THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
First Session, Thirty-eighth Parliament, 2004-05
Hearings: OTTAWA, Monday, April 11, 2005 4 p.m. - Issue No. 9 - Seventh meeting on:
Examine and report upon Canadas obligations in regards to the rights
and freedoms of children.
MEMBERS OF THE COMMITTEE
The Honourable A. Raynell Andreychuk, Chair
The Honourable Landon Pearson, Deputy Chair
The Honourable Senators:
*Austin, P.C., (or Rompkey, P.C.), Baker, P.C., Carstairs, P.C., Ferretti Barth, *Kinsella, (or Stratton),
LeBreton, Losier-Cool, Oliver, Poy
*Ex officio members
Change in membership of the committee :
Pursuant to rule 85(4), membership of the committee was amended as follows:
The name of the Honourable Senator Baker, P.C., substituted for that of the Honourable Senator Ppin (April 7,
The Honourable Irwin Cotler, P.C., M.P., Minister of Justice.
Department of Justice Canada:
Lise Lafrenire-Henrie, Senior Counsel and Coordinator for Family Law
Elaine Mnard, Counsel, Human Rights Law Section;
Carole Morency, Senior Counsel, Criminal Law Policy Section.
OTTAWA, Monday, April 11, 2005
The Standing Senate Committee on Human Rights met this day at 4 p.m. to examine and report upon Canada's
international obligations in regards to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the Chair.
The Chairman: We are here to examine and report on Canada's international obligations in regard to the
rights and freedoms of children.
Before I turn to the minister, I should put on the record that Mr. Volpe had an emergency, which I think Mr.
Cotler will go to also at five o'clock, so we will have only one witness before us today.
I should also like to welcome a parliamentary delegation that is composed of parliamentarians from the Czech
Republic, Slovenia, Latvia, Lithuania and Estonia. They are here as part of CIDA's parliamentary study tour. I
welcome you to this session.
Mr. Cotler, you are well known to this committee, and you are well known for the issues you have dealt with
around human rights and, in particular, children. I will not make a formal introduction. I simply wish to
welcome you to the committee. We have been studying the Convention on the Rights of the Child, and we are
looking at ways and means to give more substance in Canada to this convention. As such, we looking for the most
appropriate ways for Canada to give full compliance to this convention and to see how we can further the
implementation of human rights legislation within Canada.
We will be attempting to make recommendations both for the Public Service of Canada to the Government of
Canada and to the Parliament of Canada. We welcome your input and your expertise on this topic. Mr. Minister, I
presume you have an opening statement. Following that, we will go to questions.
The Honourable Irwin Cotler, Minister of Justice: Thank you, senator. I
wish to express my appreciation for the opportunity once again to appear before this committee, and in
particular as part of your review of Canada's international obligations in regards to the question of the rights
and freedoms of children. I want to commend you for undertaking this initiative, which dovetails perfectly with
the fifteenth anniversary of the coming into effect of the International Convention on Children's Rights. At the
heart of this review are in fact the most vulnerable of the vulnerable, namely, children. Upon my appointment as
Minister of Justice and Attorney General of Canada, I identified the protection of vulnerable persons, the
protection of children, as one of my priorities. The test of a just society, a society organized around the
principles of equality and human dignity, is how it treats its children and other vulnerable persons, how we
protect them from disadvantage and discrimination.
Also at the core of this review is the United Nations' Convention on the Rights of the Child the Magna
Carta of children's rights which has been ratified by more countries than any other international instrument
and which has just celebrated its 15th anniversary.
So I commend the committee for undertaking this important review. I also wish to acknowledge and welcome at
the outset of my remarks the visiting parliamentarians from the Czech Republic, Estonia, Latvia, Lithuania and
Slovenia. As I had an opportunity to mention to some before I began my testimony, I had the pleasure of visiting
each of those areas, and I am delighted to welcome them here today to our hearing, to the Canadian Parliament,
and to Canada.
Canadian children are protected through a multi-faceted network of systems comprised of federal, provincial
and territorial laws, policies and programs as well as the broader international law framework.
Despite this comprehensive framework of legislative, policy and programmatic protection, Canadian children
continue to remain vulnerable. For example, data from Statistics Canada indicates that in 2002 children under 18
years of age represented 23 per cent of Canada's population. In a subset of police-reported incidents, children
under 18 accounted not only for about 24 per cent of all victims of assault, which would be bad enough, but also
for 61 per cent of victims of sexual assault and 20 per cent of all victims of physical assault. It was also
revealed that children and youth are most victimized by someone they know 51 per cent by friends or
acquaintances, 25 per cent by family members, and 18 per cent by strangers. We know that youth may escape sexual
and physical violence at home only to become involved in street prostitution just to survive.
