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THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS

First Session, Thirty-eighth Parliament, 2004-05

Hearings: OTTAWA, Monday, April 18, 2005  4 p.m. - Issue No. 10 - Eighth 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

and

The Honourable Senators:

*Austin, P.C., (or Rompkey, P.C.), Baker, P.C., Carstairs, P.C., Ferretti Barth, *Kinsella, (or Stratton), LeBreton, Losier-Cool, Oliver, Poy

*Ex officio members

(Quorum 4)

Changes in membership of the committee:

Pursuant to rule 85(4), membership of the committee was amended as follows:

The name of the Honourable Senator Ppin, substituted for that of the Honourable Senator Baker, P.C. (April 12, 2005).

The name of the Honourable Senator Baker, P.C., substituted for that of the Honourable Senator Ppin (April 14, 2005).

WITNESSES:

Department of Canadian Heritage: Eileen Sarkar, Assistant Deputy Minister; Kristina Namiesniowski, Director General, Multiculturalism and Human Rights Branch; Calie McPhee, Manager, Human Rights Program.

Justice for Children and Youth: Sheryl Milne, Staff Counsel; Martha Mackinnon, Executive Director.

Transcript

OTTAWA, Monday, April 18, 2005

The Standing Senate Committee on Human Rights met this day at 4:05 p.m. to examine and report upon Canada's international obligations in regard to the rights and freedoms of children.

Senator A. Raynell Andreychuk (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we have heard from a number of ministers and other witnesses about the Convention on the Rights of the Child. However, our study is not limited to the scope of the Convention on the Rights of the Child, we will also consider ways and means that will assist the public service, the government and parliamentarians to meet the obligations that we have undertaken respecting children.

Today we have witnesses from the Department of Canadian Heritage, the Assistant Deputy Minister, Ms. Sarkar, and her colleagues. Minister Frulla was to attend, but was unable to do so. There will be value in hearing from the representatives of the ministry today as they have the overall responsibility for this area in the Department of Canadian Heritage. The minister will be available at a later date.

Please proceed.

[Translation]

Ms. Eileen Sarkar, Assistant Deputy Minister, Department of Canadian Heritage: Madam Chair, on behalf of the Minister of Canadian Heritage, I would like to begin by thanking all the members of the committee for the time and energy you are devoting to human rights, particularly the rights of children, which are so fundamental to our society.

The Department of Canadian Heritage Act states that the Department is responsible for the promotion of a greater understanding of human rights, fundamental freedoms and related values.

As Assistant Deputy Minister, I am responsible for the Citizenship and Heritage Sector, which includes the Human Rights Program.

With me today, I would like to introduce Kristina Namiesniowski, Director General of the Multiculturalism and Human Rights Branch and Calie McPhee, Manager of the Human Rights Program. I would also like to note the presence of Christine Nassrallah, Director, Policy, Research and Human Rights, and Liane Venasse from the Human Rights Program.

[English]

The implementation of human rights is about building, as you would know, a culture of respect, a culture of human rights.

The Department of Canadian Heritage works to promote all aspects of Canadian identity, including the democratic values we all share.

Human rights is a cross-cutting issue that touches on a wide variety of areas. Effective human rights implementation is not the domain of any one department, nor of any one government, it is the responsibility of all departments and all governments.

In Canada, treaties are implemented by a wide variety of stakeholders and through various means such as constitutional protections, statutes, administrative measures, social policies and programs.

As you know, and you have already heard from Minister Cotler, the Department of Justice plays the key role in ensuring that federal legislation and policy initiatives respect our human rights obligations. On the diplomatic front, the Department of Foreign Affairs steers our international efforts to advance the cause of human rights. Many other departments and agencies, such as Social Development Canada, CIDA and the Public Health Agency also play a major role in developing policies and programs that further human rights, including children's rights.

In order for respect for human rights to remain an inherent part of Canadian culture, it is important that federal, provincial and territorial governments, as well as civil society, work closely together to ensure that every citizen is treated equally and with dignity, regardless of his or her age, ability, race, origins or beliefs.

The human rights program focuses its efforts on governmental and intergovernmental coordination and the promotion of human rights in Canada.

[Translation]

I will now talk about the coordinating role. The program coordinates consultations, both across the federal government and with the provinces and territories, on issues related to the implementation of international human rights treaties, including the Convention on the Rights of the Child.

At the federal level, we have actively strengthened this role. For example, in January 2004, we initiated a new interdepartmental process to enhance dialogue across federal departments involved in implementing human rights treaties in Canada. This committee is looking at various issues such as the role of non-governmental organizations in monitoring and strengthening federal measures to ensure follow-up to UN committee's recommendations.

With regards to the Convention on the Rights of the Child, we also established last year a new mechanism to ensure ongoing consideration of the treaty obligations through interdepartmental discussions of the UN committee's recommendations.

After the committee issues its recommendations, we do the necessary follow-up with relevant departments to assess the progress achieved in considering the recommendations. Our role is to organize annual meetings to ensure that the views of the UN committees are given appropriate consideration. We are applying this new approach to all treaties.

We also continue to work closely with our provincial and territorial partners on the Continuing Committee of Officials on Human Rights.

Since 1975, this committee has enabled the federal, provincial and territorial governments to share their views on human rights issues and exchange information on implementation of human rights treaties, including the Convention on the Rights of the Child.

The committee is also involved in preparing for Canada's appearances before UN treaty bodies, and its members are Read More ..equently participating as members of the Canadian delegation. The committee examines issues associated with each of the human rights treaties, and discusses specific UN recommendations in Read More ..pth, including sharing best practices.

We hold monthly telephone conferences with members of the committee in addition to biannual meetings. Finally, we also regularly report to the provinces and territories on the work of your committee.

[English]

I will speak a little about reporting to the United Nations. Our role as coordinator on human rights issues is of course intrinsically associated with the preparation of reports to the United Nations. I know that you have heard about those from other witnesses who have come before you.

The human rights program is responsible for preparing Canada's reports concerning the six international treaties that deal with human rights.

In the case of the Convention on the Rights of the Child, the federal section of the report is prepared by the Departments of Justice and Health. However, the human rights program provides guidelines and advice to other federal departments and to provincial and territorial government to guide their submissions. The program reviews all submissions, negotiates revisions, and ensures publication and distribution of all reports in both official languages.

Since October of 2004, Canada is now up to date with its reports. This is not a small thing, given that, in 2004 alone, we submitted no fewer than five reports to the United Nations. We achieved this result by making significant improvements to the process. Our reports now focus on the key issues raised by the United Nations in its most recent recommendations and on the progress achieved since. Emphasis is also being placed on reporting on results.

We determined the key issues that the reports should address through an analysis of the UN recommendations and through close collaboration with our federal, provincial and territorial partners. We also wrote to non-governmental organizations, providing the list of issues we intend to cover and invited them to share their views on whether these are the priorities. We can do better in terms of our preparations with the NGOs, and we can talk Read More ..out that.

Our last two reports were submitted within Read More ..asonable time frames, and we will be closely monitoring the results of the new approach that I just described and make other changes that may be necessary.

[Translation]

We are also involved in promoting children's rightsto Canadians. The Human Rights Program invests closeto $400,000 a year to support projects put forward bynon-governmental organizations and educational institutions to promote human rights.

The rights of children are central to these efforts. Since 1997, in collaboration with other federal departments and agencies, we have supported over 60 projects specifically emphasizing the rights of young people and children. We have encouraged the establishment of workshops on children's rights for the various groups and officials. We have helped to develop instructional materials that have been distributed in Canada's elementary and secondary schools. We have also enabled Aboriginal youth to take part in workshops on human rights and the struggle against racism.

To give you a better idea of our efforts, we will leave a summary of some projects that have recently been supported by the Human Rights Program.

The program also contributes to the implementation of article 42 of the Convention on the Rights of the Child, through other activities that raise public awareness as well.

We ensure that the convention, Canada's reports, and the recommendations of the UN committees are available on our website. In addition, we see to it that our reports are distributed to NGOs and are available in numerous libraries. We added a page to our website that is devoted to the theme of children's rights, as well as many links to other sources of information.

