JUST Committee Meeting

     Good morning. I call the meeting to order.

    As you've noticed, the system has been changed, so I have quite a few remarks to make first.

    First and foremost, welcome to meeting number 102 of the House of Commons Standing Committee on Justice and Human Rights.

    Pursuant to the order adopted by the House on February 14, 2024, the committee is meeting in public to begin its clause-by-clause study of Bill C-273, an act to amend the Criminal Code.

    Today's meeting is taking place in a hybrid format pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom app.

    This is a bit new, on avoiding audio feedback: Before we begin, I would like to remind all members and other meeting participants in the room of the following important preventative measures.

    To prevent disruptive and potentially harmful audio feedback incidents that can cause injuries, all in-person participants are reminded to keep their earpieces away from the microphones at all times. As indicated in the communiqué from the Speaker to all members on Monday, April 29—that's today—the following measures have been taken to help prevent audio feedback incidents.

    All earpieces have been replaced with a model that greatly reduces the probability of audio feedback. The new earpieces are black in colour, whereas the former earpieces were grey. Please use only a black, approved earpiece. By default, all unused earpieces will be unplugged at the start of a meeting.

    When you're not using your earpiece, please place it face down on the middle of the sticker. You will find the sticker for this purpose on the table. Please consult the cards on the table for guidelines on preventing audio feedback incidents.

    The room layout has been adjusted to increase the distance between microphones and reduce the chance of feedback from an ambient earpiece. These measures are in place so we can conduct our business without interruption and protect the health and safety of all participants, including the interpreters.

    Thank you for your co-operation.

    For members in the room, please raise your hand if you wish to speak. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as well as we can, and we appreciate your understanding in this regard.

     Before we begin, I want to remind everyone that we will leave about 30 minutes for an in camera meeting to discuss business.

    Now I want to welcome the witnesses from the justice department, who will help us with technical questions on Bill C-273.

    First we have Matthias Villetorte, senior counsel, criminal law policy section; and Isabelle Desharnais, counsel.

    Welcome and thank you for joining us.

    We will now commence the start of clause-by-clause consideration of Bill C-273.

    I would like to provide members of the committee with some instructions and a few comments on how the committee will proceed with the clause-by-clause.

    On a point of order, can we welcome our new member to the committee, Madam Chair?

    Yes. We have a new member, whom we will welcome.

    MP Jivani, welcome.

    As members already know, this is an examination of all clauses in the order in which they appear in the bill. I will call each clause successively, and each clause will be subject to debate and a vote.

    If there is an amendment to the clause in question, I'll recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the bill or in the package each member received from the clerk. Members should note that amendments must be submitted in writing to the clerk of the committee.

    I will go slowly.

    Each amendment has been given a number in the top right-hand corner to indicate which party submitted it. Once an amendment is moved, unanimous consent is required in order to withdraw it.

    Go ahead, Mr. Moore.

     Thank you, Madam Chair.

    On that, some time ago, when we were considering this bill, we set a timeline for submitting amendments. Then there was some discussion, and that timeline was extended. I note that Mr. Fortin submitted an amendment, and I also submitted an amendment, so there were two amendments. We've all considered those.

    As I was leaving my office to come over here, I got notice of a government amendment. It might have been 10 or 15 minutes before the committee started. In order for us to print it off and for me to take a look at it, I ended up getting here just at 11:01 or so.

    My point is that when we set these deadlines for amendments, it's a courtesy, and beyond being a courtesy, it's an expectation the committee has set out around amendments. Sometimes things come up that are outside our control. I don't want to spoil the surprise, but I note the government amendment just deals with the coming into force of the legislation. I'm wondering why we couldn't have received that in a more timely fashion so we could have had more orderly conduct when we came to the committee. This puts us all in a position in which we're playing a bit of catch-up, when avoiding that is the whole point of having a deadline.

    Mr. Maloney, please go ahead.

    Thank you, Madam Chair.

    Thank you, Mr. Moore.

    The amendment was submitted last week. I know it's pretty long. If we want to suspend for a few minutes, you can take some time to read it and digest it if you want, if that makes your life a little easier.

    The amendment is there. I don't think there's any issue to be discussed here, frankly.

     Members, I think you know that amendments can be submitted at any time, even during the meeting, as long as they're submitted appropriately.

     Madam Chair, on that, I would then suggest that, going forward, we don't submit or agree to a deadline.

    Around this table, there are four parties represented, and we agree to a deadline to submit amendments. I wouldn't even mention this, except that it happened on the last private member's bill, on coercive control. We ended up with the government table-dropping an expansive amendment to that bill that was essentially a rewrite of the bill. This is the second consecutive time it has happened.

    I guess I would ask now.... I'm not going to speak, of course, for the NDP or the Bloc, but for our part, we don't have the resources of a full department and a minister's office and all those things, yet we somehow get our amendments in on time. The government, which has full resources, including hundreds of millions of dollars and thousands of employees, should be able to get its amendments in at least as quickly as we do.

    I don't want to belabour it, but I think I had to make the point, because this is the second time that the government has failed to introduce its amendment by the time agreed to by committee members.

     Thank you.

    (On clause 1)

    Let me start now with clause-by-clause. I will call clause 1. Amendment BQ-1 was submitted first.

    Would the member like to move it?

    Mr. Fortin, please go ahead.

    Regarding amendment BQ-1—

    You don't have to explain anything. For the time being, if you would just propose the amendment please.

    I understand, but I want to explain why—

    No, not now. I have to say something before you provide any explanations.

    Okay.

    I would like to propose amendment BQ-1, if that is all you wanted to hear.

    Yes.

    When I have the chance, I will explain why we are proposing it.

    Okay.

    Thank you for proposing the amendment. Now I have to tell you the following.