In 2004, the RCMP estimated that 800 persons are trafficked into Canada annually and that between 1,500 and
2,000 persons are trafficked from Canada into the United States. Women and children are the primary victims of
this human trafficking.
Also in 2004, the UN Special Rapporteur on the situation of the Human Rights and fundamental freedoms of
Indigenous peoples, noted in his report on his visit to Canada that The economic, social and human indicators
of well-being, quality of life and development are consistently lower among Aboriginal people than other
We need to remain vigilant and continue to work together with respect to the protection of Canada's children
In May 2002, the international community joined together at the UN General Assembly's special session on
children to reaffirm its commitment to promote and protect the rights and freedoms of all children. Canada not
only joined that consensus, but under the leadership of Senator Pearson Canada's children's senator, as she is
most appropriately characterized Canada was at the forefront of helping to build that consensus.
Two years later, still under Senator Pearson's unwavering direction, the Government of Canada submitted its
National Plan of Action affirming our commitment to make children and families a national priority and to
continue to work with our provincial and territorial governments, stakeholders, and the public toward this end.
This is equally my commitment and my responsibility as Minister of Justice and Attorney General of Canada,
namely, to ensure that the pursuit of justice and equality enshrined in the Canadian Charter of Rights and
Freedoms is reflected in international instruments such as the children's rights convention and that they are
realized and implemented here in Canada. Accordingly, I should like to highlight some of our recent and ongoing
efforts that support this commitment in concrete and meaningful ways.
The first is the use of the criminal law as a human rights protection regime for the protection of children,
the most vulnerable of the vulnerable. On October 8, 2004, I introduced Bill C-2, protection of children and
other vulnerable persons, as this government's first piece of legislative business in this Parliament,
reflecting the priority of this bill and fulfilling a Speech from the Throne commitment to better protect
children. It proposes significant criminal law reforms that will further safeguard Canada's children from those
who would try to sexually exploit, abuse or neglect them. As well, the proposed legislation will enhance the
ability of the criminal justice process to better meet the specific needs and sensitivities of children as
victims and witnesses as part of the five-fold package of criminal law reform.
Bill C-2 builds on other related government initiatives including the national strategy to protect children
against sexual exploitation on the Internet, which was launched by the Deputy Prime Minister and Minister of
Public Safety and Emergency Preparedness in May 2004 and includes the newly launched national tip line
Cybertip.ca. I believe that the National Strategy, together with Bill C-2 and our existing Criminal Code
protections, provide Canada with one of the most comprehensive criminal law frameworks for the protection of
children from exploitation in all its forms.
We have also committed ourselves to table legislation to better protect against human trafficking, what has
been referred to elsewhere as the new global slave trade, with women and children being its primary victims. In
addition, we are currently developing a comprehensive federal anti-trafficking strategy to coordinate and
enhance federal anti- trafficking responses in three areas that is, prevention, protection of its victims, and
prosecution of human traffickers. As this work continues, we have undertaken numerous measures in the past year
to build partnerships and increase awareness and understanding of human trafficking as a global and domestic
problem and to enhance our current responses to it.
The third initiative is the Youth Criminal Justice Act. Our commitment towards children is also found in the
youth justice renewal initiative, a comprehensive and multi-sectoral initiative guided by the principles of the
children's rights convention itself. One of the key elements is the new Youth Criminal Justice Act, which came
into effect in 2003 and which recognizes the children's rights convention in its preamble. The legislation is
based on the principle that young people have not only Charter rights as part of our Canadian citizenry as a
whole but also special protections of their rights and freedoms.
Taken as a whole, the new legislation ensures a fairer and more effective criminal justice system for youth,
through reducing the numbers of youth going into the formal justice system, reducing the over-reliance on
incarceration in Canada, and increasing rehabilitation and reintegration measures.
It establishes a youth justice system that is consistent with the greater dependency and vulnerability of
young persons and their reduced level of maturity; that provides enhanced procedural protections to youth to
ensure that they are treated fairly and that their rights are protected before the law; that emphasizes
rehabilitation and reintegration of youth; that ensures timely interventions, especially important given young
persons' perception of time; and that reduces the number of young people needlessly brought into the justice
system and into custody.
