THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
First Session, Thirty-eighth Parliament, 2004-05
Hearings: OTTAWA, Monday, March 21, 2005 4 p.m. - Issue No. 8 - Sixth meeting on:
Examine and report upon Canadas obligations in regards to the rights
and freedoms of children.
MEMBERS OF THE COMMITTEE
The Honourable A. Raynell Andreychuk, Chair
The Honourable Landon Pearson, Deputy Chair
The Honourable Senators:
*Austin, P.C., (or Rompkey, P.C.), Carstairs, P.C., Ferretti Barth, *Kinsella, (or Stratton), LeBreton, Losier-Cool,
Oliver, Ppin, Poy
*Ex officio members
Irish Centre for Human Rights, National University of
Ireland, Galway (by videoconference): William A. Schabas, Director.
As an individual: Max Yalden, Former commissioner, United Nations Human Rights
OTTAWA, Monday, March 21, 2005
The Standing Senate Committee on Human Rights met this day at 4 p.m. to examine and report upon Canada's
international obligations in regards to the rights and freedoms of children.
Senator A. Raynell Andreychuk (Chairman) in the chair.
The Chairman: Honourable senators, this is the Standing Senate Committee on Human Rights.
We are pleased to have Mr. William Schabas before us for one hour by videoconference today. Many of us here
know Mr. Schabas, as he testified before the committee when we were doing the study on the machinery of human
rights. Mr. Schabas is the Director of the Irish Centre for Human Rights, National University of Ireland in
We have already heard from Mr. Schabas that the weather is much better in Ireland than it is here. Mr.
Schabas, we welcome you via videoconference. As agreed, you will give an opening statement and then we will
eagerly await your answers to the questions put forward by senators, who will proceed in any order that they
wish, but you will then get to know the committee as a whole.
Mr. William A. Schabas, Director, Irish Centre for Human Rights, National
University of Ireland, Galway (by videoconference): Honourable senators, it is a pleasure to testify before
the committee again. I was in Ottawa only a few weeks ago and I would dearly love to be with you in person.
There you have it; I am here, thanks to modern technology, testifying from across the ocean. I am about 20 miles
from where Alcock and Brown landed when they flew from Canada on the first transatlantic flight in 1919.
I want to start with a comment about the rights of the child. If you will indulge me on this, this does not
concern the rights of the child in Canada, but comes from your neighbour just to the south.
Earlier this month the United States Supreme Court issued an important judgment dealing with the rights of
the child. They ruled that the death penalty for crimes committed by persons under the age of 18 was contrary to
the Bill of Rights and was unconstitutional. Thanks to that judgment, they have become the last country in the
world to abolish the juvenile death penalty.
That is significant for people who study the Convention on the Rights of the Child and who are interested in
that relatively new body of law. It indicates the growth of the norms in that treaty from being partially
accepted by countries around the world to ultimately becoming a universal model. International lawyers will be
speaking about this as not only a treaty norm, a norm that binds countries that have ratified the treaty, but
also as a customary international law norm. It is rare when we see that happen.
People thought of this law 100 years ago when the last country abolished slavery, and it is a dramatic moment
in human rights law when you can finally say that that is behind us in human history, that it is finished.
It occurred to me as well that it was not that long ago, even in Canada, that we were sentencing juvenile
offenders to death. I think some of you will remember the famous Steven Truscott case. I was a boy when Mr.
Truscott's trial took place. Tried as an adult, although only 14 or 15 years of age, he was found guilty of rape
and murder and sentenced to death. He was sentenced to death because he was tried as an adult. The prime
minister at the time, who was not going to allow Canada to execute a teenager, commuted the death penalty. By
then, the death penalty had fallen into disuse in Canada thanks to executive clemency by the prime minister. It
was finally abolished in 1977 in Canada.
Essentially, it had been a matter of sentencing someone in Canada as an adult when that person was virtually
a child. That principle or that idea, that we will treat child offenders as adults, is still a little bit alive
and well in Canada.
I wanted to draw that to the attention of the standing committee, as that might be one of the first issues
you will consider.
The UN's Committee on the Rights of the Child last addressed Canada's report in 2003. I am sure you have that
document. In their ``Concluding Observations,'' which is when they give us pats on the back for nice things we
are doing and gentle but polite criticism for things we are not doing so well, they criticized Canada for the
fact that our juvenile justice system, imprisons one of the largest numbers of juvenile offenders in the
developed world. I am fairly confident in saying that if we imprison a large number of juvenile offenders, there
is no doubt the United States is ahead of us. If we imprison a large number as a developed country, we are also
probably well ahead of all of the developing countries as well.
I wish to quote from the report at paragraph 57 of the concluding observations of the committee. They call
upon Canada to ensure that,
No person under 18 is tried as an adult, irrespective of the circumstances or the gravity of his or her
While we no longer sentence people to death at the age of 15, we are still sentencing 15 to 17-year-olds as
if they were adults. The committee has criticized the Government of Canada for that action. The committee is
right in that respect.
Our juvenile justice system needs to be more gentle and humane. It is certainly a matter well within the
legislative authority of the Parliament of Canada to make those changes.
I note as well that Canada made two reservations when it ratified the Convention on the Rights of the Child.
One of these was to the provision dealing with juvenile justice, which is article 37, paragraph (c). This
did not deal with sentencing or judging juveniles as adults, but dealt with detaining them as adults. Canada
said in its reservation:
The Government of Canada accepts the general principles of article 37(c) of the Convention but
reserves the right not to detain children separately from adults where this is not appropriate or feasible.
International human rights law has set a standard for us in the Convention on the Rights of the Child.
Incidentally, article 37 is also the article that says you cannot execute people for crimes committed under the
age of 18. We should aspire to move towards that. We should not be hiding behind our reservation to article 37.
Something else that Parliament might give its attention to is creating the conditions so that we can withdraw
that reservation and not allow children to be detained with adults. We must have some form of custody for
juvenile offenders, but we should not allow them to be detained with adults, which is inconsistent with the
Convention on the Rights of the Child.
Let me turn to a second issue that also engages criminal law in Canada, the question of corporal punishment
of children. When Canada last presented a report to the Committee on the Rights of the Child, corporal
punishment of children was an issue. It has always been an issue before the Committee on the Rights of the Child
because the committee takes the position that tolerating corporal punishment for children is contrary to the
obligations under the Convention on the Rights of the Child. The Convention on the Rights of the Child does not
say so explicitly since there was some ambiguity when it was drafted, but that is the position of the committee.
The committee is made up of international experts. I know you will be hearing later today from Mr. Yalden,
who was the Canadian member for eight very distinguished years on the Human Rights Committee. We have had other
members in the past, Mr. Walter Tarnopolsky and Ms. Ct-Harper. The Committee on the Rights of the Child said
that corporal punishment for children is contrary to the Convention.
Months after the committee heard from Canada in 2003, the Supreme Court of Canada issued its ruling in the
spanking case. I reviewed that case briefly in preparation for my testimony because in that case there was
regular reference to Canada's international obligations.