     If BQ-1 is adopted, CPC-1 cannot be moved, due to a line conflict. As House of Commons Procedure and Practice, third edition, states on page 769:

    Mr. Garrison.

     Thank you, Madam Chair.

    I would ask the chair to rule this amendment out of order. The Truth and Reconciliation Commission's recommendation did not say that section 43 should be partially repealed or that another purpose should be substituted for it, and the private member's bill before us simply calls for the repeal of that section.

    Again, this amendment would actually restore part of section 43, so I believe it's fundamentally in conflict with the purpose of the private member's bill and, therefore, not in order.

     Thank you.

     Thank you for that. Based on advice I've received, I'm going to rule that it is admissible and in order to proceed.

    Mr. Fortin, you may now speak to your amendments.

    Thank you, Madam Chair. I will be pleased to explain.

    We understand the intent of Bill C‑273. Yet we must not lose sight of the fact that it will have much broader repercussions than the concerns expressed by certain parties to the truth and reconciliation debate. When the final report of the Truth and Reconciliation Commission of Canada was drafted, the goal was to find solutions to prevent the deplorable situations of the past that affected indigenous communities. I agree with that. Those abuses are unacceptable, not just for the first nations, but for society as a whole. We do not want children to be subjected to violence, either at home or at school.

    That said, repealing section 43 of the Criminal Code would have negative effects that we cannot ignore. I am referring to the testimony we have heard, Madam Chair. I am thinking in particular of Mr. Sébastien Joly, from the Quebec Provincial Association of Teachers, who said that QPAT was convinced of the following:

    We also heard from Ms. Heidi Yetman, president of the Canadian Teachers' Federation, who stated that:

    

    These concerns are important to us in the Bloc Québécois. We cannot ignore them. There was also the 2023 Supreme Court decision in the Bender case, Madam Chair. That is very recent. That was a ruling on an appeal of an Ontario court decision that recognized the application of section 43 in acquitting a teacher accused of assaulting a child. I will not summarize the whole decision. I think we are all familiar with it. The Supreme Court issued the following warning:

    Further, in Japan, the Child Abuse Prevention and Treatment Act, which came into force in 2020, states roughly the following:

     “A person who exercises parental authority over a child shall not discipline the child by inflicting corporal punishment upon him/her or by taking other forms of action that go beyond the scope necessary for the care and education of the child”.

    I think section 43 needs to be reviewed in light of legal and cultural changes in Quebec and Canada.

    I think this is needed, but simply repealing the section would be a serious error that would fly in the face of international movements in the field of the education and correction of children. We propose an amendment, Madam Chair, and I will read it out since it is not very long.

    I propose that section 43 be replaced by the following:

    That would allow teachers, parents or anyone else with parental authority to use reasonable force with the child. Let us recall the Supreme Court's example of placing a child in a chair for a time-out. Similarly, a child may sometimes have to be expelled from the classroom if they pose a danger to the children in the class. If there is a fight between students, a teacher must use reasonable force to intervene. A fight cannot be broken up by saying it would be nice to stop fighting. We might wish it were so, but that is not reality. Anyone who has raised a child knows that full well.

    It is unacceptable to use force or corporal punishment by hitting a child with a stick, for instance. No one thinks corporal punishment is acceptable. Yet we do think it is entirely justifiable to use reasonable force to control and protect a child and to protect a third party if the child is having an outburst and wants to fight. That is the approach taken in other parts of the world. I mentioned for example the recent legislative changes in Japan, as well as the Supreme Court decision in Bender.

    We have heard testimony from education experts. I say that with the utmost respect because they know more about it than I do and probably more than each one of us at the table. The Quebec Provincial Association of Teachers and the Canadian Teachers' Federation have told us that repealing section 43 would be a mistake.

    On that basis, I think our amendment would address everyone's concerns and further the interests of children, teachers, parents and any person with parental authority in Quebec and Canada.

     Next we have Ms. Gladu.

     Thank you, Chair.

    Definitely, I agree with Mr. Fortin that we heard testimonies, numerous testimonies, from teachers who talked about the increase of violence that they're seeing and the importance of retaining section 43. I agree with him that it would be a big mistake to take it out altogether.

    In fact, the Supreme Court did quite an excellent job of defining, with clarity, the scope. If we support BQ-1, we can't support CPC-1, which actually is the more fulsome Supreme Court decision put in to clarify.

    For that reason, I can't support this, although I do agree that we need to retain section 43 and capture, with clarity, the Supreme Court decision.

    Mr. Maloney.

     Thank you, Madam Chair.

    I want to thank Mr. Fortin. I agree almost entirely with everything you said, but I will not be supporting your amendment, nor will I be supporting, if we get to that stage, the second amendment that's been put on the table. I'll tell you why.

    I will be supporting the bill as proposed, because it addresses call to action number 6, which I think we all agree is very important and something that needs to be dealt with.

    I also agree with you, Mr. Fortin, because we heard some very compelling evidence from multiple teachers' groups from Quebec and from across Canada. They raised very legitimate concerns, and we need to listen to those concerns. However, I don't feel it's appropriate to address that in the context of section 43. As a result of discussions my colleagues on this side of the table and I have had with Minister Virani, he has given us his assurance that he will be bringing forward separate legislation at some stage on a separate section of the Criminal Code, to address the concerns raised by teachers and in keeping with the spirit of what all the witnesses who appeared here proposed.

    I think that's a solution to what you're proposing and to what the Conservatives are proposing, while adhering to the spirit of call to action 6.

    Thank you.

     Mr. Moore.

     Thank you, Madam Chair.

    Actually, that's kind of a shocking and troubling development. Should this legislation pass, it would be a big mistake, based on the testimony we heard around parents and around teachers in particular. Even the Liberals' own witnesses came to this committee and said that removing this section will put teachers at risk, and by extension will put students at risk, because of teachers then being told by their superiors not to intervene in any physical conflicts that are happening between students who are being unruly in the classroom. The advice that we heard would be given to teachers by their administration and by their unions would be not to intervene at all without the protection of this section.