The fourth component is a child-centred family justice strategy. Our child-centred family justice strategy
reinforces that the needs and the best interests of children must come first during the separation of their
parents. When parents become involved in protracted conflict during separation, the negative consequences for
children are aggravated. While we cannot eliminate such conflict, we remain committed to family justice system
reform that will help to make the system less adversarial and will provide parents with the tools they need to
reach parenting arrangements that are in their children's best interests.
The fifth component is racism and action against racism. I am pleased to note the recent launch of Canada's
Action Plan against racism which will, amongst other things, promote diversity and combat racism, assist victims
and groups vulnerable to racism and related forms of discrimination and will include education for children and
youth on diversity and anti-racism.
As I said elsewhere, we seek a society in which there is no sanctuary for hate and no refuge for bigotry.
Let me move now to a sixth issue, an initiative that is of a particularly disturbing character. I have
mentioned that the International Convention on the Rights of the Child was ratified more rapidly by more
countries than any other international treaty. That is one side of it. The double impact here is that more
nations violate that treaty than almost any other treaty in that regard. As a result, millions of children the
statistics are simply numbing find themselves in alarming situations where they are as much hostage as they
As I speak to you today to give you some very quick data it is estimated that 2 million children are
involved in prostitution or the pornography industry. Some 180 million young people are involved in the worst
forms of labour. I have spoken about trafficking, and it is estimated that 1.2 million are being trafficked
every year and that 5.7 million have been forced into debt bondage or some form of slavery. Children make up
half of the world's 40 million internally displaced people and refugees.
What is true and disturbing regarding violations of children's rights generally is even more compelling as
regarding the violation of the rights of children in armed conflict in particular. At any given time, over
300,000 child soldiers, some as young as eight, are exploited in armed conflicts in more than 30 countries
around the world. More than 2 million children are estimated to have died as a result of armed conflict over the
last decade, with 6 million being seriously injured or permanently disabled. Between 8,000 and 10,000 children
continue to be killed or maimed by land mines each year. In a word, the plight of war-affected children is
clearly one of the most devastating tragedies of our time. The statistics of millions of children caught up and
scarred by the brutality of war and conflict not only numbs the pain, but also they may obscure the tragedy. We
are speaking of children who have lost their parents, their homes, their schools, their neighbourhoods, all the
components of human security.
In summary, these tragedies of children's rights must end. Behind each of the above statistics is a human
face. Each child has a name. Each child has an identity. Each child is a universe. It is imperative that we as a
global community mobilize a constituency of conscience on behalf of children's rights, particularly war-affected
Madam Chair, these are a few specific examples of current initiatives that protect the welfare and best
interests of children and youth and our commitment in that regard. As Minister of Justice, together with my
department, we work to realize these objectives on a daily basis through all federal government legislation and
policy that we develop, support, and on which we provide legal advice.
Finally, as Minister of Justice, in that regard, one of my duties is to ensure that our legislation is in
compliance with the Charter of Rights and Freedoms, and our international human rights obligations, including
the children's rights convention. Prior to Canada's ratification of the CRC, a thorough review of federal
legislation was undertaken by the Department of Justice to ensure that existing laws met our new international
Since that time, we have continued to review all proposed legislative and policy initiatives that have a
direct impact upon children to ensure compliance with the Charter, the CRC and other international human rights
obligations. In so doing, we consider children's rights from a contextual perspective because if we are to truly
promote a child's best interests, it is necessary to consider all of their rights together.
There is, of course, in this aspect the federalist principle. Although Canada's approach to implementing its
international obligations into domestic law and policy may differ somewhat from other states, the CRC itself
recognizes that states are organized in diverse ways and acknowledges that it is up to each state to determine
how best to comply with its treaty obligations.
Given, therefore, that Canada is a federal state and that jurisdictions on many issues relating to children
fall to the provinces or are shared with them, the federal government respects the importance of working with
the provinces and territories, both before the Canadian ratification of an international instrument as well as
afterwards, to ensure that Canada meets our international obligations.
There are different ways that children's voices can be and are heard by government. As we all know, within
Parliament, Senator Pearson has, in particular, worked tirelessly to bring a child's lens and a child's voice to
I am pleased to note that both I and my department have worked with Senator Pearson and others to ensure that
that voice is heard.
Another way that we give effect to the voice of young people is to involve them, as was done in the
development of our Youth Criminal Justice Act and as is reflected in the act's specific guarantee that young
persons have the right to be heard and to participate in processes that lead to decisions that affect them.
