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Final Report - Senate of Canada Human Rights Committee

WHOS IN CHARGE HERE?

EFFECTIVE IMPLEMENTION OF CANADAS INTERNATIONAL OBLIGATIONS WITH RESPECT TO THE RIGHTS OF CHILDREN

Interim Report of the Standing Senate Committee on Human Rights

Nineteenth Report

Chair: The Honourable Raynell Andreychuk

Deputy Chair: The Honourable Landon Pearson

November 2005


MEMBERSHIP

The Honourable Raynell Andreychuk, Chair

The Honourable Landon Pearson, Deputy Chair

and

The Honourable Senators:

*Jack Austin, P.C. (or William Rompkey, P.C.)

George Baker, P.C.

Sharon Carstairs, P.C.

Marisa Ferretti Barth

Marjory LeBreton

*Nol A. Kinsella (or Terrance R. Stratton)

Rose-Marie Losier-Cool

Donald H. Oliver, Q.C.

Vivienne Poy

*Ex-officio members

In addition, the Honourable Senators Maria Chaput, Ione Christensen, Ethel M. Cochrane, Romo Dallaire, Elizabeth Hubley, Laurier LaPierre, Terry Mercer, Jim Munson, Lucie Ppin, Marie-P. Poulin (Charette) and Nancy Ruth were members of the Committee at various times during this study or participated in its work.

Staff from the Parliamentary Information and Research Service of the Library of Parliament: 

Laura Barnett, Analyst

Line Gravel

Clerk of the Committee


ORDER OF REFERENCE

Extract from the Journals of the Senate, Wednesday, November 3, 2004:

The Honourable Senator Andreychuk moved, seconded by the Honourable Senator LeBreton:

That the Standing Senate Committee on Human Rights be authorized to examine and report upon Canadas international obligations in regard to the rights and freedoms of children.

In particular, the Committee shall be authorized to examine:

Our obligations under the United Nations Convention on the Rights of the Child; and

Whether Canada's legislation as it applies to children meets our obligations under this Convention.

That the Committee present its final report to the Senate no later than March 22, 2005, and that the Committee retain until April 30, 2005 all powers necessary to publicize its findings.

The question being put on the motion, it was adopted.


Extract from the Journals of the Senate, Wednesday, February 23, 2005:

that the date of presenting its final report be extended from March 22, 2005 to March 31, 2006 and that the Committee retain until April 30, 2006 all powers necessary to publicize its findings.

The question being put on the motion, it was adopted.

Paul Blisle

Clerk of the Senate


TABLE OF CONTENTS

CHAIRS FOREWORD

EXECUTIVE SUMMARY

This Study:3

Application of the Convention in Canada:3

Problems in the Incorporation and Implementation of the Convention:4

The Committees Suggestions for Reform:5

SUMMARY OF RECOMMENDATIONS. 7

CHAPTER ONE RATIONALE AND ROLE OF THE COMMITTEE.. 8

A.  INTRODUCTION

B.  THE MANDATE

    1.  Examining Canada's Role with Respect to Human Rights and the Convention.

    2.  The Critical Importance of Focusing on Children's Rights.

C.  THIS REPORT AND THE COMMITTEES WORK.. 17

    1.  Fact Finding and an In-Depth Examination of the Canadian Context18

    2.  This Interim Report20

CHAPTER TWO HISTORY AND BACKGROUND OF CHILDREN'S RIGHTS IN CANADIAN AND INTERNATIONAL HUMAN RIGHTS LAW

A.  HISTORY OF CHILDREN'S RIGHTS IN CANADA

    1.  Evolution of Approaches to Children in History

    2.  Evolution of Approaches to Children in Canadian History

    3.  The History of Child Protection and Child Welfare in Canada

    4.  Children's Rights in Child Protection and Child Welfare Laws

B.  HISTORY OF THE CONVENTION ON THE RIGHTS OF THE CHILD

    1.  The Origins of Children's Rights in International Law

    2.  The Creation of the Convention on the Rights of the Child.

    3.  The Participation of Non-Governmental Organizations.

    4. Optional Protocols to the Convention on the Rights of the Child.

    5. The Committee on the Rights of the Child.

    6.  The Unique Nature of the Convention on the Rights of the Child.

    7.  Canada and the Convention on the Rights of the Child.

CHAPTER THREE INTERNATIONAL TREATIES IN DOMESTIC LAW:

THE IMPLEMENTATION PROCESS.

A.  RATIFICATION..

B.  RESERVATIONS.

C.  APPLICATION AND IMPLEMENTATION..

D.  ENFORCEMENT MECHANISMS.

CHAPTER FOUR IMPLEMENTING THE CONVENTION ON THE RIGHTS OF THE CHILD   43

A.  IMPLEMENTING THE CONVENTION

    1.  Implementation and Application.

    2.  Statutory and Judicial Interpretation.

    3.  Reservations.

B.  ENFORCEMENT MECHANISM REPORTING AND FOLLOW-UP WITH THE UN COMMITTEE

    1.  Role and Mandate of the Continuing Committee of Officials on Human Rights. 50

    2.  Adequacy of the Reporting and Follow-Up Process in Canada. 51

C.  COMPLEXITIES OF IMPLEMENTATION

    1.  Canada's Federal Nature

    2.  Lack of Awareness Concerning the Convention

D.  THE COMMITTEES FINDINGS

CHAPTER FIVE MECHANISMS FOR CHANGE

A.  INTRODUCTION

B.  IMPLEMENTING INTERNATIONAL HUMAN RIGHTS OBLIGATIONS IN CANADA A TEMPLATE FOR RATIFICATION AND INCORPORATION

    1.  The Treaty Negotiation Process

    2.  Signature and Ratification

    3.  Post Ratification Ensuring Effective Implementation of Canada's International Treaty Obligations

    4.  The Committees Comments

C.  IMPLEMENTING THE CONVENTION ON THE RIGHTS OF THE CHILD

    1.  Children's Commissioner

    2.  Federal Interdepartmental Implementation Working Group for Children

    3.  Strengthening the Voluntary Sector

    4.  Broader Issues of Funding

D.  CONCLUSIONS

CHAPTER SIX FUTURE PLANS: THE FINAL REPORT

A.  HEALTH

B.  ABORIGINAL CHILDREN

C.  MINORITY CHILDREN

D.  MIGRANT CHILDREN

E.  SEXUALLY EXPLOITED CHILDREN

F.  CHILDREN IN CONFLICT

G.  CHILD PROTECTION

H.  YOUTH CRIMINAL JUSTICE

I.  CORPORAL PUNISHMENT

APPENDIX  A:  List of Witnesses

APPENDIX B:  Convention on the Rights of the Child

APPENDIX C:  Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

APPENDIX D: Optional Protocol on the Involvement of Children in Armed Conflict

APPENDIX E: 2003 Concluding Observations of the Committee on the Rights of the Child

APPENDIX F: A Canada Fit for Children: Canada's Plan of Action

APPENDIX G: CIDA Child Friendly Version of the Convention


CHAIRS FOREWORD

In November 2004, when the Committee embarked on its study of Canada's international obligations in relation to the rights and freedoms of children, its goal was to examine how Canada could maximize the impact and application of the United Nations Convention on the Rights of the Child on behalf of Canadian children.  In the course of this study the Committee became increasingly convinced that, both in theory and in practice, children's rights in this country are not understood, or indeed provided.  Yet, as was repeatedly emphasized by witnesses both in Canada and abroad, children are citizens with rights, and must be recognized as such in order to foster a culture of respect and of rights and responsibility.

The Committee hopes that its own transformation during this study towards support for real compliance with the rights of children can be expressed, understood and replicated throughout Canada.  Through this Interim Report, the Committee examined mechanisms for strengthening Canadian capacities for providing services and advantages to all children both in anada and even beyond our borders.  This Interim Report recommends various means for making these goals an effective reality, within the federal government, through Parliament, and on an independent level, identifying the need for consultation, education, and child participation.

In reviewing the Convention on the Rights of the Child, the Committee analyzed the international human rights treaty process and is proposing that, as Canada has fallen behind other countries in meeting today's democratic expectations, a new negotiating and implementation process is desirable.

Having completed this first stage of our study, I would like to thank the members of this Committee for the enthusiasm and dedication that each brought to the Committee table.  Senators approached the issues through their own area of expertise and life experience, emphasizing their wholehearted commitment to the full respect and effective implementation of children's rights in Canada. 

In particular, I would like to underscore the role of the Honourable Senator Landon Pearson (who will be retiring from the Senate this month), whose personal and professional life has been a testimony to real respect and caring for children.  Throughout her career, Senator Pearson has proven her tenacity and dedication to children's issues, making significant contributions to children's rights at the public, political, and Senatorial levels.

Finally, I would like to thank the staffs from both the Senate and the Library of Parliament who were involved in this study.  In this regard, I would like to give special recognition and appreciation to Dr. Line Gravel, Clerk of the Committee, Laura Barnett, the Committees Researcher, and Kim Chao, who provided assistance for this Interim Report.  I would also like to thank the numerous witnesses who appeared before this Committee, both in Canada and elsewhere, for providing us with their valuable perspectives on the Convention on the Rights of the Child, the state of children's rights in Canada, and the most effective means for implementing international law in the domestic context.

This Interim Report is dedicated to Canada's children, in the expectation that, if its recommendations are implemented, it can provide children with the means to have their voices heard as rights-holding citizens in our society.


EXECUTIVE SUMMARY

This Study:

  • The Standing Senate Committee on Human Rights was authorized by the Senate to examine and report upon Canadas international obligations in regards to the rights and freedoms of children. Consequently the Committee undertook a study in order to understand the impact of international children's rights instruments on Canadian law.
  • One of the primary aims of this study is to look at the UN Convention on the Rights of the Child, and analyze the obstacles to the protection of children's rights. The Committee examined whether Canadian policy and legislation reflect the provisions of international human rights instruments, and whether this country is in compliance with its international obligations. The Committee has also looked at the role of Parliament within this framework.
  • Canada played an instrumental role in the drafting and promotion of the Convention, an international instrument that is unique among human rights treaties because it is the most universally ratified, and because it contains the broadest protection of rights of any international human rights treaty.
  • It is critical that Canada continue to be a world leader with respect to the implementation of the Convention. In order to focus on the particular vulnerabilities of children and to ensure the fulfilled and meaningful maturation of children's rights, the rights-based perspective contained in the Convention must be clarified. Children today are persons with rights of their own that the state in which they live must fully respect and protect. The development of this conception of children has been slow, and is in fact still not fully understood or accepted either domestically or around the world.