    Those are not my words. Those are the words of witnesses, some of whom were Liberal witnesses.

    The way this works is that should this bill pass this committee, pass the House and then pass the Senate, it would become law, irrespective of what Minister Virani has said he would do. It's quite unprecedented to say, “Don't worry about passing that law, because at some point”—a point that I'm certainly not privy to, and I don't know if anyone on this side of the table is privy to—“we're going to fix the mess that passing this bill would create.”

     What we've heard here today is that even Minister Virani acknowledges that it would be a mistake to have the law in Canada be such that section 43 does not exist without any of the protections that are needed for parents and teachers. Minister Virani has apparently given assurances that at some point he's going to bring in legislation. If that legislation should not pass before this bill, then this bill will stand alone. Section 43 will have been struck down. Parents and teachers will no longer have the protections afforded by it.

    Contrary to the notion that we might somehow feel comforted by this news, I'm actually quite alarmed by it. It means that Minister Virani's advice from his department is that passing this legislation would leave gaps in the law and put teachers at risk. Otherwise, why on earth would he commit to legislation to address teachers' concerns? The time to do that is now. There's government legislation. There are private members' bills. A private member's bill has the same effect as government legislation. Once it's passed, it is the law. It makes no difference whether a private member's bill amends the Criminal Code or whether government legislation amends the Criminal Code. If the Criminal Code is amended by this Parliament, then that is the law of the land.

    I think hearing what Mr. Maloney just said reinforces my position. I've heard from Mr. Fortin on his motion. I'm unable to support his motion, because as the chair said, should his motion pass, then our Conservative motion could not be dealt with.

    I don't want to get ahead of myself, but I'll just briefly state why I prefer our Conservative motion to Mr. Fortin's. Our motion re-establishes in the code what the law is today, following a leading Supreme Court of Canada decision that considered section 43, upheld it constitutionally and defined section 43—what it means and what it does not mean. We heard really outrageous illustrations and examples by the proponent of this bill, and from some witnesses, about a paddle being used and about a student being punched in the face. Anyone who's taken the time to read the Supreme Court decision from 20 years ago would know that those actions are absolutely not protected by section 43 today. Section 43 has been narrowed and defined by the Supreme Court. The Conservative amendment would put into the code the language that the Supreme Court used.

     I prefer our amendment. I think our amendment is more robust. Our amendment is certainly constitutional, because the very language of our amendment has been upheld by the Supreme Court of Canada.

     I prefer our amendment. Therefore, I have to vote against Mr. Fortin's, but we'll get to that if we get to it.

    Thank you, Madam Chair.

     Thank you.

    Mr. Garrison.

    Thank you very much, Madam Chair.

    I want to speak a bit generally, and then I'll come specifically to the amendment.

     I am concerned when, around this table, we don't take seriously the commitment that all of us made to truth and reconciliation in this country. Recommendation 6 was carefully considered by the Truth and Reconciliation Commission, and I believe all of us around this table have expressed support for those calls to action.

     If we go to the calls to action and say, “Yes, we support them, but...”, that's not really reconciliation. That's substituting our judgment for the judgment of indigenous people on the impacts of this section on indigenous communities.

    We may have a second and competing concern here, which is that of teachers. I am glad to hear Mr. Maloney say there's a commitment to solving that problem, but we can't solve that problem at the expense of reconciliation in this country. I think it diminishes the arguments that were made about the impacts of this section on indigenous communities to say that we can't proceed without protecting some other group at this point.

     On the specific amendment, my problem with Mr. Fortin's amendment is the last phrase, which says, “or for the child’s upbringing.” If you just take it most simply, it says reasonable force can be used for the child's upbringing. That was exactly the problem with section 43, and that's why I believe this is out of order. It restores the very problem that the call to action is trying to take away, which is the idea that reasonable force can be used for a child's upbringing.

    For that specific reason, I'm voting against this amendment, and I would urge all members to pass this bill unamended to repeal this section, which was the purpose and intention of the Truth and Reconciliation Commission. It will uphold our commitment to reconciliation in this country.

     Thank you.

    Mr. Van Popta.

     Thank you, Madam Chair.

    I, too, am troubled by this last-minute development from the governing party, saying they will now introduce new legislation around corporal punishment. We haven't seen it at all. We're trying to have a fulsome debate here at the justice committee, and now we have a promise of some new legislation that might come in down the road at some time. The timing doesn't contribute to a good, productive discussion, and I'm deeply troubled by that. The government has had lots of time to think about this in response to the Truth and Reconciliation Commission's report, which has been with us for many years, yet, at the last minute, they're dropping it on us and telling us they're not going to support common-sense amendments that both parties are putting forward.

     I want to speak about Mr. Fortin's motion and his talk in support of it.

    I agree with much of what he said. However, I believe that the competing amendment CPC-1 is better, in that it codifies a very thoughtful decision from the Supreme Court of Canada of 20 years ago, which explained what section 43 does and does not do. I think, with that clarification, people can rest assured that section 43, which is itself a codification of the common law defence against charges of assault for teachers and parents....

    I think it's a shame that Parliament at that time did not introduce new legislation to amend section 43 to further explain this. I suspect that, had that amendment been made in response to the Supreme Court of Canada decision of 20 years ago, the discussion around the Truth and Reconciliation Commission's recommendation number 6 might have been quite different. Without that amendment and without reading in the clarification from the Supreme Court of Canada, many people have been confused about the difference. As one person said, it does not adequately distinguish between physical punishment and physical abuse. What happened at residential schools was physical abuse, not physical punishment. That's what the Truth and Reconciliation Commission recommendation number 6 talks about. Had section 43 been clarified in response to the Supreme Court of Canada decision, I think that discussion would have been much different.

