Mr. Speaker, I seconded this motion because I support section 43. I want to discuss this motion and take the approach of a lawyer as opposed to a teacher.
I want to say for those who are following the debate either in Hansard or on television or in other reported media that this is a motion, not a bill. This motion was not deemed to be votable by the subcommittee on private members' business so there will be no vote. Indeed, the speeches this evening will end after one hour of debate and the subject matter will be dropped from the order of debate. Having said that, I think the subject matter is important. I commend the hon. member who is the mover of the motion for bringing it forward, particularly in view of the current legal history.
The motion calls for the federal government to defend the section. As I am sure the Parliamentary Secretary to the Minister of Justice will point out when he gets a chance to speak, the federal government is defending section 43 and did defend section 43 before the Supreme Court of Canada. I want to take a look at the section specifically. We are talking about section 43, but perhaps people do not truly know what it says. It is really very short, so I propose to read it.
I am referring to Martin's Criminal Code , which refers to section 43 of the Criminal Code of Canada. It states:
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.
It is important to note exactly to whom this section applies. It applies to schoolteachers. It applies to parents. It applies to persons standing in the place of a parent. It applies to child and pupil. It does not apply, let us say, to police, coaches or others who might come in contact with children. It applies to those individuals named.
I want to read a brief synopsis of section 43 contained in Martin's Criminal Code .
This section justifies the use of force by certain persons to correct a child or pupil.
Of course “force” is not defined. Some people call this the spanking section, but there are many other kinds of force that may be used in varying degrees that are not spanking. It is important to note that we are talking about the use of force.
It continues:
The persons who may rely upon this section are schoolteachers, parents or those standing in the place of a parent. The child or pupil must be under the care of the person using the force, and the force must be applied for the purpose of correcting the child.
That is critically important. The force must be applied for the purpose of correcting the child. It continues:
Thus, if the child is too young to learn from the correction or is incapable due to mental disability, the use of force will not be justified by s. 43. The force applied cannot exceed what is reasonable in the circumstances...
In determining whether the force used has exceeded what is reasonable under the circumstances, the court must consider both from an objective and subjective standpoint such matters as the nature of the offence calling for correction, the age and character of the child and the likely effect of the punishment on the particular child, the degree of gravity of the punishment, the circumstances under which it is inflicted and the injuries, if any, suffered.
These two citations I have made specifically because to me they indicate how this section is to work. It is a very specific section, designed for very specific people in very specific circumstances. It is designed to be examined on a fact by fact situational basis. To me that is what is important. What may be reasonable use of force by a teacher in one circumstance may not be reasonable use of force by a teacher in another circumstance. It is very important that there be a combination of the objective and subjective tests.
It is also very important for the reasons we heard from the two members who spoke previously, that the use of force in appropriate circumstances in a reasonable manner be continued to be permitted. We heard a couple of the more obvious examples given by the member for Winnipeg—Transcona, in particular where the immediate safety of the child is of concern.
The people who have opposed section 43, in my opinion, have taken worst case fact situations and applied them to tar section 43 with an unnecessarily black brush. The court system is adequately designed to deal with each individual fact situation. If there is an aberrant decision by an aberrant judge, the court of appeal is there to provide guidance in a particular circumstance.
The use of appropriate force in appropriate circumstances has been part of human history since the first child was produced. It seems eminently reasonable that section 43 is there not only for the protection of the child, but also for the protection of those who apply force in reasonable circumstances for the purpose of correction.
Having said that, I really do not want to go on ad infinitum. The section is reasonable. There is no reasonable argument that I can see or accept for the abolition of the section. I think it should be maintained.
I want to say one thing, however, about the use of section 33. I think that the motion stated that if the section were to be found unconstitutional, then we should use section 33. With that I agree. That is a nuclear option that parliament has to control the courts. It should be used very sparingly and very carefully, but it can be used and should be used in appropriate circumstances to demonstrate the supremacy of parliament.