In the majority judgment, the Chief Justice, speaking for the majority of the court, noted that the Human
Rights Committee had said that corporal punishment of children in schools was contrary to the Covenant on Civil
and Political Rights, but she said at paragraph 33 of the judgment:
The committee has not expressed a similar opinion regarding parental use of mild corporal punishment.
Maybe the Human Rights Committee did not do so because it did not engage with that issue since it was not an
issue of the state imposing corporal punishment. Certainly, the Committee on the Rights of the Child had and the
Chief Justice might have mentioned that. Louise Arbour, UN High Commissioner for Human Rights and one of our
most distinguished Canadians, referred to the report of the Committee of the Rights of the Child in 1995, noting
the committee's intransigent condemnation of tolerance of any form of corporal punishment in the laws of the
The committee returned to that in its observations and comments on the Canadian report in 2003. I am somewhat
surprised that the Supreme Court of Canada did not have it, but it is probably because the findings of the
committee were issued only months before the judgment and perhaps they were already well into writing their
judgment, so they did not incorporate it.
There is a clear international message that if Canada's Supreme Court is reluctant to impose the law because
it is there to apply the Canadian Charter and not to make new laws for Canada, that it is within the
jurisdiction of Parliament. The Parliament of Canada initially authorized corporal punishment of children, and
it would be the appropriate body, especially since this judgment of the Supreme Court, to take that away. That
might be a second issue that you could look into.
Madam Chairman, I have not been studying the clock. I have one last issue that I would like to speak to for a
couple of minutes and I have many other comments on other issues. I am sure that some of them will come up in
the question period.
On the issue of child soldiers, Canada has taken a progressive position internationally; it is part of our
whole foreign policy focussed around human security and dealing with issues like child soldiers.
We have spoken about Sierra Leone and you have recently been to Sierra Leone, Madam chair. I spent much of
the last two years working as a member of the Truth Commission there. Sierra Leone had a terrible problem with
child soldiers. Some of them were very young, but most of them were in their mid-teens.
In 2000, Canada ratified the Optional Protocol to the Convention on the Rights of on the involvement of
children in armed conflict. When we did it, we did it without a formal reservation, but with the unfortunate
message that Canada permits voluntary recruitment into the Canadian Armed Forces from the age of 16 years. That
is lower than in many other countries. Many other developed countries would set the age at 18 years. The United
States sets the age at 17 years. We are rather at the low end.
While I would not be so presumptuous as to suggest that we are sending 16-year-olds off with Kalishnikovs
into the jungles of Africa, it does send a regrettable signal as to the acceptability of young people in the
Armed Forces. This is something that really deserves more attention.
It is not so much a problem for Canada in terms of the horrors related to child soldiers. I am sure that many
of these teenagers are busy developing careers within the Armed Forces, but we want to see a world where 16- and
17-year-old children are not wearing uniforms.
I know from talking with members of the Canadian Forces, that the issue is all related to child labour and to
the idea that the Armed Forces are out there competing with 16-year-old school dropouts who are looking for jobs
in McDonald's or other jobs. They want to snatch them up for the Armed Forces before they become too established
elsewhere. Perhaps part of the way of unlocking that problem is also attending to the issue of child labour,
which is a serious problem in Canada as well, and how to keep young people in school, where they belong, and not
leaving school at the age of 16 or 17 and going out to work.
With those preliminary comments I look forward to exchanging views with honourable senators.
The Chairman: Thank you for your opening statement and your last point as well. Both Senator Pearson
and I were involved when that legislation came before us. We certainly raised the matter of the Convention on
the Rights of the Child. The reasons you put out on behalf of the government were the reasons that I heard
Senator Pearson put out also. Thank you for reminding us of our obligations.
Senator Pearson: Mr. Schabas, in your opening comments you raised an issue that is always of concern,
about the relationship of international agreements to the actual practice within different countries and the
social conditions within different countries. Both the question of the optional protocol and the question, to
some extent, of the reservation on 37(c) are issues that relate to the kind of country that Canada is. I
know that the argument is often put forward that we should be showing an example, and you made that point with
respect to child soldiers.
I will reiterate to some extent the point I made when I introduced the amendment to the National Defence Act,
which is the one that enabled us to ratify the optional protocol. It was an amendment that said that we would
send no person under the age of 18 into a theatre of hostilities.
Before I made that presentation, I talked to some young people. They were proud to have an opportunity to
serve their country and the opportunity to be able to join on a voluntary basis, and to go into a theatre of
hostility without any permission was something that they thought was a good thing.
In our country, we have some challenges with respect to the size of our Armed Forces and other things. There
is this challenge about whether or not a career in the Armed Forces is an honourable profession.
One must be careful about the messages that one sends out. One must be careful about the messages one sends
to the international community as well as the domestic message. It was very important to speak with a number of
young people before I supported the amendment.
With respect to the reservation on article 37(c), when Senator Andreychuk and I made that reservation
there were a number of things that were not highly respectable in the sense that it had to do with the amount of
money involved in the construction of separate facilities.
In the new Youth Criminal Justice Act, there were some examples that were adequate to persuade me that this
was a good idea. One example is that there are certain sentences that go beyond the age of 18. We have to know
what happens to the child that turns 18 years of age while in jail. At 18 years of age, the child is an adult.
What are we to do with the adult then? Are we to put the adult into a prison with adults? Should we leave the
child in a child detention facility for perhaps the few months left on the sentence?
There are other cases where we know, unfortunately, and it is probably more a problem of the detention centre
where one child is a real danger to another child and one child has murdered another child.
We view this reservation as looking out for the best interests of the various children involved. I would be
interested in your comments.
How universal should we make standards when circumstances in different countries change?
The second issue is the degree to which we listen to the kids themselves.
The third issue is what is in the best interests of an individual young child as opposed to all.
Mr. Schabas: Thank you, Senator Pearson. Let me turn to your first question about recruitment and the
age of recruitment into the Armed Forces, even if it is very clear that there is no possibility of a person
under the age of 18 being involved in combat.
I would not want to be the person who discouraged Romo Dallaire from joining the Canadian Armed Forces at
the age of 17. He came in rather young, and you would not want to think of him being turned away at the age of
17 and going away and doing something else in life. He is obviously one of our greatest citizens and he has made
us all so proud.
My remarks are not against the recruitment into the Canadian Armed Forces. It is no more important to do that
than to say we need restrictions on teenagers doing other forms of work or engaging in other careers from the
age of 18, that in some way this is being pejorative or critical of the future profession. That is why I tried
to link this to the issue of child labour generally.
The heart of the problem is that we do not give teenagers enough in school. We are really talking about kids
who want to quit school at the age of 16. That is an unfortunate Canadian development.
Our Armed Forces, along with other employers, are out there trying to snatch them up to get them into
employment. That is much more of the problem. I do not want to abandon my argument about the symbolism of it
either. It is very important.
