THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
First Session, Thirty-eighth Parliament, 2004-05
Hearings: OTTAWA, Monday, December 13, 2004 4 p.m. - Issue No. 3 - First Meeting on:
Examine and report upon Canada's 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.), Carstairs, P.C., Ferretti Barth, *Kinsella, (or Stratton), Le Breton, Losier-Cool, Oliver, Poy
*Ex Officio Members
Change in membership of the committee:
Pursuant to rule85(4), membership of the committee was amended as follows:
The name of the Honourable Senator Ferretti Barth substituted for that of the Honourable Senator Chaput (December 7, 2004).
(4:00 pm-5:00 pm) Jeffery Wilson, Barrister, law firm Wilson Christen, LLP
(4:00 pm-5:00 pm) Maryellen Symons, Barrister, law firm Wilson Christen, LLP, Counsel for Canadian Coalition for the Rights of Children,
Jeffrey H. Wilson is a Certified Specialist in Family Law, who practices family law at the law firm Wilson Christen LLP. in Toronto, Ontario.
Maryellen Symons, Barrister, also from the law firm Wilson Christen LLP. is a member of the Ontario Bar Association, Feminist Legal Analysis - Executive for 2004-2005. She holds the position of Past Chair. The Ontario Bar Association does not have a masculist or child rights legal analysis committee.
(4:00 pm-5:00 pm) Nicholas Bala, Professor of Law, Acting Associate Dean, Queen's University, Faculty of Law
(5:00 pm-6:00 pm) Dianne Bascombe, Executive Director
The Standing Senate Committee on Human Rights met this day at 4 p.m. to examine and report upon Canadas international obligations in regards to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.
Senator Andreychuk: I would like to welcome our guests and witnesses to the Standing Senate Committee on Human Rights. We are embarking today on an historic study that will examine and report on Canada's international obligations in regard to the rights and freedoms of children.
We do not believe that this particular aspect has been studied by Parliament before and we look forward to the advice of Canadians, both experts and those with ordinary experiences, about how we can further the interests, rights and freedoms of children in Canada and elsewhere.
Today we have two sessions. First, we have Professor Nicholas Bala from Queen's University and then we have Wilson Christen, LLP, represented by Mr. Jeffery Wilson, barrister and Ms. Maryellen Symons, counsel.
Mr. Wilson will be making the first presentation. Mr. Wilson, are you representing the law firm as listed or are you here in your own capacity?
Mr. Jeffery Wilson, As an individual: My name is Jeffery Wilson and to my right is Maryellen Symons. We spend all of our days in the field of children's law, with some particular expertise in international children's law. I attended at the first report Canada made to the committee and at the 10th anniversary of the convention. We are here as practitioners. I am here in the capacity of an NGO.
Honourable senators, with the short notice and limited time available, Ms. Symons and I say thank you for the invitation. We propose to address two issues. They are the value of the Convention on the Rights of the Child as a legal instrument in Canada, and what can be done, if anything, to increase its value.
The first chore is to examine the value of the convention as a legal instrument in Canada, and the second exercise is discerning what can be done, if anything, to increase its value. When we say value we mean value for those under 18 years of age, in respect of whom the convention is meant as protective legislation.
Ms. Maryellen Symons, As an individual: On the first issue, the value of the convention as a legal instrument in Canada, its value is no more than that of beauty in the eyes of the beholder. The convention, as a law, is of no legal force or effect whatsoever, given what much of the community thinks of the vast majority of children, other than the few that we sexualize on billboards.
In the materials that we sent to you, we have excerpted from Wilson on Children and the Law a number of cases where tribunals have referred to the convention. You will also see at Schedule A in those materials a reference to a Supreme Court of Canada decision that stands for the proposition that our interpretation of Charter rights should be measured by those obligations to which Canada commits itself under international law. That case is Slaight Communications Incorporated v. Davidson 1989, 1, Supreme Court Reports, page 1038.
A competing argument that has been made and accepted by our Supreme Court has this result: An international convention, like this convention, that has been ratified for international treaty law but not incorporated into our domestic law, creates no binding legal effect. That case is Baker v. Canada, 1999, 2, Supreme Court Reports, page 817.
The Hague Convention on the Civil Aspects of International Child Abduction is an example of international law that has been incorporated into our domestic law. Another example is the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption, which has been adopted by 12 of the 13 provincial and territorial jurisdictions in Canada and has been assented to but has not yet come into effect in Quebec.
Those are the good examples. Now we would like to deal with the second matter, that of considering how one might increase the value of the convention, which, as I mentioned, has not been incorporated into domestic law, and therefore is of very limited, if any, use.
Following up on our brief discussion to this point, one reasonable response might be for federal and provincial legislation that incorporates this convention into domestic Canadian law. We would be naive to believe that those over 18 years have the capacity, let alone the inclination, to entrench within law the concept of a code of children's rights. For some reason, this is a task that surely transcends the law so that those under 18 years, as a visible minority, receive only the consolation prize of It is in your best interests, rather than, It is your right.
As a result, the only people you can hit in this nation with the presumption that it is reasonable discipline is a human being under the age of 18 years.
Back in the '70s, there was a commission chaired by Thomas Berger that urged the adoption of a code of children's rights in British Columbia. For a while, Hilary Clinton, then as a child advocate, was urging the adoption of a similar code in the United States.
Incorporating the convention into domestic Canadian law would not change Canadian life. It would, however, result in an obligation to create a grammar of law premised upon the child as an entity entitled to the exercise and protection afforded by rights balanced against reasonable limits an exercise no different than the grammar of law that we have developed in respect of women over the last 2,000 years.
If I stay any longer on this topic, some will allege I am engaged in a childhood fantasy. Therefore, looking more at reality, I turn to Schedule B of our submission. This is a copy of Articles 42, 43 and 44 of the convention. Article 42 requires state parties, of which Canada is one, to do what they can to make widely known the principles and provisions of the convention, and to do so by appropriate and active means. Article 43 is the provision that enables a committee on the rights of the child that consists of 10 experts of high moral standing and recognized confidence in the field covered by this Convention.
The duties of the committee are those set out in Articles 43 and 44. Unlike other international conventions, and a matter in respect of which we might grieve if we had more time, this convention offers no opportunity for any adjudication of an alleged violation of a stated right through a petition to an international forum. Instead, reflecting the everlasting tension between those under and over 18 years, the remedy is much more passive and paternalistic. The only arguable enforcement-like mechanism for the operation of a convention is the obligation of state parties to submit to the committee every five years a report on the measures they have adopted to give effect to the rights recognized in the convention and the progress made on the enjoyment of those rights.
Mr. Wilson: I attended as a spokesperson for the coalition of NGOs before the committee when it considered Canada's first report under the convention. I also was in Geneva as Canada's only NGO representative for the dialogue and reflective discussions commemorating the 10th anniversary of the convention. Of all that I have witnessed in 29 years of representing children, both nationally and internationally, the most effective and truly meaningful was the assembly of youth from around the world that the then Commissioner of Human Rights convened in Geneva upon the convention's 10th anniversary.
I happen to have had my other life ambition with me, that of investigative journalist with a tape recorder, and I taped the event. It was not the clearest of tapes, but when I returned to Canada, I was presumptuous enough to have about 100 copies made. I sent it out to everyone I knew who was in a position of authority, judges of the Supreme Federal and Provincial Appeal Courts, tribunal chairmen, some senators, Ken Dryden and Don Cherry.
What impressed me were the remarkable, realistic insights those under 18 years have into their status and the steps they must take to improve their position within the community. This is, honourable senators, of course, not much different from how children instinctually learn to take care of and parent their own parents for their own good.
You must appreciate that the committee, pursuant to Articles 43 and 44, receives reports within the same day. One report may focus upon how much food, if any, is on the table of the children of the reporting nation, and then but an hour later, another country is engaged in a sophisticated dialogue on legal rights only first-world children enjoy.
What a difference Canada could make if it put forward as its expert of high moral standing and recognized competence one of those from amongst us who was under 18 years. The tenure for committee membership is two years. I not only represent, as I am often required to do in a courtroom, I undertake to you that I can find a number of persons 16 years of age or over, some of whom I have represented, some of whom have emerged and survived child abuse within their homes, schools, prison or churches and in respect of whom you would be proud to have as a representative of our expertise.