In closing, I will give the last word to a child. Some of you have heard this anecdote before, but I will
repeat it here again because I believe it is particularly appropriate in the context of our discussions that
is, that one of most important human rights lessons I was taught was taught to me by my daughter when she was 15
years of age. She came to me one day and said, If you want to know what the real test of human rights is,
always ask yourself, at any time, in any situation, in any part of the world, is it good for children? Is what
is happening good for children? That is the real test of human rights. That is the real test of justice. With
her words, I conclude the presentation.
The Chairman: I appreciate that you have touched many of the areas that we have commenced studying,
both on the national level and the international level. I am sure your officials have made you aware that one of
the debates we are having in this committee is whether the Convention on the Rights of the Child should be taken
strictly as a rights-based convention, as the committee has said and as we have said in Canada. If it is a
rights-based convention, children have rights, and to be able to exercise those rights in Canada would we not
need to have enabling legislation, to the extent that the federal government can do so, taking into account the
federal-provincial. We have had witnesses who have said that we need implementing, enabling legislation at the
federal level. There are others that argue that it is an evolving issue.
Where do you come out on this debate?
Mr. Cotler: I have read some of the testimony and the comments. I appreciate the children's rights
advocates. Some of them have suggested that the federal government should incorporate the Convention on the
Rights of the Child into domestic legislation, and in that regard I want to make two points.
The first is that international law treaties, unlike in other jurisdictions, are not automatically part of
Canada or self- executing, to use the term that has been employed by some academics in this regard. In other
words, an international treaty cannot form the basis of a cause of action in domestic courts. Another factor is
our federal system and the manner in which our rights are very often a matter of shared jurisdictions. Having
said that, I do believe that the International Convention on the Rights of the Child is a child-based human
rights treaty. I also believe that some of our legislation has already incorporated elements of that treaty into
domestic law. There may not have been one comprehensive domestic implementing statute, but if you look at the
Youth Criminal Justice Act, in its preamble, it refers expressly to the children's rights convention.
If you look at the recent legislation that we introduced with regard to the protection of children and other
vulnerable persons, it enacts protections that specifically relate to rights in the international Convention on
the Rights of the Child.
The fact that international human rights treaties may not have an expressed comprehensive incorporation into
domestic legislation is not to say that these treaties are not considered when domestic legislation is in fact
enacted and that, in fact, we do not enact and implement those obligations under those treaties as part of
domestic legislation. For example, drafting instructions for legislation expressly requires authors of any
memorandum to cabinet to inform cabinet of any international agreements to which Canada is a signatory that
would have a bearing on the proposed legislation in accordance with the guide to making federal acts and
regulations. Similar rules would apply with respect to regulations.
Drafters may refer pending legislation to the human rights section or to the international section with
respect to any issue that is raised in the course of the drafting of the legislation that relates to an
international human rights treaty, of which the children's rights convention is the Magna Carta of children's
rights. At the same time, we are required to ensure that our legislation comports with the Canadian Charter of
Rights and Freedoms. I need not remind you of the Canadian Supreme Court jurisprudence that has said that
international law and in particular as Chief Justice Dickson once put it and subsequently affirmed in the
Supreme Court jurisprudence is a relevant and persuasive authority with respect to the interpretation and
application of the Charter and in that regard I would say with respect to the interpretation and application
of children's rights in the light of the Charter and in the light of our international law obligations such as
the children's rights convention.
The Chairman: I will leave that aside because I do have other questioners. I will come back, however,
minister, to the question of whether the convention is rights-based and whether children should be fully
afforded those rights by way of an implementation of the full convention in Canada. That is the nub of what we
will be discussing, not whether the government can take it in. It is permissive at this point and it is in the
opinion of the government when they take it into account.
The argument was that it would be binding on the government. We have heard witnesses on both sides that you
go at it slowly, in the best interests of the child, or you go on a right is a right is a right and as such the
child should have it.
From your answer, I am not sure exactly which side you are coming out on.
Mr. Cotler: I come down on the side of the court's reasoning in that regard, that it is a relevant and
persuasive authority with respect to the interpretation and application of our legislation, that we should
strive to ensure that our legislation indeed does conform to our obligations on the Charter and we seek to do so
in the course of enactment of that legislation. There is a presumption of conformity that is to say that
Parliament, when drafting legislation, intends to conform or comply with our international obligations. That, in
my view, has been the manner in which the relationship between international and domestic law has evolved in the
course of our jurisprudence and in the course of principles enunciated in relation to it.
I would conclude by saying that, first, it is a rights-based international treaty and that, second, we seek
to have our legislation conform to that rights-based international treaty. We do not have the expressed
obligation with regard to the international treaties as we do, for example, with respect to the obligatoriness
in the manner of the Canadian Charter of Rights and Freedoms, but there is a presumption of conformity with
respect to international law. We seek, even without that notion of obligatoriness, to ensure that our
legislation does in fact comport with our international obligations, having regard to the implementing issue
where you may have mixed jurisdictional approaches, federal, provincial and the like.