In Canada we must be particularly aware of this in the human rights field, that it is not just about
protecting human rights in Canada but that other countries look to us as a model. One of the things that struck
me when I met a lot of child soldiers in Sierra Leone is that these were real child soldiers. These were the
ones with Kalashnikovs who were out there fighting. Some soldiers are still as young as 14 years of age. The
leaders of the various combatant factions in Sierra Leone recruited them. In many cases, the leaders began their
careers as child soldiers themselves in the British army, of all places, back in the 1950s. The British army had
units called the ``small boys units.'' The British have always recruited people at a young age into the Armed
Forces, and it was always considered an honourable career. The Sierra Leoneans who did this also looked upon it
as an opportunity; it was a career. Unfortunately, that practice carried on, and because of the many civil wars
in that country, countless young children are robbed of their childhood.
That is what I can contribute on the issue.
I do not want to be understood as suggesting that they cannot have honourable, important and valuable lives
and make a great contribution to our country in the Armed Forces. I would say to them that they just have to
wait another year or two.
This brings me to your second point, and the issue of the prisons and what to do with someone who is under 18
years and who receives a sentence that extends past his or her status as a child. Ultimately this is all about
finding a cut- off date. We have the age of 14 for criminal justice, generally, but it could be 16 years. Many
countries have a cut-off age at 16 years of age, while some have it at the age of 18 years. I do not want to
tell you what the age is in Ireland, but it is the old British common-law age of seven.
You may remember the United Kingdom had a case not long ago of those two 10-year-olds who killed a little
boy. The 10-year-old boys were treated as criminal suspects and sentenced to an indefinite term of imprisonment
until the European Court of Human Rights told them that violated the European convention. It is all about
cut-offs. I agree with the difficulty of a cut-off age of 18 years. That is what international law has told us
is the right year, and we should aspire to it instead of trying to rationalize it and put ourselves outside of
Senator Pearson: One brief comment about young people being recruited: They are recruited and kept in
school, so the education continues. It is not a way of taking them out of school; it is a way of keeping them in
Senator LeBreton: Thank you very much, Professor Schabas. I was very pleased that you mentioned the
Steven Truscott case. You were quite right that he was 14 years old. There has been another excellent book
written about this case entitled Until You Are Dead: Steven Truscott's Long Ride into History. Mr.
Diefenbaker was an abolitionist and he commuted the death sentence. I am glad to say that later it became the
law of the country.
You referred to how recent decisions of the Supreme Court of Canada reference the international obligations.
Within the last two months, the U.S. Supreme Court, in a five-to-four decision, ruled that executing juvenile
offenders violated their rights under the constitution.
Would you comment on that decision with regard to what implications this has for the Convention on the Rights
of the Child, which, of course, has not been ratified by the United States?
Mr. Schabas: That is one of my favourite subjects. I was lecturing at a university in the United
States when that judgment was issued. In the morning, I said that very soon the United States Supreme Court
would outlaw the juvenile death penalty. I saw the same group that afternoon; by then the decision was on the
news, and they thought I was clairvoyant, but those of us who follow this had been expecting it for some time.
We were a bit disappointed that the decision was five-to-four. We had expected it to be six-to-three. There
are three judges on the U.S. Supreme Court who we did not expect to go along with this. Years from now, when we
look back on this, people will say, ``How is it possible that in the year 2005, four justices out of nine of the
U.S. Supreme Court still supported the idea of executing child offenders?''
It is an important judgment for international law because, although the United States has not ratified the
Convention on the Rights of the Child, and I think is unlikely they will do so for some time, it was not
ultimately due to that provision that the U.S. was not ratifying the convention. The United States has an
extremely cumbersome ratification process. They have to get two-thirds of the vote in the Senate to ratify a
treaty. I suppose you senators can understand how difficult it might be, with a complex instrument such as that,
to get two-thirds of your colleagues to agree on everything. It becomes a very difficult proposition in the U.S.
Senate. It is not just a matter of the juvenile death penalty, and the U.S. could even have made a reservation
and ratified it.
The importance of it for international law is that article 37(a) of the Convention on the Rights of
the Child, which is very quantifiable, says that the death penalty cannot be imposed on children.
We can now look at the whole world and say that everyone has abolished it, so we have a provision that has
now become universal, customary law. Those of us who love the Convention on the Rights of the Child just want to
see other norms follow that same progression.
It is more difficult to measure this with things like the prohibition of torture or freedom of expression,
because we cannot look at every country and say that they have abolished torture. Many of them have, but they
still perpetrate it. The juvenile death penalty is a much more quantifiable thing, so it is a very important
The Convention on the Rights of the Child influenced the five U.S. Supreme Court justices, and they mention
that in the judgment. About 10 other countries have abolished it since 1990 when the convention came into force,
and each one of them has acknowledged that it was, to some extent, in response to their obligations under the
Convention on the Rights of the Child. That proves that this convention is working, that it has done some good
in the world.
Senator Poy: Professor Schabas, I am glad you mentioned the Supreme Court's decision on corporal
punishment for children. I personally do not believe that anyone should hit children. I believe in banning
Do you think the Supreme Court is concerned about the number of parents who might face charges because they
spank their children?
That is sort of a practical point of view.
Would the children's protection agencies be able to deal with the number of parents facing charges?
If the parents are charged and the children taken out of the family and put into foster homes, is that better
for the children?
I am trying to look at it from both sides.
The Chairman: If I could intervene, you might add the cultural dimension. Some in Canada have argued
that certain cultures have used spanking, although not violent force and that we are intruding on their cultural
diversity. Some make the argument for new immigrants to Canada.
What do you think of that argument?
Mr. Schabas: When I grew up in Canada years ago, corporal punishment was a frequent occurrence. I will
not speak to my own childhood, but I remember school teachers using corporal punishment commonly. It was not a
question of immigrants to Canada; it was just an accepted practice not all that many years ago in our own
country. Our views on this have evolved considerably, and I think they are evolving elsewhere in the world as
The report of the Truth Commission on which I worked in Sierra Leone, which is in the heart of undeveloped
Africa and an extremely violent society, called for a prohibition on corporal punishment of children. I was the
only non- African on the commission and a majority of Sierra Leoneons agreed with that, so I do not think this
is a difficult idea to sell. The people in Sierra Leone understood it because their children had been so violent
during the war. They made the connection that maybe violence begets violence, that children who are victims of
violence become violent themselves.
One of the first steps in dealing with it is to express our disapproval of it by saying that we do not allow
it under the Criminal Code. It is formulated in the Criminal Code so that a parent can invoke it as a defence if
they are charged with assault. We do not allow reasonable chastisement or anything like that as a defence to
adults who use violence against each other, so why should we use it for our children?
It does not mean that it will be the end of all physical contact between parents and children. I do not know
that it will make a dramatic change to the practice of law enforcement. The abusive cases that interest the
police have been criminalized, section 43 does not operate as an effective defence, and the less abusive cases
that are dealt with by child protection agencies are dealt with anyway now, or should be. I do not know if that
would change anything either.
I do not know how many cases there have been recently where section 43 has even been invoked in Canadian law.
I think they are relatively few. It is an ugly thing to have in our criminal law, and it is inconsistent with
modern thinking on the subject. It is modern all around the world, because this was not the prevailing view when
I was a boy growing up in Canada. Our thinking has evolved, and I believe it is evolving everywhere in the world
thanks to things like the Convention on the Rights of the Child and the committee.
Senator Poy: I am looking at it from the practicality of whether children's protection agencies will
be swamped with cases if corporal punishment is banned.