Can you imagine what a difference it would make to the population of those under 18 years, and to the consciousness of those over 18 years, to have within a committee of 10 experts one who really knows of what she speaks as a experiential event, rather than the sounds of developed expertise derived from knowledge that has been diluted, censored, modified or ripened with age, therapy, money or power. This would be a step toward increasing the value of the convention as it currently operates. Thank you.
The Chairman: Thank you. Now we will turn to Professor Nicholas Bala, Queen's University. Again, you will speak, I understand, from your own research and interests and on a particular segment of the rights of the child.
Mr. Nicholas Bala, As an individual: Yes. Thank you. It is an honour to be invited here. I had only limited time to prepare. I do have written remarks. My oral remarks will amplify them and go in a slightly different but overlapping direction.
I am a professor of law at Queen's University, but I am speaking in a personal capacity. I have been doing work on a range of issues related to the legal status of children for over 20 years. I am going to talk a little about the convention in general and then a little about three areas where I think Canada is failing to meet its obligations under the convention, areas where the Senate has a responsibility, I would submit to you.
I think the convention is a very important document. It is also one that has limitations. It is a very ambiguous document, which is intended to apply in many different countries. In particular, the concept of the rights of the child, which is at the centre of it, is very ambiguous in some contexts.
The rights of the child refer to the rights that children will be exercising in their own capacity and with their own volition. In other contexts, rights of children are rights that will be exercised on their own behalf, and sometimes contrary to the wishes of a child. Therefore, it is a difficult document to read and apply.
Canadian courts have given it different interpretations. There have been cases in which the convention was ultimately determinative, or certainly very significant, in how Canadian courts dealt with a particular case. In Baker v. Canada, which Mr. Wilson mentioned, at least arguably, the convention was determinative in terms of requiring that the interests of a child were to be given significant consideration in deciding whether a parent would be deported from the country.
In March of 2003, we had the Reference Re Bill C-7 case, which was a challenge in the Quebec Court of Appeal to parts of the Youth Criminal Justice Act where the convention was cited and discussed, and other national documents were cited and discussed. Although not dispositive, it was certainly relevant to how the court interpreted its obligation, ultimately, how it interpreted the Charter of Rights. Both in Baker and in Reference re Bill C-7 and there are other cases in the world courts in which the convention has been cited, although it is certainly not binding on Canadian courts, it is significant in how it was interpreting, in particular in both those incidences, the Charter of Rights.
On the other hand, I certainly agree that the convention has had, both in the legal context and in the political sphere, only a very limited impact in Canada. Indeed, in some ways it has been disappointing to see its limited impact.
In particular, I would refer you to the most recent Supreme Court of Canada case that has interpreted and applied the convention. The Canadian Foundation of Children, Youth and the Law case was decided last January. The case involved a challenge to the section 43 of the Criminal Code, which deals with so-called spanking or corporal punishment and reasonable force for purposes of correction.
While I personally agreed with the ultimate outcome, I did not think that section 43 was unconstitutional. I was involved in that case. I was also disappointed in how the Supreme Court interpreted and applied the convention. The majority judgment of the Supreme Court of Canada held that every person, particularly children, have the right to be treated in accordance with the principles of fundamental justice. The Court was very dismissive of the notion that the best interests of the child could be a principle of fundamental justice. In fact, they specifically and baldly stated that the best interest of the child is not one of the principles of fundamental justice in Canada, and therefore, it had no constitutional significance.
The Supreme Court, I would submit, is not ultimately bound by its own decisions. They say one thing in one case and may in the future come up with a different interpretation. For practising lawyers, legal scholars and judges, it will be very difficult to interpret what seems to be a very blanket statement suggesting that the Supreme Court would not take the lead in interpreting and applying the convention in Canada.
While I think the convention will have impact at certain levels, it will be very limited in the judicial context. The major impact of the convention will be in the political and moral sphere in Parliament where people will say that Canada has signed the convention, and we have obligations to children and must honour them whether it is in regard to the children are autistic, living in poverty or caught in divorce. These are all contexts in which the Parliament of Canada has responsibility, and we must honour our commitments to the convention and our children.
It is interesting to see how the convention has been applied in other countries. Many other countries, some first world countries and some third world countries, have done much more to give the convention effect in their jurisdictions. Legislation or constitutional documents specifically refer to children in some countries, giving them rights or acknowledging the obligation to state to meet the needs of its children in the country's social and political future. We could be looking at having legislation that more clearly recognizes children.
Second, in a number of countries, there are children's ombudsmen or commissioners that have been appointed with responsibility for the convention and its interpretation and monitoring as well as related issues. Canada has sadly fallen behind.
Some provinces have commissioners for children, but many provinces do not have such a position. In some provinces, the commissioners have limited authority.
At the federal level, Senator Pearson has been an important advocate. We have clearly not done enough. At the national level, we need to have a person who has the responsibility to monitor the convention and ensure its implementation.
While I certainly commend this committee for looking into the convention, your intentions are broad and your resources are limited. We need to have a more effective ongoing independent body with responsibility.
The Government of Canada under the convention is responsible for reporting and involving NGOs. The Government of Canada is in a position of conflict of interest. With the greatest of respect to the people who work there, and they certainly work at it in good faith, too often the government of Canada has come before the United Nations committee and essentially said, We are doing enough, rather than saying, Where are we going? Where are we failing? The government is leaving it to the underfunded NGOs to document how Canada has failed to meet its obligations.
I submit to you that there is an expectation that we would have ongoing national monitoring by an independent group to serve the function on a systemic level and for individual cases dealing with children, particularly if we have legislation that would allow for that.
I will turn very briefly to three areas in which Canada has failed to meet its obligations under the convention. One of the difficult things is that for all these areas there is significant federal responsibility. There is also a provincial responsibility. In almost every area, there is an overlap of responsibility for federal and provincial governments. Clearly, the constitution was not written with children in mind, and there must be a series of changes. There is a question of legislative change and training and attitudinal change for professionals who work in the field. There are also resource issues. They all interact.
We have been failing our obligation in regard to children as victims of abuse and witnesses in the justice system. In that instance, Parliament has failed to act.
Bill C-2 would have dealt with child pornography law and children as witnesses. That legislation has been before Parliament for two years, and it never seems to go very far. This is one example of an area where the Senate and the House of Commons should be taking a leadership role.
There are many issues that are before Parliament. It seems that the ones regarding children always fall to a relatively low priority.
Marijuana reform legislation is important. Supporters are a well organized lobby. We do not see people lobbying for children so it goes to the bottom of the pile.
A second area that we identify in the paper is adolescence in the youth justice system. We had a major reform in youth justice law. In some significant ways, this is an improvement on the Young Offender's Act, and it does in some ways meet the requirements of the convention, particularly, with respect for the legal rights of children who are in the legal process. However, we have far too many young people who are not receiving the services they need.
There was a particularly graphic and tragic case. Mr. Wilson has been involved in trying to effect legal rights for young people in custody. Too often, young people in custody do not have the protections and services that they need. Our governments are failing them.
The R. v. E.T.F. case in Toronto dealt with a young person who was one of many young people abused within the youth corrections system. That judge cited the convention and said that we are failing to meet the convention. The only remedy was to discharge the youth without further sentencing.
A third area, and there are certainly others, is the area dealing with children in the context of divorce and parental separation. Senator Pearson wrote a report in 1998 saying that we had to do a better job for children, including ensuring that children have a voice in the justice system. Children whose parents are separating sometimes need legal representation in some cases. Some children need social workers and direct involvement in the process. That issue has been before Parliament since 1998, and we still have not yet had action.
I could certainly continue, but I will turn to questions.
The Chairman: I want to thank all the witnesses for coming. You had short notice. In the last couple of weeks, we have organized, and we wanted to start on this issue.
All three of you have pointed out that this is an area that deserves attention and probably has not received the type of attention deserved from parliamentarians. We hope that we can correct that and address some of the concerns that you have put forward.
Senator Pearson: Thank you for giving us a succinct summary of some of the issues about which you are concerned. I will ask you about the issue of the rights of aboriginal children. Professor Bala talked about the problems of cross jurisdictions. I have much concern that some of the conditions that we have found appalling in the case of the youth detention centres, for example, may be found in other areas such as reserves. Have you some thoughts about whether it is possible to use the convention to cross over some of these horrible boundary issues that seem to prevent us from bringing support to these kids.