The Chairman: That will be our debate, whether it is a conformity test or a compliance test. Your
comments have shed some light on that.
Senator Pearson: Thank you very much, Mr. Cotler, for your presentation, which is very full. I paid
particular attention to your comment about vigilance. Anyone who has spent a lot of time with small children
knows that if you take your eye off them for a moment they can slip between the cracks, and sometimes it has
been my experience in dealing with the government that people have taken their eye off the children in their
issue and have not been paying enough attention.
I was a co-chair of the parliamentary Special Joint Committee on Child Custody and Access. We delivered a
report in 1998, For the Sake of the Children, in which we asked for some changes to the Divorce Act. It
was an agreement among all parties of the importance of moving ahead with making divorce and separation less
adversarial, and we had a long list about what best interests actually are.
There was a law introduced in the last session, but for me, the importance of trying to change that
atmosphere, change the language around custody and access for the sake of the children, remains a very high
priority. I know the Department of Justice has done a number of positive things, working across the country, on
child-centered family justice. I would like a little more.
We felt there was not enough space made for hearing the children's voice, paying attention to giving children
a chance to be heard. Not choice, but voice. I know that across the country that it is varied. For me, this is
an essential component. Do you have some comments about where we will go with our recommendations from the
committee on child custody and access?
Mr. Cotler: I certainly support the notion that, as a matter of principle and policy with regard to
the question of divorce law, reform has to be in the best interests of the child.
When we are speaking about the approach, if not the advantage, to replacing the terms custody and access
in the context of divorce and referencing the best interests of the child, I think a change in terminology can
perhaps assist in encouraging parenting arrangements that are specifically designed to respond to the unique
needs of each child. Therefore, we individualize the approach, and we also focus it on the best interests and
needs of the child. The focus, therefore, becomes one in terms of a child-centred family justice strategy rather
than the perception of winning or losing and the adversarial nature that is often associated with the terms
custody and access.
The development of a proposed parental responsibility and model organized around the best interests of the
child was informed by significant review and consultation on family law reform, including a parliamentary
Special Joint Committee on Child Custody and Access.
Legislative initiatives that would also address the issue of the family justice service delivery system and
the expansion of united family courts together with this parenting arrangement approach organized around the
best interests of the child would, I would hope, provide parents and children with the appropriate parenting
arrangements that are in the best interests of the child.
As to when we might specifically introduce this legislation, right now there is a legislative traffic jam
with regard to our bills that are already in the House, and so we would hope to be able to introduce that
legislation in the fall session. We are using the time now to better refine the legislation to respond to those
representations that have been made to us and to anchor the notion of the best interests of the child in a way
that will secure the best interests of the child when the legislation is reintroduced.
Senator Baker: I have listened to the minister's excellent address very carefully. Thinking about what
the chair had asked and why Senator Pearson's question related to hearing a child and why your last sentence to
this committee in your presentation was that children have a right to be heard, when you tie it all together and
you look at the most recent case law in Canada relative to this committee's mandate, that is, the international
obligations regarding the rights and freedoms of children, as far as international agreements are concerned, the
Hague convention certainly monopolizes a major portion of our case law today. One frequently sees the argument
being made by the respondent, or the respondent's lawyer, to an application that is made in a foreign
jurisdiction to return the child to the foreign jurisdiction for the very purpose that you outlined, for
determination of the question of custody and access, and the application is made pursuant to the Hague
There is a real problem with the question of whether or not the child will be heard. There is a lot of case
law in this. The Supreme Court of Canada in Thomson v. Thomson has interpreted article 12 of the Hague
convention to mean that the child, as the convention says, must be returned forthwith for a determination of the
question. However, the United Nations Convention on the Rights of the Child in article 12 makes it mandatory
that a judicial or administrative body in the determination of a question regarding a child shall S-H-A-L-L
hear the child. That is 12(1). Article 12(2) of the United Nations convention says that the judicial or
administrative body shall provide the means whereby the child's opinion will be heard by the administrative or
judicial body in determining the question relative to the child.
If we had enacted into domestic law in Canada the United Nations Convention on the Rights of the Child, it
would change substantially. You would bring a requirement in that it be considered by the court.
However, as the minister has told us here today, you can find cases of recent vintage not many where the
judicial authority has considered the United Nations Convention on the Rights of the Child. If you are using
Carswell or Quicklaw and you put into the search engine the United Nations Convention on the Rights of the Child
as it relates to children's rights, you will find very few returns.
