Mr. Speaker, I am pleased to rise today to discuss and talk about Bill C-329, which proposes that section 43 of the criminal code be repealed.
I want to say that as a government we agree with what the member just said a minute ago, that is, we on this side of the House, like she articulated, consider our children to be paramount in terms of their protection, safety and security. That has certainly been the agenda of our government because, after all, they are our most precious resource, not only in our family units but for the nation as a whole.
As hon. members know, section 43 is currently the subject of a charter challenge. On July 5, 2000, the Ontario Superior Court of Justice dismissed an application brought by the Canadian Foundation for Children, Youth and the Law seeking a declaration that section 43 is unconstitutional. In its July 2000 decision the court upheld section 43 and held that this provision reflects a reasonable balance of the interests of children, parents, teachers and Canadian society in accordance with the charter. This judgment was appealed to the Ontario Court of Appeal. The appeal was heard from September 10 to 12, 2001, and judgment was reserved.
Although it would be inappropriate for me to speak in any detail about a case that is currently before the court in Ontario, I would like, however, to discuss a few important points. I think they have merit.
I would like to begin by confirming the government's commitment, as I said at the outset, to promoting and protecting the rights and interests of our children, but as the Ontario Superior Court of Justice held in its July 2000 judgment, children's rights and interests, including the issue of section 43, must be viewed in the larger context, which includes the responsibility and role of parents and the best interests of children.
If we look, for example, to the United Nations convention on the rights of the child, to which Canada, as you know, Mr. Speaker, is a party, we see that the convention provides that children's best interests shall be primarily considered in actions concerning children. It also recognizes, however, the responsibilities, rights and duties of parents to provide appropriate direction and guidance in the exercise of these rights by the child. The convention acknowledges the family as a fundamental group of society responsible for the growth and well-being of children.
The government's position in supporting section 43 reflects this balanced view of children's interests. Section 43 balances all societal interests concerning the raising of children in a healthy and safe social environment, that is, in the family, while respecting their constitutional rights.
What exactly does section 43 say? I believe that there is a general misunderstanding of the purpose and ambit of section 43. Section 43 does not condone or authorize physical abuse of children. Equally important, it does not shield parents or teachers from interference by the state or guarantee freedom of parents to discipline children in any manner they see fit.
Section 43 acts as a limited defence, for example, to the charge of assault. In this regard several key points must be emphasized. First, the section applies only to a narrowly defined group of persons, namely a parent, teacher or person acting in the place of a parent and only in respect of a pupil or child under that person's care. Second, the force must be 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 a section 43 defence. Third and finally, the force used must be reasonable in the circumstances. The standard or test of reasonableness is one that is well understood and often applied within the Canadian criminal justice system.
When asked to consider applying section 43 in any given case, a court typically looks at the nature of the child's behaviour or action calling for correction, the age of the child and the severity of the punishment, including any injuries suffered by the child in that circumstance. When determining whether the force used was reasonable, the standard the courts apply is the community standard of reasonableness found in Canada and not in the practices of the individual family, or the school, for that matter.
The government is defending section 43 based on its belief that this section can be interpreted and applied in a constitutional manner which balances the interests of children, parents and Canadian society. Loving, well intentioned Canadian parents who engage in normative disciplinary conduct that is undertaken in a reasonable way and takes into account the needs and best interests of children should not be criminally charged for such conduct. Absent section 43, this would be precisely the result.
The government recognizes, however, that parents should be provided with the tools necessary to help them raise their children. To this end I would note that the federal government, primarily through Health Canada, supports parental education materials, for example, that specifically advise against the use of physical punishment and support the use of alternative methods of child discipline.
We are very concerned, as are all Canadians, about instances of child abuse in our society. It is simply unacceptable. We are also concerned about how best to protect vulnerable children in Canadian society, but in Canada protecting children from abuse is done through a number of measures of which criminal law is but one important measure.
Another such measure is provincial and territorial child protection legislation, which do not permit any form of child abuse. As a result, even if charges are not laid under the criminal code, child protection authorities can still intervene under provincial or territorial legislation where parental discipline is inappropriate or excessive. That is as it should be.
The government appreciates the objective of the bill as it is presented, namely the protection of our children, again, a very valuable resource, but we disagree that the bill would achieve this objective. It should come as no surprise to anyone that section 43 raises a divergence of opinion among Canadians. It does so because it touches upon something very near and dear to our hearts, most particularly our children and how best to parent them. In our view, however, the government's balanced approach to this important issue is by far the better approach.
When we weigh that all out I think we can see that the Government of Canada in taking this view is indeed taking into account the best interests of not only our children but their parents as well, and in so doing, by extension the broader Canadian society.