Justice committee  No, I agree with my colleague and have nothing to add.

Justice committee  Mr. Fortin, I can't speak to that subject. As for what the limits of the changes that should be considered might be, how they could be made and when that would be done, those are questions that I think should be put to the minister. Generally speaking, however, section 43 is situated in the part of the Criminal Code where certain defences are enumerated.

Justice committee  We can't answer that question.

Justice committee  We'd have to take a look and see if there are any such examples in the specific case of indigenous residential schools. We might find some if we look. Having said that, I would encourage you as well to look at the examples that Judge Arbour cited in dissent in the Canadian Foundation for Children, Youth and the Law case.

Justice committee  I'll answer that, and then my colleague may want to clarify a few points. I can see she wants to speak. I would say you're essentially right in that section 43 provides a defence in a situation where a parent or teacher, in certain circumstances, makes a reasonable use of force against a child under his or her responsibility.

Justice committee  Yes, one could rely on other sections or common law defences. However, we can't answer your question in an absolute manner given the existence of section 43. In a way, this is the point that Judge Arbour made in Canadian Foundation for Children, Youth and the Law. Other defences might apply, but, since section 43 exists, it's hard to know how far it would actually be read down.

Justice committee  Since the offence of assault is quite broadly defined, that situation could definitely result in criminal assault charges. Of course, that would depend on the facts of the matter. It would have to be determined what had actually happened and whether the individual had simply tried to separate two quarrelling children.

Justice committee  My answer will be virtually the same, Mr. Fortin: It will depend on the facts. I won't repeat myself, but the situation will be almost the same. You mentioned persons who exercise parental authority. That's a term that currently isn't used in section 43. I'm a civil lawyer myself, from the Barreau du Québec, so I can tell you that it's a term specific to Quebec.

Justice committee  With your permission, I'd like to add something. The purpose of the report is essentially to examine the use of corporal punishment in the residential schools, but also more broadly. Section 43 actually normalizes the use of violence in the form of corporal punishment, which has an impact.

Justice committee  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.

Justice committee  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.

Justice committee  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.