Every year, we distribute over 50,000 copies of the Canadian Charter of Rights and Freedoms, mostly to schools. Every year, 4,000 copies of the Convention on the Rights of the Child are sent to Canadians on their request. There are other aspects of the Department's work that also help to advance respect for human rights. I would like to take this opportunity to highlight that the Multiculturalism Program recently launched the Action Plan Against Racism, a government-wide action plan which will directly contribute to the promotion of human rights in Canada.

In fact, one of the key priority areas for action is to make children and young people aware of diversity and of the importance of stopping racism. We will continue our efforts to promote the rights of children and we look forward to the result of your study.

I thank you for your attention, and I will be happy to answer your questions.

[English]

Senator Pearson: I welcome you all here. I have worked with a number of you for a long time on a number of different issues. I know the challenge of the mechanisms, particularly the federal-provincial discussions and others that you have described.

Would you elaborate on a couple of issues that pre-occupy me? One is the issue of the promotion of the convention. We have the obligation under article 40-something to promote the convention widely to everyone, including children. You have described some of your programs.

Senator Carstairs, who does a significant amount of teaching of children in Encounters with Canada, would probably empathize with my next comment. When I ask youngpeople from across the country, who come into the Senate, perhaps 120 to 130 of them, aged between 13 and 17, how many know about the convention, at the most, I will get a show of four hands. Wherever I go, when I speak with young people, I find the same result. We have failed in this area. I am not quite sure why that is so or how to remedy the situation. Your resources might require to be somewhat augmented. Young people all know about the Charter of Rights and Freedoms, so you have succeeded in that area. However, most are unaware of the convention. When I mention it to them, they are amazed, interested and they ask many questions. We have a long way to go in that area. That is the subject of my first question.

My second question relates to having taken part in the preparation of our last report and having led the delegation when we went to Geneva. We are anxious to hear any suggestions that you may have that we could then build into our recommendations about how to facilitate the process.

As you know our next report is due in 2009. I presume we have to begin our preparations for that report in 2006. From my experience, it takes at least three years to complete the process. This time we have the added responsibility that cabinet assigned, and that is reporting on the implementation of our national plan of action for children.

Have you already started to think about how you will complete that process? Would any recommendations we might make assist you?

Ms. Sarkar: In response to the first question, I will look to my colleague to help me out. We are aware of the lack of awareness of children. Enough years have passed that the awareness should be there.

We decided to contribute to a survey of youth being conducted by the War Child Canada on global issues, including human rights. We specifically requested that youth be canvassed on awareness and the importance of the Convention on the Rights of the Child and human rights treaties in order to establish baseline data that can inform us and measure future directions for our program and see where the awareness is, where it is not, and how we can build on it. Increasing awareness of the convention remains a key funding priority of our human rights program.

As to the preparation of our next report, the report of this Senate committee will be extremely helpful to us. You have been looking in depth at this issue over the past many months. The report will be valuable input because it will be based on the testimony you have heard from many witnesses and you will have formed your own recommendations.

I would ask my colleague, Ms. McPhee, to deal with the actual process we are following.

Ms. Calie McPhee, Manager, Human Rights Program, Department of Canadian Heritage: Honourable senators, first, with respect to raising the awareness of the convention, we will be discussing this in Read More ..tail with our federal and provincial colleagues. We will talk about best practices, what they have been doing, and what Read More ..n be done at all levels in order to further promote the convention. Having human rights and children's rights, in particular, discussed at this forum definitely helps us greatly.

With respect to your question about reporting, as Ms. Sarkar mentioned, we have an ongoing federal interdepartmental process that each year examines the recommendations in detail and examines what our department is doing. We have implemented similar processes across the board. That means we have already begun to prepare an outline of the next report.

However, it will be another year or two before we officially start the preparation of the next report. The timeline for producing our reports has been cut substantially. We have also recognized the need to begin these reports much earlier. Officially, we begin them now, nine to twelve months in advance of expecting to report. We are also implementing a process by which we hope to identify specific indicators, using the recommendations of the UN committees as the guide, that is, what topics need to be examined and priorities for Canada in general.

Senator Pearson: Are you thinking about involving children?

Ms. McPhee: Along the lines of the role of the NGOs that Ms. Sarkar mentioned, we do want to explore further how to reach youth and obtain their views on what issues need to be covered in our reports and what the priorities should be for Canada. This is an area that we will be discussing Read More ..lly.

The public health agency has a centre with expertise on consulting children, and we will be meeting with them. They have already offered their assistance.

Senator Carstairs: Perhaps, when you are sending out thousands of copies of the Charter for classes examining Charter issues, you would include one copy of the convention, so that at least the teacher will have that.

As to the specifics, when Max Yalden, a former commissioner with the United Nations, appeared before this committee, he indicated that he thought that Canada's current reporting process was not the way to go about this, and that we should take the responsibility from Canadian Heritage and give it to Foreign Affairs. What would be your reaction to that comment?

Ms. Sarkar: That is a trick question, is not it? Thank you for your suggestion about sending out a copy of the convention with the Charter. We will look into the feasibility of that.

Should Foreign Affairs be responsible? That is a question that I would not only refer to my minister, but also probably to the Prime Minister. It is a machinery-of-government issue. We are happy to help. We feel that the promotion of human rights fits very well within our department because our department is about heritage, identity and culture. I am happy to make those links when I deal with multiculturalism and Aboriginalism, that is to say that this is all part of the Canadian identity. I do not want to waste your time by telling you my views on these items.

Mr. Yalden did make a fair and accurate point and that is that we are behind in our reports. We have made a concerted effort to be much Read More ..mely. The criticism was well deserved. If we can say that we are getting better, perhaps he will agree that we should continue to deal with this issue.

Senator Carstairs: Let me proceed to a process question. The report was filed in 2003. The UN committee responded frankly and said that, for a developed country, we were failing in a number of areas. One was the existence of section 43 of our Criminal Code that allows for the corporal punishment of children. The other was our reservation with respect to how we incarcerate young people and the apparent acceptance that it is in order to incarcerate young people with adults. I also have a concern about incarcerating children who have never been in trouble with the law with children who have been in serious trouble with the law. We do that in a number of provinces.

When such recommendations come back from the United Nations, how do you engage the appropriate departments? Obviously, the Department of Justice would have the responsibility to introduce a bill to amend section 43 of the Criminal Code. Incarceration is a provincial issue, not a federal issue. Young people are not incarcerated by the federal government, they are incarcerated by provincial governments.

How do you go about informing the various departments of our bad performance; and how do you go about creating the conditions in which change might happen?

Ms. Sarkar: I am not sure my answer will satisfy you completely because we play a role of coordination and, I hope, a role of moral suasion. As you pointed out, the accountability does rest with the other departments. What my colleague started to describe and what I said somewhat in my opening remarks is that what we are doing now is that we have our federal-provincial ongoing meeting of coordinators where we sit down and wrestle with them, that is, friendly wrestling. We also have this interdepartmental higher level committee that brings together all of the departments to thrash out the questions about whether we are getting the whole process right on human rights. We now meet a few times a year to assess what is being done regarding specific recommendations. Clearly, telling another department what to do, is not appropriate, but we can try, as I said, moral suasion and be a conscience.

The Chairman: You say there is an interprovincial committee. I presume that is made up of civil servants; is that correct? My understanding is that there was supposed to be a ministerial group. When this committee was set up there was to be a minister from each province and a federal minister assigned to look at the implementation of these human rights committees. Below that, there was to be this interprovincial or federal-provincial committee. Perhaps you could give me the correct name.

Can you tell me how often at the bureaucratic level you meet? Do you share any formal reports with ministers or others? When have the ministers met? When this committee first started its examination of this subject, we had representatives of the Department of Canadian Heritage before us, and we were told that the ministers have not come together for some nine years. Have they met since the last time your department was here?

Ms. Sarkar: Let me start with the title of the committee. It is call the Continuing Committee of Officials on Human Rights. The committee meets twice a year and is chaired by a director general from our department. I believe that the members of the provinces and territories are senior advisors.