The enactment of the United Nations convention into domestic law in Canada would bring a new requirement to
the judicial and administrative bodies, and that includes social services. It includes the City of Toronto. It
would include provincial responsibilities as well. I do not know if you want to comment on that, minister. I can
understand it if you do not comment on it. I think you have covered it fairly adequately, but not really as far
as the committee is concerned.
Mr. Cotler: Prior to your question, when I was asked about the children's voice, I left out of my
response, which I felt was getting long, the specific answer. You have allowed me to go back and reply to that,
although not necessarily as fulsomely as your overall question might warrant. I will invite the two experts with
me, Ms. Mnard and Ms. Morency, who have an institutional memory that I do not have, to add to my remarks if
Let me begin with why the Divorce Act does not contain provisions that require expressly the voice of the
child to be heard in the context of divorce proceedings. In your comments, does this comply, for example, with
article 12 of the children's rights convention? Under the parental responsibilities approach that we have with
regard to the Divorce Act, the Divorce Act would be amended and it would introduce by way of amendment a list of
criteria that the court would be required to consider in determining the best interests of the child.
One of those criteria would be, and I quote, the child's views and preferences, to the extent these can be
reasonably ascertained. The question is: How do you reasonably ascertain them? The views of a child can be
brought forward to the court in a number of ways. They can be brought forward by way of an assessment, by way of
affidavit of the child or a party to the proceeding, or by the lawyer who brings the views of the child forward,
and even through the testimony of the child.
I mentioned earlier that, among other things, in Bill C-2, which we introduced in Parliament, it does provide
for facilitating the testimony of a child, either as a victim or as a witness, if we are dealing with a criminal
law proceeding. Some of the matters you were referring to dealt with civil proceedings. Those are matters within
provincial jurisdiction with regard to the regulation of the testimony in that provincial jurisdiction.
Children were consulted in the course of what we have characterized as our child-centred family justice
strategy, which places the needs of the children first during the separation or divorce of the parents. It
provides parents with tools to assist them in reaching parenting arrangements in the child's best interests.
This gets to Senator Pearson and her role. One way we are seeking to give voice to children and the
Convention on the Rights of the Child is by way of Canada's national action plan for children, which responded
to the May 2002 United Nations General Assembly Special Session on Children, and the plan which is entitled A
Canada Fit for Children affirms the commitment to make children and families a national priority, to continue
our work with our provincial and territorial governments, and to continue to work with other stakeholders. It
was further developed by Senator Pearson that it specifically recognizes that children who are capable of
forming their own views should have the right to express those views freely in all matters affecting them, their
views being given due weight in accordance with their age and maturity.
In the national action plan for children, and A Canada Fit for Children, we have a specific reference not
only to children's rights and needs but to the importance of the children's voice.
Ms. Elaine Mnard, Counsel, Human Rights Law Section, Department of Justice
Canada: I will answer quickly about the Hague convention. Certainly, when you have a separation of parents,
or in this case, parent and child, it is a very difficult and sad situation, particularly so when you are
dealing across jurisdictions and you have a question of one participant living in one jurisdiction and another
parent living in another.
The Hague convention is a matter of civil procedure that falls within the provinces. Civil procedure falls to
the court and is a provincial matter.
However, we are aware of these concerns, and I would like to inform the committee that next week federal
departmental officials will be meeting with our counterparts, provincial and territorial, the CCSO, fairly
high-level discussions, and we will be discussing the CRC, the Hague convention, and a particular emphasis on
the views of the child.
Senator Baker: Thank you. That sort of answers the question.
The problem is, of course, that the Hague convention applies to children under 16, and it depends on which
province the adjudication is made in. There was a case recently in British Columbia dealing with a child of 14,
approaching 15. As the minister has stated, the conventions say, provincial laws say, the Divorce Act says, the
provincial children's acts say, the Hague convention says, the age and maturity the child's views should be
heard the judicial or administrative body will make the decision upon the age and maturity of the child.
However, when you look at case law, you see the interpretation of that and you cannot blame the judges because
you cannot go outside of what is accepted under the convention. The interpretation is that with respect to a
child of less than 14 years of age a judge would shun away from hearing that child.
The question becomes, as the minister pointed out, that there are various ways of accommodating the child's
views, and in the UN convention, under 12(2), it states that the child or a child's representative in agreement
with the child or a psychologist who has examined and questioned the child who is an expert in that field could
communicate to the court the desires of the child.