Mr. Bala: I will let Mr. Wilson look up the answer, and I will just speak extemporaneously. There are provisions in the convention that specifically refer to cultural background and status. In Canada, we have a particular context in that aboriginal peoples are not simply a minority, but also have a particular, unique constitutional status. As the senators well know, there are particular issues in terms of history, culture and lack of respect that leads to aboriginal children having vastly disproportionate numbers of problems in every system one could talk about education, health, young offenders, child welfare.
If we had a national monitoring body, this would be an important area to address. Particularly at the federal level, where responsibility for Aboriginal peoples lies, that could be more directly addressed. Ultimately, all these issues relate to one another, and the process of improving the status of our Aboriginal children, in this context, will take many lifetimes. It has taken us 500 years to come this far. I hope we are close to the bottom so that things will begin to improve, although it may take us many generations. It is interesting and tragic, when one looks at the issues coming up now before Aboriginal people, that so many relate to the mistreatment suffered by those who are now Aboriginal adults, leaders and elders when they were children. I refer to the residential schools that degraded the capacities of those communities to deal with issues. We should be thinking about that area for the input of significant resources.
Mr. Wilson: When Canada ratified the convention, it had two reservations. When a country ratifies a convention, it can hold out qualifications; caveats. One of Canada's reservations was the provisions of the adoptions in Article 21 of the convention, which Canada did not buy into because they are inconsistent with the indigenous nations' version of customary care. Customary care is different than adoption.
Articles 8 and 30 can be specifically responsive to the plight of the First Nations. However, I am trying to persuade you not to regard the convention as the answer to the issues because that is the problem. To wonder whether anything in the convention can assist to redress the problem of First Nations is to delude yourself that this convention has some meaning. I make the point that it is not ratified into the Canadian law and so it has no binding nature and is more likely to be interpreted. It is of moral persuasion only. The argument can be made that because Parliament and the provincial legislatures have not incorporated the convention into law, the necessary implication is that we do not want to say, with the insidious effect that it is okay for everyone else in the world or when we are in the United Nations, not in our backyard.
Under Articles 8 and 30, I could go to court and explain what happens under Ontario's Child Welfare Act and most other such provincial acts except Manitoba, Saskatchewan and British Columbia. The legislation on child welfare has many problems when it attempts to deal with native persons because it clearly violates their indigenous rights. When I try to explain the convention to children who are 15, 16 and 17, eventually one character surfaces who has been listening to Eminem and asks, What good is the convention? That is a valid point. Mr. Bala might agree that it has moral persuasion but I can make the argument that for Canada to have, in some ways, a convention that does not have a binding, legal effect to be distinguished from other international conventions that it has ratified, is almost regressive. The convention's greatest power favours anything to do with the Third World because it raises the standard. In Canada, although I cannot get too excited given the poverty level here, one could make the argument that it is regressive. The convention appears to be good in the eyes of the courts but it is not effective because it is not binding. Its effect is the same as when I say there is a convention that states you cannot hit a woman but it has no binding effect. That would be a strange document. The people that I represent understand this contradiction very well.
The Chairman: On the point that it is not binding in Canada but could be binding, we heard from professors during a previous study on international instruments that there is some confusion in Canada as to what ratification means. One of you pointed out today that it obligates Canada to bring this international instrument within the ambit of our national law. We sign, we ratify and we announce to the world that we have ratified. In the minds of the people of Canada, that means we will be bound by it. As we started that study on international instruments, we brought to a broader group of Canadians the fact that ratification does not mean law of the land in Canada, either provincially or federally. People were shocked to learn that and wondered about signing something that has no effect in Canada.
At this time, the convention does not speak to us except as moral persuasion. Perhaps we could adopt a piece of enabling legislation that would state, for the purpose of federal law, that the convention would apply as though it were national law. In other words, we would conform and comply with the act such that if doubt were to arise, we would give full force and effect to the instruments. Would we be better off with that scenario? Would children be better off in Canada?
Mr. Wilson: If I were Robert Munsch, I would love you forever. However, I am not so my response would be: Provincially, the Children's Law Reform Act deals with disputes concerning custody access. The legislation contains a section that states that the provisions of the Hague Convention on the civil aspects of international child abduction shall apply to the law of Ontario. Senator, remembering that the convention requires ratification provincially and federally, that is an example of a jurisdiction taking an international treaty, the Hague Convention on the civil aspects of international child abduction, to deal with abduction internationally; and the legislature has made it part of Ontario law. If an abduction occurs in Ontario, we turn to the convention, and judges are bound to apply what the convention says for the purpose of Ontario law.
Let us consider the Youth Criminal Justice Act, in the criminal sphere, because it is federal. Say it contained a section that said for the purposes of the administration of this legislation, the convention on the rights of the child shall apply and be given full force and effect. From that point on, if Parliament were to pass it and subject to correction, it would become the law of the land and would have a binding effect. We could find similar legislation in each province, such as the Children's Law Reform Act. There would not be a problem determining where to insert one section that declared that Parliament or a legislature adopts the application of the convention.
Mr. Bala and others would say that it is unfair because many sections appear to be problematic, which is the problem with rights in any sphere. At least we would have an exercise of developing a grammar of law concerning children. That would be no different than what has been done with any other constituency. Courts would look at the convention, as we have done with other constituencies in our society, and determine it quite interesting because there would appear to be four contradictory sections. The courts would develop a grammar and then we would develop precedence of having real effect for Canadian youth.
Mr. Bala: In some ways I agree with Mr. Wilson but I have some differences. As a matter of law, you could enact legislation to say that Canadian laws have to be consistent and comply with the convention. If it were a constitutional document, there is no doubt but if it were a mere act of legislation, then you would have an issue that has arisen before. Under the Bill of Rights in 1960, some judges said that it was an ordinary piece of legislation and does not take precedence.
Assuming you would say this legislation has to take priority and precedence to other legislation, my concern is that the convention itself is very broad, very vague, deliberately so to let virtually every country in the world sign on to it. It raises questions that I do not think are particularly well dealt with by courts. There are cases in which it would be useful but you would start to run into issues. We had the issue of providing services for autistic children in British Columbia come forth in the Supreme Court of Canada. They said We in the courts are not well placed to make this kind of decision. That does not mean this is not an important issue but it should be dealt with by politicians in the context of spending. We do not know how judges would respond to that kind of legislation.
In many ways the convention is an aspirational document. I take the view that we are better off recognizing that, in many ways, it is aspirational. It may be interpreted in some context. It is important to have it, valuable to have it, not only in Third-World but also First-World countries and to recognize it is primarily a political document in the context of Canada. The way to give effect to that politics is to have an office responsible for monitoring in Canada and bringing that forward to the Canadian public and Parliament saying, We signed up to this convention and here are ways in which we are failing to meet those commitments. We have to do better and here are some suggestions. It is a political judgment. As opposed to saying, Let us litigate each and every one of these in the courts and let the judges deal with it. I would prefer to see an internal monitoring advocacy mechanism set up within the federal government to deal with it as opposed to enacting legislation and seeing how it would go. It is an achievable goal to have a national commissioner for children who would be responsible for monitoring, reporting internationally, and advocacy within the country. If you said, we expect Parliament to enact this legislation, a politician would say, are we handing over the running of the country to the courts? The answer is, we do not want to do that. Courts are not designed to do that, but it would be an interesting experiment if you did.
Senator LeBreton: Following up on Senator Pearson's questions when she talked about Aboriginals, you brought us to some unfortunate conclusions that this is an area where we have not done well.
What about other member states similar to Canada that have large Aboriginal populations like New Zealand and Australia? Have they done any better in this particular area?
Mr. Wilson: New Zealand has done much better than Canada in respect of this area. I cannot speak to Australia. The United States has not signed the convention.
Senator LeBreton: I did not mention the United States.
Mr. Wilson: In New Zealand, there is disparity amongst the provinces as well in terms of how they deal with the Native issue. The issue, reduced to its crucible is those provinces that consider best interests as a factor independent of Native culture, in which case, best interests is the trump card, versus those provinces who say Native culture is equivalent to best interests. You cannot separate the culture of a child or his heritage and tradition from his best interests.
Senator LeBreton: What has New Zealand done?