I agree with the banning of corporal punishment. I was very fortunate that I was never hit as a child. My
culture does not do that. In fact, the first time I saw it was in England when I was in school there.
Is the Supreme Court worried about that practicality? Do you think that is why they are keeping it?
Mr. Schabas: I do not know how they were thinking. I know that one of the people in the world who I
admire the most for judgment in the area of human rights, Louise Arbour, certainly was a dissenter and agreed
with it, but the other justices are reasonable and they were trying to deal with a difficult problem, I suppose.
It does not mean that if section 43 is repealed many parents around Canada would think that they have a
problem. I do not think that the criminal justice system is involved in this area. I believe that most modern
parents are not abusive with their children and do not use physical violence on them because they realize that
it is wrong. It has nothing to do with the Criminal Code or fear of prosecution or anything like that.
We should not have it in our law. That is my only point. I do not think the repeal of it would make a lot of
difference in practice. I think that it should not be there.
Senator Oliver: Thank you for your excellent presentation. We are a Parliamentary committee, and one
of the things that we in Canada seem to be doing is moving toward having and creating many Parliamentary
officers. In Canada, as you well know, we have an Information Commissioner, we have a Privacy Commissioner, an
Official Languages Commissioner, I have been trying to promote a diversity commissioner, and I hear and
understand that there is a move afoot to have a commissioner for women.
What do other progressive regimes do to ensure the protection of the implementation of the Convention on the
Rights of the Child?
Do they have such groups or persons as commissioners, and would you recommend that we do the same to enforce
Mr. Schabas: You have asked me a question that I am not sure I can give you a good answer to, because
I did not study, in preparation for my testimony, how wide-spread something like that would be.
There is certainly a growing attention to children. There are African ministers with special responsibility
for children, and people with that sort of responsibility sound to me like a good idea. I do not want to propose
that you make too many administrative positions in all of this, but something like that would be useful.
Our Human Rights Commissions have special responsibilities there too. We have very sophisticated and in many
ways, adequate Human Rights Commissions to do this as is on their radar screen as a priority.
Senator Oliver: They would become an officer of Parliament and have that power to report to
Parliament, and if there were departments and so on that were not in compliance, they could in fact come before
a committee such as this and lay before it some of the troubling issues.
What do other international jurisdictions do in similar circumstances?
Mr. Schabas: I do not know that I can help you on that, senator. I am sorry. I do not have much
information on that, but it sounds like a useful and interesting idea.
Senator Losier-Cool: You have worked in Sierra Leone, so you are certainly familiar with international
development. I am very much involved in development matters, especially in the Francophonie area. I believe that
for development to be sustainable, it has to be inclusive and therefore include children.
That being said, do you think that Canada should, in terms of international development, put greater emphasis
on the Convention on the Rights of the Child in order to include assistance to children in matters relating to
their rights to education, health, and others? How could Canada put greater emphasis on the Convention on the
Rights of the Child in providing its assistance?
Mr. Schabas: I am in complete agreement with your remarks. It is important for Canada to emphasize the
rights of the child in its foreign policy. I think it is already the case in Canada's development assistance,
where we put a lot of emphasis on projects that deal with children's rights in developing countries. Children in
those countries represent the majority of the population. Those are countries with a very young population,
where today's children will become prime ministers of a country or at least ministers or officials within ten
years. In Canada, it takes a little longer for children and teenagers to assume a role of responsibility in
In terms of health, it is clear. For instance, most of the victims of the recent tsunami were young people.
That tragedy has left many orphans, but in Africa malaria kills as many people as a tsunami every month.
Children are particularly vulnerable. I believe most of the victims of malaria are under five.
Senator Losier-Cool: Do you think our committee could request that the Convention on the Rights of the
Child be a priority in the criteria for financial assistance?
Mr. Schabas: Certainly. I believe it is your duty as a committee.
Senator Carstairs: I like your comparison, if you will, with respect to child soldiers. The symbolism
is very bad that we take them in at 16 years of age. Perhaps the solution is to increase the compulsory age
whereby they must remain in school until 18 years. If you did that, the labour market would be unable to hire
them before they turned 18 years of age.
What do you think of that idea?
Mr. Schabas: I am not an economist. There are a lot of sophisticated issues relating to recruiting
people and economics. I am just a human rights lawyer. I think there is a way to keep children in school until
they turn 18 years of age. We might say to a teenager that if he or she stays in school until that time that we
will contribute to part of the cost to enter the Armed Forces. Maybe you could do that to 16 year olds, and that
would be consistent with the convention and we would not need to have our declaration.
Our military types probably would not like that, because it is possible that at 18 years the student will
back out of the commitment to a career in the forces. The military likes to get them in when they are young.
They probably have to sign up, although I do not know for sure, for a certain number of years at the age of 16.
I suppose that is the problem.
It is more a problem of how to recruit people into any kind of a job. As I say, the key thing is keeping them
in school. I did not speak to this in my remarks, but when I used to teach human rights law in Canada, one of my
trick questions or skill testing questions for students was to point to the North American Free Trade Agreement,
which has a side agreement dealing with child labour. It says that each jurisdiction, whether in Mexico, the
United States or Canada, must respect a minimum age for child labour. The question was what is the minimum age
in Canada? The students would scratch their heads and wonder.
Of course, I think you probably know the answer. In many of our jurisdictions there is no minimum age. In
Quebec, where I taught and lived, there was no minimum age for child labour, and we should have had that.
Part of the answer was that the Education Act required children to stay in school until a certain age, but it
did not prevent them from working afterward. I think there is a whole dynamic there that we are not very good in
Canada at attracting students and keeping them in school.
I can understand how a young person may find more worth and self-esteem working at a McDonald's; if they do
well for the month, they get their picture on the wall and become employee of the month. Probably that does not
happen to them as often as it should in school. That is really where attention has to be given. We have to
attract them into school rather than beat them over the head with it to keep them in school. We do not do that
Senator Carstairs: It is interesting that in Cuba, the leaving age is 15 years, but employers cannot
hire until 18 years of age. The result is that children stay in school until they are 18 years old. Even though
they can officially leave at 15 years, if you cannot get a job, you might as well stay in school.
Like you, I think section 43 is ugly and we should get rid of it. The other issue I am concerned about here
today is the detention issue. People in Northern communities argue that if you insist on having children
detained in a separate facility from adults, it means that the separate facility will take the child further
away from that home environment. In some cases, that might not necessarily be a bad thing, but the reality is
that it is a positive argument.
Are there contrary positions that detention in Canada cannot always work because of our geography?
Should that limit us in whether we sign on, or do not sign on, and therefore remove the reservation?
Mr. Schabas: We do not have to detain so many people in prisons or in juvenile detention facilities at
all. We choose to do that as a society and we have laws that allow us to do it. We have a criminal justice
policy that results in the detention of a relatively high number of people with respect to other developed
In Europe, the rates of detention are significantly lower than they are in Canada. Of course, they are much
higher in the United States than they are in Canada, but that is a social choice that we make. We do not have to
make it; we can do something else. However, once we decide to make it, we have to ensure we detain people
appropriately, both adults and children.
