moved:
That, in the opinion of this House, the government should defend the constitutionality of Section 43 of the Criminal Code in the Courts and, if necessary, should take legislative action to reinstate Section 43 in the event that it is struck down, including invoking the notwithstanding clause of the Charter of Rights and Freedoms (Section 33 of the Constitution Act, 1982).
Mr. Speaker, it is a privilege and an honour for me to rise to speak to Motion No. 341, a motion which would protect teachers, parents and their children from unwarranted and heavy handed state intrusion. I will read the motion again:
That, in the opinion of this House, the government should defend the constitutionality of Section 43 of the Criminal Code in the Courts and, if necessary, should take legislative action to reinstate Section 43 in the event that it is struck down, including invoking the notwithstanding clause of the Charter of Rights and Freedoms.
The reason I brought the motion forward is that some children rights advocates want to see section 43 declared by the courts to be in violation of the charter of rights and freedoms.
In December 1999 a group calling itself the Canadian Foundation for Children, Youth and the Law asked the Ontario superior court to declare section 43 to be in violation of the charter and therefore unconstitutional. My motion opposes such efforts. I understand from other colleagues in the House today that there is a fair bit of support for the nature of the motion before us, and I am grateful.
Under section 43 of the criminal code today parents are allowed to use physical force to restrain or correct their children as long as it is not abusive, is by way of correction and is reasonable under the circumstances. The relevant statute is section 43 of the criminal code which reads as follows:
Every school teacher, 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.
This section of the code limits the way force can be used on a child in two ways. First, a parent is justified in using force only if the force is intended and used for a specific purpose, namely by way of correction.
That requirement has existed in Canadian law since 1864 in a decision in which the court stated that the power of correction can only be used in the interest of instruction. It cannot be for some arbitrariness, anger or bad humour. That would be an offence punishable like other ordinary offences.
In other words, force is only justifiable if it is used in the best interest of a child to correct a child from engaging in improper conduct. The section does not justify a parent using force to vent anger. An instructional purpose with respect to the child's interest must motivate the use of force.
Second, a parent's use of force is limited also in that it must be reasonable under the circumstances. In assessing whether the force used by the parent was reasonable, the courts have formulated a test which considers the following factors, and I think they are good factors.
The court takes into account the nature of the child's offence calling for punishment and whether such conduct merits punishment. It takes into account the age and the character of that child; the likely effect of punishment on the child; the degree and gravity of the punishment; the manner in which the punishment was inflicted; the injuries that resulted, if any; the parts of the body where the force was applied; and whether punishment was motivated by arbitrariness, caprice, anger or bad temper.
While judges sometimes apply these criteria differently it is safe to say that the successful application of such criteria demonstrates the effectiveness and the value of section 43.
In court hearings in December last year the Coalition for Family Autonomy noted that a database search of the weekly criminal bulletin showed that there were 99 cases in which parental discipline was the issue. In these cases we see the criteria of reasonableness at work. For example, since 1965 there have been five cases where acquittals were entered when bruising occurred but 16 cases involving bruising where the accused was convicted. The court took this into account and convicted 16 of these individuals.
In cases involving objects used to strike a child, the case survey indicates that there were twice as many convictions as acquittals. Of the 47 cases which reported the use of some object in striking or the “discipline”, there were 31 convictions and just 13 acquittals. In every case involving children under two a conviction was entered. The case law survey also indicated that courts are mindful of the manner in which the discipline is administered.
The point is simply that section 43 has operated in practice in a manner where the jurisprudence has developed a detailed set of factors which the courts have used to interpret section 43 and its demand for reasonableness. All this points to the fact that this section in the criminal code is both workable and is working.
In the 34 year period from 1965 to 1999 in only 24 of the 99 cases found in the database search was there an acquittal of a parent charged of assaulting his or her child. That very low number hardly suggests that adults are routinely using section 43 to get away with abusing their children. In fact the more numerous convictions indicate otherwise. In the 24 acquittals there may have been instances in which the judge made a error and should not have acquitted the parent. That is a problem with the judge. The appeals should happen and it should be pursued to the full extent of the law.
Section 43 of the criminal code is doing its job. Prior to the enactment of this section of the code there was no legislation placing limits on the use of physical correction and there were no government agencies designed to protect children from abuse. When section 43 of the code came into law, children had for the first time legal protection from physical abuse. Thanks to section 43 parents cannot physically abuse their children in the name of discipline. They cannot exceed what is reasonable under the circumstances. As long as the police and the courts do their jobs, child abusers will be prosecuted under the law.
It is somewhat ironic that the very same people who are arguing for the removal of section 43, argue that it protects only parental rights. That is clearly not the case. The irony is that the whole reason section 43 came into existence in the first place was to balance the right of parents to correct the behaviour of their children and the rights of children not to be abused.