No, a ministerial meeting has not taken place since we last appeared here. Your comments were taken into account, and I believe at the last meeting of the committee there was some discussion of the possibility of proposing to ministers a ministerial-level meeting in 2006.

Senator Poy: Ms. Sarkar, you mentioned that your department prepares materials for schools. Would that include books for young children to let them know their rights? Since education is a provincial responsibility and not federal, how do you know that the materials you send are being used? How do you measure the success of that?

Ms. Sarkar: In order to respond satisfactorily, I will ask my colleagues to give Read More ..tails on exactly what we send.

Ms. McPhee: We have a variety of materials available to send to schools. Generally we do this on their request. They are aware of much of what is available. We list the various items that are available on our website. Those includes a wide variety of materials, including a manual, ``It is your right,'' that deals with rights for students and teachers.

NGOs develop additional material and, as much as possible, we try to make the links and try to make sure that students and teachers know about them. Of course, because education is the jurisdiction of the provinces, we do not go directly to schools. However, we do use our Continuing Committee of Officials on Human Rights to let them know what material we are producing and what is available, including the Convention on the Rights of the Child. We put together an information package on children's rights, which included the convention, some material from our website and the National Plan of Action for Children.

We are looking at how to maximize both what we can put on line to reach the schools and our contacts with our provincial colleagues.

We are also linked into the Human Rights Commission's Public Education Network and, as much as possible, we are making them aware of what we have available. We can do Read More ..We are trying to get Read More .. this material available as quickly as we can, and, for that reason, we created the theme site on children on our website, which provides links to some other information sources and the NGOs who have done good work with us in developing this material.

There may be other associations with whom we could develop Read More ..ntacts, and any recommendations would be very useful. We already work with a number of NGOs, such as Save the Children Canada and numerous others, on a regular basis. Any suggestions you have about what Read More .. can do and making Read More ..nks would be most helpful to us.

Senator Poy: Do you have many requests for the material that you produce? Do you have direct links with immigrant groups? It is important that new immigrants coming to this country know their rights.

Ms. McPhee: That is one area we could explore further. We have some links with some groups.

Ms. Kristina Namiesniowski, Director General, Multiculturalism and Human Rights Branch, Department of Canadian Heritage: In fact, this is a topical question. Today I had a discussion with Mr. Chan, the Minister of State for Multiculturalism, about how we can ensure that the new and emerging communities within Canada are aware of their rights, more than just reading the words in the Charter, but being aware of what it means to be in Canada and to practice the rights that are reflected in the Charter. It is a very pertinent comment.

Senator Poy: In your conversation was it suggested that the Charter should be translated into some of the other languages of the major groups of immigrants coming into this country? New immigrants do not necessarily know English well enough to understand the written word. That applies especially to parents. I would, therefore, make that suggestion.

Ms. Namiesniowski: The Charter has been translated into a number of languages. We are in the process of translating the Charter in the first 32 languages most frequently spoken at home to address that issue.

Senator Poy: What other practical ways is your department promoting multiculturalism? The Canadian Multiculturalism Act was passed a long time ago and we seem to still be struggling with it. Do you have any comment?

Ms. Sarkar: About a month and a half ago, we held a policy conference based on some statistical projections we had asked Statistics Canada to do on what Canada's population would look like, particularly with respect to visible minorities, in the year 2017, which will be Canada's one hundred and fiftieth anniversary. This was with the aim of having federal departments ask: ``If this is what the population of Canada will look like, are we ready to serve the Canadian population?'' It covers the gamut. That is some of the not-so-spectacular groundwork that we are doing. The emphasis of the program has also turned Read More ..wards creating cross-cultural understanding, trying to deal with some of the fault lines that exist in Canadian society. The recent budget announcement of an additional $5 million to our multiculturalism program, gives us a little Read More ..ney for the promotion of multiculturalism.

[Translation]

Senator Losier-Cool: My first question completes the questions asked by senators Pearson and Poy concerning the promotion of the convention.

You talked about promoting multiculturalism in terms of Native affairs. Given that your department is responsible for the linguistic duality, under the Official Languages Act, do you promote the language rights of children in Canada?

Ms. Sarkar: That is an interesting question. Ms. Frulla is doing a lot of work in the area of official languages promotion. We are responsible for Part VII of the Official Languages Act. Regarding children, we often target agreements with provinces in the area of education. It is not a matter of reinforcing the rights, it is rather an issue of funding to ensure that all eligible persons have access to schooling in their own language. I had never made that link with the promotion of a given right. We go directly to programming that respects and reflects the rights of eligible persons in the school system. We also have agreements with communities. We fund communities throughout the country to support the vibrancy of official language communities in each province. Is it a matter of rights? I often refer to the right to education. It is a question that I find quite interesting. I don't know if my answer is adequate.

Senator Losier-Cool: I think that language rights is Read More ..at merely the right to education. It is also the right to health care, the right to have access to legal services, to social services. All the rights contained in the Convention on the Rights of the Child must be respected under the Official Languages Act.

Senator Carstairs has mentioned Max Yalden's testimony to the effect that it should be up to Foreign Affairs to deal with this. We have heard other witnesses who indicated to us that perhaps Canada should create a position of national advocate, an ombudsman for children, so to speak. Under such a scenario, do you believe that this person, this national interlocutor, could be responsible for the coordination or even the promotion of this file? Could we give him or her some other tasks? Indeed, what do you think of this whole idea of having a national ombudsman?

Ms. Sarkar: I am writing down your questions and recommendations. What is interesting is that we do have some models here in Canada in the area of ombudsmen. For example, in the area of official languages, we have a commissioner of official languages who, in some ways, is playing the role of an ombudsman. I must say that for official languages, we have a remarkable team. We have three ministers who have statutory responsibilities. We have a minister responsible for official languages, Mr. Blanger, and we have a commissioner of official languages.

As far as sharing with you my views on what should be the role of an ombudsman for the rights of children, I am listening to you attentively, but I will not make any recommendations.

[English]

Senator LeBreton: This is a follow-up on a question by Senator Carstairs. In our briefing notes, I see the following comment:

The Human Rights Program at Canadian Heritage acts as the permanent secretariat for the Continuing Committee and as the main governmental information-exchange gateway between the international and domestic human rights scenes, and among the federal, provincial and territorial governments.

I take it that is a fair statement of what you are saying. In view of that, the testimony we have had from Mr. Yalden, and the involvement of other departments, what role, if any, do you play when it comes to Foreign Affairs Canada and, perhaps, the Department of Finance when, as we just heard in the news these past few days, that there has been a significant debt forgiveness program to countries that have horrendous human rights records, including against children?

In your interdepartmental discussions, do you play some role or are you consulted? Is there any way that debt forgiveness to these countries can be tied directly to their human rights records? In other words, if they are serious about having these debts forgiven, can there not be some commitment by them to human rights and the rights of children?

Ms. Sarkar: We do not have a role in that. We have a role in coordinating responses with respect to the conventions, but that is not a role that a permanent secretariat plays.

Senator LeBreton: If we have a department of government that is the gateway between the international and domestic human rights scene, it would only make sense that, with your expertise of the conditions that prevail and the information and research that you do, you should somehow be involved to that type of decision. As I was listening to your testimony, it struck me that this, perhaps, is a huge area that we are missing.

Ms. Sarkar: Thank you. I will take note of your comments.

[Translation]

Senator Ferretti Barth: My question follows up on the question put by my colleague Senator Poy concerning the fact that the declaration of the rights of the child is not well known by the population at large. You can question people in the street as to whether they are aware of the declaration of the rights of the child, and they will tell you that they are not. It seems to me that what my colleague has suggested is quite relevant. I work with cultural communities and, in my view, it would be useful for schools to put in place an awareness program for parents that would include meetings and discussions in the presence of children. Teachers, parents and children would all attend these sessions. This could have extremely beneficial effects, because the child does not necessarily have the opportunity at home to share with his parents the information he or she has received in the classroom about the rights of the child. If the three parties are brought together, it all becomes possible. One should also take into account the culture of these children coming from other countries, where children may be raised in ways that are different from ours.