Application of the Convention in Canada:

  • In Canada, international human rights treaties are rarely incorporated directly into Canadian law, but are indirectly implemented by ensuring that pre-existing legislation is in conformity with the obligations accepted in a particular convention. Parliament plays no role in ratification, thus international human rights treaties that are not directly incorporated into domestic legislation bypass the Parliamentary process. Implementation of international law where provincial laws and policies are affected is a shared responsibility of the federal, provincial and territorial governments. The federal government has adopted a policy of consulting with provinces and territories before signing and ratifying treaties on matters within their jurisdiction in order to deal with these complexities.
  • The Convention on the Rights of the Child is currently deemed to be implemented by means of the Canadian Charter of Rights and Freedoms, federal and provincial human rights legislation, and other federal and provincial legislation pertaining to matters addressed in the Convention. In essence, this is a policy-based approach to Canada's international obligations. The government relies on pre-existing laws, using existing mechanisms and applying the Convention through them, rather than relying on specific legislation to ensure that children's rights recognized under the Convention are respected across the board.
  • With respect to Canada's reporting obligations under the Convention on the Rights of the Child, the Continuing Committee of Officials on Human Rights facilitates preparation of Canada's country reports to the UN Committee on the Rights of the Child. When the UN Committee issues its Concluding Observations, the Continuing Committees role is to keep provincial and territorial governments apprised of any comments on the scope of the rights guaranteed by the Convention.

Problems in the Incorporation and Implementation of the Convention:

  • One of the key concerns expressed by witnesses is the federal governments unwillingness to directly incorporate international human rights treaties; however, the government has an obligation to make best efforts to comply with international treaties domestically through domestic implementation, no matter what jurisdictional hurdles are entrenched in the Constitution.
  • The Committee has heard that the Continuing Committee is not an efficient mechanism for ensuring coordination among jurisdictions or with the various treaty bodies because of its limited mandate. In addition, current reporting and dissemination processes are too complex, and concerns have been expressed about the lack of transparency and lack of real public or Parliamentary input in the reporting and follow-up process, as well as the lack of public dissemination of the UN Committees Concluding Observations.
  • From its hearings and the UN Committees Concluding Observations, the Committee learned that due to Canada's federal nature, the vast array of laws, as well as the differing interpretations of or approaches to them in each province and territory mean that Canada lacks uniform national standards in a number of key areas with direct impact on children's rights and that the institutions established to protect children's rights in each province also perform significantly different functions.
  • The Committee noted a lack of awareness in government and among the children and the general public about the Convention and the rights enshrined in it. In government, even among those dedicated to protecting children's rights, knowledge of the Convention is spotty at best.

The Committee's Suggestions for Reform:

  • The Committee recommends that the federal government develop a more effective means of incorporating and implementing its international human rights obligations, both before and after ratification of an international instrument.  The Continuing Committee should be informed as soon as human rights treaty negotiations begin at the international level in order to disseminate an explanatory report setting out the goals and consequences of the treaty in question, and to engage in an enhanced consultation process with all stakeholders.  Ratification of any international human rights instrument should be accompanied by enabling legislation in which the federal government considers itself legally bound by its international human rights commitments.  This could take the form of tabling the treaty itself in Parliament, accompanied by a Declaration that the federal government has reviewed all relevant legislation and assures Parliament that Canada's laws are in compliance with the treaty obligations, as well as a formal statement that the federal government agrees to comply with the treaty.  Finally, the Committee suggests a speedier and more consultative reporting process to UN Committees, and that Canada's country reports, the UN Committees Concluding Observations, and the governments follow-up report be tabled in Parliament and referred to Parliamentary Committee for examination.
  • The Committee recommends that Parliament establish a Children's Commissioner to monitor implementation of the Convention and protection of children's rights in Canada.  The Commissioner should be an arms length independent institution, with a statutory duty to have regard to the Convention and to involve children in its operations.  The Commissioner should be mandated to conduct ongoing reviews of federal legislation, services, and funding for programs affecting children and their rights; to report annually to Parliament with its assessment of the federal governments implementation of the Convention; to undertake studies with respect to systemic issues affecting children; to conduct education campaigns; to dedicate a highly placed officer to the investigation and monitoring of the rights of Aboriginal children; and to act as a liaison with the Canadian Council of Provincial Child and Youth Advocate.
  • The Committee recommends that an interdepartmental implementation working group for children's rights be established within the federal government.  The role of this working group would be to undertake review of all existing and proposed legislation using a child-based analysis; to undertake ongoing consultations with provinces, territories, and other stakeholders concerning implementation of children's rights; to prepare the federal portion of Canada's country report to the UN Committee; and to prepare the federal governments follow-up report to the UN Committee.  The Committee further suggests that this working group focus on awareness raising, and developing a comprehensive national education strategy about children's rights.
  • The federal government should work with the NGO community to develop the mechanisms and funding necessary to foster an effectively functional and cohesive voluntary sector for the protection of children's rights in Canada.  In working towards capacity building in this way, the federal government could facilitate the establishment of a coordination mechanism that will identify gaps in services and facilitate dialogue between NGOs and the donor community.
  • Finally, the Committee suggests that the federal government provide adequate funding for effective implementation of Canada's international human rights treaties, and the Convention on the Rights of the Child in particular.

SUMMARY OF RECOMMENDATIONS

RECOMMENDATION 1 Implementing International Human Rights Obligations in Canada

The federal government with the provinces, territories, Parliamentarians, and interested stakeholders shall establish a more effective means of negotiating, incorporating and implementing its international human rights obligations.  The Committee also recommends that ratification of any international human rights instruments be accompanied by enabling legislation in which the federal government considers itself legally bound by its international human rights commitments. 

RECOMMENDATION 2 Compliance with the Convention on the Rights of the Child 

The federal government shall consider itself bound, with an obligation to comply fully with the Convention on the Rights of the Child.

RECOMMENDATION 3 Children's Commissioner 

Parliament shall enact legislation to establish an independent Children's Commissioner to monitor implementation of the Convention on the Rights of the Child, and protection of children's rights in Canada.  The Children's Commissioner shall report annually to Parliament.

RECOMMENDATION 4 Federal Interdepartmental Implementation Working Group for Children 

An interdepartmental implementation working group for children's rights shall be established in order to coordinate activities, policies, and laws for children's rights issues.


CHAPTER ONE RATIONALE AND ROLE OF THE COMMITTEE

A.  INTRODUCTION

On November 3, 2004, the Standing Senate Committee on Human Rights (the Committee) was authorized by the Senate to examine and report upon Canada's international obligations with respect to the rights and freedoms of children.  In particular, the Committee was authorized to examine our obligations under the United Nations Convention on the Rights of the Child; and whether Canada's legislation as it applies to children meets our obligations under this Convention.

The Committee undertook a study of the impact of international children's rights instruments on Canadian law, since there have been very few comprehensive studies done on this issue.  The Committee reviewed, and will continue to examine carefully, Canada's international obligations with respect to children's rights and freedoms as a case study reflecting the broader implications of ensuring that domestic legislation complies with Canada's international human rights obligations, and in keeping with a broader mandate that began with this Committees first report, Promises to Keep: Implementing Canada's Human Rights Obligations.[1]

One of the primary aims of this study is to evaluate the UN Convention on the Rights of the Child[2] and other key instruments that protect children's rights and freedoms, as well as to examine the obstacles to such protection.  The Committee has examined whether Canadian policy and legislation reflect the provisions of these international human rights instruments and whether they are in compliance with international obligations in the field.  The Committee has also looked at the role of Parliament within this framework. 

While the Committee originally received a mandate to report back to Parliament on this issue by March 22, 2005, it quickly realized that a more exhaustive study into children's rights, based on a broader mandate was called for.  As a result, the deadline for presentation of its final Report has been extended to March 31, 2006.  This broadened study seeks to answer the following questions: Is Canada  implementing the Convention on the Rights of the Child in domestic law and policy, and if so, how?  Are society and the federal government responding to the challenges confronting today's children?  This Interim Report underlines the immediate need to ensure strong protection of children's rights and well-being in Canada today, and looks to Promises to Keep and the testimony of numerous witnesses to evaluate the need for enhanced mechanisms to implement Canada's international obligations with respect to children more effectively.

B.  THE MANDATE

1.  Examining Canada's Role with Respect to Human Rights and the Convention

As was noted in Promises to Keep, Canada is regarded as a leader in the field of human rights.  Since World War II Canada has played a significant role in the development and promotion of new human rights initiatives, such as the International Criminal Court, and it is now party to over 30 international human rights instruments.[3]

Witnesses such as Martha Mackinnon of Justice for Children and Youth emphasized that Canada lived up to this reputation in the context of the adoption of the Convention on the Rights of the Child.  Canada proved itself to be a leader in that process, not only through early signature and ratification, but also by taking on a strong role both in the drafting of the Convention and in encouraging widespread adherence, as discussed in Chapter 2 Part B.  The Convention was adopted unanimously by the United Nations General Assembly in 1989 and has become a universally recognized standard for children's human rights.  In 1990,Canada co-hosted the first World Summit for Children. From 1999 to 2002, it played an important role in preparation for the UN General Assembly Special Session on Children, successfully negotiating text surrounding key issues such as war-affected children, Aboriginal children, and child participation.[4]   Today, the Convention is the most widely subscribed to international treaty in history, ratified by 192 nations.[5]

As Canada was seen as such a strong proponent of children's rights in the international arena in the early stages (noted by Frans Roselaars, Director of the Infocus Programme on the Elimination of the Worst Forms of Child Labour at the International Labour Office in Geneva), it is critical that Canada continue to be a world leader with respect to the implementation of the Convention.  As stated by Minister of Health, Ujjal Dosanjh, we cannot rest on our laurels.[6] Canada cannot lose the powerful moral high ground[7] with which we started:

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

 

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.[8]

In fact, some witnesses have stated that Canada has already fallen into a pattern where our actions do not live up to our reputation.  As stated by Maxwell Yalden, former Member of the UN Human Rights Committee:

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.[9]

2.  The Critical Importance of Focusing on Childrens Rights

These are the citizens of today, not of tomorrow.[10]

In attempting to highlight the necessity of addressing children's rights, the Committee is fully aware that the world may have grown weary of the phrase our children are our future.  While the statement remains true, witnesses have emphasized that the government, Parliament, and civil society must move beyond that clich?? and recognize that children are citizens today.  Only in understanding this can we begin to foster a true culture of rights and responsibility in our society.  Clarifying the rights-based perspective and guaranteeing its application in the Canadian context is crucial to ensuring a fulfilled and meaningful maturation of rights.