    CPC-1, which, hopefully, we'll get to, basically goes step by step through what the Supreme Court of Canada said and captures all the main highlights. CPC-1 also makes a clear reference to schoolteachers in part 4. That is in response to evidence we received from educators here at this committee. I think CPC-1 is more responsive to testimony that we received at this committee and to jurisprudence that has developed around section 43.

    Thank you.

    Mr. Housefather.

     Thank you very much, Madam Chair.

    I want to start by saying that I'm very much of the mind, coming out of committee, that we need an amendment in a different section of the code to deal with the very valid concerns that teachers and others have brought related to parental authority.

    However, I'm also very mindful of the fact that repealing section 43 itself is a very important goal of the Truth and Reconciliation Commission, and we don't achieve that goal by replacing section 43. That amendment, as the teachers themselves recommended, has to be in a different section of the code. We're not able, at this committee, to have a receivable amendment. I drafted one that is similar to the Conservatives' amendment reflecting the Supreme Court judgment, which would be receivable, because we can't amend a different section of the code from the one that is actually being debated at committee. I didn't submit it, because I figured it was not receivable. There's no point.

     I'm very comforted by the fact that the minister has undertaken to put forward an amendment to a different section of the code to deal with the very valid concerns teachers have raised. I think that not having the codification of the Supreme Court interpretation of the original section is a problem. I hope that what we can do today is pass the bill, have a later coming into force date of the bill, and work to ensure the minister tables it and we get something passed that comes into force simultaneously with this bill. That would be my hope.

    As to the amendment itself, I agree with Mr. Garrison's comments about the last part of Mr. Fortin's amendment. Therefore, I wouldn't have supported this amendment regardless.

    Thank you, Madam Chair.

     Thank you.

    Mr. Fortin, go ahead.

    Thank you, Madam Chair.

    I am also a little concerned. I am pleased to hear that the minister shares our concerns and that he wants to amend the Criminal Code. However, I am worried because, from what I understand, people are improvising or becoming apprentice legislators who are learning on the job, as we say.

    I have a lot of respect for the Minister of Justice, Mr. Virani. He told us that he has heard our concerns and that he would amend the code accordingly. That's good, but when will he do it? We know that an election will be held in a year or a year and a half. Will he have time to do it before then? We don't know.

    In the meantime, almost all the parties recognize that society is on a slippery slope. If the bill is passed, section 43 of the Criminal Code will be repealed. I don't want to speak for the NDP, but what I'm hearing is that the Liberals, the Conservatives and the Bloc think that repealing section 43 mindlessly is a mistake.

    I'm proposing one alternative solution, and the Conservatives are proposing another. We could discuss what the best solution is, of course. The Liberals simply told us that they agreed with us, but that they would deal with this at some point, when it suits them. However, I don't think that's acceptable when we have such a serious and important mandate for the population as a whole.

    What will we say to teachers or parents who are going to be charged with a crime when the majority of members of Parliament recognize that this should not be the case? Will we tell them that we didn't think it was urgent? Will we say that we agree with them, but that we have other things to do first? Not only do we have other things to do, but we preferred to abolish the old rule that protected everyone.

    I don't understand that. I repeat, I feel that is improvisation. This morning, we were told that they agreed with us; okay. I am proud to say that I can change my mind. Give me something. I will stand firm on my position, but if you manage to convince me, I will change my mind. If I change my mind, I won't continue down the wrong path. The government recognizes that it's not right, but it's still going to continue along this path. Here is the underlying question: Why continue along this path? With all due respect, I would say that the picture is not very pretty.

    The report of the Truth and Reconciliation Commission of Canada raised concerns that were shared by everyone. We want to respond to it, but right now, the government is not committed to doing anything. Indigenous representatives have said that their children have been victims of violence at school. Everyone agrees that it makes no sense. Now they want to change the law for everyone—not just for teachers, but for anyone who exercises parental authority. I'm not sure that all indigenous communities agree on that. It may have been worthwhile to listen to those communities. They may have told us that things that don't make sense took place in schools attended by indigenous youth and that they need to be corrected, but the baby is being thrown out with the bathwater.

    This is being done to respond to the report and to respond to a request from our respected NDP colleague, Mr. Julian—and I am not questioning his good faith. Mr. Julian is proposing something. The Liberal government is living on borrowed time. The government can fall at any time. If Mr. Julian decided that the plug should be pulled, it would be over.

    The Liberal government has said that it accepts Mr. Julian's proposal. Mr. Julian reminded us that some indigenous representatives told us that it would make sense. But we are about to change the legislation for everyone. Everyone agrees that we are putting ourselves in an uncomfortable situation. However, we will do this to prevent the Liberal government from falling because it would no longer have the support of the NDP.

    The request is being satisfied haphazardly, in a way that does not address the real problem that was raised in the report of the Truth and Reconciliation Commission of Canada.

    I find that deplorable and worrisome for Canadian society as a whole, and even for Liberal voters who may recognize themselves in what Mr. Maloney just said this morning. The Liberals recognize that a situation needs to be corrected and that this could be done elsewhere in the Criminal Code.

    I have no problem with it being dealt with elsewhere in the code, but for the time being, let's look at section 43. If we want to be serious, let's keep section 43 as it is. Ideally, let's amend the provision based on what the Bloc Québécois is proposing or, at the very least, based on what the Conservatives are proposing.

    In a month, in six months or in a year, when the Minister of Justice decides that all this needs to be reviewed, he can propose in a new bill to repeal section 43 and adopt another provision. That way, we can look at a complete solution to the problem and not a piecemeal solution that is an embarrassment to everyone.