It is imperative to be very much aware of and responsive to that difference and to ensure that the rights of children whose cultural background is different from ours not be perceived as being against the values of parents. It is a recommendation that is dear to my heart because I sometimes go through very difficult situations within cultural communities. It is also due to ignorance.

In the same vein, could you give me some examples of activities and programs to inform and educate the public about the rights of children? Because Canada is not only made up of Canadians, but also of multicultural groups. Our concern is how to manage to reach everyone.

Ms. Sarkar: In fact, I do appreciate your comments and my colleague said earlier that the Minister of State, Mr. Raymond Chan, is very much aware of the fact that we must really focus on newcomers to Canada.

Ms. Namiesniowski: We also have another small program. We have only $400,000 for this program every year. We promote the awareness of the population with publications such as The Children's Guide. We are always looking for projects that we could fund. We do not implement these programs, but we are funding projects that are submitted to our program by the NGOs. We are always looking for ideas such as the one that you have mentioned.

Senator Ferretti Barth: We are here to solve problems and to see what would be the best way of ensuring services of equal quality for all in our society. We must understand that we are a multiethnic nation and that, if we are responsible for new immigrants, we must also make them aware that it is possible to live a quiet life in this country. It is imperative that an effort be made at school to consult with parents in the presence of children, in order to explain to them, in very plain language, what are the rights of children. This pamphlet, for example, no one reads it. In particular, new immigrants cannot understand it.

If I was to ask my sister or my neighbor what they have done with this pamphlet, they would tell me that they had thrown it away. What is important is the personal contact, to be able to talk from the bottom of your heart about your culture and what it allows you to do. This is what Canada is suggesting to do for the good of the child. It is crucial. Please follow up on my recommendation.

Ms. Sarkar: One of the things that we could do is putting this on the agenda with our colleagues from provinces and territories, given that education is within their jurisdiction. We could put up a pilot project in some provinces and see whether it could work.

Senator Ferretti Barth: If you go to Montreal, I could help you out. I know almost all the schools. I would be pleased to go together with an official to meet with these people.

[English]

The Chairman: Before we go to a second round of questions, would it be possible for the committee to receive the contact names on the federal-provincial coordinating committee? Could we also get the contact names of the interdepartmental level list?

Has either the interdepartmental group or the federal-provincial group ever been invited to present a report to any parliamentary committee of either House of Commons or the Senate?

Ms. Sarkar: I am sorry, senator, but I do not understand your last question.

The Chairman: Would you care to answer the first two questions?

Ms. Sarkar: With respect to providing you the names of the federal-provincial members, I would like to consult with the provinces and territories before I do that. I am not saying that I will not provide those names, but I will consult with them to see if they are comfortable with that. With respect to the members of the federal interdepartmental group, yes, of course we will provide those.

As to the interprovincial-territorial group, we can certainly give you the names of all the federal members, as well as the names of the federal members on the committee internal to the federal government.

The Chairman: It surprises me, to say the least, that you would not be able to provide us with the provincial names. It is not a secret society, surely.

Ms. Sarkar: No, but I believe it would be a courtesy to the other jurisdictions to ask them first.

The Chairman: As I say, I am still surprised that, in this day and age, you would feel uncomfortable about that.

You meet and discuss issues such as the implementation of the Convention on the Rights of the Child. We have been told in the past, individually and as a committee, that certain issues are being worked on. Of course, we do not know what issues are being worked on or the status of them. There is no public means by which the people can know that you are wrestling with these issues. We recognize that these are not easy issues. Are your minutes available to the public or to parliamentarians?

As well, have you ever been invited on behalf of this federal-provincial group to report to a parliamentary committee of the House of Commons or the Senate? Has that ever occurred in the past?

Ms. Sarkar: In terms of the deliberations and our wrestling back and forth with these issues being made public, they are not made public precisely for that reason. The persuasion that can go on with jurisdictions with the doors closed can be open and honest on both sides. I think it furthers the objectives of the Convention on the Rights of the Child, or other conventions, that we can in fact have those tough discussions in private. No, the minutes are not available.

The Chairman: Have you been invited as a committee or individually to discuss any of the issues to do with any of your work in the whole human rights field? We are particularly interested of course in the Convention on the Rights of the Child. Let us just take the whole in general. Have you ever been invited to discuss those issues, or the fact that there is a committee and what its mandate is, et cetera, with any House of Commons committee or any Senate committee previously, except the one time that you appeared before the Standing Senate Committee on Human Rights previously?

Ms. Sarkar: To my knowledge, we have not. PerhapsMs. McPhee could clear that up.

Ms. McPhee: The only time we have been invited to appear before this committee was when the chair of the Continuing Committee came and debriefed you.

Senator Pearson: Thank you. To follow up briefly on what Senator Andreychuk just said, we have learned that, in other countries, the Parliament is invited to hold a session with officials on the concluding observations. That is something in which we are quite interested. That is a partial explanation of what was behind Senator Andreychuk's statement.

The Chairman: As senators we tend to have long histories and good memories. During our dialogue with federal officials we were not allowed to know about the contents of certain negotiations with the provinces, yet we receive that information from other sources. Just so the collective memory of this committee can be updated, those minutes should be circulated to all committee members.

Senator Pearson: You have so many components, including the national cultural organizations, the CBC and so on. You need not reply to this. I merely throw this out as a thought. I believe that it is important that these organizations pay at least some attention to the children who are part of their mandate. I know that some of them do. I know the National Arts Centre, for example, is doing an excellent job by encouraging young artists. Would it be useful for you to have a link that would remind these organizations from time to time, when they are reporting, that they should be respecting a child's right to culture? It is not the same as creating a new audience or whatever. It has to do with the child's right to culture and history. I throw that out as a consciousness-raising exercise.

Ms. Sarkar: I am receptive to that. I will not talk to you about other committees, but we get together on our portfolio. It is a large portfolio and involves some major and influential institutions, so this is something that we can raise with them as we raise a number of issues of collaboration.

Senator Pearson: If it were a standard question, then they would think about it every year.

Senator Carstairs: In light of the questions asked by Senator Poy and Senator Ferretti Barth, is there an information package that you provide to the Department of citizenship and Immigration that they use when they perform citizenship ceremonies or educate new citizens with respect to both the Charter and the Convention on the Rights of the Child?

Ms. McPhee: The Department of Citizenship and Immigration prepares its own package. We do supply them with copies of the Charter, and we can certainly look into also enclosing copies of the Convention on the Rights of the Child.

Ms. Sarkar: I very much appreciate the ideas that you have given us, Senator Carstairs and others.

Senator Ferretti Barth: I have been to citizenship ceremonies four times.

[Translation]

I have never seen the Declaration of the Rights of the Child. If you are telling me that the office must make the request to include in this kit the Declaration of the Rights of the Child and the Declaration of Human Rights, that is different.

I normally attend this ceremony and I can tell you that I have never seen that document. You must take in consideration what Senator Carstairs has said. The content of the information kit that is being given to citizens must be reviewed in order to make sure that it is inclusive. Otherwise, we will still have to spend some time educating new immigrants about Canadian laws. In fact, many children and adults do not know the law, and it is our fault. We must do something about that.

Ms. Sarkar: I believe that Senator Carstairs's recommendation is excellent.

[English]

The Chairman: We have run out of time. I thank you for appearing before our committee and sharing with us information about how the government is approaching the dissemination of information and compliance with the Convention on the Rights of the Child. This is just the start. It appears that we all have a long way to go together.

We have requested that the chair of the coordinating committee come before us, and we look forward to that happening. We look forward to hearing from the minister as well. Perhaps the two can appear at the same time. You can put them on alert that we are interested in continuing this dialogue.

We will go right into the next session with Ms. Sheryl Milne, staff counsel, and Ms. Martha Mackinnon, Executive Director of Justice for Children and Youth.

I would remind honourable senators that a travel date has been fixed by the steering committee for the week of June 13 to commence our public hearings across Canada. The first meetings will be held in Atlantic Canada.

If you cannot attend, we would appreciate members from the region filling in, because they can provide us with a broader perspective of the region. The dates of the routing to certain cities will be fixed shortly.