The Committee heard from witnesses that the rights-based perspective which is embedded in the Convention on the Rights of the Child and modern international human rights law emphasizes the need to focus on children as individuals with their own set of rights.  The idea is that children are not merely objects of concern to be protected, but are also to be recognized as persons in their own right.  As stated by Justice Jean-Pierre Rosenczveig, President of the Board of Directors of the International Bureau for Children's Rights, the Convention on the Rights of the Child

is deliberately oriented towards the 21st century in its recognition of the child as a person endowed with a heart and feelings, possessing rights, and not just as a small, fragile being who has to be defended against others and against himself or herself.[11]

Viewing children's rights within this framework means that children are afforded protection beyond a basic survival or needs-level, thus facilitating the creation of a sustainable environment in which such rights can be protected in the longer term.[12] The rights-based approach means describing situations not in terms of human needs, or areas of development, but in terms of the obligation to respond to the rights of individuals.  This empowers people to demand justice as a right, not as a charity.[13]  As stated by the UN Committee on the Rights of the Child, Implementation of the human rights of children must not be seen as a charitable process, bestowing favours on children.[14]  Ultimately, charity does not allow individuals to achieve their full potential because it tends to treat people as objects, rather than as active participants in the development of their well-being.[15]  The three primary features of the rights-based approach are as follows:[16]

  • All rights are equal and universal
  • All people, including children are the subject of their own rights and should be participants in development, rather than objects of charity
  • An obligation is placed on states to work towards ensuring that all rights are being met

The rights-based approach demands a holistic form of programming to ensure widespread protection, while paying particular attention to the most vulnerable and marginalized in our society in order to ensure the full and equal development of individual rights.[17]  This framework also

places a moral and legal obligation on states to make sure that everyone's rights are being respected and to determine and remedy those cases where this is not happening.  By ratifying human rights treaties, states accept the responsibility of implementing the rights enshrined therein states become legally accountable A rights-based approach provides standards that can be measured through monitoring in order to ensure accountability of States parties and other stakeholders to children's rights.[18]

According to Kathy Vandergrift, of World Vision Canada, the rights-based approach adds real value because it puts the whole child in the centre, and then looks at all components and all factors that can impact that child's situation.  It is not just addressing one need food, water or some of those things but it looks at the whole child and treats that child as an actor in the situation, not just as a passive recipient.[19]

The rights-based approach represents a move from a more reactive case-based focus to one which is more proactive and systemic, centred on prevention.[20]  One example of how this approach operates is as follows:

[I]f 100 children need to be immunized, the needs- or problem-based approach would say that after 70 children are immunized we have a great success rate of 70%.  The rights-based approach recognizes that there are still 30 children that need immunization.  The rights-based approach reaches out to even the most marginalized children and makes a difference in all children's lives.[21]

Advocates of this approach indicate that its aim is to build a culture of respect at home and throughout the world, with a sense of accountability to children, not merely for them.  Professor Kay Tisdall, Social Policy Professor at the University of Edinburgh, noted that such accountability has to go all the way down.[22]  Further, such advocates state that with rights come responsibilities treating children as persons with responsibilities will lead to a generation of responsible adults.  The idea is to imbue all levels of society with a culture of responsibility that will only serve to improve the environment around us. 

However, despite the fact that the rights-based approach is engrained in the Convention and in other international human rights instruments, witnesses emphasized that many in Canada and elsewhere continue to resist its full implementation.  Professor Al Aynsley-Green, Children's Commissioner for England, told the Committee that rights is a dangerous word.[23]  As stated by the United Nations High Commissioner for Human Rights, Louise Arbour:

The reason that rights talk is resisted by the powerful is precisely because it threatens (or promises) to rectify distributions of political, economic or social power that, under internationally agreed standards and values, are unjust.

These truths are laid bare in Canada's very hesitant recognition and selective implementation of some of its international human rights obligations Human rights obligations require no more or less than reasonable efforts within the maximum extent that resource constraints permit, with priorities determined through inclusive democratic processes, and with an abiding concern for the situation of the most disadvantaged.[24]

Others are simply unaware of the Conventions implications.  The UNICEF Innocenti Research Centre notes that

the radical nature of the [Convention], recognizing children explicitly as subjects of rights, is neither fully accepted or properly understood by many governments.  There is particular neglect of the principle of promoting the best interests of children through respect for their rights and of the obligation to listen and act on the views of children as an essential step to the realization of their rights.[25]

The Committee was frequently reminded of the fact that there is a distinct lack of awareness about the Convention and children's rights in Canada, and heard a wide variety of concerns about the situation of children across Canada particularly those who are already living at a disadvantage: the medically fragile, the disabled, Aboriginal children, migrant children, sexually exploited children, and those caught in the child welfare or youth criminal justice systems. 

Witnesses were critical of the perceived gap between the rhetoric and the realities of children's rights in Canada.  The government recognizes the importance of children's rights in Canada, as illustrated in the recent publication of Canada's 2004 Plan of Action, A Canada Fit for Children,[26] in response to the May 2002 United Nations Special  Session on Children.  An introductory message to the Plan of Action emphasizes the importance of children in Canadian society and why we must focus our attention on children's rights specifically:

The 21st Century will belong to our children and our children's children.  It is their dreams and aspirations, shaped by the circumstances into which they are born and which surround them as they grow up, that will give the Century its final definition.  Those who are under eighteen today constitute more than a third of the worlds population and are already profoundly affecting our lives by their decisions and actions.  For their sake as well as our own, we must do everything possible to reduce the suffering that weighs them down, open up their opportunities for success and ensure them a culture of respect.  This is what the young people meant when they spoke to the General Assembly of the United Nations at the Special Session on Children in May 2002. We want a world fit for children, they said, because a world fit for us is a world fit for everyone.[27]

However, many witnesses expressed concern that there is often a disconnect between intent and concrete compliance with the Convention on the Rights of the Child.  While the government attempts to conform to the rights-based approach in theory, many witnesses argued that it is hesitant to be bound by it in practice. 

In response to these concerns, the Committee concluded that furthering the debate on children's rights, thus raising awareness about these rights, and creating an impetus for government action was needed.  The Committee sees its role as addressing the concerns of one of the most vulnerable yet promising segments of Canadian society in order to ensure that their voices are heard.

Katherine Covell, Professor at the University College of Cape Breton Children's Rights Centre highlighted the incredible importance of respecting children's rights to the healthy development of society.[28]  This view was echoed in the comments of Minister of Social Development, Ken Dryden: Fundamental to our belief in the future, to our confidence as a country, are our children.  If our children are doing okay, we are doing okay and we will be okay.[29]

Martha Mackinnon put the impact of ensuring children's rights bluntly, also touching on the reluctance of many to recognize that children are persons with human rights of their own:

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 That is not my perception of how human rights work.  My perception is the more human 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.[30]

Within this context, witnesses have emphasized the particular vulnerability of children as the only group in Canada left out on the basis of age alone with no voice, no vote, and little access to powerful lobby groups, the media, or legal services.  The Committee on the Rights of the Child and the UNICEF-Innocenti Research Centre point out that children's voices rarely inform government decisions, yet they are one of the groups most affected by government action or inaction.  Children are not merely underrepresented; they are almost not represented at all.[31]  As stated by Professor Aynsley-Green and also emphasized by Professor Kay Tisdall, we must recognize that children are the citizens of today, not of tomorrow,[32] and our policies must reflect this reality.

Suzanne Williams of the International Institute for Child Rights and Development set out the importance of children's rights by stating:

Child rights saved my life.  These words were shared by a young Aboriginal Canadian woman at a session hosted by the International Institute for Child Rights and Development (IICRD) in March 2004.  Just 6 years earlier this young person had attended a conference in Canada for young people who were sexually exploited through the sex trade.  She learned for the first time then that she had rights: she mattered.  From her perspective these rights made all the difference and gave her a reason to live.  Today this young woman has exited the sex trade, attends University and helps other young people still exploited in the sex trade to learn about their rights and turn their lives around.  This is just one example of the power of child rights.  The challenge for Canada: to ensure that child rights are respected and implemented on a broad scale for the benefit of all children.[33]

Thus, ensuring the promotion of and respect for children's rights strengthens recognition of children as individuals full human beings capable of making meaningful choices with the right guidance.

Children's rights have undergone significant evolution in the history of Canada.  As will be discussed more fully in Chapter 2 Part A, children are no longer considered a form of chattel or possession, nor are they any longer simply part of a family unit.  Children today are persons in their own right.  Professor Anne McGillivray of the University of Manitoba indicated that the development of this concept of children has been slow, and is in fact still not fully understood or accepted either domestically or around the world. 

However, while international human rights mechanisms are strengthening in the modern world, they must be incorporated into national laws to be of any force and effect. 