We still get back to the fact that, under the law today in Canada, as far as custody and access is concerned,
under international conventions to which we are signatories or that we have ratified, the right of a child to be
heard is not consistent across the country simply because the Hague convention supersedes any decision of a
court in a province. That is in the law, the legislation related to children, of each province. I do not know if
you want to comment, minister, as to whether or not, as the chair suggested a moment ago, we do need this kind
of balancing act. As you stated, internationally, let us not forget that the U.S. has not even ratified the
United Nations Convention on the Rights of the Child.
Mr. Cotler: There are only two countries that have not ratified, one being the U.S. and the other
being Somalia. This is a convention that more countries ratified more quickly than any other and that gives it a
certain cache in international law as reflecting the general principles of law recognized by the community of
I would be remiss if I did not invite Ms. Lafrenire-Henrie to respond. Given the repository of expertise we
have, I would be remiss if I did not invite the sharing of that expertise.
Ms. Lise Lafrenire-Henrie, Senior Counsel and Coordinator for Family
Law Policy, Department of Justice Canada: As Ms. Mnard said earlier, there are family justice services in
place in the provinces and territories to hear the children's views. Of course, as you mentioned, it is not
consistent across the country. One of the things the federal government has done is provide funding for family
justice services to help parents and others who are making decisions with respect to children to make decisions
in the best interests of children.
One of the elements of the legislative reform proposal that was part of the strategy was including the views
of the child, because we identified that as being a very important factor to consider in determining the child's
best interests. In terms of implementing that, we are, as Ms. Mnard mentioned, meeting with our provincial and
territorial counterparts next week to discuss the implementation of the convention, and we are focusing on the
voice of the child to see what is being done and what more we can do.
Of course, there is a funding component to this. It is not always possible to bring a child into court. That
can be intimidating. There are other methods of getting the child's views put before the court, but those
methods often have cost implications to them. We are looking at what is the best way to go about it. This forum
of FPT officials does provide the opportunity to have discussions about the best ways to put the child's views
We have identified the convention as being an important issue that people need to know about. One thing we
want to do in the next while is focus on what I call professional training material, and to focus on the
convention to see what can be done. With the child-support initiative, we prepared reference material for legal
professionals, so that they could better understand the reforms. With this strategy, we are hoping to prepare
material, including something on the convention, to help legal professionals better understand the convention. I
am hoping that will help address some of the issues you have raised.
Senator Losier-Cool: My question is very specific. All these conventions are indeed important but
several of the committee's witnesses mentioned the fact that the Convention on the Rights of the Child is not
well known to Canadians.
You have just told us of the best way to do more. Following up on a report recommendation, some witnesses
suggested creating an interdepartmental coordinating mechanism to make Canadians more aware of the convention.
What could be the role of such a mechanism and what kind of relations could be established between the
federal and provincial governments? We are thinking of Sweden, for example, which has a children protection
service. Can this example convince you to go further? Our witnesses think that Canadians are not really very
aware of this convention.
Mr. Cotler: There are things that we can do. First, you mentioned a coordinating mechanism. One
possibility would be to establish a unit responsible for this coordination function. I am looking forward to
this committee's recommendations. Another possibility would be to create a secretariat on the rights of the
child, which would be responsible for initiatives to protect children's rights, to make Canadians more aware of
these rights and to make a priority of this for everyone. It could also be a focal point for interdepartmental
coordination on the implementation of a comprehensive action plan based on projects initiated by Senator
A unit could also have specific responsibilities relating to our obligations in this context.
Senator Losier-Cool: We have been told by some witnesses to create something very independent, not
from a specific department in other words, an agency that could receive grievances. Because I am very involved
in official language, I think of the Commissioner of Official Languages who hears complaints. It could be a body
or agency, whatever the word is, that could receive grievances freely, as well as federal-provincial complaints.
Mr. Cotler: If I look at the experience thus far with regard to children's advocates and ombudspersons
in the provinces and territories, it is clear that they have performed important work in the area of children's
rights over the years. Therefore, I remain open to whatever you might come up with by way of a recommendation in
As you hear the witness testimony before you, including the testimony of the Minister of Canadian Heritage,
and explore the various options in this regard, be that of a commissioner for children's rights or the
establishment of a children's rights secretariat or the designation of a particular department or departments to
have the responsibility in which is housed a children's rights secretary there are various possibilities. As
the testimony will develop before you and as you come to make your recommendations, we will certainly be open
and responsive to those considerations and those recommendations that would in fact ensue from your
Senator Stratton: Minister, you said there was a traffic jam in the House of Commons. It is
interesting that you have stated that, because the Order Paper for the Senate tomorrow indicates that there are
three items of government business. I would like to know what the traffic jam is.