I now turn to the Justice for Children and Youth representatives. Welcome. Do you have an opening statement?

Ms. Martha Mackinnon, Executive Director, Justice for Children and Youth: Honourable senators, with me is Ms. Sheryl Milne, Staff Counsel.

Thank you for the invitation to be here. It was gratefully received and we are honoured by this opportunity. I would apologize that, given the short lead time we had, we were unable to get our materials to you well enough in advance for you to be have them translated. Our office systems had broken down even as we were leaving the office.

I would emphasize how grateful we are that the Senate considers this issue important enough to have a committee considering it. That, on its own, is a huge validation of the work we have been involved in for many years, and also of your own understanding of the importance of children in our society.

Justice for Children and Youth was founded in 1978. It is still Canada's only legal clinic for children. We practice law. We are lawyers. We practice in the areas of criminal law, education law, family law, human rights law and child protection law. As you listen to that list, it becomes clear that our areas cover both federal and provincial jurisdictions.

What is unique about our clinic, apart from the fact we are Canada's only one, is that we act for young people themselves. We take instructions from young people. We have a youth advisory committee that helps to inform the work of the clinic and set priorities. We involve young people at as many stages of the work we do as we can. However, we know that the work we do is for them, and they instruct us. They retain us as lawyers and we act for them.

That has been very rewarding for me. I am not only a lawyer but a former teacher. I have been working with young people all my life. For Ms. Milne, who is a social worker as well as a lawyer, it has been very rewarding work, but it is also frustrating. There are ways in which trying to act directly for young people does not work out as well as one might hope in the current legal map for children in Canada.

The fact that we act in many areas, and as I said they overlap provincial and federal jurisdictions, has led us to one of the recommendations that you will find in our report. This is something that I believe you have already heard. It is that the UN Convention on the Rights of the Child must be incorporated into domestic law in Canada.

It should not be an issue, because all provinces but Alberta have already ratified the convention. One would think that across Canada there is not a significant amount of objection to the words of the United Nations convention. However, to the extent that it is a challenge, in my submission, Ottawa should display leadership, should set an example, and should work hard with the provinces to incorporate the convention into domestic law.

It is important to note that Canada did not just sign and ratify the UN convention. It was a proponent; it was a leader; it urged other countries to sign; it helped in the drafting; and it worked to make this the international treaty and standard for children's human rights. If Canada is a proponent, then it is also critical that we be a leader in the world in incorporating the convention into domestic law.

I know that one or two senators have already asked about the role of education. People do not assert the rights they do not know they have. We need to create a widespread climate that rights are known, so that we can assert them. I believe a specific suggestion was that the convention be included in packages for new citizens. All citizens of Canada need to know, and new immigrants need to know. They do not need to know just what the convention contains. They need to know that Canada has said that it believes in it, that Canada was a proponent, a signer and a ratifier. This is something on the international stage to which Canada is committed. In my submission, it would be very sad if the signing of an international treaty became the high-water mark. If you do not move to implementation, then what Canada has said is: Here is what we think the international standard is; other countries should follow it, we do not need to. Incorporating into domestic law, in my submission, is absolutely necessary for us not to lose the powerful moral high ground we had in arguing for the convention.

We have divided our presentation. I will turn now to Ms. Milne, who will talk about some of the details in our submission, including case work and the process whereby we came to our submission. We think it was a particularly rich process. Then we will be delighted to help you any way we can in answering questions.

Ms. Sheryl Milne, Staff Counsel, Justice for Children and Youth: Honourable senators, I will talk briefly about the structure of our submission and how we came to the recommendations that you will find therein.

Our policy committee of Justice for Children and Youth reviewed most of the briefs that have already been presented to you. You will see that some of our recommendations echo some of the recommendations that you have already heard. We will not necessarily dwell on them except to answer any particular questions you might have. In particular, our policy committee agreed with the submissions and the overall tone of the brief that has been presented to you by the International Institute for Child Rights and Development, as well some of the language used in that particular brief about how the rights of children and the way to involve children and youth in decisions affecting them can come about.

Our submissions are framed somewhat by the case work of the clinic, in that we have given a few examples of court decisions that illustrate the lack of a children's rights focus in our legal system. You will probably recall that we were the applicant, as the Canadian Foundation for Children, Youth and the Law we are one and the same organization that sought to have section 43 of the Criminal Code declared unconstitutional. We highlight that case in our submission, not as a way to reargue the case and hope that we have another kick at the can in terms of the legal arguments, but because we are troubled by the language in the decision of the majority of the court in terms of how children's rights were dropped out of the discourse in that particular case. It became a parents' rights case. I will be happy to answer specific questions on that issue.

Read More ..oadly speaking, we have many daily examples of children and youth who are not given a voice in the proceedings affecting them and lack resources, for example, immigrant children, racial minorities and children with disabilities. Ms. Mackinnon has already highlighted many of these areas. We act for them on a daily basis. Those cases do not reach of level of test cases. They do not reach the level of judges making decisions. Often, our clients give up before they get outside our office door, partly because of what it takes to mount a test case. What it takes to mount a case in front of a court, in front of a judge, is extraordinary, even for adults. Our system is not open to young people presenting their own cases or presenting their own arguments before a judge.

In the case work that we have done, in the interventions, and in some of the immigration cases, as well as in the Canadian Foundation case itself, we were often troubled by the litigation positions taken by federal lawyers and provincial Crown attorneys, seeking to undermine the impact of the convention and children's rights Read More ..nerally arguments such as the best interests of the child is not a principle of fundamental justice. Courts do not just make these things up. They hear arguments from both sides. Those are clearly the arguments that they heard from federal lawyers. I do not blame the lawyers. They are required in many cases to argue vigorously to uphold legislation before the courts. This goes back to the earlier submission from Ms. Mackinnon that the government needs to have a leadership role in terms of instructing counsel in cases and in terms of establishing laws that have real teeth in them when it comes to ensuring that children's rights are part of the discourse in the cases themselves, and part of where we come from.

You will not be surprised to see that one of our recommendations is that the repeal of section 43 is critical in terms of a children's rights perspective in this country. It is not about what is good or bad for kids so much on the social science end of it, but it is about children's human rights. Our discussion of that is in our brief.

The Chairman: Thank you for the submission. You were referring to a report that was filed in English. It will be translated and disseminated. Perhaps you could elaborate on the points you will make so that they are part of our record now until such time as we get the translations.

Senator Baker: You will notice that I did not ask any questions of the previous witnesses. Let us hope that some leeway will be given by the chair in her thinking about her former position as a judge and that she will allow some latitude.

Ms. Mackinnon, you said at the beginning that it was an honour for you to be here before this Senate committee. It is a real honour to have both of you here. Both of you have dedicated, I imagine, the vast majority of your professional lives to the subject of the best interests of the child and children's rights. Your names, Martha Mackinnon and Sheryl Milne, are implanted indelibly in our case law that we read on Quicklaw and Westlaw Carswell. Although it may not appear that you have made progress, you have. You have made progress in every case that you have argued.

I read your excellent factum in the submission on section 43 to the Supreme Court of Canada. I noted that you went thefull 40 pages and you did not count the index at the beginning. You could not. It would be against the rules of the court. You must feel somewhat constrained when you have to intervene because you are only allowed to give them 20 pages maximum.

The main question on everybody's mind is this: You argued the case that there should be no exceptions for the offence that we refer to as common assault under the Criminal Code. When you assault somebody, there should be no exception for that. You were arguing that children should not be allowed to be assaulted under section 266 of the Criminal Code. You were not arguing that parents should have the right to spank or that teachers should have the right to corporal punishment. You were arguing that section 43 not only covers parents and teachers, it covers anybody who has any jurisdiction over children in any way, shape or form in a camp, at a sporting event, coaching, or anything like that.

My question is this: Where do you think the problem lies? The majority of Canadians agree that there should be no exception to the assault rule. The latest Decima Research poll clearly shows that the vast majority of Canadians are opposed to it. The majority of the states in the United States, 27 of them, have eliminated it from their laws. All the European countries have eliminated that exception of assault on children from their laws. Two justices of the Supreme Court of Canada came out firmly and said, ``This should not be.'' What do you think is the problem? Do you think this should be one of the primary recommendations of this Senate committee?