Numerous witnesses appearing before the Committee emphasized that Canada must ensure that it rises to meet this obligation.  Witnesses such as lawyer, Jeffrey Wilson expressed deep concern that the Convention on the Rights of the Child is legally meaningless in this country ineffectively implemented and thus of little assistance to the protection of children's rights:

When I try to explain the convention to children who are 15, 16 and 17, eventually one character asks, What good is the convention?  That is a valid point for Canada to have, in some ways, a convention that does not have a binding, legal effect to be distinguished from other international conventions that it has ratified, is almost regressive The Convention appears to be good in the eyes of the courts but it is not effective because it is not binding.  Its effect is the same as when I say there is a convention that states you cannot hit a woman but it has no binding effect.  That would be a strange document.[34]

Through this Interim Report and its follow-up, the Committee aims to highlight these concerns about the Convention in order to bring Canada into compliance.  Its report is intended to raise awareness about the Convention throughout Canada, and particularly in Parliament.

C.  THIS REPORT AND THE COMMITTEES WORK

The Committees long term mandate is to analyze the state of children's rights in Canada as well as to assess the situation of particular groups of children in the light of Canada's obligations under the Convention on the Rights of the Child.  In order to achieve that aim, the Committee first examined the framework for the protection of children's rights in Canada. 

1.  Fact Finding and an In-Depth Examination of the Canadian Context

Beginning in December 2004, the Committee held a series of thorough hearings in Ottawa on international law with respect to the rights of children and the manner in which those international obligations are being implemented in Canada.  Witnesses represented perspectives from the academic, legal and advocacy fields, as well as youth.  Most recently the Committee heard from various Ministers and Departments within the federal government, on issues related to the implementation of the Convention and children's rights in general.[35] 

In addition to its hearings in Ottawa, the Committee went on several fact-finding missions nationally, to discover particular needs and concerns across the country; and internationally, to conduct comparative analyses and to explore the intricacies of international human rights mechanisms and international perspectives on the Convention. 

Early in its mandate, the Committee travelled to Geneva, Switzerland in order to meet with United Nations officials and other institutions and gain a better understanding of Canada's international children's rights obligations under the Convention and other UN instruments as a basis for its future work.  At that time, the Committee observed proceedings before the Committee on the Rights of the Child, and met with its Members and the Chair, Jaap Doek, for a perspective on the Convention, the operation of the monitoring body, and to receive comments and criticisms on Canada's progress in meeting its obligations.  The Committee also met with the NGO Group for the Convention on the Rights of the Child; officials from the United Nations High Commissioner for Refugees for Refugees; officials at UNICEF (the United Nations Children's Fund) working with the UN Study of Violence Against Children; officials at the International Labour Office; officials at the Inter-Parliamentary Union; and with Mehr Khan-Williams, the Deputy High Commissioner for Human Rights.

During that same fact-finding mission, the Committee travelled to Stockholm Sweden.  The Committee took this opportunity to learn how a like-minded government undertakes its reporting obligations under the Convention, and implements its international obligations in domestic law.  The Committee met with a network of parliamentarians working on children's rights, as well as officials from the Swedish Ministry of Health and Social Affairs.  Finally, the Committee met with Lena Nyberg, the Children's Ombudsman for Sweden to hear about the operation of her office and her perspective on the status of children's rights in Sweden.

In June 2005, the Committee began the first in a series of hearings across Canada to gain a much needed perspective from provincial government officials, provincial ombudsmen, non-profit service organizations, and children.  Beginning in Atlantic Canada St. Johns, Newfoundland; Fredericton, New Brunswick; Charlottetown, Prince Edward Island; and Halifax, Nova Scotia the Committee met with officials to discuss the provincial laws currently in place, how those laws are being implemented, various concerns surrounding children's rights, awareness of the Convention and children's rights, and how children are affected by laws and policies at the municipal, provincial, and federal levels.

In October, the Committee travelled to the United Kingdom, to continue with its comparative analysis given the similarities between the UK and Canada in terms of parliamentary framework and approach to international law.  The British government is currently dealing with many of the same issues as Canada, such as treatment of children in the criminal justice and child welfare systems, corporal punishment, and high rates of child poverty.  The Committee met with researchers and officials from various departments and organizations in London and Edinburgh, including: the All Party Parliamentary Group on Children; the Joint Committee on Human Rights; the Scottish Youth Parliament; and the Children's Commissioners for England and Scotland.  The Committee also met with a variety of voluntary sector organizations and gained their perspective on the implementation of children's rights and the ability of the government to meet its obligations.

During this mission, the Committee also travelled to Oslo, Norway, where it found that not only did Norway lead the way for the world by establishing the first-ever national children's ombudsman in 1981, but it was the only dualist country that had expressly incorporated the Convention on the Rights of the Child through domestic enabling legislation.[36]  The Committee met with officials from the Departments of Foreign Affairs, Justice, and Children and Family Affairs, as well as researchers and organizations, including the Ombudsman for Children, Save the Children Norway, and Childwatch International Research Network.

In 2006, the Committee proposes to continue its hearings across Canada.

2.  This Interim Report

This Interim Report discusses the history and background of children's rights in Canadian and international human rights law, as well as the application of the Convention in domestic law.  It also discusses lessons learned, highlighting witnesses concerns about the lack of full implementation of the Convention by the governments because of jurisdictional issues, the apparent unwillingness of various levels of governments at times to comply strictly with the terms of the Convention, the lack of uniform standards, a too-complex reporting process to the Committee on the Rights of the Child, and a lack of public awareness about the Convention and children's rights.

The Committee is releasing its preliminary results and recommendations in two stages.  First focusing on the process of implementation of international law in Canada, with particular emphasis on children's rights and the Convention on the Rights of the Child, the Committee will then study specific issues with respect to children's rights in Canada.

In this report, the Committee explores witnesses concerns and recommends a number of mechanisms to improve Canada's ratification and incorporation processes both with respect to the Convention on the Rights of the Child and international human rights treaties more generally.  Based on an approach utilizing policy, legislation, and education, the Committees recommendations aim to create a more effective and accountable system.

The Committee also suggests means to ensure a more effective application of the Convention in Canada.  Ultimately, through this Interim Report, the Committee calls on the federal government to comply with its legal obligations respecting children by improving institutions, public policy, and laws that affect them. 


CHAPTER TWO HISTORY AND BACKGROUND OF CHILDRENS RIGHTS IN CANADIAN AND INTERNATIONAL HUMAN RIGHTS LAW

A.  HISTORY OF CHILDRENS RIGHTS IN CANADA

1.  Evolution of Approaches to Children in History

Approaches to that early stage of life, known as childhood, have evolved tremendously over time.  In this Chapter, the Committee comments on some of the factors upon which childhood is contingent in Canadian society.  While children were once considered property of their parents, today, societies are moving towards embracing children as persons with their own rights.

During the Middle Ages in Europe, childhood was a relatively short period in a persons life.  By the time a child reached the age of 6 or 7, he or she was considered a small adult.  Children were thought to be ready and able to contribute to the economic well-being of the family.

However, children were still under parental control until well into their adolescence, viewed as a form of chattel or property.  At the time, the English common law adopted the principle of reasonable chastisement, which gave parents the right to subject their children to corporal punishment.  Parents could also sell their children into apprenticeship.  Ultimately, there was little to stop children from being physically or sexually abused, or forced to work in dangerous conditions.[37] 

By the 19th century, children's role in society and the family began to change.  This was a period of social reform in the United States, Great Britain and Canada, when governments began to establish publicly funded education systems, and separate courts and correction facilities for young offenders.[38]  Children were still an essential component to the economic well-being of the family, but improvements in science and medicine increased longevity, and resulted in children being valued for their ability to care for their parents in old age.  The 19th century is also known as the beginning of the child-saving era.  Children were still not persons in their own right, but they were increasingly separated from adults, and viewed as needing special protections.  The principle of parens patriae[39] was used by the State to look after orphans or young persons who had been neglected by their guardians.  Parens patriae was also used in cases of young offenders, where the state took responsibility for promoting their best interests and preventing further destructive behaviour.[40]  This framework was so pervasive that it eventually became legitimized in common and statutory law in various English-speaking countries.[41]  However, it was not until the early 20th century that the notion of the child as a person began to gain recognition.

2.  Evolution of Approaches to Children in Canadian History

In the early years of Canadian colonial history, children in Canada had more or less the same status as their counterparts in Britain and other parts of Europe viewed as property of their parents, and valued for their labour and economic contributions to the family.  During the 17th century in New France, from the age of 7, children entered a stage in life known as tendre jeunesse, at which point they were expected to take on adult responsibilities, such as looking after younger siblings and working on the family farm.  As they grew older, they took on greater responsibilities, to the extent that by time they reached puberty, they could theoretically be married.  Most, however, waited until they were in their early 20s.  At the time in New France, a child was considered a functional adult by the age of 20.[42]

In the primarily agrarian British and French colonies of the 18th and 19th centuries, children were valued for their ability to work on the family farm and were considered an asset, rather than a liability.  Travellers from England and France often remarked that the children in the colonies seemed more independent and self-reliant than their European counterparts.[43]

Parallel to what was happening in Europe, public education became common in the late 19th century, and by 1900, many children were attending public school for at least a few years.  At this time, children in Canada also began to benefit from changing attitudes that considered childhood as a stage in life requiring greater protection.  Improvements in technology facilitated this change.  Better roads and advancements in farming methods made it easier for children to get to schools and made it less of a hardship on their families to spare the children for part of the year to attend classes.[44]  The Canadian economy was also changing, evolving from a primarily agrarian society to a commerce and industry-based economy.  Education played an instrumental role in extending the childhood years.  As stated by England's Children's Commissioner, Professor Aynsley-Green, in his comments on the role of education, during the era of industrialization in England children began to be given time to be children.[45]

The gradual evolution from property to person status has also changed the way the State views children and the way legislation affects children in Canada.  Until the late 19th century children were not protected as persons under the law, but they were protected within the family, and more specifically, by their fathers.  As children gained status as persons in their own right, the State began to take on a more protective role and to remove children from familial situations that were harmful to their well-being.  Until this time, states had been reluctant to interfere in the private lives of families, emphasizing the importance of parental rights over children.