Mr. Wilson: New Zealand has kinship programs. As soon as we have identified the child as an indigenous individual, from that moment on the family is involved. To my knowledge, this is similar to three provinces in Canada that immediately take that approach. As soon as we identify the child as a First Nations child then it is a problem dealt with in the context of the First Nation.
Mr. Bala: I agree that in both the child welfare area and in the youth justice area, New Zealand and, I think even in my understanding, Australia, have probably done a better job. One issue is that, largely in Canada, it is a provincial area of jurisdiction, as Mr. Wilson points out, and we are seeing much variation between provinces in how that is dealt with. It has a significant political element to it. I am not sure the court system or an international document will be the way to get much on those sets of issues. It requires political will, legislation, programming, training and unquestionably, resources.
Mr. Wilson: There is an interesting difference that you see here. It is not simply reflective of me being a lawyer. I would argue that you can do what Mr. Bala is arguing, create a commissioner, a Danny Kay character to politicize. The key essential ingredient is that you come clean with the constituency, which is youth so that you tell them this document means nothing, it is simply a political or moral persuasion. The greatest ingredient for both adults and children on a consciousness level is to have the notion that you have remarkable resources and you have signed this document, not just for children, and it means nothing. Forget about what it tells children, think about what it tells adults; that we have signed the treaty, yet it has no impact other than on a moral basis.
The Chairman: We are starting our study and we would not be averse to recalling you to continue this debate.
Senator Carstairs: What I found most depressing about the court ruling on section 43, was that it led me to a greater debate which was, it is clear the children have no rights under the Convention on the Rights of the Child, but do they have any Charter rights?
Mr. Bala: Unquestionably, children have Charter rights. The courts, even with the Charter, which is a relatively easy document to understand compared to the convention, the courts have much difficulty because children have rights, and their parents also have rights and responsibilities. I view the section 43 decision as an attempt to see children in the context of their families, to recognize that parents have a primary responsibility for their children, and to respect parents' rights and responsibilities. I have viewed it optimistically in that the court narrowed the scope of section 43 significantly, and one can view that as a victory for children. One sees this in quite a few Supreme Court cases where they have this overlap between best interests of children and Charter rights, particularly those for children roughly under the age of 12, in which the view of the courts as giving parents rights often serves the best interests of children. As you move towards adolescents, where children can start to exercise rights themselves, we see cases of courts giving constitutional rights under the Charter to adolescents. The whole issue is, we do not expect children to be treated in the same way as adults. There is a question of, should we give 16-, 14-, and eight-year-olds the right to vote? Maybe not, so we have to think about which kind of rights and what kind of context.
Ms. Symons: When we talk about rights for adults and rights for children, it is easy to think these children are too young to exercise that right, so they cannot have it. What we should be thinking is, given the age, the maturity, the surrounding context of the child, in what way can that child exercise this right? What do we need to do to make it possible for the child to exercise the right in a way that is appropriate to the child's age, level of development, and surrounding social context? Instead of drawing lines and saying, below this age that right does not exist for children, ask how does it exist? How can it be made effective?
Mr. Bala: Rights always imply somebody has an obligation. It could be an obligation on the state or on parents. That is what made the section 43 case challenging to think about. If rights are against the state, one might have one view. If rights are against parents, the court had a different view.
Interestingly, in the section 43 case, they said that they would give parents a broader set of powers over children than they will give teachers. Context matters a great deal. There are cases in which the courts have not done enough to recognize the Charter rights of children.
Senator Carstairs: I have difficulty with having dumped section 43 into the courts. It is a political matter and should have been dealt with by politicians. I had difficulty with the interpretation that it was ok if you were 2 but not okay if you are 23 months and okay if your are 12 but not 12 and a half. That is my particular difficulty, because I would like to abolish the entire section. I am on record over and over about that.
A group of people came from Quebec last year to see me who presented me with a situation that children who had been taken into care because they have significant mental or adjustment problems, not adjusting well to society, are incarcerated with children who have committed criminal acts. When I began to examine this, it seems that is exactly what happens across the country. It seems quite wrong to me, if for no other reason than that one has clearly done anything to offend society and the other may have done something wrong to offend the society.
What is the prescription other than to suggest that there be two separate facilities? Do these children have any rights under the Charter? Obviously, they do not have any rights under the convention because you have told me that the convention has no rights as far as the children are concerned.
Mr. Wilson: It has many sections.
Senator Carstairs: I know it has many sections. The dilemma for me is, how do we deal with these children in an appropriate way?
Mr. Wilson: Section 43 started from a factual vacuum. There was no factual basis. Over the years, I have resigned myself to realizing that the only way you can win a children's right case is to base it on the one case that has a ripple effect. If you do it on a macro level, then too many policies and vested interests get attacked, and you do not get anywhere.
In the case you are describing, if there was one child who was challenged, emotionally, in an entirely inappropriate institution, would that child have any rights? In most jurisdictions in the country, the answer I would argue is yes. Could I have recourse to the Charter? The answer, I would argue, is yes, under section 7 of the Charter the life, liberty and security of the person.
The way to argue that would have to be as a function of the particular-fact situation. You do not hear much about those cases because of the time and money lost. You are not getting paid. You are spending a tremendous amount of time. It consumes the time of 100 divorces, and it pays one millionth.
It is incredibly time consuming to present the evidence and make a compelling case that a child's liberty and security of interest has been violated on a singular case. If you did it on a macro basis of a class action, it gets more complicated. If you did it in a factual vacuum, it is very complicated.
In child advocacy, you want to put before a judge, facts so compelling that you win on mercy. The mercy argument makes an incremental change in the rights of children, in general.
Mr. Bala: I agree with that general analysis. We have had individual cases in which cruel and unusual punishment has been raised, under section 12, by young people in custody facilities. That is an important area of advocacy. Mr. Wilson carried forward a case where that has been won.
The overlap of the child welfare system and the youth justice system is problematic. A particular child may have been abused and has a behavioural problem. Another young person may have various social problems and committed an offence. Those two may be treated the same and placed in the same facility. How are they being treated? Whether they are offenders or children who need protection, they are, in fact, being mistreated. That is the issue that has to be addressed. In some cases, that can be addressed through individual litigation.
I do not see individual litigation having a commissioner of children as one or the other. There is a place for both. When we talk about individual cases, another consideration is that a commissioner of children could bring those cases forward. There is a range of different ways in which individual cases can affect systematic change. There is a place for both those things.
Senator Carstairs: Do you have any concern about having a commissioner for children? I have that concern.
I watch child advocates operate. Politicians step back and say, I do not have to do anything more. You have a commissioner for children.
Mr. Bala: That is a possibility. There may be a tendency for some of that to happen. We would still be better off for having that person who can be an advocate. On the other hand, politicians can undercut the independence of that office, under fund it or whatever. There will be a tension there. If you have an independent advocacy office, you are more likely to have representation for children.
In some cabinets there is a minister for children. Looking at it from the federal perspective, one nice thing is that the federal government has limited direct service responsibility for children, compared to the provinces. You would not have as much of an overlap between direct service provision and ministerial responsibility in that kind of an office.
It could be an important office, particularly in relating it back to the international obligations that Canada has undertaken and reporting to the UN committee. It is important to have it independent from direct service provision.
Mr. Wilson: The exception is Native children where the primary responsibility, even though it has been delegated to the provinces, resides with the federal government and the federal ministeries. The child advocate would have to have some power. They must be able to take action. It would be a big issue if they could not take any action.
Mr. Bala: I completely agree with that. You would not want someone who is merely a public relations figure for the federal government to be the official childrens advocate. You would want someone with investigative powers to make recommendations or to directly provide remedies for children. The person should also have legal powers, a clear budget and autonomy.
Your question is a profound one. Does having an ethics commissioner mean that politicians can say we do not have to worry about ethics, because we have an ethics commissioner? Having an ethics commissioner, and similar officers, have highlighted the importance of the matter and given it some teeth.
There is a legitimate tension between the government and those offices. As long as they have the visibility, independence and powers, they improve the situation for the different kinds of issues with which they deal. The Auditor General is another good example.
The Chairman: I remind senators that we will discuss various options and that we pride ourselves in being a diverse society. There are Aboriginals and new Canadians who have come from different parenting styles. That is one of the compounding issues that we will have to take into account, as opposed to just one methodology plus Aboriginals. I was cautioned that parenting has been a personalized concept for many decades and we are trying to find some commonalty. Is it the legal route? Is it the supportive role of an ombudsman? We will have to wrestle it down.
