Twenty-point plea for the repeal of Section 43 of the Criminal Code in Canada
Twenty-point plea for the repeal of Section 43 of the Criminal Code in Canada
WHEREAS;
1 – According to Section 43 of the Criminal Code, which came into force in 1892, it is still legal for parents and their legal representatives to use force to inflict corporal punishment, to physically strike their children, provided that the force is within reason ;
https://laws-lois.justice.gc.ca/fra/lois/c-46/page-5.html#docCont
https://www.justice.gc.ca/fra/pr-rp/jp-cj/vf-fv/cce-mcb/index.html
2 - The concept of “reasonable force” is a subjective notion which varies enormously according to individual perceptions and political, cultural, religious and moral convictions ;
Référence à la dissidence de l’Honorable juge Arbour, Paragraphe 185 de la décision
3 – Canada completely abolished the use of corporal punishment against adults in the Criminal Code in 1972 and this abolition was considered a very important step in the process of protecting human rights ;
4 – Section 43 of the Criminal Code violates the right to equality that section 15 of the Canadian Charter of Rights and Freedoms guarantees to children, therefore creating a distinction between children and other citizens ;
Référence à la dissidence de l’Honorable juge Deschamps, Paragraphe 219 et suivants / Paragraphe ; 245. Selon l’Honorable juge Deschamps; … Je conclus que l’article 43 viole les droits à l’égalité que par le par. 15 (1) de la Charte garantie aux enfants, et qu’il n’est pas invalidé à titre de limite raisonnable au sens de l’article premier (référence à l’arrêt Oakes).
Charte canadienne des droits et libertés: https://laws-lois.justice.gc.ca/fra/const/page-12.html
5 – Subject to the Oakes criteria of the Supreme Court of Canada decision, Canadian laws must respect the Canadian Charter of Rights and Freedoms ;
https://scc-csc.lexum.com/scc-csc/scc-csc/fr/item/117/index.do
6 – Children should benefit from the same protections against violence and threats of aggression as all other Canadian citizens, which is not currently the case under Section 43 ;
7 – Section 43 increases children’s vulnerability, as supported by research demonstrating the negative effects of corporal punishment ;
8 – On November 20th, 1989, Canada ratified the United Nations Convention on the Rights of the Child, in which Section 19 states the requirement to protect of the child against all forms of physical or mental violence, brutality or ill-treatment ;
https://www.ohchr.org/fr/instruments-mechanisms/instruments/convention-rights-child
9 – Corporal punishment of children is a violation under the United Nations Convention on the Rights of the Child since that consists of violence causing physical, mental or sexual harm or suffering ;
https://www.ohchr.org/fr/instruments-mechanisms/instruments/convention-rights-child
10 – The United Nations Committee on the Rights of the Child has recommended, on several occasions in the last decade, that Canada prohibits corporal punishment of children, and has expressed regrets, in its May 18, 2022’s report, that Canada has still not repealed Section 43 ;
11 - Canada is lagging behind on this issue since 65 countries in the world have banned corporal punishment between 1979 and today, and 27 other countries are currently in the process of reforming their laws in order to abolish corporal punishment towards children ;
12 – For decades, there have been many interventions, petitions and actions calling for the repeal of Section 43, in particular by senators, deputies, citizens as well as by several hundred organizations and groups in Canada ;
13 – The long lasting tradition of violent corporal punishment towards children, particularly in Indian boarding schools and day schools as well as in religious boarding schools, schools and orphanages across Canada, has caused harm and consequences to hundreds of thousands of children ;
https://publications.gc.ca/collections/collection_2012/cvrc-trcc/IR4-3-1-2012-fra.pdf
14 – On September 30th, 2021, the Government of Canada reiterated its commitment to implement the Truth and Reconciliation Commission’s 94 Calls to Action, including Call to Action #6 which demands the repeal of Section 43 ;
15 – It has now been 10 years since the Truth and Reconciliation Commission’s commissioners, on behalf of thousands of residential school survivors, issued this call to action to the Government of Canada ;
https://www.rcaanc-cirnac.gc.ca/fra/1524495412051/1557511602225
16 – The Canadian Medical Association has called for the repeal of Section 43 since 2012, and considers this section as a cover for bad parenting practices ;
https://www.lesoleil.com/a6f101b122a3d160a855f1bc64de5a22
https://ici.radio-canada.ca/nouvelle/577055/medical-abolition-fessee
Journal de l'Association Médicale Canadienne, Volume 184, Septembre 2012
17 – The repeal of this section must go through the legislative process and not the judicial process. In this sense, we are campaigning for the repeal of Section 43 and support the actions of MP Mr. Peter Julian (New Westminster-Burnaby, NDP) in the request to introduce Bill C-273 ;
18 – The dissent in the 2004 Supreme Court of Canada decision, Foundation for Children, Youth and the Law v. Attorney General of Canada, reflects the values of Canadian society today, a society that has evolved since 2004 ;
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2115/index.do
19 – In 2022, it is unacceptable that the Criminal Code, through section 43, offers a possible defense, or indirect authorization, to a parent striking its child, however moderately ;
20 - Canadian laws must evolve according to the values of society.
https://www.canlii.org/en/ca/scc/doc/1928/1928canlii55/1928canlii55.html?resultIndex=1
WE, Canadian citizens and residents, implore the Government of Canada to repeal Section 43 of the Criminal code, which states that : Every schoolteacher, 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.