    Let's not forget that this is being done at the expense of all Canadians. Whether we are talking about parents, teachers or children, no one has anything to gain from this bill, except for one or two egos.

    Thank you, Mr. Fortin.

    Mr. Moore, the floor is yours.

     Thank you, Madam Chair.

    Here we go again. The Liberals are trying to be on both sides of the issue, and that is why we're in this situation.

    You take what was said today, and it becomes very clear that section 43 is where it is because that's where that section has to be. It says:

    Why is that section there? It is there because, otherwise, if you were to grab somebody and take them to the principal's office or if you were to restrain your child, if you did that to someone else, that would be assault, and that is why it is in that section.

    What the Liberals are saying now, then, is that for people who want to get rid of section 43, they're going to get rid of section 43. For people who recognize that completely eliminating section 43 is problematic, they're going to put the good parts of section 43 back in, just in a different part of the Criminal Code, where no one will notice.

    That is the outrageous position of this government, and the opposition parties are doing the homework on this. The NDP brought in the bill. It's a flawed bill. It's trying to accomplish something, but it goes too far and it would criminalize teachers and parents.

    The Supreme Court has already considered this issue and not only upheld the constitutionality of section 43 but very helpfully narrowed it in so that basically every example that was used by the proponent to justify his private member's bill is criminal in Canada. He talked about punching someone in the face. That's criminal. He talked about strapping someone with a paddle. That's criminal. That is not protected under section 43 as interpreted by the Supreme Court of Canada.

    Our amendment establishes in the code the language that the court used. The Bloc have a different amendment to try to accomplish some of the same goals, but what the government's doing is saying, boy, we want to be able to say we got rid of section 43, but we know we can't get rid of section 43, so what we're going to do is we're going to say yes, we got rid of it here, but now we're hearing you teachers and parents so we're going to do something somewhere else.

    You couldn't be more crass than that, Madam Chair. Our job here is to take the bill as presented. I cannot base my actions today on fourth-hand knowledge that maybe the minister told someone who told someone that they recognized this bill is a problem and at some point yet to be determined they're going to bring in legislation to address a problem that this bill creates.

    If we are not prepared to address the problem that this bill creates, as a committee, then we're not doing our jobs. Conservatives have done their jobs. We have an amendment that would uphold the important parts of section 43, the parts that say that a teacher who's breaking up a fight and physically involves themselves in that fight while one person is maybe being assaulted, is not going to get charged with an assault.

    Am I making up that scenario? No. Those very scenarios have gone before the courts, and the teacher's defence and the reason the teacher was not convicted criminally, is section 43. That is why teachers' organizations appeared at this committee and sat there as witnesses and testified that removing section 43, as this bill does, would put them in danger and would also put their classrooms in danger: Students are in danger if teachers are going to be charged criminally for intervening in an ongoing assault.

    Now we could have other people say that would never happen, but the only problem with saying that would never happen is that it has happened; it does happen. That's why the teachers were here. We can deal only with what we have in front of us, and what we have in front of us is a flawed bill and a couple of amendments that would try to improve upon the bill. We haven't gotten to CPC-1 yet, our amendment, which I'm more convinced now than ever is necessary.

     I was talking to our witnesses earlier, and I said I didn't have any questions. I was being absolutely truthful when I told you I didn't have any questions, because I didn't, but now I do. I do have questions now, because of the way this debate has unfolded.

    I will put this to either witness from the department who wishes to answer it.

    In his opening remarks, the proponent of the bill used at least four examples that would be criminal, in my understanding of the court decision.

    He used the example of a teacher punching a student in the face or a parent punching a child in the face.

    In your understanding of the Supreme Court leading decision in this case on section 43, would a parent or teacher punching a child in the face be protected under the code, as interpreted by the court?

     The Supreme Court majority decision in the Canadian Foundation case laid out a couple of guidelines to determine what reasonable force is under section 43. One of them is that the force should not be applied to the child's head. In the circumstances that you're talking about, it probably would not be considered reasonable force, as the child would be struck in the face by a punch.

     Okay. I don't have a ton of these, but I'm going to ask another one.

    One witness brought a paddle. Is applying a big, wooden paddle to a child's hand, for example, protected activity in Canada, based on the Supreme Court decision?

     Again, as part of the guidelines to determine what reasonable force is—striking the head is one of the examples—the Supreme Court mentioned that force applied with an object would not meet the threshold of reasonableness under section 43.

    That's right.

     What we have is a bill that the proponent is advertising and justifying using scenarios that are already criminal. The concern that witnesses have and the concern that the Minister of Justice, Arif Virani, has is the effect of passing this bill on conduct that is not criminal now.

     What kind of conduct is not criminal and is protected by the Supreme Court decision? It is the scenario I expressed to you, Madam Chair, of a teacher breaking up a fight or being assaulted. We heard—and I know you know many teachers; I think one of them was from your riding or was at least from your province of Nova Scotia—that teachers are increasingly under threat in the classroom and are having to deal with increasing violence in the classroom. Those are not my words; those are the words of the witnesses that we had on this bill.

    As Conservatives, we heard that testimony and we crafted an amendment based on the Supreme Court decision that would protect parents and teachers from being criminally charged. This is serious.

    At a time of escalating gang violence, drug violence and all the things that are happening, we're dealing with a bill that targets teachers and parents. Let's be clear about that as well. It applies only to section 43. Section 43, which this bill strikes down, applies only to parents and teachers. It says, “Every schoolteacher, parent or person standing in the place of a parent”. We're not talking about the general public. We're talking about teachers and parents. They are the only people protected from assault charges based on this section of the Criminal Code, which this bill will strike down. Now the alarm bells are going off in the department or with the minister, and they realize the teachers are right. The parents are right. This bill is a problem.