Senator Poy: Are there areas of law that affect children's rights under exclusive provincial or federal jurisdiction? Which level would take precedence? Is there any crossover between the two?
Mr. Wilson: Immigration law is federal and there can be a crossover.
Senator Poy: Would that happen once the children are residents?
Mr. Wilson: Criminal justice is in the federal domain.
Mr. Bala: The Divorce Act is federal domain.
Senator Poy: However, separation is in the provincial domain.
Mr. Bala: In many of these areas, there is a federal element and a provincial element. For childrens services, more than many others, there are overlapping jurisdictions. Youth justice legislation, for example, is clearly federal. Child victims, child witnesses in the criminal justice system, Bill C-2, and child pornography are federal jurisdiction. The implementation of these laws, in part, is a provincial responsibility. In many areas there is some overlap but there is a significant area of federal responsibility in respect of children.
Mr. Wilson: There is sufficient delegation to avoid accountability.
The Chairman: We have come to the end of our time. I thank the witnesses for starting our study in this way because the information will frame our discussions on the extent to which we encourage the government to legislate the realities of the convention into Canadian law and the extent to which we can use other mechanisms to appeal to governments to utilize the concepts and objectives of the convention. Perhaps we will end up citing a bit of both; I do not know.
Have we misled the Canadian public? In the United States everybody knows that the Americans do not ratify but if they were to ratify, it would be the law of the land. It becomes automatic and so ratification is synonymous and Americans are aware of that. In Canada there is a great expectation that when we ratify, we are then benefactors of law, not just objectives. Should we approach our announcements in international conventions differently, to put a more realistic face on what the conventions could do? Would it assist people to live with a reality, as opposed to an expectation that does not exist?
Mr. Wilson: For children you should do a disclaimer. I am not being glib because we send out pamphlets and we educate. We have a cadre of advocates to advise on the meaning of the convention. We lead a number of children to believe, and I feel like I have to take the Fifth Amendment when I say this in the States, that these are their rights under books that we publish when we market the convention. Eventually, they realize the reality. I can leave it to others in terms of what adults think. However, children go through a process and you watch them because when they come to realize, it does not mean anything. Senators will have to struggle with that question.
Mr. Bala: There are many documents, sometimes even court orders that have an aspirational effect rather than a hard-cutting effect. There is a place for those aspirational, moral statements, as well as legal rights. I would not want us to discount making aspirational, moral political statements merely because they do not have legal teeth. There are obvious issues about public education of what international documents mean. There is particular complexity in the Canadian context, both federal and provincial, which was alluded to, and there are our obligations under international law.
I agree with Mr. Wilson that some publicity from the federal government is somewhat misleading. It is useful for people who have children in the school system in that they have rights within their families. Children having rights does not mean that they can hire a lawyer and go to court to have their rights remedied but it may mean that their parents should be aware of these things. Articulating the main sub-context would be helpful to children. We are close to Christmas and I do not think we should pass a law that says no child can believe in Santa Claus, even though Parliament could not enact a law that says there is a Santa Claus.
The Chairman : As this hearing is being televised, I wish to advise all the children that may be watching that there is a Santa Claus.
Mr. Bala: You heard it from the Senate.
The Chairman: I thank the witnesses for putting forward their views and setting the stage for our study.
Ms. Tara Ashtakala, Acting Coordinator, Canadian Coalition for the Rights of Children: The Canadian Coalition for the Rights of Children, CCRC, brings together over 50 national and international organizations and individual youth partners devoted to the promotion and implementation of the rights of children as described in the Convention on the Rights of the Child, as well as in other international instruments and initiatives. We monitor and respond to ongoing and emerging issues and incidents related to the rights of children with awareness-raising advocacy and analysis. We have no staff and all our activities are carried out by dedicated and exceptional advisers and members.
Our goal is that this country's domestic and foreign actions will reflect and contribute to a world that treats children with the dignity and care that all human beings deserve. The CCRC is grateful for this opportunity to address the Standing Senate Committee on Human Rights and to present our suggestions on how this government can further the implementation of its international obligations related to children's rights.
Honourable senators, Tommy Douglas was chosen as the greatest Canadian not only because he instituted our treasured health care system but also because the motivation behind all his initiatives was the conviction that every Canadian has the right to have his or her basic needs fulfilled. Moreover, the fact that he did not stop at medicare but also fought for other universal social benefits, like a national pension plan, demonstrated his belief that all of a person's basic needs are interconnected and equally important to his or her well-being.
That notion of indivisibility and interrelatedness resonates at the very deepest levels of the Canadian soul. However, the unprecedented consensus around the rights of children that has taken place in the international community is both inspiring and reassuring to Canadians. The near universal ratification of the convention and the unanimous support at the UN Special Session on Children for mainstreaming children's rights into international agendas parallel Canada's traditional support of human rights and multilateral cooperation. However, much remains to be done before we can say that our obligations under the convention have been fulfilled. Indeed, Canada has yet to meet all the concerns expressed by the Committee on the Rights of the Child in response to these countries' reports on the implementation of the convention. Until it does, the disparity among children subject to Canadian policies will undermine our progress on other fronts.
The recommendations of the CCRC in this hearing will focus on four areas where we can improve compliance. The first is consistency and coordination in the application of human rights. Just as the well-being of children must be considered holistically and from all aspects of their development, we must also view our obligations to them under different human rights treaties as indivisible and interdependent. That kind of mainstreaming of child rights consideration is needed within the Government of Canada. This country has a long and proud record of signing on to a diverse array of multilateral treaties and processes. An increasing number of government departments have international relations sections. Ministries that are likely to be involved in domestic implementation of treaties are sending representatives to negotiating sessions. Ministers and higher-level government officials are also increasingly leading these delegations. However, the CCRC's experience in trying to find a focal point within the government, and in particular within the Department of Foreign Affairs, for example, has been rather awkward. For example, a group of delegates to a treaty conference often is not aware of whom among their government colleagues are on the delegations to other treaty processes. Sometimes, they are not even aware of the existence of that other treaty even though the subject matter may be closely related.
For example, none of the officials from Health Canada who have been involved in domestic implementation of the Convention on the Rights of the Child or on the national plan of action were engaged with the negotiating team for the proposed UN convention on the rights and dignity of persons with disabilities.
Children are one of the more obvious areas of overlap with regard to the subject matter of treaties; not only with the realization that the indivisible and interrelated rights of children benefit from cross-fertilization and collaboration among the different Canadian representatives but the departments represented on these delegations also can benefit from the opportunity to share information that will contribute to treaty body reporting and domestic implementation measures.
We suggest that the wheel does not have to be reinvented. A model for interdepartmental coordination of international treaty law already exists. The Canadian National Committee on International Humanitarian Law is chaired by the Department of Foreign Affairs and its secretariat functions are carried out by the national Red Cross. Representatives of the Department of National Defence, the Department of Justice, CIDA and the RCMP currently sit on this committee. The suggested terms of reference for such committees could easily be replicated to create a similar interdepartmental body responsible for overseeing the implementation of the Convention on the Rights of the Child.
We suggest that a pilot domestic implementation committee consisting of representatives of Social Development Canada, the Department of Indian Affairs and Northern Development, Heritage Canada, Foreign Affairs Canada, Intergovernmental Affairs and Finance Canada could be set up to respond to the five areas of criticism common to the concluding observations of the five human rights treaty bodies. The five areas of criticism are: lack of a comprehensive national picture of human rights due to federal-provincial jurisdiction; not enough attention being paid to the disproportionate impact of economic agreements and changes on vulnerable groups; a more comprehensive picture of the situation of Aboriginal people and alleviating the disparity in which they live; dissemination of the concluding observations and education about the conventions; and submitting reports in a timely manner.
Our next recommendation is in the area of spending priorities. In the Speech from the Throne, the Prime Minister said that poverty, despair and violence are usually rooted in failed institutions of basic governance of the rule of law. The CCRC and its members would argue the inverse.
Poverty is the main cause of millions of preventable deaths each year. It is the cause of children going hungry, missing out on school or being forced into child labour. It causes lifelong damage to children's minds and bodies and perpetuates the cycle of poverty across generations. This is why poverty reduction must begin with the protection and realization of the human rights of children.