3.  The History of Child Protection and Child Welfare in Canada

As the State took on an increasing role in family affairs, governments became active in dealing with health standards, labour conditions, education, and emphasized the protection of children from abuse and neglect.[46]  The State began to put together legislation giving power to both the state and child protection agencies to remove children from abusive homes, place them in foster care and bring cases to family court.  Although these laws recognized parents as being the primary guardians, they also upheld the ability to restrict or override parental control when parents could not live up to their responsibilities.[47]

The origins of child protection laws in Canada can be traced back to 1893, when Toronto established the first Children's Aid Society and the government of Ontario passed the Act for the Prevention of Cruelty to and Better Protection of Children.[48]  This was the first child protection law in Canada it made the abuse of children an indictable offence, promoted foster care and children's aid societies, gave guardianship power to these societies, and established the office of the superintendent of neglected children.[49]  Society's attitude was also changing, as parents began to place more importance on formal education and recognized that children should be able to grow up free from harm.

By the late 19th century, many municipalities had established children's aid societies and by the early 20th century, all of Canada's provinces had enacted child welfare legislation.[50]

During the 19th century, modern ideas about child protection did emerge.  Children's aid societies, child protection societies, were given the right to apprehend children from paternal custody. Professional social workers began to take over from amateurs in the early 20th century[51]

The 1960s marked a growing awareness of the issue of physical abuse of children.  More reports of child abuse and neglect began to surface.[52]  A similar situation occurred with respect to reports of sexual abuse in the 1970s and 1980s.  At the same time, legislation began to change. As stated by Professor McGillivray, discoveries about physical and sexual abuse of children have resulted in more child-centred laws in the Criminal Code and in provincial child welfare acts.[53]

Until then, prevention had not formed an important part of the policies or programs of the child welfare agencies.  There was also no thought given to notions of children's rights and children were not overtly involved in the child welfare proceedings where courts made decisions profoundly affecting their futures.[54]  Ultimately, child welfare authorities were alerted only when families failed to reach minimum threshold standards of care, as opposed to the situation that exists today, in which child abuse must be reported as soon as clearly established criteria have been breached.

4.  Children's Rights in Child Protection and Child Welfare Laws

The concept of children as persons with their own rights, rather than as objects of welfare did not become widespread until after World War II, and [u]p until recently, children's rights was an oxymoron, a contradiction in terms children do not have rights because they are children.[55]  Children on their own did not have the right to demand adequate protection and care from their parents.

In the last half of the 20th century, the concept of human rights took on sharper form, the concept of individual children's rights culminating in the UN Convention on the Rights of the Child.  Through the rights-based approach, children were considered full citizens entitled to minimum guarantee of social goods.[56]   Recognizing children as full participants along with their parents and the state, the rights-based framework required that adults justify their actions towards children based on reason, maximum social good, and consideration of children's rationality and preferences.  The rights-based approach also emphasized the importance of the best interests of the child.  In making decisions on behalf of children, this approach dictated that parents and the state base their actions on what is best for the child, instead of choosing the easiest or most convenient option.

Increasing sensitivity to human rights at home and abroad, as was particularly emphasized in the Canadian Charter of Rights and Freedoms,[57] led all the provinces to revise and amend their child protection and welfare legislation in the late 1980s and 1990s.  All provincial and territorial legislation now requires that third parties who are aware of child abuse or neglect report their knowledge to law enforcement or child protection agencies. 

B.  HISTORY OF THE CONVENTION ON THE RIGHTS OF THE CHILD

1.  The Origins of Children's Rights in International Law

The history of children's rights at the international level is generally traced to 1924 and the Save the Children International Union (SCIU).  Based in Geneva, this organization was founded by an Englishwoman, Eglantyne Jebb, shortly after World War I.  The SCIU drafted the first Declaration of the Rights of the Child[58]in 1924 (1924 Declaration), which was adopted that same year by the League of Nations.  The 1924 Declaration established the concept of the rights of the child internationally and laid the foundation for future international legal instruments on children's rights.  It was a short document, consisting of only 5 principles, and never became part of international law.  However, it did highlight the social and economic entitlements of children and drew a link between child welfare and children's rights.[59]

The next international declaration on children's rights emerged after World War II.  In March 1959, 21 governments submitted comments on the draft of the 1959 Declaration of the Rights of the Child[60] (1959 Declaration) to the United Nations Secretary-General.  The first draft was prepared by the UN Economic and Social Councils Social Commission.  On November 20, 1959, the General Assembly unanimously adopted the Declaration without abstentions.  Although the 1959 Declaration was not legally binding, the fact that it was adopted by unanimous vote in the General Assembly gave it more weight than other General Assembly resolutions and substantial moral force.[61]

Like the 1924 Declaration, the 1959 version was a brief document.  It consisted of a preamble and 10 principles, which included the right to develop in a normal and healthy manner, in conditions of dignity (Principle 2); the right of physically, socially, or mentally disabled children to receive special treatment, education and care (Principle 5); the principle of the best interests of the child (Principle 7); protection from neglect, cruelty and exploitation (Principle 9); and the principle of non-discrimination (Principle 10).

The 1959 Declaration marked a turning point in children's rights.  Unlike the 1924 Declaration, which viewed children as objects of international law [it] basically dealt with welfare rights;[62] in 1959, children were no longer considered the passive recipients of rights.  Children were now viewed as subjects who were able to enjoy the benefits of specific rights and freedoms.[63]  However, neither Declaration had an enforcement mechanism.

The geopolitical realities of the time made many States wary of a binding treaty on the rights of the child.  It took 20 years for some States to withdraw their opposition.  However, while it can be said that they remained reluctant participants,[64] the Member States of the UN had nonetheless recognized that children required their own set of rights and protections.

2.  The Creation of the Convention on the Rights of the Child

Stemming from these two earlier instruments, the impetus for creating an international Convention on children's rights began when the UN proclaimed 1979 as the International Year of the Child, in honour of the 20th anniversary of the 1959 Declaration.  Poland initiated the process by submitting a first draft of the Convention to the Commission on Human Rights in 1978, with the hope that it would be adopted by the General Assembly to coincide with the International Year of the Child.[65]  The Polish draft was almost identical to the 1959 Declaration, except for the inclusion of a short implementation mechanism.  The Polish delegation was led by Dr. Adam Lopatka, Deputy Chairman of the UN Commission on Human Rights at the time.  The first draft was ultimately rejected because it was insufficiently amenable to legal interpretation and enforcement.  As well, the emphasis for Western governments was on civil and political rights, as opposed to the Eastern Blocs emphasis on economic, social, and cultural rights.[66]  Nevertheless, the Commission on Human Rights asked the UN Secretary-General to get views, observations, and suggestions from the Member States, which resulted in submissions from 28 states, 4 from specialized agencies, and 15 from non-governmental organizations (NGOs).[67]

In 1979, the Commission on Human Rights established an open-ended Working Group, chaired by Dr. Lopatka, to negotiate and draft the Convention.  The open-ended nature of the group allowed states who were not members of the Commission to participate in the drafting process.[68]

The creation of the Convention on the Rights of the Child was an ambitious and complex undertaking.[69]  Drafting took eleven years, from March 1978 to March 1989. From the beginning, the members of the Working Group wanted the Convention to achieve the following goals:[70]

Create new rights under international law for children where no such rights existed, including the right of children to preserve their identity and the right of indigenous children to practice their own culture.

Enshrine in a global treaty rights which had previously only been acknowledged or refined in case law under regional human rights treaties.

Create binding standards in areas in which there existed only non-binding recommendations, including safeguards in adoption procedures and the rights of mentally and physically disabled children.

Impose new obligations in relation to the provision and protection of children, including the obligation on a state to take effective measures to abolish traditional practices prejudicial to the health of children, and to provide for rehabilitation measures for child victims of neglect, abuse, and exploitation.

Enshrine the principle of non-discrimination and oblige states parties not to discriminate against children in their enjoyment of the Conventions rights.

Although many representatives to the UN hoped the draft Convention would be completed to coincide with the Year of the Child, it became clear during the first few meetings of the Working Group that this would not happen because the number of issues to deal with was so wide and diverse.  In the end, the Working Group felt it was more important to draft a comprehensive Convention that covered all aspects of children's rights, than to conclude the negotiations quickly for the sake of symbolism.  The delay in completing the draft of the Convention was also partially due to disinterest on the part of many of the UN Member States, who were involved in the negotiations surrounding the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[71] at the same time.[72]  Negotiations on the Convention on the Rights of the Child did not begin in earnest until 1983.  During each annual session the Working Group adopted several articles of the draft Convention.  Progress was slow, despite the Working Groups efforts to have the draft completed the year following each annual meeting.  It is interesting to note that the United States played a permanent role in negotiations, insisting on the inclusion of articles guaranteeing the civil rights of children, partly to challenge the Eastern Blocs promotion of social and economic rights.

Ultimately, compromise was essential to the completion of the draft, as all participants realized that the document would have to be all-encompassing and stand up to scrutiny from the international community.  Although the negotiations on the draft Convention took much longer than anyone had initially anticipated, when they were finally completed, the General Assembly unanimously adopted the draft.

3.  The Participation of Non-Governmental Organizations

Although NGOs were involved from the beginning of the drafting process for the Convention,[73] they did not play a significant role until 1984, at which time they joined together to form the Informal Ad Hoc NGO Group for the Drafting of the Convention on the Rights of the Child (NGO Group), led by Defence for Children International, an NGO based in Geneva.  The NGO Group submitted reports to the Working Group, supported proposed articles to the Convention, and made critical recommendations on how to change or improve other articles.  The articles the NGO Group supported included issues absent in the original Polish draft, such as the protection of children from sexual exploitation, trafficking, torture, and armed conflict.  The Group also lobbied for the article on youth criminal justice to be separated into two distinct articles.  Other noteworthy contributions included the insistence on using gender-free language in the Convention, the encouragement of breastfeeding, and the discouragement of harmful traditional practices such as female circumcision.  However, the NGO Group failed in its efforts to include provisions on the rights of internally displaced children, the protection of children from medical experimentation, and an increase in the minimum age for participation in armed combat from 15 years to 18 years of age.[74] 

In the beginning, some delegations resisted the involvement of NGOs; however, by the time the Convention was completed, most delegations recognized the importance of the NGOs in the drafting process.[75]  By the time the drafting process for the Convention was completed, it was the most comprehensive international human rights treaty in history, including economic, social and cultural rights as well as civil and political rights.  The NGO Group is still active today and its members continue to work together to facilitate the implementation of the Convention on the Rights of the Child.