    We want to be able to say that we eliminated that clause, so now we have to put that clause somewhere else in the Criminal Code. Madam Chair, these are games, and they are the worst kind of games.

     I do have one more question for our witnesses. I know the answer to it, but I want to get their perspective as well.

     The minister apparently, through Mr. Maloney, has indicated that he will pass legislation at some point. If this private member's bill passes into law and the minister doesn't introduce that legislation or the minister's legislation follows some time after, in that intervening time, are the protections afforded to parents and teachers under section 43 lost with the passage of this bill?

     It is hard to determine what the real impact will be of the repeal of section 43 in and of itself. The case law has obviously adapted and applied what the Supreme Court has decided and given as guidelines for the use of reasonable force by parents and persons standing in place of parents and teachers.

    One thing I would mention is that without section 43, what we have seen in case law is that we're also bringing up certain common law defences. You would have de minimis the defence of necessity, and maybe others could at one point have recourse to the defence of implied consent in those cases. Those defences are very specific to certain circumstances. It isn't clear whether those would apply to the same extent as the section 43 defence currently applies.

    Absolutely, I agree with you 100%. That is why the case law you mentioned that has flowed in the last 20 years since the Supreme Court decision upholding section 43 and narrowing its application is based on section 43 being there. With section 43 gone—if this Parliament decides to eliminate that section 43—then all of that goes out the window as well.

    I am more convinced than ever that we need to pass CPC-1. We know there's an agreement between the NDP and the Liberals. This isn't the way to go about things, to put parents and teachers at risk. If there's more information about the timing of the passage of this private member's bill and the coming into force of some hypothetical legislation from the minister, I think that is really important right now.

     The minister apparently wants to be able to go to teachers and say, “Don't worry; we're looking after you,” but we're not privy to that. All we have is the bill that's in front of us, and the minister has indicated now that those of us who have been saying this is a problem are 100% right; it is a problem.

    There's going to be some kind of sleight-of-hand fix in a less appropriate section of the Criminal Code. There's going to be an amendment maybe at some point that addresses the fallout for parents and teachers of the passage of this private member's bill. That's putting the cart before the horse, Madam Chair. That's not how we are to conduct ourselves at these committees.

    Based on the legislation that's before us, based on the law as it stands and based on the Supreme Court decision, we have no alternative than to either reject this private member's bill or at least pass the protections that teachers and parents need in CPC-1.

    Mr. Housefather, you have the floor.

    Thank you, Madam Chair.

     Thank you, as always, to Mr. Moore for his comments.

    I'm reading now from the brief from the Canadian Teachers' Federation, because the Canadian Teachers' Federation is what we're talking about here. They represent the majority of teachers across the country. They're asking the Government of Canada, not the committee, to ensure the continued protection of teachers and students in their care while respecting the Truth and Reconciliation Commission's calls to action. That is their number one request.

    Then they're asking us to amend section 265 of the Criminal Code of Canada. It is not within the committee's purview under this bill, unfortunately, to amend section 265, or I would have proposed an amendment to amend section 265, but the Government of Canada, to whom they're making the appeal, can amend section 265 or another part of the code to deal with the very valid concerns raised by teachers. That is what we have had an undertaking from the Minister of Justice to now do.

    In my view, opposite to trying to play two sides or anything, as Mr. Moore is saying, we're responding to exactly what the teachers have asked. We're fulfilling the Truth and Reconciliation Commission's call to action. We understand that there are stakeholders who, for whatever reason, symbolically believe that section 43 needs to go from the code. That is what was in the TRC recommendation. At the same time, we will be having a bill or part of a bill that will deal with the protection of teachers, which, again, the committee cannot do in the context of this private member's bill. It cannot amend a section of the code that's not referenced in the bill.

    I also welcome Mr. Maloney's comments. I look forward to more clarity on it, but I am comfortable that we are doing exactly what the CTF asked us to do.

    Thank you, Madam Chair.

     Madam Gladu, please go ahead.

     Thank you, Madam Chair.

    What I would say is that when the Teachers' Federation was testifying and brought forward this suggestion that they would take away section 43 and put in amendments to the Criminal Code, they didn't understand that the private member's process didn't allow that. When Mr. Garrison and I pointed that out to them, I specifically asked those witnesses, if we can't amend the Criminal Code, then what about section 43? They said they would not be happy to not have that protection.

    Again, I think it would be irresponsible to take a bill that, as Mr. Moore correctly pointed out, has been brought forward on a false premise. The examples that were presented were clearly abuse that's already criminal, and that is not what we're talking about in section 43. To then pull this bait and switch on truth and reconciliation to say, “Oh, we'll take out 43, but we'll put it in somewhere else,” is disingenuous at the minimum.

    Not only that, but I have no confidence this government can bring a bill in the time remaining before the next election. Bills, even if they're not controversial, can take about 18 months to get through the whole process, and we haven't even seen a draft of this bill. I think there's no way we could responsibly say, “Oh, yeah, we'll pull out section 43,” on the off chance the government gets it right in the legislation that actually gets passed. I don't think we can do that. We have to stand up for parents, and we have to stand up for teachers and provide them protection until such time as the government actually brings legislation that could do it in an alternative method. That's my opinion.

     Mr. Van Popta, you have the floor.

     I'm deeply concerned about the messaging that will come out of the work of this committee today. If this bill passes unamended, which is what it seems the Liberals want, then the messaging is going to be clear that this government does not stand with teachers.

     We had Dr. Kelly, a law professor, here to give evidence, and she was asked exactly that question: “What would be the message to the public of repealing section 43?” She said, “I think proponents of repeal hope that the message will be that all forms of physical discipline are wrong and unlawful”.