Investments in children are the best guarantee for achieving equitable and sustainable human development. Yet, the throne speech makes no mention of the importance of international development assistance. International cooperation is a key obligation to help children realize their rights under the convention.
The social development priorities articulated by the Canadian International Development Agency, CIDA, in 2000 stated these very themes. Namely, poverty reduction leads to a more secure world, and the world is a place of increasing interdependence. More children are suffering now, four years later, due to deprivation and the self-serving conflicts of adults. CIDA's commitment to doubling investment as a priority area needs to be applauded and reinforced, as well as expanded beyond war-affected children and child labour issues. This must happen if we are truly to take on, as the Prime Minister said, a role of pride and influence in the world.
Our third area of recommendation is that of increasing financial support to the human rights treaty bodies that deal with children's rights. The Prime Minister vigorously praised efforts of the UN's High- Level Panel on Threats, Challenges and Change for their recent report on the reform of the UN system in the area of international peace and security. The UN has been working on internal reforms for a long time, including proposals to help the human rights treaty bodies, such as the Committee on the Rights of the Child, deal with the backlog and expense of the reporting obligations of state parties.
What can be done to help the government reduce the expensive Geneva hotel bills that are incurred while delegations await their turn to present their report to the treaty bodies? The Committee on the Rights of the Child has taken an initiative, recommending that its work be conducted in two simultaneously operating chambers and increasing the number of members. This will help address the backlog of reports.
However, concrete financial and human resources are needed for the new working method. States parties, while quick to criticize the backlog of the treaty body process, have not been as forthcoming with constructive assistance. The Government of Canada should be applauded for the $5 million that it will provide over five years to the Office of the United Nations High Commissioner of Human Rights, which oversees the work of treaty bodies such as the Committee on the Rights of the Child. Our recommendation is that we should not be reluctant to accord whatever additional support the committee needs or requests in order to complete what we all agree is essential work.
My final point will focus on the convention as an impetus for public policy. This committee should be congratulated for its foresight in taking up the consideration of how this particular treaty, the Convention on the Rights of the Child, can be better implemented in Canadian public policy, because it is a timely question. Even though the Convention on the Rights of the Child, as you saw in the preceding presentation, is not justiciable under Canadian law, it has been, and is being, cited in a growing number of court cases, over 100 to date, at the trial, Appellate and Supreme Court levels of Canada. The courts have used the convention to help inform their interpretation, to provide a policy context within which to base decision-making, to inform jurisprudence under the charter and to help assess sentencing in criminal law. It is a clear sign that the convention has a determining effect on public policy in Canada and that it is time for legislation across the country to harmonize with convention principles, if we want to avoid a growing situation of Canadian policy being determined in the courts and not in Parliament.
I will conclude by recalling that the Prime Minister said in the Speech from the Throne on October 5, 2004, that it is no longer possible to separate domestic and international policies. The Canada Coalition for the Rights of Children wholeheartedly agrees.
The genuine respect for human rights that leaders and ministers of this country profess to possess must be consistent and coordinated within all our institutions, policies and actions both within our borders and around the world. With Canadians very publicly celebrating Tommy Douglas as the greatest Canadian, there should be no shame in embracing universality in this country, especially when it comes to the rights of children.
Ms. Dianne Bascombe, Executive Director, National Children's Alliance: I am here on behalf of the National Children's Alliance. I will tell you briefly who we are and the lens under which we are looking at the Convention on the Rights of Children.
We are a network of 62 national organizations. We work primarily in domestic issues. We have been around since 1996 and have worked quite hard behind the scenes and out front on the development of the national children's agenda, early child development and some of the domestic policy changes.
We are not an organization, but we are a network that works on consensus. All the positions that we bring forward have the consensus of all 62 of our member organizations. We are multidisciplinary and cross-sectorial, and bring to the table organizations from education, health, social services, literacy, doctors and nurses, and schools and school boards. Groups that do not always work together come to the table to bring consensus around domestic policy.
Our mission is to promote the health and wellbeing of children in Canada. We do much work facilitating dialogue and strengthening the network at all levels of those who work with children and families. We do policy development. We build capacity among our member organizations, and we promote the implementation of the National Children's Agenda.
For us, the Convention on the Rights of Children has always been the framework document under which we have done our work since 1996. We look at it from the perspective that it includes rights of provision, protection and participation. In all these areas, it helps define the work of the National Children's Alliance.
I want to speak today primarily about monitoring implementation of the convention. I will share the experiences that we have had, and some of what we see as the future developments that would be very exciting to give us collective capacity to monitor implementation of the convention in all areas. One of the areas that we find very helpful in our work is the notion of children having first call on the country's resources, which has been one of the principles very closely linked to the convention.
In terms of monitoring implementation of the convention, it is important to note that the concluding observations of the United Nations both in 1995 and 2003 indicated concern about the lack of a permanent monitoring mechanism in Canada. In 2003, the United Nations in their concluding observations also pointed to the lack of a national ombudsperson for children's rights in Canada.
The United Nations has been very strong in another area to which many countries have had a great capacity to respond. The UN notes that participation of the NGO community in monitoring implementation is fundamental to the principles of the convention.
We need to recognize that monitoring implementation is a complex and an ongoing task. Although the reports are only due periodically, there is a great deal of work if we are to provide data and an evidence-based monitoring framework. It means that the work must be ongoing throughout the periods to be able to report periodically. The complexity of the convention makes it rich because it looks at rights from a human, economic and social-rights perspective, with an integrated perspective around human rights, which has many implications for how we think about both our domestic and international policy.
The convention represents interrelated rights and freedoms. For us, the entire notion of monitoring implementation needs to balance research and participation of the NGO community and how we move forward to see how we are doing collectively for Canada's children. Child and youth participation is absolutely critical, inherent and fundamental to the process of monitoring implementation.
I also point out from the experience that we have had in the NGO community over the past decade some of the barriers to monitoring implementation. Some of those have also been mentioned in the United Nations concluding observations.
We have difficulties because of lack of coordination across jurisdictions. There is a lack of coordination across federal departments. We saw that through the lack of a mechanism for bringing the departments together to develop the national plan of action, for example. We do not have a resourced centre of responsibility within the federal government to act as a focal point for monitoring implementation.
We recognize that the federal, provincial and territorial processes in place regarding children's and social policy issues are not designed to provide us with a coherent cross-sectorial approach to children's policy, which is fundamental to monitoring implementation of the convention.
There is no child advocate ombudsperson at the federal level.
The other area that is of increasing concern for us in the NGO community and it also reflects some of the struggles within government is issues around data access and availability.
We have an under-resourced data-collection-and-analysis system at the federal level, and at many provincial, territorial and local levels as well. We have issues around a lack of data that gives us an accurate picture for vulnerable populations such as Aboriginal children off-reserve. We have no capacity to coordinate our data sources across jurisdictions. Some of the new restrictions starting to emerge because of privacy legislation are having an impact on us as the NGO community, and our capacity to access and use data to see how kids are doing in this country. We have experienced a declining capacity for data and policy and research analysis in the NGO community in the past decade.
When we look at the federal commitment to monitoring implementation, there are some areas where we can make incredible gains. There have not been any earmarked resources for monitoring implementation of the Convention on the Rights of the Child within government. It is a struggle for both the government and for us in the NGO community to get the resources together. It constrains our capacity to do a thorough, comprehensive, evidence-based approach to monitoring implementation.
Problems continue to persist in working horizontally across departments. There has been minimal and spotty support for the NGO community to play its role in monitoring implementation. An example is the process of developing the national plan of action. Senator Pearson and her staff did an outstanding job but it was a struggle to get the resources for the capacity to do this in a pan-Canadian way.
One part of the role of the NGO community, and a role that only we can play, is to develop concrete benchmarks and timelines to move the national plan of action forward. I think the federal government has the capacity to put in, through cabinet, existing initiatives. We need the NGO community in order to move towards a more visionary approach to benchmarks and timelines, and also to overcome the jurisdictional barriers because much of our domestic policy lives not just at the federal level, but also with provincial, territorial and municipal governments. Again, that points to our lack of an ongoing process-organization mechanism to work with the provinces and territories over time in monitoring implementation.
In the NGO sector, we recognize the role and responsibility that we have to monitor implementation of the convention. The United Nations expects us to report on implementation within Canada. What we have as assets are the networks and the expertise. We can bring both research and practice to monitoring efforts. We have the capacity to transcend jurisdiction in the work that we do in the voluntary NGO sector.