4. Optional Protocols to the Convention on the Rights of the Child

The Convention is accompanied by two Optional Protocols.  These Protocols are essentially side treaties dealing with a specific issue contained within the Convention.  

The first Optional Protocol, on the Sale of Children, Child Prostitution and Child Pornography,[76] came into force on January 18, 2002.  This Protocol extends the protections guaranteed to children by articles 1, 11, 21, and 32 to 36 of the Convention.  It emerged out of an increasing concern about the sexual exploitation of children and recognizes the underlying conditions, including poverty and a lack of education, that make children vulnerable to such exploitation.  As of November 2005, 100 countries had ratified the Optional Protocol on the sale of children.[77]

The second Optional Protocol, on the Involvement of Children in Armed Conflict,[78] came into force on February 12, 2002.  Article 38 of the Convention prohibits children under the age of 15 from being recruited into the armed forces.  It was hoped that the Working Group would be able to raise the age limit to 18 years, in order to comply with Article 1 of the Convention, however, many states objected to the higher age limit.  If some members of the Working Group had insisted on increasing the age for military participation, the negotiations on the Convention could have collapsed.  The creation of the Optional Protocol on children in armed conflict was a means of encouraging all states to raise the age of forced recruitment of children into the armed forces to the same level as the rest of the Convention.  Upon ratification of this Protocol, States Parties must declare the age at which they will permit voluntary recruitment into their armed forces and guarantee that no one under the age of 18 shall engage in hostilities.  As of November 2005, 101 countries had ratified this Optional Protocol.[79]

States Parties to the primary treaty may or may not have signed the Optional Protocols, or vice versa.  For example, the United States, which has not ratified the Convention on the Rights of the Child, has signed and ratified the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.

5. The Committee on the Rights of the Child

Article 43 of the Convention provides for the establishment of a Committee on the Rights of the Child to monitor the implementation of the Convention among States Parties.  The UN Committee is one of 7 human rights treaty bodies at the UN.[80]  All States that have ratified the Convention are required to submit periodic reports to the UN Committee, which is now comprised of 18 independent experts an increase from the original 10 from Member States of the UN, currently including one Canadian, David Brent Parfitt.  Each independent expert is elected for a 4 year term.

The Committee on the Rights of the Child is based in Geneva and meets 3 times a year, for 4 weeks each session.  In addition to examining the periodic reports of states and issuing Concluding Observations, the UN Committee holds general discussions on issues related to childrens rights, such as the economic exploitation of children, the rights of the child in the family context, the rights of the girl child, and youth criminal justice.  Such thematic discussions are held approximately once a year and may lead to requests for studies, but can also serve as a basis for work on interpreting the articles of the Convention.   However, the UN Committee does not hear individual complaints.

States Parties to the Convention are required to submit an implementation report to the Committee on the Rights of the Child within 2 years of ratification of the Convention, and every 5 years thereafter.  After studying the periodic reports, the UN Committee adopts Concluding Observations statements on its consideration of a States report that contain comments on the States progress in implementing the Convention and recommend how to improve implementation in areas in which the State is falling behind.  The Concluding Observations have no legal effect, being of moral and persuasive authority only.  However, although States Parties are under no legal obligation to put the Committee on the Rights of the Childs recommendations into practice, the  UN Committee encourages all States Parties to make their reporting process transparent and to publish the country's report as well as the UN Committees Concluding Observations, in order to stimulate public debate on the Convention.

In addition to monitoring compliance with the Convention, the Committee on the Rights of the Child is also responsible for monitoring compliance with the two Optional Protocols to the Convention.  A States report on its implementation of the Optional Protocols must be included in its periodic reports on the Convention as a whole.  In 2004,Canada agreed to report on its implementation of its National Action Plan, A Canada Fit for Children, as well.

6.  The Unique Nature of the Convention on the Rights of the Child

The Convention on the Rights of the Child is unique among human rights treaties.  The fact that it was widely embraced by the international community, demonstrated by its rapid ratification and entry into force, underlines the importance that all countries place on children.  In particular, the Convention is noteworthy because:[81]

It contains the broadest protection of rights of any international human rights treaty.

Its implementation set a new standard for monitoring treaty compliance.

The circumstances under which the Convention was drafted were unusual due to the delicate interplay between government and non-governmental actors.

The Convention has been embraced with overwhelming enthusiasm by the entire world community.

With respect to children's rights, the Convention also represents the first time that the needs and interests of children were expressly formulated in terms of human rights.[82]

7.  Canada and the Convention on the Rights of the Child

As noted earlier, Canada played an instrumental role in the drafting and promotion of the Convention.  From 1980-1989, Canada helped over 40 countries with varying religious, ideological, cultural and political traditions work together to produce the Convention.[83]  At the first meeting of the Working Group in February 1979, Canada proposed that the preamble to the Convention include the first preambular paragraphs of both the International Covenant on Civil and Political Rights,[84] and the International Covenant on Economic, Social and Cultural Rights.[85]  This proposal was accepted and paved the way for Canada's continuing involvement in the negotiations.[86]  Like its Western allies, Canada was initially concerned that the Convention did not sufficiently address children's civil and political rights.[87]  However, Canada's proposal to include references to both civil and political rights, as well as economic, social and cultural rights can be regarded as mitigating the tension between the Eastern and Western blocs.

Canada chaired drafting groups on articles 15 and 16, where Canadian proposals brought the text into line with other existing Covenants.  Canada also chaired a drafting group on article 19, on the right of children to protection from abuse and neglect.  In addition, Canada's proposals on articles 3 and 5 were accepted in the final draft.  Finally, Canada also helped to draft proposals on articles relating to female circumcision and procedures for monitoring the Convention.

Ratification of the Convention in Canada was more complicated than for non-federal states.  In 1976, federal and provincial officials with a responsibility for human rights came together to form a committee which assisted governments to respond to the UN Working Group drafting the Convention.[88]  In 1982, a federal-provincial-territorial Working Group was established to review the progress achieved in drafting the Convention and to provide advice to the Canadian delegation.  This Working Group continued until 1988.[89]

In preparation for signing the Convention, the federal and provincial governments examined the provisions of the Convention in order to amend legislation as necessary to ensure compliance.  To facilitate intergovernmental coordination on the implementation of the Convention and reporting to the Committee on the Rights of the Child, the federal and provincial governments referred the issue to the Continuing Committee on Human Rights, led by the Department of Canadian Heritage.

For the Convention on the Rights of the Child, the Continuing Committee established an informal federal-provincial-territorial subcommittee to review developments at previous negotiating sessions and, as appropriate, refine Canadian positions.  Ultimately, this model proved to be of exceptional value, since it permitted Canada to sign and ratify a complex human rights treaty in a very expeditious manner.[90]

Canada was able to ratify the Convention once all the provinces and territories signalled their support for the Convention by sending letters of support to the federal government.


CHAPTER THREE INTERNATIONAL TREATIES IN DOMESTIC LAW:

THE IMPLEMENTATION PROCESS

A.  RATIFICATION

Canada's Executive branch of Government has the power to sign and ratify international treaties.  This power is not specifically delineated in Canada's Constitution; rather authority to do so stems from the Royal Prerogative.  Cabinet prepares an Order in Council authorizing the Minister of Foreign Affairs to sign an Instrument of Ratification.  Once this Instrument is deposited with the appropriate authority, it is considered that Canada has ratified the convention.[91]

Parliament, representing the Legislative branch of government, is not involved in this process.  There is currently no formal role for Parliament, with no legal requirement for Parliamentary approval or study of a treaty prior to ratification.  In fact, Parliament is not notified when treaty negotiations begin, nor is it consulted concerning the preparation, cost, desirability or impact of such a treaty.  The government only tables treaties that it has ratified with Parliament on an ad hoc basis.  As a result, international human rights treaties that are not directly incorporated into domestic legislation bypass the Parliamentary process.[92]

B.  RESERVATIONS

At the time of ratification, the Executive also has the power to enter reservations to international treaties that allow them.  A reservation is a unilateral statement made when signing or ratifying a treaty which essentially excludes or modifies the application of certain provisions of the treaty in the reserving State.[93]  The purpose of a reservation is to allow a State to ratify an international instrument in order to let the consensus document go forward, while still recognizing that a certain provision within that instrument is not in this country's best interests.  Although the Vienna Convention on the Law of Treaties discourages States from making reservations,[94] and requires that they must be compatible with the goal and objective of the treaty,[95] ultimately, reservations allow the international community to reach a compromise encouraging the participation of as many States as possible by allowing them to protect important national interests, while still ensuring the integrity of the treaty.[96]

It appears that recent Canadian governments have been opposed to making reservations to human rights treaties based on the belief that human rights treaties must establish universal schemes rather than a collection of different legal programs for each State.[97]  As stated by John Holmes of the Department of Foreign Affairs and International Trade when he appeared before the Committee in 2002, it is Canada's position that reservations to human rights treaties should be few in number and limited in scope, given that the rights protected in such treaties are intended to be universal and overarching.[98]

C.  APPLICATION AND IMPLEMENTATION

Government and academic witnesses appearing before the Committee for both this study and Promises to Keep, described the process of implementing international treaties in domestic law in some detail.  They highlighted the fact that Canada operates according to a dualist model similar to many other Commonwealth nations insofar as the actual incorporation and application of international treaties in domestic law is concerned.  In Canada, a treaty that has been signed and ratified by the government requires incorporation through domestic legislation to be actually enforceable at the national level this is neither a self-executing nor an automatic process.[99]  This is in contrast to the monist model operational in countries such as the United States, where once Congress ratifies a treaty, that instrument is enforceable in American law.[100]  As stated by Maxwell Yalden, former Member of the UN Human Rights Committee, 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.[101]  Despite popular misconceptions, signing and ratifying a treaty have limited legal effect, if any, in domestic law.

