Friday, May 29, 2009

Charlottetown Senator Percy Downe recently raised the concerns of the Prince Edward Island Teachers’ Federation with regard to Bill S-209, An Act to Amend the Criminal Code, during second reading of the bill in the Senate Chamber on Thursday, May 28, 2009. The proposed bill removes the justification in the Criminal Code available to schoolteachers, parents and persons standing in the place of parents of using force as a means of correction toward a pupil or child under their care.

“I was contacted by the former President of the Prince Edward Island Teachers’ Federation on behalf of Prince Edward Island teachers who expressed concerns about the proposed bill. When Bill S-209 was moved for 2nd reading, I wanted to bring the issues of the teachers to the attention of Senators so that they can carefully review the legislation before a vote is held,” said Downe.

The Canadian Teachers Federation has been clear that it cannot support the proposed amendments to Section 43 of the Criminal Code, as contained in Bill S-209.

The loss of Section 43, without replacement of some sort of protection for teachers, would put Island teachers at great risk of assault charges for as little as breaking up a fight or protecting students from harming themselves or others.

In 2004, the Supreme Court of Canada ruled that Section 43 of the Criminal Code did not violate the Canadian Charter of Rights and Freedoms. In that case, the Supreme Court of Canada specifically addressed what would constitute reasonable force by a teacher, in that Section 43 never permits teachers to use corporal punishment; it does not protect the use of force by a teacher when that force is motivated by frustration, loss of temper, or an abusive personality; and it protects teachers who use force reasonably under appropriate circumstances.

The impact of the amendment contained in the proposed bill introduces new concepts such as “excessively offensive or disruptive behaviour” and a definition of “reasonable force” that suggests a far greater degree of exposure to the prosecution of teachers under Section 43. The proposed amendment throws the current defence afforded by Section 43 into disarray and removes the essential protection afforded to teachers in Canada.

“It is very important,” concluded Downe, “that the opinions of teachers be considered before this bill can proceed.”

Debates of the Senate (Hansard)

2nd Session, 40th Parliament,
Volume 146, Issue 39

Thursday, May 29, 2009

Criminal Code
Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Hervieux-Payette, P.C., seconded by the Honourable Senator Carstairs, P.C., for the second reading of Bill S-209, An Act to amend the Criminal Code (protection of children).
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Hon. Percy E. Downe: Honourable senators, I received correspondence from the Prince Edward Island Teachers' Federation indicating that they are concerned that the loss of section 43 in the Criminal Code, without replacement in the form of some sort of protection for teachers, would put Prince Edward Island teachers at great risk of assault charges for as little as breaking up a fight or for protecting a student from harming herself or himself or others. Can the honourable senator comment on that, please?

Senator Hervieux-Payette: My two previous bills purported to repeal the whole section and not replace it with what I have submitted to the chamber now, which we adopted in the last Parliament after very extensive consultations.

First, the judgment of the Supreme Court does not give the right to teachers to correct children. They established many limitations therein; for example, teachers cannot physically touch a child before the age of 2 and after the age of 12. Right now, it is only between the ages of 2 and 12 that a child can be hit.

The study conducted by Statistics Canada shows us that children are violently and physically touched mostly between the ages of three and six. As far as I am concerned, this is when a child's personality, identity and relationship with the rest of the world are forming. This is the worst age to touch a child physically. It is prohibited in this country.

The Supreme Court has interpreted section 43 and I propose to make modifications. These modifications were accepted by Senator Andreychuk and other members of the Standing Senate Committee on Legal and Constitutional Affairs. My hope is that our colleagues here will help us move forward so that Canada will be able to report to the United Nations that we now abide by the Charter of Rights.

Senator Downe: I have also received correspondence from the Canadian Teachers' Federation. They outline, as you correctly pointed out, the changes that you are proposing. I would like you to comment on their position.

They state that the impact of the amendment contained in Bill S-209 would create more problems than it would resolve. They believe that the amendment introduces new concepts such as "excessively offensive or disruptive behaviour" and a definition of "reasonable force" that suggests a far greater degree of exposure to prosecution under section 43. They further state that the proposed amendment throws the current defence afforded by section 43 into disarray and removes the essential protection afforded to teachers in Canada. Could you comment on that as well?

Senator Hervieux-Payette: That is not the only teachers' federation that has written to us on this question. I think the committee will hear their arguments, but I would like to differ with their opinion.

Honourable senators, when a definition is too broad or when there is no definition, it is important to clarify. That is why I supported modifying the definition. We have the New Zealand experience. We can certainly contact them again, as this is now 2009. When we had these exchanges with our New Zealand colleagues, they brought forward the same amendments and repealed the same section to provide more clarity.

We have other defences. We have the defence of de minimis, which means that if, in a gesture of impatience, you push your child because he or she is being too nasty, you will not go before the court; no judge will hear a case like that. Also, if two children are fighting each other and could be harmed, you have to use a certain amount of force. That is covered now, and I think there is a limitation on the kind of violence. The phrase "reasonable force" was too broad.

A case was reported either this week or last week in Alberta. A school bus driver was driving a disabled child who was a bit nasty. The bus driver put one of his stockings into the child's mouth, taped his mouth and then taped him to his seat. The judge said that was reasonable force. As a mother, if I had a disabled child and he was treated like that, I would certainly not think that it was appropriate to react in such a violent manner. The child has already had difficulty adapting to life. Moreover, you are brutalizing that child, which is totally unacceptable.

Honourable senators, I would like to pass along an anecdote. I was celebrating the anniversary of a friend who is a judge. I invited 15 judges to the celebration. Most, who were over 60 years of age, had been spanked when they were younger. That is why I went back into history to explain the origin of this behaviour. It is not because it was done before and has been done for centuries. We now have scientific evidence that this behaviour traumatizes children and has a bad influence not only on the individual but also on society as a whole in terms of creating a shadow of violence.

Honourable senators, we are not being innovative here. We are 20 years behind Sweden and several years behind most OECD countries.

Senator Downe: I appreciate the senator's comments. I am not in any way advocating violence towards children; I am raising the concerns of the Canadian Teachers' Federation and the Prince Edward Island Teachers' Federation as they have been relayed to me.

My understanding is that the Canadian Teachers' Federation is opposed to this bill because they are concerned, as is the P.E.I. Teachers' Federation, that there are more likely to be false accusations and teachers being accused of offences. This will be damaging for the teachers and their families. I hope these issues are fully covered in committee.

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For further information:
Senator Percy Downe: 613-943-8107
Or toll free at 1-800-267-7362   
www.sen.parl.gc.ca/pdowne

Sent to: Downe, Percy E.; pehorne@peitf.com; cdstjean@edu.pe.ca; John Staple; angela_walker@cbc.ca; Wayne Thibodeau; gmacdougall@theguardian.pe.ca; news@cfcy.pe.ca; newsroom@theguardian.pe.ca; news@ocean100.com; schapman@newcap.ca; news@magic93.pe.ca