and that judicial discretion be respected in each and every case. One would hope that this particular factual circumstance under section 43 will not be struck down by our courts. That is not to anticipate what any superior court or supreme court in the country will do, but at this time I do not feel it is necessary to invoke or at least threaten to invoke the notwithstanding clause.
I again congratulate the hon. member on his initiative in bringing this forward. It is a useful debate and one that may have to be revisited at some time in the near future.