It is a good law. It was well conceived at the time. It has served its purpose well and continues to serve us well today. For that reason section 43 strikes that necessary balance between the rights of parents and the rights of children. On one hand, parents must have the freedom to fulfil their responsibility to their children and to society and to raise their children to be moral, decent people who respect others. On the other hand, we believe that children have the right to be free from physical abuse and bodily harm. Section 43 strikes that proper balance.
That is why it is disconcerting that some children rights advocates, specifically the group calling itself the Canadian Foundation for Children, Youth and the Law, are trying to have this section of the criminal code removed or declared unconstitutional. If this group succeeds in having section 43 struck down, the results would be absurd and totally unacceptable. Many good and loving parents from that point on would be made criminals overnight.
The statistics indicate that some 70% of parents spank their child from time to time as a reasonable corrective discipline in respect to their children. Removing section 43 would mean that many of them would become criminals overnight. It would simply not be true of parents who swat little Johnny on the bottom from time to time. It would be true of parents who do not even spank their children. When a parent tries to restrain a child, that could be treated as an assault subject to criminal prosecution.
I am going to talk about why there is a real chill for teachers if section 43 is removed. If section 43 is removed, a parent could be charged with criminal assault for forcibly removing a misbehaving child from a shopping mall, for picking up a misbehaving child and putting him or her out of the way of harm or for putting him or her to bed against his or her will. Teachers share this exact same concern.
The Canadian Teachers' Federation appeared as an intervenor in last December's court case in Ontario and argued in favour of retaining section 43 of the criminal code. The federation believed that removing the section would be detrimental to maintaining a safe and secure school environment. The federation pointed to a number of day to day school situations in which the safety of students and the learning environment could be adversely affected.
I am sure there are teachers here who could tell us of specific instances where restraint is required in a school situation for the safety of a student and the protection of others as well. The teachers in their intervention cited instances where there is the need to protect students or teachers when a fight occurs at school, including the need to restrain those students if necessary. Also there are situations where there is a need to escort an uncooperative student to the principal's office, to bring him or her along by the arm. In that instance lo and behold an assault charge may be laid for that type of escort down the hall.
The teachers referred to a situation involving ejecting a student who refuses to leave the classroom or the school itself. The teachers' federation also referred in its intervention to situations such as during a field trip when they have to place a young student on the bus who has refused to return to the bus. There are also situations where teachers may have to restrain a cognitively impaired student.
The teachers' federation is concerned that if section 43 were removed from the criminal code, the result would be widespread fear among teachers of being charged with assault. As a precaution teachers would be advised or would choose not to intervene in school situations since stepping in to resolve the difficult situation might lead to their being charged with assault. That reticence of teachers to step into the gap could result in more serious injuries to students as well as in a deterioration of the school learning environment.
Removing section 43 for our schools and Canadian families would be a disgrace to our judicial system. If it were struck down, it would be a massive intrusion of the state into the educational and family environments of our nation. Former Prime Minister Trudeau said that the state had no business in the bedrooms of the nation. Anyone who removes section 43 of the criminal code will be moving the state into the nation's family rooms. That would be tragic. The state makes a lousy parent and should not presume to tell parents how best to shape the moral character of their children as long as abuse is not involved.
That is why I have introduced this motion, to defend section 43 of the criminal code, even to the extent of going into court situations and invoking the notwithstanding clause if necessary. The aim of the motion is to enable caring non-abusive parents to do the best job possible of raising their children to be responsible, well adjusted individuals and members of society. It protects the rights of parents to raise their children in accordance with their moral and religious beliefs about the effect of child rearing, their personal knowledge of the unique characteristics of their own children and their own understanding of how best to discipline children which has been gained from their parents and their own experiences during childhood.
The motion accomplishes this goal in two ways. First, it requires that the government defend section 43 of the criminal code in the courts. In the event that one or more rulings were to strike down section 43, the motion would permit the government to invoke the notwithstanding clause of the charter of rights and freedoms. Notwithstanding a court's decision to strike down the law, section 43 would remain the law of the land. After the Sharpe decision relating to child pornography, more and more parliamentarians are realizing that parliament has an obligation to protect Canadians from judicial rulings which we cannot understand and which do not make a lot of sense.
Parenting has always been a challenge. Raising children to be responsible and law-abiding members of society is more of a challenge than ever before. The surge in teen violence during the past decade testifies to that fact. The shootings a year ago in high schools in the U.S. and Canada have horrified all of us. Now is not the time to handicap parents in their role as moral guides. It is for these reasons that I brought forward this initiative.
In my wrap-up in the last five minutes I will refer to some of the effects of physical discipline on children.
At this time I want to ask for the unanimous consent of the House to have the motion before us deemed adopted and passed.