Ms. Milne: I will answer the second question first. Yes. That is the easy one.

As to the other question about why, there are a several things we need to do better in terms of educating our politicians and educating our lawmakers about this issue. The public is getting there. The Government of Canada, I know, has committed to they said so in their legal argument, any way educating the public about this issue. They have published pamphlets that state that it is a bad idea, it does not work, and you should not hit your children. We need to take it much further. When Sweden changed its laws, you saw a public advertisement campaigns on television, milk cartons and so on that were much Read More ..dely accepted. That built Read More .. a response that was driven by the public.

What Sweden also did that I think we can consider a model and it is a return to one of our recommendations regarding education is that they educated children about their rights not to be hit. That created a new generation of people who grew up with that as an idea that is anathema to parenting. You now have a generation of children, who have been raised by children who were told they were not supposed to be hit.

Read More ..eds to be done. Our politicians are, with the greatest respect, at the other end of the age spectrum. They have grown up in different circumstances.

In the case itself, the court felt constrained to show deference to Parliament. This goes back to Parliament needing to be a leader in this area and needing to take note of the Decima Research polls, if you will. However, I think it is beyond polls. This is a fundamental human rights issue, whether you have a poll that supports you or not. The Convention on the Rights of the Child has clearly said that this must go. In my view, it is clearly one of our international obligations toward Canadian children, and we must continue with that message.

I have many ideas about why we did not win, per se, but that is for another day.

Senator Baker: It is wrong to say that did you not win. In the judgment, as I recall, there was a distinct definition given to ``reasonable'' that says a person is no longer allowed to administer corporal punishment to a child under three. A major decision of the Supreme Court of Canada, as I understand it and correct me if I am wrong is that a person is not allowed to administer a blow to the head. Another one is that, if are you a teen, the administering of corporate punishment is not considered to be reasonable. What you are left with are children who are three to twelve. You used examples in your submission to the Supreme Court of Canada where it is not considered hitting, but someone takes a child of 12 by the throat. You recall those cases in case law. I have read them as well. That is determined to be all right. I do not think the Supreme Court of Canada has disturbed that judgment. Thus, what you are left with is not a problem with judges, because as you and I know, judges cannot go off on a tangent. They must apply the law and the interpretation of the law.

Am I correct that what you accomplished in your case is that at least you got a foot in the door and you made three major changes to the law as far as ``reasonable'' is concerned under section 43?

Ms. Milne: Maybe.

Senator Baker: Please explain.

Ms. Milne: The reason I say that is that there was a recent case, this past fall, in Toronto in which a mother who slapped her teenage daughter on the head was acquitted on the basis that that was reasonable force.

Senator Baker: When was that, what year?

Ms. Milne: This past fall, in 2004.

Senator Baker: The decision of the Supreme Court was in 2004.

Ms. Milne: This was subsequent to the decision. The decision came out in January. This was a decision made in the fall. In fact, there is reference to our case, so the judge was certainly cognizant of it. The danger in the case and how it could be interpreted down the road, is that there are many who would say it stands for the legal proposition that the section is constitutional, period, and we are left with a reasonableness standard that allows for varying decisions they may not be as egregious as the ones cited in our factum based on the personal experiences of judges and personal views of what is reasonable. That is why we need to go back to it. We rid ourselves of this section. I agree that we made some progress. If we looked at where we started with the case, in 1998, when we filed our application and then in 2004 when the decision came out, we had almost a sea change in public opinion about the issue. That I think can be attributed in part I would not want to take all of the credit for that, there were many people working on this issue to the media attention to the case and to the gathering of expert evidence. You referred to only 40 pages are allowed. About 10,000 pages of material were filed before the court at the first instance. Getting it down to 40 pages was a miracle.

Senator Baker: You could not go to 41 in a factum.

Ms. Milne: It still cries out for legislative reform because we still have a standard. There is also the ridiculousness about the standard. There are demarcation lines that do not make a lot of sense in real life.

Senator Baker: You make two recommendations tothe committee. First, the United Nations convention shouldbe enacted into domestic law. This would then play overon return;section 43, because some of your major argument on section 43 would be eliminated with the enactment of the UN convention. If the committee were to recommend both, that would do it. That is what you are saying.

Is my time up, Madam Chair?

The Chairman: Do you wish to respond to that?

Ms. Milne: I have no further response. Thank you.

Senator Carstairs: I certainly agree with everything in your brief. However, I want to make it clear that it is just not politicians with which we have a problem. When I introduced a bill to repeal section 43 some nine years ago in the Senate, I received a class set of handwritten letters from a group of children in grade 7 in Manitoba explaining to me why they thought corporal punishment was good for them. I would like to think that that attitude has dissipated by now. However, I received an email this morning in which a young man in grade 10 told me why corporal punishment was good for him.

We need to educate teachers. I was appalled by the Ontario Teachers' Federation intervention in this case for the continuation of corporal punishment. As a member of the Manitoba Teachers' Association for many years, I know that, fortunately, Manitoba has long taken an opposite stand and Manitoba teachers have taken an opposite stand.

As yet, there is no political will, despite the bill that is presently before the Senate. How are we to educate people so that section 43 will be revoked?

Ms. Mackinnon: Senator Carstairs, I will just say a couple of not lawyer-type things. It is really difficult for a child to say, ``My parents were wrong.'' Children have a deep need to love their parents and a deep need to think their parents are doing, Read More .. less, on balance, the best they can. That is a significant reason that there not be a particular kid in the section 43 challenge case. That is why it is done as a bold challenge to the legislation. You do not trot out some poor vulnerable child and say, ``We want to you to testify that your parents damaged you.'' That seems to us horribly unfair. I would not ask that necessarily of an adult, but I sure would not be asking it of a child. If I were to x-ray the souls of the Supreme Court of Canada I think I would conclude that they like to think that their parents did the best they could. Oddly enough, they probably think they turned out all right. They may have turned out better than I did. Overall, on balance, I guess they did turn out well. What they fail to consider is whether they would have been even better had they not been hit.

I am all right even though I fell out of a tree and hit my head. Maybe I could have done better. I do not know. All kinds of injuries happen to us in our lives. Human beings are resilient. We are tough, we survive a lot. It does not mean we could not be even better. If I were trying to create a brave new world, and I mean a truly good, brave new world, then I would want a kid to think, ``I could be even better if I did not hit my brother, and if I had not been hit. We could engender a deep respect for the humanness and the ``personness'' of every human being, if we taught them all of life is better if you do not hit. It is a long-term project, which is what Ms. Milne was saying. We cannot expect to get that deep visceral understanding of the importance of this overnight. People can say that they do not agree with it, that you do not need to do it. The driving importance comes from helping people to grow up knowing that they are entitled to be able to distinguish between, say, ``good touch'' and ``bad touch'' and, ``This is my body. Respect it.''

Senator LeBreton: I have a specific question. It seems to me that every day we turn on the television or open the newspaper and see or hear about incidents of bullying. In your research and in the course of conducting your cases, have you made a direct link between the behaviour towards children and children's behaviour towards other children?

Ms. Mackinnon: There is a link. As you know, social science evidence is always a bit soft on cause and effect, but there is certainly a co-relative link. Ms. Milne can expand on that.

On the subject of bullying, a chief psychologist of a school board, many years ago, once said, ``The first time a kindergarten teacher assigns kids to groups and one of them groans because they do not like somebody else who is in their group, they have given permission for bullying.'' Who cares about a groan, but what they have also given is permission to value one human being as being less than another. By the time that behaviour magnifies itself in grade 6 or 8, it will be much nastier, usually verbally. In high school it will be even nastier and perhaps even physical. You then have a big problem. It was started by not teaching every three- and four-year-old that they are equally valuable to the adults in their lives and to every other kid in his or her class.