     We had witnesses here from the Canadian Teachers' Federation give evidence strongly in support of retaining section 43, with amendments. They actually put forward thoughtful amendments to a different section of the Criminal Code, which would have more or less the same effect as the motions that the Conservative Party is putting forward. Their written submission said, “When it comes to education and the safety of children, careful consideration of all eventualities is vital. In its current iteration, Bill C-273 ignores the [present-day] realities facing students and teachers. We urge you to amend and pass this bill to work towards reconciliation while keeping classrooms safe.” They also said that educators are deeply committed to serving children and that “protecting students from themselves and from one another is a key component” of educators' work in schools. “Stopping classroom violence should be supported, not policed.”

    Repealing section 43, which is what Bill C-273 would do, would do exactly that. It would not support schools, but it would bring in police enforcement instead. I think that is just the wrong way to go, and certainly the Teachers' Federation thinks that would be completely inappropriate.

    Thank you.

     Thank you very much to all members for your thoughtful comments.

    I am now going to remind you that CPC-1 cannot be moved if BQ-1 is adopted.

    Shall BQ-1 carry?

    I request a recorded vote, Madam Chair.

    Mr. Clerk, please go ahead.

    (Amendment negatived: nays 10; yeas 1 [See Minutes of Proceedings])

    The Chair: BQ-1 is defeated. I will now go to CPC-1 and ask the member if he wishes to move it.

     Thank you, Madam Chair.

    I do wish to move it. I would like to speak to the amendment briefly.

    I have a point of order, Madam Chair.

     I'm going to make the same point on this amendment that I made on the last amendment: I believe it is out of order. The amendment repeats the language “if the force does not exceed what is reasonable under the circumstances”, which is the exact language from section 43. Once again, it goes against the purpose of the bill, which is to repeal that language.

    I can't understand how an amendment that puts back what the bill intends to remove can be in order at this point.

    Thank you.

     Thank you.

    I rule that this is in order for the same reasons I ruled that way on the previous BQ-1.

    I will ask Mr. Moore to please explain and speak about his amendment.

     Thank you, Madam Chair.

     Section 43, as we heard from witnesses, provides a defence for certain actions that could otherwise be criminal. It pertains specifically to—this isn't interpretation, since it's in the plain reading of the legislation—schoolteachers and parents, by and large. Section 43 allows those individuals to use reasonable force while dealing with children. We've already, in the discussion we had today.... I think it bears repeating about this particular amendment, because our amendment was very specifically crafted around the Supreme Court of Canada decision. In fact, the CPC-1 amendment adopts the language of the Supreme Court.

     As you know, Madam Chair, oftentimes legislation in the Criminal Code can be challenged. Provisions can be challenged through the courts, particularly under our charter, on the constitutionality of legislation. Is it cruel and unusual punishment, for example? Is it a reasonable search, for example?

     This particular legislation, like most sections of the Criminal Code, has been challenged. We've seen, in times past, sections of the Criminal Code being struck down. We've seen sections of the Criminal Code upheld. The Supreme Court of Canada, in a majority decision 20 years ago, in 2004, considered this section of the Criminal Code in the Canadian Foundation for Children, Youth and the Law v. Canada decision. It's very instructive and important to understand what the state of the law is right now in Canada, because, when the Supreme Court strikes down or upholds legislation, it is binding on all other courts in this country when they consider someone charged under a particular section of the code. What the Supreme Court did is uphold section 43. Those saying section 43 is unconstitutional are wrong. The Supreme Court determines what is constitutional and unconstitutional. They found that section 43 is constitutional. They also defined what is protected under section 43.

    I want to speak a bit about that, Madam Chair, in moving my amendment.

     Number one, it applies only to a parent or a person standing in place of a parent. Only those individuals are justified in using force by way of correction towards a child. I think there's a fundamental misunderstanding among some of the witnesses. It may be a deliberate misunderstanding or not. In Canada, today, teachers cannot administer corporal punishment. This bill changes nothing in that regard. What that means is that a teacher cannot spank a child. A teacher cannot paddle a child. The Supreme Court decision found that a teacher cannot administer corporal punishment. Only a parent can administer corporal punishment. In fact, even that is quite narrowed by what the Supreme Court decision finds regarding section 43.

     For example, for the purpose of this section, force is used for correction only if it addresses the specific behaviour of the child. Its purpose is to educate, correct or restrain a child. It is not of a punitive nature. It is used towards a child between the ages of two and 12. The child is capable of learning from the use of force. It's minor and transitory in nature.

     Some of the examples that have been used to justify this private member's bill are clearly outside the scope of this law.

     I'll go on, Madam Chair. Objects, including rulers and belts, are not used. The idea that a teacher can paddle a student with a wooden paddle.... No. They can't under this decision of the Supreme Court.

    It is not applied to the child's head. The mover of this private member's bill used an example in his opening remarks. Don't take my word for it. Refer back to his opening remarks. He used the example of someone punching a child in the face. That behaviour is not protected by section 43.

    The decision goes on; likewise, our amendment goes on, because our amendment codifies what the Supreme Court decision found.

    Let's read what the law is in Canada, Madam Chair. We have a lot of people making stuff up on the fly.

    A schoolteacher is justified in using force towards a child under their care only when the purpose is “to remove the child from a classroom or secure compliance with instructions” and “the force does not exceed what is reasonable under the circumstances”.

    There's a lot of misinformation out there.

    Why would teachers be concerned about that protection being removed? It is protection that applies only to them. It's because teachers have to use force sometimes to address behaviour in a classroom, such as two students kicking another student who is on the ground and beating them senseless. It happens all the time, Madam Chair. Teachers intervene, sometimes at their own risk, in those situations when they're dealing with high school students, to protect their students and to protect their classroom.

    On this bill, we heard from various teachers' organizations that the safety of their classrooms in fact depends on this section of the code. Their ability to maintain a safe environment for students hangs on this. We also heard testimony that the advice that leadership in the teaching community would give to teachers, should this bill pass, is to not intervene.