Witnesses from the Departments of Justice and Foreign Affairs noted that the Canadian government has two basic approaches to dealing with the domestic implementation of international conventions.  In some instances, the government will develop specific legislation to ensure the domestic application of a particular international instrument.  This is the case in relation to the Rome Statute of the International Criminal Court,[102] implemented in Canada through the Crimes Against Humanity and War Crimes Act;[103] the United Nations Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction,[104] implemented through the Anti-Personnel Mines Convention Implementation Act;[105] and the Geneva Conventions for the Protection of War Victims, implemented by the Geneva Conventions Act.[106]

Another approach is to avoid the development of specific enabling legislation, and to rely on existing domestic laws that are presumed to already respond to the concerns set out in the international treaty.  When applying this approach, government officials conduct a review and analysis of existing law before ratifying the treaty to determine whether any amendment or new law is required to comply with the treaty obligations.[107]  As stated by Irit Weiser, former Director of the Human Rights Law Section at the Department of Justice, during her appearance before this Committee in 2001,

As a prelude to ratification, the officials of the Department of Justice consult with colleagues in other federal departments; other agencies; the provinces and territories through the vehicle of [the] continuing committee; and with Aboriginal groups and other non-governmental groups.  This consultation determines several things.  It decides whether existing domestic laws and policies already conform to the treaty obligations.  It determines if there are inconsistencies and if there are it decides whether new legislation and policies should be adopted or whether existing legislation and policies should be amended.  And finally, it determines whether it is appropriate to maintain the domestic position even though it is inconsistent with the treaty provision and enter a reservation or a statement of understanding.[108]

This latter method appears to be the standard with respect to Canada's approach to international human rights treaties in particular.  Federal government policy in this regard is set out in the Core document forming part of the reports of States Parties: Canada,[109] which forms part of Canada's periodic reports under international human rights treaties to the United Nations:

Some human rights matters fall under federal jurisdiction, others under provincial and territorial jurisdiction.  Therefore, human rights treaties are implemented by legislative and administrative measures adopted by all jurisdictions in Canada.  It is not the practice in any jurisdiction in Canada for one single piece of legislation to be enacted incorporating a particular international human rights convention into domestic law (except, in some cases, regarding treaties dealing with specific human rights issues, such as the 1949 Geneva Conventions for the protection of war victims).  Rather, many laws and policies, adopted by federal, provincial and territorial governments, assist in the implementation of Canada's international human rights obligations.[110]

Thus, international human rights treaties are rarely incorporated directly into Canadian law, but are indirectly implemented by ensuring that pre-existing legislation is in conformity with the obligations accepted in a particular convention.  The Committee notes, however, that the government controls this verification process. Canada's approach to compliance is based on the governments opinion of its own conformity with the international instrument.

It is important to note that the federal governments treaty-making and ratification powers do not give Parliament exclusive jurisdiction to adopt the legislation necessary to implement Canada's international legal obligations.  Implementation of international treaties respects the jurisdictional boundaries laid out in the Constitution Act, 1867.  As stated by the Privy Council in the seminal 1937 Labour Conventions Case, the federal governments need to implement international treaty commitments cannot be relied on as a basis for federal encroachment into areas of provincial jurisdiction.[111]

As a result, implementation of international treaties where provincial laws and policies are affected is often a shared, responsibility of the federal, provincial and territorial governments, particularly in the case of human rights treaties such as the Convention on the Rights of the Child.  As stated by Professor Wayne MacKay of Dalhousie University,

The federal government signed the Convention on the Rights of the Child that makes Canada as a nation state responsible for the implementation of that covenant.  However, under our constitutional system the provinces and territories are responsible for the implementation of the covenant.

As the Labour Conventions case indicates, the federal government cannot enforce implementation.[112]

Government witnesses noted that, in the past, this need for provincial legislation and cooperation to ensure full compliance with Canada's international obligations has occasionally proven difficult.  The Federal government has adopted a policy of consulting with provinces and territories before signing and ratifying treaties on matters within their jurisdiction in order to deal with these complexities.  In the case of human rights treaties, this practice was formalized in an agreement reached at a 1975 meeting of federal and provincial ministers responsible for human rights that included the establishment of the Continuing Committee of Officials on Human Rights.[113]  The Honourable Irwin Cotler, Minister of Justice, described the governments approach to these consultations:

Given, therefore, that Canada is a federal state and that jurisdictions on many issues relating to children fall to the provinces or are shared with them, the federal government respects the importance of working with the provinces and territories, both before the Canadian ratification of an international instrument as well as afterwards, to ensure that Canada meets our international obligations.[114]

Yet even when these consultations and cooperation of the various jurisdictions prove difficult, Professor Peter Leuprecht of the University de Qu??bec Montr??al and Maxwell Yalden emphasized that once Canada has ratified an international treaty, lack of federal jurisdiction is not a valid excuse for failing to live up to the nations international obligations.  This position is clear in international law, as stated in the Vienna Convention on the Law of Treaties:

Article 26  Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27  A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

This presumption of good faith means that states must intend the treaties they ratify to be effective notably, through implementation.  Their signature is not a mere formality but entails real responsibilities to fulfill their international obligations to their utmost capacity.[115]  The failure of any States Party to furnish adequate means of enforcement constitutes a violation of the treaty.  This point was emphasized in Ariel Hollis Waldman v. Canada,[116] a case in which the UN Human Rights Committee criticized the federal government for violating the equality provision of the International Covenant on Civil and Political Rights through Ontario's funding of a separate Catholic school system despite the fact that this preferential treatment is entrenched in section 93 of the Constitution Act, 1867.[117] 

Such is also the position of the Committee on the Rights of the Child.  It told the Committee that it expects the federal government to comply with the Convention despite the complexities of ensuring that federal, provincial, and territorial laws conform.  The UN Committee sees Canada's difficulties with its federal structure as internal.  The UN Committees latest Concluding Observations highlight this point:

The Committee notes that the application of a considerable part of the Convention falls within the competence of the provinces and territories, and is concerned that this may lead, in some instances, to situations where the minimum standards of the Convention are not applied to all children owing to differences at the provincial and territorial level.

The Committee urges the Federal Government to ensure that the provinces and territories are aware of their obligations under the Convention and that the rights in the Convention have to be implemented in all the provinces and territories through legislation and policy and other appropriate measures.[118]

In its General Comment on implementing the Convention, the UN Committee also emphasized that, decentralization of power, through devolution and delegation of government does not in any way reduce the direct responsibility of the State party's Government to fulfil its obligations to all children within its jurisdiction, regardless of the State structure.[119]

D.  ENFORCEMENT MECHANISMS

Enforcement mechanisms are another important part of the implementation process when dealing with compliance with international law.  While international trade treaties have traditionally been bolstered by the presence of strong enforcement mechanisms to regulate trade disputes between nations, it is only recently that international human rights has begun to utilize more specific mechanisms to ensure that there are consequences for nations that fail to adhere to their obligations. 

A clear example of such a mechanism is the recently implemented International Criminal Court, which provides criminal sanctions for those perpetrating crimes against humanity and war crimes.  More common are the UN treaty bodies, which inspect the actions of states with respect to a particular human rights treaty for example, the Committee on the Rights of the Child.  These treaty bodies examine country reports and issue Concluding Observations commenting on and criticizing that country's level of compliance with the particular treaty, and providing recommendations for improvement.  While States Parties have no legal obligation to put the Committees recommendations into effect, the treaties do provide an important monitoring role and their Concluding Observations carry significant moral and persuasive weight.  However, this process is not a strict enforcement mechanism, given the treaty bodies limited powers.

It is important to note that again, Parliament has no explicit role in terms of Canada's country reports or receipt of the UN Committees Concluding Observations.  Country reports are prepared exclusively by the government, and there is no process in Canada for Parliament to receive or comment on the UN Committees recommendations and criticisms. 


[1] Report of the Standing Senate Committee on Human Rights, Promises to Keep: Implementing Canada's Human Right Obligations, December 2001.

[2] UN General Assembly Resolution 44/25 1989, see Appendix B.

[3] Promises to Keep, p. 7-8.

[4]David Moloney, Vice-President of the Policy Branch, Canadian International Development Agency, testimony before the Standing Senate Committee on Human Rights, May 16, 2005.

[5]Only the United States and Somalia had signed but failed to ratify the Convention as of November 2005.

[6] The Honourable Ujjal Dosanjh, Minister of Health, testimony before the Committee, June 6, 2005.

[7] Martha Mackinnon, Executive Director, Justice for Children and Youth, testimony before the Committee, April 18, 2005.

[8]Ibid.

[9]Maxwell Yalden, Former Member, United Nations Human Rights Committee, testimony before the Committee, March 21, 2005.

[10] Professor Al Aynsley-Green, Children's Commissioner for England, testimony before the Committee, October 10, 2005.

[11] Justice Jean-Pierre Rosenczveig, President of the Board of Directors of the International Bureau for Children's Rights, International Bureau for Children's Rights Conference, Making Children's Rights Work: National and International Perspectives, Montreal, November 18, 2004.

[12]Rana Khan, Legal Officer, United Nations High Commissioner for Refugees Canada, testimony before the Committee, May 2, 2005.

[13] Mary Robinson, Foreword In A Human Rights Conceptual Framework for UNICEF, by Marta Santos Pais, Florence, Italy: UNICEF, 1999, p. iv.

[14] UN Committee on the Rights of the Child, General Comment No. 5: General Measures of Implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), November 27, 2003, CRC/GC/2003/5, para.11.

[15] Tara Collins, Senator Landon Pearson and Caroline Delany, Discussion Paper, Rights-Based Approach, April 2002, p. 3; Anne McGillivray, Professor, University of Manitoba, testimony before the Committee, September 26, 2005.