I have always thought that the strongest argument for separating children from adults is that adult prison
becomes a school for learned criminal behaviour. I do not have a great deal of confidence in the ability of
adult prisons to encourage rehabilitation. Maybe it is not entirely hopeless to reform a 16- or 17-year-old but
we sure make it harder if we put them in with adult offenders. I think that is the best argument, and we have
probably a good social interest in doing that, because it is not helping them to put them in with adults.
I can appreciate the difficulties of our geography, and I guess there are cultural issues involved as well;
but if we want to do that, we have to be prepared to pay the price for it. That is all. We are a rich society
and if we want to have a lot of people in prison, we have to go by the rules.
Senator Ppin: I would like to speak about young people who enrol in the armed forces when they are
about sixteen. Every summer, I attend the graduation ceremony for young cadets. They are so proud of what they
have accomplished. Of course, some of them continue to go to school, but a number of them decide to have a
career in the army. Most of those young people come from low-income or even underprivileged families. In many
cases, some of those young people, even if they manage well at school, are not too keen on continuing their
studies. They tend to drift away and their parents cannot deal with them. They choose the army, first because
they like it and secondly because they feel they are well supervised. Their life changes and they become more
positive. Although I feel that 16 years is an early age, I do find that for many of them it is a new prospect
that helps them become responsible adults. They seem very happy to have made that choice in their lives.
I would like to say a word about teenagers who are transferred to adult prisons when they turn 16 or 18. It
is true that it is the best school to learn how to become a smuggler, and also that every time a young offender
is placed among adults, he or she may be sexually abused. It is a terrible development for them. What is your
opinion about that?
Mr. Schabas: Thank you, Senator Ppin. I fully agree with your statement about young people joining
the army. Clearly, for a 16- or 17-year-old person, it is something that enhances their self-esteem and they are
very proud of what they do. Probably for the reasons you mentioned, they contemplate a better future as members
of the armed forces. They probably have lots of frustrations with their lives. They often come, as you said,
from low-income families and it is probably the best choice for them.
Let me note that being a member of the Canadian Armed Forces does not mean that you are a combatant. We are
not talking about Sierra Leone or the United States. A young person who joins the Canadian Armed Forces is a
young professional whose career will likely take place within the Peacekeeping Forces. It is not only an
honourable and respectable job, but also a very important and valuable career not only for Canada, but for the
whole world, too. It is somewhat akin to what I do as a scholar: I hire young people who wish to have a career
in the humanities field. From what I can see, a very large number of Canadian soldiers choose that career. I am
all in favour of the armed forces recruiting young people who wish to choose that career. But don't we have a
problem when a young person wishes to make that choice at 16? When I was 16, I wanted to complete my studies and
I was too young to make those choices.
The Chairman: We have heard a fair bit that if Canada ratifies the Convention on the Rights of the
Child, it should by virtue of international law and standards, immediately ensure that all of the legislation in
Canada is in compliance. Another school of thought is that because the treaty is new, so pervasive, and handles
federal-provincial matters, we should be moving toward full compliance.
Do you have any comments to make on this in-conformity, in-compliance debate that we have heard?
Mr. Schabas: The law is that we are supposed to be in compliance from the day we ratify. This is the
case with the Convention on the Rights of the Child, but we are not entirely in compliance. If we were in
compliance, the Committee on the Rights of the Child would give us a smile and a pat on the back and thank us
very much for being in compliance. We are not in full compliance with any of the international treaties, but
that is life and that is fair enough.
What I think would be far more harmful is the opposite message, which is to wait until you are satisfied you
are in entirely full compliance before you ratify treaties. That has been the unfortunate story with Canada and
the American Convention on Human Rights, which we still have not ratified. It is a great failing in our own
international human rights profile because we do not play a proper role. I know this is not on the agenda today,
but it is related and it flows from your question.
Always, when we ratify treaties, there is a mixture of the immediate compliance and the aspirational. That is
part of the beauty of international treaties. On the one hand, we feel relatively comfortable and satisfied that
we are in general compliance with the treaty before we ratify it. At the same time, we understand that it is
setting a common standard of achievement.
When we look at the detention of children, or recruitment into the Canadian Armed Forces at the age of 16, or
child labour, or many of these other related issues, we realize that they are problems that we cannot solve
overnight. We have to view them as a standard of achievement that we would like to attain. It is a great thing
that we set those standards on the universal and international level and not just consider them as matters of
The Chairman: Mr. Schabas, you should know that we have tackled the issue of the Inter-American court.
It is before us, and we will be dealing with it. Perhaps you can follow our hearings. We originally suggested
that we enter the Inter-American court, but that the government should embark on consultations in preparation.
We will be doing a follow-up report on that subject. We will remember to send you a copy of that report.
In the meantime, I thank you for your expertise to this committee and your ability to bring a Canadian
perspective from abroad. The global perspective from a Canadian is very much appreciated, and we thank you for
Our next witness is Mr. Yalden. Thank you for being available to us today. I understand that you have just
returned from abroad and must be tired from your trip. Mr. Yalden, the former Commissioner of the United Nations
Human Rights Committee, served, I believe, eight years on the committee. We are grateful that he is here with
Mr. Yalden has indicated that the actual convention is not one that he is conversant on chapter by chapter. I
can think of no other person who is as conversant with the human rights machinery as Mr. Yalden is. He has full
knowledge of Canada's involvement in a broad range of human rights conventions and treaties. We are pleased that
he is here to give us his perspective on these subjects.
I am not sure if there is an opening statement. If there are some words you wish to put on the table first to
initiate questions, we would be pleased to hear from you.
Mr. Max Yalden, Former Commissioner, United Nations Human Rights Committee, as an
individual: Honourable senators, I am very glad to be here. I have always enjoyed, as Canadian Human Rights
Commissioner and as Commissioner of Official Languages, coming to talk to Parliamentarians. I was somewhat
rushed, I fear, but never mind. I am here, and I am happy to be here.
I did tell the clerk of the committee that there was no way I could make a prepared statement, but I would
like to make a few remarks, and I shall.
Briefly, a few things arose out of Mr. Schabas' helpful presentation and the questions that were put to him.
He welcomed the U.S. Supreme Court decision on the matter of the death penalty for minors, and I do too, but I
would welcome even more the abolition of the death penalty by the United States of America.
Since we are in Canada and not the United States, although we have effectively abolished the death penalty,
Canada, as I am sure honourable senators know, has never become a party to the Second Optional Protocol to the
International Convention on Civil and Political Rights, dealing with the abolition of the death penalty. In my
view, we should. For a long time, the official reason was that in the National Defence Act, there was a
provision, however hypothetical, that provided for the death penalty for treason in time of war. That was
removed from the National Defence Act five or six years ago, and the government has still not moved to ratify
that optional protocol.
