In light of recent allegations at a local elementary school, and a history of abuse in Canada’s residential schools, the NDP is urging Parliament to pass a bill that would ban the physical punishment of children. 

A private member’s bill that would make it illegal to use force to discipline children was put forward by federal NDP House Leader Peter Julian in the spring.

During a virtual news conference Thursday morning, Julian and Yukon NDP Leader Kate White urged Parliament to pass the bill, now awaiting its second reading.

“It is time now to repeal section 43 and eliminate the legalized use of force against children,” Julian said.

“When we think of the genocide that took place in residential schools and the horrific allegations coming out, even recently, around the Jack Hulland Elementary School, it is high time that the Canadian government took the action.”

Julian called Canada a “laggard” on this issue, saying more than 60 other countries around the world have banned physical punishment of children. The United Nations has also advocated against laws that permit corporal punishment.

In Canadian law, section 43 of the Criminal Code allows a limited form of corporal punishment: “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.”

Julian’s bill, if passed, would remove this section from the Criminal Code.

This controversial section of the Code has remained virtually unchanged since 1892, though there have been numerous attempts to reform it.

Most recently, Prime Minister Justin Trudeau’s government committed to implementing the Truth and Reconciliation Commission’s 94 Calls to Action, which included removing section 43. A subsequent Senate bill was introduced in 2015, but failed to pass a second reading.

At Jack Hulland, the RCMP are investigating the alleged abuses, and a class action lawsuit claims that between 2008 and 2020, children were isolated in small cubicles for hours as punishment for misbehaviour.

During Thursday’s news conference, White said the allegations against Jack Hulland staff might not technically be crimes under section 43. 

It’s unclear if this would be the case.

A 2004 Supreme Court ruling found corporal punishment isn’t reasonable “in the school context,” but teachers may use force to remove children from classrooms or secure compliance with instructions.

At Jack Hulland, students were allegedly dragged from classrooms at times and placed in specially-built rooms where they were held away from other students.

There have also been claims of teachers physically restraining students by the limbs to aid in discipline.

White told reporters Thursday that glass had to be removed from the doors of these rooms “due to children allegedly breaking the glass trying to escape.”

A majority ruling from that 2004 Supreme Court case, which reviewed whether section 43 violated the Charter rights of children, also found that a “reasonable” amount of force was acceptable to correct children’s behaviour. 

The Yukon’s Education Act doesn’t permit corporal punishment.

Former Yukon schools superintendent Donna Miller-Fry spoke alongside White and Julian at Thursday’s news conference.

She said current law doesn’t adequately protect children.

Miller-Fry also said she tried to raise the alarm about abuses at Jack Hulland with the Department of Education in her past role – to no avail.

She agrees with White that section 43 could protect those who committed abuses at the school.

“During open public school council meetings, Jack Hulland Elementary teachers and leaders have expressed with confidence that they have done nothing wrong and that they have the right to use force on children to drag them out of classrooms and restrain them as a form of punishment,” she said.

“Under Section 43 of the Criminal Code, they have a defence for this behaviour.”

The Yukon government has acknowledged that children were held in small rooms at Jack Hulland Elementary as punishment. Education Minister Jeanie McLean has said they have now been dismantled.

The breadth and scope of the use of holds at Jack Hulland is now under RCMP investigation. It’s believed holding practices stopped some time in 2020.

The government has worked to reach out to parents of children who might be victims of the alleged abuse, but White said Thursday that outreach hasn’t been good enough.

She said many parents of former and current Jack Hulland students have told the Yukon NDP they are “desperately trying to find out if their child or children are potential victims. 

“We’ve heard from them that the Department of Education is refusing to give them the information.”

The Department of Education has insisted it’s working to connect with all families of potential victims.

Should section 43 be removed from the Criminal Code, general assault provisions would apply to anyone who uses force against a child without their consent.

What this would mean for parents isn’t completely clear.

If the section is removed, they might then be breaking the law by restraining an uncooperative child in a vehicle seat, or physically holding a child to avoid a dangerous situation.

However, common law precludes criminal responsibility in emergency situations for conduct meant to protect oneself and others.

This defence wouldn’t apply to a parent spanking a child for misbehaving though.

As well, there would likely be a number of legal questions that would have to be answered concerning legal responsibility of parents and guardians should the law change.