What we recognize, and as the National Children's Alliance what we have been calling on the federal government for a number of years, is the need for a permanent monitoring mechanism in Canada to bridge and support both the NGO and government reporting.
We see monitoring implementation of the UN convention as a key and critical part of the whole process of monitoring how Canada's children are doing but we also look at domestic agreements such as the Social Union Framework Agreement, the Early Childhood Development Agreement, and the Agreement on Early Learning and Child Care. We look at broad-based policy, both internationally and domestically, as it relates to children.
We believe that for us to be collectively accountable for how Canada's children are doing, we need to be able to track progress over time. To do that, we need to have a mechanism.
Part of the way we look at our job, and also a big part of monitoring implementation of the convention, is the need to tell the story of Canada's children, so we can have the knowledge and understanding that we need to monitor implementation of the convention. We would like to see a sustainable mechanism that would allow us to have a long-term and cohesive approach to monitoring.
Some things we have looked at around what makes monitoring implementation powerful are for it to be evidence-based; and for it to recognize the ecological model as foundational, including the role of family, community and governments. All this is integrated into the convention; that engagement of communities and voices of children and youth are fundamental. This is the only way that we can reflect the interrelated rights and influences on the lives of children. Also, one of the ways to think about monitoring implementation of the convention is the work that UNICEF did around asking the right questions. That allows us to see the gaps, and not have this as a data-driven exercise. We need to look at the full range of articles, rights and freedoms in the convention and ask the right questions about what this means for children and youth in this country.
The model that the CCRC developed in terms of looking at monitoring implementation includes a full range of evidence and data from legislation and regulation, through case law, policy, practice, research and statistics, public opinion and the voices of children and youth. This is a multi-layered process.
The other thing that makes this complex but also powerful is, we need to look at engagement that is cross-sectoral from governments, the NGO community, and the private sector; intergovernmental that looks at all levels of government. It has to be horizontal to respect the interrelatedness of children's rights, from the perspectives of health, social, education, recreation, environment, justice, et cetera. We also have to think vertically from the grassroots, voices of children and youth right through to pan-Canadian data sets.
What the National Children's Alliance has been recommending and will continue to recommend until we move towards getting it, is the development of a permanent monitoring mechanism in Canada. We are calling it at this time a council that would build the collective capacity of all stakeholders to exercise the roles and responsibilities to monitor the progress of Canada's children. We are looking at it in a framework that is inclusive of, but broader than, monitoring implementation of the convention although there is not much left out of the convention around monitoring the progress of Canada's children. The council would enable us in Canada to monitor international and domestic agreements but to do this within a cohesive and a coordinated framework.
We have talked about some things that could be included in the mandate that would help us: to increase the body of knowledge on the health and well-being of children in Canada; allow us to develop and nurture cross-sectoral and multi-disciplinary networks; and enable us to track the progress on international and domestic agreements. We would build the capacity of communities to tell the story of Canada's children and in so doing, monitor how we are doing in these agreements such as the Convention on the Rights of the Children. We need to have ways and be supported to engage children and youth in all of these processes. Somewhere within the council we need to find a place for a national, call it an advocate, an ombudsperson, a commissioner but, a focal point for that role.
We see the council, on an ongoing basis, being able to conduct and gather research and development, and having a function for knowledge, translation, network and partnership development, tracking progress, reporting and mobilizing for change.
The other way we envision moving forward on a sustainable monitoring mechanism or mechanisms is a different model of working and partnership with governments and the voluntary NGO sector. We are not looking for a huge, new bureaucracy, although in respect of health, to monitor some of the health agreements domestically we have the Canadian Institute of Health Information with 300 employees. We are not about to build something like that but we do see the need for sustainable mechanisms, funded and supported into the future. These mechanisms would allow roles such as facilitator, coordinator, catalyst, bridger and capacity builder, to build on and enhance the existing capacity of communities to monitor and link research to practice and policy. We see this as a distributed network with support that would allow us to bring all our strengths to the centre. Currently we have a fragmented system to gather evidence of how Canada's children are faring. We do not have the capacity to gather data, evidence and the voices of children and youth for reporting to the United Nations.
The Chairman: Thank you. Senators, Mr. Dudding will answer questions as well.
Senator Losier-Cool: My question is perhaps more of a comment, one that we often hear. Once again last week, the minister responsible for CIDA appeared before the Foreign Affairs Committee.
Senator Losier-Cool: You have convinced me that your groups have the expertise in this filed. Ms. Ashtakala, you said that you have 50 organizations on the international and national levels. We frequently hear the comment that Africa grows poorer and poorer year after year despite the efforts of many expert groups and the money spent by governments on international aid. Why is that?
Africa is becoming ever poorer, and the situation is worse than it was 20 years ago. The infant mortality rate remains high. We are also seeing a growing number of child soldiers.
To what degree do you work with CIDA to have some influence on programs? Are the funds sent to the right places? How did we get to this point?
Ms. Ashtakala: The coalition's members include international development organizations and international humanitarian organizations. Their partnership with CIDA over the years has been mutually beneficial and a learning process that has gone both ways. CIDA has come a long way in mainstreaming children's rights and human rights in general into all its programming. CIDA made child protection a key priority area along with the basic needs, gender and the others.
Why does it seem that the money being spent is going into a sink hole? That may be part perception and part reality. Much of the aid has been delivered to some of the wrong areas of need, and some areas are more in need than others. As a continent, Africa is plagued by civil conflicts that erupted mainly after the end of the Cold War. During that era, aid was selectively targeted. Money, arms and all the accompanying elements went to specific countries for specific intentions. When the Cold War ended, there were no longer any holds barred, and the pent-up fury, despair and poverty finally erupted.
Speaking on behalf of an organization that works with CIDA, I can say that CIDA has been listening to the organizations in the field and has been slowly tailoring its methods to reflect the realities that those workers have expressed. The process may look slow, and the public may feel impatient about why things are seemingly worse despite the sending of more money. It will take time because the problems are so deep-rooted.
Senator Losier-Cool: What links does your organization have with CIDA? Are you at the same table with some of the people who work in the field?
Mr. Peter M. Dudding, Executive Director, Child Welfare League of Canada: Yes, we are at the same table. The good news with CIDA is that by embracing its child rights perspective it has been engaging increasingly in a dialogue with its domestic NGOs concerned about children in a way that, in my experience, was unprecedented or unheard of five years ago.
I will return to your earlier question. In 1992, when I left Sri Lanka, questions about sexual abuse would have elicited a response by Sri Lankans of, What are you talking about? We do not abuse our children. That is only a problem of foreign pedophiles. I went back to Sri Lanka in 2002 and much to my pleasant surprise everyone was talking about the Convention on the Rights of the Child. They also had a national child protection authority in place, as well as a serious embracing and updating of its legislation in respect of children and women.
I next went on to the problems of India a country with 20 million births each year. Similarly, I discovered that they have a national child protection authority funded entirely by the Indian Government. There are child help hotlines in place in 40 of India's major cities. From the point of view of a cynic and a sceptic sometimes, I can say that the world's most widely ratified and most comprehensive human rights agreement, certainly within the context of those two countries, has made a difference. The issue for us is, in reality from the point of view of our children and grandchildren, the increasing awareness of the interdependence of the world that we live in. Notwithstanding the epoch of Fortress North America that we live in, the fact is that the world's population will continue to rise exponentially until 2050. Those additional three billion children will be born outside the industrialized wealthy West. Certainly, the imperative to think on these matters on a global basis is increasingly important. I cannot emphasize that issue too much.
I represent a domestic NGO, and it is interesting to see that my urban members, whether Montreal or Vancouver, provide increasing awareness and understanding that they need to have the diversity question front and centre so that they can deliver services to their populations. It is not simply a matter of understanding the experience of the Haitian in Montreal but rather to understand the context and continuing problems of family and extended family in Haiti so the need can be successfully addressed.
Senator Losier-Cool: You have mentioned the members within the Canadian coalition, and you will have associations that look after les enfants francophone vivant en situations minoritaires, so that they will have services in their own language. I see that the Fdration des communauts francophones et acadienne du Canada is there. Thank you.