I am as aware as anybody else that politically it is somewhat difficult, but nevertheless many countries have
become parties to that protocol. I believe that we should, consistent with our abolition of the death penalty,
become parties to it, and I would hope that this committee one day would encourage that action by the Government
The matter of separate prison facilities for minors is also dealt with in the Convention on Civil and
Political Rights. Finland is a state that I think is a model for human rights observance, yet, curiously enough,
it has a reservation because they have very few minors in prison. It would be extremely difficult to run prisons
for the few people they have. They have no intention of withdrawing that reservation, as far as I know. Whether
that is an adequate defence is not for me to say. Perhaps it is related tangentially to the comment of Senator
Carstairs on the Northern situation in this country.
As one final point about Senator Oliver's question on agencies for children, as the Committee on the Rights
of the Child has pointed out, eight of our provinces do have ombudsmen for children. These agencies exist.
Children have access to human rights committees and Human Rights Commissions and ombudsmen across the country. I
certainly would like to see that happen. Internationally, many countries have specialized ombudsmen for
children, women and so forth, as well as general parliamentary ombudsmen. Not very many countries have Human
Rights Commissions of the kind that Canada has, but they have something that is similar. A number have
specialized commissions for children.
On the failure to ratify the American convention, the provincial consultations have been going on for a long
time. Perhaps the Senate of Canada could prod somebody to move more quickly. We all know, incidentally, some of
the reasons why Canada has not gone ahead with ratification. I am not here to talk about that today.
I wanted to speak very briefly on three matters. First, I will discuss the general responsibility of Canada
under the international covenants and our obligation to implement those covenants. I will discuss how we have
done in the matter of reporting to the Human Rights Committee that is, by extension, similar to all of the other
committees. Third, I will discuss how we have dealt with individual complaints, and in particular, one or two
that may touch on the issue of children.
On the applicability of the covenants, there has been a huge debate, as we know, between so-called monist
countries and dualist countries. Canada is a dualist country where, in theory, we must legislate in order to
bring an international treaty into Canadian law in order for it to be justifiable in the courts. We do not do
that. The problem, as I see it, is that we do not legislate to incorporate it in Canadian law, on the one hand.
On the other hand, we do not use the opportunity which the government and its agencies, starting with the Privy
Council Office, would have to instruct government departments to ensure they are in compliance with
international covenants and international treaties.
They seem to take the view that you ratify and become a party to a treaty, and then it does not impose any
obligations. This is in essence what the government lawyer said in the Baker case that one of the
senators referred to earlier.
They said, in effect, that it was not binding.
In my view, if you do not fully intend to go along with the requirements of an international treaty, then you
should not sign and ratify it; it is as simple as that. If you do sign and ratify it, then you should accept the
I believe in Baker the Supreme Court of Canada said that decision-makers should take into account even
non- transformed international principles. If that cannot be done by legislation, because we do not generally
act that way, then it should be done administratively by government agencies.
The significant comment on this issue has come from the Australian High Court in the Teoh case. The
Australian court said:
Ratification of a convention is a positive statement by this executive government to the world and to the
Australian people that the executive government and its agencies will act in accordance with the convention.
We do not do that. This committee has noted that in the reports that you have made. I fully endorse that view
and that I do not believe that we can hide behind this non-incorporation doctrine. We should either incorporate
or handle the matter in an equally effective administrative manner.
All seven of the covenants, and all the committees, require that states report to them on a regular basis.
The Human Rights Committee must report when the committee asks for it. In the case of the Committee of the
Rights of the Child, it is every five years. All of them have it.
Canada's record has been reasonably good. We have been rather slow sometimes in preparing the reports to the
committees. From our point of view, that is inevitable because of our complex federal system. That does not cut
much ice with an international body because Canada, not the individual provinces and territories, is party to
the covenant. Indeed, the International Convention on Civil and Political Rights says that it applies to all
federal states and all parts of federal states without exception. We cannot really use that as an excuse.
The problem in the Human Rights Committee and other committees is that Canada has not incorporated these
covenants in Canadian law. For many countries, a ratified treaty has the force of domestic law and the force of
constitutional law; they cannot come to grips with this notion that we do not incorporate. It may not be
possible to have a meeting of minds on that subject.
On more substantive issues, my most recent experience was with the Committee on Economic, Social and Cultural
Rights, and then with the committee on civil and political rights, on which I was sitting when Canada came
before the committee. Canada is now coming up again in both of those cases. I thought our performance was pretty
good. Unfortunately, the rules of the committee did not permit me to get involved, so I could not ask any
helpful questions. The concluding observations of the Human Rights Committee were reasonably positive, although
the committee was critical, particularly on the matter of Aboriginal peoples, as you might expect. Child poverty
was another issue raised by the committee, which was directly a matter of concern to your committee in the
consideration of the rights of the child.
The economic and social committee was quite severe in criticism of Canada. I managed, even in the deepest
part of the south of France, to get the concluding remarks of the Committee on the Rights of the Child off the
Internet. I considered one thing in comparison to the Human Rights Committee, and that is that it is very long.
I did not think it was particularly tough on Canada. We probably came away with a reasonable report card from
that committee, although they found a number of things that are lacking, obviously. They will always find a
number of things that are lacking. If you go through the International Covenant on Civil and Political Rights,
you will find many areas where Canada is not compliant. The first, most striking and the worst non-compliant
issue is in regards to the Aboriginal people. There is no doubt that we are in grievous breach of our
international obligations in respect of Aboriginal people. We are in grievous breach of Charter obligations, but
I am not here to talk about the Charter.
The International Convention on Civil and Political Rights and, for that matter, the Convention on the Rights
the Child, insofar as it applies to Aboriginal children, which obviously it does, shows us to be in serious
breach. I hope that this committee will never let go until our record improves.
In terms of the structure of these reports, the consultation between the federal government and the provinces
and among various federal departments might be better than it is. The reports are excessively long; the last one
submitted to the Human Rights Committee is 170 pages. You will appreciate that it makes it very difficult for
the members of the committee to read it and concentrate on what it says.
The provincial submissions are 115 pages altogether. Maybe it is the case that the federal government cannot
do much about that, but our reports would be much more impressive and a much more effective description of and
defence of our views if they were shorter and if there were better consultations between and among the provinces
and federal government.
Each province does things differently. Some provinces list all the illegal grounds of violation of human
rights, others do not. Some do partly and others do not. There is no consistency at all and that makes for a bad
I would take the responsibility away from Canadian Heritage and give it to Foreign Affairs Canada. The
foreign affairs ambassadors represent Canada in these meetings and they have to carry the ball anyway. It would
be a much more sensible arrangement if Foreign Affairs Canada was the lead department in that responsibility.
I also share the view of more Parliamentary scrutiny of these reports. I do not know that it would make sense
for Parliament to be involved in the drafting. That is already so complex, with the provinces and the
territories and various government departments, that I am not sure that it would work. Once the report is
prepared, perhaps Parliament could have a look at it. Certainly, when the Committee on the Rights of the Child
or the Human Rights Committee submits its concluding observations, there should be some form of scrutiny by this
committee. They should call government witnesses to explain whether the committee is in breach of one or another
of the obligations set out in these covenants. That would be helpful. That would keep the government's feet to
the fire, and that would be a good thing. Again, I hope to see this committee do that kind of thing, if
Canada has done quite well on the matter of individual complaints. They are taken under the first optional
protocol to the covenant, which permits individual complaints. Not all states that are parties to the covenant
are parties to the optional protocol. Indeed, there are some striking exceptions, including the United States of
America and the United Kingdom and, of course, China, Cuba and others. However, the two that I find most
difficult to accept are the U.S. and the U.K.
