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EXECUTIVE SUMMARY

THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS


Children: The Silenced Citizens Report

This Study (Chapter 1)

In November 2004, the Standing Senate Committee on Human Rights was authorized by the Senate to examine and report upon Canada’s international obligations with regard to the rights and freedoms of children.  From the outset, the Committee reviewed Canada’s international obligations with respect to children’s rights as a case study reflecting the broader implications of ensuring that domestic legislation and policies comply with Canada’s international human rights obligations, and in keeping with a broader mandate that began with this Committee’s first report in 2001, Promises to Keep: Implementing Canada’s Human Rights Obligations.  The primary aim of this study was to assess whether the United Nations Convention on the Rights of the Child has been implemented, whether Canadian children are benefiting from it, and whether the Convention has been used as a tool to address key problems of facing children in this country. 

 The Committee also looked at the role of Parliament within this framework.

Canadian Implementation of International Law  (Chapter 2)

In November 2005, the Committee tabled its Interim Report, Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, in the Senate.  That report built on Promises to Keep, discussing the application of the international obligations in domestic law.

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 the 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.

With respect to Canada’s reporting obligations under human rights treaties, the Continuing Committee of Officials on Human Rights facilitates preparation of Canada’s country reports to the United Nations human rights treaty bodies. When the treaty body issues its Concluding Observations, the Continuing Committee’s role is to keep provincial and territorial governments apprised of any comments on the scope of the rights guaranteed by the convention.

One of the key concerns expressed by witnesses is the federal government’s 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.  In addition, the Committee 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.  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 treaty bodies’ Concluding Observations.

Children’s Rights and the Canadian Context  (Chapters 3 to 17)

Chapter 3 provides an overview of the Convention on the Rights of the Child – the principles enshrined in it, the Optional Protocols, and the role of the UN Committee on the Rights of the Child.  Canada signed the Convention on 28 May 1990 and ratified it on 13 December 1991.  This chapter focuses on the value of a rights-based approach, which emphasizes that all rights are equal and universal; that all people, including children, are the subject of their own rights and should be participants in development, rather than objects of charity; and that an obligation is placed on states to work towards ensuring that all rights are being met.  The rights-based approach is of particular importance in the discussion of children’s rights because of children’s often intense vulnerability, the frequent competition between children’s rights and those of adults, and the resulting ease with which a more paternalistic and needs-based approach can be adopted.  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.  The Convention on the Rights of the Child properly puts children at the centre, in the context of their family, their community, and their culture.  Nevertheless, there is a real gap between rights rhetoric and the reality of children’s lives in Canada – many people in Canada and elsewhere continue to resist full implementation of the Convention.

Chapter 4 discusses implementation of the Convention in Canada, including the lack of enabling legislation, the weight given to judicial interpretation, Canada’s reservations to the Convention and the impact of Canada’s federal nature on implementation.  The Committee finds that the federal government’s approach to compliance with children’s rights, and with the Convention in particular, is inadequate.  Jurisdictional complexities, the absence of effective institutions, an uncertain approach to human rights law, and lack of transparency and political involvement indicate that the Convention is being ineffectively applied in the Canadian context.  What is needed to push both the issue and respect for the democratic process further is enhanced accountability, increased parliamentary and public input, and a more open approach to compliance that promotes transparency and enhanced political will.

Chapters 5 to 16 discuss Canadian compliance with specific articles of the Convention on the Rights of the Child.  These chapters highlight the Committee’s observations and recommendations with respect to implementation and use of the Convention in terms of issues of participation and expression, violence against children, exploitation of children, youth criminal justice, child welfare, adoption and identity issues, migrant children, early childhood development and care, child poverty, health issues, sexual minority children, and Aboriginal children.  The Committee’s intention was not to study these critical issues exhaustively for answers, but to investigate whether these issues and concerns are dealt with using the Convention on the Rights of the Child.  The Committee’s observations are accompanied by suggestions and recommendations as to how the federal, provincial, and territorial governments can all move forward to ensure the protection of children’s rights in Canada.

In Chapter 17 the Committee concludes that the Convention on the Rights of the Child is not solidly embedded in Canadian law, in policy, or in the national psyche.  Canadians are too often unaware of the rights enshrined in the Convention, while governments and courts use it only as a strongly worded guiding principle with which they attempt to ensure that laws conform, rather than acting as if they are bound by it.  Also, no body is in charge of ensuring that the Convention is effectively implemented in Canada, and the political will is lacking.  Implementation is key to making the Convention work, and for Canada to claim that it fully respects the rights and freedoms of its children, it should improve its level of actual compliance.  The federal government needs to take the lead with respect to implementation of the Convention. 

The Committee concludes that the federal government does not have effective mechanisms in place to ensure compliance with its international human rights treaty obligations.  As a result, the Committee proposes measures to guarantee systematic monitoring of the Convention’s implementation in order to ensure effective compliance.  These include proposals for the establishment of a federal interdepartmental implementation working group to coordinate and monitor federal legislation and policy affecting children’s rights, and an independent children’s commissioner to monitor government implementation of children’s rights at the federal level and liaise with provincial child advocates.  The Committee also emphasizes the need for awareness-raising with respect to both the Convention and the rights-based approach embedded within it.  Most importantly, through its recommendations the Committee seeks to strengthen the active involvement of children in all institutions and processes affecting their rights.

Proposed Framework for Implementing International Law in Canada  (Chapter 18)

Finally, in Chapter 18, the Committee emphasizes that Canada possesses no modern, transparent, and democratic international human rights treaty implementation process.  Further, no institution has ultimate responsibility for ensuring that international human rights conventions are effectively implemented.  In response to this situation, the Committee outlines a framework for improving the process whereby Canada signs, ratifies and incorporates its international human rights obligations.  This proposal calls for enhanced levels of accountability that will help to translate Canada’s international human rights obligations into meaningful law, policy, and practice.  In particular, the proposal emphasizes the need for Canada’s ministers responsible for human rights to take ownership for Canada’s international human rights obligations, and meet immediately, with renewed vigour, to ensure effective consultations and implementation of Canada’s international human rights obligations.  It is the hope of the Committee that some of the entrenched problems facing children today can be ameliorated by embracing the United Nations Convention on the Rights of the Child as a binding commitment for our children’s benefit.


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