[16] Collins, Pearson, Delany, p. 1.

[17] Suzanne Williams, Managing Director, International Institute for Child Rights and Development, testimony before the Committee, February 21, 2005.

[18] Collins, Pearson, Delany, p. 4.

[19]Kathy Vandergrift, Chair of the Working Group on Children and Armed Conflict, World Vision Canada, testimony before the Committee, February 14, 2005.

[20] Dr. Cindy Kiro, Children's Commissioner of New Zealand, testimony before the Committee, May 30, 2005.

[21]Williams testimony.

[22]Kay Tisdall, Social Policy Professor, Programme Director, MSc in Childhood Studies, University of Edinburgh, testimony before the Committee, October 12, 2005.

[23]Aynsley-Green testimony.

[24] Louise Arbour, LaFontaine Baldwin Symposium, Quebec City, March 4, 2005.

[25] UNICEF Innocenti Research Centre, Independent Institutions Protecting Children's Rights, Innocenti Digest No. 8, June 2001, p. 4.

[26]A Canada Fit for Children: Canada's Plan of Action in Response to the May 2002 United Nations Special Session on Children, Government of Canada, April 2004, see Appendix F.

[27]Ibid., p. 9; The Honourable Senator Landon Pearson.

[28] Katherine Covell, Professor, University College of Cape Breton, testimony before the Committee, February 7, 2005.

[29] The Honourable Minister Ken Dryden, Minister of Social Development, testimony before the Committee, September 26, 2005.

[30] Mackinnon testimony.

[31] UNICEF Innocenti Research Centre, Digest No. 8, p. 1-3, and 13; UN Committee on the Rights of the Child, General Comment No. 2: The Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, November 15, 2002, CRC/GC/2002/2, para. 5.

[32] Aynsley-Green testimony.

[33] Suzanne Williams, Meeting Canada's Obligations under the UN Convention on the Rights of the Child: From Paper Concepts to Living Benefits for Children Brief submitted to the Committee, February 21, 2005, p. 3.

[34] Jeffrey Wilson, lawyer, testimony before the Committee, December 13, 2004.

[35] See Appendix A for a complete list of witnesses.

[36]For a discussion of Norway's Human Rights Act, 2003, please see footnote 197.

[37] Nicholas Bala, Child Welfare Law in Canada: An Introduction, Canadian Child Welfare Law: Children, Families, and the State (Toronto: Thompson Educational Pub., 2004), p. 2.

[38] Ibid., p. 3; Aynsley-Green testimony.

[39] The principle of parens patriae originated with the English kings in medieval times who acted as parent to their subjects, and had an obligation to provide the basic necessities of life and to look after them in certain cases.

[40] Marge Reitsma-Street, More Control Than Care: A Critique of Historical and Contemporary Laws for Delinquency and Neglect of Children in Ontario, (1989) Canadian Journal of Women and the Law, p. 512.

[41] Ibid.

[42] Neil Sutherland, History of Childhood, Canadian Encyclopedia, available at: http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0001579

[43] Ibid.

[44] Ibid.

[45]Aynsley-Green testimony.

[46] Stuart N. Hart, From Property to Person Status: Historical Perspective on Childrens Rights, American Psychologist January 1991, p. 54.

[47] Brian R. Howe, Implementing Children's Rights in a Federal State: The case of Canada's Child Protection System, (2001) The International Journal of Children's Rights. p. 362.

[48] S.O., 56 Victoria, 1893, c. 45.

[50] Bala (2004), p. 3.

[51] McGillivray testimony.

[52] Canadian Council on Children and Youth. (1978) Admittance Restricted: The Child as Citizen in Canada, p. 75.

[53] McGillivray testimony.

[54] Bala (2004) , p. 3.

[55] McGillivray testimony.

[56] Reitsma-Street, p. 517.

[57] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[58] League of Nations O.J. Spec. Supp. 21, p. 43, Sept. 26, 1924.

[59] Geraldine Van Bueren, (1995) The International Law on the Rights of the Child, p. 8.

[60] UN General Assembly Resolution 1386(XIV), November 20, 1959.

[61] Van Bueren, p. 12.

[62] McGillivray testimony.

[63] Van Bueren, p. 12.

[64] Ibid., p. 13.

[65] Ibid., p. 14.

[66] Cynthia Price Cohen, Rights of the Child, available at http://www.arrc-hre.com/publications/hrepack1/page55.html

[67] Van Bueren, p. 14.

[68] Ibid.

[69]The Convention in its present form is considerably longer than the one originally proposed by the Polish delegation in 1978.  Many articles required several re-writes involving negotiations among the members of the Working Group.  Between 1979 and 1987, the Working Group met for one week each year to consider proposals and amendments to articles, and to write the draft.  In 1988, the group met twice for two week periods each time.  The first two weeks were used to complete the first draft of the Convention, and the second to complete a review of the Convention and to revise and unify the text.  In the beginning, the Working Group consisted of 43 states, eventually growing to over 80 states by the time the Convention was completed.

[70] Van Bueren, p. 16.

[71] General Assembly resolution 39/46, December 10, 1984.

[72] Van Bueren, p. 13.

[73]This is not surprising as it was always intended that NGOs should play an active role within the UN structure, as described in Article 71, Chapter 10 of the UN Charter.

[74] Ibid, p. 142-143.

[75] Ibid., p. 145.

[76] General Assembly Resolution 54/263, May 25, 2000, see Appendix C.

[77]Canada ratified this Protocol in September 2005.

[78] General Assembly Resolution 54/263, May 25, 2000, see Appendix D.

[79]Canada ratified this Protocol in July 2001.

[80] The others are: the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, the Committee Against Torture, and the Committee on Migrant Workers.

[81] Price Cohen, (1990).

[82] Ombudsman for Denmark, Sweden, Iceland, and Norway, The Best Interests of the Child in our Time: A Discussion Paper on the Concept of the Best Interests of the Child in a Nordic Perspective, October 1999, p. 7.

[83] Michael Jupp, Justice, Not Charity: The United Nations Convention on the Rights of the Child, On the Right Side: Canada and the Convention on the Rights of the Child. (1990), Canadian Council on Children and Youth, p. 8.

[84] 999 U.N.T.S. 171, 1976.

[85] 993 U.N.T.S. 3, 1976.

[86] UN Working Group Activities, 1978-1979.

[87] Email correspondence with Marthe St-Louis (Foreign Affairs Canada).

[88] Gordon Fairweather, Canada and the Convention: Some background information, On the Right Side: Canada and the Convention on the Rights of the Child. (1990), Canadian Council on Children and Youth, p. 17.

[89] John Holmes, Canadian Ratification of International Treaties, On the right side: Canada and the Convention on the Rights of the Child. (1990), Canadian Council on Children and Youth, p. 19.

[90] John Holmes, Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade, testimony before the Committee, June 11, 2001.

[91] Capital Cities Communications Inc. v. Canadian Radio-Television Commission [1978] 2 S.C.R. 141; Labour Conventions Case Attorney General for Canada v. Attorney General for Ontario, [1937] 1 D.L.R. 673 (J.C.P.C.); Joanna Harrington, State Actors and the Democratic Deficit: The Role for Parliament in Treaty-Making Document prepared for the Department of Justice, May 2005, p. 6-7, 23-24.

[92] Ibid., p. 2-4, 24-28.

[93]Vienna Convention on the Law of Treaties, UN Doc A/Conf 39/28, art. 2.

[94] See the principles enunciated in article 26 of the Vienna Convention cited in Part B of this Chapter.

[95] Nicole LaViolette, The Principal International Human Rights Instruments to which Canada has not yet Acceded (January 2005), p. 62.

[96] J.-Maurice Arbour, Droit international public, 4th ed. (Cowansville, Quebec: editions Yvon Blais, 2002) p. 99; LaViolette, p. 62.

[97] LaViolette, p. 62.

[98]John Holmes, Director, United Nations, Criminal and Treaty Law Division, Department of Foreign Affairs and International Trade, testimony before the Committee, 18 March 2002.

[99] Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141; Labour Conventions Case Attorney General for Canada v. Attorney General for Ontario, [1937] 1 D.L.R. 673 (J.C.P.C.); Joanna Harrington, State Actors and the Democratic Deficit: The Role for Parliament in Treaty-Making Document prepared for the Department of Justice, May 2005, p. 7.

[100]However, Benjamin Dolin notes that the impact of ratified treaties in U.S. law is not always clear.  American jurisprudence has held that some treaties are not self-executing.  See International Instruments and their Applicability in Canada, Library of Parliament, July 2005, p. 23.

[101] Yalden testimony.

[102] UN Doc. A/CONF.183/9.

[103] S.C 2000, c. 24.

[104] UN Doc. A/C.1/57/L.36.

[105] S.C 1997, c. 33.

[106] R.S.C. 1985, c. G-3.

[107] The Honourable Irwin Cotler, Minister of Justice, testimony before the Committee, April 11, 2005.

[108] Testimony of Irit Weiser before the Standing Senate Committee on Human Rights, June 11, 2001.

[109] HRI/CORE/1/Add.91, January 12, 1998.

[110] Ibid., para. 138.

[111] Dolin, p. 12-14.

[112] Wayne MacKay, Professor, Faculty of Law, Dalhousie University, testimony before the Committee, June 16, 2005.

[113]Promises to Keep, p. 23.  For a full discussion of the role of the Continuing Committee, please see Chapter 4 Part B1.

[114] Cotler testimony.

[115]Rebecca Cook, Violations of Women's Human Rights (1994) 7 Harvard Human Rights Journal, p. 147.

[116] ICCPR/C/67/D/694/1996, Human Rights Committee, 67th Session, October 18 to November 5, 1999.

[117]Despite the Human Rights Committees rebuke, the federal government responded that education was a provincial responsibility and could do nothing.  For its part, the Ontario government refused to change its laws based on this ruling.

[118] UN Doc. CRC/C/15/Add.215, Committee on the Rights of the Child, Concluding Observations, para. 8-9. Appendix E.

[119] UN Committee on the Rights of the Child, General Comment No. 5, para. 40.