Senator LeBreton: Thank you for your compelling testimony. There seems to be some question as to how to pull this all together. We have heard about an ombudsman and a commissioner. You talked about a council and you mentioned the Canadian Institute of Health Information, CIHI, with which I have some familiarity. Is there currently an organization in Canada that would be a model to follow in an effort to pull this together?
Ms. Bascombe, you said that there is no resource centre of responsibility within the federal government. Where do you think it should be?
Ms. Bascombe: On the first question, there is no existing organization that could pull it all together, which is why we are recommending that we develop a council based on a distributive model that links together those that are working in the area.
Senator LeBreton: Is there an existing model that you could follow?
Ms. Bascombe: We have looked at several models, some of which are international. We like the idea of using a coalition-based model and building on the strengths that exist within the networks we have.
We see the potential for bringing into the net, groups such as the current centres of excellence that are funded by Health Canada, and the research capacities of institutions, universities and colleges. However, we believe it must be driven in the voluntary NGO sector because of the strengths and credibility that we bring to the table in our capacity to bridge all the cross-sectoral and government jurisdictions.
There is not an exact model. It is under development and we are having a lot of discussion in our community, and with the federal government, about what kind of model would be useful to do that. We do believe that it should be outside government with means to effect partnerships with the government.
Senator LeBreton: You said there is no resource centre of responsibility within the federal government. Where would you see it being?
Ms. Bascombe: We have not come out with an exact model of how we think it should be, but we do believe that there needs to be a mechanism across departments to foster horizontality. That is needed in order to do the Government of Canada's reports on the UN convention, because it crosses departments and jurisdictions.
There was originally a model of the Children's Bureau but that no longer plays a role. It could be within one department or it could be a cross-departmental mechanism, but it must be funded and it must be sustainable with some kind of permanence. It is very difficult and time consuming to pull together another ad hoc structure across departments every time a report is due. Often there is no budget, so everyone is scrambling to find funding for the monitoring process.
Senator LeBreton: Do you have a timeline in mind for this council to be up and running?
Ms. Bascombe: We have been advocating for this strongly over the past five years. Two years ago, there was a recommendation from the all-party Commons finance committee that this needed to be done, yet it still has not happened. I have a meeting at the Privy Council Office tomorrow where I will continue to push this.
We are one of the few countries without a permanently funded monitoring mechanism. There have been many cutbacks in the funding of domestic NGOs, and our collective capacity to do this kind of work is diminished with project funding. This kind of work does not fit in the mandate of any one department or in any one program; hence it falls between the cracks.
Senator Pearson: Once upon a time there was something called the Canadian Council on Children and Youth, which unfortunately, and for a variety of reasons, has ceased to exist. That model, albeit expanded, may be similar to what you are looking for.
I would like you to help me distinguish between the functions of monitoring and implementation. In 1979, the International Year of the Child, that commission asked for a responsibility centre for children within the federal government. However, I think that what Mr. Bala referred to earlier is not the same as a monitoring mechanism. I think there are two, and possibly three, mechanisms; one in government, one at arm's length from government and one in the NGO sector. Monitoring is a necessary pre-condition of implementation, or it accompanies it, but it is not the same as implementation. It would not have the power to tell the government what to do, although it has the power to advise the government. We also need a mechanism to instruct.
Ms. Bascombe: At the council we are talking about the part of the puzzle outside government. We are not implementing but rather monitoring implementation.
I talked about the need for a central point within government for implementation, and I think that rounds out the complementarity. One without the other is not nearly as strong.
Senator Pearson: I would suggest three components.
Senator Poy: Do your two organizations work together?
Ms. Bascombe: We work side by side. We can talk to each other from our desks.
Senator Poy: Ms. Bascombe, you mentioned that you have 62 chapters?
Ms. Bascombe: We have 62 national organizations.
Senator Poy: What about the Canadian Coalition for the Rights of Children, Ms. Ashtakala?
Ms. Ashtakala: The Canadian Coalition has more than 50 organizations, domestic as well as international.
Senator Poy: You all work together?
Ms. Bascombe: We have a crossover of membership in the domestic organizations. The National Children's Alliance works primarily on domestic policy rather than international policy. CCRC bridges domestic and international, so our domestic members have a fair crossover of membership but we do have different mandates. Our mandate at the National Childrens Alliance is to look at the health and well-being of children in Canada. The CCRCs mandate is very much linked to the Convention on the Rights of the Child. For us, the Convention on the Rights of the Child is the fundamental principle and document under which we do our work.
Therefore, we do have slightly different mandates and have always worked very closely together.
Senator Poy: You spoke about implementation. Can you describe a day in the work of your organization?
How closely do you work with children?
Ms. Bascombe: Actually, I never see one as an individual. We work with children and bring the voices of children and youth to our table through our member organizations that are frontline service delivery organizations. The back of the brochure indicates the members of the National Children's Alliance. These are organizations that work domestically with children and families at the community level. There are organizations like Big Brothers and Big Sisters and Boys and Girls Clubs. There are groups that work with disabilities; groups that deal with education; and the Child Welfare League works on issues of child welfare, school boards, and Childrens Aid Societies. We are linked to our national member organizations, which are all linked very closely to the grassroots community.
Senator Poy: They will then bring their problems to you?
Ms. Bascombe: They will bring issues to the table. We have a policy development process that takes us from research to policy development in the policies that we promote with governments. When we do our process, we look at the research.
We also look at practice. Before we move a policy issue, we bring to our table frontline people, families, policy-makers and researchers, in order to develop our policy position.
Right now we are dealing with issues on youth. We are having a round table in March where we will bring youth to the table to talk about policy development on issues relating to youth.
Senator Poy: In doing that kind of work, do you ever bring to the table children of divorced and separated families and say, tell us your problems?
Ms. Bascombe: No, we have never done that.
Senator Poy: Ms Ashtakala, would your organization do a similar type of thing?
Ms. Ashtakala: We are similar in that we are a coalition of organizations. The difference with the Canadian Coalition is we have a stronger youth involvement component because participation of young people is a key part of the convention. In all our endeavours, we try to involve young people to participate and be a part of developing our positions on the convention and other child rights.
Senator Poy: Do you work closely with the young people?
Ms. Ashtakala: In that respect we do. We involve them directly.
Senator Poy: You meet with them and you discuss issues with them?
Ms. Ashtakala: Yes.
Senator Poy: This is national and international?
Ms. Ashtakala: That is right.
Ms. Bascombe: One of the things we are concerned about is the lack of capacity and funding for this kind of work. Much of what gets done is getting done on the side. It requires some permanent, long-term resources to adequately have the voices of children and youth included in an ongoing way, in order to engage them, not to have a one-off consultation. That is what we have in our vision. In the NGO voluntary sector community, with the council we would have some very deep engagement strategies that would be long-term.
All our national coalitions I can speak for both of us here are struggling in terms of the resourcing required to do an indepth and continuing job of engaging our children and youth.
Senator Poy: Do you have government funding?
Ms. Bascombe: A little bit.
Senator Poy: Mainly federal or at different levels of government?
Ms. Bascombe: The National Children's Alliance has one funding grant and contribution agreement with the federal government.
Ms. Ashtakala: The coalition has even less.
Senator Poy: Do you get any funding from CIDA?
Ms. Ashtakala: We had a project or two along the way where we applied for CIDA funding, but not on a regular basis.
The Chairman: I have a question for Ms. Bascombe because, Ms. Ashtakala, you do deal with the convention. Ms. Bascombe, your work seems to be national and you use the convention as a groundwork for the basis of principles, et cetera. Have you come to any conclusion as to whether we would be best served in Canada, and particularly the children, if the convention were in some way implemented, as opposed to the present state, which is that it is ratified but not part of our national law?
Ms. Bascombe: We absolutely support implementation of the convention. We have been strongly advocating for a permanent monitoring mechanism because we feel that the state of the convention now is that we need to advocate for the convention. We need to advocate for a monitoring mechanism. If we cannot monitor implementation, then those of us in the voluntary NGO community who support the convention do not have the data, evidence and power behind us to continue to move towards implementation, which is what we hope is the end state.
The Chairman: I would like to thank the witnesses for coming to our session. We have started rather quickly and you have responded very quickly. We appreciate that. We will be in touch with you as our study goes on.
This brings to close this part of the session for the senators. We will take a short break and then discuss a further matter.
Ms. Bascombe: We did put this together quickly. We would be pleased to do a more comprehensive brief if you wish.
The committee continued in camera.