Ms. Milne: To add to that, I know that you have heard submissions from Katherine Covell from Cape Breton and the work that she has done in the human rights curriculum and the children's rights curriculum that is focussed on grade schools. The outcome for using that curriculum with young children is that there is a greater respect in the classroom for rights Read More ..nerally, but also for fellow students. We allude to that in our submissions regarding the need for education.

Senator LeBreton: My question relates directly to your brief and the whole issue of educating politicians. I agree with Senator Carstairs, that it is more than a matter of just educating politicians. We have had a recommendation many times before regarding an ombudsman or a children's commissioner. You suggest that that person should report to Parliament. How extensive a role do you see this individual having? Could this individual have some impact not only on parliamentarians or politicians, but also on the courts? How broad a mandate do you envisage this ombudsman or commissioner having?

Ms. Mackinnon: We would see such a person reviewing existing and proposed legislation for the strict purpose of assessingits effect on children and whether it conforms to the UN convention. Does it meet that standard or not? If that person reported to the house annually, having reviewed, on a cyclical basis, say, 10 statutes a year, or one if it is the Criminal Code, and all proposed legislation, that would constitute core work that would keep the children's commissioner busy in terms of holding Canada accountable for whether it is meeting its international obligations. The advocacy piece could fluctuate by looking at social services, programs and how we are serving the needs of children in poverty. That person could consider what policy direction we are taking for Aboriginal or other youth populations that are doing worse than the average. I would see such a commissioner reporting periodically, every two to three years, and having the power to collect information and data and help Canada measure itself on the basis of what it has promised the world it will do.

Ms. Milne: In court cases, we have seen the power of reports, for example, from the Law Commission of Canada and previously, the Law Reform Commission of Canada. Those kinds of sometimes slightly academic, but in a sense, advocacy pieces are very persuasive, especially when dealing with social issues and rights issues in the courts.

Senator Pearson: My question is with respect to the right to participate. I was struck by the descriptions that you have outlined of cases where kids have been unable to find standing. I am particularly interested in the education issue. I am also interested in separation and divorce proceedings and the ability of children to have their voices heard.

In the schools, it has always bothered me that the kids seem to have no right to appeal or even have their voices heard when they are arbitrarily, it seems, suspended for reasons that may be legitimate. Could you speak to that? I believe that we have a long way to go in that regard. The school system is one in which the rights of children are not nearly as well supported as they should be.

Ms. Milne: I would certainly agree with that. We intervened in the Eaton case. If one read the judgment, one would think that it was forward thinking regarding the participatory rights of children in having a say about what special education services they need and what is in their best interests. It is an equality rights case. Unfortunately, despite the nice language in the Eaton decision, we have not seen those rights realized across the country.

We are best able to comment on Ontario legislation. The Ontario Education Act is fairly archaic. Young students have no standing until they turn 18. They have a limited voice when they are 16 and older with respect to special education, which was the one outcome from the Eaton decision. We see, on a daily basis, young people who are not heard. They are not even interviewed in cases involving discipline. They can face expulsion when their side of the story has not even been heard. There is an almost hostile reaction to a young person who retains us and then tries to assert some rights, even just procedural rights, in those kinds of processes, to the extent that the outcome can almost be worse for the young person if they retain an advocate and want to push back from the system.

Senator Pearson: Do you think lowering the voting age would make a difference? If kids had a vote at 16, people in schools might pay a little Read More ..tention.

Ms. Mackinnon: I do not know whether it would help. It is astonishing to me that in many provinces you cannot drink until you are well over 18, and there are other rights that accrue to young people well past the age of majority. They are not the majority of voters. In any case, it would not seem, necessarily, to make a difference, but it might help them to feel that they have a shot at being heard.

Senator Poy: Thank you very much for your presentation. I have a practical question. How do young people get in touch with your foundation so that you may take up specific cases? How does the process work?

Ms. Mackinnon: We have a toll-free number in Ontario. Most of our operating funding comes from Legal Aid Ontario, so we have an Ontario mandate.

In addition, we are listed in a book that social sciences people all recognize as the blue book. With CRTC, we have a new telephone number, 211, which is like 411, and that is in the blue book. It gives access to social services and community supports, and we are well known within those areas.

Another way by which we are known, but we have to be cautious about it, is that we have a function called ``Ask A Lawyer A Question'' on our website. The truth is that somebody could, as you know, misuse the internet. A person could ask us a question by saying, ``I am a 13-year-old girl,'' when in fact the person is a 30-year-old man. The information that we give on the internet tends to be fairly general. It is information rather than legal advice. If we get an internet question that we think we could be helpful on, we strongly suggest they phone us or get in touch individually so we can have Read More .. a one-on-one communication.

Senator Poy: How young would these people be? At what age would they know to get in touch with you if there are problems?

Ms. Mackinnon: Most are in their teens. The youngest client that I have ever personally acted for was seven, and that is because I think he truly understood the nature of the question that he was asking me to help him with. His sister was being put up for adoption, and he wanted to be able to continue seeing her. A seven-year-old knows about his relationship with his two-year-old sister. He knew what he would lose. I felt he was able to instruct me on that. I have to tell you that CIS in Ontario disagreed with that. A challenge to his ability to either swear an affidavit or give me instructions went to the Court of Appeal, but he was found to understand what he was asking for.

For us, the question is whether the child is competent. It is difficult for us to put an age on that. It depends on the issue.

Senator Poy: Would that child have gotten the information about your foundation through family services?

Ms. Mackinnon: That specific one?

Senator Poy: Yes.

Ms. Mackinnon: The mother's lawyer was on our board.

Senator Poy: Thank you. That is what I wanted to know.

Ms. Mackinnon: The mother's lawyer happened to work for the public trustee's office. Read More ..oadly, that is an office that knows about us, as does the Children's Lawyers Office in Ontario, as does the Child Advocate's Office in Ontario. They contact us every week. Within Ontario, I would say that kids know. We are well known in the agencies. Would we like to be better known by individual kids? You bet.

[Translation]

Senator Ferretti Barth: I have been hearing about the rights of the child for a long time. Even today, we are trying to see what is working and what is not. It is a fact that bureaucracy slows down government enormously. Everyone is talking but no one is acting. In my view, what is lacking is some action.

Do you consider that, as a rule, Canadian laws protect the rights of the child?

[English]

Ms. Mackinnon: A short answer the opposite of what I said before. Kids do not vote, but they also do not pay taxes and they do not phone MPs. They are not activists in that way.

Sadly, as a Canadian society, we have not moved far enough towards thinking that, if we give someone rights, that does not mean that we have taken them away from us. The corporal punishment case, not to belabour it, was seen as a case where if you give kids a right to be free of assault, you have taken away a right from someone else. That is not my perception of how human rights work. My perception is the Read More ..man rights all of us have, the better off we all are collectively. Therefore, the notion that to give a kid something does not hurt someone else is a message that we are not selling. It is a message that I am a stronger, better parent. I am a stronger, better teacher. I am a stronger, better employer if every kid that I work with knows that he is just as much of a human being as I am, and that my rights are enhanced when every member of my society has them as well. It is a difficult message to convey, but we need to sell it.

[Translation]

Senator Ferretti Barth: I would like to present to you a divorce case where the child was caught between the father and the mother. A short while ago, ten years after the divorce, the father, who is a lawyer, has written a book entitled Don't let me go, Papa. Have you heard about it? This child went through an awful period, caught between the mother's lawyers, the father's lawyers, the rights of the child, and so on.

In your view, how would this child manage after such a bureaucratic experience?

In addition to recommendations and conventions that we can make, I would like for each province and each nation to take charge of the problem and to take some action. At what age does the child understand his or her rights? He loves his father, his mother, he even loves his school teacher. It is so sensitive that I believe that these situations must be dealt with on a case by case basis and we must try and reduce the bureaucracy. It is too complicated. We are worsening the situation instead of improving it.

[English]

Ms. Milne: One thing we do not do very well through our legal system is handle high-conflict marriage breakdowns or the breakdowns between parents. We are not doing our children much service. They represent a small minority of cases. However, the outcomes for those cases are pretty dire for some of the young people. If you import a certain amount of rights language from the perspective of the child, that may help somewhat, because too often the child is seen as a piece of property being shuffled back and forth between parents. We allude to that in our brief, that is, the old vestiges of the proprietary nature of being a child. We need to move beyond that, because too often what we see is that ``my child'' means not someome with whom I have a relationship, but, rather, something that I own. We must make it clear in our language that children are human beings with dignity and with rights.