The 104 countries that are parties have undertaken to come to terms with the comments, recommendations and
decisions of the committee. Although Canada has had quite a large number of complaints, they do not result from
a bad Canadian record; they result from an active bar and an active NGO community that is prepared to carry
these complaints to the committee. Again, on the whole, Canada has dealt fairly expeditiously and reasonably
well with substantive complaints. There are those that are known to all of you. There is the Lovelace
case, that of an Indian woman who lost her native status because she married a non-native man, which would not
have happened if a man married a non-native woman. On the other hand, there is a more recent complaint such as
Waldman case. In that case, a Jewish father wished to educate his children in the Jewish faith in the
Ontario school system and had to pay for it, whereas, had he been a Catholic, he would have had that education
free of charge. The committee found that Canada was in breach of article 26 of the covenant relating to
non-discrimination. The committee said that you do not have to have religious education in a country but, if you
do, you must do it in a non-discriminatory manner.
The Canadian government tried to say that education is a provincial issue. The then provincial government in
Ontario said that it did not intend to change the law and asked why the people on this Human Rights Committee
felt they could criticize.
Everyone knows, or should know, that Canada consulted Ontario before it ratified that covenant and Ontario
agreed, indeed even enthusiastically, that it should be a party to it. Then, on this occasion, they simply did
nothing about it and still have done nothing about it.
There was, as honourable senators will know, a move to provide a tax credit for private religious education
in Ontario, but the province withdrew the proposal. We are back in a situation where Canada and I must say
Canada because it is Canada that is the party to the treaty, is discriminatory on grounds of religion.
Furthermore, our violations could extend to freedom of religion.
There are provisions in the Convention on the Rights of the Child that provide that a minority child should
be able to have a minority education. To me, that means that he or she should not have to pay for that education
when other minority children do not have to pay for it.
Senator Pearson: Mr. Yalden, I have long respected your defence of Aboriginal rights. It is something
for which you deserve great credit. As you say, we have not gone nearly as far as we should have. We have
discussed the mechanisms to advocate for children, and we have a fiduciary responsibility for Aboriginal peoples
at the federal level.
Would you comment on the possibility of having, if not a general commissioner for children, perhaps a
commissioner for Aboriginal rights?
In the LaFontaine-Baldwin lecture recently given by Louise Arbour on the realization of economic and social
rights she says:
The realisation of economic and social rights is inherently a political undertaking, involving negotiation,
disagreement, trade-offs and compromise. But political processes do not serve all equally. Equality requires,
among other things, that the most disadvantaged be empowered to participate meaningfully both in political and
legal processes, unshackling them from the benevolence and whim of the powerful, and enabling them to control
their own destinies.
Could you comment on that?
Mr. Yalden: On the first point, it would make perfect sense to have a commissioner for the rights of
children. As I said in response to Senator Oliver's comments on Mr. Schabas' presentation, many countries do,
and I do not see why Canada should not as well.
I do not know whether it would be necessary to have a separate commissioner for Aboriginal children. I think
not. I think that any sensible commissioner for children's rights would be very much aware of the terrible
damage that is done to Aboriginal children and Aboriginal adolescents. It is so strikingly obvious that that
would have to be a number one priority with any such commissioner. Yes, it would be a good thing to have such a
I am not in favour of multiplying commissioners. As it happens, I was two commissioners. I spent 17 years of
my life being Official Languages Commissioner and then Human Rights Commissioner, so I know whereof I speak, and
I do not believe that we need to have more. At one time, the Privacy Commissioner and the Information
Commissioner was one commissioner. Whether the decision to split the commissioner into two was a wise decision,
I will leave to other people.
We are pretty well equipped with commissioners. However, children are special, and I would see a role for
that kind of commissioner with the general powers that are given our other commissioners and ombudsmen.
Economic and social rights have been a thorny question for a long time. One of the problems is the extent to
which such rights, as compared with political rights, religious discrimination, sexual harassment or what have
you, are justiciable. You can clearly say that we forbid sexual harassment and must and will deal with it.
Although we all believe that every person has a right to a decent standard of living, it is hard to say how
to make institutions provide that under law through the courts or through one of the human rights commissions.
The United States was the international leader of the band in the first place, through Mrs. Roosevelt, and
indeed her husband. After all, one of four freedoms he spoke of so eloquently more than 60 years ago was freedom
from want; economic rights.
Economic rights in the international field have always been the major problem for the underdeveloped world,
and the developed world has always had a difficult time dealing with that issue. It is difficult, but certainly
all human rights laws in Canada already have, to a degree, an element of social, economic rights.
For example, in some human rights codes it is explicitly said that you cannot discriminate against a person
because of his or her source of income. In other words, you cannot refuse to give someone a telephone because
they are on welfare. That is easy to deal with because a person is or is not on welfare and the phone company
will or will not give them a phone. However, it is more difficult to deal with the right to a decent job. I find
that odd and I have always found it so. I believe it should be dealt with. I agree with the proposition and I
agree with Louise Arbour, but how to deal with it is much less obvious to me.
Senator Ferretti Barth: In your presentation, I could feel that you were sending a message to the
Government of Canada. In your opinion, could Canada play a leadership role within the international community?
Mr. Yalden: I am of the opinion that Canada has always played an important role in the international
community as regards human rights, but I have to admit that I am getting more and more impatient with this very
rich community of ours which has a tendency to teach lessons to others without looking at its own performance.
I am deeply troubled with our performance in Canada. I wish we could enforce the rights of all our citizens,
whether they are Anglophones like myself or members of a First Nation. We like to tell the international
community: Look at what we do, we are going to help you do the same thing as we do. However, I would be much
happier if we did not have so many shortcomings to overcome here in Canada.
Senator Ferretti Barth: You have answered my concern. The first time I sat on this committee, we
wanted to look into human right issues and travel abroad to see what other countries were doing. My reaction was
to say: Why don't we start by looking for what we need here and once we have dealt with our problems, then we
could visit other countries.
What you just said brings me a little comfort. I thought my lack of experience was the reason for my
different opinion. The issue of Native people is an issue that truly concerns Canadians. It is a shame even to
this day that we have not yet been able to deal with the issue of Native children and teenagers. I wonder why we
always want to go and see what other countries are doing when we still have those severe problems here in
Canada. I can see that we share a somewhat similar concern.
Mr. Yalden: I would just say that we have a lot to learn from other societies. However, I am less than
enthusiastic with this Canadian habit of teaching lessons to the others. I believe all countries have different
systems. In terms of human rights, of human rights commissions although some basic principles have been agreed
upon, the Paris Principles there are all kinds of systems. We can and should learn from other people, but we
should first of all put some order in our house.
Senator Carstairs: Mr. Yalden, like you, I agree that we are in grievous breach of our obligations to
our Aboriginal people. I have also spent time on Aboriginal reservations and I have spent time with Aboriginal
people in our inner cities.