    In a scenario where one child is getting beaten by another child—perhaps an older or a bigger child—the advice they're going to give is to not intervene. Now, some of them will intervene and some of them will be charged. If it happened today and they were charged and went before a judge, the judge would say that under section 43, as interpreted by the Supreme Court in its 2004 decision, a schoolteacher is justified in using force towards a child that is reasonable in the circumstances.

    However, should this bill pass, that teacher would no longer have that protection. That is why teachers took the time to leave what they were doing to appear before this committee and provide testimony. It was that important. That's not to mention the protection for parents against frivolous lawsuits that could be brought if a parent is now going to be the target of a charge because they are protecting their child.

    Abuse in Canada has been and is rejected and illegal. I counted four scenarios that Mr. Julian used in his opening remarks. They're all illegal.

    We are all against assaulting children—all of us. We're all against someone being punched in the face. We're all against someone being hit with an object. The problem is that this stuff is all illegal.

     This bill goes beyond that.

    That is why it is imperative, if we're going to pass Bill C-273, that it pass with a Conservative amendment that maintains the protection of the constitutionally upheld section of the code. Without that protection, teachers and parents are going to be at risk, and that puts children at risk as well. Madam Chair, that is why I'm moving CPC-1.

    I know that BQ-1 was rejected. I understand why Mr. Fortin moved it, and I think I get what he was getting at. The reason I did not support Mr. Fortin's amendment is that I think CPC-1 more fulsomely follows the logic of the finding in the Supreme Court decision.

    I want to mention, Madam Chair, the gravity of the decisions that we're making here today. There have been 20 private members' bills or Senate bills over the years on this issue, but this Parliament—and past Parliaments, in their wisdom—have not repealed section 43 in its entirety. The reason they didn't do that is the consequences and the follow-up.

    To reinforce this point, now we hear that Minister Virani recognizes that there is going to be fallout and there are going to be consequences. He is talking about legislation that would no doubt amend some other part of the code so that he is able to go to these groups—maybe to parents, maybe to teachers—and say, we listened to you, and here we're going to do something else somewhere else in the code. It would certainly not be in the appropriate section. This is the appropriate section.

    Madam Chair, I think I'll leave it at that for now on our amendment. I ask all members to consider it.

    If you're wondering what it means to pass this amendment, it means that we respect the decision that was made by the Supreme Court of Canada, which really narrowed the possible interpretation of section 43. They took a view; they narrowed it in, and they further defined what protections were afforded to teachers and parents by section 43. I think that was very constructive for all of us, and case law has followed that Supreme Court decision.

    Now it is time for Parliament, and if we're going to amend this section we need to ensure that those protections that the Supreme Court put in are maintained.

    I so move CPC-1.

     I have Madam Gladu.

     Thank you, Chair.

    Certainly, I don't think I could do a better job of talking about the amendment than my colleague, Mr. Moore, has done, but I would add a few things.

    I like this amendment, because I think it codifies what the Supreme Court decision was. I think we saw in the past, before 2004, abuses in the residential school system, etc. However, since this clarification and narrowing, I think we've struck the right balance, and we're not seeing a plethora of cases.

    In fact, I think the Teachers' Federation also pointed out that having section 43 in place with that interpretation from the Supreme Court actually is a disincentive for people to bring frivolous lawsuits. That's important, because right now there's a lack of judges and we have sexual assault cases being kicked out because they've taken too long. We certainly don't want to see the number of charges and cases that would come forward if these protections were not in place.

     The other thing I really like about the Supreme Court's clarification is that it includes psychological harms that are not acceptable. It also makes sure that the types of incidents we're talking about are minor and transitory as opposed to being chronic. I think those are also great parameters.

    I think this is needed. I think that we cannot wait on a bill that might be right—that might come, that might get passed—and remove these protections before that is happening. I support CPC-1.

    I indicated at the beginning that we would stop and go in camera. I am in the hands of the committee. Tell me what you want to do.

    Madam Chair, I had asked to speak.

    I don't know if you have a speaker list. Is my name on that list?

    Yes.

    Okay.

    I'd like us to keep going.

     Mr. Van Popta, do you want to be on the list? I asked the question. I'm looking for guidance.

    Go ahead, please, Mr. Housefather.

    I just want to raise the concern, Madam Chair, that we can continue, but if we continue, we will not have the opportunity to go over the witness list for the anti-Semitism study. If we don't do that today and we do it on Thursday, I don't believe there will be time to invite witnesses to be here next Monday. I just want to understand that, when we do get to studying the witness list, we're not going to make the study start the next day, when there's no time for witnesses to be invited properly and to have that discussion, and we give time for the clerk to invite the witnesses, get them their headphones and do this properly.

    I would have thought, if we did this today and we resumed the bill on Thursday, we would then have the opportunity to invite the witnesses properly over the next few days and start on Monday. I point out only that, if we get to that on Thursday, we can't expect to start on Monday.

    Thank you, Madam Chair.

    Mr. Moore, is this on the same point? I have many speakers.

    If that's a different one, please go ahead.

    On your point, you indicated that we would start committee business at 12:30 p.m. It's 12:30 p.m. now.

    In no way, shape or form should anything that's happening on Bill C-273 impact what we're doing on our study on anti-Semitism.

     I think we should go to committee business now and that we should pick this up at some time in the future. For now, we have an agenda for today, and I think we should stick with it and go on with our consideration of committee business.

    I believe it appears to be in order. I don't hear anyone objecting to that, so I'm going to ask for five minutes. We need five minutes, I'm told, in order to change settings, and it will be in camera.

    I would ask those who are not allowed to stay to please leave, but I think that's what the clerk will be doing.

    Thank you very much.

    [Proceedings continue in camera]