With respect to the Canadian Charter of Rights and Freedoms, I would expect that children are protected under
that Charter. You say we should take it a step further. The concern I have, and one that has been expressed to
me by many Canadians, is with respect to child pornography. I know this is going beyond the scope of this study,
but I think it is important because what is urgent in the minds of Canadian parents is child pornography. What
will you do about it? It is so accessible to everyone on the Internet, and yet the government does not seem to
be moving. We need an answer for those parents as to what the government is doing, because the perception is
that the government is doing nothing.
Mr. Cotler: I do not want to quarrel with the perception at this point because it may be that that is
what is out there. However, I do want to state that the reality is at variance with the perception. When I refer
to the legislative traffic jam, one of those bills caught in that traffic jam is Bill C-2, the first bill
having both symbolic and substantive purposes we introduced in this Parliament for the protection of children
and other vulnerable persons. That proposed legislation has express references to the protection of children
against child pornography and proposes a number of enhancements with regard to child protection.
I will enumerate them only, because time does not permit doing more than that. The proposed legislation
proposes to broaden the definition of child pornography to include audio formats, as well as written materials,
that have as its predominant characteristics and here we are broadening the definition the description of
prohibited sexual activity with children where that description is provided for a sexual purpose. The proposed
legislation creates a new prohibition against advertising child pornography. It increases maximum penalties for
child pornography offences on summary conviction from 6 to 18 months, and the maximum penalty on indictment is
now 10 years. It makes the commission of any child pornography offence with intent to profit an aggravating
factor for sentencing purposes. Importantly, not only are we expanding the nature of the offence itself, but we
are narrowing the nature of the defence.
In fact, let me say, because it sometimes gets misunderstood, there is no defence against child pornography.
Child pornography remains child pornography and remains a crime. The defence we have is where it is narrowly
organized around what might be called a harm's-based legitimate purpose defence, which would restrict the
availability of a defence to material that serves a legitimate purpose related to the administration of justice,
science, medicine, education or art and does not pose an undue risk for children. For example, if pornographic
materials are in the hands of an investigative authority, that is considered a legitimate purpose defence and so
As I say, we have broadened the crime itself. We have narrowed the defence to where it is only a legitimate
purpose and does not cause undue harm to children.
There are six specific initiatives for the protection of children. It dovetails also with our national
strategy to protect against sexual exploitation of children on the Internet. It dovetails with our newly
launched www.cybertip.ca, which was a Manitoba initiative and now a
national program to protect against child pornography on the Internet.
The whole phenomenon of cybercrime is something that we have to address, whether we are talking about hate or
pornography on the Internet. We have an explosion of hate sites and this legislation is there to give the
legislative underpinning that will allow us to address the particularity of child pornography on the Internet,
together with those two initiatives I mentioned. The national strategy for the prevention of children against
sexual protection on the Internet was launched in the course of our federal-provincial-territorial conference of
ministers of justice and attorneys general which we held in Ottawa in January. We held a large press conference
specifically devoted to that purpose. We launched www.cybertip.ca with a
view to combating child pornography on the Internet.
I am glad you raised this concern. I hope the legislative traffic jam will ease. I look forward to the moment
Bill C-2 goes to the Senate, gets adopted and becomes part of the law of the land.
Senator Stratton: If this is such an urgent bill, as you say, surely to goodness we could move it
along a little faster than we are. It could be fast-tracked, to get it through to us.
Mr. Cotler: Senator, it is in committee now. We are seeking to move it forward as quickly as we can.
We have asked the opposition parties as well to appreciate that this is not legislation for the Liberal Party or
the Liberal government. This is legislation in the interests of the children of Canada, to protect them against
all forms of sexual exploitation and abuse.
I believe, and I hope, that judgment will be brought to bear that people see this as part of what I call our
shared common cause and we will adopt this legislation for the good of all parties but in particular for the
good of Canadian children.
The Chairman: Mr. Minister, I look forward to debating this bill, Bill C-2, with or without
amendments, as I know there are some controversial sections, in the Standing Senate Committee on Legal and
I wish to thank you for attending here to share the current thinking of the government with respect to the
Convention on the Rights of the Child and other issues affecting children.
We are going to continue our discussion on how we can maximize the benefit of this convention for Canadian
children and other children. We thank you for contributing to the debate, and we may look to you in the future
to test some of our suggestions or recommendations.
The committee adjourned.