If you were given a mandate to fix some of these breaches, where would you start?
Mr. Yalden: Senator, I suppose I would have hoped that I would have been asked that question in 1876,
and then my answer would have been: Do not pass the Indian Act. Unfortunately, I was not around then and the
Indian Act was passed and we live with the consequences 130 years later.
The question is perfectly legitimate, but the answer is the most difficult to find of any human rights
question we can put in this country.
I have a straightforward answer to the problems of sexual harassment in the workplace and anti-Semitic
propaganda on the Internet and I hope you would agree with my solutions. However, the question you have asked me
is exceedingly difficult to answer.
Canada is not the only country with an Aboriginal population, and we have had dozens of countries before the
Human Rights Committee, some involved in breaches far worse than Canada. Article 27 of the treaty is clear on
the rights of minority populations. Even a country that we like to compare ourselves with, like Australia, is
certainly worse than we are. New Zealand is much better than we are. The Scandinavian countries are better than
we are but the problem is slightly different in Scandinavia.
What do you do with a situation that is so difficult?
I am not able to give an all together satisfactory answer as to what I would do, even if I had all the money
in town and carte blanche to do what I wanted. As a matter of fact, we have all the money in town.
We spend a great fortune on these matters, but we do not seem to break through the circle of poverty. We are
unable to come to grips with problems of the structure of the Aboriginal communities with whom we are dealing.
Are we dealing with the Grand Chief of the AFN or are we dealing with 600 other chiefs?
I do not think anyone has the answers to those questions. In other words, we have dug ourselves into such a
hole that it is now very difficult to get out of that hole.
I find myself doing something I deeply dislike doing, namely coming out with platitudes such as ``we must all
work together.'' Well, any idiot knows that. We must all work together to try to resolve this difficult problem.
We must see to it that the native peoples play a full part in our society and so on. I could go on like that for
some time, believe me.
Senator Oliver: We have heard that.
Mr. Yalden: You have all heard that many times. That is not an answer though. If you think of race
discrimination, there are things that have been done, are being done and are concrete. We have not eliminated
race discrimination but this country is one whole lot better off than it was 10, 15, 20, 50 years ago in terms
of employment, in terms of housing, in terms of all those issues. You cannot get away with race discrimination
today, provided the NGOs, the human rights commissions and other bodies remain vigilant.
What do you do with little far off native communities; communities that are barely economically viable?
Look at the experience with the Innu in Labrador; plenty of money has not solved their problems. Some of
these problems, of course, are not necessarily applicable only to native people. To a degree, drink, substance
abuse, and suicide are characteristics of people who are isolated, particularly in northern environments. I make
that statement in reference to people across the world, not just in Canada.
That is not a satisfactory answer and I know it is not. All I can say is that even at my advanced age, if
someone wants to give me a job working at it, I will come along and see what I can do, but as you see that is
Senator Carstairs: I think I feel a little better that you do not have the answers because we are
struggling terribly with these problems.
Last week, I met with a group of chiefs about housing, which is woefully inadequate in communities in
Manitoba. Many homes do not have adequate sewer and water service. These people live with inadequate education
and health care services, and I struggle with where to begin to fix the problems.
Like you, I do not know how to do it, so welcome to the club.
Mr. Yalden: I have a lot of respect for Phil Fontaine: he is a very able person. Whether it is
possible to get together with some sort of group smaller than 600, I do not know. We did have a Royal
Commission. Unfortunately, as is the case with so many Royal commissions, it produced a massive report that
nobody could deal with, starting with the Senate and House of Commons of Canada. It was just too much. It would
change the whole country, the Constitution, and add another chamber and so on. You all know what was
recommended. That did not cut the ice either.
I believe we are making a bit of progress. Perhaps we just have to push on in that vein. If it were up to me,
I would begin with education. We have to make sure that young Aboriginal woman and men are getting as much
education as they possibly can. Young Aboriginal people should be getting into professions like the law and they
should make progress toward positions of influence in the law and in politics. In many instances, they are
following the course that has been followed by women in those areas. Perhaps that is what I would do. I would
take over the provinces, the federal level and the whole lot and craft a new form of education for our
The Chairman: I am glad you have touched on education because I think there are examples of Canadian
and Aboriginal universities that are designing education differently. In my own city of Regina, the university
has restructured many of its departments, and therefore I do see some progress there. I am glad you pointed that
We struggle with Aboriginal issues and especially with the issue of Aboriginal children. You have both been
involved on a national level and have said we should start solving our problems at home.
Did you find the Aboriginal initiative at the Human Rights Commission of some strength and benefit?
Mr. Yalden: The history of the attempt to draft an international Aboriginal people's charter was not a
model of effectiveness, to say the least. The debate over the words ``people'' or ``peoples,'' for example, in
which this country was implicated in a foolish manner for a long time, is something with which some of you are
familiar. Peoples with an ``s'' was a no-no because if it were enshrined in international law it would give
certain Aboriginal peoples in various countries across the world the belief that they had a right to
self-determination because the international declaration on human rights speaks of ``peoples'' having the right
to self-determination. Indeed, the International Covenant on Civil and Political Rights, the one with which I
was associated, says in the first sentence of article 1, ``All peoples have the right to self-determination.''
That caused consternation and debate went on for years and years.
They finally managed to work out a compromise that agreed that they had the right to self-determination but
only within the bounds of national states and no one should get the idea that Aboriginal peoples could become
separate states unto themselves.
I really did not think that that was an altogether happy initiative, but it seems to be working itself out
and I believe it will be helpful.
The Chairman: I was more interested in the fact that Aboriginal people were given another
international avenue with which to deal with their problems. I believe they were given a forum that they were
not given here in Canada. We were perfectly prepared to hear complaints and to hear Aboriginal people in an
international environment. Whether we have been able to solve the problems or not, it has certainly shed a
different perspective from an international point of view.
Mr. Yalden: I think that was very important, and of course you have a very close experience at the
commission over a number of years. The fact that our Aboriginal people and their representatives have been able
to go together with the Aboriginal representatives from other countries is very important and helpful.
Senator Pearson: My observation is that the commission has not dealt with enough of the issues related
to children's rights. I may be wrong; you may be able to correct me.
I know that the children's advocates in some provinces particularly Quebec and Saskatchewan are linked with
the Human Rights Commissions. I believe in Nova Scotia it is the same thing too. Is it a good thing to link a
children's advocate with the Human Rights Commission, or do you think at the national level this would not work?
Mr. Yalden: I said off the top that I would see a separate commissioner for children's rights. There
are two ways of approaching these human rights commissions. One, is you have a general commission that deals
with everything. The other is a general commission, but then you have a commissioner who is responsible for
children, and a commissioner who is responsible for women et cetera. It is written into the law in that way.
That has never struck me as being a good recipe for sound, effectively functioning commissions. I would think a
separate commissioner would be a better idea.
The Chairman: Mr Yalden, thank you for coming the distance and for sharing both your national and
international perspective. It has been very helpful to put the Convention of the Rights of the Child and those
issues in a broader context of human rights legislation and our international work. We thank you for coming and
we hope that some of your good ideas will find their way into our report.
The committee adjourned.