[Translation]

Senator Ferretti Barth: Before the courts, yes, we must establish and protect but most of all respect the complexity and the obvious sensibility of the child. These two things do not go together.

[English]

Ms. Mackinnon: I could not agree Read More ..at we treat them as property or as tools. When we are so angry at our ex- partner or our about to become ex-spouse, we often consider children the tool to be used to make someone else suffer.

Part of the reason that courts do not work well in these most strenuously fought situations is that, even when you try to empower the child by giving the child a voice, the courts and other people, such as social workers and others, will say that that also becomes a manipulative tactic because you are asking a child to choose. You are asking the child to see one parent be unhappy. Whoever the children are living with that day may well be the person they cannot stand making unhappy that day. Therefore, giving children a voice, an accurate voice, is terribly difficult, because you end up, simply, with competing experts. Each parent hires his or her own social worker, who produces a warring report. A legal construct is that access is not a right of the parents. It is a right of the child. That is the law. However, it is never perceived in that light. It is always perceived as the parental right to access. We might have the right phrases in case law somewhere, but that has not changed how we feel or think about it. As a society, parents still think it is about them.

The Chairman: You just made me relive my 12 years in family court. You are so right.

Minister Cotler told us that the government is interested in a children's agenda. However, the conformity with the convention is where he puts the marker down rather than compliance. We have heard listened to both sides of the debate. Canada is seen to be one of the good actors in complying with international conventions. We have been given some reasons why there has not been strict compliance with the convention. One reason is that transformative rights are involved, and that we need to deal with the provinces since so much of the convention affects the provinces. We have also heard other reasons.

Why do you think that human rights legislation internationally, and the convention Read More ..rticularly, has not been embraced and put into Canadian law in the way that other treaties have always been traditionally treated? Is it that the nature of human rights conventions were very broad in general and what I call pious in vocation when we started and they have only become Read More ..ecific recently, or is there another reason why we have not quickly embraced those in our national law?

Ms. Mackinnon: I agree with everything you have said, but I would add that this is about children, and that makes it even more difficult. I do not like myself on days when I am cynical. However, I would say that there is a trend away fromallowing anything to compromise domestic power. The major non-signatory to the UN Convention on the Rights of the Child is the United States. That is a country where foreign policy is currently being adjusted to reflect the fact that they no longer believe in treaties. National autonomy is an important value.

My own value, as it was with the Charter, is that you can express your national autonomy by choosing to yield certain rights and choosing to say, ``We will not act whimsically. We will always act in favour of human rights. That is a choice we make as an autonomous power.'' It is choice one can always make. I can only sadly and cynically say that, at the moment, the pendulum is swinging away from trusting a consensus of nations that tell us what we should do.

FurtherRead More ..as we mentioned in our brief, Canada has been specifically criticized by the committee reporting on the Convention on the Rights of the Child with respect to section 43. It is difficult see how a Parliament could embrace the convention without repealing that section.

Ms. Milne: I am not feeling as cynical as Ms. Mackinnon is today, because I do think that the existence of this committee and the focus that this committee has taken on human rights gives us hope. I hope that many people will listen to what this committee will ultimately report back. I am heartened by the types of questions you have asked and the level of discussion about children's rights in this room. We need to continue this discussion and continue to talk to not just politicians, but other lawmakers, whether they are judges or lawyers, and members of the public, who need to see this as an issue that affects them in their communities.

Human rights are important to many communities, but sometimes they do not see how they are relevant to them in law. This is Read More .. a personal issue. I think that we are moving in that direction.

Strong statements have been made about the importance of compliance with the convention. That is what we would see as being helpful as opposed to the Read More ..plomatic or Read More ..reaucratic language of conformity.

The Chairman: We certainly know that the United States does not sign or ratify as many international treaties as other countries. However, we also know that, in the practice of law, once a treaty is ratified, it is automatically the law of the land. In Canada, once we ratify, it is not. Do you believe that Canadians understand that distinction? We take great pride in the fact that we have ratified the convention. Do Canadians therefore think that we are bound by it? Do they understand that subtle legal distinction? As a committee, do we have an education component that we need to build to inform people of the consequences of ratification in Canada?

Ms. Mackinnon: Absolutely, they do not know. I first discovered it a month or two into my first public international law course and only because I was taking it in order to moot in international law, and I was horrified. I felt cheated. It was the first time, even as a law student, that I understood that the whole weight of a state could sign something and then say, ``But we do not really mean it.'' I do not think Canadians generally think that is the case. Education would do a good job, not only to help them understand, but also to be proud.

The Chairman: Do you think that if they understood there would be Read More ..scourse in Canada and therefore Read More ..essure, if I can use that word, on governments to abide by the treaties?

Ms. Mackinnon: It certainly would be a beginning, but it might be a long process. As Ms. Milne pointed out, even with corporal punishment there has been a Read More ..pid turn around in public opinion than we expected in 1998.

Senator Baker: You made two main recommendations to the committee. One is that the United Nations convention on the Rights of the Child should be enacted into domestic law in Canada. This committee should recommend that section 43 be extricated from the Criminal Code.

The question is this: If the UN convention were enacted into domestic law and this committee recommended that the federal government see fit to sit down with the provinces to accomplish that, would it have the effect of balancing provincial and federal law as it relates to children? For example, you spent a great deal of time, Ms. Milne, arguing the Pike case trying to get social assistance for someone who is 16 years of age. You did not really lose the case, but it all went back to the judgment. It was a typical judgment that followed the law. You can not blame the judge, but it was seen as an intrusion into the integrity of the family. If you allowed that, then you would have many 16 year-olds leaving families.

If we did manage to incorporate the United Nations convention into domestic law so that it would have the same presence as other international accords in provincial law that is, there is a special section in each province for the Hague Convention, and the Hague Convention shall prevail if there is any dispute the best interests of the child is not looked at for the first year if an application is made, because that is, supposedly, reserved to the jurisdiction that made the application, according to the Supreme Court of Canada in Thomson v. Thomson. You know what I am talking about.

The UN convention, you believe, if it were enacted, would not only affect the cases that you have been fighting concerning the rights of children and violations of section 15 and this is the twentieth anniversary, so it is amazing that we are talking about this today and that you have argued it so often but also that it would balance out not just domestic provincial rules, but also the negative effects of the interpretation and what is in conventions such as the Hague Convention. Too often, we see children crying on television because they are to be deported, although they are Canadian citizens. Section 6 of the Charter says that a Canadian citizen has a right to remain in Canada, but that does not apply to children. You think that would go a long way to balancing out not just the international law in our system, but also provincial law. Is that correct?

Ms. Milne: Absolutely is the short answer. The Pike case was probably one of the first cases that we argued in which we actually put the convention squarely before the court. It did not have much of an effect. We have moved long past that point. Pike is another one of those decisions in which we were kind of successful, in that, even though they did not give in to the argument about rights, they did define the definition of special circumstances which is what 16 and 17 year-olds had to prove in order to receive special assistance. They did define so that it is an easy test to meet.

By making a convention law, there is a balancing effect. The federal jurisdiction is quite clearly bound by it, so that cases involving immigration, divorce, cases under the Youth Criminal Justice Act, and those other areas that are clearly within the legislative authority of Parliament, will set the standard for how we interpret Charter rights for children.

On this twentieth anniversary, I would sadly say that children today do not have much in the way of section 15 rights. By enacting the convention not just saying that we will consider it now and then so that it establishes rights for children, we will start to see the Charter be interpreted Read More ..nsistently with a children's rights perspective, which we have not seen to this day.

The Chairman: I would thank both of you for your testimony and for your recommendations for our consideration. Most of all, I would thank you for the dedication that you have demonstrated to the children of Canada. From today's testimony I see the complexity of the issues and that you act on the side of children. That is reassuring. Thank you for both your commitment and your testimony.

The committee adjourned.